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HCNM
Towards Good Governance
and Social Integration
Proceedings and Developments from the Conference
“Governance and Participation: Integrating Diversity”
Organization for Security and Co-operation in Europe
High Commissioner on National Minorities
Towards Good Governance
and Social Integration
Proceedings and Developments from the Conference
“Governance and Participation: Integrating Diversity”
Compiled and Edited
by John Packer
with the assistance of Sally Holt
Published and disseminated by the OSCE High Commissioner on National Minorities (HCNM).
This publication is protected by international copyright law.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted in any form or by means, electronic, mechanical, photocopying, recording or
otherwise, without prior permission of the publisher.
ISBN/EAN: 978-90-75989-11-3
© OSCE High Commissioner on National Minorities 2007
Printed in the Netherlands
For further information, please contact:
OSCE High Commissioner on National Minorities
Prinsessegracht 22
2514 AP The Hague
Tel: +31 (0)70 312 5500
Fax: +31 (0)70 636 5910
E-mail: [email protected]
Website: www.osce.org/hcnm/
TABLE OF CONTENTS
FOREWORD
Rolf Ekéus, OSCE High Commissioner on National Minorities.....................…..................1
FOOD FOR THOUGHT .................................................................................................................3
OPENING ADDRESSES OF 18 OCTOBER 1998.......................................................................5
INAUGURAL ADDRESS
Flavio Cotti, President of the Swiss Confederation ...............................................................5
THE ROLE AND IMPORTANCE OF INTEGRATING DIVERSITY
Max van der Stoel, OSCE High Commissioner on National Minorities .............................11
THE PERSPECTIVE FROM ODIHR
Gérard Stoudmann, Director of the OSCE Office for Democratic Institutions and
Human Rights.......................................................................................................................21
FORMS AND NOTIONS OF GOVERNANCE FOR THE PROTECTION OF
MINORITIES IN MODERN DEMOCRACIES
Vernon Bogdanor, Professor of Government, Oxford University .......................................25
GOOD GOVERNANCE: NOTIONS AND FORMS
Danilo Türk, Professor of international law, Ljubljana University; Ambassador,
Permanent Representative of Slovenia to the United Nations, New York...........................35
EFFECTIVE PARTICIPATION THROUGH ELECTIONS: CREATING THE
SPACE FOR MINORITIES AND MAJORITIES IN THE
POLITICAL SPHERE
Andrew Reynolds, Assistant Professor of Government and International Studies,
University of Notre Dame; Fellow of the Helen Kellogg Institute for International
Studies and the Joan B. Kroc Institute for Peace Studies.....................................................41
TOWARDS EFFECTIVE PARTICIPATION OF MINORITIES: A BRIEF
EXAMINATION OF ADVISORY AND CONSULTATIVE BODIES AND
DIALOGUE MECHANISMS
Fernand de Varennes, Senior Lecturer at the School of Law, Murdoch University;
Director of the Asia-Pacific Centre for Human Rights and the Prevention of Ethnic
Conflict (Australia); Co-Responsable, Section “Droits et politiques linguistiques”,
Groupement de Recherches 1178 Droit, Cultures, Langues, Conseil National de la
Recherche Scientifique (France) ..........................................................................................53
IMPLICATIONS OF GOOD GOVERNANCE IN PLURAL SOCIETIES
Rein Müllerson, Professor of International Law, King’s College, University of
London .................................................................................................................................71
GOOD GOVERNANCE: IMPLICATIONS IN THE ECONOMIC SPHERE
Tom Price, OSCE Coordinator for Economic and Environmental Activities .....................83
INTEGRATING DIVERSITY: EFFECTIVE POLICIES AND PROGRAMMES
Miquel Strubell, Director, Institute of Catalan Sociolinguistics, Generalitat de
Catalunya (regional government of Catalonia) ....................................................................89
INTEGRATING DIVERSITY: LINGUISTIC ASPECTS OF EFFECTIVE
POLICIES AND PROGRAMMES
György Szépe, Professor of Language Sciences, Janus Pannonius University ...................99
EDUCATION: ALTERNATIVES; DECENTRALIZATION AND
PARTICIPATION; PUBLIC AND PRIVATE
Diego Erba, Director of the Pedagogical Review of the “Scuola Ticinese”......................109
GOALS AND POSSIBILITIES OF DECENTRALIZED EDUCATION
Robb Cooper, Professor of Education, Northern Illinois University.................................119
CHAIRMAN'S STATEMENT ...................................................................................................127
AGENDA ......................................................................................................................................129
LIST OF CONTRIBUTORS ......................................................................................................133
LIST OF PARTICIPANTS .........................................................................................................135
SELECTED OSCE STANDARDS AND REFERENCES .......................................................145
THE LUND RECOMMENDATIONS ON THE EFFECTIVE PARTICIPATION OF
NATIONAL MINORITIES IN PUBLIC LIFE & EXPLANATORY NOTE............147
GUIDELINES TO ASSIST NATIONAL MINORITY PARTICIPATION IN THE
ELECTORAL PROCESS [THE "WARSAW GUIDELINES"].....................…............167
FOREWORD
It has become apparent that a common and persistent challenge across the OSCE area, if not
around the world, is that of integrating diversity within pluralist societies. Notwithstanding the
adoption of important international standards establishing basic rights and encouraging good
governance, many States struggle to meet the challenge in terms of concrete and sustainable policy
and its effective implementation. Whether the challenge manifests itself in the field of education,
economic opportunity, cultural maintenance or various other domains of private and public life, I
have found as High Commissioner on National Minorities that more attention to this subject is
needed. Indeed, I have found the general issue of social integration to be a complex, pressing and
yet little understood or purposefully addressed area of public policy in many countries in which I
have become involved as in others which I observe.
With a view to taking stock of where the thinking and approach at least in the context of
national minorities has evolved within the OSCE, and hoping to stimulate further reflection on and
development in this field, it seems opportune to make publicly available the pioneering work
which initiated important developments in the last five or so years, beginning with the
unpublished proceedings of the October 1998 conference on “Governance and Participation:
Integrating Diversity”. This was the first such inter-governmental conference on this theme, and
led within one year to the elaboration of the Lund Recommendations on the Effective Participation
of National Minorities in Public Life which have since been broadly disseminated and have
enjoyed wide acclaim as a useful reference for policy makers.
These were followed in March
2001 by the elaboration in Warsaw of Guidelines to Assist National Minority Participation in the
Electoral Process, which have since been incorporated into the regular work of the Office for
Democratic Institutions and Human Rights in its work monitoring, advising upon and assessing
elections and their systems.
These materials are compiled and edited, together with an introduction by John Packer,
former Legal Adviser and then Director in the Office of the High Commissioner on National
Minorities, with a view to explaining the development and subsequent use of especially the Lund
Recommendations and the so-called Warsaw Guidelines. The utility of this compilation is in its
exposition of the considerations and arguments that led to developments at that time and which
clearly merit further reflection today. It is my intention to look closer at the specific needs and
practices of participating States and of the OSCE as a whole, and encourage a dialogue about how
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the OSCE community may better address issues of social integration in their various
manifestations. I believe this is consistent with the progression of work done by my Office and
responds to evident and sometimes expressed needs. I am convinced that thoughtful and effective
policies and programmes of social integration can contribute to reducing the root causes and risks
of conflict.
Rolf Ekéus
OSCE High Commissioner on
National Minorities
2
Food for Thought
FOOD FOR THOUGHT
10 September 1998
The Heads of State and Government declared in Paris on 21 November 1990 an “era of democracy,
peace and unity” for a “new Europe” and undertook “to build, consolidate and strengthen democracy
as the only system of government of our nations.” The commitment was not just to any kind of
“democracy”, but one of a “representative and pluralist character”. Through this “steadfast
commitment to democracy based on human rights and fundamental freedoms”, and with a
commitment to “economic liberty and social justice”, OSCE Heads of State and Government thereby
also sought to attain “equal security for all our countries”. This is the essence of the OSCE notion of
comprehensive security which remains the inspiration and driving force of the OSCE.
The commitment undertaken in Paris was followed by two significant meetings of experts
held in Oslo and Geneva in 1991: the Oslo meeting aimed generally “to strengthen democratic
institutions”, while the Geneva meeting aimed more specifically “to foster the rich contribution of
national minorities to the life of our societies”. These meetings succeeded in outlining some practical
measures for facilitating integration of groups, including avoidance of over-centralization of decisionmaking, encouraging participation in consultative State organs and considering some specific
approaches of inclusive processes in an appropriate democratic manner. Specific reference was made
to the importance of the human dimension as elaborated in the Document of the Copenhagen Meeting
of June 1990.
Based upon their collective experience over the subsequent period, the High Commissioner
on National Minorities (HCNM) and the Director of the Office for Democratic Institutions and
Human Rights (ODIHR) have decided to organize a conference with a view to considering further the
content of OSCE undertakings in the light of the range of existing practice and alternative
possibilities. The Conference is being co-organized by the HCNM and the ODIHR with the support
of several governments (Switzerland, the United States of America, Sweden, Norway and The
Netherlands). It is hoped in particular to consider the benefits of decentralization and subsidiarity as
means of accommodating diversity in society. Insofar as the HCNM’s special interest is in relation to
minorities, it has been his experience that one very good and generally applicable approach to help
solve minority-related issues is through the development of progressively open and decentralized
States where individual choice may lead to the fulfilment of the plurality of interests and desires. As
such, it is hoped that the Conference will contribute to a more developed understanding of liberal
democracy and its possibilities for modern, pluralist societies with increasing human contacts
between and within them.
As the title for the Conference suggests, it is intended to consider the content of good
governance with effective participation of minorities. There is a lot of room to develop these notions
which are grounded in existing OSCE standards. Progress may be achieved by stressing the ideas of
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Conference on Governance and Participation: Integrating Diversity
common and general interests, the responsibility of governing for the whole population, and the
necessity of taking into account in a meaningful way the specific concerns and interests of minorities.
It is asserted that overly centralized States tend to serve specific interests in a disproportionate and
inflexible manner as uniform policies are forced upon the wider society even when not necessary.
Excluded or marginalized groups often react strongly against such policies. Experience shows that
alternative approaches which are inclusive and decentralized may well contribute to better overall
governance with “win-win” solutions for competing interests, by increasing the productive resources
and prosperity of the overall society, of multiplying opportunities and creating greater freedom for all.
Beginning with a developed sense of the objective of good governance, it is hoped that the
Conference may inspire some new thinking and awareness in this direction.
Independent experts will address the Conference on various alternatives with regard to
policies and programmes. The Conference will be opened by introductory statements by President
Cotti of Switzerland on behalf of the host State and by the HCNM and Director of the ODIHR as
joint convenors. Following one day of discussion on the general ideas of the positive content of
“good governance”, “effective participation”, and inclusive and integrative policies relating to
persons belonging to minorities, the Conference will focus for one morning on the field of education
as a concrete subject-matter domain in order to allow participants to consider better the implications
of the general ideas. Experts will address the Conference on the following subjects: “Good
Governance: Notions and Forms”; “Good Governance: Implications”; “Effective Participation:
Advisory and Decision-making Bodies and Dialogue Mechanisms”; “Integrating Diversity: Effective
Policies and Programmes”; and “Education: Alternatives for Decentralization and Participation in
Public and Private Institutions and at Various Levels”. The OSCE Coordinator on Economic and
Environmental Affairs will also address the Conference in an effort to draw attention to the important
possibilities for similar approaches in the field of economics. Experts will introduce the subjects with
twenty-minute presentations followed by discussion among participating States.
In sum, it is hoped that the Conference will contribute to a better understanding of how our
democracies can work to take advantage of the rich diversity which we enjoy and how the New
Europe can achieve its aims of peace and stability with freedom and prosperity for all.
4
Opening Addresses: Inaugural Address
OPENING ADDRESSES OF 18 OCTOBER 1998
INAUGURAL ADDRESS
Flavio Cotti
President of the Swiss Confederation
Your Excellencies,
Ladies and Gentlemen,
It gives me very great pleasure indeed to be able to welcome you to the OSCE Conference on
“Governance and Participation: Integrating Diversity” here in Locarno. I would like to extend my
particular thanks to the High Commissioner on National Minorities, Mr van der Stoel, and to
Ambassador Stoudmann, the Director of the Office for Democratic Institutions and Human Rights.
Their great commitment in the sphere of minorities and multi-ethnicity has made this Conference
possible. I would also like to thank the authorities of the Canton of Ticino for their readiness to take
on the role of the host here in Locarno.
Our meeting also reminds me of the unforgettable times of my OSCE chairmanship, and
especially of cooperation with the High Commissioner. Minister van der Stoel always participated in
the Troika meetings with patience, restraint and discretion — and then proceeded to make a precise
comment which hit the nail on the head. I am sure that this is also part of the secret of how he tackles
delicate minority issues with such success.
On the long journey to the Canton of Ticino, you may well have wondered: why Locarno,
of all places?
Staging this Conference in Locarno has a particular symbolic significance for us since the
Canton of Ticino belongs to the second-smallest linguistic region of this country, which is separated
from the rest of Switzerland by the Alps, and this makes things rather more difficult at times. Ticino
is greatly concerned with issues such as participation in the national decision-making process, the
integration of distinctive groups, and minorities in general.
Locarno, however, is also the place where, in a hotel not far from here, the agreements were
initialled on 16 October 1925 after two weeks of negotiations; these Locarno agreements were
intended to be some major steps on the road to Peace in Europe and to bring about a security balance
in Europe. Much more recently, on the initiative of the High Commissioner on National Minorities, a
round table discussion on the issue of the Crimean Tartars took place here in 1995, which at the time
paved the way for an important breakthrough. There was a further round table meeting in 1996
which focused on the establishment of a multicultural and multi-ethnic society in Kazakhstan.
5
Thus, the OSCE Conference is not simply taking place in Ticino by accident. Rather, this
is the place where, in the course of a long period of time, experience, knowledge and
consciousness have grown, which can and should enrich the coming debates. Moreover, Locarno
is my own home town, and this is why I am particularly pleased that this Conference can be staged
here.
Swiss Federalism
One of Switzerland's central characteristics is the fact that four different national languages
and cultures live together in a confined space. We have learnt that, in the long run, only respect for,
and the promotion of, diversity are able to keep our linguistically heterogeneous country together and
thus even become a shared integration factor. The search for a delicate balance between cultural,
linguistic and religious diversity and political unity led to today's federalist system, which
characterizes Switzerland's identity at all levels. Crucial significance is accorded to the principle of
subsidiarity, which is applied in the sense of complementarity: factions are basically fulfilled at that
level which is most compatible to their nature and offers the most suitable opportunities. In specific
terms this means: as much decentralization as possible, and as little centralization as is inevitable.
In Switzerland, federalism is the most efficient mechanism with which minorities are
protected and promoted, and which is conducive to their further self-realization. The “sovereign
cantons” have their own constitutions and enact their own laws regarding, among other things,
taxation, the police, social welfare, health, education and the promotion of culture. Yet federalism
does not end with the cantons, but continues at the level of the communities, which also levy taxes
and are able to legislate in all those areas that are not regulated by either the Confederation or the
canton.
At the level of the Confederation, special mechanisms guarantee the ability of the cantons —
and therefore of the linguistic regions — to exert their influence. Specifically, this includes the fact
that every canton, irrespective of its size, sends two representatives to the small chamber of
Parliament; every canton has the right to submit its comments on federal bills; and referendums have
to be carried not only by the number of votes cast by the people, but also by the majority of the
number of cantons.
Moreover, it is a particular concern to guarantee for the different linguistic regions an
appropriate representation not only in parliament, but also at the level of the government. Here,
the unwritten law applies whereby at least two of the seven Federal Councillors must come from
French- and Italian-speaking Switzerland. At present, Latin Switzerland, which accounts for
about one fourth of the population, is represented by three Federal Councillors in the seven-strong
government. It is plain for you to see, Ladies and Gentlemen, that in Switzerland, it is perfectly
possible for a representative of a linguistic minority numbering just 5% of the population to open
an international conference in his capacity as President of the Confederation.
6
Historical Developments
Yet, believe me, the mere creation of the necessary structures will not suffice to guarantee
the coherence of the State and the prosperous coexistence of diverse cultures in a confined space
in the long term. This will require greater efforts, as I have reminded my fellow citizens again and
again, and particularly this year, which is the 150th anniversary of the Swiss Confederation.
Rather, what is needed is the conviction that the existence of different cultures represents an
opportunity and an enrichment, the generally supported will to live together, and the firmly rooted
idea of making multi-ethnicity the central integration factor of the shared State. It is precisely this
shared political will which is regarded as nationalist in a multi-ethnic country, and not things like
a homogeneous culture or a uniform tradition.
This will to live together, however, cannot be developed from one day to the next, nor can
it be decreed by any institutions and bodies; instead, it must be allowed to evolve over a long
period of time and in the whole of the population. The creation of the Swiss Confederation in
1848 was preceded by several centuries of conflict and war between individual cantons and
linguistic regions. The readiness to display tolerance — and this primarily applies to the majority
— must be practiced, cultivated, improved with patience.
Do not misunderstand me, Ladies and Gentlemen, I have not devoted these introductory
words to Switzerland because I want it to be considered an example for other countries. Far be it
from me to do so, since I am aware that every situation in every country has its very own
peculiarities and therefore requires new and tailor-made solutions. Rather, I wanted to state that
our history and daily experience has made us particularly sensitive to specific questions and
problems of groups of different cultures living together. For this reason, there is a widespread
interest and readiness to take an active part in the search for such new and tailor-made solutions.
The Commitment of the OSCE
The necessity of finding or improving such solutions is no mere academic interest but
results from the central challenges that we encounter in the OSCE area. Virtually all the conflicts
with which I had to deal in 1996 as the OSCE's Chairman-in-Office had their origins in the
situations of minorities. Unregulated relations between national majorities and minorities within
the States, as well as re-emerging ethnic nationalism, represent the greatest danger for peace in
Europe, and the effects of totalitarianism have not yet been mastered everywhere, either. The
most topical crisis of this nature is the Kosovo conflict, which is claiming an increasing number of
civilian victims and has driven hundreds of thousands of people from their homes. I will certainly
not have to remind you of the untold suffering which the war in Bosnia and Herzegovina caused
only a few years ago. However, tensions and unresolved minority conflicts also exist in NagornoKarabakh, Chechnya, Abkhazia, South Ossetia and Moldova. In some of these cases, the political
efforts to find a solution have been stagnating for a long time. In Tajikistan, we are party to a
fragile negotiation process. Developments are encouraging in Latvia, where the population has
voted for the naturalization of inhabitants of Russian origin, thereby also complying with a request
7
from the High Commissioner. We hope that Croatia, too, will manage to satisfy its obligations
regarding the return of displaced persons and refugees in full and to create the foundations for a
tolerant coexistence between the various groups of the population. Whilst the question of
Crimean autonomy is moving in the right direction, continued attention must be paid to the
integration of the returning Crimean Tartars at the same time. I have restricted myself to tensions
and conflicts in which the OSCE is active but would like to remind you of the fact that there are
also situations in which the OSCE is not involved.
In the course of the century, historically grown cultural diversity has provided our
continent with unique intellectual and cultural wealth, but it has also, again and again, caused a
great deal of suffering in the form of ethnic and religious conflicts. The OSCE has repeatedly
dealt with the question as to how the still emerging latent tensions and open conflicts at the
interfaces of diverse cultures, languages and religions could be handled best. Questions of
national minorities can only be settled satisfactorily in a democratic political framework, based on
rule of law and with a functioning independent judiciary. We have committed ourselves to
protecting the ethnic, cultural, linguistic and religious identities of national minorities, and to
promoting a climate of mutual respect, understanding, cooperation and solidarity. The diversity
and changing nature of constitutions, however, make it unlikely for a generally valid method to be
applied. As early as the Meeting of Experts on National Minorities held in Geneva in 1991, a
number of steps and measures were detailed which have led to positive results.
The Conference in Locarno takes up once again the great and central issue of “good
governance” with an effective participation of minorities, and would like to stimulate
improvement of existing practices and take into account alternative possibilities.
Switzerland hopes that this Conference will contribute towards an improvement in the
implementation of previously entered commitments regarding national minorities. However, the
situation “in the field”, the claims advanced by minorities in various participating States, call for
more. Switzerland is convinced that, both in the interest of minorities and for the preservation of
territorial integrity, we will have to do a great deal more for minorities to feel more secure in their
environments and for their claims not to result in conflict. We must find solutions which make
concessions to national minorities' aspirations while promoting their sustainable integration into the
society and structures of participating States. Switzerland is convinced that such solutions can be
found in the sphere of subsidiarity in the distribution of competencies among national and regional
structures of government and administration. Forms of self-administration that are adapted to the
local situation can make an essential contribution to consensual coexistence within shared borders,
and help settle tensions and conflicts. We are also convinced that the role of the High Commissioner
on National Minorities should be further extended.
Not only the OSCE's presence in the Balkans, but virtually all the OSCE's long-term
missions deal primarily with defusing tensions resulting from the failed, or not yet successful,
integration of minorities. Whereas the missions are all responses to existing serious situations that
are a threat to security, this Conference here in Locarno is supposed to be proactive. This means
8
that it should make a concrete contribution towards preventing such tensions in the first place or
defusing them before they have become a serious security risk. On the basis of the OSCE's
existing commitments, Locarno should develop certain principles and specific indications further,
thus making a vital contribution to genuine preventive diplomacy. I hope that the impulses of
Locarno will also have a bearing on the discussion in Vienna on the European Security Charter.
Ladies and Gentlemen,
I am honoured to be able to welcome you to Locarno — not only because I have very special
personal ties with this town but also, and primarily, because we will be discussing one of the central
issues of European security and because I hope that this discussion will take us a small but important
step further.
Cultural, ethnic and religious diversity are an enormous enrichment for our countries. May
this Conference cause this conviction to take even deeper roots in our hearts!
I wish this Conference a great deal of success!
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10
Opening Addresses: The Role and Importance of Integrating Diversity
THE ROLE AND IMPORTANCE OF INTEGRATING DIVERSITY
Max van der Stoel
Mr. President,
Excellencies,
Ladies and Gentleman,
Twenty-five years have passed since the initiation of the Conference on Security and Cooperation
in Europe. In those early days, I had the honour to attend those meetings in the capacity of
Foreign Minister of my country. I recall the tentative way in which began what subsequently
became known as “the Helsinki process”. I also recall the keen sense of necessity and
responsibility that many of us felt in that dark period of European history.
It took almost twenty years to move beyond that period — to move out of the darkness into
the light of a free continent committed to democratic government and the free market economy.
Certainly, the signing of the Charter of Paris for a New Europe was a remarkable achievement
following the progressive development of the Helsinki process. But it was by no means a
foregone conclusion. It came as the result of steady efforts from many quarters, some more
apparent than others. Nonetheless, in Paris in November 1990 we essentially closed the door on
the Cold War and opened a new era of a Europe united by common values.
Unfortunately, the new era in Europe has been more difficult than most anticipated. The
1990s have been a period of uncertainty and instability as we have been moving through a difficult
transition from the old to the new. We are still very much in the midst of this transition — and not
only for the new democracies. In the midst of our own European transition, we have all been
experiencing a global transformation of relations with serious consequences also for the old
democracies. This has resulted in the simultaneous forces of integration and disintegration —
each tugging at the fabric of the State. In this period, we have seen, and some have discovered for
the first time, how democracy and the market economy are not self-realizing. Nor are they ends in
themselves. Rather, they are means to an end. That end, to which all are now committed, is a
peaceful, just and prosperous life. Democracy and the market economy are fundamentally
processes through which we seek to achieve our desired end. These processes of political
decision-making and production and distribution of goods require the establishment and
functioning of institutions and regulations. Essentially, they require the rule of law with respect
for human rights in order to limit arbitrariness and to realize a minimum of social and political
justice.
Our commitment to peace, justice and prosperity is intended for the benefit of all. This is
so both in terms of relations between peoples and States, and in terms of relations within the State.
This has been clear for all OSCE participating States since the adoption of the Helsinki Final Act.
The principles of this accord are contained in the well-known “decalogue”. At the level of interState relations, OSCE States are committed to respect the principles of: sovereign equality; non11
use or threat of force; inviolability of frontiers; territorial integrity; peaceful settlement of disputes;
non-intervention in internal affairs; respect for human rights and fundamental freedoms; selfdetermination of peoples; cooperation among States; and fulfilment in good faith of obligations
under international law. All OSCE participating States are expected to respect these political
commitments both in general and in terms of their specification through subsequently elaborated
OSCE standards. It is also intended that these principles are to be respected as a whole and with
the appropriate balance.
The aim of our commitment to these principles is ultimately to achieve human security and
prosperity, that is, to benefit the millions of people whom we represent and are bound to serve.
The OSCE principles tell us how to do this. For not only do they declare values and standards
which are each valid in themselves, but together they reflect an underlying logic. Based on
European history, this logic declares that prosperity is only possible when there is peace and
stability, and such peace and stability is only really achievable through a just order between and
within States. This is a lesson not only of the Cold War, but equally of the two World Wars which
caused such misery on our continent in the first half of this century. We learned then what is
perhaps the most vital part of the puzzle — that justice is only really achievable on the basis of
respect for human rights. The logic affirms that human rights must be respected not only because
of the inherent worth and dignity of every human being, but because peace and security depend
upon it. I believe that this is constantly being reconfirmed by experience.
Of course, the application of this logic and these values is not so simple. To be sure, our
era is one of uncertainty and insecurity not only for States, but for individuals within the State. In
confronting these challenges, we have essentially two choices: either we can seek to retreat to the
past and waste our energies in constructing barriers which surely will be overwhelmed, or we can
take a proactive approach and meet the challenges with enlightened understanding and creative
solutions derived and implemented through cooperation. Evidently, I strongly support the latter
approach.
In doing so, I also firmly believe that we must respond better to the concerns of all
legitimate interests within the State. If justice is fairness, we must seek to achieve fairness not
only in relations between States and for individuals within States, but also for communities within
States which may not find adequate opportunities for fulfilment through the simple processes of
democracy. Our efforts to achieve fairness for individuals in terms of their fundamental civil,
political and economic rights is yielding good results, although we must remain ever vigilant in
this regard. However, in terms of fairness between communities which find themselves in the
position of minorities within the State and which often straddle inter-State frontiers, there is in
many cases still a long way to go. Indeed, it has been recognized by many that the main challenge
to European security arises from relations between such communities, that is, mainly inter-ethnic
relations, within the State and across State frontiers.
To be clear, I am not speaking about communities in terms of monolithic and static
entities. Rather, I am speaking about communities formed of individuals who freely exercise their
12
choice and display characteristics which evidently distinguish themselves. In the terminology of
human rights, we speak about individuals acting alone or in community. It seems apparent to me
that the human being is a social being. We derive our sense of ourselves from our relations with
others. First, we have our family from which we acquire basic values in the home. This is
enhanced through our extended family — from our lineage and heritage. Our individual identity
is further enhanced through our community with which we share traditions, customs and larger
values, even a world view. Certainly, I am no sociologist, but I am convinced that this is an
essential aspect of the human experience, and I know that it is asserted every day throughout the
world. I would even say that human beings should not be conceived of or treated in an atomistic
fashion, for then they risk becoming alienated, isolated and frustrated. We must not fail to respect
the essential social nature of human existence. Human beings require community. This is the
basis of our identity. For most of us, our mother tongue, name, values, symbols, and culture
largely define who we are and our sense of ourselves.
On the basis of my experience, especially over the past six years as OSCE High
Commissioner on National Minorities, I am convinced also that it is wrong to frustrate the
peaceful pursuit of the maintenance and development of one’s identity, alone or in community
with others. It is also highly dangerous. Experience teaches us that this can lead to tensions and
conflict, sometimes even armed conflict. It is a matter of dignity that human beings must be free
to define themselves and their identity. Indeed, this is the essence of human rights. The value of
the freedoms of thought, expression, association, assembly, the free use of language and
enjoyment of culture are all matters of dignity. For persons belonging to the majority in a
democratic society, this is not so much of a problem — it comes in the course of things. But, for
persons belonging to minorities, it is a problem. For them, enjoyment of their basic rights and
freedoms are important, but not enough.
The OSCE was the first to realize this. On the basis of our sad European history during
which minorities have been subjected to all manner of denial of rights, abuse and even attempted
extermination, we have at the end of this century finally understood that persons belonging to
minorities must not only be protected, but also supported. OSCE participating States have
articulated this in the standards of the fourth chapter of the Copenhagen Document on the Human
Dimension. This groundbreaking document, agreed even before the Paris Charter, marks a
watershed in European history. It has spurred the Council of Europe to elaborate the first ever
binding multilateral treaty for the protection of national minorities, and it even encouraged the
rather weaker United Nations Declaration on Minorities. The essence of the Copenhagen
Document is that persons belonging to minorities have equally legitimate needs and desires to
maintain and develop their identity, that they are not only to be free in this regard, but that they
enjoy a legitimate right to certain facilities within the State, in particular in relation to language,
education and culture.
Another important point of OSCE consensus is found in the Moscow Document of 1991.
Following the same logic of the interdependence of peace and security and respect for human
rights, including the rights of persons belonging to minorities, OSCE participating States have
13
agreed that the issue of respect for human rights is not an internal affair, but is a legitimate interest
of all other OSCE States. This important determination has allowed the subsequent development
of the dialogue and institutions from which we benefit today.
In my work as High Commissioner on National Minorities, I have observed constantly
recurring issues regarding the specific needs and desires of particular minorities in various
situations. There are a great variety of such situations, and no two are exactly alike. Nonetheless,
they display some essential similarities. Most importantly, it is clear that minorities attach a very
high importance to the maintenance of their identity and they will vigorously pursue their interests
in this regard. There are all sorts of demands and challenges — perhaps more than we have
previously realized. But, I have also come to see that it is quite possible to respond to such needs
and to accommodate such desires within the State. We must only think of the possibilities and
seek solutions on the basis of respect for others. Some solutions are easier than others; some are
more complicated. It is important in this connection to realize that few things within the State
require absolute uniformity. We can say this of the regulation of the highways, where everyone’s
security and access requires strict uniformity in respect of the rules. We cannot accommodate
choice with regard to which side of the road drivers may choose. But, aside from such domains,
much in the regulation and administration of the State is capable of variety without endangering
the cohesion of the State. It is obviously possible to accommodate the use of more than one
language, and the free space for cultural development can accommodate an untold diversity. We
now view this increasingly in terms of the richness of cultures and of society as a whole, as we
should. The key to find appropriate accommodations is the political will to do so within the
framework of responsible governance.
While Governments have their obligations and responsibilities, it is also true that citizens
have theirs. Responsible behaviour on the part of persons belonging to minorities and their
representatives is required as of others within the State. The benefits of the State come from the
combined efforts of the wider society, and persons belonging to minorities must make a genuine
effort to integrate into the wider society and to be loyal citizens. Certainly, they should have a
significant interest in doing so — I would go so far to say that they have even a virtual duty. For
example, persons belonging to minorities should make an effort to learn the official language of
the State and participate with the members of other communities in taking responsibility for public
affairs. Above all, minorities should not isolate themselves or seek to establish parallel regimes
within the State. Integration, with benefits for all, is quite possible. Again, the key is the good
will to create the conditions for the pursuit of particular interests within the context of the unified
State.
Perhaps the most difficult question is that of the effective participation of minorities in
political decision-making. Aside from the normal democratic processes, there must be means by
which minority concerns and interests may be taken into account and, so far as possible,
accommodated within public policy and law. According to paragraph 35 of the Copenhagen
Document, OSCE participating States “will respect the right of persons belonging to national
minorities to effective participation in public affairs, including participation in the affairs relating
14
to the protection and promotion of the identity of such minorities.” Admittedly, existing
international standards so far only hint at how this should occur. Paragraph 35 of the Copenhagen
Document goes on to “note the efforts undertaken to protect and create conditions for the
promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by
establishing, as one of the possible means to achieve these aims, appropriate local or autonomous
administrations corresponding to the specific historical and territorial circumstances of such
minorities and in accordance with the policies of the State concerned”. Evidently, this does not
constitute a clear road map. In interpreting and applying this standard, we must be consistent with
the logic of democratic governance, including respect for human rights, and we must remember
that our aim is to achieve peace, justice and prosperity for all. Democracy is not only for some, or
for the majority alone. We affirm that democracy is the best system for the whole population.
Majority rule is a fundamental tool for democratic decision-making. It has its own justice:
one vote per person. But simple majority rule risks injustice by its failure to accommodate special
needs and interests. Minorities could thus be disadvantaged by the majority rule. The imperative
of justice, therefore, requires an effort to respond to the special needs and interests of minorities.
Good governance requires this. However they may be democratically elected, it is the pledge of
all democratic governments to serve the whole population — not just the narrow interests of their
own electors, not just the majority. An effort must also be made on behalf of minorities. The best
approach is to integrate their concerns and interests into overall policy and law. It is thus a
procedural question as to how to do this. Thus we come to the issue of participation.
Democracy is tremendously flexible, offering many forms of structures, parliaments,
special arrangements and so forth. In order to integrate minority concerns and interests into
policy-making, it seems obvious that it is necessary in some way to ensure that minority
representatives are present and active. There exist a wide variety of means to achieve this
objective, and there is similarly a wealth of experience in the practice of OSCE States and beyond.
In the next two days, we will hear about these alternatives and experiences. Important among
these are decentralization and subsidiarity in decision-making. These ideas aim to bring the
decision-making closer to those most affected, to involve them in the process and, thereby, to
achieve better policy and law. There are various ways to achieve this. It may be through federal
forms or through devolution in the unitary State. It may be in terms both of legislative and of
administrative jurisdiction, whether along territorial lines or personal lines. In our discussions, I
encourage delegates to share their experiences and views so we may learn from each other. To
share our experiences and to study the range of alternatives is, in fact, the main aim of this
Conference.
Perhaps the most important point which I hope will be retained is that unnecessarily
centralized systems do not — in fact, cannot — respond adequately to the diverse demands of
plural societies. Aside from the domains of national security, monetary policy, maintenance of
inter-State frontiers, central administration, foreign policy and possibly one or two other fields,
most policy and law within the State can be divided many ways. This is true in terms of all levels
15
and divisions of government. The challenge in each State is to find the best way to respond to the
plurality of interests. It is thus imperative to examine the range of alternatives.
Over the next two days, we will hear more about what is possible and desirable in terms of
decentralization and subsidiarity. The essence of these alternatives is that those most directly
affected should be able to decide on the measures. At a minimum, they should have the
opportunity of a say. If possible, they should have control. These are two different things which
can be accommodated in different ways. It is relatively easy to arrange for those affected to have
a say in policy-making. Indeed, in the absence of such a say, it is quite likely that decisions will
be poorly made and will require revision. In the interest of good decisions, there exist a variety of
ways in which those specially affected may have input. To grant control over certain decisions is
more difficult where there is a plurality of interests. But it is not impossible. We know this in
terms of the often disputed and always sensitive fields of language and education policy. There
are many ways to accommodate the use of various languages within the same State, even in public
administration and the courts. There is, of course, a long history in Europe of having alternatives
for education in terms of curriculum, school administration, public and private institutions and at
all levels. There are many international standards applicable in these fields. In my work as High
Commissioner, I have encouraged two groups of internationally recognized independent experts to
elaborate specific recommendations on the best way to implement the international standards.
These are The Hague Recommendations regarding the Education Rights of National Minorities,
and The Oslo Recommendations regarding the Linguistic Rights of National Minorities; copies of
these are available for delegates at this Conference. I wish to stress that none of these standards,
recommendations or alternatives affect the cohesion of the State, but they do create more
opportunities for the realization of a plurality of interests and aspirations within the State. Indeed,
they offer routes to greater satisfaction for all and, therefore, they strengthen the State. It is also
for these reasons that we are devoting two sessions of this Conference to the subject of education.
In my view, the most important ingredient to solving problems in this area is the spirit with
which policy-makers address the issues. In the first place, there must be recognition of the
legitimate interests — recognition of the plurality of communities and interests. This means an
official acknowledgement of the existence of minorities, of the fact of diversity within the State.
OSCE participating States have committed themselves in paragraph 32 of the Copenhagen
Document to the standard that “to belong to a national minority is a matter of a person’s individual
choice and no disadvantage may arise from the exercise of such choice.” It is not up to the State
unilaterally to make a determination as to the existence of a minority. This is a matter to be
determined on the basis of the individual choice of the persons concerned, freely exercised and
according to objective criteria.
Following from the recognition of minorities, meaningful response to the expression of
their legitimate interests begins with a genuine dialogue in an atmosphere of mutual respect and
understanding. There must be structures for this to take place. These may be permanent or ad
hoc, depending upon the situation — although I would argue that the availability of a standing
structure for organized and civil dialogue is always a good thing, especially when substantive
16
disputes may arise suddenly. However, I would also caution that structures for dialogue without
meaningful competences will achieve little. Indeed, they may be counter-productive. Participants
must feel that there is some real value to their dialogue, that their views will contribute to some
concrete outcome. Powers of advice and consultation must be both exercised and treated
seriously. Only on this basis may lasting solutions be found. I would also add that such an open
and meaningful dialogue will already contribute to the loyalty of minorities and thereby to the
strengthening of bonds with the wider society and, overall, the State.
It must also be observed that failure to proceed in such a way gives rise to a worrying
possible scenario. Aside from the disrespect to the individuals and communities concerned,
failure to respond to their concerns and interests causes frustration, breeds resentment and leads to
alienation. It is my experience that alienated communities will not accept this over the long term.
Rather, they will search for other ways to realize their ends. There will be increasing tensions
leading to conflicts. We still see this throughout Europe. We know the cost in terms of human
and material loss.
In the Helsinki decalogue, both the principles relating to maintenance of frontiers and
territorial integrity of States and the principle of self-determination are included. It is sometimes
argued that these principles are irreconcilable. I strongly disagree. One can only come to that
conclusion on the assumption that the vital interests of minorities can only be safeguarded by
external self-determination, that is secession. The essential aim of self-determination is to ensure
that the vital interests of people can be safeguarded. In my opinion, the contemporary State has a
great deal of instruments at its disposal to accommodate these interests. History also teaches that
disregard by a minority for the principles relating to maintenance of frontiers and territorial
integrity of States leading to the creation of a new State is often accompanied by bloodshed and
misery. Moreover, in many parts of the world, including much of Europe, it is not possible to
draw boundaries in such a way to create ethnically homogeneous States. Inevitably, the minority
of yesterday becomes a majority in the new State, and must thus face the problem of the new
minority within its own borders. According to the same logic, these new minorities may pursue
their own external self-determination and so, like a Matryoshka doll opened one stage at a time,
there is the prospect of a never-ending reductionism which cannot be reconciled with the
requirements for viability of a State. For all these reasons, we must seek to realize the right of
self-determination through internal alternatives. In my view, this requires the full respect of
human rights, including the rights of minorities, together with decentralization and subsidiarity so
far as possible to accommodate the diversity of interests within the State. In other words, we
require an integrative rather than a disintegrative approach.
I have said that this is not so easy. Certainly, it will require all of our best efforts. It will
also require a greater realization on the part of governments and parliaments that the security and
stability of our continent in the next century will depend to a very great extent on their success in
dealing with the problems. Against this background, the still too strong reluctance to invest more
human and material resources for this purpose will have to be overcome.
17
Above all, we must realize that the forces of extreme nationalism constitute the greatest
enemy of a peaceful Europe. Driven by feelings of superiority and hatred towards other ethnic
groups, they often block the road to constructive solutions for inter-ethnic problems. Worse still,
they are directly responsible for the bloody conflicts which have erupted in the last ten years.
Permit me to offer just one example. The drama in Kosovo has its origins in the nationalist
politics of President Milosevic who robbed the ethnic Albanians of their autonomy in the late
1980s.
We must ask: why do the forces of extreme nationalism have such resonance? Given the
considerable uncertainty and insecurity affecting so many people on our continent, the apparently
simple solutions of extreme nationalists appear attractive to many people who seek explanations
and solutions for their problems. Unscrupulous individuals are all too ready to exploit these
weaknesses. We have seen how fast the ethnic card, once played, can create an atmosphere of
suspicion, hatred and fear. We have seen how difficult it is to withdraw the ethnic card once
played. And we have seen how some are quite prepared to play it to its most bloody and horrific
end. We have also seen how people who once lived together as neighbours and joined their
families through intermarriages have been driven to inhuman acts against one another. Extreme
nationalism profits from the division of societies through the demonization of “the other” and it
attributes guilt by association such that even the most innocent are forced to withdraw to the
security of their purported “nation” notwithstanding the absence of strong ties. We know this
story in the former Yugoslavia, and we have observed the tendency elsewhere. Responsibility lies
with irresponsible leadership, with hate speech, with incitement to racism and acts of violence.
But it is our responsibility to recognize these threats at their origin and to root them out as soon as
possible. We must treat the threat as extremely serious and we must not tolerate its manifestation.
In this regard, we must guard against a false and misguided sense of liberalism leading us to create
the conditions for extreme nationalists to exploit various situations. Surely, we have learned this
much from the harsh reality of European experience this century.
At the end of a century characterized by division, leading often to hatred and bloodshed,
Europe should concentrate, on the eve of the New Millennium, on the realization of our
commitment to ideals of peace, justice and prosperity. We are a community of values. We have
overcome a great deal and we have much to be thankful for. But, we also face a tremendous
challenge. Our future is not simple, easy or certain. What is required is responsible leadership
with a firm commitment to the realization of our declared values. We must act vigorously and
creatively to translate these values into meaningful terms for our various peoples. In this, we must
act individually and collectively in the full spirit of cooperation. I hope this Conference will make
a contribution to this end.
In ending my remarks, I wish to express my deep appreciation to those Governments who
stimulated and supported this Conference, both conceptually and materially. I want to thank
especially President Cotti for opening this Conference with such an inspiring speech. I also want
to express my gratitude for the generous hospitality provided by the Swiss Government and the
canton of Ticino. Ambassador Stoudmann and I hope that we can count on the support of all
18
OSCE participating States, both individually and collectively, to follow up this Conference with
concrete actions, in particular through a vigorous commitment to the implementation of OSCE
standards in their inter-State relations and in domestic policies. In my view, the issues addressed
in this Conference deserve careful analysis and sustained dialogue with a view to discerning the
best means by which the legitimate interests and aspirations of minorities can be integrated within
the State, in particular through the effective participation of those most concerned and affected. I
look forward to interesting and fruitful discussions over the next two days.
19
20
Opening Addresses: The Perspective from ODIHR
THE PERSPECTIVE FROM ODIHR
Gérard Stoudmann
Director of the OSCE Office for Democratic Institutions and Human Rights
All over the OSCE area, the integration of diverse groups is a key challenge to security and stability.
These groups can differentiate themselves through ethnic, cultural, historical, linguistic or religious
backgrounds. The important thing is that they recognize themselves as a group.
Groups need to build their identity. Sometimes, an easy way to build an identity is by
emphasizing their difference with others. There, problems can begin. But this must not necessarily
be the case, as a number of examples show.
To address these issues, either in a conflict prevention mode or in a conflict resolution mode, I
would propose a two-track approach: make sure that their individual rights as citizens are fully
respected on the one hand; and ensure that an institutional mechanism allows groups to channel their
inputs into the national system on the other.
Let us take Kosovo as a case study. It contains both a short-term and a long-term dimension.
The most urgent action required relates of course to the humanitarian and security conditions.
However, I believe that the answer given by the international community should also, after the
emergencies have been met, focus on long-term institution-building. Such a programme could follow
the two tracks I have just mentioned.
On the one hand, the OSCE verifiers, after the withdrawal of Serbian security forces and the
return of displaced persons, will have to promote full respect for human rights by the national
authorities in Kosovo, without discrimination. This includes the fundamental freedoms like freedom
of association, of assembly and of expression, and other basic principles like respect for the rule of
law.
This process should not be limited to sheer observation of the way these fundamental rights
are implemented. It is an essential role of the international community to assist local or national
authorities in respecting their international commitments through building up democratic institutions.
Therefore, in my view, the international community should, in addition to the verification
tasks, also help to build institutions conducive to a sustainable democracy. I will limit myself to
Kosovo, but the international community should not limit its action to Kosovo, but should cover the
Federal Republic of Yugoslavia in full. The respect for human rights in Kosovo begins in Belgrade
because if the Serbian regime does not respect human rights and fundamental freedoms of its own
people, how will they respect those of ethnic Albanians?
21
The international community should therefore take steps to:
•
Promote the creation of an ombudsman institution or national human rights institution in
Kosovo. It has been proven that such institutions, when they are genuinely independent,
usefully balance the regular State structures, in particular when the judiciary does not work
properly. This would therefore constitute an important confidence-building measure, both for
the population of Kosovo in general and, in particular, for the Serbian minority living in
Kosovo.
•
Assist in the build-up of an efficient executive apparatus working in accordance with
international principles, such as equality of all citizens, non-discrimination and impartiality.
Such an effort can include both assistance to the establishment of an efficient administrative
structure and training of officials, including police forces.
•
Help in establishing a judicial system which is in line with the principles of the rule of law.
Assistance in the drafting of proper legislation is one aspect which can be somewhat
problematic, since the local legislation must of course not contradict the national legislation.
Therefore, the international community should also give inputs at the national level. In
addition to the legislative work, action can be taken to make sure that laws and regulations are
implemented correctly. The training of judges is a useful activity to be carried out by the
international community in this context.
•
Facilitate the expression of the civil society through local non-governmental organizations
(NGOs). The aim here is to give to any citizen a sense of empowerment. Their voice is
important and it can be heard, provided that proper channels exist.
•
Obviously, such a programme should be implemented in coordination with all international
agencies involved.
So much for the first track. Channelling the distinct concerns and desires of minority groups
is the second track to be followed. The objective here is to ensure their adequate representation in
decision-making bodies and, first and foremost, legislative organs. The challenge is twofold: (1) how
to ensure adequate representation in national Parliaments; and (2) how to design local legislative
bodies which ensure proper representation of minorities within the minorities. The answer has to be
enshrined both in the constitution and in electoral laws, rules and regulations. Several models exist in
Europe and maybe we will have a chance to discuss some of them in the days to come.
In the case of Kosovo, it is not a coincidence if one of the most important long-term aspects
of the agreement reached last week is the holding of elections. The democratic idea of an election is
that the elected body represents the common will of the population in a given area. In Kosovo, the
objective is obviously to allow for legitimate authorities to be established and recognized as
legitimate both by the population of Kosovo and by the national authorities. This is not such a simple
22
Opening Addresses: The Perspective from ODIHR
process. It is my sense that before elections can take place in Kosovo, a number of conditions will
have to be met:
•
Obviously, the humanitarian disaster will have to be overcome before elections are held. In
particular, the displaced persons should have returned.
•
Confidence needs to be established that the process will be conducted in such a way as
genuinely to allow for the will of the population to be freely expressed.
•
Confidence in the process is one thing. Maybe an even more essential aspect is the
confidence in the outcome. If the international community wants the Kosovars to go to the
polls next year, it will have to convince them that the elected bodies will actually enjoy
power. In the light of what has happened in the past years, there are good reasons to believe
that Belgrade will try to keep a strong grip on Kosovo.
•
Freedom of the media will have to be established. A genuine electoral competition can only
take place when candidates can make their views known through the media and when voters
receive enough information so as to be able to make an educated choice. In this context,
public television has an important role to play as an institution which has to be impartial,
balanced, but at the same time informative.
•
Rules and regulations will have to be drafted, which address such tricky questions as the right
of non-resident Kosovars to vote.
•
An election administration will have to be set up reflecting the political situation in Kosovo;
in particular establishment of a Central Election Commission in which all major political
forces should be represented.
•
Probably, the voter registers will have to be updated.
These are a few issues. I am sure that we will find more in the course of the operation. It
shows how important a strong presence of the international community will be. We should assess the
situation in the electoral field as soon as possible and then make recommendations as to possible
legislative and other kinds of actions required before elections which are in line with OSCE
commitments can take place.
Our engagement in Kosovo is the greatest challenge that the OSCE has ever had to face. We
shall see if the organization will be given the capacity to carry out the Kosovo operation successfully,
and establish itself as a credible actor. In any case a long-lasting solution will not be immediate, but
at least people will be able to live decently until the political problem is definitely solved, which will
take years.
23
In this decade, we have seen a number of conflicts in the OSCE area involving minorities. If
the Kosovo operation succeeds, all of them will be frozen by the turn of the century. Some might
condemn the OSCE and the international community for having been unable to solve them definitely.
I would rather say that for the children, women and men living there, a frozen conflict is always
better than a hot war. A negotiated settlement is always better than a settlement imposed by the
victors.
24
Forms and Notions of Governance for the Protection of Minorities in Modern Democracies
FORMS AND NOTIONS OF GOVERNANCE FOR THE
PROTECTION OF MINORITIES IN MODERN
DEMOCRACIES
Vernon Bogdanor
Professor of Government, Oxford University
1.
INTRODUCTION
Political scientists are in broad agreement that there is one common feature marking plural
societies in which those of competing interests live together in stability, despite differences of
language, religion, or ethnicity. That common feature is a departure from the Westminster model
of simple majority rule, based on the alternation or potential alternation of governments. In place
of this model, societies with competing interests that have attained stability have all adopted a
model of government whose essence is that all groups participate in government. Some kind of
participation of this kind has been a feature of government in every society that has succeeded in
overcoming its internal divisions. I am not aware of any society with competing interests that has
been able to achieve stability without adopting such a philosophy. The precise arrangements
differ, but in all of them there is some set of arrangements whereby the different segments of the
population can be involved in government roughly in proportion to their numerical strength, so
that no segment feels permanently left out in the cold. European experience tends to confirm that
the best protection for minority groups lies not so much in statutory provisions as in institutional
arrangements that assist in allowing all to participate in government.
The essence of such an arrangement is the departure from simple majority rule, for this is
bound to lead to alienation and instability on the part of minorities who have no chance to
participate. Under majority rule, the ethnic Germans would always rule in Switzerland, and the
Protestants likewise in Northern Ireland. So long as electors vote along national or religious lines,
there is no possibility of alternation, and so the Westminster model could not work. There would
be no check on the power of the majority, and the consequence would be that the minority would
become alienated from the State. Therefore, democracy in plural societies must be equated not
with simple majority rule but with the participation of all groups in government.
This can be ensured through measures of three different types:
1.
2.
3.
Measures at territorial level, i.e. federalism or devolution.
Measures at electoral level.
Measures at the executive level.
Measures connected with (2) are considered in another paper, and so this paper concentrates on
measures connected with (1) and (3).
25
2.
DECENTRALIZATION, SUBSIDIARITY AND FEDERALISM
Where there are groups with competing interests on a territorial basis, it would be natural
to establish a federal State or one with regional or local parliaments so that the various groups can
enjoy autonomy. Federalism offers groups that are in a minority in the country as a whole, but the
majority in some particular territorial segment, the opportunity to exercise power in their area.
Indeed, one main reason for the adoption of a federal, as opposed to a unitary system of
government is the existence of diversity, whether ethnic, linguistic or religious. In such situations,
the sense of a shared national identity may be very weak, or it may hardly exist at all. Allegiance,
it may be argued, can be developed more easily in a federal system than in a unitary one in which
all power is concentrated at the centre. The hope is that federalism will lead gradually to the
development of a stronger sense of national identity. Even if it does, however, there is still a
strong argument for federalism as a means of decentralizing power and allowing for the
expression of regional and local interests.
Federalism, however, is only one example of decentralization or subsidiarity. Indeed, it
may be said that decentralization is the genus, and federalism one of the species. A decentralized
system, however, is far more complex to operate than a unitary one. Governments contemplating
the establishment of a provincial or regional tier of government, whether by dividing power
(federalism) or devolving or decentralizing it (regionalism), have a number of difficult decisions
to make on the form and scope of the distribution of powers.
Perhaps the most important decision is whether to establish a system of the vertical type,
like the United States or Canada, in which wide legislative powers over a large area of policymaking are transferred; or, alternatively, a system of the horizontal type, as in Germany or Austria,
based upon a division of function, with legislative power remaining predominantly with the
central government, but executive powers being transferred. There is, admittedly, no pure
example of the horizontal model in any State in which the totality of legislative powers remains
with the centre, and only executive powers are transferred. Even in Austria and Germany, the
provincial levels of government do enjoy some legislative competence. Nevertheless, the
distinction between the two forms of government is an important one.
The premise behind a division of power of the vertical type would seem to be that a clearcut division of responsibility for different areas of policy can be established. The central
government would have a defined list of functions comprising, as a minimum, control of foreign
affairs, defence and the fundamentals of economic policy, while the provinces would enjoy
responsibility for functions that were considered to have a provincial character, primarily the
social and environmental functions of government.
Yet, it is highly doubtful whether such a legislative division of powers makes much sense
in the modern world, one in which powers are interconnected. Indeed, as early as 1830, James
Madison, one of the founding fathers of the American Constitution, suggested that the “idea of an
absolute separation and independence between State and provincial governments, as if they
26
belonged to different nations, alien to each other has too often tainted the reasoning applied to
Constitutional questions.”1 Modern government has little room for the “watertight compartment”
view of federalism or regionalism. In most modern societies, citizens will expect public services
to be administered fairly, not only as between individuals, but also as between different regions of
the country; and they will hold government accountable if it is found, for example, that
educational standards or health-care facilities differ widely across the country. Territorial justice
is a fundamental aspiration in the modern world, and it can easily serve to reconcentrate at the
centre, powers that the constitution has given to provinces.
It is a fundamental principle of the modern Welfare State that resources should be
distributed not on grounds of geography but of need. It would be wrong for a disadvantaged child
in one region of a country to receive more resources than a similarly disadvantaged child in
another region simply because the former region enjoyed a stronger voice politically. Central
government is the only body constitutionally able to secure a fair balance of resources between the
various provinces within a country; federalism or decentralization could otherwise lead to an
allocation of resources that is dependent on the political strength or “clout” wielded by particular
provinces rather than on criteria of territorial justice. The centre must, moreover, retain a role in
the distribution of financial resources to the provinces in order to ensure that its distribution
reflects considerations of need. Thus the modern welfare State places limitations upon the extent
to which power can be transferred away from the central State.
Federalism and decentralization, then, are less a separation of powers than a sharing of
powers between different levels of government. The history of federalism in Australia, Canada
and the United States shows convincingly that if electors demand a standard of service that the
provincial or State governments cannot provide, then the federal government will assume the
necessary powers, regardless of the formal division of powers laid down in the constitution.
Methods will be found to circumvent the constitutional division of powers. In modern States,
therefore, the distribution of legislative powers is less important as a guide to the actual
configuration of power than the administrative and financial arrangements that serve to link
together different layers of government. Federalism and decentralization require a cooperative
relationship between different levels of government, since most areas of policy — and certainly
those involving social welfare — involve national, provincial, and perhaps also local levels of
government simultaneously. The power and influence of a particular level of government tend to
depend more upon its negotiating and bargaining skills than upon constitutional guarantees.
Today the crucial characteristic of federal or regional systems of government is interdependence,
not independence.
Given the complex realities of twentieth century government, therefore, it could be argued
that the horizontal model of government — the transfer of executive powers, as in Austria and
Germany — is more suitable than the classical model of a legislative division of powers, for the
1
Madison to Robert Y. Hayne, 3 April 1830, cited in Samuel P. Huntington, "The Founding Fathers and the Division
of Powers", in: Arthur Maass (ed.), Area and Power: a Theory of Local Government, Glencoe, Ill.: The Free Press,
1959, p. 191.
27
horizontal model explicitly recognizes the interdependence of different levels of government. But
this too gives rise to problems which require consensus and cooperation between different levels
of government if they are to be resolved.
Under the horizontal model, the central government is responsible for the broad legislative
framework, while the provinces are responsible for the implementation of policy. For this to
work, government must be animated by a spirit of give and take. Otherwise, the provincial
governments may be required to implement policies with which they fundamentally disagree,
while the centre will get no feedback from the provinces on the details of administration and so
policy-making will suffer.
Federalism or decentralization, then, whatever model is adopted, requires cooperation.
Without it, there is deadlock or stagnation, a system of government in which it is difficult to get
anything done. The horizontal model, in particular, works best in countries such as Austria and
Germany where there is a high degree of consensus. It would probably not work so well in Britain
or France, where politics is marked by a more adversarial style. Where there is no willingness to
compromise at all, federal or decentralized government is probably impossible.
In general, a federal or regionalist system of government can serve to minimize conflict if
the divisions between the provincial units cut across other cleavages such as language, religion or
class. Switzerland is an excellent example of a federal system based on such cross-cutting
cleavages; the lines of cleavage — language, religion and class — cut across each other so that
separate coalitions come to be formed on different issues. Neither alliances nor enmities are
permanent, and this seems to account for the remarkable stability of Swiss federalism and the
tolerance displayed towards minority linguistic groupings.
In Canada, by contrast, cleavages are reinforcing. The division between French and
English speakers is reinforced by the boundary dividing Quebec from the other provinces, and
also by the party system. Until the 1984 general election, the strongholds of the Liberal Party
were in Ontario and Quebec; in the general election of 1980, no Liberal west of Winnipeg was
elected. Conversely, before 1984, the Conservatives were strong in the West but unable to secure
representation in Quebec. This was, admittedly, in part the result of the first past the post electoral
system which denied the Liberal minority in the West and the Conservative minority in Quebec
effective representation in the legislature.
The Belgian pattern is, on the whole, more akin to the Canadian than the Swiss. The
division between Flemings and Walloons is reinforced by the boundaries of the regional
institutions and also by the party system, with the Christian Social Party being dominant in
Flanders and the Socialists in Wallonia. Unlike Canada, however, the use of proportional
representation for all elections in Belgium ensures that minority political viewpoints in Flanders
and Wallonia secure accurate representation. Nevertheless, with hindsight, it can be suggested
that a regional structure based not on the Flemish and Walloon communities but upon the nine
28
preexisting provinces might have been more conducive to stability, since it would have been more
likely to give rise to cross-cutting cleavages than the solution actually adopted.
The cooperative model of government means that government cannot function purely on
the basis of national majorities. Instead, “two political logics” need to be recognized. “One is the
classical democratic logic of one man, one vote, and the other is the logic of cooperation between
political entities differently constituted”.2 Rather than functioning on the basis of national
majorities, therefore, governments in a federal or regionalist State must adopt Calhoun's principle
of concurrent majorities in the provinces before major decisions are taken, i.e. that there must be
both a national majority and a majority of the “political entities differently constituted.”
3.
GOVERNMENT
In most of the new democracies, however, minorities are not territorially concentrated
and neither federalism nor devolution, therefore, will be of much help. How can the participation
of minorities be assisted in such situations? Measures can be divided into those at legislative level
and those at executive level. The important point to note is that, while powers may be distributed
territorially, as in federalism, they can also be distributed in other ways, on a personal basis. The
idea of decentralization can be adapted to fit groups who are not divided territorially.
The problem of securing communal autonomy in multinational States was one that
occupied many, and, in particular, the Austrian Social Democrats, in the last years of the
Habsburg Empire. They sought to adapt the idea of federalism to a situation of territorially
dispersed minorities by means of a highly original idea known as “personal federalism”.
According to the concept of personal federalism, the State was to be divided into nonterritorial associations, each of which was to comprise members of a given ethnic community.
Membership of the associations, however, was to be voluntary. The non-territorial associations
were to be entrusted with the administration of educational and cultural affairs, while political and
economic questions would continue to be dealt with by the authorities of the Empire. In their
Brunn programme of 1899, the Austrian Social Democrats proposed that the associations be
known as “National Universities”, and that citizens would have the right to register with them
regardless of their place of residence. This was an adaptation of the millet system under the
Ottoman Empire by which the affairs of cultural and religious minorities were regulated through
autonomous communities of their own.
The Habsburg Empire never succeeded in resolving its nationality problems, but the
methods advocated by the Social Democrats have continued to be applied in other countries.
Among the countries of Central and Eastern Europe, Estonia stands out as having sought to adapt
this method of providing for the self-expression of minorities, both between the wars and also
2
A.P. Prognier, “Federal and Partly Federal Systems, Institutions and Conflict Management: Some Western
European Examples”, in: Desmond Rea (ed.), Political Cooperation in Divided Societies, Dublin: Gill and
Macmillan, 1982, p. 203.
29
more recently. The Estonian Law of Cultural Autonomy of 1925 provided for the right of ethnic
minorities numbering over 3000 people to create their own self-governing cultural councils
through separate elections among their members. These councils received State support and were,
in addition, allowed to tax their members to support minority language schools and other elements
of minority cultural life. The cultural autonomy law was particularly beneficial to Estonia's
German and Jewish communities, which were territorially dispersed and would otherwise have
faced considerable difficulties in organizing their educational and cultural life.
In the 1990s, Estonia's minority problems assumed greater magnitude. In 1934, its
minorities constituted around 11% of the population. Today, they constitute around 38% of the
population. Moreover, their composition has altered. In place of the Germans who either
emigrated or were expelled, and the Jews, most of whom were killed by the Nazis, the main
minorities are Russians (who constitute over three-quarters of the minority population),
Ukrainians and Belorussians.
In 1989, drawing inspiration from the law of 1925, the new democratic government in
Estonia passed a law on Cultural Autonomy for National Minorities, once again granting rights to
members of minorities not linked to territory.
The introduction of measures of personal federalism is only likely to prove successful if it
is seen as just one element in a broader pattern of minority protection, which must include legal
provision guaranteeing the use of minority languages outside the cultural sphere, for example, in
the courts and in administrative procedures. A system of personal federalism, moreover, can only
work when there is full confidence in the practical application of the rule of law. Anyone who
fears direct or indirect discrimination as a result of public affiliation to a given national minority
will hesitate to apply for registration. This is particularly important if official enrolment in an
ethnic group constitutes the only means of obtaining educational and cultural benefits.
There are many other problems with the Estonian approach — problems connected with
the appropriate demarcation of responsibilities, especially financial responsibilities, between the
government and the councils as well as that of ensuring that the councils are representative and
accountable. Nevertheless, the Estonian Law on Cultural Autonomy for National Minorities
constitutes a revival of an original and sophisticated approach to minority protection. It is an
approach well worth consideration by other new democracies, for it allows minority communities
to pursue their interests without disrupting the State.
* * * * *
We need to look also at the machinery of government for methods of ensuring that the
minority are effectively represented. In Switzerland, the Federal Council, by convention, always
contains a minimum of two out of seven seats for the French-speaking cantons and guarantees a
balanced representation of religious and linguistic communities. In Canada, convention rather
than any constitutional rule provides for a cabinet balance between Anglophones and
30
Francophones. In the Austrian Länder — with the exception of Vorarlberg — participation by the
minority is secured in a novel way. The Land Parliaments, elected by proportional representation,
choose Land Executives by proportional representation also, thus ensuring that minorities are
represented in government. That is similar in many respects to the model adopted in the Belfast
Agreement of 1998 for devolution in Northern Ireland, enabling both the minority as well as the
majority to participate in government in a plural society.
The emphasis on participation by all groups at executive level can be strengthened by
requiring weighted majorities on issues that affect the interests of particular groups. But frequent
recourse to the veto can so immobilize government that no decisions at all are made. In Cyprus,
following the 1960 constitution, for example, overuse of the veto on tax bills by the
representatives of the Turkish minority was a major reason for the failure of the constitution.
Thus the scope of the veto should be as narrow as is consistent with the provision of a feeling of
security for the various groups. “The veto power ”, it has been said, “must be regarded as a kind
of emergency brake, not as part of the normal machinery of government .”3
These methods require modification of the constitutional conventions characteristic of the
Westminster model of collective Cabinet responsibility if they are to work effectively. Members
of the executive branch will tend to regard themselves as brokers for the particular groups as well
as ministers in a common government. Such a brokerage role may make it difficult for the Prime
Minister and the Cabinet to offer strong leadership. Decision-making may be slower and more
difficult than it would be in the Westminster type system, but the decisions may be more lasting
and more legitimate if care is taken to ensure that all the groups are committed to them.
* * * * *
There are, then, a number of institutional devices which can assist with the protection and
participation of minorities. What is crucial perhaps is not the particular method adopted, but the
spirit with which minority problems are approached. What is needed is to assimilate the
democratic logic of “one person, one vote ” to the second democratic logic of cooperation between
different groups. The question of institutions is merely the question of what means is best adapted
to secure the agreed end. The answer will legitimately vary from country to country. The
important point is that there be a spirit of cooperation and a willingness as between different
groups to find the best method of ensuring cooperation.
But the problems of minorities cannot be resolved by internal reforms alone, however
sophisticated. For minority problems give rise to irredentism when a minority in one country is of
the same ethnic composition as a majority in another. Irredentist claims can be met only by
establishing links between peoples such that minorities can realize their identity without disrupting
established boundaries. There must be accommodation between countries as well as within them.
Examples of such accommodation can be found in the Belfast Agreement of 1998 which
3
Arend Lijphart, “Consociation: The Model and its Application in Divided Societies” in: Rea,
ibid., p. 177.
31
established both a North-South Council to link Northern Ireland with the Republic of Ireland, and
a British-Irish Council, or Council of the Isles, linking together the various governments of the
archipelago. One of the aims of the Agreement is to enable the minority community in Northern
Ireland, the nationalist community, to express its Irish identity without disrupting the United
Kingdom.
Similar ideas have been advocated for the new democracies in Central and Eastern Europe.
In January 1990, shortly after Poland and Czechoslovakia had returned to democracy, the
American strategist Zbigniew Brzezinski, proposed that a Polish-Czech federation be established,
mirroring proposals during the interwar years for a Danubian confederation — a form of regional
unity that might well have succeeded in containing Nazi Germany. Various bilateral treaties of
good neighbourliness and friendly relations, such as the Romanian-Hungarian Treaty, include
provisions for the establishment of bilateral commissions to address national minority issues.
Moreover, the Central European Initiative, now composed of some sixteen States, has an
Instrument for the Protection of Minority Rights and maintains a regular dialogue on this issue.
The need for intraregional cooperation in Central and Eastern Europe is at least as
important as the integration of the new democracies into the European Union (EU). Yet such
cooperation has not yet reached fruition. This is primarily because of a fear that the establishment
of linking institutions will be used as a lever to demand boundary changes. Therefore, a
precondition for successful cooperation across borders must be that existing borders are accepted
as sacrosanct, to be altered only by the free consent of all parties. This means that States must, as
the Irish Republic has done, renounce border changes and irredentist claims in the interest of
establishing a relationship with their kin in other countries through linking institutions. Since the
Helsinki Final Act of 1975, the maintenance of existing frontiers, with full respect for territorial
integrity, while respecting human rights and the right of self-determination, is a fundamental
principle of the OSCE.
Many of the problems of modern democracies arise because of the conflict between
democracy and nationality. In the nineteenth century it was believed that humanity was naturally
divided into nations, and that every nation should have its own State. Woodrow Wilson took over
this view with his philosophy of self-determination. But this ideal is not capable of being realized
in Central and Eastern Europe where minorities are territorially dispersed and there is no way in
which they can be united through territorial revision. This means that there is an urgent need for
new thinking about how the national identities of peoples can be made compatible with
democratic stability.
The answer lies in de-emphasizing the exclusivity of the powers of the nation-State serving
only majorities, and substituting for it the concept of cooperation. That means cooperation both
with majority groups and with neighbouring States. The new democracies, having overcome the
legacy of Lenin, need also to overcome the more long-lasting and deep-seated legacy of Woodrow
Wilson. The stability of the new democracies depends upon how successfully they are able to do
so.
32
BIBLIOGRAPHY
The Belfast Agreement: An Agreement Reached at the Multi-Party Talks on Northern Ireland,
Command Paper 3883, London: Her Majesty's Stationery Office, 1998.
Laponce, Jean A., The Protection of Minorities, Berkeley: University of California Press, 1960.
Lijphart, Arend, Democracy in Plural Societies: A Comparative Exploration, New Haven, Conn:
Yale University Press, 1977.
McRae, Kenneth D., Conflict and Compromise in Multilingual Societies, Vol. I Switzerland, 1983,
Vol. II Belgium, Ontario: Wilfrid Laurier University Press, 1986.
McRae, Kenneth D. (ed.), Consociational Democracy: Political Accommodation in Segmented
Societies, Toronto: McLelland and Stewart, 1974.
Rabushka, Alvin & Kenneth A. Shepsle, Politics in Plural Societies: A theory of Democratic
Instability, Colombus, Ohio: Merrill, 1972.
Rea, Desmond (ed.), Political Cooperation in Divided Societies, Dublin: Gill and Macmillan,
1982.
Steiner, Jürg, Amicable Agreement versus Majority Rule: Conflict Regulation in Switzerland,
Chapel Hill: University of North Carolina Press, 1974.
33
34
Good Governance: Notions and Forms
GOOD GOVERNANCE: NOTIONS AND FORMS
Danilo Türk
Professor of International Law, Ljubljana University
Ambassador, Permanent Representative of Slovenia to the United Nations, New York∗
1.
INTRODUCTION
In his famous essay entitled “Politics and the English Language” George Orwell warned against
the use of meaningless words. Among them he listed words like “democracy”, “socialism” etc.
which have different and often irreconcilable meanings. He saw the danger in the fact that there is
no agreed definition of words carrying ambitious meanings. This leads to dangers of political
misunderstandings and manipulation.
Let me emphasize, right at the beginning, that the potential of words like “good
governance” and “autonomy” to lend themselves to misunderstanding and manipulation is less
than that of words like “peace”, “socialism" or “democracy”. However, the dangers remain
serious. The word “autonomy”, for example, could mean to some, in certain circumstances, denial
of “independence”, while to others it would come in handy as a catch-all word and a general
description of any proposal for solution to a political conflict characterized by ethnicity. The
potential for misunderstanding is considerable. The existing diversity of autonomous regimes
adds to the need to describe what is meant by the word “autonomy” in a particular context.
As the title of the present conference suggests, the arrangements to be discussed are
intended to serve the recognition of diversity and the need for integration. There are two
preconditions which enable this to happen. First, the level of general recognition and
implementation of human rights for all individuals must be adequate and, second, the political
arrangements in question (consultative arrangements, autonomy etc.) must correspond to the needs
of the situation concerned. This seems quite obvious, yet mistakes in relation to both these
requirements are possible.
These issues will be briefly addressed in the subsequent paragraphs.
2.
HUMAN RIGHTS AND POLITICAL PROCESS
The European experience has shown that an appropriate regime of autonomy, functioning in a
democratic society, can have an integrating role. It is important to keep in mind that democracy
means more than the rule of majority established at periodic elections. Majority rule per se does
not in itself guarantee the democratic environment necessary for the successful functioning of
∗ At the time of the conference United Nations Assistant Secretary General for Political Affairs. The views expressed
in this paper are those of the author alone.
35
autonomy. Genuine democratic process characterized by respect for human rights is necessary.
Furthermore, democracy requires that the majority respects the needs of minorities and
understands its responsibility towards minorities.
Much has been said and written on the relationship between human rights and political
democracy. Implementation of certain basic civil and political rights is essential for the
functioning of democracy. These rights must be guaranteed to all. The first condition for the very
existence of democracy is respect for life, physical integrity and security of person. Without the
existence of this condition no democratic process can take place. Once that condition is
established the right to freedom of opinion and expression and the right to peaceful assembly and
association have to be guaranteed. Finally, the arrangements need to be made so that the
democratic processes can take place — either directly or through democratically elected
representatives.
The basics of democracy are worth recalling since they represent the necessary platform
upon which specific regimes of governance can be built. Furthermore, they represent an important
test. Without them it is illusory to talk about the democratic character of elections, organized
protection of minorities and other arrangements which depend on the democratic character of
organization of society.
3.
POLITICAL PARTICIPATION AND GOOD GOVERNANCE IN MULTI-ETHNIC
SOCIETIES: THE NEED TO UNDERSTAND THE DIVERSITY OF SITUATIONS
Multi-ethnic societies differ. Each situation has to be understood individually in order to identify
its actual needs and potentials. While all of them require the basic guarantees for the exercise of
human rights, each of them needs to be analyzed separately when specific institutional
arrangements are designed for them. In general — and to start a discussion — it might be useful
to distinguish the following types of situation.
Multi-ethnic situations resulting from current migrations give rise to different needs
from those characterized by historically established minorities. While in the former the migrating
groups and individuals are likely to express a high degree of desire for integration and even
assimilation into the majority population, in the latter the groups in question (historically
established minorities) are likely to express a higher degree of will to preserve their ethnic
identity.
The situations characterized by historically established minorities vary according to
whether the minority groups are geographically dispersed or concentrated. The former may be
more inclined to integration/assimilation than the latter. Finally, geographically concentrated
minorities have different needs depending on their size: larger minorities may require separate
schools (or a bilingual system involving persons belonging to minorities as well as the others),
while smaller minorities may need other types of educational arrangements.
36
The examples mentioned here are general and it has to be added that the policies of
governments may vary quite independently of the presumed needs of minorities. Policies
designed to stimulate integration and even assimilation may still be acceptable if they do not
amount to violations of human rights or specific regimes established by international law.
On the other hand, different minorities themselves can articulate quite different aspirations
regarding specific institutional arrangements. Therefore, it should not come as a surprise if two
minorities in a comparable situation opt for different educational systems (for example, bilingual
as opposed to separate, monolingual schools).
This brings us to the question of political participation within which the choices are
articulated and the arrangements made. Often the political processes in question are characterized
by political tensions and conflictual interests. The need to respect human rights and other
requirements of democracy is of critical importance in these situations.
A wise government will think about the entire population of the country when devising its
policies and institutional arrangements. "Good governance" can be described in terms of inclusive
policies and law-making processes responsive to all segments of the population — and not just to
the majority. In the context of good governance based upon respect for human rights for all and
characterized by sensitivity to the needs of all, the search for appropriate institutional
arrangements becomes truly possible.
4.
BASIC TYPES OF POLITICAL PARTICIPATION OF MINORITIES IN THE
POLITICAL PROCESS
There are three basic types of political participation of minorities in the decision-making
processes:
a) Consultative arrangements can be devised by governments at the local, regional or
national level to provide an opportunity for the representatives of minorities to express their views
and to be heard. The fact that these views are heard and — to the extent possible — taken into
account in policy-making and legislation usually has a positive effect. Such arrangements can be
adjusted to the needs of any of the types of situations mentioned in the preceding section.
b) Participation of representatives of minorities in legislative bodies will, generally, be
an issue for historically established minorities. In my opinion it would be useful to ensure some
participation of minorities in the State’s legislative bodies, even when numerical proportions do
not guarantee the election of their members. This can be done by the political parties represented
in the legislative bodies or by a legal arrangement providing for a symbolic representative of a
minority (minorities) in the legislative body. While the latter arrangement can be seen as a
departure from the principle “one person, one-vote”, the inclusion of a group (groups) which
would otherwise remain unrepresented is of political and practical value.
37
Larger minorities can become significant players in parliaments and in government
coalitions. The interesting question here is whether the practical experience of the past years has
given rise to conclusions of a general character. It appears that the number of situations where
minorities play a significant role in the parliaments and other legislative bodies is growing.
c) Another set of arrangements to be addressed relates to what is commonly denoted
“autonomy”. Different types of autonomy are usually contemplated for the situations of large,
historically established and geographically concentrated minorities. Recent historical experience
has shown that autonomy, as a rule, implies a combination of measures related to a particular part
of territory and those related to the ethnic distinctness of the larger part of population in that
territory.
Purely personal autonomy, such as the arrangements in the Baltic States in the interwar
period, seems to be less attractive, or perhaps less relevant today in the era of universal
applicability of human rights. The regimes currently in existence are territorially defined and
usually involve a degree of autonomous legislative and executive powers. Arrangements of
functional autonomy, limited to areas of education and culture, are also in existence and offer
examples that could be used in comparable situations.
However, it should be borne in mind that neither existing international law nor OSCE
standards prescribe autonomy as a general right of minorities. The OSCE Copenhagen Document
of the Conference on the Human Dimension (1990) and the subsequent documents address
autonomy as an option and not as a right (of minorities) or an obligation (of States). In fact,
autonomy is almost always associated with situations of serious political tension. A particular
autonomous regime is — in the words of a prominent British expert on minorities — often
“grudgingly offered and ungratefully accepted but it can work to civilize rival ambitions”.1 A
successful introduction of autonomy takes time, sometimes decades to take root and to work as an
integrating factor. Furthermore, such a result is more likely in an environment characterized by a
high degree of political tolerance, respect for human rights and democratic governance.
A particular reference should be made to what some authors describe as functional
autonomy, an arrangement which is, in my opinion, particularly appropriate for small and
geographically concentrated minorities. Functional autonomy requires transfer of State functions
to minority organizations or special institutions created by the State for the purpose of developing
the culture and education of minorities. Such autonomy presupposes a high degree of
participation of the minority concerned in the normative development and in decision-making on
financing of the autonomous functions.
The range of possible areas in which such arrangements can work is, potentially at least,
quite large. On the “lower end” one can imagine arrangements for cultural organizations and
activities, publicly funded and managed by the minority concerned. On the “higher end” one can
discuss an autonomous school system, funded by the State and governed by the minority
1
Patrick Thornberry in: World Directory of Minorities, London: Minority Rights Group International, 1997, p. 698.
38
concerned. Participation of government representatives in the actual management can take a more
or less direct form. Participation of representatives of minorities in the normative development
and financial decision-making should be meaningful so that the atmosphere of shared
responsibilities can be created.
Arrangements along these lines must be adjusted to particular circumstances of individual
situations. This is one of the reasons why the current instruments on minorities adopted within the
UN, OSCE and the Council of Europe do not provide a clear normative guidance in dealing with
autonomy. As mentioned above, the Copenhagen Document “takes note” of the existing forms of
autonomy. Parliamentary Assembly Recommendation 1201 (1993) of the Council of Europe
speaks of the “right of minorities to have at their disposal appropriate local or autonomous
authorities or to have a special status”. However, subsequent treaty-making and legal
interpretations seem to indicate that the right recommended in the mentioned pronouncement
depends on the domestic legislation of the territorial State and does not create an international
legal obligation of States. The example of Recommendation 1201 (1993) shows, once again, that
there is no substitute for carefully negotiated arrangements based upon cooperation between the
governments and minorities in their territories concerned.
39
BIBLIOGRAPHY
Cassese, Antonio, “The Helsinki Declaration and Self-Determination”, in: Thomas Buergenthal &
Judith R. Hall (eds.), Human Rights, International Law and the Helsinki Accord, American
Society of International Law; Montclair, New Jersey: Allanheld Osmuna, 1977, pp. 83-110.
Danspeckgruber, Wolfgang & Arthur Watts (eds.), Self-Determination and Self-Administration: A
Sourcebook, Boulder, Colo.: Lynne Rienner Publishers, 1997.
Hannum, Hurst, Autonomy, Sovereignty and Self-Determination, Philadelphia: University of
Pennsylvania Press, 1990.
Hannum, Hurst (ed.), Documents on Autonomy and Minority Rights, Dordrecht/Boston/London:
Martinus Nijhoff Publishers, 1993.
Lapidoth, Ruth, Autonomy, Flexible Solutions to Ethnic Conflicts, Washington, D.C.: United
States Institute of Peace, 1996.
Suksi, Markku (ed.), Autonomy: Applications and Implications, The Hague/London/Boston:
Kluwer Law International, 1998.
World Directory of Minorities, London: Minority Rights Group International, 1997.
40
Effective Participation through Elections: …
EFFECTIVE PARTICIPATION THROUGH ELECTIONS:
CREATING THE SPACE FOR MINORITIES AND
MAJORITIES IN THE POLITICAL SPHERE
Andrew Reynolds
Assistant Professor of Government and International Studies,
University of Notre Dame
Fellow of the Helen Kellogg Institute for International Studies and the Joan B. Kroc Institute
for Peace Studies
1.
INTRODUCTION
All modern nations are socially diverse to some extent. They are characterized by ethnic
differences, plural cultures, linguistic, religious or regional variations. Indeed, the strength of
many a State rests on its diversity — upon successful marriages of different traditions and skills
and attributes.
The political theorist, John Stuart Mill, noted nearly a century and a half ago that a talented
and efficient government was one which included the representatives of both the majority and
minority. In On Liberty, Mill addressed ideas of how to represent and articulate competing
interests and the utility of tolerating different views from diverse quarters of the population. In
Considerations on Representative Government, he transferred this logic to the arena of
competitive electoral politics and argued for intellectual and social diversity in government. Mill
saw participatory politics as having a desirable educative effect on the intellect and morality of
citizens.
Even where social diversity does generate division and tension, there are many ways in
which the political structures a nation puts in place can help to mitigate against such tendencies
characterizing relations between minorities and majorities. Properly crafted institutions can
provide incentives for the leaders of various groups to act in accommodating ways towards other
leaders — in their mutual interest and for their mutual benefit.
As the OSCE, and this conference, rightly notes, some of the most fertile ground for
building nationhood and cooperation lies within the social-cultural sphere. Education can lay the
groundwork for the appreciation of difference rather than the fear of it: the north of Ireland has
made slow advances in this direction over the last thirty years. Sport and the Arts can do a huge
amount to build a nation — just look at South Africa’s multi-ethnic sporting achievements and the
way in which they have at times unified a highly fragmented country. A rigorous media culture
can provide the outlets of expression that channel dissent into positive discourse rather than
destructive violence. Lastly, widespread economic development often dampens the incentives for
ethnic conflict and minority rebellion.
41
2.
INSTITUTIONS AS TOOLS OF CONFLICT MANAGEMENT
Beyond issues of culture and economics, a key part of this framework of mechanisms to
encourage accommodation between minorities and majorities is democracy itself — the very
“rules of the game” which are put into place to structure political competition and power. It is
apparent that the underlying quality which marks out successful democratization in plural societies
is that of inclusion.
The political inclusion of both minorities and majorities in decision-making structures
improves the prospects for peace and stability on a number of levels. Along with facilitating a
better distribution of resources from the centre to the country as a whole and making long-term
structural adjustment programs more feasible, inclusion has most value as a confidence-building
mechanism which allows both political elites and cultural communities to feel that they have an
influence on the decisions of the State; and that their representatives will be able to ensure that
their interests and rights are protected. Nevertheless, at the end of the day the most persuasive
argument for inclusive structures is that the alternative is nearly always a catastrophic breakdown
of the State and society. Throughout the world the failure to respect and reassure all significant
component parts of a nation has resulted in bloody conflict.
3.
WHY ARE ELECTORAL SYSTEMS IMPORTANT?
Electoral systems are tools of the people. They are the institutions used to select decision-makers
when societies have become too large for every citizen to be involved in each decision that affects
the community. The electoral system is the method by which votes cast in an election are
translated into the seats won in parliament by parties and candidates. Some systems may give
primacy to a close relationship between the votes cast overall and the seats won (proportionality),
or they may funnel the votes (however distributed among parties) into a legislature which contains
just a few large parties (majoritarianism). A second important function of an electoral system is to
act as the conduit through which citizens can hold their elected representatives accountable.
Third, electoral systems help to structure the boundaries of acceptable political discourse by
giving incentives to party leaders to couch their appeals to the electorate in distinct ways. In
plural societies, for example, where language, religion or ethnicity represents a fundamental
political cleavage, some electoral systems can reward candidates and parties who act in a
cooperative, accommodating manner; while others reward those who appeal only to their own
ethnic group. This “spin” that the electoral system gives to the system is highly dependent on the
specific cleavages and divisions within any given society.
4.
THE PACE OF REFORM AROUND THE WORLD
Up until quite recently it was argued that once an electoral system is in place in a country it was
very unlikely to change, as the power to change lay with those who had benefited from the system
in the first place. However, this “freezing hypothesis” appears to be melting faster than the polar
ice caps. In the last decade the pace of electoral system reform has dramatically speeded up. This
42
has given us a wealth of experience of electoral system consequences throughout Europe, along
with much of the developing world. The discipline of constitutional design has become
particularly innovative beyond Europe’s borders — often addressing problems which are also
confronted in Europe.
Many unconsolidated, transitional and fledgling democracies have radically altered their
old systems. For example, Fiji moved from First Past the Post (FPTP) (the Anglo-American
system of single member districts — see glossary for a description of this and other terms) to the
Alternative Vote (preference voting as used in Australia). Thailand moved from the Block Vote to
a Parallel System with proportional representation (PR) party lists, while Ecuador switched from
straight List PR to a Parallel System with lists and the Block Vote. The current constitutional
discussions in Indonesia are likely to change the system from PR to a predominantly, district
based, majoritarian system. In southern Africa there is a strong move to change Lesotho’s
disastrous FPTP system. While in South Africa and Mozambique there is mounting pressure to
build a district (geographical) link into the large district closed list PR systems that these new
democracies used in 1994, and will use again next year.
But it is not just new democracies that are grappling with electoral system reform. A
number of established democracies have also reformed, or are looking to reform, their systems.
Japan switched from the Single Non-Transferable Vote to a Parallel system in 1993, New Zealand
made a dramatic shift from First Past the Post to a Mixed Member Proportional system for their
elections of 1996, and Italy moved to the same system, from List PR, in the early 1990s.
Furthermore, a number of other established democracies are considering change. The new Labour
Government in the United Kingdom set up a commission in 1997 to recommend a proportional
alternative to the British First Past and Post system and a national referendum on this issue is
expected before the year 2000. Similarly, there are growing calls in Canada to change the First
Past and Post system to a more proportional system as a result of the increasing fragmentation of
the party system which highlights the anomalous results that majoritarian systems can sometimes
cause.
A survey of all these development reveals that four main themes are driving the calls for
electoral system reform. (i) The desire to increase the geographic representation of cities and
villages and enhance the accountability of individual representatives within proportional
representation systems (e.g., in Indonesia, Ecuador and South Africa). (ii) The unease with voteseat anomalies inherent in First Past the Post systems (e.g., in Lesotho, New Zealand and the
United Kingdom). (iii) The desire to reduce party fragmentation (e.g., Poland, Indonesia and
Italy); (iv) The hope of encouraging inter-ethnic accommodation in societies divided by ascriptive
identities (e.g., Fiji, Sierra Leone).
5.
THE CONTEXT OF ELECTORAL SYSTEM DESIGN
Comparative evidence from around the world has highlighted the fact that electoral systems have
different consequences from country to country. Although there are important shared experiences
43
of electoral systems in various regions of the world, the consequences of a particular electoral
system depend heavily upon the historical, socio-economic, and political context of the society in
which it is used. For that reason good electoral system design is rooted in an understanding of the
broader historical and political picture — the cultural-political context and the broader framework
of political institutions.
The socio-political context
How proportional representation works in Sweden may be very different from the way PR
works in Bulgaria. While the political consequence of the Two-Round system in France are
clearly divergent to the consequences of that system in the Ukraine. For these reasons the
electoral system designer has to be, at the very least, anthropologist, historian, and political
scientist. In fledgling democracies electoral system design is particularly dependent on the nature
of the social plurality of the country.
a) The basis of group identity
That is, do voters define themselves along the lines of ethnicity, religion, language, ethnonationalism, regionalism, or a mixture of these dimensions?
b) The level of tension
What are the current, and historical, intensities of these social cleavages?
c) The nature of dispute
If there is conflict, do groups compete over resources, cultural right, or territory?
d) The number and relative size of groups
Are there a few large groups or many small ones?
e) The spatial distribution of groups
Are the members of communal groups dispersed or geographically concentrated?
The context of political institutions
The electoral system used to constitute parliaments is located within the broader
framework of the State — or “democratic type”. In sum the elements are:
a) Executive type
Is there a presidential or parliamentary system? If it is a parliamentary system, are there
single party governments, coalition governments, or constitutionally mandated
governments of national unity?
b) Legislative type
Is the parliament unicameral or bicameral? If bicameral, do the chambers have
symmetrical or asymmetrical powers? Are there reserved seats or quotas for specific
groups?
c) The constitutional nature of the State
Is the State unitary or federal? If federal, is it symmetrical or asymmetrical federation?
Are the provinces poly-ethnic or ethnically homogenous? If there is autonomy for certain
44
groups within the State is it territorial or non-territorial? Is there cultural, functional, or
personal legal autonomy?
6.
THE RANGE OF CHOICES AVAILABLE
The range of electoral systems being used for national legislative elections around the globe is
now greater than it has ever been before. There are at least ten types of electoral systems in
operation in 212 nation-States and related territories of the world, with many permutations on each
form. As of 1998 just over half (109, or 51% of the total) of the independent States and semiautonomous territories of the world which have direct parliamentary elections use pluralitymajority systems (e.g., First Past the Post, the Block Vote, the Alternative Vote, or the TwoRound System).
Another 74 (35%) use PR-type systems (either List PR, Mixed Member Proportional
Systems, or the Singe Transferable Vote), while the remaining 29 (14%) use semi-PR systems
(e.g., Parallel, the Single Non Transferable Vote, or the Limited Vote) all bar four of which are
Parallel systems. Individually, First Past and Post systems are the most popular, with 67 out of
212 nation-States and related territories giving them 32% of the total, followed by the 66 cases of
List PR systems (31%).
Next popular are Two-Round Systems (29 cases, 14%) and Parallel Systems which use
both district and PR components (25 cases, 12%).
The most important decisions revolve around three basic mechanistic issues: how many
representatives are elected from each constituency/district? (i.e. the district magnitude). Is the
formula used a plurality, majority, or type of PR? And, what is the threshold for representation for
parties and candidates (effective and imposed)? In combination these three elements will be the
chief determinants of the way votes cast are translated into seats won.
7.
ELECTORAL SYSTEMS IN THE OSCE STATES (see attached table)
The distribution of systems within the States of the OSCE is markedly different from the global
diffusion of electoral systems. Half the OSCE countries use some form of list PR and the system
is dominant in Western Europe. Along with the three Mixed Member Proportional systems of
Germany, Hungary and Italy and the two Single Transferable Vote cases of Ireland and Malta this
means that proportional representation is used in 60% of the OSCE member States. Next popular
is the majoritarian French Two-Round System. Ten OSCE States use this system, primarily in the
CIS States in Eastern Europe and Central Asia. Along with First Past the Post in Britain, Canada
and the U.S. this means that less than a quarter of OSCE States use majoritarian electoral systems
— as opposed to over 50% globally. Lastly, there is a high incidence of mixed (or parallel)
systems which combine both PR lists and single member districts.
45
8.
AN OVERVIEW OF ADVANTAGES AND DISADVANTAGES
In the literature majoritarian electoral systems have been favoured on a number of theoretical and
empirical grounds, perhaps most importantly because of the way single member districts retain a
link between voters and their representative. Furthermore, plurality-majority systems are favoured
because of the way in which they: funnel the party system of a country, and thus voter choice, into
a competition between two broadly based political parties; make “stable” single party
governments more common; and give rise to a strong opposition in parliament. In fledgling
democracies it is sometimes argued that such systems will help to encourage broadly-based multiethnic political parties and exclude “extremist” parties from parliamentary representation.
Despite their widespread use, however, plurality-majority electoral systems are criticized
on a number of grounds and often they are considered inappropriate for unconsolidated
democracies. Chief among these criticisms is the charge that all single member district systems
are “exclusionary” in a number of important respects — that they exclude smaller parties,
communal minorities and women from “fair” representation. In 1998 women constituted 13.7%
of the members of legislatures elected by proportional methods (70 cases) and 8.4% of the
legislatures elected by plurality-majority methods (84 cases). For the 24 semi-proportional
systems the figure was 7.8%.
In plural societies majoritarian systems are also criticized for encouraging the development
of political parties based on ethnicity or region. Such “politicized ethnicity” is reinforced when
“regional fiefdoms”, where one party wins all the seats in a province/district, are exaggerated.
This maximizes the existence of “wasted votes” which lead minority party supporters to feel that
they have no realistic hope of ever electing a candidate of their choice. This poses a danger in
nascent democracies, where alienation from the political system increases the likelihood that antidemocratic extremists will be able to mobilize anti-system movements. Finally, all single member
district systems are open to the manipulation of electoral boundaries, i.e. the unfair
gerrymandering or mal-apportionment of districts.
In many new democracies proportional representation systems are chosen precisely
because they mitigate against the exclusionary tendencies of plurality-majority systems. By more
faithfully translating votes cast into seats won, PR is sometimes said to produce “fairer” results.
Under proportional systems disproportionality and “seat bonuses” for the larger parties are
constrained and minority parties can gain access to parliament even if their vote is not highly
geographically concentrated. The bulk of the cited advantages of PR revolve around this core
principle of inclusion. That very few votes are “wasted” under PR systems. That they facilitate
minority parties’ access to representation. They encourage parties to present inclusive and
communally diverse lists of candidates and, thus, it is more likely that the representatives of
minority cultures/groups are elected. Similarly, it is more likely that women are elected under PR
systems.
46
Nevertheless, criticisms of proportional electoral systems have been based around two
themes: the tendency of PR systems to give rise to coalition governments, and the failure of some
PR systems to provide a geographical linkage between a representative and her or his electorate.
The most often-cited arguments against using PR are that it leads to a detachment of the
representatives from their constituents; leaves too much power entrenched within party
headquarters, wielded by senior party leadership; and fragments the party system, which can be
inefficient for governance. The coalition governments born of fragmented party systems are
criticized for allowing tiny minority parties to hold larger parties to ransom in coalition
negotiations and entrenching parties in power despite weak electoral performances from time to
time.
As can be seen by the previous discussions both model types — majoritarian and
proportional representation — can exhibit serious flaws for the workings of representative
government in certain circumstances. This is partly why electoral system design has become such
a growth industry and the scientific study of electoral systems has gained so much ground over the
past decade. The nature of electoral system design is increasingly one of innovation. States adopt
new rules to reflect their own domestic desires and requirements. Mixed systems, of various
forms, are rapidly becoming the norm there designers try to combine the advantages of
geographical representation with the benefits of proportionality and/or incentives for intercommunal accommodation.
9.
MECHANISMS FOR THE INCLUSION OF MINORITIES
In keeping with the OSCE determination that the inclusion of diverse communal groups in the
political sphere is a normative good, then the question becomes: how best can a democracy
structure its institutions to make such inclusion a reality? The constitutional designer has a
number of different options to pull from their toolbox — some subtle, others more overt. As I
noted earlier, in the right context, proportional representation electoral systems can encourage
parties to put up diverse lists of candidates which appeal to a variety of communal groups within a
society. Indeed, it may be advantageous to require parties to include candidates for each province
(or ethnic group) on their lists — although it is also true that sometimes such mechanisms can
backfire and be seen as anti-democratic. PR also makes it less likely that a minority ethnic group
will be excluded from parliamentary representation.
Nevertheless, in single member district systems regional minorities can win substantial
numbers of seats if they are geographically concentrated — just look at the Bloc Quebecois in
Canada. But even though minorities can win representation under majoritarianism, in many cases
the system still seems to entrench the perception that all politics centres upon divisive ethnic
politics.
In a number of countries seats are reserved for minorities (for example, in Croatia,
Slovenia, and Romania) or voters roles are separated on a communal basis (as in Bosnia). This
provides access for minorities to parliamentary debates and often allows for groups to initiate
47
legislation. Additionally, it affords the opportunity to minority representatives to sit on
parliamentary committees which may have special importance to their cultural community. But
some scholars argue that such minority representation is counter-productive. It may give a small
voice to disenfranchised minorities in the legislature, but that voice is often ignored when it comes
to legislation. The existence of reserved seats at once breeds resentment on the part of other
communities and retards the development of national alliances. A potentially more effective way
of including minority voices is to over-represent smaller groups or regions in the upper house of
parliament — as is the case in a number of countries, most notably the United States.
10.
FINAL QUESTIONS
While it is true that the choice of electoral system can have important consequences for the path of
democratization and accommodation in any State, it is also true that the voice minorities have in
parliament will be far less valuable if that parliament is impotent with power lying elsewhere.
This presentation is entitled “effective participation” — participation in politics without influence
is possibly the most dangerous situation, encouraging the disenfranchised to pursue their goals
outside of the peaceful democratic sphere. This fact highlights the importance of the relationship
between the electoral system and the nature of the State. Powerful presidents can overwhelm even
the most inclusive legislature but decentralization can address many of the needs of minorities
without recourse to reserving them seats in the national parliament. Indeed, perhaps the most
important conundrum is: how can we recognize diversity in society without necessarily
entrenching division and fragmentation? Ultimately, the best hope for new democracies lies in a
shared sense of nationhood which appreciates difference as one of the strengths of the country as a
whole.
The best news is that there now exists a weight of evidence to show that properly crafted
political institutions can help build this sense of shared Statehood between minorites and
majorities and provide inclusive forums for the democratic settlement of differences of opinion. If
the electoral system recognizes social diversity and treats ethnic plurality as a positive force, then
the country as a whole will benefit in many ways. Along with the other crucial elements that this
conference is addressing, the choice of electoral system should come under the magnifying glass
as it may be the last piece of the jigsaw in a consolidating democracy.
48
APPENDIX 1.
The Electoral Systems of the Countries of the OSCE
(Legislatures)
List PR
Two Round
Austria
Belgium
Bosnia & Hz.
Bulgaria
Cyprus
Czech Republic
Denmark
Estonia
Finland
Greece
Iceland
Latvia
Liechtenstein
Luxembourg
Moldova
Netherlands
Norway
Poland
Portugal
Romania
San Marino
Slovakia
Slovenia
Spain
Sweden
Switzerland
Turkey
Belarus
France
Kazakhstan
Kyrgyzstan
Macedonia
Monaco
Tajikistan
Turkmenistan
Ukraine
Uzbekistan
Parallel –
TRS
Albania
Azerbaijan
Georgia
Lithuania
Parallel
– FPTP
Armenia
Croatia
Russia
Parallel –
Block
Andorra
1
FPTP
MMP
STV
Canada
UK
USA
Germany
Hungary
Italy
Ireland
Malta
3
3
2
3
4
10
27
49
APPENDIX 2.
Glossary of Electoral System Terms
Alternative Vote (AV) – A preferential, plurality-majority system used in single-member districts in which voters use
numbers to mark their preferences on the ballot paper. A candidate who receives over 50% of first-preferences is
declared elected. If no candidate achieves an absolute majority of first-preferences, votes are re-allocated until one
candidate has an absolute majority of votes cast.
Block Vote (BV) – A plurality-majority system used in multi-member districts in which electors have as many votes as
there are candidates to be elected. Voting can be either candidate-centred or party-centred. Counting is identical to a
First Past the Post system, with the candidates with the highest vote totals winning the seats.
Compensatory Seats – The List PR seats in a Mixed Member Proportional system which are awarded to parties on the
basis of their proportion of the national vote and designed to correct any disproportionality in the results of the
elections held in plurality-majority district seats.
Democratic Consolidation – The process by which a nation’s political institutions and democratic procedures become
legitimized and broadly accepted by both political actors and the wider population.
Electoral System – That part of the electoral rules which determines electoral outcomes; chiefly, the electoral formula,
the ballot structure, and district magnitude.
First Past the Post (FPTP) – The simplest form of plurality-majority electoral system, using single-member districts,
a categorical ballot and candidate-centred voting. The winning candidate is the one who gains more votes than any
other candidate, but not necessarily a majority of votes.
List Proportional Representation (List PR) – In its most simple form List PR involves each party presenting a list of
candidates to the electorate, voters vote for a party, and parties receive seats in proportion to their overall share of the
national vote. Winning candidates are taken from the lists.
Mixed Member Proportional (MMP) – Systems in which a proportion of the parliament (usually half) is elected from
plurality-majority districts, while the remaining members are chosen from PR lists. Under MMP the list PR seats
compensate for any disproportionality produced by the district seat results.
Multi-Member District – A district from which more than one member is elected to parliament.
Parallel System – A semi-proportional system in which proportional representation is used in conjunction with a
plurality-majority system but where, unlike MMP, the PR seats do not compensate for any disproportionality arising
from elections to the plurality-majority seats.
Plurality-Majority Systems – The distinguishing feature of plurality-majority systems is that they almost always use
single-member districts. In a First Past the Post system, the winner is the candidate with a plurality of votes, but not
necessarily an absolute majority of the votes. When this system is used in multi-member districts it becomes the Block
Vote Majority systems, such as the Australian Alternative Vote and the French Two-Round System, try to ensure that
the winning candidate receives an absolute majority of votes cast.
Proportional Representation (PR) – Any system which consciously attempts to reduce the disparity between a party’s
share of the national vote and its share of the parliamentary seats. For example, if a party wins 40% of the votes, it
should win approximately 40% of the seats.
50
Reserved Seats – Seats in which some ascriptive criteria such as religion, ethnicity, language, gender etc. is a
requirement for election.
Semi-Proportional Systems (Semi–PR) – Those electoral systems which provide, on average, results which fall some
way in between the proportionality of PR systems and the disproportionality of plurality-majority systems.
Single-Member District – A district from which only one member is elected to parliament.
Single Non-Transferable Vote (SNTV) – A semi-proportional system which combines multi-member districts with a
First Past the Post method of vote counting, and in which electors have only one vote.
Single Transferable Vote (STV) – A preferential proportional representation system used in multi-member districts. To
gain election, candidates must surpass a specified quota of first-preference votes. Voters' preferences are re-allocated
to other continuing candidates when an unsuccessful candidate is excluded or if an elected candidate has a surplus.
Threshold – The minimum level of support which a party needs to gain representation; usually expressed as a
percentage of the total vote.
Two-Round System (TRS) – A plurality-majority system in which a second election is held if no candidate achieves an
absolute majority of votes in the first election.
51
BIBLIOGRAPHY
Dummett, Michael, The Principles of Electoral Reform, Oxford: Oxford University Press, 1997.
Farrell, David M., Comparing Electoral Systems, London: Prentice Hall/Harvester Wheatsheaf, 1997.
Horowitz, Donald L., A Democratic South Africa? Constitutional Engineering in a Divided Society,
Berkeley: University of California Press, 1991.
Katz, Richard S., Democracy and Elections, Oxford: Oxford University Press, 1997.
Lakeman, Enid, How Democracies Vote, London: Faber and Faber, 1974.
Lijphart, Arend, & Bernard Grofman (eds.), Choosing an Electoral System: Issues and Alternatives,
New York: Praeger, 1984.
Lijphart, Arend, “Constitutional Choices for New Democracies”. Journal of Democracy, Vol. 2,
1991, pp. 72-84.
Mill, John Stuart, Considerations on Representative Government [1861], New York: Liberal Arts
Press, 1958.
Reilly, Ben & Andrew Reynolds, Electoral Systems and Conflict in Divided Societies, Washington
D.C.: National Research Council, 1999.
Reynolds, Andrew, Electoral Systems and Democratization in Southern Africa, Oxford: Oxford
University Press, 1999.
Reynolds, Andrew, & Ben Reilly, et al, The International IDEA Handbook of Electoral System
Design, Stockholm: International IDEA, 1997.
Reynolds, Andrew, & Timothy D. Sisk, “Elections, Electoral Systems, and Conflict Management”,
in: Reynolds, Andrew, & Timothy D. Sisk (eds.), Elections and Conflict Resolution in Africa,
Washington D.C.: United States Institute of Peace Press, 1998.
Rule, Wilma & Joseph Zimmerman, (eds.), Electoral Systems in Comparative Perspective: Their
Impact on Women and Minorities, Westport: Greenwood, 1994.
Sartori, Giovanni, Comparative Constitutional Engineering: An Inquiry Into Structures, Incentives,
and Outcomes, New York: Columbia University Press, 1994.
Taagepera, Rein, & Matthew S. Shugart, “Designing Electoral Systems”, Electoral Studies 8, 1989,
pp. 49-58.
52
Towards Effective Participation of Minorities: …
TOWARDS EFFECTIVE PARTICIPATION OF
MINORITIES: A BRIEF EXAMINATION OF
ADVISORY AND CONSULTATIVE BODIES AND
DIALOGUE MECHANISMS
Fernand de Varennes
Senior Lecturer at the School of Law, Murdoch University
Director of the Asia-Pacific Centre for Human Rights and the Prevention of Ethnic Conflict
(Australia)
Co-Responsable, Section “Droits et politiques linguistiques”, Groupement de Recherches
1178 Droit, Cultures, Langues, Conseil National de la Recherche Scientifique (France)
1.
INTRODUCTION
The theme of my presentation this morning is “Towards Effective Participation of Minorities: A
Brief Examination of Advisory and Consultative Bodies and Dialogue Mechanisms”. I will
attempt to describe why such bodies and mechanisms are necessary in democratic societies, what
they actually can create that would otherwise be lacking in the political domain of many countries,
and identify some of the practical strengths and weaknesses.
As a preliminary observation, it is important to emphasize the importance of dialogue
between government and minorities. Minorities are after all part of the population which
democratic governments must deal with and respond to, so it is essential — especially where a
large part of the population is made up of one or more ethnic minorities — that they have the
opportunity to clarify their concerns and problems, and that the government has the opportunity to
explain their difficulties and limitations. Dialogue will improve mutual understanding and
contribute to the reduction of mutual suspicions, even if parties do not agree. It could also do
much more: it could lead to the development of new ideas on how to meet all interests, or at least
acceptable compromises between the parties concerned.
In legal and political terms, a variety of international and European documents recognize
that governments must take steps to ensure that minorities can effectively participate in public
affairs. The UN Declaration on the Rights of National or Ethnic, Religious and Linguistic
Minorities indicates that persons belonging to minorities have the right to participate effectively in
cultural, religious, social, economic and public life, including in decision-making at both the
national and regional level on issues concerning them. The Council of Europe’s Framework
Convention for the Protection of National Minorities and the OSCE’s Copenhagen Document
enshrine the principle of effective participation for minorities in public affairs.
From a more legal viewpoint, the UN Committee on the Elimination of All Forms of
Racial Discrimination has declared that “governments are to represent the whole population
53
without distinction as to race, colour, descent, national or ethnic origins.” An important means to
achieve participation is dialogue.
2.
WHY ARE SPECIFIC MECHANISMS OR BODIES FOR DIALOGUE AND ADVICE
NEEDED?
The reason dialogue is emphasized, and that advisory and consultative bodies and other dialogue
mechanisms are promoted in relation to minorities, is because in concrete instances the interests of
the majority in most countries (whether they are open, civil societies or not) can clash with those
of minorities.
Governments in modern States can never be completely neutral towards individuals in
terms of ethnic, religious, linguistic or cultural preferences. They will tend to have, although
sometimes subtly, various degrees of religious, linguistic or cultural preferences. What this means
is that governments face almost on a daily basis clashes of interests, which can under some
conditions cause tensions when they involve conflicts between the interests of the majority and a
large minority. The aim and art of good governance is to find a suitable balance, and the dialogue
mechanisms and structures between minorities and government provide a process to find this
suitable balance. Furthermore, good governance offers a chart, or if you prefer guidelines, on how
this balance is to be achieved: it must be done in conformity with OSCE commitments and other
international standards that deal with the effective participation of minorities, respect for and
maintenance of their identities, and equality.
From the above, three points should be kept in mind:
a)Absolute State neutrality in terms of religious, linguistic or cultural preferences is
impossible.
b) Since absolute neutrality is impossible, this means in effect that it is incorrect to assume
that a modern State, especially one which is democratic, necessarily treats all individuals
perfectly the same. Some individuals (usually members of the religious, linguistic or
cultural majority) receive directly or indirectly advantages and benefits which other
individuals (usually members of the religious, linguistic or cultural minority) do not or
cannot enjoy to the same extent.
c) In modern States, there are, therefore, in practice competing interests within the State
between members of the religious, linguistic or cultural majority and those of the religious,
linguistic or cultural minority because in many areas the State cannot be absolutely neutral
in its policies or conduct.
54
3.
MINORITY INTERESTS AND THE NEED FOR SPECIAL MEASURES
If all individuals are free to participate in the political process, free to vote and to lobby
politicians, one could of course ask why we need additional and specific mechanisms for a
dialogue between government and minorities. Part of the answer of course is because of what can
be called the “democratic deficit”.
Essentially, the problem faced by members of minorities is that in most States their
interests may be neglected or completely set aside because they are not interests shared by the
majority which tends to monopolize power through sheer numbers in a democratic system.
To put it crudely, minorities tend to be outvoted in terms of political representation, and
more often than not they find themselves excluded or severally disadvantaged in most spheres of
public life. A minority which represents perhaps 15% of the population of a State will generally
not be able to elect as many representatives as its percentage of the population. In fact, in many
countries, they may not succeed in electing any representative at the national level, despite their
having fairly large numbers, and despite their also having different interests from the majority in a
number of areas.
Persons who belong to minorities therefore find themselves in a double dilemma: they
have interests in a number of areas that may be different from those of the majority, while in the
electoral process and the political sphere, persons who belong to minorities tend to be outvoted
and under-represented, if represented at all. Minorities tend therefore to suffer disproportionately
from a “democratic deficit” in terms of numbers and influence in many if not most political
systems.
I wish to emphasize also that for the most part this under-representation of persons
belonging to minorities is not directly attributable to any actual desire by governments to reduce
or eliminate the election of citizens who happen to belong to a minority. It is simply a
manifestation of a structural difficulty in many political systems, including majoritarian
democracies: because of their lower numbers, minorities are simply and almost systematically
outvoted in terms of political representation.
4.
PROCESSES FOR INTEGRATION AND DIALOGUE
Others speakers at this conference are addressing practical means to try to correct these problems:
Hungary has, for example, adopted national minority self-governments; Romania has a number of
reserved parliamentary seats for minorities; Slovenia has guaranteed minority rights for its two
largest minorities. You can even set up a system of regional autonomy as Italy has done in the
case of its German-speaking minority in the north of the country. All of these approaches are
aimed at ensuring the creation of a stable society with harmonious inter-ethnic relations by finding
reasonable ways to accommodate the differences of interests. Ultimately, it is about arriving at the
peaceful integration of minorities into the public life of the nation.
55
In addition to whatever political structures are adapted for a specific country, lines of
dialogue should be institutionalized because of the importance that authorities be continuously and
properly informed about the concerns and fears of minorities, but at the same time also the need
for minorities to be aware of the actual possibilities and limitations of government. This kind of
dialogue forum between government and minorities helps to increase each side’s familiarity with
each other’s point of view and motives, and it is an important first step to better understanding and
the prevention or resolution of disputes. This should be a central objective of governments and
minorities alike.
To quote from a seminar report held a few years ago in Latvia, and sponsored by the
Foundation on Inter-Ethnic Relations, among others:
Minority councils and round tables can make a valuable contribution to the reduction of
tensions through their capacity to promote dialogue and build confidence between
authorities and minorities. The forum serves as a channel for the exchange of
information and opinions on minority-related issues. In this way policy-makers are well
informed about the interests and points of view of minorities. At the same time the
forum also provides the policy-makers the opportunity to discuss policy plans at an
early stage and to explain their motives, so that minorities better understand why certain
decisions are being made.
On the positive side, dialogue bodies and mechanisms can thus: (1) promote dialogue; and
(2) provide advice to policy-makers dealing with issues of concern to minorities. These are ways
to try to harmonize the interests of all the people living in a country, by building up constructive
dialogue, finding compromises, and improving the overall social and political climate. This
involves integration and creation of a social and political model that will enable all members of
the society to participate.
The development of effective democratic institutions is also a step towards preventing
polarization along ethnic lines. Effective democratic institutions are essential for guaranteeing
basic rights, organizing participation in public life for all citizens, and resolving the communal
differences which are normal to all societies. Participation in public affairs is particularly
important for strengthening links of loyalty to the State and to the society of which the minorities
form a part.
If democratic mechanisms are absent, the likelihood of violence increases, as does the cost
of containing and resolving the conflict. High Commissioner van der Stoel pointed this out in a
presentation some time ago, specifically commenting on the issue of dialogue bodies and
mechanisms:
I would like to quote a passage from [the] Helsinki Document, which emphasizes that
States (quote) address national minority issues in a constructive manner, by peaceful
means and through dialogue among all parties concerned (unquote).
56
The effective functioning of democratic institutions within a country, particularly the
parliament or legislature, is essential for developing appropriate policies on national
minorities. Often the establishment of additional institutions, such as a human rights
ombudsman, a special commissioner on ethnic issues, or … a consultative or advisory
body for ethnic groups, can help considerably in identifying, analysing, and resolving
problems related to national minorities.
Increasing minority input into government policies will likely increase support of the
persons affected by them. This kind of process leading to improved minority policies should also
be beneficial to governments and society in general, since the more minorities feel recognized by
the society in which they live, the more loyal they are likely to be.
5.
STRATEGIES AND MODELS
Every country is different, and the variety of forums, dialogue mechanisms, advisory or
consultative bodies is almost as diverse as the countries involved. In many States around the
world, including Austria, Australia, Canada, Estonia, Finland, Kazakhstan, Kyrgyzstan, the former
Yugoslav Republic of Macedonia, the Netherlands, Romania, the United Kingdom and Slovakia
to name but a few, there are minority councils, round tables or forums which have been
established to permit a process to be held between minority and authority representatives which
increases the effective participation of minorities in public affairs and permits a discussion of
issues of concern to minorities. While governments should decide to establish a body for
institutionalized government-minority dialogue that is suited for their own needs, there are still a
number of principles which should be kept in mind, as well as weaknesses which should be
understood.
The full paper of this presentation contains a very brief summary of the various bodies and
mechanisms that exist in some eleven European countries. These can take a number of forms,
including at the national, regional or local levels, and once again one cannot say that one particular
form is necessarily more appropriate than another in light of the great diversity of national
conditions. In some countries governments or parliaments may have the obligation to consult
minority advisory bodies, and in some cases the consultative council or advisory board may have
some kind of veto in certain specific areas of particular significance for minorities. They may also
have administrative functions in relation to programmes aimed at their constituents or be entitled
to review and even suggest changes to legislation that affects minorities.
You may, for example, have a body or mechanism created by Parliament (Sami Assembly
in Norway, Sami Parliaments in Finland and Sweden). This could be a permanent parliamentary
committee, or a temporary ad hoc one. Its composition could be limited to elected members of
parliament, or include representatives from minority organizations in its composition. Such a
parliamentary committee could also provide for direct consultation of minority representatives
outside of Parliament even if its membership is limited to parliamentarians. In some cases, the
body may be completely autonomous from Parliament and have guaranteed funding provided for
57
by legislation or even constitutional provisions. There may even be provisions for direct election
of representatives to these bodies by members of the minority communities. When this is the case,
the functions may include actual administrative activities that exceed a mere consultative status. It
can additionally include, as in the case of the Sami Parliament in Finland, a mandatory
consultative power with regard to legislation affecting a number of specific areas of interest (such
as reindeer breeding). It is also possible for them to have veto powers in these matters.
Some States have chosen to create a body under the executive wing of government. This
often takes the shape of a presidential round table, forum or advisory council (Estonia,
Kazakhstan, Kyrgyzstan). It may be made up of minority representatives chosen by the President,
or of minority representatives officially delegated by minority organizations, as well as in some
cases a number of government officials or elected politicians. There are also countries where one
independent minority organization, deemed to represent all minorities, is designated by the
President as the “voice” for the executive-minority dialogue.
Finally, the dialogue process may occur within a government ministry or department (e.g.,
Austrian Ethnic Advisory Councils). There is, in a number of countries, a ministry dealing
specifically with minority affairs which can also have responsibility for or involvement in drafting
of legislation relating to minorities. In most cases, some kind of advisory board or consultative
body will exist to permit a constructive dialogue and exchange of views. At the very least, there
should be some type of provision enabling minorities to be consulted when and as appropriate.
While the actual process for consultation, advice and dialogue in a particular State may
take one of many different forms, there tends to be a fairly consistent approach as to the mandate
and objectives that are being pursued. These may include:
•
To raise concerns and problems concerning minorities and address how these might be
solved.
•
To consider matters raised by the President/Parliament/Ministry to provide insight and
make suggestions.
•
To draft recommendations and proposals on matters directly affecting minorities and to
submit them to relevant decision-makers.
•
To submit legislative initiatives on their own.
•
To monitor the implementation, as well as to review the provisions of, legislative acts
and/or government programmes relating to minorities.
•
To oblige policy-makers to request the advice and/or to react officially to the advice of the
respective minority council.
58
It would be incorrect to assume all of these various bodies and dialogue mechanisms work
equally effectively all of the time. However, they have been shown to be a valuable and
constructive process, despite many obstacles and difficulties. For example, the Romanian Council
for National Minorities has contributed substantially to the discussions with regard to the
Romanian Law on Education in 1995; their input was mainly through the submission of
suggestions on the law in the drafting stage.
Although in theory such bodies and mechanisms have a great potential for conflict
prevention, in some cases these expectations are not fulfilled because of problems in the way they
function. For example, there can be a great deal of confrontation and distrust with parties
entrenched in their positions and without any real dialogue. As you can imagine, it will often be
the case that no useful advice may be submitted to policy-makers in this kind of situation. It may
also be that the policy-makers have no interest in seriously considering the advice given, in which
case the distrust of minorities towards public authorities may actually increase.
There are both success stories and also some situations of frustration and anger. However,
it is clear from United Nations and OSCE documents that in legal and political terms a State has a
responsibility to work towards ensuring the effective participation of minorities that would
otherwise tend to be excluded from having much input or influence in public matters.
The positive dimensions seem to outweigh the weaknesses, and it is therefore useful to
highlight these strengths:
•
They offer a clear forum for a constructive dialogue between the State and minorities.
•
They provide a way for minorities to have an input in policy-making processes from which
they might otherwise be excluded.
•
Minorities have a non-disruptive way of raising issues, and voicing their concerns to
government.
•
Advisory and consultative bodies can provide useful expertise and insights to
governments.
•
They can serve as a barometer, an early-warning system by which problems and
misunderstandings can be avoided, for example in relation to proposed legislation that
might be seen as potentially harmful to minorities.
6.
SUGGESTIONS FOR MORE EFFECTIVE BODIES AND DIALOGUE MECHANISMS
There are a few lessons that can be learned from the past in a number of countries. From the start,
the functions and the purpose of an advisory or consultative body should be loud and clear.
Frustration and resentment may emerge from minority representatives if it is not clearly
59
understood that the advice provided is of a non-binding nature, or that legislation may not reflect
their advice. There have already been resignations and accusations in some countries in this
regard. This is necessary to avoid unrealistic expectations and disappointments which could cause
polarization and could render the operations of such a body counterproductive.
The work of advisory or consultative bodies is more effective if it has experts and staff for
advice on specific subjects. They must also have at their disposal relevant data or be able to
collect it. These steps would improve the quality both of the debates within these bodies and of
their recommendations. This, therefore, requires some appropriate and guaranteed funding.
Another useful aspect to keep in mind is that they can also contribute to a constructive and
informed debate in the general public, and especially in relation to members of minority
communities who may feel alienated from mainstream political and social processes.
Parliamentarians, ministers and other government officials that are involved or interested
in minority issues should be invited to attend meetings of the advisory or consultative bodies in
addition to the regular representatives of the State if there are any. In addition to increasing their
awareness of the needs and concerns of minorities, this may help develop closer links and regular
interactions with relevant decision-makers.
But perhaps the most important matter to consider is the danger of “window dressing”. In
some countries it appears that authorities have ignored minority-related problems once they have
established an advisory body or put in place a dialogue mechanism. Setting up such a body or
creating such a mechanism is a process, not an end in itself. Quite clearly, countries where these
have been successful are those where there has been the political will to make them work. In the
end, the spirit of public authorities towards these bodies and mechanisms and their commitment to
good governance seem to determine the degree to which they will be beneficial and useful.
7.
CONCLUSION
A dialogue mechanism or a consultative council is but the first step of a continuous process, not a
solution in itself. They provide tools that are aimed at helping democratic institutions to respond
to and resolve differences of interests between majorities and minorities which are normal in
societies. In other words, they are intended to assist States in complying with their political or
legal obligations such as those mentioned in OSCE commitments to ensure the effective
participation of minorities in public affairs and address national minority issues in a constructive
manner, by peaceful means and through dialogue among all parties concerned. At the same time
this is likely to lead to the strengthening of links of loyalty to the State and to the wider society of
which the minorities are a part. By getting minorities actively involved in the decision-making
processes that affect their interests, and by State authorities thus demonstrating their genuine
concern for and willingness to try to address their interests, authorities will be able to reinforce
among minorities that it is “their” State as well as that of the majority. As other speakers have
mentioned, a State which acknowledges and takes into account the interests of minorities can
60
enhance their sense of loyalty by compensating for the difficulties affecting the effective
participation of minorities in political and public life. Authorities can, for example, make some
kind of arrangement for minority representatives to have some special input, or even control, over
matters which specially affect them.
This is not so exceptional as it may initially seem, since most States of Europe and in many
other parts of the world have some kind of dialogue mechanism or consultative body in place for
minorities and government, usually at the national level and often also at the regional and even
local levels.
From the practices in this area in a number of countries, it seems that the establishment of
a special commissioner on ethnic issues, or a consultative or advisory body for minorities, helps
considerably in identifying, analysing, and resolving problems related to minorities.
Dialogue mechanisms contribute to compliance with international obligations. They
appear important in order to provide for the input of minorities on policies affecting them. Neither
governments nor minorities should assume that once a mechanism or body comes into place,
situations will immediately improve. Rather, dialogue mechanisms and consultative bodies
should be seen as “confidence-building measures” which will take time to reach a satisfactory
level of understanding and confidence to operate properly, and which will be prone to setbacks
and disappointments in the initial periods of operation. This is why some minorities in a number
of countries in Central and Eastern Europe have expressed frustration at the lack of results in
“improved” minority policies. Any dialogue, any confidence-building measure is a process with
concrete results that can only be measured in the long run.
In the short term, it is the very existence and functioning of a council or other dialogue
mechanism that constitutes a confidence-building measure between public authorities and
minorities. Minorities who might otherwise be excluded from the political process or denied the
possibility of participating effectively in public affairs that concern their interests have the
opportunity of having input and of playing a role as dialogue partners.
Allowing minorities to participate to a greater extent in the policy-making process
promotes their further integration into society. It seems that, in addition to special initiatives such
as guaranteed minority representatives in parliament, democracy is more likely to manage ethnic
differences successfully if it includes a broader participation of all citizens in the regular process
of government. Such practices can prevent radical elites from resorting to disruptive ethnic
mobilization.
As pointed out by Nobel Prize-winning economist Sir Arthur Lewis, the primary meaning
of democracy is that all who are affected by a decision should have the chance to participate in
making that decision either directly or through chosen representatives.
61
The creation of advisory or consultative councils and other dialogue mechanisms provide a
process by which minority representatives and public authorities can find the most reasonable,
practical and appropriate ways for minorities to participate effectively in these decisions in
countries as diverse as Estonia, Romania, Austria or Canada.
62
APPENDIX
The following information has for the most part been obtained from the Council of Europe report entitled “Overview
of Forms of Participation of National Minorities in Decision-Making Processes in Seventeen Countries”, Minorities
Unit of the Directorate of Human Rights, Council of Europe, Strasbourg, February 1998.
ALBANIA
[government office]
Round Table of Dialogue for Minority Issues (until recent upheaval in the country). Established for the Council of
Ministers under the auspices of the Office for Minorities, a governmental institution under the authority of the
Minister of Foreign Affairs.
BELARUS
[council with minority representatives]
Coordinating Council for Minorities, established under Regulation No. 29 of the Cabinet of Ministers on 18 January
1995. The Council coordinates the activities of government departments and central administrative bodies as well as
in the case of NGOs in the sphere of international relations. Its mandate includes combining State and minorities’
interests, developing the culture and education of minorities, developing ties between Belarus and kin-States.
Minorities that are officially included are Poles, Russians, Ukrainians, Jews, Tatars, Moldavians, Azerbaijanis,
Armenians, Germans, Lithuanians and Koreans.
BULGARIA
[government office]
National Council on Ethnic and Demographic Issues established on 4 December 1997, Decree No. 449 of the Council
of Ministers. Chaired by a Deputy Prime Minister, representatives of ten ministries at the vice ministerial level, four
related government agencies and NGOs representing minorities. Acts as a body for consultations, cooperation and
coordination between governmental agencies and NGOs. Its mandate includes the elaboration and the implementation
of a national policy with respect, among other things, to the protection and promotion of tolerance and understanding
between Bulgarian citizens belonging to different ethnic and religious groups. Relevant NGOs may in theory
participate in the Council if they are registered under the Persons and Family Act.
[council/round table with minority representatives]
Public Council on Ethnic Issues and on the Situation of Bulgarians Abroad operates under the President. It consists
of intellectuals and public figures. Convened by the President to deliberate and give opinions.
CROATIA
[government office]
Government Office for Ethnic and National Communities or Minorities established by government regulation. It
proposes measures for the protection of the rights of minorities and models for peaceful inter-ethnic relations. It also
organizes fora for discussion and dialogue between the government and minorities as well as advises the government
on draft legislation and minorities.
63
Council of Ethnic and National Communities or Minorities in The Republic of Croatia established pursuant to Article
43(1) of the Croatian Constitution and Article 4(2) of the Constitutional Law on Human Rights and Freedoms and the
Rights of Ethnic and National Communities or Minorities in Croatia. The Council serves as a coordinating and
advisory body of representatives of “registered” minority communities (Italians, Czechs, Slovaks, Germans,
Austrians, Jews, Slovenes, Albanians, Muslims, Montenegrins, Macedonians, Serbs, Hungarians, Romanies,
Ruthenians and Ukrainians). The chair and vice-chair are elected by a majority of Council members for a one-year
term. It meets on a regular basis (four times a year) and also additional extraordinary sessions.
The Council monitors the implementation of policies designed to maintain and promote the protection of minorities as
well as considers and takes positions on draft legislation and regulations dealing with the protection of minorities. It
may also submit opinions, requests and proposals to Parliament, government departments and other bodies.
CZECH REPUBLIC
[government office]
Office of the Inter-Ministerial Commission for Roma Community Affairs is made up of two government officials.
Secretariat of the Council for National Minorities is composed of three public officials and operates under the office
of the Minister. The Chairman of the Council has the rank of Minister without portfolio.
Council for National Minorities of the Czech Republic Government, established under Government Resolution No.
259 of 11 May 1994. The Council participates in the preparation of government measures affecting the rights of
national minorities, presents opinions on draft legislation and prepares recommendations to the government. It also
has as part of its mandate cooperation with regional self-governing bodies. The Council is composed of twelve
minority representatives (three Slovaks, three Roma, two Poles, two Germans, one Hungarian, one Ukrainian), six
State representatives (from the ministries of Interior, Foreign Affairs, Finance, Culture, Work and Social Affairs,
Education Youth and Sports), one representative of the Chamber of Deputies and one representative of the Office of
the President. A Senate representative has observer status.
Inter-Ministerial Commission for Roma Community Affairs, instituted following Government Resolutions No. 581 (17
September 1997), No. 640 (15 October 1997) and No. 686 (29 October 1997) brings together seven members of the
Roma community, as well as ten Deputy-Ministers from the government side and an Executive Vice-Chairperson.
The Commission reviews proposed governmental measures dealing with the Roma and considers the effectiveness of
existing State measures. It is also involved in collecting relevant data, and cooperates with Roma and other
organizations in the preparation of assistance projects or programmes.
ESTONIA
[government office]
There is a Ministry of Nationalities.
Presidential Consultative Round table was established by the President of Estonia in 1993 to debate issues concerning
national minorities, prepare recommendations and proposals concerning problems of national minorities and noncitizens and address problems relating to Estonian language acquisition and use, as well as the preservation of the
64
cultural and linguistic identity of national minorities. Membership is made up of about fifteen persons representing
the Russian community, the Estonian Union of National Minorities and political parties.
HUNGARY
[government office]
In addition to a Ministry for Minorities and an Ombudsman for the Rights of National and Ethnic Minorities (elected
by the National Assembly), there is an Office for National and Ethnic Minorities set up in 1990 by special decree. It
includes a Department for Roma issues, a Department of Rapporteurs of National Minorities, and a Department for
Legal Issues and Minority Self-Governments. The Office is involved in the drafting of relevant legislation, and
shaping minority policies. It maintains exchanges with minority organizations and the Ombudsman.
The Round Table of Hungary’s National and Ethnic Minorities is a consultative body set up by minority organizations
to permit a dialogue between minorities and State authorities, but has been largely superseded since the creation of
national minority self-governments who have largely taken over this function.
There were at the start of 1998 eleven National Minority Self-Governments and around 800 local minority selfgovernments. These legal entities are vested with administrative authority.
LATVIA
[government office]
Division of National Affairs (Department of Public and Religious Affairs of the Ministry of Justice), founded in April
1991. Its mandate includes cooperation with minorities, State institutions, municipalities and other parties, including
the Association of National Cultural Societies. The Division is also mandated to clarify the needs of national
minorities, propose solutions to minority problems, and gather relevant information, as well as serving as a forum for
monthly meetings of the chairs of national cultural societies.
Presidential Consultative Council of Nationalities, established in 1996, gathers information relating to minority issues
and provides a mechanism for the involvement of nationalities in finding solutions to their problems, as well as to
discuss upcoming legislative changes. It may also present recommendations and suggestions. The Council
membership consists of individuals from minority organizations, State institutions and members of the Saeima
(Parliament) Standing Committee on Human Rights.
LITHUANIA
[government office]
Department of Regional Problems and National Minorities is a government office which provides advice on
legislation and addresses problems involving national minorities, and multi-ethnic regions. Its mandate includes the
integration of minorities monitoring the implementation of their rights. In addition to educational and cultural issues,
the Department organizes a number of minority projects and data collection.
65
Council of National Communities is an advisory body under the Department of Regional Problems and National
Minorities where discussions may lead to suggestions and proposals being made to legislative authorities. It is made
up of twenty-eight persons from nineteen minority groups (groups over 100,000 have three representatives, groups
between 10,000 and 100,000 have two, and all others one).
MOLDOVA
[government office]
Department of National Relations established by the Government to supervise the implementation of minority
legislation, act as an ombudsman between public officials and minority organizations and assist minorities in
maintaining their language and traditions.
Coordinating Council operates under the Department of National Relations and serves as a consultative body to
involve minorities in the legislative process. It is made up of representatives from minority organizations.
POLAND
[government office]
Office for Culture of National Minorities is a government body which was established to provide assistance to
minority organizations in the preservation of their culture and to prepare material on international standards on the
protection of minorities.
None
ROMANIA
[government office]
Department for the Protection of National Minorities has four directorates (Public Relations, Mass Media and
Protocol; Legislation; Relations with Civil Society and International Bodies; Financial Analysis and Assistance) and
one specialized office (National Office for Roma). It has a large number of functions, including the elaboration of
draft legislation in the area of national minorities, and consideration of legislation and other measures that impact on
minorities in light of the recommendations of the Council of National Minorities. State funding of minority
organizations as provided under Act 72/1996 is handled through this Department. It also considers complaints from
individuals or organizations concerning compliance by public institutions of minority rights, etc.
Council of National Minorities was revamped by Governmental Decision 17/31 January 1997. The Council operates
with its own budget and has regular meetings every three months. It is also subdivided into six commissions
(teaching, science and youth; culture, religion and mass media; legislation and administration; social and economic
problems; defence, NGOs, domestic and foreign affairs; financial affairs). The Council includes representatives from
seventeen recognized minorities. Its main functions involve support for minority organizations, addressing legal,
administrative, and financial minority problems, informs the Department of problems discussed by the Council on a
66
regular basis, and presents projects for new legislation and government measures. It also closely works on draft
legislation with government departments, including among others the submission of proposals concerning the
adoption of improved administrative measures to address minority issues or problems.
SLOVAKIA
[government office]
None
Council for Nationalities was set up pursuant to Government Resolution No. 111 of 21 February 1995. It is made up
of representatives from eleven minority cultural associations, officials from six State departments and experts from
the Academy of Science and other research institutes. It acts in an advisory capacity to the Government on draft
legislation, as well as a forum for discussion and dialogue between Government and minorities. It may also act in an
“ombudsman” capacity in minority matters.
SLOVENIA
[government office]
Office for National Minorities is mandated with ensuring State compliance with the constitutional and legal rights of
the Hungarian, Italian and Roma minorities.
There is a Governmental Commission for National Minorities and a Governmental Commission for Roma. No
additional information.
FORMER YUGOSLAV REPUBLIC OF MACEDONIA
[government office]
Human and Minority Rights Department at the Ministry of Foreign Affairs deals with human and minority rights
issues. More specifically, it cooperates with other government departments that involve minority matters.
Council for Inter-Ethnic Relations was established by Assembly Decision No. 41/93, with the President of the
Assembly acting as Head of the Council. Members of the Council are also elected by the Assembly. It includes two
representatives from the Macedonian, Albanian, Turkish, Roma and Vlach communities, and two from other
minorities (Serb and Bosnian). It reviews issues of concern in the area of inter-ethnic relations and makes appraisals
and proposals to the Assembly which must consider them and make decisions on them. The Assembly must also
formally take a position on issues addressed to it by a decision adopted by a majority of the Council.
67
UKRAINE
[government office]
State Committee of Ukraine for Nationalities and Migrations was created on 26 October 1996 by Presidential Decree
to represent and protect rights of national minorities and to assist dialogue between government and minorities. It
provides advice to the Government on draft legislation, as well as organizes specific minority projects and training.
Council of Representatives of All-Ukraine Public Communities of National Minorities holds one regular meeting a
year, but may also hold extraordinary meetings. Its functions include implementation of cultural and educational
programmes and projects as well as ensuring that national minority rights under Ukrainian legislation are respected.
68
BIBLIOGRAPHY
Harris, Peter & Ben Reilly (eds.), Democracy and Deep-Rooted Conflict: Options for Negotiators,
Stockholm: International Institute for Democracy and Electoral Assistance, 1998.
Horn, Frank (ed.), Minorities and Their Right of Political Participation, Rovaniemi: Juridica
Lapponica Publications, University of Lapland, 1996.
Lijphart, Arend, “Self-Determination versus Pre-Determination of Ethnic Minorities in PowerSharing Systems”, in: Will Kymlicka (ed.), The Rights of Minority Cultures, Oxford: Oxford
University Press, 1995, pp. 275-287.
Report from the Seminar on Minority Rights and Mechanisms Facilitating Government-Minority
Dialogue, Riga, Latvia: Latvian Center for Human Rights and Ethnic Studies, National Human
Rights Office, Latvia University Faculty of Law Institute of Human Rights, Ministry of Justice
Section on Nationality Affairs; and Foundation on Inter-Ethnic Relations, Raoul Wallenberg
Institute of Human Rights and Humanitarian Law, 16 May 1996.
Self-Government in Hungary: The Gypsy/Romany Experience and Prospects for the Future,
Princeton, New Jersey: Project on Ethnic Relations, 1998.
Tamir, Yael, Liberal Nationalism, Princeton, New Jersey: Princeton University Press, 1993.
de Varennes, Fernand, Language, Minorities and Human Rights, The Hague/London/Boston:
Kluwer Law International, 1996.
de Varennes, Fernand, “Towards Effective Political Participation and Representation of
Minorities”, Working Paper, United Nations Working Group on the Rights of Minorities, UN Doc.
E/CN.4/Sub.2/AC.5/1998/WP.4, 28 May 1998.
69
70
Implications of Good Governance in Plural Societies
IMPLICATIONS OF GOOD GOVERNANCE
IN PLURAL SOCIETIES
Rein Müllerson
Professor of International Law, King’s College, University of London
1.
GOOD GOVERNANCE: MEANING AND CONTENT
The term “good governance” is wide and elusive. The United Nations Development Programme
(UNDP), for instance, defines “good governance” as “the exercise of political, economic and
administrative authority in the management of a country’s affairs at all levels.”1 It concentrates on
the following characteristics of good governance: participation; the rule of law; transparency;
responsiveness; consensus orientation; equity; effectiveness and efficiency; accountability;
strategic vision. These are all good things, like God, motherhood and apple pie. Most people
would agree with all of them. However, the devil is in the translation of these rather general
characteristics or requirements into concrete measures. Some of these characteristics (e.g.,
participation, consensus orientation, equity, and — I would like to emphasize — strategic vision)
acquire special importance in plural societies, i.e. in societies with significant ethnic or religious
heterogeneity. In my presentation I will concentrate on some implications of good governance in
such societies.
2.
MINORITIES AND GOOD GOVERNANCE
In plural societies one of the essential components of good governance is the ability of the State
and also of civil society and even the private sector to have satisfactory solutions to issues and
problems concerning ethnic or religious minorities.2
This is an important political issue that penetrates all the domains of societal relations. As
a lawyer, I have to admit that law in the area of minority rights is of high political sensitivity and
there is no escape from that. This has to be openly accepted. No decision-maker would be able to
resolve minority problems on the basis of a strict and detailed legal code, even if there were one.
Solutions on minority issues need less legal rigour than political flexibility. Of course, political
flexibility has to be exercised within the framework of broad legal principles whose application is
tailored to the specific conditions of a given society. Traditional (adversarial) legal mechanisms
that are crafted to find and determine the consequences of violations of law are not the most
1
“Governance for Sustainable Human Development”, UNDP Policy Document, New York: UNDP, January 1997,
pp. 2-3.
2
In most contemporary European societies, with the prominent exception of Ireland, ethnic divide is usually more
significant than religious one, though religion often pays important role in exacerbating divisions in many countries.
71
suitable for dealing with delicate problems of minority rights and interests.3 A more effective
alternative is found in the process-oriented approach which seeks not so much to condemn wrong
doings as try to find solutions through dialogue, consultation, monitoring and compromise. There
is no ultimate solution to minority problems; a “resolved” issue often creates new problems.
Moreover, differences will always exist in dynamic plural societies. The democratic response to
these problems is often a continuous, changing and possibly everlasting process.
Differently from (individual) human rights issues, solutions for minority problems are
much more difficult to standardize at the international or even regional (e.g., European) level.
Sometimes even within the same country different minorities need to be treated differently. I
would say that while persons belonging to minorities have to be treated equally with those who
belong to the majority, this does not mean that all the minorities have to be treated in the same
way. Minorities, their characteristics, needs and interests differ much more than those of
individuals. Some minorities are huge, while others are small, some are living compactly while
others are scattered all over the country, some are recent immigrants while others are indigenous
people, and so on and so forth. Moreover, some are quite content with their situation while others
put forward radical demands. Therefore, there is no single solution for such a variety of
situations. For example, some minorities may seek territorial autonomy, while others may be
satisfied with education in their language or having newspapers or radio and television channels.
Article 27 of the Covenant on Civil and Political Rights, the only legally binding general
treaty obligation on minority rights, read in the context of Article 26 prohibiting discrimination,
contains two quite clear requirements: persons belonging to minorities must be treated equally
with those who belong to the majority and minorities have the right to maintain and develop their
identity. These two requirements are clear and non-controversial only on a rather general and
abstract level. However, difficulties arise immediately when one tries to translate these general
postulates into more detailed normative prescriptions. This is especially so with the second of
these requirements: the right of minorities to the preservation and development of their identity.
What is identity, what is needed to preserve and develop it and who would decide these and other
issues?
Not only do I not have precise answers to these questions but, moreover, I believe that if
one has clear and non-controversial answers to all these abstract questions one is inevitably
wrong. These questions have to be put and answered, and constantly re-put and re-answered, in
the process of concrete dialogue between majorities and minorities where above-mentioned
principles like participation, consensus and the necessity of compromise play important roles.
Article 27 (or international law generally for that matter) does not require granting to
minorities more rights than those enjoyed by the majority or any special privileges (except in
cases of affirmative action programmes for indigenous or other disadvantaged groups). Persons
belonging to the majority also have the right to maintain and develop their identity. The point,
3
Moreover, in majority-minority conflicts there is hardly ever a clear-cut division between villains and innocents.
Minorities, and their political and military leaders, are certainly not angels.
72
however, is that even in democratic plural societies the “one man, one vote” system, especially
when coupled with a single State language and unitary structure of the State, may make it very
difficult for minorities to maintain their identity. The majority culture, religion or language may,
even without special efforts from the part of the majority, overwhelm minority culture, traditions,
language or even religion. Therefore, measures may be necessary which, while not granting any
privileges to minorities, help to create conditions such that both minorities and majorities are able
in terms as equal as possible to develop their respective identities.
Generally speaking, there are only three logical solutions to minority issues in a plural
society while maintaining its democratic nature: (a) to eliminate or substantially reduce the plural
character of the society through assimilation; (b) a consociational solution that recognizes and
accepts plurality; (c) separation into two or more separate States. 4
The first solution is practically impossible to achieve, especially in the short run and using
exclusively democratic and human rights friendly means. Walker Connor has suggested that there
are no examples of recognized national groups in this century having voluntarily assimilated to
another culture.5 Historically, homogeneity was achieved through processes that now are defined
as ethnic cleansing or genocide. These are the options that are not acceptable any more.
The last option (separation), even if resolving some of the minority problems, practically
always creates new ones. Moreover, ethnically homogeneous States can be created in most cases
only through ethnic cleansing. Adrian Hastings observes:
While the original thrust into nationalism was an anti-dynastic and democratic one,
nevertheless, once the nationalist bandwagon was rolling, it could largely drop its
democratic shaping and refashion itself in ethnic terms, a nationalism had effectively
to exclude large sections of the population of an area from full citizenship. …
Nationalism then came up against a second hard fact — that the peoples of much of
Europe were in reality not divided along the neat lines presupposed by a viable ethnic
nationalism, but were, on the contrary, almost inextricably mixed together.6
As the former High Representative in Bosnia, Carl Bildt writes, challenges stemming from
inter-ethnic (religious) conflicts “cannot be met by setting up new national States, which tend
sooner or later towards the destructive, illiberal and inhumane ideal of ethnic purity. In the longer
term, the only way forward is to extend to the Balkans the frameworks and institutions of
European integration.”7
4
See, e.g., Arend Lijphart, Democracy in Plural Societies. A Comparative Exploration, New Haven, Conn.: Yale
University Press, 1977, pp. 44-45.
5
Walker Connor, “Nation-Building or Nation-Destroying”, World Politics, Vol. 24, 1972, pp. 350-51.
6
Adrian Hastings, The Construction of Nationhood: Ethnicity, Religion and Nationalism, Cambridge, U.K.:
Cambridge University Press, 1997, p. 120.
7
Carl Bildt, “Holbrook’s History. Review Essay”, Survival, Vol. 40, No. 3, p. 190.
73
Though it is not possible to completely exclude secessions from existing States (which in
any event are always to be pursued non-violently through negotiation), the best solution for
ethnically plural societies is some combination of elements of consociational democracy, e.g.
governments including the political elites of all the main ethnic groups, with mutual veto on vital
minority issues, proportionality as the principal standard of political representation, and a high
degree of autonomy for each segment to run its own affairs.8 These elements need not all be
present. Their choice depends on concrete circumstances and is always political. However,
without some form of accommodation of legitimate concerns and interests of minorities —and
without the fullest respect for their human rights — it is difficult to achieve integration in a plural
society by democratic means.
Certainly, governments in plural societies are naturally concerned with actual or possible
instability stemming from deep social, ethnic or religious divisions. Therefore, some of them try
to overcome these divisions through policies of forcible assimilation. Assimilation presumes
elimination of differences by means of changing the identity of a minority. Often the very
existence of minority identity is denied; attempts to use their own language in public or to profess
their religion are restricted or completely suppressed. However, assimilation policies more often
than not do not simply work; they are counter-productive. Adrian Hastings writes that “the more a
modern State defines itself in terms of a single central authority or in terms which at least appear
to exclude or question the identity of one of its constituent ethnicities, the more it blocks the latter
from a progressive transition into one national life, and forces instead to develop a self-protective
movement, which we call nationalism, demanding the right of separate self-determination, to be a
nation apart.”9 Hence, assimilation policies become counter-productive to aims pursued.
Therefore, instead of assimilation one has to speak of integration of minorities.
Integration, by contrast, starts from the recognition and acceptance of existing differences.
Arend Lijphart writes: “It is in the nature of consociational democracy, at least initially, to make
plural societies more thoroughly plural. Its approach is not to abolish or weaken segmental
cleavages but to recognize them explicitly and to turn the segments into constructive elements of
stable democracy.”10 Integration policies consolidate political and economic unity of society
without eliminating its cultural, religious or linguistic plurality; integration is achieved not by
means of melting differences but rather through open recognition of these differences and their
accommodation through respectful solutions. The Finnish example of finding the solution for the
Swedish minority in the Åaland Islands, as well as in the country as a whole, may serve as a
positive example of how complicated minority issues can be resolved.
Integration, of course, means not only open recognition of cultural, religious or linguistic
differences. This is only the first step. Integration also presumes the creation and development of
common loyalties. In a plural society, such loyalty cannot be religious, ethnic or even linguistic,
though in most cases a common language that does not exclude the existence of other (minority or
8
Arend Lijphart, op. cit., p. 25.
Adrian Hastings, op. cit., p. 30.
10
Ibid., p. 42.
9
74
regional) languages is conducive to integration. Common loyalties have to be rather political and
civic. Common loyalty is expressed first of all in common citizenship. Exclusion of minorities
from citizenship is highly detrimental to the development of a common loyalty. Such loyalty can
hardly emerge if minorities are excluded from participation in the political life of the country or
formal relegation to second class status. In the field of culture or religion, what is needed is
tolerance, understanding and respect but not uniformity. Sometimes the coexistence of common
loyalties and different identities are expressed through the notion of “hyphenated” citizens (e.g.,
Hispanic-Americans). A recent MORI opinion poll taken across Great Britain illustrated that
around eighty percent of people felt some loyalty to the ideas of Britain and England, Scotland
and Wales.11
This summer in Estonia, I noticed an interesting change among young people. Although
my observation is rather personal and therefore somewhat limited, I discovered that there are more
and more young people who speak both Estonian and Russian without accent. These are ethnic
Russians whom I would call Estonians of Russian origin, or Russian-Estonians, or simply
Estonians. Obviously, they have not lost their ethnic identity having acquired a new identity. I
see this as encouraging progress. Clearly, integration works.
There are many reasons why governments may not like some elements of consociational
democracy. Power-sharing arrangements are always costly and time-consuming. Sometimes it
may be difficult for political leaders who have used the nationalist card in the political struggle
(many in new-born democracies have done it) to agree on compromises necessary in plural
societies. Autonomy is even considered to be dangerous, as a step toward secession.12 But what
are the alternatives? They are usually much worse. To suppress legitimate concerns, interests and
aspirations creates serious negative reaction which may even ultimately threaten the State.
Policies of integration, by contrast, are respectful and fully compatible with democratic
governance. Moreover, they promote stability and security.
3.
THE CHANGING ROLE OF THE STATE AND MINORITIES
Some experts have noted that consociationalism has seldom worked successfully. However, as I
will try to show below, these authors did not take into account changes in international society,
especially taking place in Europe.
Leo Kuper wrote that “cultural diversity or pluralism automatically imposes the strictest
necessity for domination by one of the cultural sections. It excludes the possibility of consensus,
or of institutional integration, or structural balance between the different sections, and necessitates
11
The Economist, 3 October 1998, p. 35.
I believe that the indiscriminate reliance on the uti possidetis principle has played a negative role in the process of
finding solutions to inter-ethnic or inter-religious problems. This principle was acceptable for Latin America and was
applied in Africa in the process of decolonisation since no better principle was available.
12
75
nondemocratic regulation of group relations.”13 Consequently, for Kuper a plural society can be
stable and not crumble only if one of the sections dominates since stability is not compatible with
plurality and equal political participation. Accepting this logic, Charles Tilly subsequently
observed the following:
Almost all European governments eventually took steps which homogenized their
populations: the adoption of State religions, exclusion of minorities like the Moors and
the Jews, institution of a national language, eventually the organization of mass public
instruction. The tolerance of States of South-Eastern Europe for linguistic, cultural, and
religious diversity stood in sharp contrast to the intolerance of their North-Western
brethren. And surely stood in the way of effective State-making. The failure to
homogenize increased the likelihood that a State existing at a given point in time would
fragment into its cultural subdivisions at some time in the future.14
Kuper's and Tilly's statements are of course factually true. Historically, homogenization
(almost never complete of course) was often achieved through practices that nowadays are defined
as ethnic or religious cleansing. Western Europe had gone through its ethnic cleansing when such
practices were considered normal. There is also little doubt that it is easier to carry out democratic
reforms in a more homogenous society than in a less homogenous one. But does this mean that
heterogeneous States in Europe are doomed to pursue policies of assimilation or exclusion?
First of all, such policies are morally and legally unacceptable in Europe at the turn of the
Millennia. “Ethnic” or “national” democracy in contemporary Europe would be akin to something
like slave-owners democracy in Ancient Greece, which from the point of view of contemporary
standards means no democracy at all. Secondly and most importantly, the answer to this question
depends on whether we consider plural societies in isolation (both temporal and spatial) or in the
concrete historical and geographic setting.
Taken in isolation, it would be possible to argue that at least some States in Eastern and
Central Europe may have to go through the processes of homogenization similar to those which
some of their more advanced Western neighbours went through hundreds of years ago. However,
these States do not exist — and should not be considered as existing — in isolation. Nor do they
wish this. Therefore, the search for solutions to minority problems has also to be put into a wider
(international and regional) context. In the European context, policies of assimilation and
exclusion are contrary to international law and moral norms. In contemporary European society
democracy and diversity, as well as stability, have become a norm, while ethnic (or religious)
purity and the use of means of achievement of such purity are unacceptable as contrary to shared
values.
13
Leo Kuper, “Plural Societies: Perspectives and Problems” in: Kuper, Leo & M.G. Smith (eds.), Pluralism in Africa,
Berkley: University of California Press, 1969, p. 14.
14
Charles Tilly, “Western State-making and theories of political transformation” in: Charles Tilly (ed.), The
Formation of National States in Europe, Princeton, New Jersey: Princeton University Press, 1975, pp. 43-44.
76
There are two simultaneous, contradictory and interdependent processes gathering
momentum in the world that both put considerable strain on the State. These are the processes of
globalization and fragmentation. The last is stimulated by the search for identity by many ethnic
or religious groups and has considerable effect on minority issues. However, this effect differs
from State to State, from region to region. States do not respond to these impulses in the same
way. Not only are minorities very different but States too (notwithstanding the principle of
sovereign equality) are de facto quite unequal. Robert Cooper distinguishes in the contemporary
world three categories of States that exist side by side: pre-modern, modern and postmodern.15
Prominent examples of pre-modern States are Somalia, Afghanistan, Liberia. Many others are
struggling in this post-imperial chaos. Most States in the world belong to the modern world with
its balance of power politics, non-interference principle and other attributes of sovereignty. The
postmodern world, to which Western European States belong, is characterized by: the breakdown
of distinctions between domestic and foreign affairs; mutual interference in (traditional) domestic
affairs; not only formal rejection of the use of force for resolving disputes among themselves, but
the very impossibility of foreseeing realistic scenarios of such use of force; the growing
irrelevance of borders; and mutual security based on transparency, openness and interdependence.
Pre-modern States are struggling to create or maintain their statehood. They often fight civil
wars over ethnic or religious issues. In the circumstances when the State is drawn between efforts
to centralize and chaos, ethnic or religious diversity really constitutes a threat to governmental
policies of maintaining or increasing the existing level of centralization.
Modern States are usually also quite centralized internally. They are often drawn between
choices of exclusion and inclusion, between policies of assimilation (denial of minority rights) and
democratization which in plural societies more than in homogeneous ones means decentralization.
Sometimes there are direct links between processes of democratization and decentralization. The
World Bank's 1997 Report, for example, concludes: “Decentralization of power and of spending,
coupled with democratization, has dramatically transformed the local political landscape in Latin
America, in what some have called a ‘quiet revolution’. A new model of governing is emerging in
the region.”16
Equally important for minority problems is the international position of modern States. John
Gerard Ruggie writes that “the most distinct feature of modernity in international politics came to
be: a particular form of territoriality — disjointed, fixed, and mutually exclusive — as the basis
for organizing political life.”17 This exclusive, fixed territoriality which characterizes more than
anything else the modern international system is in the process of changing at least in some parts
of the world and first of all in Europe.
15
Robert Cooper, The Post-Modern State and the World Order, London: Demos, 1996.
“The State in a Changing World”, World Development Report 1997, Washington D.C./Oxford: The World Bank/
Oxford University Press, 1997, p. 166.
17
John G. Ruggie, Constructing the World Polity: Essays on International Institutionalization (The New International
Relations), London/New York: Routledge, 1998, p. 192.
16
77
In the Western European post-modern space, to which many Central and Eastern European
States aspire to belong, minority issues can be and should be resolved differently from how they
are dealt with in modern or pre-modern States. States in the postmodern space are ready to
devolve many functions to sub-national units, pooling at the same time, other functions within
international organizations (e.g., the EU, NATO). Both of these processes (devolution and
pooling) may facilitate the search for minority problems. Internally, States become less
centralized which means, inter alia, that minorities can and even must resolve issues concerning
their culture, language and religion with less State interference than it is happening now. “The
State is central to economic and social development, not as a direct provider of growth but as
partner, catalyst, and facilitator.”18 The State should create and maintain a legal framework within
which minorities themselves deal with various issues such as culture and religion. It should go
without saying that representatives of the majority and all the minorities participate in the
decision-making at national level. Minorities in liberal-democratic countries, especially in those
which are part of the European post-modern space, are usually able to acquire considerable
autonomy or self-governance. At the same time, such self-governance is often more in form than
in substance. In an integrated Europe of liberal democratic States, minorities may have better
chances to become self-governing, but they have also less incentive to seek complete
independence. Simply, it matters less and it may cost more. Jonathan Glover has suggested that
“a worthwhile response to the problem of blurred or disputed geographical boundaries may be the
blurring of the conceptual boundaries of the nation state.”19 This is happening in Western Europe.
Minorities often look with suspicion and apprehension at their immediate majority. They
feel more comfortable when their immediate majority is not the only and final arbitrator.
Therefore, integration of European States creates conditions more favourable and more promising
than anywhere else for the coexistence of pluralism, democracy and stability.
Post-modern States experiment with various forms of accommodation and integration of
minorities. As an ongoing experiment, I would like to refer to some aspects of the devolution
processes in Scotland and Wales that inevitably affect also England and the peace process in
Northern Ireland, which, from my point of view, are all of special importance because the United
Kingdom and its political system has traditionally been considered by analysts as an example of
“the government versus opposition” or “adversarial” model not conducive to introduction of
elements of consociational democracy. This model is often even referred to as “the British
model”. However, things have changed considerably within only a year or so.
4.
THE RECENT UK EXPERIENCE: DECENTRALIZATION AND MINORITIES
There are very important processes under way in the United Kingdom. What is also interesting,
especially in the context of what was discussed above, is the involvement of the Republic of
Ireland in some of these processes. The purpose of my drawing your attention to these processes
18
“The State in a Changing World”, op. cit., p. 1.
Jonathan Glover, “Nations, Identity, and Conflict”, in: Robert McKim and Jeff McMahan (eds.), The Morality of
Nationalism, Oxford: Oxford University Press, 1997, p. 25.
19
78
is not to offer any recipes for other areas in Europe with inter-ethnic or inter-religious problems.
On the contrary, one thing that the current British-Irish initiative on Northern Ireland as well as
devolution processes for Scotland and Wales show once again is that all inter-ethnic (religious)
conflicts are so unique that an acceptable recipe for one situation may be completely out of place
for another. There is no second Northern Ireland in the world. The Scottish and the Welsh
situations are also quite unique. However, there are at least two things beyond the uniqueness of
these processes on the British Isles, which deserve to be emphasized. First of all, this is the
strategic vision of the problems by political leaders of different levels and backgrounds and the
search for non-standard solutions. For this, John Hume and David Trimble rightfully deserve the
Nobel Peace Prize for 1998. Neither strict unitarism nor sovereign independence with UN
membership for ethnic minorities or even traditional symmetrical federalism are necessarily the
only or best options. Secondly, principles such as participation20, consensus21, accountability,
transparency, and respect for human rights22, as appropriately applied in different contexts, are of
vital importance.
According to the devolution Bills for Scotland and Wales and that of the Belfast (Good
Friday) Agreement on Northern Ireland, each component part of the UK will have a different
relationship to Westminster. Scotland will have legislative devolution with tax-raising powers,
and Wales will have executive devolution. Northern Ireland, while remaining part of the UK, will
have institutional links with the Republic of Ireland especially through the North-South
Ministerial Council and the British-Irish Council. (The latter comprising “representatives of the
British and Irish Governments, devolved institutions in Northern Ireland, Scotland and Wales,
and, if appropriate, elsewhere in the United Kingdom, together with representatives of the Isle of
Man and the Channel Islands”.)
5.
CONCLUSION
I have only one remark in conclusion. Integration of liberal democratic States in Europe is
changing the context in which minority problems have been traditionally dealt with or, rather,
often suppressed. The State is not disappearing; even its importance is not diminishing. However,
the characteristics and functions of the State are changing considerably. In this new context, it is
possible to find solutions to minority problems within the liberal-democratic framework beyond
20
The Belfast (Good Friday) Agreement provides for “safeguards to ensure that all sections of the community can
participate and work together successfully”.
21
The Belfast (Good Friday) Agreement also contains arrangements “to ensure key decisions are taken on crosscommunity basis (parallel consent), i.e. a majority of those present and voting, including a majority of the unionist
and nationalist designations present and voting or a weighted majority (60%) of members present and voting,
including at least 40% of each nationalist and unionist designations present and voting”.
22
For example, the British and Irish Governments “recognise the birthright of the people of Northern Ireland to
identify themselves and be accepted as Irish or British, or both, as they may choose, and accordingly confirm that
their right to hold both British and Irish citizenships is accepted by both Governments and would not be affected by
any future change in the status of Northern Ireland”. All the participants of the Belfast (Good Friday) Agreement also
“recognise the importance of respect, understanding and tolerance in relation to linguistic diversity, including in
Northern Ireland, the Irish language, Ulster-Scots and the languages of various ethnic communities, all of which are
part of the cultural wealth of the island of Ireland”.
79
policies of assimilation or separation. These solutions do not come along automatically. What is
required is a combination of domestic and international (regional) efforts guided by strategic
vision, search for non-traditional solutions, as well as by principles such as participation,
consensus, transparency, respect for human rights, including everybody's right to identity. In the
OSCE region, good governance should aim to fulfil these requirements of the postmodern, liberaldemocratic State.
80
BIBLIOGRAPHY
Alfredsson, Gudmundur & Alfred de Zayas, “Minority Rights: Protection by the UN”, Human
Rights Law Journal, Vol. 14, No. 1-2, 1993, pp. 1-9.
Capotorti, Francesco, Study on the Rights of Persons Belonging to Ethnic, Religious and
Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1, New York: United Nations, 1979.
Castells, Manuel, The Power of Identity, Oxford: Blackwell, 1998.
Gellner, Ernest, Nations and Nationalism, Oxford: Blackwell, 1983.
Hannum, Hurst, Autonomy, Sovereignty, and Self-Determination; The Accommodation of
Conflicting Rights, Philadelphia: University of Pennsylvania Press, 1990.
Hastings, Adrian, The Construction of Nationhood: Ethnicity, Religion and Nationalism,
Cambridge, U.K.: Cambridge University Press, 1997.
Lijphart, Arend, Democracy in Plural Societies, New Haven, Conn.: Yale University Press, 1977.
Müllerson, Rein, Human Rights Diplomacy, London/New York: Routledge, 1997.
Packer, John & Kristian Myntti (eds.), The Protection of Ethnic and Linguistic Minorities in
Europe, Turku/Åbo: Åbo Akademi University, Institute for Human Rights, 1993.
“The State in a Changing World” World Development Report 1997, Washington D.C./Oxford:
The World Bank /Oxford University Press, 1997.
Thornberry, Patrick, International Law and the Rights of Minorities, Oxford: Clarendon Press,
1991.
81
82
Good Governance: Implications in the Economic Sphere
GOOD GOVERNANCE:
IMPLICATIONS IN THE ECONOMIC SPHERE
Tom Price
OSCE Coordinator for Economic and Environmental Activities
We have heard — and should continue to hear — a great deal about “effective participation” of all
social groups in the political process. One obvious precondition for effective participation is the
removal of any artificial barrier or handicap to such participation. Poverty is one such barrier.
“The disenfranchised poor” is not an accidental term. Politics is very often about the struggle
between “haves” and “have-nots”. Eliminating poverty is in the interest of all, not least because it
reduces the differences — and the potential for dangerous tensions — between those two groups.
Professor Bogdanor has recalled for us Lewis Carroll's important observation that “all shall
have prizes.” I will return to this maxim. Unfortunately, there are no easy recipes for the elimination
of poverty; many political systems have tried, and failed, to accomplish this goal. Methods of helping
to eliminate poverty in the long run might include improved educational opportunities, improved
employment opportunities, greater access to loans for starting up small business or for buying
property, and easier access to ownership. Not unimportantly, these are also means of helping to
integrate national minorities.
I will refer extensively to the U.S. experience in this regard over the past half-century, not as a
recipe for all OSCE participating States, but as a case study in which there have been a variety of
positive and less positive developments — often motivated by benevolent impulses, but sometimes
motivated by the fear of political or social unrest, violence, or even terrorism directed against the
State.
During and immediately after the second World War, the United States began to re-examine
its laws and practices in terms of its most visible minority, the African-American community. What
had previously been a widely (but never universally) accepted practice of segregating military units,
athletic teams, and even (in certain parts of the country) restaurants, clubs, and most importantly
schools was first questioned and then declared unconstitutional.1 The decades of rapidly growing
prosperity and social change which followed the War were not without their strains. I remember as a
young boy watching nationwide news coverage of the National Guard being called in to ensure the
integration of public schools in Little Rock, Arkansas. The desegregation and civil rights legislation
of the late 1950s and early 60s quickly produced demands for more; people of all races and ethnic
groups joined in marches and demonstrations demanding additional legislation and/or full compliance
with existing legislation.
1
See, e.g., Sweatt v. Painter, 339 U.S. 629, 1950; Brown v. Board of Education, 347 U.S. 483 1954; see, generally,
Juan Williams, Eyes on the Prize: America’s Civil Rights Years 1945-1965, New York: Penguin Books, 1988.
83
These rapid changes produced what sociologists called a “revolution of rising expectations”.
Because social, economic, and employment conditions for my country’s largest and most visible
minority were changing so radically, there was a growing sense of frustration at how much time it
took to reap the full benefits of these changes — as well, perhaps, at how long it had taken to bring
about even these few changes. There were violent race riots in many of America’s largest cities, as
well as a series of confrontations between moderate African-American leaders such as Martin Luther
King and more radical figures.
Both the violence and the increasingly apparent differences within the African-American
community made it clear that the legal measures taken until then were far from sufficient. There was
also a growing awareness of other disadvantaged minorities, whose numbers were rising rapidly:
Asian-Americans and Hispanic-Americans were increasingly vocal in asserting their rights. New
forms of legislation were introduced with this evermore diverse definition of “minority” in mind.2
The feminist movement of the 1960s and 70s helped ensure that this new legislation catered for
women as well, and we saw the introduction — in rapid succession — of concepts such as “Equal
Employment Opportunity” and “affirmative action.” Equal Employment Opportunity, often referred
to by its acronym (EEO), was exactly what its name implies: a body of legislation and best practices
designed to remove all barriers to employment based on gender, religion, race, ethnic origin, political
persuasion, etc..3 Within public sector institutions in the United States today, there is almost always
an EEO office or an EEO counsellor with whom employees (or would-be employees) can discuss
instances of real or perceived violations of EEO principles — which include not only initial
employment, but also things such as training opportunities, promotions, awards, recognition, and
even a work environment rendered hostile by discriminatory comments, remarks based on
stereotypes, and other forms of unacceptable (and now illegal) behaviour.
As a principle, Equal Employment Opportunity has been much less controversial in the U.S.
than the other programme mentioned above, affirmative action. The theory behind affirmative action
is that the playing field is not level for women and minorities — even when EEO principles are fully
implemented and all current barriers are removed. Historic, long-standing inequities in educational
opportunity and social position have made it more difficult for women and individuals belonging to
certain minorities to compete for jobs, scholarships to university, start-up loans for businesses,
mortgage loans for housing, etc. Steps have been taken to redress these differences by consciously
giving individuals belonging to these groups a “leg-up” in various ways. Examples include lowering
the minimum passing score on a university entrance exam or a pre-employment aptitude exam,
reserving a certain minimum number of places in a large company or a particular university for
members of one or more of these groups, applying less stringent conditions for loans of various types
to individuals in certain categories, etc. These efforts have met with mixed success, and have
increasingly come under legal challenge, since one of the most obvious effects of such measures is a
sort of “reverse discrimination”.4 In the public university system of California, for example, Asian2
See, e.g., Civil Rights Act of 1964, Title VII, 42 U.S.C. 2000e, 1998 (banning discrimination in employment based
on “race, color, sex, or national origin”).
3
Equal Employment Opportunity Act of 1972, 42 U.S.C. 2000e(j), 1998.
4
Carter, Stephen, L., Reflections of an Affirmative Action Baby, New York: Basic Books, 1991; Loury, Glenn, C.,
84
Americans perceived affirmative action as limiting their numbers in favour of blacks and MexicanAmericans and have in fact obtained more places at university after the voters rejected affirmative
action and insisted on an admissions policy for higher educational institutions based strictly on prior
academic performance.5
There is still a lively debate about affirmative action in the U.S. What, after all, is “merit” in
terms of entry into university? A major cosmetics company operating in California discovered that it
had very poor results in one major market sector until it employed people from the same ethnic
background as the people in that target sector. Its sales skyrocketed, not so much because of
linguistic competence, but because of the compatibility of culture. There is no standardized test for
employment which rewards one’s ability to, for example, “think Korean”, but the ability to do
precisely that may be vital to the success of a particular project or commercial venture.
This understanding has led to a growing appreciation of what American sociologists and
political scientists call “diversity”. The argument goes that in a multi-ethnic society, and in an
increasingly globalized economy, a school, a company, or a public institution which is as diverse as
possible is stronger — and more likely to succeed — than one which is not. People from different
backgrounds contribute different strengths, sensitivities, life experiences, and perspectives to a
classroom debate, to the development of a sales strategy, or to the formulation of foreign policy.6
Affirming the value of diversity has implications for many areas of public and private life. If
one views diverse classrooms as a goal worth striving for, the idea of bussing children from one part
of town to another may look different from the way it looked when an integrated classroom was
advocated strictly as a means of redressing past wrongs. To take a very different example, sports are
a big business in the United States. A good coach will always seek to build diversity into his or her
team. The coach will want some players who have speed, others with endurance, others who are
“real team players”, and others with individual flair, imagination, and/or leadership skills. Since no
one player combines all of these qualities, the coach who wants to build a winning team will, wisely,
seek to build diversity into it.
Increasingly, Americans of all ethnic origins are starting to see diversity as being in their own
self-interest. Companies that promote diversity through their recruiting and hiring practices, their
training programmes, their promotion and assignment policies, find that it pays off. It might be
possible to craft additional legislation in a way to ensure that diversity principles are applied across
the board, not only in education and private sector employment practices where it clearly brings
immediate benefits to its practitioners, but also in public sector personnel and procurement practices,
One by One from the Inside Out, New York: Free Press, 1995. Key U.S. cases include: Regents of the University of
California v. Bakke, 438 U.S. 265, 1978; Adaraud Constructors Inc. v. Pence, 515 U.S. 200, 1995.
5
California passed Proposition 209 on November 5, 1996, amending the State Constitution, art.1, 31(a) to bar “any
preferential treatment to any group on the basis of race, sex, color, ethnicity, or national origin in the operation of
public employment, public education, or public contracting.” See also, Hopwood v. State of Texas, 78 F.3d 932, 5th
Cir. 1996 (finding use of racial preferences in law school unconstitutional).
6
For arguments to this effect in the field of education, see, Amar, Akhil and Neal Katyal, "School Colors”, New
Republic, July 17 & 24, 1995, p. 25.
85
in housing policy (availability, financing, ownership, etc.) and — in countries which practice such
things — in urban and regional planning/development practices.
Let me close with one final thought. Neither in my country nor in most others is the value of
diversity immediately obvious to the majority of citizens. It is the responsibility of enlightened
governments to educate their publics about the value of diversity, to put building blocks into school
curricula from a very early age. Teaching the value of diversity helps ensure that “all shall have
prizes.” Teaching the dangers of any policies which oppose or discourage diversity involves not only
creating an increased awareness of recent history, but also cultivating a sense of the way in which
individuals and their communities and countries are increasingly interlinked and interdependent.
Possessing this sense in full measure has always been the hallmark of great communities, such as the
one that we are building together in today’s OSCE area.
86
BIBLIOGRAPHY
Amar, Akhil and Neal Katyal, “School Colors”, New Republic, July 17 & 24, 1995.
Carter, Stephen L., Reflections of an Affirmative Action Baby, New York: Basic Books, 1991.
“Ethnic Minorities in Central and Eastern Europe”: Guidelines and Recommendations Promoting
Their Employment", ILO-CEET Working Paper, No. 19, Geneva: International Labour Office, 1997.
“Governance for Sustainable Human Development”, United Nations Development Programme
Policy Document, New York: United Nations Development Programme, January 1997.
Loury, Glenn C., One by One from the Inside Out, New York: Free Press, 1995.
“Reconceptualising Governance”, Discussion Paper, No. 2, Management Development and
Governance Division, Bureau for Policy and Programme Support, New York: United Nations
Development Programme, January 1997.
Williams, Juan, Eyes on the Prize: America’s Civil Rights Years 1945-1965, New York: Penguin
Books, 1988.
87
88
Integrating Diversity: Effective Policies and Programmes
INTEGRATING DIVERSITY:
EFFECTIVE POLICIES AND PROGRAMMES
Miquel Strubell
Director, Institute of Catalan Sociolinguistics, Generalitat de Catalunya, Barcelona1
1.
INTRODUCTION
It is a pleasure and a privilege for me to discuss with you some of the effective policies and
programmes that integrate diversity within the State. I speak to you as a civil servant who, for the
last eighteen years, has been able to work in the framework of a regional structure (re)created as a
result of a joint process of democratization and decentralization, which I intend to present to you
briefly. I shall also concentrate on my professional field: that of language planning and policy
implementation.
In my experience, to achieve an integrated society where cultural and linguistic diversity
exists is largely a matter of accommodation. Accordingly, I shall structure my presentation as
follows:
• Accommodating diversity: who? A specification of the people are we talking about,
and the general context.
• Accommodating diversity: why? A brief look at some of the reasons for doing so.
• Accommodating diversity: what? The principles, general premises and systems to base
accommodation upon.
• Accommodating diversity: how? A brief look at some of the ways of doing so.
As you might expect, I will devote most of my attention to the last part: the “how”.
2.
ACCOMMODATING DIVERSITY: WHO?
Who does “diversity” apply to, in the context of this Conference? Most States in Western Europe
developed political structures in the seventeenth and eighteenth centuries (France, Spain, Great
Britain) aiming at uniformization of the population. This led to universal education, to a free
health service for all, to voting rights for all the population. But removing discrimination and
obstacles to personal development should not be done ignoring natural differences which people
are entitled to have. This is especially important when it comes to ethno-linguistic groups who
have often had their home in the same area for many generations. Often they are only
“minorities” as a result of the whims and accidents of history. (I shall not refer today to families
who have moved in recent times to their present place of residence). Some of them (such as
1
At the time of the conference Deputy Director, Department of Humanities and Philosophy, The Open University of
Catalonia.
89
Hungarians in Austria or Germans in Denmark) have a kin-State, a State in which their nationality
has sovereignty; others (so-called constituent nations, such as the Welsh or the Frisians) have no
kin-State anywhere in the world to give them technical support (teacher training facilities, school
textbooks, mass media, publishing houses, support for multimedia, software and audio-visual
industries, etc.).
3.
ACCOMMODATING DIVERSITY: WHY?
I would like to present four reasons for acknowledging diversity and also the sense of belonging to
a given territory and/or group that many have.
a) To bring politics closer to the people, in line with present trends throughout the New
Europe.
b) To make people — in this case, members of national minorities — happier. This is in
the interest of the State.
c) To build a peaceful society in which the State has earned the trust and the loyalty of its
citizens — including, of course, members of national minorities.
d) To draw on the asset of multilingualism and diversity, which all its potential advantages.
a) The first reason why it is important to accommodate diversity is that the democratic process
means bringing politics — the power to make decisions and the resources needed to implement
them — closer to the people. One of the big challenges that the European Union has right now
(and some of its member States as well) is the “democratic deficit”: people feel that they have no
say in decision-making. This has even led to occasional acts of violence.
Bringing politics closer to the people is really down-to-earth. Let us take some very simple
examples.
•
If a ball breaks a windowpane in a school classroom 400 km from the Ministry of
Education's offices, how soon will it get repaired?
•
If some of the bulbs on an airport runway have fused, and the airport is 400 km from the
Ministry of Transport's offices, how many planes will land in the fog before they are
replaced?
•
If the paint is stripping off the walls of a State theatre 400 km from the Ministry of
Culture's offices, how long will it be before they are painted?
The easiest way to improve administration is to bring responsibility and capacity to act
closer to the people.
b) Diversity should also be accommodated to make people — in this case, members of national
minorities — happier and more responsible. This is in the interest of the State: indeed, surely it
is one of its basic functions.
We have seen examples of structures and electoral systems that can help here. For
minorities concentrated in certain areas, it means a lot to bring politics closer to the people. If a
90
minority only has two or three Members of Parliament it may feel powerless. But at regional level
its proportion is much higher, so it would thus benefit greatly from a structure that gives regions
more powers — in culture, naturally, but also in regional planning, in public works, in health, in
public media, in schools, in the library service. This means bringing politics closer to the
minorities.
The psychological welfare of people is also affected by the stability of the social
environment. Rapid social or political changes (such as newly-attained independence, or an
economic slump) may well (and understandably so) increase the general uncertainty of the
population — including that of national and linguistic minorities.
c) A third reason to accommodate diversity is to build a peaceful society in which the State has
earned the trust and the loyalty of its citizens — including members of national minorities. The
latter belong both to one set — defined by language, culture and history — and to another set —
citizenship as a member of a State. The aim must therefore be to ensure that both sets are
mutually compatible — that it is possible for people to feel that they can comfortably belong to
both sets, without a fundamental contradiction.
We all aim for the greatest personal satisfaction and harmony: not only material wealth and
physical comfort, but also psychological satisfaction. We are sensitive to the ways others treat us.
So if we are not treated for what we are by an influential person or institution, we may either feel
inadequate, inferior, ashamed of who we are, and try to conform, or else rebel against this
confusion, underlining our differences openly and even defiantly. Conformity and assertiveness
are two natural options. If many people rebel against their identity not being acknowledged by the
State, the issue moves from the personal, psychological plane to the social, political one.
Thus, incorporating a group into the fabric of the State's political structure is sure to lead to
a greater sense of loyalty. But loyalty cannot be instilled into people the way milk is bottle-fed
into a baby: people have to make up their own mind that their identity is recognized and respected
by the State. So the more the State is seen to be welcoming, integrative and tolerant, the smaller
the perceived threat, and the greater loyalty. Loyalty is the end result of a gradual process
which cannot be imposed.
Those running a State may have doubts about the loyalty of the population of a newlyincorporated frontier territory (as in central Europe after World War I), who suddenly stopped
belonging to a majority in their kin-State and often felt insecure in the new State. Similarly for
minorities in new (or newly-recovered) States created by secession from a larger one. Winning
such people over is in the interest of the State, for they can be an enormous economic, social,
political and academic asset, as we shall see.
d) The fourth good reason to accommodate diversity is so that it is possible to draw on the asset
of multilingualism and diversity, with all its potential advantages.
91
Diversity and multilingualism are an asset. “Variety is the spice of life” it is said in
English. Managing diversity is much more complex and complicated than uniformity, to be sure.
But the world is as it is, not as we would like it to be: and in this case diversity gives a society a
wider range of experience, of points of view, of interests, of fields of creativity, of approaches to
problem-solving. This is undeniably an enormous advantage to any society, in an increasingly
competitive world.
Let me offer a simple example. If some citizens are proficient speakers of the language of
a neighboring country, we have a potential “army” of salesmen, diplomats, translators and
language teachers.
In conclusion: by promoting integration without assimilation, by increasing
minorities’ management of their affairs, we will achieve more dignity, responsibility,
security, happiness and, in the end, loyalty.
In linguistic terms, we should aim to ensure that learning the “official” or “national”
language and culture is not at the expense of a people’s dignity or of the continuation of their own
language and culture, but rather perceived as “additive bilingualism”, as a personal enrichment.
4.
ACCOMMODATING DIVERSITY: WHAT?
What principles and general premises does this accommodation have to be based upon?
Firstly: To acknowledge that not everyone is the same or speaks the same language.
Special policies should specifically cope with the presence of national minorities, and show that it
is perfectly respectable to speak one’s own language as well as the “national” one.
Secondly: The authorities are at the service of the citizen, not the reverse. These days,
more and more States serve the people (not the majority, but all the people) as citizens, rather than
treating them merely as subjects. Their wishes, their needs, are taken into account. The State
offers help so that people can solve their own problems. This is obvious in the ramps built so that
wheelchairs can enter public buildings — but also in (a) making allowance for customs that differ
from those of the dominant group, and (b) in language, by the growing presence of bi and
multilingual forms, by recruiting and training bilingual civil servants, etc. In this respect, diversity
does not in truth need promoting: it already exists, and what it really needs is recognition from us.
Thirdly: Language plays a key role in a person’s social identity. The very language
used to convey the acknowledgement of the existence of an ethno-linguistic group, on the part of
the authorities, is highly significant. The use of language is very different from that of other
symbols such as flags or national costumes, for it allows communication with other members of
the group. So speeches proclaiming language rights are useless unless the actual use of the
language follows the proclamation of its importance.
92
Fourthly: The will of a people to exist must be respected and even encouraged. This is
a social psychological element, to which we should be sensitive. However, this will has in many
cases been broken. In Greece (I am taking one of dozens of possible examples), younger members
of Albanian-speaking families who have lived in the same villages for centuries seem to reject
their heritage, because it is seen as non-Greek, or even anti-Greek. So a model for
accommodating diversity may have to aim to improve people's pride in their own heritage. (A
State may value diversity more than those who are “different” from the majority group).
5.
ACCOMMODATING DIVERSITY: HOW?
What models are applied by different countries to accommodate diversity, and to ensure that a
minority language group can thrive?
In very simple terms, there are two “pure” models for the development of national
minorities, as far as accommodating their language is concerned (though the first is not viable, and
there are of course many models between the two).
A. The Indian reservation: an unacceptable solution!
The group’s area is completely closed off and “protected” from the outside world, and
from people moving in and out of it. It goes against individual human rights and fundamental
freedoms to force someone to live in a given place, so this model is unacceptable. Indeed, does
anyone seriously defend such a model?
B. Applying the territorial principle, towards the melting pot
Where several languages predominate in different parts of the country, a social climate in
which anyone moving to another linguistic area will be quick to adapt to the new circumstance can
work very well. It is crucial for the language of the minority to continue to be the common
language of the population of its area, and that those moving into it learn that language. The
minority group will feel much less uncomfortable than if only they have to accommodate.
What I propose as ideal from a psychological standpoint is a melting pot solution, so that
the stability of the minority language, in the area, is guaranteed (as far as is possible in a free
society). It certainly works here in Locarno!
Some examples of decentralization for linguistic minorities
Minorities are constituent and equal partners in some States. In others, varying degrees of
authority are given to democratic regional bodies to run their own affairs, in line with the principle
of subsidiarity. Languages in countries which have a balanced model through applying the
territorial principle to decide which language is official in each area, seem to be more stable over
time, so guaranteeing the benefits that multilingualism brings. Switzerland is a good example.
93
As I have said, one way of integrating the minorities is by giving only them real powers
to solve problems. This may well not work. It was the model used in Spain in the 1930s, when
the Catalans and the Basques demanded home rule. Many political leaders in the rest of Spain felt
that this was unfair and were even frightened at the thought: “Antes roja que rota” one right-wing
politician said.2 A savage civil war, and political, linguistic and cultural repression, followed as a
tragic result. Free elections were not held again for almost forty years. The model defined in the
1978 Constitution, again at the insistence of Catalans and Basques, who were at the forefront of
the democratic opposition to General Franco’s regime, is much more widely accepted by the
majority group: “The Catalans and the Basques want coffee? Well, let’s give everyone some!”
Spain was structured into seventeen regions, including Catalonia and the Basque country, each
having legislative and/or executive powers in a range of fields.3 Note that in Catalonia all citizens
enjoy the same political rights. Catalonia achieved home rule thanks to the Catalans, but all those
who live in Catalonia, whether or not they are Catalans in origin, share the benefits of the system.
The choice has to be made in the linguistic field: either the (central) State apparatus became fully
multilingual, or else the State continued to remain essentially monolingual, while the other
languages of Spain would be official in their historic territories, where even the State bodies
(provincial offices, etc.) would be officially bilingual. Regional authorities would, in the second
model (which was, in the event, the one chosen), be granted the resources needed to implement the
dual official linguistic regime.
May I add an interesting point on political representation: there is no formal guarantee that
the minority groups will be in power in their regions: in-migrants have the same rights, and
alongside parties representing the minority there are Statewide parties. (It is interesting to see
how, in Catalonia, some may vote for a communist mayor, for the (centrist) Catalan nationalists in
the regional elections, and for the socialists in the Spanish general elections: undoubtedly a sign of
political maturity.)
So these models really relate to “he people living in territories traditionally inhabited by
the national minorities ...” the administration serves all the population living in the area. In other
places, as we have heard from other contributions to this Conference, parallel systems of public
administration may operate for members of majority and minority groups.
Allow me to add that the Catalan nationalist parties that are in power in Catalonia also hold
the balance of power in the Spanish parliament and have placed much greater priority on general
economic policy and the general structure of public administration in Spain than upon issues
specifically related to Catalonia. This responsible approach has also been followed by the Basque
Nationalist Party: it allays fears that the regionalization of Spain would lead to selfish attitudes
and to a weakening of the State as a whole. Indeed, outstanding requests are not in the direction
of disintegration: they are for further acceptance of responsibility, e.g. for some Catalan
representation within Spain's strong UNESCO delegation, or the design of multilingual bank notes
— including Basque, Catalan and Galician.
2
3
“I’d rather Spain was red than broken.”
I am grateful to the Spanish delegate here, Senor de Palacio, for his contribution on precisely this subject.
94
It is also true that in the early years of the regionalization of Spain, there were numerous
legal conflicts, with both central and regional governments taking each other to the Constitutional
Court when they felt their own powers had been curtailed by the other. There is a general
consensus that the Constitutional Court has tended to side with the central government's point of
view, and has therefore contributed to some degree of recentralization. This, coupled with
competencies passed to the European Union, make it necessary to reread the 1978 Spanish
Constitution, as a number of nationalist parties from Galicia, the Basque Country and Catalonia
have requested in an important document, the Barcelona Declaration, which nevertheless accepts
Spain as their frame of reference. Note also that the moderate nationalist parties in power at
regional level tend to adopt moderate linguistic and cultural policies in order not to aggravate the
Spanish-speakers (who are also voters, after all!) living in the area.
In Europe some minorities may have no fixed or traditional territory. The Roma, for
instance, have very strict codes of conduct, which (provided they do not clash with universal
human rights) it may well be in the general interest of society to be officially recognized. Finding
spokesmen for the Roma is no problem; and the formation of a representative body to liaise with
central government — as happens in some places — may be advisable. The central government
should ensure that such groups have equal access to public funding for their cultural and
educational organizations.
Regionalized models reduce the political salience of the structures built for those who
sought them, as the whole country enjoys similar structures. We have seen that confederal
systems such as Switzerland and Belgium allow all cantons to contribute to deciding the policies
of the State. Switzerland's diversity is ensured by the language of each constituent group
(German, French and Italian) being legally supreme in its territory: here in Locarno, German and
French play only minor roles, and the Italian-speaking Swiss feel more secure and loyal.
The Belgian solution, for its part, put an end to decades of tension between Flemings and
Walloons. In Belgium, apart from regionalized structures, language and culture policies are the
responsibility of three ethno-linguistic cultural committees (Dutch, French and German). At the
federal level no single official language is imposed on the rest.
A special case: school models
Though Professor Cooper is going to address the issue of education, allow me to make one
reference to the issue, which bears upon the linguistic model for schools for minorities. It goes
without saying that autochthonous minorities need to have structures to ensure the continued
existence of their language and culture, including schools. Regional authorities may be
responsible for public schools, even leaving the issue of minorities to one side. For minority
education there is a choice: parallel schools or streams may be set up, so that there are two groups
of pupils who may never learn much of the language and culture of the others; or a single model
of integrated schooling may be developed, aiming at full bilingualism for all pupils. The latter is
95
the model in Catalonia, where it works well, and in the bilingual Hungarian-speaking region in
eastern Slovenia.
Attitudes associated with regionalization
Regionalization often brings with it reactions which have to be borne in mind. Some are
positive, while others are negative.
a) In Spain it has improved all people’s attitudes to the authorities, and not just those of
the constituent nations. Since its introduction, people feel they have a real say in important
decisions. The system certainly works better than before: but to be truthful, it used to work very,
very badly!
b) Some people may fear that “the more you give, the more they want”. The Catalan
experience gives no credit to this belief. An inefficient, insensitive political system that gives no
outlets for collective expression is much more likely to lead to discontent. In Catalonia, problems
can now be channeled; and the call for greater powers is being made (and heeded, as in the United
Kingdom) in many parts of Europe.
c) We have said that some solutions may be unacceptable to the majority. Even today,
some Spaniards clearly show that they do not have a plural, multilingual view of Spain, but still
accept the Jacobin aim of a monolingual country. Deeply ingrained prejudices and stereotypes
may exist in many countries. So, it is not enough to cope with the “minority”: improving the
attitudes of the majority is also important, in order to avoid backlash reactions.
6.
CONCLUSION
In my view, decision-making and the control of resources are moving closer to the people in the
New Europe. There is a general trend away from centralized government, towards structures
which are much more sensitive to the needs of the citizens. Since national minorities also have
their needs, not only should States be especially sensitive to them (some predate the very existence
of the State!), but it is in their best interest to do so. The practical results will, I am sure, lead to
greater integration and effective participation on the part of members of linguistic minorities in the
affairs of their country. Far from being a threat to the State or the majority population, such
integration will be to the benefit of the State as a whole.
So I shall finish, as a social psychologist, by posing the last, overarching question: what
can be done to make the life of the members of our national minorities happier?
96
BIBLIOGRAPHY
1. Regionalization in Spain
Aja, Elisio, El Sistema Jurídico de la Comunidades Autónomas, Madrid: Tecnos, 1985.
Bayona, Antoni, “The Autonomous Government of Catalonia”, Government and Policy, Vol. 5,
No. 3, 1987, pp. 309-326.
Jutta, Kramer, “Die Entwicklung des Staates der Autonomien in Spanien und der
bundesstaatlichen Ordnung in der Bundesrepublik Deutschland: ein Spanisch-Deutsches
Verfassungskolloquim”, Federalismus-Studien, 7, Baden-Baden: Nomos, 1996.
Moderne, F., “Les Autonomies Regionales dans la Constitution Espagnole”, col. Études
Juridiques Comparatives, Paris: Economica, 1981.
Muńoz Machado, Santiago, Derecho Público de la Comunidades Autónomas I, Madrid: Civitas,
1982.
Muńos Machado, Santiago, Derecho Público de la Comunidades Autónomas II, Madrid: Civitas,
1984.
Vandelli, Luciano, L’ordinamento regionale spagnol, Milano: A. Giuffrè, 1980.
2. Language Planning
Boyer, Henri & Miquel Strubell (eds.), “La politique linguistique de la Catalogne autonome et la
sociolinguistique catalane: un état des lieux”, Revue de Sociolinguistique, 35, Lengas, Montpellier:
Service des Publications Université Paul Valéry, 1994.
Corbeil, Jean-Claude, Miquel Reniu & Joaquim Arenas et al, “Politique linguistique et création
culturelle: actes du séminaire tenu à Québec le 10 juillet 1996, dans le cadre de la rencontre
Québec-Catalogne”, Documentation, 34, Québec: Conseil de la Langue Française, Service des
Communications, 1996.
Edwards, John & Charlotte Hoffmann, “Monolingualism and bilingualism: lessons from Canada
and Spain”, Current Issues in Language & Society, Vol. 2, No. 1., Clevedon: Multilingual
Matters, 1995.
Etxebarria, Arostegui, M., El bilingüismo en el estado español, Bilbao: FBV, 1995.
Fishman, Joshua A. (ed.), The earliest stage of language planning: the “first congress”
phenomenon, Berlin: Mouton de Gruyter, 1993.
97
Generalitat de Catalunya, General Language Normalisation Plan: Approved by the Generalitat of
Catalonia on 7 March 1995, Barcelona: Generalitat de Catalunya, Departament de Cultura,
Direcció General de Política Lingüística, 1995.
Generalitat de Catalunya, Ley 1/1998, “de 7 de enero, de política lingüístic”, col. Quaderns de
Legislació, 11; Barcelona: Generalitat de Catalunya. Departament de la Presidència, Entitat
Autònoma del Diari Oficial i de Publicacions, 1998.
Hoffmann, Charlotte (ed.), Language, culture and communication in contemporary Europe,
Clevedon: Multilingual Matters, 1996.
Mar-Molinero, Clare, “The politics of language: Spain’s minority languages”, Working Papers,
No. 3, Southampton: University of Southampton, Centre for Language in Education, 1994, pp.
106-113.
Reniu, Miquel, “Planificació lingüística: estructures i legislació”, col. Materials per a la
Normalització Lingüística, 1; Barcelona: Generalitat de Catalunya, Departament de Cultura,
1994.
Seminario Internacional Unesco Linguapax sobre políticas lingüísticas: III: Leioa: Palacio de
Artaza 11-14 marzo 1996 / Hizkuntz Politikeio buruzko Nazioarteko Mintegia / International
Seminar on Language Policies / Séminaire International sur les Politiques Linguistiques, Bilbao:
Unesco Etxea, 1997.
Siguan, Miquel, “Multilingual Spain”, col. European Studies in: Multilingualism, 2, Amsterdam:
Swets & Zeitlinger, 1993.
98
Integrating Diversity: Linguistic Aspects of Effective Policies and Programmes
INTEGRATING DIVERSITY: LINGUISTIC ASPECTS
OF EFFECTIVE POLICIES AND PROGRAMMES
György Szépe
Professor of Language Sciences, Janus Pannonius University, Pecs
1.
REMARKS ON THE BIRTH OF LINGUISTIC DIVERSITY
1.1.
Language diversity is a universal phenomenon in the world, it is rooted in the biological
basis of language competence. There is a faculté de langage which refers to (a) acquiring and (b)
using any language, (c) within a universal anthropological framework. In this framework it is
evident that no “diverse” linguistic situation has ever been an obstacle to human communication
or cooperation unless it was embedded into a con-stellation where language served as a sociopolitical symbol. Power relations are usually present in such cases: language may become an
instrument of political oppression.
1.2.
Language diversity turns to be problematical — sometimes even dramatic — when
overlapping language groups live within the same area, in an ecological cohabitation and where
peaceful co-existence is disturbed by changes in the nature, population density or power structure.
An additional factor may arise when idioms become instruments of competition and conflict in the
hands of ethnic and/or political groups.
It is very likely that modern States in Europe (and elsewhere) organized around one ethnic
group preferring one idiom will somehow foster linguistic controversies. The more bureaucratic a
nation-State is, with ever growing paper consumption, the more likely will it instigate conflicts
between the language of the central offices of a government (labelled as “official language”) and
the language(s) of the people(s).
1.3.
Bilingualism has emerged recently as a major issue. Popular bilingualism offers a solution
to local/regional language problems. (In a “popular bilingualism”, language is acquired through
live communication as a part of human interaction.)
“Bilingualism” is not only a neutral (scholarly) term, but it can be used in different and
politically sensitive contexts. E.g. it is not the same: (a) to change a minority school (where the
minority language is dominant) into a bilingual school where the majority language will take over
this role; or (b) to change a majority school into a bilingual school (where the idiom of the
minority can appear as a medium of instruction). The latter will fulfil the requirements of the
“vernacular principle” and it would be in accordance with linguistic human rights in statu
nascendi. (Linguistic human rights refer mainly to the use of mother tongue (a) in schools and (b)
outside schools in multilingual areas; I shall return to the latter, i.e. extra-scholar, aspects.)
99
2.
FURTHER REMARKS ON LINGUISTIC DIVERSITY
2.1.
All European States have ethnic/linguistic minorities. A linguistic minority should also be
regarded as a cultural minority; nevertheless a cultural minority group has numerous aspects
which should be appreciated in themselves, i.e. not necessarily bound to language. There are even
some minorities where one part of them is a linguistic minority, but the entire group is rather an
ethnic/cultural minority, e.g. in the case of the Roma and Sinti people.
2.2.
Since the three Central and East European federations (Czechoslovakia, (the former)
Yugoslavia and the Soviet Union) were dissolved, the trend of a legal equilibrium among
linguistic and ethnic groups has weakened in the new States. States — even the left-over
federations in this region — became more centralized.
2.3.
Globalization appears in different forms in this region: its technical and economic aspects
are more perceptible than the political ones, e.g. the increasing role of international financial
investment into the small national economies of the region, is usually neutral to domestic issues of
such kind. Its cultural implications — if any — may reduce the scope of most groups (except of
the residing international elite) in a given State. I consider the “joining European institutions” as
the next step toward globalization in the region.
2.4.
The rapprochement of States in Central and Eastern Europe to the West European supraState organizations is usually considered as a slightly more favourable framework for the
minorities than for the majorities.
2.5.
A paradox of decentralization lies in the fact that in Central and East European zone:
decentralization is generated from the top, i.e. the central government cedes some of its
competence. This is, however, rarely accompanied by de-centralizing the administrative structure
or the necessary financial means. The principle of subsidiarity usually requires (more)
decentralization; this is specially valid for local minorities. Minorities, for their part, should be
able to build up from the bottom their State-wide organizations which may coincide with their
ethnic and linguistic extension.
3.
SOME OPERATIVE REMARKS ON LINGUISTIC DIVERSITY IN THE CENTRAL
AND EAST EUROPEAN REGION
As a Hungarian, I take the liberty of drawing some examples concerning this group.
3.1.
Since Hungarians live in all the countries neighbouring Hungary (Austria, Slovakia,
Ukraine, Romania, Yugoslavia (Serbia), Croatia and Slovenia), and they form in many instances a
geographical continuum with the dominant Hungarian-speaking group in Hungary, this is the main
reason why many Hungarians are interested in minority issues, even those who do not share
nationalistic views. The general belief is that there should be reciprocity between the treatment of
minorities in Hungary and treatment of Hungarians in the neighboring countries. Reciprocity
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alone, however, seems to be insufficient in this case: minorities should not be considered as quasihostages between two adjacent countries.
Until 1919 the multilingual kingdom of Hungary considered itself as a “political nation”.
Ever since then, Hungarians have been advocates for Hungarians living abroad in the name of the
“Hungarian cultural nation”.
3.2.
“Socialist internationalism” de facto (a) promoted Russian values (including the Russian
language), and (b) and in most cases practiced a policy of non-interference with national
majorities (thus leaving minorities to their mercy).
The political vacuum which appeared after the changes in Central and Eastern Europe has
been filled by liberal-democratic and by conservative-nationalistic governments and parties. Not
all of them were tolerant towards linguistic or non-linguistic diversity within their own confines.
Nevertheless, they all have been enthusiastic about providing any assistance — including human
rights — in support of their kin-folk on the far side of the border. This also explains the double
standards displayed by some of some regimes toward human rights.
4.
REMARKS ON THE ROLE OF THE STATE IN THE PUBLIC AND CIVIL SPHERE
4.1.
In the post-soviet regimes, the State (i.e. the central government) stayed relatively strong in
comparison with the civil sphere. The civil sphere as such was more or less destroyed during the
forty years of the cult of the omnipotent and omnipresent one-party-State. After the changes
around 1990 the redistribution function of the State became even stronger than before. Very few
important steps can be taken now without the support of the new governments.
4.2.
In this region churches belong to the public sphere rather than to the civil one; therefore,
they claim public State support in various ways. On the other hand, sects (i.e. minor religious
communities) are considered to belong to the civil sphere and some times they are excluded from
State support.
4.3.
In a centralized government, integrating anything (including cultural, linguistic, or other
social diversity) may turn to assimilation in a covert way. The relative autonomy of subsystems
(including minority organizations) is rarely respected by young governments.
4.4.
Semi-private foundations alleviate this state of affairs. There is, e.g., a Roma secondary
school in the city of Pécs, maintained by the private Gandhi Foundation which also accepts
government support. This is a Hungarian medium school where the two major idioms spoken by
the Roma, the Lovari (an Indian language) and Boyash (a Romanian dialect), are also taught.
In the city of Pécs there are (in the municipal framework) primary and secondary schools
for the German and for the Croatian minorities (pupils belonging to other national groups may
101
also be admitted into these schools). Then there is an English, an Italian and (somewhat further) a
French bilingual secondary school. But most secondary schools are Hungarian medium schools.
In addition to the Roma secondary school there is an afternoon education system for the
tutoring of Roma children who study in different Hungarian medium schools. This is one of the
best ways of helping the Roma children since Roma form: (a) an ethnic minority; (b) traditional
Roma display the attributes of a different cultural and ethical system; (c) one third of them is de
facto also a linguistic minority; and (d) the Hungarian speech of Roma is stigmatized by a peculiar
substandard accent.
4.5.
National and ethnic minorities have the right to create their own local self-governing
bodies. Indeed, local elections (including the local elections for the self-governing bodies) were
organized 18 October 1998, i.e. one day before I was to present these remarks.
4.6.
There are various international aspects of the aforesaid issues, which I note in the
following way:
From the viewpoint of an individual, international aspects should be placed into a system
where personal relations extend in the form of concentric circles.
Relations within a family make up the nucleus. Then comes neighborhood — especially
when people living there are “different” in their language, religion or ethnic/national solidarity.
Significantly, in Central and Eastern Europe this typically includes national minority groups
within the same country who are the citizens of the same State by the same right as the individual
from the next circle. Strangers or aliens in the same country present the next round; they can be
immigrants, refugees, visitors, tourists, residents etc. and they usually need more care because
they are away from their own homeland.
People from the neighbouring country come next, but are usually seen through stereotypes.
People from the same geographical-historical experience — in my case; Central and Eastern
Europe — follow them. Only after this may come a real or expected citizenship in a broader
socio-political framework such as in Europe, including in some cases also the two countries from
North America.
The rest (i.e. 80% of the world) cannot be left out either. When dealing with alterity
(“otherness”), then global width should overlap with considerations valid for the entire
humankind.
To conclude: the perception of alterity is indispensable at each concentric circle.
For promoting mutual understanding, intercultural communication and international
education some novel elements should be introduced into the education systems of Central and
Eastern Europe. Just a few examples: sociology, social psychology, communication studies,
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cultural anthropology and also bits of law and political studies would be welcome. (These,
however, should be complemented by the personal international experience of pupils).
4.7.
It is impossible to disregard language in this orientation. Language varieties and idioms
may be naturally attached to each concentric circle. There is no reason why only and exclusively
a language of worldwide diffusion should be taught in the education systems in the region and
“less taught languages of Europe” be disregarded. (This could be handled in the framework of
European language policy.)
5.
REMARKS ON THE OSLO RECOMMENDATIONS
5.1.
The Foundation on Inter-Ethnic Relations brought together independents experts who
elaborated, on behalf of the OSCE High Commissioner on National Minorities, two series of
recommendations: The Hague Recommendations and the Oslo Recommendations. I shall
concentrate on The Oslo Recommendations regarding the Linguistic Rights of National Minorities.
(As I am a linguist, not a lawyer, I am going to stress the linguistic side of the document.)
5.2.
The first group of recommendations concerns names: names of persons, institutions and
geographical objects. As for the names of persons, we have to understand that their name in their
own language (in their mother tongue) is a part of their personal — and group — identity. It is a
general belief that people can be made happy to be able to use the original forms of their names in
all possible situations (not excluding that States could also register the same persons for welldefined official goals in other forms.) One should avoid transforming names from a linguistic
category into a political one.
The same is valid for the names of organizations maintained by minorities. (The State,
however, can require that these names also have a version translated into the majority language for
certain purposes mainly relating to public administration.)
As for geographical names, one should not forget their function: geographical orientation
should be harmonized with their symbolic role for any group having had any historical relation
with the given place, street, etc. These names can be parallel or independent ones, or simply
translations (and they should also be put into registers where they can be easily identified).
5.3.
The second group of recommendations refers to religions. Here I want to stress only that
an ethnic/linguistic minority can also be either a religious minority or part of a majority religion.
In each case, it is important to take into consideration the language people consider as a necessary
instrument in their worship or any other religious activities, including rites which may at the same
contribute civil actions.
5.4
The next group of recommendations refers to community life and NGOs, i.e. civil
initiatives. My principal remark is here very simple: the civil sphere should be conducted in the
language (or languages) of the people involved, but since they are all the citizens of the same
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State, therefore they should be entitled to the same public support as any other organization
including those composed of the majority.
5.5.
As for the recommendations on the media, my main point is that public support (i.e.
financial and infra-structural support) from the State should assist radio and television
programmes of linguistic and ethnic minorities. The support cannot be made proportional to the
number of the minority speakers, because there is a minimum requirement for any media
programmes to be successful and this is first of all a professional issue; there are professional
standards, e.g. for the time and the number of personnel necessary for producing a television
programme, at an acceptable level.
This would, of course, not exclude there being private programming of all kinds; but I
want to stress the public obligation in supporting the media of the national/ethnic/linguistic
minorities. This should be emphasized because such minority programmes should usually be
produced in the language(s) of the minorities.
5.6.
It is almost trivial to state that in a country where the civil sphere has reached a certain
level of development, State or any authorities should not interfere into the language of business
and economic life. Let a businessman use as many languages as he or she considers profitable for
business.
5.7.
The set of recommendations referring to administrative authorities and public services
could be summed up in the following way. States and cities etc. should make up their mind: what
is more important; a smooth monolingual administration satisfying to the administrators, or a
somewhat more complicated pluri-lingual administration which actually serves and satisfies the
citizenry (and is more efficient for the entire community). This argumentation is also valid for the
judicial branch (comprising both local, provincial and central courts). No doubt, valid
considerations of feasibility are needed in this regard.
Both of these branches, however, should be complemented by some kind of independent
national institutions which assure equality in language communication and generally speaking in
the exercise of the human rights of minorities.
5.8.
My final remarks here refer to the technique which is necessary for the exercise of human
rights. Human rights are, namely, not an ideology, but a social practice for friendly and decent
cooperation among human beings (based, of course, on international conventions and declarations
for the sake of assuring peace and cooperation among people having conflicting interests). Human
rights should be both conceptually and practically accessible in the languages of the full diversity
of the population.
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6.
CONCLUDING REMARKS
6.1.
Minorities need money, tolerance and opportunities to educate their people — at all levels
— to become competitive in the modern world. Minorities should not be left out from
modernization.
6.2.
Majorities need a better education concerning the social role, human rights and cultural
values of minorities.
6.3.
These goals require different types of action at local and regional levels, as well as the
levels of State authorities and regional cooperation (including friendly relations with neighboring
countries).
6.4.
It seems clear that an effective European language policy requires that at least two foreign
languages should be offered to each pupil: (a) a language of worldwide diffusion, and (b) another
European language of European importance or the language of the neighboring country.
6.5.
If European institutions will keep on working for the benefit of both governments and civil
society or, formulated more explicitly; both for States and for the peoples; then the international
solidarity of persons belonging to minorities will (probably) generate loyalty toward the State
within which they live and toward European institutions, too.
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BIBLIOGRAPHY
L'Acte Final d'Helsinki. Texte et Analyse, Wilmhelmsfeld: Gottfied Egert Verlag (Vienna:
International Social Science Council, European Coordination Centre for Research and
Documentation in Social Sciences), 1990, pp. 577.
Batley, Edward, Michel Candelier, Gisella Hermann-Brennecke, & György Szépe, Language
Policies for the World of the Twenty-First Century, Paris: World Federation of Modern Language
Associations (FIPLV), 1993, pp. 50.
Calvet, Louis-Jean, “Las políticas lingüísticas y la construcción europea”, Signo & Sena, No. 4,
Buenos Aires, 1995, pp. 29-52.
Christ, Herbert, “Sprachenpolitik für Europa: Folgen für den Fremdsprachenunterricht”, in:
Wilfried Brusch & Peter W. Kahl (szerk.), Europa. Die sprachliche Herausforderung, Berlin:
Cornelsen, 1993, pp. 30-40.
Coulmas, Florian (ed.), A Language Policy for the European Community: Prospects and
Quandaries, Berlin: Mouton de Gruyter, 1991.
The Hague Recommendations regarding the Education Rights of National Minorities &
Explanatory Note, The Hague: The Foundation on Inter-Ethnic Relations, 1996.
Herman, József & György Szépe, L'expérience hongroise dans le domaine de la planification et
de méthodologie de l'enseignement des langues relativement peu enseignées en Europe, Paris:
UNESCO, 1983, pp. 107.
Modern Language Learning in the New Europe. The Role of the European Centre for Modern
Languages in Graz, Proceedings of the First Annual Colloquy of the European Centre for Modern
Languages of the Council of Europe 8 and 9 December 1995, Graz, Austria, 1997, pp. 87.
The Oslo Recommendations regarding the Linguistic Rights of National Minorities & Explanatory
Note, The Hague: The Foundation on Inter-Ethnic Relations, 1998.
Packer, John & Guillaume Siemienski, “Integration Through Education: the Origin and
Development of The Hague Recommendations”, International Journal on Minority and Group
Rights, Vol. 4, No. 2, The Hague, 1996/97, pp. 187-197.
Skutnabb-Kangas, Tove & Robert Phillipson (eds.), Linguistic Human Rights. Overcoming
Linguistic Discrimination, Berlin/New York: Mouton de Gruyter, 1995, pp. 478.
Szépe, György, Less Taught Languages in Europe: Their Place in Education and Their Role,
Paris: UNESCO, 1980, pp. 118.
106
Szépe, György, “Central and Eastern European Language Policies in Transition (with special
reference to Hungary)”, Current Issues in Language and Society, Vol. 1, No. 1, Clevedon:
Multilingual Matters, 1994, pp. 41-59.
Szépe, György, “Major Language Issues of the Region”, Neofilolog, Vol. 7, Poznan, 1994, pp. 1620.
Thornberry, Patrick & Dianna Gibbons, “Education and Minority Rights: a Short Survey of
International Standards”, International Journal on Minority and Group Rights, Vol. 4, No. 2,
1996/97, pp. 115-152.
107
108
Education: Alternatives; Decentralization and Participation; Public and Private
EDUCATION: ALTERNATIVES;
DECENTRALIZATION AND PARTICIPATION;
PUBLIC AND PRIVATE
Diego Erba
Director of the Pedagogical Review of the “Scuola Ticinese”
1.
WHAT MINORITIES?
The concept of minority can have several meanings from the educational point of view, reflecting the
differences in various countries. It is evident that a minority is generally defined by its attachment to
a geographical territory and by its linguistic and cultural characteristics. For example, Italianspeaking people living in Switzerland — and in particular in the region where this conference is
being held — are a minority, compared with the majority whose language and culture is SwissGerman or French. The presence of a German-speaking minority living in Italy in the Alto Adige
region will also come to mind, or the Greek-speaking minority in the south of Albania, and so on.
There are many examples which could be added of a minority defined by its attachment to a region,
and by its great linguistic and cultural homogeneity.
There are however other situations in which the school is confronted with minorities:
•
For a start there are minorities defined by sex: it is well known that the schooling
opportunities for girls are less in some countries or regions than those available to boys.
In recent years various countries have made an effort to ensure equality of education between
the two sexes. Widespread access of girls to second cycle secondary education (sixteen to
eighteen years of age) and tertiary education (universities, higher vocational schools, etc.) can
be seen in the more industrialized countries. In most countries young women make up the
majority of new registrations in tertiary education at the university level (1995: 29% men and
34% women) but, the breakdown varies considerably depending on the field of study.
•
Then there are minorities which are defined by the social and economic origins of the
family. It is well known that children from deprived backgrounds have more difficulties in
their school career than children from more privileged social classes. Their success rate in
their studies is lower and their attendance at secondary and tertiary schools is less in
percentage terms than those of children from higher social classes. In all countries, pupils'
academic results improve as the level of education of their parents goes up. On average
children whose parents have finished the second secondary cycle are about a year ahead of
other pupils in mathematics; while for those whose parents are university graduates, the
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difference is more than twice as great. The impact of the social background varies greatly
between countries, so these disparities are not inevitable.1
•
There are minorities which reflect nationality: in Ticino (Switzerland) one pupil in three in
compulsory schooling is non-Swiss and sometimes speaks a different language and belongs to
a different culture. By way of example, the percentage of foreign students registered in
OECD countries in tertiary education varies from less than 1% to about 11% (Switzerland
11%, Denmark 5%, Japan 1%).
•
Lastly there are minorities in our schooling systems who are marked out from other students
in terms of their achievement: these are pupils who have physical or mental handicaps, pupils
who have difficulties in following school programmes, but also pupils who are gifted and who
get bored in class because they already know what they are being taught, and so on. This
example justifies my asserting that it is wrong to think of minorities in exclusively negative
terms. Every minority has values, experience, and qualifies which ought to be made the most
of and respected. It would be wrong to undertake some kind of approved classification; at the
end of the day this would be in no one's interest.
In recent years population movement from one country to another has been widespread, so
that it is difficult to think only of minorities which live in a particular region. Today people emigrate
to many regions, from the poor countries towards richer ones, and there are instances of exodus for
ethnic, religious and other reasons.
2.
TWO WAYS OF SEEING POLITICAL AND EDUCATIONAL DECENTRALIZATION
How can the educational system best respond to the expectations of minorities and,
in particular, of pupils, parents and local authorities?
A comparative analysis of schooling policies to be found in Europe makes it possible
to identify at least two main trends: a) the federal system, which is found particularly in Switzerland,
Germany and partly in Belgium; and b) the centralized system which in the last few years has been
moving towards decentralization. Many countries are affected by this trend (among them France,
Italy and Austria).
The case of Switzerland: a federal system.
Because of the federal system, the distribution of responsibilities in Switzerland in the field of
education is relatively complete. Article 3 of the Federal Constitution provides that “the cantons
exercise all rights which are not delegated to the federal authorities”. But in educational matters the
Constitution allots only certain specific tasks to the federal government (i.e. to the central authorities).
1
Organisation for Economic Cooperation and Development (OECD), 8th Year Mathematics, 1995.
110
The cantons are therefore essentially sovereign where the organization of schooling is
concerned, and they regulate it with schooling laws. These laws differ from canton to canton (for
historical reasons, because of the size of the canton, financial resources, etc.) even though they draw
on the same traditional sources and the cantons collaborate in several ways. Switzerland has in fact
26 school systems. Some important fields are, in addition, subject to federal provisions in the interest
of homogeneity, but there is no national or federal education ministry.
When legislative competence falls to the federal authorities, the latter enact the regulations
necessary, delegating execution to the cantons or, in exceptional cases, to private persons. The
cantons are thus also largely responsible for those schools which do not come directly under their
legislative authority. The strength of their position is reinforced by the fact that the federal authorities
grant them the right to be consulted. Usually the cantons commission the municipalities with the
creation and maintenance of certain types of school, including nursery schools and compulsory
schools.
As far as the vocational training system is concerned, tasks are shared between the federal
authorities, the cantons and professional organizations.
a.i.) Collaboration and coordination in schooling
Because of the wide variety of situations, and the many different levels at which authority is
exercised, the main problem to be addressed is that of the overall coherence of the system. The
efforts made to concert and coordinate are thus important. The policy of coordination can range
from the development in common of curricula and the publishing of school books to the shared
management of training colleges, via the conclusion of agreements on the recognition of diplomas
and access to schools.
Important agreements have been signed between the cantons: inter-cantonal recognition of
end-of-studies diplomas, university financing, access to schools outside cantonal borders, financing
of common institutions, etc.
a.ii.) Administration and financing
The management and administration of cantonal education falls to the cantonal government
and its department of public education (the cantonal education ministry). The “cantonal minister”,
the director of public education, is elected by the people and must stand for re-election every four or
five years. Each canton has a schools administration — divided into a varying number of services —
of a size and sophistication that reflects the size of the canton. In general, in most cantons there is
detailed management of the various issues (size of classes, compulsory curricula, official teaching
materials, etc.).
The financing of education in Switzerland reflects precisely the division of responsibility
between the various bodies. Each rung of the ladder is autonomous in tax matters, and thus meets the
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financial cost corresponding to its responsibilities. Compulsory schooling is free to pupils: only from
the secondary II level is a contribution required (school fees, schoolbooks, etc.). The cost of
compulsory schools is met by the municipality (buildings, teaching equipment and materials, part of
the teachers' salaries) and by the canton (salaries). In the case of the secondary II level the cost falls
essentially to the cantons, as does that of university education. The federal authorities contribute to
financing vocational training and university education. In 1993 expenditure on the educational
system as a whole (including universities) was shared out as follows: municipalities 35%, cantons
53%, federal authorities 12%.
b) From the centralized system to decentralization
Changes in administration, in particular the redistribution of responsibility for decisions
among the various levels of authority — from the central level down to the school, via the regional
and local authorities — is one of the fundamental aspects of the reforms undertaken in the
educational systems of many European Union countries. The reforms in the general administration of
the schooling system boil down in the main to a steady movement towards decentralization and
towards delegation of authority to society generally. Almost all the countries in question have
shifted powers of decision from the central State apparatus to regional, local or municipal authorities,
and from the latter to the schools. There has been at the some time an increase in the involvement
of the educational community in the decision-making process.
In the last few decades, the trend towards decentralization has received considerable support
in countries which have a centralized system. The argument in favour of such an approach to
education are well known:
•
more effectiveness in solving problems, both in terms of defining needs and in resource
management, since this task is delegated by the central authorities to local bodies who have a
better knowledge of the situation because they are closer to it and are in a position to find
quick solutions. The point is to be in a position to react efficiently when faced with situations
in the educational context: adjustment of the school programmes, fulfilling educational
requirements of the region (knowledge of the local languages, setting up the timetable of the
day, etc,); management of the school infrastructure and services (gymnasium, library, etc,);
staff management.
•
greater involvement of the public thanks to the provision of services which are more
accessible to the users. With “decision-makers” closer to the users, contact between parents,
students and the school management is easier. Furthermore, the school “opens itself up” to
the local socio-economic and political community by facilitating cooperation with the
authorities — which sometimes are involved in funding the school — and by enhancing
partnership. School becomes an “educational community”.
•
the system's organization can adapt better to local and regional quirks, local requirements
and needs (school year schedule, cultural languages and traditions, better links between
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school and the business community, paving the way for students to reach professional life).
The school organization adjusts to regional needs while still aiming at objectives defined on
national level.
There are, moreover, political arguments to the effect that the process of decentralization
strengthens involvement and hence democratization, in terms of the territorial redistribution of power.
The purpose of such a process is to raise the level of youth education (the higher the
education, the lower chances are of being jobless), to reduce the distance between good and bad
results as observed in each country, to make the best use of the human and public resources, and to
favour quality instead of quantity.
b.i.) The four areas of decentralization
To decide the extent of centralization or decentralization of a country’s schools
administration, it is helpful to look at the decision-making powers granted to each level of territorial
organization in the following four areas:
•
decisions in the structure of schooling (who decides the number of cycles or stages which
make up the schooling system, the number of school years spent in each cycle, the length of
compulsory schooling, or the criteria for moving from one level to the next?);
•
the choice of programme (who decides the objectives, the contents, the methods and
assessment criteria at each stage in the schooling system?);
•
questions concerning teaching and non-teaching staff (who recruits teachers and nonteaching staff, who decides what posts they get and the tasks that are allotted to them?);
•
the functions of assessment and inspection of the system, the financing of education and
the management of economic resources.
In most cases, excepting Belgium, Germany and Switzerland which are profoundly
decentralized because of their federal structure, the political, administrative and legislative task of
determining the structure of schooling falls mainly if not exclusively to the central authorities.
Most countries have seen no change in the last ten years in where these responsibilities lie.
Any attempt to describe the distribution of responsibility for the choice of programme runs
into the difficulty of identifying the balance achieved between the various bodies concerned.
The approach most frequently used involves defining the different levels in the
development of the programme. The extent to which these levels have specific responsibilities is
inversely proportional to the size of the geographical or political unit in question. Nonetheless the
need to approve degrees at the national level makes it necessary to retain a certain degree of tightly
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defined responsibility even at the highest level. This, at least, is what the course of the reforms
shows. Countries typified by substantial openness in their programmes, with these being drawn up
by local authorities, tend today to set a minimum of common courses for the whole of the political
territory of the State, while countries which are traditionally centralized in this field are inclined to
mitigate this tendency and to go no further than decreeing a few guidelines to be spelled out at lower
levels on the decision-making ladder (regions, municipalities or teaching establishments as in Spain,
Greece, Italy, Finland, etc.).
One might want to add that the tendency towards decentralizing and streamlining the
educational institutions is also found at the academic level (universities or upper vocational training).
In these areas changes of orientation and structural reforms have been carried out in several countries
for a number of reasons:
•
ongoing pressure is applied to secure higher attendance at academic level;
•
applicants to academic education feature a greater diversity; the needs and expectations of the
students, of the families, of the employers and of the community increase;
•
the quality and the purpose of education is an increasing source of concern;
•
competition is stronger over ever-diminishing public resources; the new communication and
information technology open up new prospects and create new stakes;
•
problems of fairness towards under-represented population groups are a new matter of
concern.
3.
TOWARDS THE ASSESSMENT OF SCHOOLING SYSTEMS
The decentralization measures introduced in centralized systems, or simply applied in decentralized
systems, have often been associated with a general trend towards assessment, inspection or
supervision of the various elements of these systems and of the systems as a whole.
At the end of the 1980s and beginning of the 90s an evident, general and growing interest in a
precise and systematic assessment of the schooling system, of the teaching profession and of
programmes became apparent (cf. the OECD teaching indicators project).
The reassessment of the schooling system across the board which followed led to a series of
institutional reforms intended either to create new bodies specifically charged with this task (in Spain,
France and Luxembourg), or to restructure and adapt those which already undertook inspection and
assessment of a different type so that they could carry out this new function. There was also a
tendency to decentralize supervision and inspection.
In the last few years it has become apparent that schooling has become a matter of greater
public concern; this has been taken into account by various governments and led to a quantitative and
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qualitative increase in the ways in which the public can be involved in the decision-making
process at all levels. Many countries have set up advisory and decision-making bodies on which sit
representatives of the educational community at the central, regional and local levels, and at the level
of every educational establishment (examples include the Consejo Escolar (Schools Council) in
Spain; and the Conseil autonome (Autonomous Council) in Belgium).
4.
GREATER AUTONOMY FOR EDUCATIONAL ESTABLISHMENTS
The political and educational decentralization carried out in the last few years has been accompanied
by an increase in autonomy in the administration, management and organization of schools, and an
increase in the involvement of the various sectors of the educational community in decision-making.
In matters of school autonomy, most countries seem inclined to delegate more administrative
and other responsibilities to schools; this is what is sometimes called local management of the school,
or school-based management. Concretely, in the last few years more or less radical measures
intended to increase schools' autonomy of decision have been introduced in almost all educational
systems (e.g., Belgium, Denmark, Austria, Portugal, etc.).
In general, these reforms tend to set up administrative structures for education in which the
school plays an essential role in decision-making. In consequence, the teaching community in each
school can, in practice, express an opinion on a whole series of questions concerning various
important issues, such as the programme, staff and budget.
The increase in autonomy in the management of educational establishments is not a
homogeneous trend common to all countries. The various countries which follow it have started out
from very different initial positions.
Moreover, the freedom of decision enjoyed by schools varies considerably as a function of
the concrete reality of school life. In this sense, greater autonomy will be seen than existed in the
past, at least in respect of certain questions such as the programme, discipline, out-of-school
activities, relations with the public and even financial matters.
The involvement of the educational community in the management of schools has also
increased in step with the increase in the autonomy of educational establishment. Most countries
have either managing bodies or consultative bodies in which various sectors of the educational
community are represented. Most countries set up bodies in schools and universities at the beginning
of the 1980s that operate on a collegial basis and the reforms introduced in the last ten years have
served, above all, to increase their powers.
By the same token, certain similarities are to be found in the schools councils of various
countries. Firstly, representatives of the teachers and the parents sit together on every schools
council; at the secondary level, the majority of councils also include representatives of the pupils.
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The close relationship between decentralization, democracy and involvement is very
apparent. In this context, it is striking that efforts are being made by all countries to satisfy the call
for democratic management of schools, mainly by setting up a school council and encouraging the
teaching and non-teaching staff, parents and pupils to become involved in it.
The autonomy of a school and the involvement of the educational community in running it
largely depend on its management. A large number of countries have introduced changes in this area
in recent years. It can be said that the debate on management of schools revolves around two
priorities: on the one hand, the call for more efficient management, which requires greater
specialization of the head's function, if he or she is to measure up to the requirements of the school's
growing autonomy; and on the other, the democratization of management through the involvement of
other sectors of the educational community in decision-making.
Analysis of the situation in various countries shows less clear-cut trends than in other
connections. But it is possible to conclude nonetheless that heads — most often working with the
supervising bodies — are now generally being given wider authority so that they can meet the
challenge of new responsibilities.
Moreover, management swings between specialization and democratization. The first of
these alternatives tends to turn the head into a management professional, with specific training, whose
selection takes place outside the teaching profession; while in the second it is a teacher, chosen by the
educational community, who is responsible for the administration of the school.
It is worth drawing attention to the trend towards introducing business methods into the
management of schools. This can be explained by the process of decentralization and expansion of
autonomy that is under way, which leads certain countries to treat them like businesses, with
managers who need to have a wide range of technical knowledge, leadership qualities and the ability
to communicate with their staff (Italy, Netherlands, Britain, etc.).
5.
CONCLUSIONS
Over the last fifteen years the decision-making structure in educational systems has changed, often
very greatly. Three major trends can be discerned from these changes; the first two of these are
internal to the educational system and intended by those responsible for them, while the third trend is
external to the educational system:
(i)
schools' prerogatives have been enlarged by a thrust “from below” and by political will
“from above”.
(ii)
in centralized systems, prerogatives have increased at the expense of the national level; in
decentralized systems, prerogatives have increased at the expense of the local level.
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(iii)
the rise in regional feeling has in some cases led to almost all responsibilities being allotted
at levels below that of the nation-State.
Decision-making processes have become more complex. Modern communications and
management systems make it easier to involve several levels in a single decision, either by agreement
between them, or by one level deciding within a framework established by a higher level after
examination of the particular situation.
In all countries education is becoming a partnership of the whole community rather than an
undertaking only carried out by professionals. Recently there have been many contacts between the
school and local employers, and between the school and pupils' families. This type of link-up has
played an important role in the development of schooling systems, because people outside the school
can more easily express their views on what they expect from teaching.
Everywhere there is recognition of the importance of the school level for the development and
application of a programme of educational change. Schools and those who supervise them must learn
to measure up to what is now at stake; heads, and indeed the whole teaching staff, need to be better
trained.
More and more, the effectiveness of educational systems is being put in question: there is a
tendency to be more directly concerned with childrens' preparation for life and with their results (cf.
international tests). The greater interest in results and in the pupil's intellectual, social and moral
well-being is leading teachers to work together and in closer contact with the parents and local
communities to develop a new concept of school. Thus, the education policies of many States aim to
raise the level of teaching, to better adapt teaching to the diversity of the children who go to school,
to help to reduce the backwardness of those who are educationally underprivileged, to combat social
alienation, to seek equality of opportunity for boys and girls, to give parents more responsibility in
running schools and to decentralize decision-making powers.
There is, in consequence, a quite considerable increase in children staying on for the second
cycle in secondary schooling (sixteen to nineteen years of age), which is now becoming widespread,
as first cycle secondary schooling did, and whose compulsory character has become the symbol of
the democratization of education.
In the second cycle there is a movement towards a diversification of teaching structures —
unlike the relatively unified nature of the first secondary cycle — a diversification which is intended
to take better account of the wide-ranging aptitudes and interests of pupils, and also of the needs of
society and industry.
We are in the presence of a new and more subtle form of democratization. It is no longer a
question of making available identical teaching to all. What is required is to guarantee to each pupil
the benefit of the development of his or her aptitudes and interests, in all their diversity.
117
BIBLIOGRAPHY
A proposito di qualità nella scuola, Atti del seminario del Monte Veritàdi Ascona, Bellinzona (TICH): Ufficio studi e ricerche, 1997.
Dieci anni di riforme nell’istruzione obbligatoria dell’Unione Europea (1984-1994), EURYDICE
Rete europea di informazione sull’istruzione.
Education at a Glance, Indicators, Paris: Organization for Economic Cooperation and Development,
1997.
Education at a Glance, Analysis, Paris: Organization for Economic Cooperation and Development,
1997.
Examens des politiques nationales d’éducation, Berne: Suisse I-II, 1990.
Une sélection des indicateurs de l’enseignement en Suisse, Neuchâtel: Office féderal de la statistique,
1998.
118
Goals and Possibilities of Decentralized Education
GOALS AND POSSIBILITIES OF
DECENTRALIZED EDUCATION
Robb Cooper
Professor of Education, Northern Illinois University
1.
INTRODUCTION
There has been a common theme to all the papers and discussion. That theme has been that it is,
in many cases, desirable to bring the decision-making process closer to those who are most
affected by the decisions. I wish to affirm that theme.
Of course, this theme implies decentralization of some sort. Decentralization is
particularly appropriate in the area of education. There are few services provided that directly
touch so many as education. Not only that, education is something that most feel they know
something about and it is generally agreed that education is, for both the majority and the
minority, the key to integration. Having said this, let us turn to the concept of decentralization.
Decentralization is one type of reform many governments are experimenting with. Some
governments experiment with decentralization to shift costs, some do it in an attempt to shift
difficult social problems but many do it with the motivation of ensuring that constituent groups,
many of whom might not have a voice that is heard, have the opportunity to participate in a
meaningful way.
As mentioned earlier, of all the types of government services that are decentralized,
education is the one that most people resonate with most profoundly. People know and
understand that education is a fundamental means of accessing meaningful participation in society.
The focus of this paper is the review of issues in decentralizing education and the options
available to planners. The paper begins with a discussion of the different forms of
decentralization, moves to a discussion of the purpose(s) of decentralization in education and then
considers how the process is planned, and the results.
2.
FORMS OF DECENTRALIZATION
Decentralization is a term that is often used without a common understanding of what it means.
An umbrella definition is “the process in which subordinate levels of a hierarchy are authorized by
a higher body to make decisions about the use of the organization's resources”. However, there
are at least three different forms of decentralization. They are: deconcentration, delegation, and
devolution.
119
Deconcentration
Deconcentration is a distribution of management responsibilities to local or regional
authorities with ultimate control remaining with the central authority. In this model, relatively
little actual authority is transferred and the regional and local authorities are primarily ministerial.
The constituent groups at the local and regional levels in this model are easily disaffected
as there is little power given to them to make decisions that they believe will best serve their
needs.
Delegation
In the delegation model, local or regional authorities are granted limited power to make
decisions, often on a limited number of topics. In this model, the power is “loaned” to the local
and regional authorities. The constituent groups are more likely to be vested in the success of the
governmental function than in the deconcentration model although they are ever mindful that the
power can be recalled by the central authority.
Devolution
Devolution is the transfer of power on a permanent basis. The local and regional
authorities have power to make decisions in all matters and are responsible for the results of that
decision.
Local and regional authorities tend to be heavily vested in this model while central
authorities are concerned about accountability.
In each model of decentralization, it is important to remember that the central authority, in
reality, always retains the right to review actions and decisions to ensure that they are in
compliance with centralized standards and goals and to reverse or revise those actions and
decisions that do not. This is of critical importance as it is most common for central authorities to
retain the overall responsibility for the setting of educational policy, priorities and goals as well as
retain the responsibility for monitoring efficiency, quality and equity.
It is important for us to identify, understand and acknowledge the form of decentralization
we are to use as it is disheartening for constituents to anticipate one form of decentralization and
experience another.
3.
PURPOSES OF DECENTRALIZATION OF EDUCATION
Before one embarks on a discussion of the purpose of decentralization in education, there must be
a brief discussion of the basic purpose of education. For our purposes, the best summary is found
in Article 29 of the Convention on the Rights of the Child:
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States Parties agree that the education of the child shall be directed to:
a) the development of the child's personality, talents and mental and physical abilities
to their fullest potential;
b) the development of respect for human rights and fundamental freedoms and for the
principles enshrined in the Charter of the Untied Nations;
c) the development of the respect for the child's parents, his or her own cultural
identity, language and values, for the national values of the country in which the child
is living, the country from which he or she may originate, and for civilizations
different from his or her own;
d) the preparation of the child for responsible life in a free society, in the spirit of
understanding, peace, tolerance, equality of sexes, and friendship among all peoples,
ethnic, national and religious groups and persons of indigenous origin, and;
e) the development of respect for the natural environment.
With the above commitment in mind, coupled with the thought of one commentator that
education is the key to empowering young people to make effective choices as mature adults and
to enjoy real mobility both socially and economically let us consider how decentralization might
help us attain these goals.1
Decentralization is discussed in The Hague Recommendations regarding the Education
Rights of National Minorities. The Recommendations call for: (1) the creation of conditions that
will enable the meaningful participation in the development of policies and programmes related to
minority education; (2) the provision of appropriate competencies to facilitate minority
participation in the process of policy formulation at the regional and local level; and (3) the
encouragement of parental involvement and choice at the local level.
On a practical level, we know that the decentralization of education will result in a greater
sense of ownership by the entire community and a concomitant increase in community
involvement. At the primary level this is demonstrated by a willingness to commit community
resources. At the secondary and tertiary levels there is more of a willingness to “partner” on the
part of commercial entities as they see an ability to provide input regarding the commercial
entities needs from the educational system.
We also know that decentralization will increase accountability on the part of education to
the community. If the community has some responsibility in education, the community will more
carefully scrutinize the product of education.
At the primary level, it is well demonstrated that parental involvement in the activities of
the school will increase student achievement. We also know that secondary private (fee-paying)
schools tend to be produce higher achieving students and at least one reason for that is that the
1
John Packer, "The Content and Aim of Minority Education from the Perspective of International Instruments",
International Journal on Minority and Group Rights, Vol. 4, No. 2, 1996/7, pp. 171-174.
121
administrations and teachers are so accountable to the constituents. Decentralizing education
provides these desired results at both levels.
Perhaps the best way to ensure parental and community involvement at the primary and
secondary levels is to provide for the creation and administration of a curriculum and instructional
process that reflects the needs, desires, and background of the constituency while satisfying the
curriculum standards and testing requirements established by the central authority. If there are
national exams, this will establish the core body of knowledge that all students will study. The
local governing body will then be allowed to supplement the curriculum as it sees fit.
Implicit in the concept of localizing instruction and curriculum is that there is a local
governing body. In any form of decentralization, this is critical. The powers will be determined
by the form of decentralization. In order to ensure their success, and to be in accord with the
Hague Recommendations, the body should be representative of the student population served and
there must be ongoing training for the members of the governing body. A failure to provide the
training may result in failure and provide a basis to claim that decentralization is not effective.
Training will be particularly important in the areas of personnel, curriculum, finance and
instruction.
Decentralization at the tertiary level must consider the governing body of the institution, as
well as the issues of the academy such as academic freedom, tenure, curriculum and instruction.
The model that best addresses the issue is for each university to have a self-governing board
accountable to a charter and to a central governing board. The central authority should be
responsible for establishing the standards for the issues identified above while the local governing
board applies the standards.
The importance of decentralization in vocational education must also be addressed. The
questions to be asked include the following:
•
Who best understands the needs of the local labour market?
•
Who can best identify the resources used in the local labour market?
•
Who is most likely to commit resources and guidance in vocational training?
•
Where are the graduates of vocational training most likely to seek employment?
Let me suggest that in each case it is the local/regional employers, and that they should be
involved in the educational process.
4.
TECHNOLOGY
Although technology is not directly related to decentralization, given the title of this conference I
would be remiss if I did not discuss technology and education from two perspectives.
122
The first is the use of technology to promote integration. Technology is ideally suited to
serving students who may not have ready access to traditional educational institutions. It is, after
the original capital outlay, cost effective. Personnel costs are typically reduced by 20-30%, there
is not a need for large physical facilities and students do not have to travel great distances to gain
the advantages.
The second perspective is that of equity. Access to technology, and the resources
that the access provides, is certainly fundamental to education today. We must seek ways to
provide that access, lest we create a new class of “haves” and “have-nots”.
At each level, the thought that must be kept in the forefront is how decentralization can
serve to advance the goals of education.
5.
THE PLANNING PROCESS
The success of the decentralization requires careful planning and preparation. While the planning
process should be adapted to each country, the following provides general parameters:
a) Identify the stakeholders. These include political parties, regional and local
governmental officials, teacher unions, parents, professors and teachers, and outside
groups such as churches and donors. Ascertain their interests and concerns and make
certain they are addressed if not resolved.
b) Identify and allocate resources.
c) Identify the areas, if any that are to be reserved to the central authority and the process
to review compliance with goals by regional and local authorities.
d) Establish expectations for regional/local authorities. These should include conforming
with international standards, promotion of integration, and the exploration of innovative
ways to promote participation by national minorities.
e) Provide for ongoing evaluation of the process and for training of participating parties,
both professional and citizens.
f) Understand and acknowledge that it is an evolving and ongoing process
6.
CONCLUSION
There is general agreement that it serves all parties best if every constituent group participates in
the education process to the greatest possible extent. It serves us well if every child and adult is
prepared to participate in the economy and governing process. The struggle we have is to make
certain that we use education in an enlightened fashion and not to promote either submissiveness
or divisiveness. To that end, we must submit each policy and planning decision to the
international standards agreed to by the States.
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BIBLIOGRAPHY
Blair, Harry, Assessing Democratic Decentralization: ACDIE Concept Paper, Washington D.C.:
U.S. Agency for International Development, Bureau for Policy Programme Coordination, 1997.
Bullock, Allison & Thomas Hywel, Schools at the Centre? A Study of Decentralization,
Birmingham, U.K.: University of Birmingham, College of Education, 1996.
Eiken, Odd, “Reforming Primary Education: an Outline for Politicians Who Dare”, Journal of
Education, Vol. 76, No. 2, 1994, pp. 7-14.
Fiske, Edward, “Decentralisation of Education: Gaming Consensus”, Directions in Development
Series, Washington D.C.: World Bank, 1996.
Florestal, Ketleen & Robb Cooper, “Decentralisation of Education: Legal Issues”, Directions in
Development Series, Washington D.C.: World Bank, 1997.
Garrido, Jose, “Decentralisation in Decision Making and its Relationship to Internationalisation”,
European Education, Vol. 25, 1994, pp. 57-65.
Gaynor, Cathy, “Decentralisation of Education: Teacher Management”, Directions in
Development Series, Washington D.C.: World Bank, 1998.
Hannaway, Jane, Structural Reform in Education, Boulder: Westview Press, 1997.
Hannaway, Jane & Martin Carnoy, Decentralisation and School Improvement: Can We Fulfil the
Promise?, San Francisco: Jossey-Bass, 1993.
Kaufman, Cathy C., “Educational Decentralisation in Communist and Post Communist Hungary”,
International Review of Education, Vol. 43, 1997, pp. 25-41.
Koretz, Daniel, “Standards and Assessment in the Context of Educational Decentralisation”,
Paper Presented at the World Bank Seminar of Education Decentralisation, Washington D.C.:
World Bank, 1995.
Lauglo, Jon, “Forms of Decentralisation and their Implications for Education”, Comparative
Education, Vol. 31, 1995, pp. 5-29.
Malakov, N.D., “Innovations in the Regional Administration of education”, Russian Education
Society, Vol. 39, 1997, pp. 5-18.
124
Packer, John, “The Content and Aim of Minority Education from the Perspective of International
Instruments”, International Journal on Minority and Group Rights, Vol. 4, No. 2, 1996/7, pp. 171174.
Williams, Richard C., Barbara Harold & Jan Robertson, “Sweeping Decentralisation of
Educational Decision Making Authority: Lessons From England and New Zealand”, Phi Delta
Kappa, Vol. 78, 1997, pp. 626-31.
125
126
Chairman’s Statement
CHAIRMAN'S STATEMENT
20 October 1998
The International Conference “Governance and participation: Integrating Diversity” took place on
18-20 October in Locarno, Switzerland. The Conference, which was hosted by the Swiss
Government and the Canton of Ticino, was opened by H.E. Mr. Flavio Cotti, President of the
Swiss Confederation. The event was made possible on the basis of the generous support of
several Governments, including the United States of America, Norway, the Netherlands, Sweden
and Switzerland. Leading international experts attended and contributed to the work of the
Conference.
The initiative to organize the Conference originated from two of the OSCE Institutions,
namely the High Commissioner on National Minorities and the Office for Democratic Institutions
and Human Rights. Their experience indicated that the developments taking place in the postCold War world require new approaches to address contemporary challenges. In particular, there
is a need to explore the ways and means to fulfill the common objective of good governance,
including through decentralization and subsidiarity. In inter-ethnic relations, the solutions for
minority-related problems could be satisfactorily ensured through the development of
progressively open and decentralized States with the free exercise of individual choice. Indeed,
meeting the specific needs and concerns of minorities would strengthen the State.
During the discussion, the Chairman took note of the following:
The enduring validity of the Helsinki Decalogue of Principles of 1975 and its applicability
in the new era were underlined. It was especially stressed that these principles should always be
considered and implemented together and not selectively. In this respect, special emphasis was
placed on the positive correlation between the principles relating to self-determination and respect
for sovereignty, territorial integrity, and the inviolability of internationally recognized borders.
These principles are not irreconcilable. “External” self-determination through secession is fraught
with the potential for conflict. Instead, it was observed that a great variety of solutions are
available to the contemporary State to accommodate the vital interests and aspirations of
minorities through the means of “internal” self-determination.
The necessary balance between these principles may be achieved in the interests of security
for all within the State and the region through, inter alia, the following means:
States can introduce forms of effective participation of minorities in public decisionmaking, especially in matters that concern them, through electoral processes as well as
special mechanisms for structured dialogue, consultation and advice. States can
introduce forms of devolution to bring the political decision-making processes as close
as possible to those most directly affected by it. States can establish various forms of
127
autonomy, especially on a cultural or functional basis. States can ensure the freedom
and opportunities for the use of language and the enjoyment of culture of minorities in
conditions of equality. States can provide educational regimes which respond to the
genuine needs and desires of minorities for the maintenance and development of their
identity.
These and other forms of integration offer realistic alternatives to the detrimental policies of
forced assimilation and self-imposed isolation of minorities. Indeed, it has been demonstrated that
addressing minority concerns through methods of integration can lead members of minorities to
focus not merely on their own concerns, but on those of the State as a whole. At the same time, it
was also noted that each State may adopt diverse forms of integration to respond to diverse
minority issues. Various formal and informal mechanisms may be used that take account of the
number and geographic concentration of persons belonging to minorities. Commitment of
adequate resources is essential to this process. Such methods of integration must be based on a
foundation of democracy, the rule of law, and human rights, and must be pursued with full respect
for them.
Failure to ensure peaceful integration is among the main causes of a number of the current
conflicts within the OSCE area. It was also stressed that extreme nationalism poses a direct threat
to stability and security within the State and is a main cause of intra- and inter-State conflict.
In the light of the above, it is desirable for States to explore further and consider for
implementation alternative forms of governance and participation as necessary.
It is also desirable to disseminate the materials of the Conference and carry out concrete
follow-up activities, including the further elaboration and specification of the various concepts and
mechanisms of good governance with the effective participation of minorities, leading to
integration of diversity within the State.
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Agenda
AGENDA
GOVERNANCE AND PARTICIPATION: INTEGRATING DIVERSITY
LOCARNO, SWITZERLAND
18-20 OCTOBER 1998
18 October, Sunday
16:00 - 17:45
Opening Addresses
H.E. Mr. Flavio Cotti
President of the Swiss Confederation
Mr. Max van der Stoel
OSCE High Commissioner on National Minorities (HCNM)
Amb. Gérard Stoudmann
Director of the OSCE Office for Democratic Institutions and Human Rights (ODIHR)
18:00
Reception offered by the Municipal Council of Locarno
19 October, Monday
09:30 - 11:00
“Good Governance: Notions and Forms”
Chair:
Mr. Max van der Stoel, OSCE HCNM
Speakers:
Prof. Vernon Bogdanor (British)
Professor of Government, Oxford University
Amb. Prof. Danilo Türk (Slovene)
Professor of International Law, Ljubljana University
Permanent Representative of Slovenia to the UN, New York
11:00 - 11:30
Coffee
129
11:30 - 13:00
Chair:
Amb. Gérard Stoudmann, Director of the OSCE ODIHR
Speakers:
“Effective Participation Through Elections”
Dr. Andrew Reynolds (British)
Assistant Professor of Government and International Studies,
University of Notre Dame
“Effective Participation: Advisory and Decision-making Bodies and Dialogue
Mechanisms”
Dr. Fernand de Varennes (Canadian)
Senior Lecturer at the School of Law, Murdoch University
Director of the Asia-Pacific Centre for Human Rights and the Prevention of
Ethnic Conflict (Australia)
13:00 - 15:00
Lunch
15:00 - 16:15
“Good Governance: Implications”
Chair:
Amb. Raimond Kunz, Head of Political Division III,
Federal Department of Foreign Affairs, Switzerland
Speakers:
Prof. Rein Müllerson (Estonian)
Chair of International Law, King’s College, University of London
Mr. Tom Price (American)
OSCE Coordinator for Economic and Environmental Activities
16:15 - 16:45
Coffee
16:45 - 18:00
“Integrating Diversity: Effective Policies and Programmes”
Chair:
Speakers:
Dr. Miquel Strubell (Spanish/Catalan)
Director, Institute of Catalan Sociolinguistics, Generalitat de Catalunya
(regional government of Catalonia)
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Agenda
Prof. György Szépe (Hungarian)
Professor of Language Sciences, Janus Pannonius University
18:30
Dinner offered by the Swiss Foreign Ministry
20 October, Tuesday
09:00 - 10:15
“Education: Alternatives; Decentralization and Participation; Public and
Private”
Chair:
Mr. Wilibald Winkler, Deputy Minister for National Education, Poland
Speaker:
Mr. Diego Erba (Swiss)
Director of the Pedagogical Review of the “Scuola Ticinese”
10:15 - 10:45
Coffee
10:45 - 12:00
“Education: Primary, Secondary, Vocational and Tertiary”
Chair:
Mr. Max van der Stoel, OSCE HCNM
Speaker:
Dr. Robb Cooper (American)
Professor of Education, Northern Illinois University
12:00 - 13:00
Concluding Session
Chair:
13:00
Closing Lunch
131
132
List of Contributors
LIST OF CONTRIBUTORS
Prof. Vernon BOGDANOR FBA CBE is Professor of Politics and Government and CUF
University Lecturer at Brasenose College, Oxford University. He is the author of numerous
articles and books including Devolution (1979, revised edition Devolution in the United Kingdom,
1999), Multi-Party Politics and the Constitution (1983), and Power and the People: A Guide to
Constitutional Reform (1997).
Dr. Robb COOPER is a lawyer and educationalist. At the time of the conference he was
Associate Professor at Northern Illinois University and acted as a consultant to The World Bank
and the US Agency for International Development.
Mr. Diego ERBA received his Diploma of Advanced Studies in the Science of Education, from
the University of Geneva. He has been Director of the Pedagogical Review of the “Scuola
Ticinese” since 1993 and also acts as a consultant to the Council of Europe.
Ms. Sally Holt was, at the time of the conference, Legal Officer at the Office of the OSCE High
Commissioner on National Minorities. In 2004 she became Research Fellow at the Centre for
International Cooperation and Security at the University of Bradford.
Prof. Rein MÜLLERSON, at the time of the conference, Chair of International Law, King’s
College, University of London, is a former Deputy Foreign Minister of Estonia and Member of the
UN Human Rights Committee. He is the author of numerous articles and books including Human
Rights Diplomacy (1997).
Mr. John PACKER was, until February 2004, Director in the Office of the OSCE High
Commissioner on National Minorities where, between September 1995 and March 2000, he was
Senior Legal Adviser. He is currently Director of the Human Rights Centre, University of Essex
and was previously the project coordinator and principal investigator for the global Initiative on
Conflict Prevention through Quiet Diplomacy.
Mr. Tom PRICE was, at the time of the conference, OSCE Co-ordinator for Economic and
Environmental Activities between March 1998 and April 2001. Previously he served as OSCE
Co-ordinator in the US Department of State, and Special Assistant to the Assistant Secretary for
European Affairs and then Executive Assistant to the Under Secretary of State for Political Affairs
in the US Department of State.
Dr. Andrew REYNOLDS was, at the time of the conference, Assistant Professor of Government
and International Relations at the University of Notre Dame. He is the author of numerous articles
and books including The International IDEA Handbook of Electoral System Design (co-author,
1997) and Voting for a New South Africa (1993).
133
Dr. Miquel STRUBELL was, at the time of the conference, Head of the Linguistic Normalisation
Office in the Directorate General for Language Policy, Generalitat de Catalunya, as well as Head
of the Institute of Catalan Sociolinguists. He is currently Deputy Director of the Department of
Humanities and Philosophy of the Open University of Catalonia. Author of numerous articles and
papers, he is a consultant to the Council of Europe and the OSCE.
Prof. Gyögy SZÉPE was, at the time of the conference, Professor in the Department of Language
Sciences at the University Janus Pannonius in Pecs (Hungary). He has also been Vice-President
of the International Association of Applied Linguistics, as well as Secretary-General of the
International Federation of Modern Language Associations, and is the author of numerous articles
and books.
Amb. Danilo TÜRK was, at the time of the conference, Professor of International Law at
Ljubljana University (subsequently becoming Vice-Dean and Head of the Chair of International
Law) and Ambassador and Permanent Representative of Slovenia to the United Nations (New
York). He was United Nations Assistant Secretary General for Political Affairs from 2000-2005.
and is a former Member of the UN Sub-Commission on the Prevention of Discrimination and the
Protection of Minorities and the author of numerous scholarly articles and UN reports.
Dr. Fernand de VARENNES was, at the time of the conference, Senior Lecturer at the School of
Law at Murdoch University in Perth, Australia, and is currently an Associate Professor. Previously
he was Director of the Asia-Pacific Centre for Human Rights and the Prevention of Ethnic
Conflict. He received his Doctor of Laws from the University of Maastricht. Dr. de Varennes is
the author of Language, Minorities and Human Rights (Kluwer Law International, 1996).
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List of Participants
LIST OF PARTICIPANTS
OSCE PARTICIPATING STATES
ALBANIA
Mr. LAKRORI Maqo
State Secretary for European Integration
Ministry for Foreign Affairs
Amb. TURDIU Gazmend
Director of the Department for E.A.
Cooperation
GERMANY
Mr. KRUPATZ Rainer
Deputy Head of Division
Federal Ministry of the Interior
Dr. SCHAEFER Michael
UNITED STATES OF AMERICA
Ms. BONKOWSKY Elizabeth
Political Officer
United States Mission to the OSCE
Ms. ORENTLICHER Diane
Professor of Law
American University; Washington College of
Law
Mr. SPENCER William
Special Adviser
Bureau of Democracy, Human Rights and
Labour; U.S. Department of State
ARMENIA
Mr. STAKYAN Mihran
Deputy Minister for Science and Education
Ms. ASATURIAN Vardouhi
Secretary General
Armenian National Commission for
UNESCO
AUSTRIA/EUROPEAN UNION
Ms. RIEDERER Elisabeth
First Secretary
Permanent Mission of Austria to the UN
Dr. BENEDEK Wolfgang
University Professor
University of Graz; Institute of International
Law
135
*****
Dr. CHISHOLM Lynne
Principal Administrator
European Commission; Directorate General
for Education, Training and Youth (DG
XXII)
Mr. PENNY John
Principal Administrator
European Commission; DG1A A2
BELARUS
Mr. BILYK Alexandre
Head of the State Committee for Religion and
Nationalities
Ms. ZHYLEVICH Natallia
Head of the Department for Humanitarian
Cooperation; Ministry for Foreign Affairs
Mr. GIRO Andrei
Chargé d’Affaires
Embassy of Belarus in Switzerland
BELGIUM
Amb. NIEUWENHUYS Philippe
Permanent Representative
Permanent Mission of Belgium to the OSCE
BOSNIA AND HERZEGOVINA
Prof. Dr. TANOVIĆ Nenad
Minister of Education, Science, Culture
and Sport
Amb. TURKOVIĆ Bisera
Head of the Permanent Mission of Bosnia and
Herzegovina to the OSCE
BULGARIA
Mr. KOLAROV Peter
Counsellor
Mr. GANTCHEV Dimiter
Deputy Head of the Permanent Mission
of Bulgaria to the UN
CANADA
Dr. SEIDLE F. Leslie
Director General of Policy and Research
Privy Council Office
Ms. CORMIER Hélène
Director
Department of Canadian Heritage
136
CROATIA
Mr. SOČANAC Branko
Head of Human Rights Department
Mr. GÖTTLICHER Darko
Counsellor to Deputy Prime Minister
Office of the Prime Minister
DENMARK
Amb. MARCUSSEN Jan
Royal Danish Embassy; Switzerland
SPAIN
Mr. DE PALACIO ESPAÑA Iñigo
Permanent Mission of Spain to the UN
ESTONIA
Mrs. VEIDEMANN Andra
Minister of Nationalities
Mr. MILLER Peeter
Counsellor
Political Department; Ministry for Foreign
Affairs
FINLAND
Ms. LIMNELL Eija
Special Assistant to the Minister
Mr. KYRÖLÄINEN Hannu
Deputy Director General
Political Department; Ministry for
Foreign Affairs
FRANCE
Amb. PETIT Philippe
Permanent Mission of France to the UN
GEORGIA
Mr. GERASIMOV Aleksi
Assistant to the President of Georgia on
Inter-Ethnic Relations
UNITED KINGDOM
Mr. PHILLIPS Alan
Expert
Mr. THOMAS Quentin
Cabinet Office
Constitution Secretariat
GREECE
Mr. BREDIMAS Antonis
Professor of International Law
137
HUNGARY
Dr. DONCSEV Toso
Deputy Secretary of State
President of the Office for National
and Ethnic Minorities
Dr. BÁTHORY János
Head of Department
Government Office for Hungarians
Minorities Abroad
IRELAND
Mr. SEXTON Don
Second Secretary
Embassy of Ireland; Switzerland
ITALY
Mr. RONZITTI Natalino
Professor of International Law
KAZAKHSTAN
Mr. ABDILDIN Zhabaihan
Chairman of the Human Rights Commission
assigned to the President of the Republic of
Kazakhstan
Mr. IMANALIEV Baurzhan
Deputy Secretary General
Human Rights Commission; Administration of
the President of the Republic of Kazakhstan
KYRGYZSTAN
Mr. DORDOEV Saguynbek
First Deputy Minister for Foreign Affairs
Mr. SARYBAEV Asanbek
Chief of the Social Development Department,
Office of the Prime Minister
LATVIA
Ms. BIRZNIECE Inese
Member of the Parliament of Latvia
Ms. KINSTLERE Baiba
Head of Integration Division
Ministry of Education
THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
Amb. MALESKI Ognen
Head of the Permanent Mission of the former
Yugoslav Republic of Macedonia to the
OSCE
Ms. JAKOVLEVSKA Lela
Adviser to the Minister of Education and
Physical Culture
138
LIECHTENSTEIN
Amb. KOTHBAUER von
LIECHTENSTEIN Maria-Pia
Head of the Permanent Mission of the
Principality of Liechtenstein to the OSCE
LITHUANIA
Ms. VĖBRAITĖ Vaiva
Vice-Minister of Education
Mr. SAVICKAS Virgilijus
Adviser to the Prime Minister
MOLDOVA
Mr. GRICIUC Petru
Adviser on Public Administration Relations
Office of the President of the Republic of
Moldova
Mr. GRIBINCEA Mihai
Head of European Security and Political
Military Issues Department; Ministry for
Foreign Affairs
NORWAY
Mrs. GAUP Johanne N.
State Secretary
Ministry of Local Government and Regional
Development
Mrs. NYSTAD Ragnhild L.
Vice President
Sami Assembly of Norway
Mr. ARNESEN Arne G.
Director General
Ministry of Local Government and Regional
Development
Mrs. DAHL HANSEN Helen
Adviser to the OSCE Unit
Ministry of Foreign Affairs
UZBEKISTAN
Mr. TASHMATOV Zairkul
Deputy Chief of International Relations
Department; Ministry of Higher and
Secondary School Education
Mr. CHULLIEV Shuhrat
Chief of Department
Ministry of Justice
THE NETHERLANDS
Mrs. MINDERHOUD C.
Director
Democratization and Good Governance
Department; Ministry for Foreign Affairs
139
POLAND
Mr. STĘPIEŃ Jerzy
Under-Secretary of State
Ministry of Internal Affairs and Public
Administration
Mr. WINKLER Wilibald
Deputy Minister for National Education
Prof. KUŹNIAR Roman
Senior Adviser
PORTUGAL
Ms. CARIVALHO DOS SANTOS Maria
Chefe de Gabinete
Presidencia do Conselho de Ministros; Alto
Comissario Para a Imigracao e Minorias
Etnicas
ROMANIA
Mr. FARCAS Alexandru
Counsellor
Permanent Mission of Romania to the UN
Mr. MARKÓ Attila
Director
Department for Protection of National
Minorities Government of Romania
RUSSIAN FEDERATION
Ms. GRACHEVA Vera
Head of Division
Ms. TSYRENOVA Zoya
Deputy Head of the Department on National
Relations
Ministry on Regional and National Politics
HOLY SEE
Msgr. DI GREGORI Massimo
Permanent Mission of the Holy See to the UN
SLOVAK REPUBLIC
Mr. BURIAN Peter
Director General
SLOVENIA
Mrs. LOGAR Mihaela
State Secretary
Office for Slovenians Abroad
Mr. ŽAGAR Mitja
Director of the Institute for Ethnic Studies
140
SWEDEN
Amb. MOSSBERG Mathias
Mr. RÖNQUIST Anders
Deputy Director
SWITZERLAND
Amb. KUNZ Raimund
Head of Political Division III
Federal Department of Foreign Affairs
Mr. MADER Luzius
Vice-Director of the Federal Office for Law
Federal Department of Law and Police
Mr. KUNZ Kurt
Head of OSCE Section
Ms. BÜRGI Christina
Deputy Head of OSCE Section
TAJIKISTAN
Mr. DAVLATOV Davlatali
State Presidential Adviser on Public
Associations and Ethnic Relations
Office of the President of Tajikistan
Mr. ALIEV Zarif
Deputy Chairman of the Constitutional Court
CZECH REPUBLIC
Mr. LÁNSKÝ Egon T.
Deputy Prime Minister of the Czech Republic
Office of the Government
Mr. DOLANSKÝ Martin
Adviser to the Deputy Prime Minister of the
Czech Republic
Mr. SEKYT Viktor
Executive Chairman of the Interdepartmental
Commission for Roma Issues
TURKEY
Mr. ARINER Ugur
Counsellor
Embassy of Turkey; Switzerland
UKRAINE
Mr. RUDKO Mykola O.
Head of the State Committee of Ukraine for
Nationalities and Minorities
Mr. ANDRIANOV Kiril V.
Attaché Ministry for Foreign Affairs
141
INTERNATIONAL ORGANIZATIONS
Council of the Baltic Sea States
Mr. ESPERSEN Ole
High Commissioner on Democratic
Institutions and Human Rights
Council of Europe
Mr. FURRER Hans-Peter
Director of Political Affairs Department
Mr. MARTINI Gianfranco
Member of the Congress of Local and
Regional Authorities of Europe
Ms. GÜTZKOW Jutta
OSCE Liaison Officer; Directorate of
Political Affairs
United Nations Development Programme
Management Development and Governance Division
Bureau for Development Policy
Mr. PALMLUND Thord
Special Adviser
United Nations Development Programme
RBEC Support Centre
Mr. AEBERHARD Jürg
Chief, Technical Adviser
UNESCO
Mr. DE GUCHTENEIRE Paul
Programme Specialist
United Nations High Commissioner for Refugees
Mr. NAHAJLO Bohdan
Senior Policy Officer for the CIS
GUESTS
Ms. Gret HALLER
Human Rights Ombudsperson
for Bosnia & Herzegovina
Ms. Marina MASONI
President of the Ticino Council
142
OSCE INSTITUTIONS
Mr. VAN DER STOEL Max
High Commissioner
Mr. SCHELTEMA Gajus
Personal Adviser to the High Commissioner
Mr. PACKER John
Legal Adviser
Mr. VASSILEV Stefan
Adviser
Mr. RATNER Steven
Fulbright Scholar in OSCE Studies
Mr. BEKKER René Peter
Archivist
OSCE Office for Democratic Institutions and Human Rights
Amb. STOUDMANN Gérard
Director
Mr. PALISZEWSKI Jacek
Second Deputy Director
Mr. STĘPIŃSKI Ireneusz
Logistic Services Officer
Ms. SIERANT Anna
Secretary
Office of the Co-ordinator of OSCE Economic and Environmental Activities
Mr. PRICE Thomas
Co-ordinator of OSCE
Economic and Environmental Activities
OSCE Mission to Estonia
Amb. VON BERG Detlof
Head of Mission
143
144
Selected OSCE Standards and References
SELECTED OSCE
STANDARDS AND REFERENCES
CHARTER OF PARIS FOR A NEW EUROPE
(Paris, 21 November 1990)
Ours is the time for fulfilling the hopes and expectations our peoples have cherished for decades:
steadfast commitment to democracy based on human rights and fundamental freedoms; prosperity
through economic liberty and social justice; and equal security for all our countries.
[...]
We undertake to build, consolidate and strengthen democracy as the only system of government of
our nations.
[...]
Proceeding from the Document of the Copenhagen Meeting of the Conference on the Human
Dimension, we will co-operate to strengthen democratic institutions and to promote the
application of the rule of law. To that end, we decide to convene a seminar of experts in Oslo
from 4 to 15 November 1991.
Determined to foster the rich contribution of national minorities to the life of our societies, we
undertake further to improve their situation. [...] We declare that questions related to national
minorities can only be satisfactorily resolved in a democratic framework. [...] ... we decide to
convene a meeting of experts on national minorities to be held in Geneva from 1 to 19 July 1991.
DOCUMENT OF THE COPENHAGEN MEETING OF THE CONFERENCE ON THE
HUMAN DIMENSION OF THE CSCE
(Copenhagen, 29 June 1990)
(33)
The participating States will protect the ethnic, cultural, linguistic and religious identity of
national minorities on their territory and create conditions for the promotion of that identity.
They will take the necessary measures to that effect after due consultations, including contacts
with organizations or associations of such minorities, in accordance with the decision-making
procedures of each State.
Any such measures will be in conformity with the principles of equality and nondiscrimination with respect to the other citizens of the participating State concerned.
145
(35)
The participating States will respect the right of persons belonging to national minorities to
effective participation in public affairs, including participation in the affairs relating to the
protection and promotion of the identity of such minorities.
The participating States note the efforts undertaken to protect and create conditions for the
promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities
by establishing, as one of the possible means to achieve these aims, appropriate local or
autonomous administrations corresponding to the specific historical and territorial
circumstances of such minorities and in accordance with the policies of the State concerned.
REPORT OF THE CSCE MEETING OF EXPERTS ON NATIONAL MINORITIES
(Geneva, 19 July 1991)
IV.
[...]
Aware of the diversity and varying constitutional systems among them, which make no single
approach necessarily generally applicable, the participating States note with interest that positive
results have been obtained by some of them in an appropriate democratic manner by, inter alia:
•
advisory and decision-making bodies in which minorities are represented, in particular with
regard to education, culture and religion;
•
elected bodies and assemblies of national minority affairs;
•
local and autonomous administrations, as well as autonomy on a territorial basis, including
the existence of consultative, legislative and executive bodies through free and periodic
elections;
•
self-administration by a national minority of aspects concerning its identity in situations
where autonomy on a territorial basis does not apply;
•
decentralized or local forms of government;
[...]
•
provision of financial and technical assistance to persons belonging to national minorities who
so wish to exercise their right to establish and maintain their own educational, cultural and
religious institutions, organizations and associations;
[...]
146
The Lund Recommendations on the Effective Participation of National Minorities in Public Life
THE LUND RECOMMENDATIONS ON THE
EFFECTIVE PARTICIPATION
OF NATIONAL MINORITIES
IN PUBLIC LIFE & EXPLANATORY NOTE,
September 1999
INTRODUCTION
In its Helsinki Decisions of July 1992, the Organization for Security and Cooperation in Europe
(OSCE) established the position of High Commissioner on National Minorities to be “an
instrument of conflict prevention at the earliest possible stage”. This mandate was created largely
in reaction to the situation in the former Yugoslavia which some feared would be repeated
elsewhere in Europe, especially among the countries in transition to democracy, and could
undermine the promise of peace and prosperity as envisaged in the Charter of Paris for a New
Europe adopted by the Heads of State and Government in November 1990.
On 1 January 1993, Mr. Max van der Stoel took up his duties as the first OSCE High
Commissioner on National Minorities (HCNM). Drawing on his considerable personal experience
as a former Member of Parliament, Foreign Minister of The Netherlands, Permanent
Representative to the United Nations, and long-time human rights advocate, Mr. van der Stoel
turned his attention to the many disputes between minorities and central authorities in Europe
which had the potential, in his view, to escalate. Acting quietly through diplomatic means, the
HCNM has become involved in over a dozen States, including Albania, Croatia, Estonia,
Hungary, Kazakstan, Kyrgyzstan, Latvia, the Former Yugoslav Republic of Macedonia, Romania,
Slovakia and Ukraine. His involvement has focused primarily on those situations involving
persons belonging to national/ethnic groups who constitute the numerical majority in one State but
the numerical minority in another State, thus engaging the interest of governmental authorities in
each State and constituting a potential source of inter-State tension if not conflict. Indeed, such
tensions have defined much of European history.
In addressing the substance of tensions involving national minorities, the HCNM approaches the
issues as an independent, impartial and cooperative actor. While the HCNM is not a supervisory
mechanism, he employs the international standards to which each State has agreed as his principal
framework of analysis and the foundation of his specific recommendations. In this relation, it is
important to recall the commitments undertaken by all OSCE participating States, in particular
those of the 1990 Copenhagen Document of the Conference on the Human Dimension which, in
Part IV, articulates detailed standards relating to national minorities. All OSCE States are also
bound by United Nations obligations relating to human rights, including minority rights, and the
great majority of OSCE States are further bound by the standards of the Council of Europe.
Through the course of more than six years of intense activity, the HCNM has identified certain
recurrent issues and themes which have become the subject of his attention in a number of States
in which he is involved. Among these are issues of minority education and use of minority
languages, in particular as matters of great importance for the maintenance and development of the
identity of persons belonging to national minorities. With a view to achieving an appropriate and
coherent application of relevant minority rights in the OSCE area, the HCNM requested the
Foundation on Inter-Ethnic Relations — a non-governmental organization established in 1993 to
carry out specialized activities in support of the HCNM — to bring together two groups of
147
internationally recognized independent experts to elaborate two sets of recommendations: The
Hague Recommendations regarding the Education Rights of National Minorities (1996) and
the Oslo Recommendations regarding the Linguistic Rights of National Minorities (1998).
Both sets of recommendations have subsequently served as references for policy- and law-makers
in a number of States. The recommendations are available (in several languages) from the
Foundation on Inter-Ethnic Relations free of charge.
A third recurrent theme which has arisen in a number of situations in which the HCNM has been
involved is that of forms of effective participation of national minorities in the governance of
States. In order to gain a sense of the views and experiences of OSCE participating States on this
issue and to allow States to share their experiences with each other, the HCNM and the OSCE’s
Office for Democratic Institutions and Human Rights convened a conference of all OSCE States
and relevant international organizations entitled “Governance and Participation: Integrating
Diversity”, which was hosted by the Swiss Confederation in Locarno from 18 to 20 October 1998.
The Chairman’s Statement issued at the end of the conference summarized the themes of the
meeting and noted the desirability of “concrete follow-up activities, including the further
elaboration of the various concepts and mechanisms of good governance with the effective
participation of minorities, leading to integration of diversity within the State.” To this end, the
HCNM called upon the Foundation on Inter-Ethnic Relations, in co-operation with the Raoul
Wallenberg Institute of Human Rights and Humanitarian Law, to bring together a group of
internationally recognized independent experts to elaborate recommendations and outline
alternatives, in line with the relevant international standards.
The result of the above initiative is The Lund Recommendations on the Effective Participation
of National Minorities in Public Life — named after the Swedish city in which the experts last
met and completed the recommendations. Among the experts were jurists specializing in relevant
international law, political scientists specializing in constitutional orders and election systems, and
sociologists specializing in minority issues. Specifically, under the Chairmanship of the Director
of the Raoul Wallenberg Institute, Professor Gudmundur Alfredsson, the experts were:
Professor Gudmundur Alfredsson (Icelandic), Director of the Raoul Wallenberg
Institute of Human Rights and Humanitarian Law, Lund University; Professor Vernon
Bogdanor (British), Professor of Government, Oxford University; Professor Vojin
Dimitrijevi_ (Yugoslavian), Director of the Belgrade Centre for Human Rights; Dr.
Asbjørn Eide (Norwegian), Senior Fellow at the Norwegian Institute of Human Rights;
Professor Yash Ghai (Kenyan), Sir YK Pao Professor of Public Law, University of
Hong Kong; Professor Hurst Hannum (American), Professor of International Law,
Fletcher School of Law and Diplomacy, Tufts University; Mr. Peter Harris (South
African), Senior Executive to the International Institute for Democracy and Electoral
Assistance; Dr. Hans-Joachim Heintze (German), Director of the Institut für
Friedenssicherungsrecht und Humanitäres Völkerrecht, Ruhr-Universität Bochum;
Professor Ruth Lapidoth (Israeli), Professor of International Law and Chairman of the
Academic Committee of the Institute for European Studies, The Hebrew University of
Jerusalem; Professor Rein Müllerson (Estonian), Chair of International Law, King’s
College, University of London; Dr. Sarlotta Pufflerova (Slovak), Director, Foundation
Citizen and Minority/Minority Rights Group; Professor Steven Ratner (American),
Professor of International Law, University of Texas; Dr. Andrew Reynolds (British),
Assistant Professor of Government, University of Notre Dame; Mr. Miquel Strubell
(Spanish and British), Director of the Institute of Catalan Socio-Linguistics, Generalitat
de Catalunya; Professor Markku Suksi (Finnish), Professor of Public Law, Åbo
Akademi University; Professor Danilo Türk (Slovene), Professor of International Law,
Ljubljana University; Dr. Fernand de Varennes (Canadian), Senior Lecturer in Law
148
and Director of the Asia-Pacific Centre for Human Rights and the Prevention of Ethnic
Conflict, Murdoch University; Professor Roman Wieruszewski (Polish), Director of
the Poznan Human Rights Centre, Polish Academy of Sciences.
Insofar as existing standards of minority rights are part of human rights, the starting point of the
consultations among the experts was to presume compliance by States with all other human rights
obligations including, in particular, freedom from discrimination. It was also presumed that the
ultimate object of all human rights is the full and free development of the individual human
personality in conditions of equality. Consequently, it was presumed that civil society should be
open and fluid and, therefore, integrate all persons, including those belonging to national
minorities. Moreover, insofar as the objective of good and democratic governance is to serve the
needs and interests of the whole population, it was presumed that all governments seek to ensure
the maximum opportunities for contributions from those affected by public decision-making.
The purpose of the Lund Recommendations, like The Hague and Oslo Recommendations before
them, is to encourage and facilitate the adoption by States of specific measures to alleviate
tensions related to national minorities and thus to serve the ultimate conflict prevention goal of the
HCNM. The Lund Recommendations on the Effective Participation of National Minorities in
Public Life attempt to clarify in relatively straight-forward language and build upon the content of
minority rights and other standards generally applicable in the situations in which the HCNM is
involved. The standards have been interpreted specifically to ensure the coherence of their
application in open and democratic States. The Recommendations are divided into four subheadings which group the twenty-four recommendations into general principles, participation in
decision-making, self-governance, and ways of guaranteeing such effective participation in public
life. The basic conceptual division within the Lund Recommendations follows two prongs:
participation in governance of the State as a whole, and self-governance over certain local or
internal affairs. A wide variety of arrangements are possible and known. In several
recommendations, alternatives are suggested. All recommendations are to be interpreted in
accordance with the General Principles in Part I. A more detailed explanation of each
recommendation is provided in an accompanying Explanatory Note wherein express reference to
the relevant international standards is found.
149
THE LUND RECOMMENDATIONS ON THE EFFECTIVE
PARTICIPATION OF NATIONAL MINORITIES
IN PUBLIC LIFE
I. GENERAL PRINCIPLES
1)
Effective participation of national minorities in public life is an essential component of a
peaceful and democratic society. Experience in Europe and elsewhere has shown that, in
order to promote such participation, governments often need to establish specific
arrangements for national minorities. These Recommendations aim to facilitate the
inclusion of minorities within the State and enable minorities to maintain their own
identity and characteristics, thereby promoting the good governance and integrity of the
State.
2)
These Recommendations build upon fundamental principles and rules of international
law, such as respect for human dignity, equal rights, and nondiscrimination, as they affect
the rights of national minorities to participate in public life and to enjoy other political
rights. States have a duty to respect internationally recognized human rights and the rule
of law, which allow for the full development of civil society in conditions of tolerance,
peace, and prosperity.
3)
When specific institutions are established to ensure the effective participation of
minorities in public life, which can include the exercise of authority or responsibility by
such institutions, they must respect the human rights of all those affected.
4)
Individuals identify themselves in numerous ways in addition to their identity as
members of a national minority. The decision as to whether an individual is a member of
a minority, the majority, or neither rests with that individual and shall not be imposed
upon her or him. Moreover, no person shall suffer any disadvantage as a result of such a
choice or refusal to choose.
5)
When creating institutions and procedures in accordance with these Recommendations,
both substance and process are important. Governmental authorities and minorities
should pursue an inclusive, transparent, and accountable process of consultation in order
to maintain a climate of confidence. The State should encourage the public media to
foster intercultural understanding and address the concerns of minorities.
II. PARTICIPATION IN DECISION-MAKING
A. Arrangements at the Level of the Central Government
6)
States should ensure that opportunities exist for minorities to have an effective voice at
the level of the central government, including through special arrangements as necessary.
These may include, depending upon the circumstances:
•
special representation of national minorities, for example, through a reserved
number of seats in one or both chambers of parliament or in parliamentary
committees; and other forms of guaranteed participation in the legislative
process;
150
•
formal or informal understandings for allocating to members of national
minorities cabinet positions, seats on the supreme or constitutional court or
lower courts, and positions on nominated advisory bodies or other high-level
organs;
•
mechanisms to ensure that minority interests are considered within relevant
ministries, through, e.g., personnel addressing minority concerns or issuance of
standing directives; and
•
special measures for minority participation in the civil service as well as the
provision of public services in the language of the national minority.
B. Elections
7)
Experience in Europe and elsewhere demonstrates the importance of the electoral process
for facilitating the participation of minorities in the political sphere. States shall guarantee
the right of persons belonging to national minorities to take part in the conduct of public
affairs, including through the rights to vote and stand for office without discrimination.
8)
The regulation of the formation and activity of political parties shall comply with the
international law principle of freedom of association. This principle includes the freedom
to establish political parties based on communal identities as well as those not identified
exclusively with the interests of a specific community.
9)
The electoral system should facilitate minority representation and influence.
10)
•
Where minorities are concentrated territorially, single-member districts may
provide sufficient minority representation.
•
Proportional representation systems, where a political party's share in the
national vote is reflected in its share of the legislative seats, may assist in the
representation of minorities.
•
Some forms of preference voting, where voters rank candidates in order of
choice, may facilitate minority representation and promote inter-communal
cooperation.
•
Lower numerical thresholds for representation in the legislature may enhance the
inclusion of national minorities in governance.
The geographic boundaries of electoral districts should facilitate the equitable
representation of national minorities.
C. Arrangements at the Regional and Local Levels
11)
States should adopt measures to promote participation of national minorities at the
regional and local levels such as those mentioned above regarding the level of the central
government (paragraphs 6-10) The structures and decision-making processes of regional
and local authorities should be made transparent and accessible in order to encourage the
participation of minorities.
151
D. Advisory and Consultative Bodies
12)
States should establish advisory or consultative bodies within appropriate institutional
frameworks to serve as channels for dialogue between governmental authorities and
national minorities. Such bodies might also include special purpose committees for
addressing such issues as housing, land, education, language, and culture. The
composition of such bodies should reflect their purpose and contribute to more effective
communication and advancement of minority interests.
13)
These bodies should be able to raise issues with decision makers, prepare
recommendations, formulate legislative and other proposals, monitor developments and
provide views on proposed governmental decisions that may directly or indirectly affect
minorities. Governmental authorities should consult these bodies regularly regarding
minority-related legislation and administrative measures in order to contribute to the
satisfaction of minority concerns and to the building of confidence. The effective
functioning of these bodies will require that they have adequate resources.
III. SELF-GOVERNANCE
14)
Effective participation of minorities in public life may call for non-territorial or territorial
arrangements of self-governance or a combination thereof. States should devote adequate
resources to such arrangements.
15)
It is essential to the success of such arrangements that governmental authorities and
minorities recognize the need for central and uniform decisions in some areas of
governance together with the advantages of diversity in others.
16)
•
Functions that are generally exercised by the central authorities include defence,
foreign affairs, immigration and customs, macroeconomic policy, and monetary
affairs.
•
Other functions, such as those identified below, may be managed by minorities
or territorial administrations or shared with the central authorities.
•
Functions may be allocated asymmetrically to respond to different minority
situations within the same State.
Institutions of self-governance, whether non-territorial or territorial, must be based on
democratic principles to ensure that they genuinely reflect the views of the affected
population.
A. Non-Territorial Arrangements
17)
Non-territorial forms of governance are useful for the maintenance and development of
the identity and culture of national minorities.
18)
The issues most susceptible to regulation by these arrangements include education,
culture, use of minority language, religion, and other matters crucial to the identity and
way of life of national minorities.
•
Individuals and groups have the right to choose to use their names in the
minority language and obtain official recognition of their names.
152
•
Taking into account the responsibility of the governmental authorities to set
educational standards, minority institutions can determine curricula for teaching
of their minority languages, cultures, or both.
•
Minorities can determine and enjoy their own symbols and other forms of
cultural expression.
B. Territorial Arrangements
19)
All democracies have arrangements for governance at different territorial levels.
Experience in Europe and elsewhere shows the value of shifting certain legislative and
executive functions from the central to the regional level, beyond the mere
decentralization of central government administration from the capital to regional or local
offices. Drawing on the principle of subsidiarity, States should favourably consider such
territorial devolution of powers, including specific functions of self-government,
particularly where it would improve the opportunities of minorities to exercise authority
over matters affecting them.
20)
Appropriate local, regional, or autonomous administrations that correspond to the specific
historical and territorial circumstances of national minorities may undertake a number of
functions in order to respond more effectively to the concerns of these minorities.
21)
•
Functions over which such administrations have successfully assumed primary
or significant authority include education, culture, use of minority language,
environment, local planning, natural resources, economic development, local
policing functions, and housing, health, and other social services.
•
Functions shared by central and regional authorities include taxation,
administration of justice, tourism, and transport.
Local, regional, and autonomous authorities must respect and ensure the human rights of
all persons, including the rights of any minorities within their jurisdiction.
IV. GUARANTEES
A. Constitutional and Legal Safeguards
22)
Self-governance arrangements should be established by law and generally not be subject
to change in the same manner as ordinary legislation. Arrangements for promoting
participation of minorities in decision-making may be determined by law or other
appropriate means.
•
Arrangements adopted as constitutional provisions are normally subject to a
higher threshold of legislative or popular consent for their adoption and
amendment.
•
Changes to self-governance arrangements established by legislation often
require approval by a qualified majority of the legislature, autonomous bodies or
bodies representing national minorities, or both.
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•
23)
Periodic review of arrangements for self-governance and minority participation
in decision-making can provide useful opportunities to determine whether such
arrangements should be amended in the light of experience and changed
circumstances.
The possibility of provisional or step-by-step arrangements that allow for the testing and
development of new forms of participation may be considered. These arrangements can
be established through legislation or informal means with a defined time period, subject
to extension, alteration, or termination depending upon the success achieved.
B. Remedies
24)
Effective participation of national minorities in public life requires established channels
of consultation for the prevention of conflicts and dispute resolution, as well as the
possibility of ad hoc or alternative mechanisms when necessary. Such methods include:
•
judicial resolution of conflicts, such as judicial review of legislation or
administrative actions, which requires that the State possess an independent,
accessible, and impartial judiciary whose decisions are respected; and
•
additional dispute resolution mechanisms, such as negotiation, fact finding,
mediation, arbitration, an ombudsman for national minorities, and special
commissions, which can serve as focal points and mechanisms for the resolution
of grievances about governance issues.
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EXPLANATORY NOTE TO
THE LUND RECOMMENDATIONS ON
THE EFFECTIVE PARTICIPATION
OF NATIONAL MINORITIES IN PUBLIC LIFE
I. GENERAL PRINCIPLES
1)
Both the Charter of the United Nations (hereafter the "UN Charter") and the
foundational documents of the CSCE/OSCE seek to maintain and strengthen international
peace and security through the development of friendly and co-operative relations
between equally sovereign States respecting human rights, including the rights of persons
belonging to minorities. Indeed, history shows that failure to respect human rights,
including minority rights, can undermine stability within the State and negatively affect
relations between States, thus endangering international peace and security.
Beginning with Principle VII of the decalogue of the 1975 Helsinki Final Act, the OSCE
participating States have emphasized the fundamental link between respecting the
legitimate interests of persons belonging to national minorities and the maintenance of
peace and stability. This link has been reiterated in subsequent basic documents such as
the 1983 Concluding Document of Madrid (Principle 15), the 1989 Concluding
Document of Vienna (Principles 18 and 19), and the 1990 Charter of Paris for a New
Europe, in addition to subsequent Summit Documents, e.g. the 1992 Helsinki
Document (Part IV, paragraph 24) and the 1996 Lisbon Document (Part I, Lisbon
Declaration on a Common and Comprehensive Security Model for Europe for the
Twenty-First Century, paragraph 2). At the level of the United Nations, the link
between protection and promotion of minority rights and maintenance of peace and
stability is expressed, inter alia, in the preamble to the 1992 UN Declaration on the
Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities (hereafter the "UN Declaration on Minorities"). Moreover, following
adoption of the Charter of Paris for a New Europe, all OSCE participating States are
committed to democratic governance.
Full opportunities for the equal enjoyment of the human rights of persons belonging to
minorities entails their effective participation in decision-making processes, especially
with regard to those decisions specially affecting them. While situations vary greatly and
ordinary democratic processes may be adequate to respond to the needs and aspirations of
minorities, experience also shows that special measures are often required to facilitate the
effective participation of minorities in decision-making. The following international
standards commit States to take such action in such situations: according to paragraph 35
of the 1990 Document of the Copenhagen Meeting on the Human Dimension
(hereafter the "Copenhagen Document"), OSCE participating States "will respect the
right of persons belonging to national minorities to effective participation in public
affairs, including participation in the affairs relating to the protection and promotion of
the identity of such minorities"; according to Article 2, paragraphs 2 and 3, of the 1992
UN Declaration on Minorities, "[p]ersons belonging to minorities have the right to
participate effectively in [¼ ] public life" and "the right to participate effectively
in decisions on the national and, where appropriate, regional level concerning the
minority to which they belong or the regions in which they live"; and, according to
Article 15 of the Council of Europe’s 1994 Framework Convention for the Protection
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of National Minorities (hereafter the "Framework Convention"), States 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."
The creation of opportunities for effective participation takes for granted that such
participation will be voluntary. Indeed, the underlying notion of social and political
integration is distinguished from processes and outcomes which constitute coerced
assimilation, as cautioned in Article 5 of the Framework Convention. Only through
voluntary processes may the pursuit of the legitimate interests of persons belonging to
minorities be a peaceful process which offers the prospect of optimal outcomes in public
policy- and law-making. Such inclusive, participatory processes thus serve the objective
of good governance by responding to the interests of the whole population — weaving all
interests into the fabric of public life and ultimately strengthening the integrity of the
State. The international standards referring to effective participation of minorities in
public life underscore the fact that they do not imply any right to engage in activities
contrary to the purposes and principles of the United Nations, OSCE or Council of
Europe, including sovereign equality, territorial integrity and political independence of
States (see paragraph 37 of the Copenhagen Document, Article 8(4) of the UN
Declaration on Minorities, and the preamble of the Framework Convention).
2)
In the spirit of paragraph 25 of Part VI of the 1992 Helsinki Document, these
recommendations build upon the relevant commitments insofar as they offer OSCE
participating States "further avenues for more effective implementation of their CSCE
commitments, including those related to the protection and the creation of conditions for
the promotion of the ethnic, cultural, linguistic and religious identity of national
minorities".
Article 1(3) of the UN Charter specifies that one of the purposes of the organization is
"To achieve international co-operation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion" — which is further specified in Article 55(c) as including
"universal respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion." The Charter is based upon the
intimate relationship between respect for human rights and international peace and
security, and the fundamental value of human dignity is further expressed in Article 1 of
the 1948 Universal Declaration of Human Rights and the preambles of the 1966
International Covenant on Civil and Political Rights, the 1966 International
Covenant on Economic, Social and Cultural Rights, and the 1965 International
Convention on the Elimination of All Forms of Racial Discrimination. Such dignity is
equally inherent in all human beings and accompanied by equal and inalienable rights.
Following from the premise of equal dignity and inalienable rights is the principle of nondiscrimination as expressed in virtually all international human rights instruments,
including notably Article 2 of the Universal Declaration of Human Rights, Articles 2
and 26 of the International Covenant on Civil and Political Rights, and Article 2 of
the International Covenant on Economic, Social and Cultural Rights. Article 1 of the
International Convention on the Elimination of All Forms of Racial Discrimination
makes clear that this instrument prohibits discrimination also on the basis of "descent, or
national or ethnic origin". Article 14 of the 1950 European Convention for the
Protection of Human Rights and Fundamental Freedoms (hereafter the "European
156
Convention on Human Rights") also expressly extends the principle of nondiscrimination to cover grounds of "national or social origin, [or] association with a
national minority", whenever the rights and freedoms guaranteed by the convention are
engaged. Indeed, the constitutions of most OSCE participating States incorporate these
affirmations and principles.
Insofar as persons belonging to national minorities are entitled to the right to effective
participation in public life, they are to enjoy this right without discrimination, as
expressed in paragraph 31 of the Copenhagen Document, Article 4 of the Framework
Convention, and Article 4(1) of the UN Declaration on Minorities. However, according
to Article 4(2) of the Framework Convention, concern for equal dignity extends beyond
the principle of non-discrimination towards "full and effective equality between persons
belonging to a national minority and those belonging to the majority" for which States
should "adopt, where necessary, adequate measures ... in all areas of ... political ... life" in
respect of which "they shall take due account of the specific conditions of the persons
belonging to national minorities."
The connection made in the recommendation between respect for human rights and the
development of civil society reflects the call for an "effective political democracy" which,
according to the Preamble of the European Convention on Human Rights, is intimately
related to justice and peace in the world. OSCE participating States have further affirmed
in the Charter of Paris for a New Europe that democratic governance, including respect
for human rights, is the basis for prosperity.
3)
When specific institutions are established to ensure the effective participation of national
minorities in public life, this must not be at the expense of others’ rights. All human
rights must be respected at all times, including by such institutions which may be
delegated authority by the State. According to paragraph 33 of the Copenhagen
Document, when participating States take measures necessary for the protection of the
identity of persons belonging to national minorities, "Any such measures will be in
conformity with the principles of equality and non-discrimination with respect to the
other citizens of the participating State concerned." The Copenhagen Document further
stipulates at paragraph 38 that OSCE "participating States, in their efforts to protect and
promote the rights of persons belonging to national minorities, will fully respect their
undertakings under existing human rights conventions and other relevant international
instruments". The Framework Convention has a similar stipulation in Article 20: "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." This addresses in particular the case of
"minorities within minorities", especially in the territorial context (see recommendations
16 and 21 below). This would also include respect for the human rights of women,
including freedom from discrimination in relation to "the political and public life of the
country" as stipulated at Article 7 of the 1979 Convention on the Elimination of All
Forms of Discrimination against Women.
4)
The principle of self-identification of persons belonging to minorities is based on several
fundamental commitments. Paragraph 32 of the Copenhagen Document specifies that
"To belong to a national minority is a matter of a person’s individual choice and no
disadvantage may arise from the exercise of such choice". Article 3(1) of the Framework
Convention provides similarly that "Every person belonging to a national minority shall
have the right freely to choose to be treated or not to be treated as such and no
157
disadvantage shall result from this choice or from the exercise of the rights which are
connected to that choice." Article 3(2) of the UN Declaration on Minorities includes the
same prohibition against any disadvantage resulting "for any person belonging to a
minority as the consequence of the exercise or non-exercise of the rights set forth in the
present Declaration."
An individual’s freedom to identify oneself as one chooses is necessary to ensure respect
for individual autonomy and liberty. An individual may possess several identities that are
relevant not only for private life, but also in the sphere of public life. Indeed, in open
societies with increasing movements of persons and ideas, many individuals have
multiple identities which are coinciding, coexisting or layered (in an hierarchical or nonhierarchical fashion), reflecting their various associations. Certainly, identities are not
based solely on ethnicity, nor are they uniform within the same community; they may be
held by different members in varying shades and degrees. Depending upon the specific
matters at issue, different identities may be more or less salient. As a consequence, the
same person might identify herself or himself in different ways for different purposes,
depending upon the salience of the identification and arrangement for her or him. For
example, in some States a person may choose a certain language for submission on tax
forms, yet identify herself or himself differently in a local community for other purposes.
5)
In the framework of democracy, the process of decision-making is as important as the
substance of decisions made. Since good governance is not only of the people but also for
the people, its processes should always be inclusive of those concerned, transparent for
all to see and judge, and accountable to those affected. Only such processes will inspire
and maintain public confidence. Inclusive processes may comprise consultation, polling,
referenda, negotiation and even the specific consent of those directly affected. Decisions
resulting from such processes are likely to inspire voluntary compliance. In situations
where the views of the public authorities and the affected community may differ
substantially, good governance may suggest using the services of a third party to assist in
finding the most satisfactory arrangement.
In relation specifically to national minorities, paragraph 33 of the Copenhagen
Document commits OSCE participating States to take measures to "protect the ethnic,
cultural, linguistic and religious identity of national minorities on their territory and
create conditions for the promotion of that identity [...] after due consultations, including
contacts with organizations or associations of such minorities". In Part VI, paragraph 26,
of the Helsinki Document, OSCE participating States further committed themselves to
"address national minority issues in a constructive manner, by peaceful means and
through dialogue among all parties concerned on the basis of CSCE principles and
commitments". In connection with "all parties concerned", paragraph 30 of the
Copenhagen Document recognizes "the important role of non-governmental
organizations, including political parties, trade unions, human rights organizations and
religious groups, in the promotion of tolerance, cultural diversity and the resolution of
questions relating to national minorities."
Inclusive processes require conditions of tolerance. A social and political climate of
mutual respect and equality needs to be assured by law and also taught as a social ethic
shared by the whole population. The media have a special role in this regard. Article 6(1)
of the Framework Convention provides that "the Parties shall encourage a spirit of
tolerance and intercultural dialogue and take effective measures to promote mutual
respect and understanding and co-operation among all persons living on their territory,
irrespective of those persons’ ethnic, cultural, linguistic or religious identity, in particular
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in the fields of education, culture and the media." In particular, States should act to stop
the public use of derogatory or pejorative names and terms and should take steps to
counteract negative stereotypes. Ideally, the representatives of the affected community
should participate in the choice and design of any steps taken to overcome such problems.
II. PARTICIPATION IN DECISION-MAKING
A. Arrangements at the Level of the Central Government
6)
Building upon paragraph 35 of the Copenhagen Document, paragraph 1 of Part III of the
1991 Report of the CSCE (Geneva) Meeting of Experts on National Minorities
underlines that "when issues relating to the situation of national minorities are discussed
within their countries, they themselves should have the effective opportunity to be
involved ... [and] that [such] democratic participation of persons belonging to national
minorities or their representatives in decision-making or consultative bodies constitutes
an important element of effective participation in public affairs." Paragraph 24 of Part VI
of the Helsinki Document committed OSCE participating States to "intensify in this
context their efforts to ensure the free exercise by persons belonging to national
minorities, individually or in community with others, of their human rights and
fundamental freedoms, including the right to participate fully, in accordance with the
democratic decision-making procedures of each State, in the political, economic, social,
and cultural life of their countries including through democratic participation in decisionmaking and consultative bodies at the national, regional, and local level, inter alia,
through political parties and associations."
The essence of participation is involvement, both in terms of the opportunity to make
substantive contributions to decision-making processes and in terms of the effect of those
contributions. The notion of good governance includes the premise that simple
majoritarian decision-making is not always sufficient. In terms of the structure of the
State, various forms of decentralization may be appropriate to assure the maximum
relevance and accountability of decision-making processes for those affected, both at the
level of the State and at sub-State levels. This may be accomplished through various ways
in a unitary State or in federal and confederal systems. Minority representation in
decision-making bodies may be assured through reserved seats (by way of quotas,
promotions or other measures), while other forms of participation include assured
membership in relevant committees, with or without voting rights. Representation on
executive, judicial, administrative and other bodies may be assured through similar
means, whether by formal requirement or by customary practice. Special bodies may also
be established to accommodate minority concerns. Meaningful opportunities to exercise
all minority rights require specific steps to be taken in the public service, including
ensuring "equal access to public service" as articulated in Article 5(c) of the
International Convention on the Elimination of All Forms of Racial Discrimination.
B. Elections
7)
Representative government through free, fair and periodic elections is the hallmark of
contemporary democracy. The fundamental objective is, in the words of Article 21(3) of
the Universal Declaration of Human Rights, that "The will of the people shall be the
basis of the authority of government". This basic standard is articulated in universal and
European treaties, namely Article 25 of the International Covenant on Civil and
Political Rights and Article 3 of Protocol I additional to the European Convention on
Human Rights. For OSCE participating States, paragraphs 5 and 6 of the Copenhagen
159
Document specify that, "among those elements of justice which are essential to the full
expression of the inherent dignity and of the equal and inalienable rights of all human
beings", "the will of the people, freely and fairly expressed through periodic and genuine
elections, is the basis of the authority and legitimacy of all government".
While States have considerable latitude in choosing the specific manner in which to
comply with these obligations, they must do so without discrimination and should aim for
as much representativeness as possible. Indeed, within the context of the United Nations,
the Human Rights Committee has explained in paragraph 12 of its General Comment 25
on Article 25 (57th Session 1996) that "Freedom of expression, assembly and association
are essential conditions for the effective exercise of the right to vote and must be fully
protected. [...] Information and materials about voting should be available in minority
languages." Moreover, paragraph 5 of General Comment 25 clarifies that "The conduct
of public affairs [...] is a broad concept which relates to the exercise of political power, in
particular the exercise of legislative, executive and administrative powers. It covers all
aspects of public administration, and the formulation and implementation of policy at
international, national, regional and local levels."
Insofar as no electoral system is neutral from the perspective of varying views and
interests, States should adopt the system which would result in the most representative
government in their specific situation. This is especially important for persons belonging
to national minorities who might otherwise not have adequate representation.
8)
In principle, democracies should not interfere with the way in which people organize
themselves politically — as long as their means are peaceful and respectful of the rights
of others. Essentially, this is a matter of freedom of association, as articulated in a wide
variety of international instruments including: Article 20 of the Universal Declaration of
Human Rights; Article 22 of the International Covenant on Civil and Political
Rights; Article 11 of the European Convention on Human Rights; and paragraph 6 of
the Copenhagen Document. Freedom of association has also been guaranteed
specifically for persons belonging to national minorities under paragraph 32.6 of the
Copenhagen Document and Article 7 of the Framework Convention. More
specifically, paragraph 24 of Part VI of the Helsinki Document commits OSCE
participating States "to ensure the free exercise by persons belonging to national
minorities, individually or in community with others, of their human rights and
fundamental freedoms, including the right to participate fully, [...] in the political [...] life
of their countries including [...] through political parties and associations."
While full respect for equal rights and non-discrimination will reduce or eliminate the
demand and need for political parties formed on the basis of ethnic ties, in some
situations such communal parties may be the only hope for effective representation of
specific interests and, thus, for effective participation. Of course, parties may be formed
on other bases, e.g. regional interests. Ideally, parties should be open and should cut
across narrow ethnic issues; thus, mainstream parties should seek to include members of
minorities to reduce the need or desire for ethnic parties. The choice of electoral system
may be important in this regard. In any event, no political party or other association may
incite racial hatred, which is prohibited by Article 20 of the International Covenant on
Civil and Political Rights and Article 4 of the Convention on the Elimination of All
Forms of Racial Discrimination.
9)
The electoral system may provide for the selection of both the legislature and other
bodies and institutions, including individual officials. While single member
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constituencies may provide sufficient representation for minorities, depending upon how
the constituencies are drawn and the concentration of minority communities, proportional
representation might help guarantee such minority representation. Various forms of
proportional representation are practised in OSCE participating States, including the
following: "preference voting", whereby voters rank candidates in order of choice; "open
list systems", whereby electors can express a preference for a candidate within a party
list, as well as voting for the party; "panachage", whereby electors can vote for more than
one candidate across different party lines; and "cumulation", whereby voters can cast
more than one vote for a preferred candidate. Thresholds should not be so high as to
hamper minority representation.
10)
In drawing the boundaries of electoral districts, the concerns and interests of national
minorities should be taken into account with a view to assuring their representation in
decision-making bodies. The notion of "equity" means that no one should be prejudiced
by the chosen method and that all concerns and interests should be given fair
consideration. Ideally, boundaries should be determined by an independent and impartial
body to ensure, among other concerns, respect for minority rights. This is often
accomplished in OSCE participating States by means of standing, professional electoral
commissions.
In any event, States should not alter electoral boundaries, or otherwise alter the
proportions of the population in a district, for the purpose of diluting or excluding
minority representation. This is expressly prohibited by Article 16 of the Framework
Convention, while Article 5 of the European Charter of Local Self-Government
stipulates that "Changes in local authority boundaries shall not be made without prior
consultation of the local communities concerned, possibly by means of a referendum
where this is permitted by statute" (see recommendation 19 regarding territorial
arrangements).
C. Arrangements at the Regional and Local Levels
11)
This Recommendation applies to all levels of government below the central authorities
(e.g. provinces, departments, districts, prefectures, municipalities, cities and towns,
whether units within a unitary State or constituent units of a federal State, including
autonomous regions and other authorities). The consistent enjoyment of all human rights
by everyone equally means that the entitlements enjoyed at the level of the central
government should be enjoyed throughout the structures below. However, the criteria
used to create structures at the regional and local level may be different from those used
at the level of the central government. Structures may also be established asymmetrically,
with variation according to differing needs and expressed desires.
D. Advisory and Consultative Bodies
12)
Paragraph 24 of Part VI of the Helsinki Document commits OSCE participating States
"to ensure the free exercise by persons belonging to national minorities, individually or in
community with others, of their human rights and fundamental freedoms, including the
right to participate fully [...] in the political [...] life of their countries including through
democratic participation in [...] consultative bodies at the national, regional, and local
level". Such bodies can be standing or ad hoc, part of or attached to the legislative or
executive branch or independent therefrom. Committees attached to parliamentary
bodies, such as minority round tables, are known in several OSCE participating States.
They can and do function at all levels of government, including self-government
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arrangements. In order to be effective, these bodies should be composed of minority
representatives and others who can offer special expertise, provided with adequate
resources, and given serious attention by decision makers. Aside from advice and
counsel, such bodies can constitute a useful intermediary institution between decision
makers and minority groups. They can also stimulate action at the level of government
and among minority communities. Such bodies may also perform specific tasks related to
the implementation of programs, e.g. in the field of education. In addition, special
purpose committees may hold particular significance for certain minorities who should be
represented therein.
13)
The possibilities for constructive use of such bodies vary with the situations. However, in
all cases, good governance requires positive steps on the part of the authorities to engage
established advisory and consultative bodies, to refer to them as needs may arise and to
invite their in-put. An open and inclusive approach on the part of the authorities vis-à-vis
these bodies and their members will contribute to better decisions and to greater
confidence of the wider society.
III. SELF-GOVERNANCE
14)
The term "self-governance" implies a measure of control by a community over matters
affecting it. The choice of the term "governance" does not necessarily imply exclusive
jurisdiction. In addition, it may subsume administrative authority, management, and
specified legislative and judicial jurisdiction. The State may achieve this through
delegation or devolution, or, in the case of a federation, an initial division of constituent
powers. Among OSCE participating States, "self-governance" arrangements are variously
referred to as delegations of autonomy, self-government, and home rule. In no case is this
to include any ethnic criterion for territorial arrangements.
In paragraph 35 of the Copenhagen Document, OSCE participating States have noted
"the efforts undertaken to protect and create conditions for the promotion of the ethnic,
cultural, linguistic and religious identity of certain national minorities by establishing, as
one of the possible means to achieve these aims, appropriate local or autonomous
administrations corresponding to the specific historical and territorial circumstances of
such minorities and in accordance with the policies of the State concerned." Following
upon this, the Report of the CSCE (Geneva) Meeting of Experts on National
Minorities noted in paragraph 7 of Part IV "that positive results have been obtained by
some [participating States] in an appropriate democratic manner by, inter alia:[...] local
and autonomous administration, as well as autonomy on a territorial basis, including the
existence of consultative, legislative and executive bodies chosen through free and
periodic elections; self-administration by a national minority of aspects concerning its
identity in situations where autonomy on a territorial basis does not apply; decentralized
or local forms of government; [...] provision of financial and technical assistance to
persons belonging to national minorities who so wish to exercise their right to establish
and maintain their own educational, cultural and religious institutions, organizations and
associations [...]". Of a more general nature, the Preamble to the European Charter of
Local Self-Government stresses "the principles of democracy and the decentralization of
power" as a contribution to "the safeguarding and reinforcement of local self-government
in the different European countries". In this last connection, the European Charter of
Local Self-Government provides in Article 9 for the entitlement of adequate financial
resources for the exercise of such decentralized authorities.
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15)
Insofar as the State holds responsibility in certain fields affecting the whole State, it must
assure their regulation through the central authorities of the State. These typically
include: defence, which is essential to maintain the territorial integrity of the State;
macroeconomic policy, which is important insofar as the central government serves as a
sort of equalizer between economically disparate regions; and the classical affairs of
diplomacy. Insofar as other fields may have important national implications, these too
must be regulated at least to some degree by the central authorities.
Regulation in these fields may also be shared, including with specially affected territorial
units or minority groups (see recommendations 18 and 20). Such sharing of regulatory
authority must nevertheless be consistent with human rights standards and be managed in
a practical and coordinated manner.
One field which is well-established as being shared on either a territorial or a nonterritorial basis, or both, and holds special importance both for the State as a whole and
also for minority groups, is education. Article 5.1 of the UNESCO Convention against
Discrimination in Education spells out in some detail how such sharing in this field
should be achieved: "The States Parties to this Convention agree that: [...]
16)
(b)
It is essential to respect the liberty of parents and, where applicable, of legal
guardians, firstly to choose for their children institutions other than those
maintained by the public authorities but conforming to such minimum
educational standards as may be laid down or approved by the competent
authorities and, secondly, to ensure in a manner consistent with the procedures
followed in the State for the application of its legislation, the religious and moral
education of the children in conformity with their own convictions; and no
person or group of persons should be compelled to receive religious instruction
inconsistent with his or their conviction;
(c)
It is essential to recognize the right of members of national minorities to carry on
their own educational activities, including the maintenance of schools and,
depending on the educational policy of each State, the use or the teaching of
their own language, provided however: (i) That this right is not exercised in a
manner which prevents the members of these minorities from understanding the
culture and language of the community as a whole and from participating in its
activities, or which prejudices national sovereignty; (ii) That the standard of
education is not lower than the general standard laid down or approved by the
competent authorities; and (iii) That attendance at such schools is optional."
The principle of democratic governance, as articulated in Article 21 of the Universal
Declaration of Human Rights, Article 25 of the International Covenant on Civil and
Political Rights, Article 3 of Protocol I to the European Convention on Human Rights
and in OSCE standards is applicable at all levels and for all elements of governance.
When institutions of self-governance are needed or desirable, the equal enjoyment by
everyone of their rights requires application of the principle of democracy within these
institutions.
A. Non-Territorial Arrangements
17)
This section addresses non-territorial autonomy — often referred to as "personal" or
"cultural autonomy" — which is most likely to be useful when a group is geographically
dispersed. Such divisions of authority, including control over specific subject-matter, may
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take place at the level of the State or within territorial arrangements. In all cases, respect
for the human rights of others must be assured. Moreover, such arrangements should be
assured adequate financial resources to enable performance of their public functions and
should result from inclusive processes (see Recommendation 5).
18)
This is not an exhaustive list of possible functions. Much will depend upon the situation,
including especially the needs and expressed desires of the minority. In different
situations, different subjects will be of greater or lesser interest to minorities, and
decisions in these fields will affect them to varying degrees. Some fields may be shared.
One area of special concern for minorities is control over their own names, both for
representative institutions and individual members, as provided in Article 11(1) of the
Framework Convention. With regard to religion, the Recommendation does not
advocate governmental interference in religious matters other than in relation to those
powers (e.g. concerning personal civil status) delegated to religious authorities. This
Recommendation also does not intend that minority institutions should control the media
— although persons belonging to minorities should have the possibility to create and use
their own media, as guaranteed by Article 9(3) of the Framework Convention. Of
course, culture has many aspects extending to fields such as welfare, housing and child
care; the State should take into account minority interests in governance in these fields.
B. Territorial Arrangements
19)
There is a general trend in European States towards devolution of authority and
implementation of the principle of subsidiarity, such that decisions are taken as close as
possible to, and by, those most directly concerned and affected. Article 4(3) of the
European Charter of Local Self-Government expresses this objective as follows:
"Public responsibilities shall generally be exercised, in preference, by those authorities
which are closest to the citizen. Allocation of responsibility to another authority should
weigh up the extent and nature of the task and requirements of efficiency and economy."
Territorial self-government can help preserve the unity of States while increasing the
level of participation and involvement of minorities by giving them a greater role in a
level of government that reflects their population concentration. Federations may also
accomplish this objective, as may particular autonomy arrangements within unitary States
or federations. It is also possible to have mixed administrations. As noted in
recommendation 15, arrangements need not be uniform across the State, but may vary
according to needs and expressed desires.
20)
Autonomous authorities must possess real power to make decisions at the legislative,
executive or judicial levels. Authority within the State may be divided among central,
regional and local authorities and also among functions. Paragraph 35 of the
Copenhagen Document notes the alternatives of "appropriate local or autonomous
administrations corresponding to the specific historical and territorial circumstances".
This makes clear that there need not be uniformity within the State. Experience shows
that powers can be divided even with respect to fields of public authority traditionally
exercised by central government, including devolved powers of justice (both substantive
and procedural) and powers over traditional economies. At a minimum, affected
populations should be systematically involved in the exercise of such authority. At the
same time, the central government must retain powers to ensure justice and equality of
opportunities across the State.
21)
Where powers may be devolved on a territorial basis to improve the effective
participation of minorities, these powers must be exercised with due account for the
164
minorities within these jurisdictions. Administrative and executive authorities must be
accountable to the whole population of the territory. This follows from paragraph 5.2 of
the Copenhagen Document which commits OSCE participating States to assure at all
levels and for all persons "a form of government that is representative in character, in
which the executive is accountable to the elected legislature or the electorate".
IV. GUARANTEES
A. Constitutional and Legal Safeguards
22)
This section addresses the issue of "entrenchment", that is, solidifying arrangements in
law. Very detailed legal arrangements may be useful in some cases, while frameworks
may be sufficient in other cases. In all cases, as noted in recommendation 5, arrangements
should result from open processes. However, once concluded, stability is required in
order to assure some security for those affected, especially persons belonging to national
minorities. Articles 2 and 4 of the European Charter of Local Self-Government
express a preference for constitutional arrangements. To achieve the desired balance
between stability and flexibility, it may be useful to specify some reconsideration at fixed
intervals, thereby depoliticizing the process of change in advance and making the review
process less adversarial.
23)
This Recommendation differs from Recommendation 22 insofar as it encourages the
testing of new and innovative regimes, rather than specifying terms for alteration of
existing arrangements. Responsible authorities may wish to follow different approaches
in different situations among central authorities and minority representatives. Without
compromising final positions, such an approach may yield good experiences, not least
through the processes of innovation and implementation.
B. Remedies
24)
In paragraph 30 of the Copenhagen Document, OSCE participating States "recognize
that the questions relating to national minorities can only be satisfactorily resolved in a
democratic political framework based on the rule of law, with a functioning independent
judiciary." The idea of effective remedies is also provided in Article 2(3) of the
International Covenant on Civil and Political Rights, while "a judicial remedy" is
specified in Article 11 of the European Charter of Local Self-Government.
Judicial review can be performed by constitutional courts and, in effect, by relevant
international human rights bodies. Non-judicial mechanisms and institutions, such as
national commissions, ombudspersons, inter-ethnic or "race" relations boards, etc., may
also play critical roles, as envisaged by paragraph 27 of the Copenhagen Document,
Article 14(2) of the International Convention on the Elimination of All Forms of
Racial Discrimination, and paragraph 36 of the Vienna Declaration and Programme
of Action adopted by the World Conference on Human Rights in 1993.
165
166
Guidelines to Assist National Minority Participation in the Electoral Process
GUIDELINES TO ASSIST
NATIONAL MINORITY PARTICIPATION
IN THE ELECTORAL PROCESS
Warsaw – January 2001
1.
INTRODUCTION
The OSCE High Commissioner on National Minorities (HCNM) commissioned a group of
internationally recognized experts to elaborate Recommendations on the Effective Participation of
National Minorities in Public Life (called the “Lund Recommendations”).1 Support for the Lund
Recommendations, as a valuable reference, has been expressed within the Organization for
Security and Co-operation in Europe (OSCE)2 and expressly endorsed by the HCNM. In order to
give better effect to those Recommendations, the Office for Democratic Institutions and Human
Rights (ODIHR) proposed that practical guidelines be developed in respect of the four
recommendations concerning elections.3
The objectives of the guidelines are:
•
to make effective the participation of national minorities in public decision making
bodies by means of enhanced representation.
•
to inform all stakeholders of:
the options open to a state in giving effect to the Recommendations
the advantages and disadvantages of the different options
- to provide advice on constitutional, legislative and institutional means to realize
those options
to assist the OSCE participating States and ODIHR in ensuring coherence of application
in the practice of States of the standards upon which the Lund Recommendations were
developed.
•
The guidelines were developed by the ODIHR in conjunction with International Institute for
Democracy and Electoral Assistance (International IDEA) and the Office of the HCNM. They are
the result of extensive discussion4 and input from experts5 in the field.
1
2
3
4
5
These guidelines are based on the Lund Recommendations dated June 1999. For an account of the impetus
and process of their elaboration, see John Packer, "The origin and nature of the Lund Recommendations on
the Effective Participation of National Minorities in Public Life", Helsinki Monitor, Volume 11, No. 4, 2000,
pp. 29-45; the full text of the Lund Recommendations appears in annex to the afore-mentioned article at pp.
46-61.
IBID. pp. 64-67
The project was possible with a generous contribution from the Canadian International Development Agency
(CIDA).
A discussion document in the form of draft guidelines were prepared by Peter Harris and Halton Cheadle on
behalf of International IDEA. The draft was the subject of intense discussion and input from experts
assembled by ODHIR at a workshop held on 3-4 July 2000 in Warsaw. A second draft was prepared and
again scrutinized by the ODHIR, the Office of the High Commissioner on National Minorities and the
independent experts before being finalized.
The experts were: Dr. Vojin Dimitrijevic, Director of the Belgrade Centre for Human Rights, Federal
Republic of Yugoslavia, Dr. Yolanta Hristova, Expert on Minority Rights, OSCE Mission to Croatia, Dr.
Jessie Pilgrim, Legal Consultant, USA, Dr. Alexander Postnikov, Researcher, Institute of Legislation and
Comparative Law, Russian Federation, Dr. Andrew Stephen Reynolds, Assistant Professor, University of
Notre Dame, USA, Dr. Timothy Sisk, Senior Research Associate, Graduate School of International Studies,
167
It is important to stress that the guidelines do not address all of the Lund Recommendations – only
those that relate to the work of the ODIHR in respect of elections.
2.
BACKGROUND TO THE LUND RECOMMENDATIONS
The HCNM is the OSCE’s principal mechanism for the prevention of minority related conflicts.
As an instrument of conflict prevention to act at the earliest stage, the HCNM works closely with
governments and minority groups to ensure that government policies respect international
standards in this area and that effective practices are adopted.
The HCNM has identified certain recurrent issues which have become the subject of his attention
in terms of their potential for conflict within States. In particular, education and use of language
were identified as potential sources of conflict within the OSCE states. In order to develop
appropriate government policies in respect of these two issues, the HCNM developed two sets of
recommendations to serve as references for policy and law-makers in those States. Those
recommendations are:
•
•
The Hague Recommendations Regarding the Education Rights of National Minorities
(1996)6
The Oslo Recommendations Regarding the Linguistic Rights of National Minorities
(1998)7
In 1998 the HCNM identified a third source of potential conflict - the participation of national
minorities in the governance of states. In order to get the views and experiences of OSCE
participating States in this area, the HCNM and the ODIHR convened a conference of all OSCE
States and certain international organizations entitled: “Governance and Participation: Integrating
Diversity”.8 The Conference Chairman's Statement noted:
“the desirability of ‘concrete follow up activities’ including the further elaboration
of the various concepts and mechanisms of good governance with the effective
participation of minorities, leading to an integration of diversity in the state”.
Arising from the Chairman's Statement, the Government of Sweden offered to fund a group of
independent experts to meet in Lund, Sweden, to prepare recommendations on the effective
participation of national minorities in the governance of democratic States. Those
recommendations have become known as the “Lund Recommendations”.
The purpose of the Lund Recommendations, like the Hague and Oslo Recommendations, is to
encourage OSCE participating States to alleviate, through adoption of specific measures, tensions
involving national minorities and, thus, to serve the ultimate conflict prevention goal of the
HCNM.
6
7
8
University of Denver, USA, Mark Stevens, Program Director, Electoral Reform International Services,
United Kingdom.
For the full text of The Hague Recommendations, together with some scholarly analysis, see the special issue
of the International Journal on Minority and Group Rights, Volume 4, No. 2, 1996/97.
For the full text of the Oslo Recommendations, together with some scholarly analysis, see the special issue of
the International Journal on Minority and Group Rights, Volume 6, No. 3, 1999.
The Conference was held at Locarno in October 1998, hosted by the Swiss Confederation.
168
The basic premises of the Lund Recommendations are:
• States will respect and implement their human rights obligations, in particular, the
freedom from discrimination;
• the object of human rights instruments is to ensure the full and free development of the
individual human personality under conditions of equality;
• the object of good democratic government is to serve the needs and interests of all who
live and reside under it; and
• good democratic government will allow, encourage and support all those who are the
subject of its decisions to participate in the making of those decisions.
3.
THE IMPORTANCE OF PROCESS
These guidelines have been developed to assist both governments and the organizations that
represent or support national minorities. The assistance is directed towards developing a
legislative framework for an electoral system that ensures effective participation by national
minorities in public life. In doing so, various examples of good practice in certain countries are
cited. These examples are not intended to be exhaustive or extensive and no inference should be
drawn from the examples concerning countries that are mentioned or not mentioned.
The process of designing or modifying electoral systems and establishing electoral institutions is
critical to the success and durability of those systems and institutions. The process will impact
significantly on the quality of the outcome. An inclusive process helps to contribute to the
legitimacy of the outcome. It provides an opportunity to debate the options open to a national
minority and pursue alternatives to accommodate its interests and needs.
In order to assist policy and decision makers, the following key process issues and principles are
identified for consideration:
• a formal process is better than an ad hoc process;
• the more inclusive the process the better. This should not only refer to political parties
but also to civil society. It is particularly important to ensure that women participate fully
in the process;
• it is essential to build confidence and legitimacy in the process. This includes:
- ensuring that all stakeholders are involved and participate in the design of the
process itself;9
- considering the appointment of neutral and legitimate facilitators. In some
negotiations, widely respected jurists were employed;10
- information must be shared as widely as possible;11
• it is necessary to ensure that sufficient time is made available for the process;
• it is important for all parties:
- to avoid setting pre-conditions or putting up barriers to participation;
- to recognize the need for flexibility;
9
10
11
This can be achieved through different forms of consultation which would include polling, referenda,
negotiation, consensus forums or bodies and working committees.
In Northern Ireland, Senator Mitchell of the United States chaired the peace talks. In South Africa, two
judges chaired the peace talks.
The role of the media in relation to the publication and dissemination of information is critical. Equal and
transparent access to information, particularly in relation to minority issues, is important.
169
•
4.
it is important to ensure that the process is funded. All parties to the process must
have the necessary resources to participate fully in it and no party or parties should
enjoy an unfair advantage.
INTERNATIONAL LEGAL FRAMEWORK
The following international standards form the normative basis for both the Lund
Recommendations and these guidelines:
•
Article 21(3) of the Universal Declaration of Human Rights states that the “will of the people
shall be the basis of the authority of the government;”
•
The International Covenant on Civil and Political Rights (ICCPR) guarantees the following
rights and freedoms:12
the rights to freedom of thought, conscience and religion and to manifest those
beliefs (Article 18);
the right to hold opinions without interference and the freedom to express those
opinions (Article 19);
the right of peaceful assembly (Article 21);
the right to freedom of association (Article 22);
the right and opportunity, without distinction of any kind such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property,
birth or other status:
to take part in the conduct of public affairs, directly or through freely
chosen representatives,
to vote and be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, and
to have access on general terms of equality to public service in one's
country (Article 25);
the right to equal and effective protection by law against discrimination on any
ground such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status (Article 26).
•
Article 2 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD)
provides:
“State Parties shall condemn racial discrimination and undertake to
pursue by all appropriate means and without delay a policy of
eliminating racial discrimination in all its forms and promoting
understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of
racial discrimination against persons, groups of persons or
institutions and to ensure that all public authorities and public
12
It is to be noted that, aside from permissible restrictions on certain of the stipulated rights, Article 5(1) of the
ICCPR prescribes that “Nothing in the present Covenant may be interpreted as implying for any State, group
or person any right to engage in any activity or perform any act aimed at their … limitation to a greater extent
than is provided for in the present Covenant”.
170
institutions, national and local, shall act in conformity with this
obligation;
(b) Each State Party undertakes not to sponsor, defend or support
racial discrimination by any persons or organizations;
(e) Each State Party undertakes to encourage, where appropriate,
integrationist multiracial organizations and movements and other
means of eliminating barriers between races, and to discourage
anything which tends to strengthen racial division.”
•
Article 5 of the CERD provides:
“In compliance with the fundamental obligations laid down in
Article 2 of this Convention, State Parties undertake to prohibit and to
eliminate racial discrimination in all its forms and to guarantee the right
of everyone, without distinction as to race, colour, or national or ethnic
origin, to equality before the law, notably in the enjoyment of the
following rights:
…
(b) Political rights, in particular the right to participate in elections-to
vote and to stand for election-on the basis of universal and equal
suffrage, to take part in the Government as well as in the conduct of
public affairs at any level and to have equal access to public
service;
(d) Other civil rights, in particular: …
(vii) The right to freedom of thought, conscience and religion;
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and association.
•
Article 2 of the UN Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious or Linguistic Minorities states:
“(2) Persons belonging to minorities have the right to participate
effectively in cultural, religious, social, economic and public life.
(3) Persons belonging to minorities have the right to participate
effectively in decisions on the national and, where appropriate,
regional level concerning the minority to which they belong or the
regions in which they live, in a manner not incompatible with
national legislation.
(4) Persons belonging to minorities have the right to establish and
maintain their own associations.
(5) Persons belonging to minorities have the right to establish and
maintain, without any discrimination, free and peaceful contacts
with other members of their group and with persons belonging to
other minorities, as well as contacts across frontiers with citizens
of other States to whom they are related by national or ethnic,
religious or linguistic ties.”
171
•
Article 15 of the Council of Europe’s Framework Convention for the Protection of National
Minorities states:
“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.”
•
Paragraphs 5 and 6 of the Document of the Copenhagen Meeting of the Conference on the
Human Dimension of the CSCE (the Copenhagen Document) specify that “among those
elements of justice which are essential to the full expression of the inherent dignity and of the
equal and inalienable rights of all human beings … the will of the people, freely and fairly
expressed through periodic and genuine elections, is the basis of the authority and legitimacy
of all governments”.
•
Paragraph 35 of the Copenhagen Document requires OSCE participating States to “respect the
right of persons belonging to national minorities to effective participation in public affairs,
including participation in the affairs relating to the protection and promotion of the identity of
such minorities”.
Equally, international law provides some important restrictions on the freedoms and rights
enunciated above.13 These include Article 4 of the CERD which reads:
“States Parties condemn all propaganda and all organizations which are
based on ideas or theories of superiority of one race or group of persons
of one colour or ethnic origin, or which attempt to justify or promote
racial hatred and discrimination in any form, and undertake to adopt
immediate and positive measures designed to eradicate all incitement
to, or acts of, such discrimination and, to this end, with due regard to
the principles embodied in the Universal Declaration of Human Rights
and the rights expressly set forth in article 5 of this Convention, inter
alia:
(a) shall declare an offence punishable by law all dissemination of
ideas based on racial superiority or hatred, incitement to racial
discrimination, as well as all acts of violence or incitement to such
acts against any race or group of persons of another colour or ethnic
origin, and also the provision of any assistance to racist activities,
including the financing thereof;
(b) shall declare illegal and prohibit organizations, and also organized
and all other propaganda activities, which promote and incite racial
discrimination, and shall recognize participation in such
organizations or activities as an offence punishable by law;
13
Aside from the permissible restrictions on the freedoms and rights enunciated above, it is important to recall
that there are also specific prohibitions which may be relevant, such as Article 20 of the ICCPR (prohibiting
"propaganda for war" and "any advocacy of national, racial and religious hatred that constitutes incitement to
discrimination, hostility or violence") and Article 6(2) of the Framework Convention on the Protection of
National Minorities (requiring States to take measures to protect persons against discrimination, hostility or
violence).
172
(c) shall not permit public authorities or public institutions, national or
local, to promote or incite racial discrimination.”
5.
LUND RECOMMENDATION ON ELECTIONS: NO. 7
“Experience in Europe and elsewhere demonstrates the importance of the
electoral process for facilitating the participation of minorities in the political
sphere. States shall guarantee the right of persons belonging to national
minorities to take part in the conduct of public affairs, including through the
rights to vote and stand for office without discrimination.”
5.1
Content Explanation
States are required to guarantee the right of persons belonging to national minorities to take part
in public life. That guarantee is best established by including the right in the constitution. The
constitution should entrench14 the right. It should also specify the conditions under which the
legislature may restrict those rights. For example, the International Covenant on Civil and
Political Rights permits States to limit civil and political rights in order to protect the rights of
others, to ensure national security or to maintain public order.15
There are two aspects to the right to participate in public life that require more detailed
elaboration. They are:
• the cluster of individual rights guaranteeing participation in elections and public life; and
• the right not to be discriminated against in the exercise of those rights because the person
belongs to a national minority.
5.1.1
The individual rights to participate in elections
There are a cluster of individual rights considered as essential for the establishment and
maintenance of a democracy. They extend from the right to form political and other
associations, to campaign, stand for office and vote. The rights extend beyond the rights of
the individual voter to the rights of political parties and other associations to canvas support
and campaign.
This cluster is normally desegregated into the following specific rights:
14
15
There are different formulas for the entrenchment of constitutionally protected rights: see for example the
incorporation of the 1789 Declaration of the Rights of Man into the French Constitution by the Preamble to
that Constitution; the Basic Rights in articles 1 to 19 of the German Basic Law; Amendments I to X, XIII to
XV, XIX, XXIV and XXVI of the American Constitution,; the Canadian Charter of Rights and Freedoms,
which forms Part I of the Canadian Constitution Act; the National Goals and Directive Principles and Basic
Social Obligations in the Papua New Guinean Constitution; and the Fundamental Rights in Part III of the
Indian Constitution; Luxembourgers and Their Rights, in Chapter II of the Luxembourg Constitution; the
Principi Fundamentali in Articles 1 to 11 of the Italian Constitution; the Fundamental Rights in Chapter 1 of
the Dutch Constitution; Articles 40-44 of the Irish Constitution; Chapter 2 of the Swedish Instrument of
Government; Part I of the Spanish Constitution; Article 8 and Chapter XII of the Hungarian Constitution; etc.
See also: specific limitation provisions attached to each right in the European Convention on Human Rights
and to the various Fundamental Rights in Chapter 1 of the Dutch Constitution. For examples of general
limitation clauses see: section 1 of the Canadian Charter of Fundamental Rights and Freedoms; section 36 of
the South African Constitution; the restriction in Articles 18, 18a and 19 of the German Basic Law; Articles
12 to 14 of the Swedish Instrument of Government.
173
•
•
•
•
•
•
the right to vote, in particular the right to a secret ballot;
the right to regular and fair elections;
the right to stand for public office;
freedom of association;
freedom of assembly;
freedom of expression.
These rights should be guaranteed in the constitution. Although constitutions generally
permit the legislature to restrict these rights, those restrictions must be carefully scrutinized to
ensure that they are not in violation of international standards and, more generally, do not
impact on the participation of national minorities in public life. Examples of problematic
restrictions are:
• stipulating a language requirement for public office;
• undue requirements for the registration of political parties;
• distribution requirements which force parties or candidates to stand in a number of
provinces or districts or even force them to have an office in each province if this has the
effect of discriminating against national minorities.
The right to regular and fair elections
• Elections must not only be regular, but they must also be held at reasonable intervals. In
most constitutions, elections are held from between 2 to 5 years.
• The right to a secret ballot is fundamental to a fair election. It is particularly important in
societies with national minorities. It follows that the state must take all necessary steps to
ensure that voters belonging to a national minority trust that their votes are secret. In this
respect, regard should be had for Paragraph 7.4 of the Copenhagen Document, which
details that participating States will “ensure that votes are cast by secret ballot or by an
equivalent free voting procedure.…”
• Elections must be conducted fairly. There are two aspects to this right. The elections must
not only be conducted fairly but must also be seen to be so. The legitimacy of the election
process is especially important in societies with ethnic tension and high levels of distrust.
• There are different institutional and procedural ways in which states can ensure that
elections are conducted fairly. The different options are considered in paragraph 7 below.
The right to votes
• The right to vote contemplated under this head is the general right to vote. Some States
provide persons from national minorities with an additional vote.16 The right to an
additional vote is properly a matter to be considered under different forms for minority
representation and participation in public life. Those issues are dealt with under
paragraph 7 below.
16
Examples of how different States seek to accommodate national minorities see: Articles 32B and 68 of the
Hungarian Constitution; Canada (Article 23 of the Canadian Charter of Rights and Freedoms(see footnote 7
above), which protects minority language educational rights; Articles 53 and 55 of the Spanish Constitution.
174
• Although it is common for constitutions to limit the right to vote to citizens, that
restriction may constitute a source of conflict in respect of states that have national
minorities or large populations composed of non-citizens if it is framed in a manner that
discriminates against national minorities. There are many causes for this potential
conflict. They range from the manner in which citizenship requirements are stated in the
law (for example limiting citizenship to an ethnic group to making it administratively
difficult to become a citizen). In essence, citizenship should not be used in a way that
discriminates against persons belonging to national minorities.
• Eligibility criteria for registration as a voter may also have consequences for national
minorities. Restricting the right to vote to residents in a constituency will impact
negatively on nomadic peoples. The inclusion or exclusion of external voters may also
effect national minority participation adversely.
The right to stand for office
• The right to stand for public office should be constitutionally guaranteed. Restrictions on
the right should be carefully scrutinized in order to ensure that persons belonging to
national minorities are not barred from office or standing for office. While language
regulations may be established for the proceedings of public institutions, including
parliamentary institutions, the exclusion on linguistic grounds of anyone to stand for
office is in violation of Article 25 of the ICCPR and, more simply, interferes with the
freedom of the electorate to choose their representatives.17 For example, language
requirements may have the effect of excluding candidates from national minorities from
standing for office.
Freedom of association
• This freedom is important for two reasons. It should guarantee not only the right to form
political parties but also guarantee the formation of organs of civil society such as nongovernmental organizations and cultural organizations that may support or represent
national minorities in a society.
• The concept of freedom of association includes a number of subsidiary rights. They
include:
-
the right to form a political party or association;
the right to join a political party or association;
the right to participate in the lawful activities of a political party or association.
This right to participate should be elaborated to include the specific rights to
canvas and campaign on behalf of a political party.
• It is often best to specify these rights in the constitution rather than leave them for
ordinary legislation, regulations or elaboration by the courts.
• This right is often restricted by legislation. Those restrictions should be carefully
scrutinized in order to ensure that they do not violate international standards or impact
negatively on the effective participation of national minorities in public life.
17
There are well known examples of elected representatives who are visually, aurally and orally impaired.
Moreover any such linguistic requirement becomes highly problematic in terms of prescribing and testing
proficiency.
175
• The right to self-identification for minorities is important. In this respect, the practice of
imposing “ethnic” affiliation on minorities should be discouraged. Hungary, in the case
of its minority groupings, is a good example of the right to self-identification, although
there have also been problems in the case of Hungary. New Zealand in the case of the
Maori’s is another good example.
Freedom of assembly
• This freedom is closely associated with the freedom of association. It is an important
freedom in the context of elections because the right to hold meetings is a fundamental
part of democratic politics. The right extends to the right to protest.
• This freedom should be guaranteed constitutionally. It is a freedom that is normally
subject to restrictions such as the maintenance of public order. Although public order is
generally regarded as a justifiable ground for the restriction of the right, the difficulty
with the restriction is in its application. The determination of when the ground may be
relied on to prohibit a meeting or protest is often left to state functionaries. Unless there
is speedy court oversight over these decisions, the freedom may be abrogated in practice.
• This freedom may also be undermined by the practice of refusing political parties or other
associations representing national minorities permission to use available public facilities
such as town halls etc.
Freedom of expression
• This freedom is one of the cornerstones of a democratic state and is fundamental to
ensuring that national minorities participate effectively in public life. It is best
guaranteed in the constitution of the State. Governments sometimes seek to justify
restrictions of this freedom on the grounds of national security. These restrictions should
be subjected to strict scrutiny to ensure the validity and the proportionality of the
restriction. In particular, the effect of the restrictions on the participation of national
minorities in public life should analysed.
• A State’s duty to guarantee freedom of expression under international or domestic law
should not be limited to a negative duty, i.e. a duty not to interfere with the freedom. It
should extend to ensuring that national minorities should be given reasonable access to
state owned public media to express their views.
5.1.2
The prohibition against discrimination
• The individual rights to participate in public life should be extended to all persons
regardless of ethnic or national origin, language or religion. Those rights should be
applied equally.18 Discrimination need not be deliberate. It may arise unintentionally. A
18
The Treaty of Understanding, Cooperation and Good Neighbourliness between Romania and the Republic of
Hungary relates to the Hungarian minority only, however most of the provisions of this bilateral treaty have
consequences for other minorities in Romania as well. Article 15.1(a) confirms that Romania has undertaken
“in regulating the rights and obligations of persons belonging to national minorities” to “enforce” the
framework Convention of the Council of Europe regarding national minorities if its “lawful internal order does
not contain more favourable regulations”. Other provisions concerning minorities in Romania generally
include access to and free exchange of information in the mother tongue (Article 15.4), the right to take part in
the resolution of issues of national or local interest through elected representatives in bodies of central or local
176
neutral criterion may operate in certain circumstances in a discriminatory way. For
example, residence is a common requirement for eligibility to vote in a constituency
based electoral system. That requirement may however operate in a discriminatory way
in respect of refugees (meaning citizens or permanent residents of the State who have fled
abroad), nomadic peoples or internally displaced persons. Residency requirements may
discriminate against national minorities.
Eligibility requirements to register as a voter may have a discriminatory effect against
persons belonging to a national minority. The following are examples of how eligibility
requirements, in general, may discriminate against persons belonging to national minorities:
• citizenship is often the fundamental requirement for eligibility. Accordingly, the
requirements for citizenship impact on eligibility to vote. The following are examples of
the kind of impact that laws regulating citizenship may have:
-
if ethnicity is a requirement for citizenship it may discriminate against persons who
belong to national minorities that do not share that ethnic origin;
a requirement for acquired citizenship that both parents must be citizens may
operate in a way that discriminates against a national minority, particularly one that
has been the subject of shifting national boundaries;
restrictions on dual citizenship may detrimentally affect national minorities.
• fluency in an official language is a requirement that may discriminate against a national
minority that does not speak that language;
• states should not prescribe or proscribe the use of any language in electoral campaigns;
• residency requirements may discriminate against national minorities. Residence may
operate in a discriminatory way against refugees or internally displaced persons.
Internally displaced persons should be able to exercise their right to vote, where possible,
refugees should enjoy some facility to vote.
It should be noted that although the right to participate in public life may be enshrined in the
constitution and in legislation, it is also necessary to ensure that there are no administrative
and other barriers preventing persons belonging to national minorities from the full exercise
of their rights. Steps should be taken to ensure that:
• so far as is feasible, persons belonging to a national minority are made aware in their
language of their rights to participate in public life and how those rights may be
exercised;
• the voter registration process is administered in such a way so as to ensure that persons
belonging to a national minority may register without difficulty or material cost. The
following kinds of administrative issues are implicated under this head:
- so far as is feasible, the registration forms and any explanatory documentation
should be in the language of the national minority;
- the registration offices should be located and open for registration at places and
times that do not make it difficult or costly for a person to register.
public authorities (Article 15.5) and respect for the cultural and historical heritage of national minorities
(Article 15.6).
177
• a climate is created where persons belonging to a national minority may recruit, canvas,
vote, stand for office and participate in public life. The State should openly discourage
discrimination and violence against national minorities and take active steps to prevent
discrimination and violence and to punish perpetrators of these offences;
• impediments are not too onerous preventing persons from standing as candidates or
registering as political parties, such as unreasonable costs including the imposition of
high deposits;
• political party funding legislation should not be discriminatory or unfair. In particular,
the issue of external or foreign funding of political parties or national minority
movements should not be regulated in a way that is discriminatory;
• any funding of political parties from state funds should be non-discriminatory in terms of
discrimination between ethnic or national minority groups;
• the collection of signatures by candidates is regulated in a manner or form which does not
unfairly discriminate against minority groupings;
• distribution requirements in terms of requiring parties to field candidates in a specified
number of constituencies or regions, do not discriminate;
• there should be no restriction on campaigning in a particular language;
• language proficiency should not be used for eligibility to register as a voter or to stand for
public office;
• residence outside the country, particularly in post-conflict situations, where there may be
substantial numbers of refugees from a minority grouping, should not be used as an
eligibility criteria. The issue of external voting is important insofar as it may affect the
rights of minorities.
5.2
Legal Framework and Options
Domestic law should give effect to the international norms and standards. It is preferable
for the right to participate in public life without discrimination to be included in the
Constitution and for those provisions to be constitutionally entrenched. Electoral laws
giving effect to those rights should spell out the detail.
Constitutional rights
The Constitution should confer on all persons the right to participate in public life without
discrimination. The different States in the OSCE already make provision for these rights in
their respective constitutions:19
•
The general right to participate in public life. For example:
-
19
Article 70 of the Constitution of Hungary;
Article 38 of the German Constitution;
These examples are not exhaustive and do not mean that because these rights are contained in the constitution
that those rights are implemented. The provisions of the constitutions are as of 15 August 2000.
178
•
The right not to be discriminated against on grounds of race, national, ethnic or social
origin. For example:
-
•
Articles 3 and 4 of the Constitution of the Netherlands;
Article 39 of the Constitution of the Republic of Moldova.
Article 14 of the Spanish Constitution;
Article 70A of the Constitution of Hungary;
Article 16(2) of the Constitution of the Republic of Moldova.
Article 14 of the Constitution of Georgia;
Article 15(3) of the Constitution of the Kyrgyz Republic;
Article 19 of the Constitution of the Russian Federation.
The right to vote. For example:
-
Article 4 of the Constitution of the Netherlands;
Article 16 of the Constitution Of Ireland;
Article 70 of the Constitution of Hungary;
Article 1(6) of the Constitution of the Kyrgyz Republic;
Article 49(2) of the Constitution of Georgia;
Article 38 of the Constitution of the Republic of Moldova.
Constitutional entrenchment
• Certain provisions and rights in the constitution may be so important that they may need to
be entrenched. Constitutional provisions can be entrenched in such a way that it is more
onerous for a legislature to amend it. The purpose of constitutional entrenchment is not
only to signal the fundamental nature of the provisions entrenched and the Constitution’s
commitment to the values contained in those provisions, but also to give security to the
beneficiaries of those provisions.
6.
•
Entrenchment may take several forms. In this respect, a standard mechanism is to require
enhanced voting thresholds in the legislature. Other mechanisms may require a special
procedure to be followed requiring engagement with all relevant stakeholders or the
majority support of each of the subsidiary legislatures in a federal system of government.
•
The use of a referendum or plebiscite may also be prescribed and utilized in cases
involving rights issues.
LUND RECOMMENDATION ON ELECTIONS: No. 8
“The regulation of the formation and activity of political parties shall comply
with the international law principle of freedom of association. This principle
includes the freedom to establish political parties based on communal
identities as well as those not identified exclusively with the interest of a
specific community.”
179
6.1
Content explanation
The first sentence of this recommendation is normative. States must comply with the international
principle of freedom of association. That principle is to be found expressed in the following
international standards:
-
-
-
Article 22 of the International Covenant on Civil and Political Rights;
Article 2 of the UN Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious or Linguistic Minorities specifically states that persons belonging to these
minorities have the right to establish and maintain:
their own associations; and
contact with other members of their group even if they are citizens of another State;
Article 11 of the Convention for the Protection of Human Rights and Fundamental
Freedoms;
Article 7 of the Council of Europe’s Framework Convention for the Protection of National
Minorities (ETS No. 157, 1995) states that parties shall ensure respect for the right of every
person belonging to a national minority to freedom of peaceful assembly, freedom of
association, freedom of expression, and freedom of thought, conscience and religion;
Paragraph 7.6 of the OSCE’s Copenhagen Document: “respect the right of individuals and
groups to establish, in full freedom, their own political parties or other political
organizations and provide such political parties and organizations with the necessary legal
guarantees to enable them to compete with each other on a basis of equal treatment before
the law and by the authorities”;
The international principle contemplates that individuals are free:
-
to associate with any person whether a citizen, resident, refugee or foreigner;
to form an association;
to determine the purpose, defining characteristics and internal rules of the association; and
to decide, on a non-discriminatory basis, who may join or who may not join the
association.20
Although States are permitted to regulate the exercise of the freedom to associate, the State may
not interfere with it unless the interference is justified on compelling grounds. In both
international law and comparative constitutional law, any interference with the freedom is strictly
scrutinized.21 The interference may be justified only if
-
20
21
the interference is prescribed by law
the law permits interference on the following grounds only
national security
public order and safety
the protection of health or morals
The State is obliged, particularly on the basis of Article 2D and Article 5 of the Convention on the
Elimination of all Forms of Racial Discrimination, to prohibit members of majorities to exclude persons
belonging to national minorities from taking part in associations set up by members of majorities. Majorities
cannot establish trade unions which are closed to members of minorities, nor can professional organizations
be set up to which members of minorities have no access. The same principle applies to associations set up
by members of minorities. States must prohibit exclusions on, for example, ethnic or national grounds.
Thus, associations set up by minorities to promote the culture of a minority, cannot exclude a person
belonging to other groups from membership if they want.
See for example the approach adopted by the European Court of Human Rights in Sidiropoulos & others v
Greece (57/1997/841/1047) in which the Court states that “[e]xceptions to freedom of association must be
narrowly interpreted”, at para 38.
180
-
the protection of the rights and freedoms of others (as stipulated in international
human rights instruments)
the interference is necessary in a democratic society.
The restrictions on associations promoting the interests of national minorities are normally based
on national security. Unless the association promotes the use of violence in order to achieve its
objectives, the restriction is unlikely to be justified as a threat to national security. The European
Court of Human Rights has consistently held that unless there is a call to use violence or act
undemocratically, an association that seeks to change the existing structures of the State
peacefully and democratically does not, on that ground alone, threaten national security.22 The fact
that a political party seeks to mobilize a national minority to pursue its interests does not of itself
justify interference.
Although it is normally left to the State to decide if it wishes to curtail the activities of an
association in terms of the law, there are positive obligations on States to prohibit certain kinds of
activities that may include the prohibition of the associations themselves. Article 4 of the
Convention on the Elimination of All Forms of Racial Discrimination requires States to adopt
positive measures such as the prohibition of organizations that promote and incite racial
discrimination.
The principle applies to all associations and not to political associations only. For the purpose of
these guidelines the principle applies to political parties, cultural and community associations that
represent national minorities and non-governmental associations that support those minorities.
The application of the principle in the context of national minorities clearly contemplates the right
to establish associations based on communal identities and those that organize across
communities. Although States may take steps to encourage associations to diversify their
constituencies, the State must guarantee national minorities the right within the law to establish
associations based on a communal identity.
It is clear that while it is imperative for each State to find the best way to respond to the polarity of
interests of its diverse populations, it must, at the very minimum, ensure that there is freedom of
association. Provided the activities of those individuals mobilizing along communal identity lines
to form a political party do not resort to violence or conflict with the rights of others, there should
be no impediment for them to associate in that manner.
6.2
-
Legislative Framework
The right to freedom of association should be entrenched in the State’s Constitution and
should not permit legislative or executive restriction of that right except to the extent necessary
in a democratic society.
Any restrictions on the freedom of association should be prescribed in law. There should be no
prior consent necessary to establish an association although it is permissible for a State to require
associations to register for certain purposes, provided that the registration procedure does not in
effect make it difficult for associations to register and operate.
22
In The Socialist Party & Others v Turkey (00021237/93) the ECHR held that the fact that a political party’s
“political programme is considered incompatible with the current principles and structures of the … State
does not make it incompatible with the rules of democracy. It is the essence of democracy to allow diverse
political programmes to be proposed and debated, even those that call into question the way the State is
currently organized, provided that they do not harm democracy itself”, at para 47.
181
7.
“The electoral system should facilitate minority representation and influence.
•
•
•
•
7.1
Where minorities are concentrated territorially, single member districts
may provide sufficient minority representation;
Proportional representation systems, where a political party’s share in
the national vote is reflected in its share of the legislative seats, may assist
in the representation of minorities;
Some forms of preference voting, where voters rank candidates in order
of choice, may facilitate minority representation and promote intercommunal co-operation;
Lower numerical thresholds for representation in the legislature may
enhance the inclusion of national minorities in governance.”
Content Explanation
The basic premise of the guidelines under this paragraph is that States that have well designed
democratic political institutions are more successful at managing conflict and resolving political
grievances particularly those that relate to national minorities. Accordingly the design of the
political institutions and the electoral system, in particular, performs an important role in
managing conflict and providing a peaceful outlet directing the interests that may otherwise fuel
conflict into effective participation in public life. This is particularly so in societies in which there
are competing ethnic groups. If an electoral system does not address the real needs of a society
and the social formations within it, it will not only lead to political and administrative difficulties
but may, itself, be the cause of conflict. It follows therefore that an important practical application
of the Lund Recommendations is to firstly review the existing electoral system and to improve the
design, if necessary, to achieve that objective.
Electoral systems can be specifically constructed to address the particular needs in a society. This
is because they prescribe how votes are translated into seats. The choice of system can lead to
different outcomes on the same number of votes. For example an electoral system based on
constituencies will often lead to a different result from a system of strict proportional
representation.23 This may, in certain circumstances make the critical difference between a party
assuming and losing power. It will also determine the level of representation of parties especially
representative of minorities.
The choice then of the most appropriate system becomes a critical one. But, electoral systems
alone do not solve potential ethnic conflict. The electoral system must be viewed as one of a
multiplicity of interlocking mechanisms which, taken together, will have the effect of
accommodating national minorities and ensuring their effective participation in public life. By
way of illustration, reserved seats for a particular community may ensure them representation, but,
unless the underlying processes and mechanisms, such as funding, eligibility, training and
education are provided, that representation may have little influence.
23
For example in the last election in 1997 in the United Kingdom, forty three percent of the vote secured sixty
three percent of the seats (418 in total) for the Labour Party. A strictly proportional representation system
would have given them only 283 seats. A particularly stark example of how an electoral system can lead to
lead to serious conflict is Lesotho. In the 1998 election the ruling party won 79 out of 80 constituencies with
only 60.5 percent of the votes. The post election violence, protesting the result, led to armed intervention by
neighbouring States and the establishment of an interim political authority charged with the responsibility of
designing a new electoral system with elements of both a constituency based system and proportional
representation.
182
Accordingly, while the electoral system may ensure minority representation in the legislature,
there remains no guarantee that the minority represented in the legislature will be accorded any
material role in the parliament or in government structures. Representation is often not enough. It
needs to be supported by other measures. For example in Parliament, the minority may be
accorded key seats in parliamentary committees that concern the interests of national minorities or
special procedures may be established to deal with minority vetoes in respect of minority issues.
In government structures, the proportional allocation of civil service positions may be a
mechanism that may be considered to give real meaning to minority participation in public life.
These kinds of supporting measures all contribute to turning what would otherwise be a formal
minority of seats in Parliament into meaningful participation of a national minority in public life.
There may also be a perception of tokenism in an allocation of seats to a national minority without
those seats constituting a platform for a meaningful influence on the decisions that affect that
minority. That perception undermines the legitimacy of the State’s measures to accommodate the
minority, allowing ethnic entrepreneurs to attack and thereby undermine the accommodation
accorded to the minority by the State.
It is essential that the electoral system take account of displaced persons or refugees who may be
resident outside the country. This is particularly the case after serious ethnic conflict when
refugees or displaced persons may consist substantially of one communal group. In that event, a
constituency system may not be appropriate because of the difficulties associated with access to
the constituency either for the purpose of registration or voting.
It is also essential for an electoral system to take into account the existence of national minorities
that are, or may in the past have been, nomadic. The strict application of a constituency system
may effectively disenfranchise them. The establishment of an electoral district in the former
Yugoslav Republic of Macedonia to enable the election of a representative of the Roma
community is an example of a good practice. This district, Shuto Orizari, encompasses the largest
concentration of Roma in Europe.
External voting provisions should apply equally and should not have a detrimental effect on
national minority representation. If there are external voting provisions, national minority
suffrage and representation should be encouraged.
The manner and form in which statistics are compiled, or in which a national census takes place, is
important in that reliability, accuracy and fairness may affect issues of national minority
representation in particular areas.24 This is a highly sensitive and delicate matter which should not
require declarations of affiliation which may be used in a subsequently discriminatory manner.25
If a national minority is given a special entitlement to elect minority representatives to a legislative
body, it is imperative that this “minority vote” should be in addition to, rather than an alternative
to, the ordinary right to elect representatives. Accordingly, if it is considered necessary for an
electoral system to allow voters belonging to a national minority to have a special vote, those
voters should be entitled to vote in both. In the Croatian Parliamentary elections (Lower House),
members of National minorities may choose to vote for a general national list, but may also vote
for specific minority lists. (The Hungarian, Serbian and Italian minorities have one seat each,
while minorities with small numbers of members are grouped together to elect one deputy among
24
25
On the complex and sensitive issues of data collection and census, see the contributions to the International
Association of Statisticians' Conference “Statistics, Development and Human Rights” held in Montreux,
Switzerland, on 4-8 September 2000, in particular, the 6 September session on minorities (publication
forthcoming); most of the papers are available on the Conference web-site at www.iaos2000.admin.ch..
Many minorities (inter alia, Jews and Roma) have had severe experiences as a result of such ascription in the
past.
183
them.) The reason is that it is wrong to assume that members of ethnic or other communities will
automatically vote along such lines. Parties should, where possible, be encouraged to include
minority representatives in their parties, which will, in turn, ensure greater representation and
contribute to curtailing ethnic mobilization.
It should not always be assumed that national minorities want to participate in government. In this
respect there may be circumstances which have led them to conclude that it may not be in their
interests to adopt a certain political profile. Notwithstanding this, there should be no impediment
to their participation should they choose to do so.
7.2
Legislative Framework and Options
In this general principle of the Lund Recommendations, four options are detailed. Each is a
mechanism that may, depending on the circumstances, facilitate and encourage minority
representation and influence in legislatures. They are:
•
•
•
•
the use of single member districts
a system of proportional representation
the use of preference voting
the establishment of lower numerical thresholds for representation
Each option is elaborated below. Neither the options nor these guidelines are exhaustive.
Option 1:
Where minorities are concentrated territorially, single member districts may
provide sufficient minority representation.
Many electoral systems are based on representatives elected from defined single-member districts
– called a single member system. There are two variants:
•
a plurality system such as first-past-the-post. This system grants victory to the highest
polling candidate even if the candidate does not enjoy majority support.26
• a majority system such as the two-round runoff or the alternative vote. This system
requires the winner to win at least a majority of the votes cast in order to be elected. This
may mean a runoff between the top two candidates if none of the candidates in the first
round get a majority of the votes cast.
Representatives elected under these kinds of electoral systems are therefore linked to the
constituencies that elected them to office. If a national minority is concentrated in a particular
area, then it will have a better chance of having its representatives elected.
In most cases, single-member systems will only be of assistance to minority representation in
countries where minorities are concentrated territorially. If minorities are concentrated
territorially and there is a majority electoral system, then the chances of a member of such
minority being elected are very high. This is the case, for example, in Albania with the Greek
26
Accordingly if there are five candidates, it is theoretically possible that a candidate with only 21% of the vote
may be declared the winner.
184
minority in the South of the country, in Canada with the French-speaking population of Quebec
and in Italy with French speaking minority in the Valle d’Aosta and German speaking minority in
the province of Bolzano. If minorities are dispersed generally throughout the country, depending
on their numbers, they would not necessarily be ensured representation because there may not be
sufficient votes to ensure a minority winner in any of the single member districts.
The potential advantages of a single member system are:
•
•
a territorially concentrated minority may be ensured representation
direct accountability of the candidates to the constituencies.
The potential disadvantages of such a system are:
•
•
•
there is every incentive for national minorities to campaign in their own area, resulting in a
potentially chauvinistic and exclusivist approach and campaign. This also results in the
potential to compartmentalize national minorities and the drawing of potential ethnic fault
lines for future conflict;
it can also lead to non-competitive districts in that persons from the dominant ethnic
grouping will always be elected;
unless there are appropriate external voting provisions, displaced persons who may have
been driven from their communities will be unable to vote.
There are implications for national minorities in the choice between plurality (first past the post)
and majority systems. In a plurality system, there is no incentive to seek votes across the
constituency if the national minority represents the largest percentage of voters but not the
majority. In a majority system, there is an incentive to seek votes outside that of the national
minority in order to acquire the required majority.
If a national minority is concentrated in some areas but a significant number of that minority are
dispersed nationally, a mixed system may be more appropriate to ensure fair representation of the
national minority in the legislature. One such mixed system is called the mixed member
proportional system (MMP). This is a variation of the single member system and the
proportional representation system (PR). It is used in Germany, New Zealand, Bolivia, Italy,
Mexico, Venezuela and Hungary. It attempts to combine the positive attributes of the two
systems. A proportion27 of the representatives are elected in single member districts and the
balance by PR. The PR seats are used in this system to compensate for any disproportionality
produced by the district seat results. The single member districts ensure that voters have
geographical representation.
Another mixed system is called the parallel system. Like the MMP system, it combines the single
member system with the PR system. But under this system, the PR seats are not used to
compensate for any disproportionality. The PR seats are allocated in accordance with the number
of votes in favour of the political party. These votes are determined either by counting the votes
in favour of the political parties that have fielded candidates in the single district elections or by a
second vote. Examples of countries using parallel systems are Albania, Armenia, Croatia,
Georgia, Russia and Lithuania.
27
Roughly half of the parliamentary representatives in the German, New Zealand, Bolivian and Venezuelan
electoral systems.
185
Option 2:
Proportional representation systems, where a political party’s share in the
national vote is reflected in its share of the legislative seats, may assist in the
representation of minorities.
The list PR system is the most prevalent form of PR and the most common electoral system
choice amongst OSCE countries. Under this system, each party submits a list of candidates to the
electorate and voters therefore vote for a party as opposed to an individual candidate. This system
is applied in numerous states, e.g., Azerbaijan, Bulgaria, Croatia, Spain, Portugal and Romania.
The more proportional an electoral system, the more it allows minorities, even dispersed ones, to
be represented in an elected body, at least if the threshold is met. The proportional system in
Finland allows the Swedish minority, which is in the majority only on the Aland Islands, to be
represented by its own list in three other constituencies. It also has a seat in a further constituency
through alliances with other parties.
This system has a number of clear advantages:
•
•
•
•
it delivers highly proportional election results. The number of votes won are proportional
to the number of seats gained.
it is relatively invulnerable to gerrymandering, mal-apportionment and other forms of
manipulation of results by the manipulation of electoral boundaries.
it is relatively simple for both voters and electoral officials.
because of its high levels of proportionality, list PR systems are often favoured as being
the most likely to ensure the representation of even small minorities.
It should be noted that list PR may have the effect of entrenching ethnic politics, rather than work
to encourage inter-ethnic alliances. The experience of list PR in post-Dayton Bosnia is a good
example of how proportionality alone will not encourage accommodation. In Bosnia, groups are
represented in parliament in proportion to their numbers in the community as a whole. But
because parties can rely exclusively on the votes of members of their own community for their
electoral success, there is little incentive for them to accommodate on ethnic issues. In fact, the
incentives work in the other direction. Because it is easy to mobilize support by playing the
“ethnic card”, the major parties in Bosnia have every incentive to emphasize ethnic issues and
sectarian appeals. Bosnia’s 1996 elections were effectively an ethnic census, with electors voting
along ethnic lines and each of the major nationalist parties gaining support almost exclusively
from their own ethnic group. In the case of Bosnia, this electoral system not only promoted ethnic
mobilization, but served to encourage the most extreme elements within those ethnic groups.
In post-conflict situations where there may be external voting by refugees, a proportional
representation system will generally better serve their interests.
The use of compulsory multi-ethnic lists in which parties are legally compelled to include multiethnic representatives on their party lists is a further mechanism that can be employed to ensure
that rather than creating purely ethnic parties, that the groupings are assimilated into “regular”
party politics.28
28
The Taef Agreement for Lebanon provides: “Until the Chamber of Deputies passes an election law free of
sectarian restriction, the parliamentary seats shall be divided according to the following bases: a) Equally
between Christians and Muslims, b) Proportionately between the denominations of each sect, c)
Proportionately between the districts.”
186
The MMP and parallel systems discussed above are forms of PR and may also be used to enhance
minority representation. However, as noted earlier, proportionality of outcomes is not guaranteed
if a parallel system is used, particularly if the majority of seats are actually elected from singlemember districts rather than national party lists. In Albania, Armenia and Azerbaijan, for
example, over three-quarters of all seats are elected from districts rather than nationally.
The advantages of PR systems are as follows:
-
they faithfully translate votes cast into seats won, and thus avoid some of the more
destabilizing and “unfair” results thrown up by plurality - majority electoral systems;
they facilitate minority party access to representation;
they encourage parties to present inclusive and socially diverse lists of candidates;
they make it more likely that the representatives of minority cultures or groups are elected;
they make it more likely that women are elected;
they restrict the growth of “regional fiefdoms”; and
they make power sharing between parties and interest groups more visible.
The disadvantages are as follows:
-
the lack of accountability and responsiveness between elected politicians and voters;
the fact that ethnic leaders can be elected exclusively by members of their own group, thus
replicating, rather than breaking down, social divisions in the legislature;
the concentration of power at the centre of the political party in the hands of leaders who
may be responsible for the compilation of party lists;
the problem of government formation and stability in cases of multi-party coalitions;
in cases of multi-ethnic candidacy there may be instances where “token” national minority
representatives are included in party “lists” which may give a false impression of
representation and inclusion.
Option 3:
Some forms of preference voting, where voters rank candidates in order of
choice, may facilitate minority representation and promote inter-communal
co-operation.
Preference voting systems enable electors to indicate how they would vote if their favoured
candidate was defeated and they had to choose between those remaining. It is this particular
feature that distinguishes preferential voting from other electoral system choices. The two key
forms of preferential voting are a proportional system, the Single Transferable Vote (STV), and a
majority system, the Alternative Vote (AV). Under both systems, electors rank the candidates in
order of choice, marking a “1” for their favourite candidate, “2” for their second choice, “3” for
their third choice, and so on. In essence, voters are saying to the election officer “if my first
choice does not win, use my second vote”.
STV elections generally utilize small multi-member electoral districts. After the total number of
first-preference votes are tallied “a quota” of votes is established, which a candidate must achieve
to be elected. Any candidate that has more first preferences than the quota, is immediately
elected. If no one has achieved the quota, the candidate with the lowest number of first
preferences is eliminated and their second preferences are redistributed amongst remaining
candidates and the surplus votes of elected candidates are redistributed according to the second
preferences on the ballot papers until all seats for the constituency are filled. This system is well
established in Ireland and Malta, and has also been used for elections in Northern Ireland and
Estonia.
187
STV was successfully used at the 1998 Northern Ireland “Good Friday” agreement elections. It
appears to have promoted a degree of moderation and accommodation in the political process.
Because of its preferential ballot, STV enabled voters to pass their lower-order preferences on to
“pro-agreement” parties, and also encouraged some of the sectarian parties to soften their rhetoric
and policies in the hope of gaining such preference votes. It also produced fairly proportional
outcomes. In terms of accommodating minority interests, it has much to recommend it,
particularly in deeply divided societies.
On the other hand, political parties tend to dislike STV as it takes the decision over candidates
away from them. In addition, because of the complicated and technical nature of the vote
counting process, there may be perceptions of manipulation or fraud. It should also be noted that
the system appeared to work well in Estonia in 1992 when there were no political parties but fared
less well in 1995 when there were political parties.
The other major preferential system, AV, is a majority system that usually takes place in singlemember districts, requiring winning candidates to gain an absolute majority of the vote to be
elected, either directly or indirectly by the distribution of alternative votes. For example, if no
candidate has over 50% of the direct votes, the lower order alternative votes are transferred until a
majority winner emerges. Under some circumstances, this feature presents candidates with a
strong incentive to try and attract the second preferences from voters from other groups (assuming
that the voters first preference would usually be a candidate from their own group). This is
because winners need to gain an absolute majority of the vote under AV rules. Candidates who
successfully “pool” their own first preferences and the second preferences of others will be more
successful than those who fail to attract any second-order support. This system is used in
Australia and for presidential elections in the Republic of Ireland. It is particularly appropriate for
the election of single-person offices such as presidencies. A related system, the supplementary
vote, has recently been used for mayoral elections in London.
The advantages of preferential vote systems are as follows:
- they can produce incentives to accommodate minority interests;
- they give voters a greater degree of choice between candidates – they are not limited to a
single choice;
- candidates who are elected will sometimes be dependent on the votes of groups other than
their own;
- they have the advantage of using small single-member (AV) or multi-member (STV)
electoral districts, thus guaranteeing geographic accountability.
The disadvantages of preferential or alternative vote systems are as follows:
- preferential voting systems are more complicated for both voters and electoral officials
than other choices, and can be problematic in circumstances of high illiteracy;
- majority versions like AV can produce disproportional outcomes;
- proportional versions like STV can encourage candidates from the same party to compete
with each other for votes;
- they are not widely used in practice and consequently it is difficult to assess their merits in
concrete situations.
Option 4:
Lower numerical thresholds for representation in the legislature may enhance
the inclusion of national minorities in governance.
188
The threshold of representation in legislatures means the minimum level of support that a party
needs to gain representation. The threshold will affect the ability of smaller parties, particularly
minority parties, to get representation in Parliament. A high threshold will discourage minority
representation. Certain countries such as Germany and Russia have a 5% threshold which is the
minimum level which parties would need to secure in order to be awarded seats from the PR lists.
It should however be noted that in relation to Germany, there is a subsidiary qualification
mechanism in that threshold rules do not apply to national minorities. On the other hand, in
Russia in 1995 there were no other routes of electoral qualification which had the result of a
substantial number of party list votes for smaller parties having no effect.
Legal thresholds vary in extent, from 0.67% in the Netherlands and 2% in Denmark, to 10% in
Turkey and in the Seychelles. In many cases high thresholds tend to increase the levels of
disproportionality because there may be many votes cast that have no effect. By way of
illustration, in Poland in 1993 over 34% of the votes were cast for parties that did not meet the
threshold of 5%, although in Poland the threshold rules do not apply to national minorities. It
should also be noted that if the threshold is too low, then that might result in the fragmentation of
political parties and the entrenchment of minority parties, particularly if funding is also made
available.
High thresholds may serve to discriminate against small parties – indeed, in some cases this is the
express purpose. A high threshold may impel smaller parties to group together particularly if
there is provision in the electoral law to permit political parties to do so, thus forming a “cartel or
apparentement” to contest the election. This means that the parties themselves remain separate
entities and are listed separately on the ballot paper, but their votes are counted as one, thus
increasing their chances of making the threshold. This device is a feature of a number of list PR
systems in continental Europe, Latin America and Israel.
7.3
Other Mechanisms
In addition to the above mechanisms and systems, there are other methods that may be utilized to
assist and facilitate minority representation. Two of these are listed below:
Reserved Seats
• Reserved seats are special seats allocated to national minorities. The representatives in
these seats are elected by members of the specified minority grouping only. Examples of
reserved seat representation are to be found in Croatia, Slovenia, Romania, the Russian
Federation Upper Chamber and the ex-officio participation of the Sami people in Finland.
The particular form that the special representation of national minorities may take requires
detailed consideration of the process, representativity, structure, implementation and
maintenance. In the Russian Federation, national minority voters preferred to vote “against
all” rather than fill reserved seats with candidates whom they did not feel would represent
their interests.
•
It should be noted that it may be better not to reinforce ethnic differences through reserved
seats as that may, in itself, be a potential cause of mistrust and antagonism. Furthermore,
in some situations there may be some risk for voters to identify themselves in a separate
voter’s roll. The primary objection to the use of reserved seats is that it may perpetuate the
identification and division of candidates based on ethnicity and that such labels can result
in differentiation and discrimination.
•
In most cases, special or reserved seats are instituted as short-term mechanisms in
transitional situations in order to address the fears and concerns of vulnerable minorities.
189
Experience is however, that these mechanisms do not wither away, but endure as they
become part of the electoral landscape of the country.
Other communal devices which explicitly recognize ethnic identity as part of the electoral
process include the use of mandated ethnically-mixed candidate lists, as in Lebanon and
the use of “best loser” seats for under-represented ethnic minorities, as in Mauritius.
•
Over-representation
• The mechanism of over representation of minority groups can also be utilized. This is the
case in the United Kingdom, where Scotland and Wales have more MPs in the British
House of Commons, than they would be entitled to, if population size alone were the only
criteria.
8.
“The geographic boundaries of electoral districts should facilitate the
equitable representation of national minorities.”
8.1
Content Explanation
In any electoral system, the design of the constituencies will determine the level of representation
gained by a national minority. The constituencies can either be drawn to ensure representation, or
to ensure that there is limited or even no representation.
There are two aspects to the issue of boundaries of electoral districts that may have an effect on
the equitable representation of minorities. These are:
•
•
district magnitude;
territorial delimitation.
8.1.1
District Magnitude
The crucial determinant of an electoral system’s ability to translate votes cast into seats won
proportionately, is the district magnitude. That is to say the number of members to be
elected in each electoral district. Under a single member system such as first-past-the-post,
AV or the Two-Round system, there is a district magnitude of one; voters are electing a
single representative. Under a Multi-Member system, by contrast, there will, by definition,
be more than one member elected in each district. Under any Proportional System, the
number of members to be chosen in each district determines, to a significant extent, how
proportional the election results will be. In this respect “the systems which achieve the
greatest degree of proportionality will utilize very large districts, because such districts are
able to ensure that even very small parties are represented in the legislature. For example, a
district in which there are only three members to be elected means that a party must gain at
least 25% + 1 of the vote to be assured of winning a seat. A party that has the support of
only 10% of the electorate would not win a seat, and the votes of this party’s supporters
could therefore be said to have been wasted. The problem is that as districts grow larger –
both in terms of the number of seats and often, as a consequence, in the geographic size as
well – so the linkage between an elected member and his or her constituency grows weaker.
This can have serious consequences in societies where local factors play a strong role in
190
politics, or where voters expect their member to maintain strong links with their electorate
and act as their “delegate” in the legislature.
There will always be degrees of the deviation among the various magnitudes of the
delimited districts. Many electoral laws stipulate the degree of acceptable deviation, such as
5% in Croatia and 10% in the United Kingdom. However, certain countries allow greater
degrees of deviation and it is therefore difficult to refer to acceptable degrees of deviation
without regard to the specific circumstances applicable to each country. It is important that
whatever the degree of deviation that may be found, such deviation should not in any way
prejudice national minorities in terms of their representation or voting power.
Constituencies with several seats, even under a majority system, may make it easier for
members of minorities to be elected in constituencies where the minority is not in the
majority. If there is only one seat to be filled, voters from the majority tend to choose a
candidate from the majority, whereas in a multi-member constituency system, voters may
vote for a list of candidates which includes majority and minority candidates. Thus, in
Greece, parties include Muslim candidates on their lists and at least two of them are usually
elected. In Poland and in Switzerland, parties tend to balance their lists so as to ensure that
minorities are fully represented.
8.1.2
Territorial delimitation
The manner in which electoral boundaries are demarcated will have a determinant effect on
the nature of representation in a particular area. While the general principles governing
boundary demarcation are dealt with below, it remains important for policy and decisionmakers to first decide as to whether they want to demarcate electoral boundaries in a manner
which will enhance and facilitate the greater representation of minorities. The delimitation
of electoral districts is most commonly associated with plurality or majority electoral
systems. Both systems rely heavily, if not exclusively on single member districts. These
districts must be redrawn periodically to reflect changes in the population.
Electoral legislation outlining the formal structure and rules for redistricting should address
the following issues:
•
•
•
•
•
•
•
•
•
Who appoints the body?
Who will draw the district lines or boundaries?
Who will have the ultimate responsibility for selecting the final redistricting plan?
Should the persons who draw the districts be independent from the legislature and
be politically neutral?
Should the legislature have any formal role at all in the process?
Should some mechanism exist for public input into the redistricting process?
Should the redistricting criteria be adopted for the line drawers to follow?
How often should districts be redrawn and how long should the redistricting
process take place?
What are the sources of funds of the body?
The basic principle in relation to delimitation of electoral districts is that it should be done
fairly and should not have the effect of prejudicing the representation of any party or
minority grouping. In some cases, electoral districts may be purposely designed and drawn
to ensure that minority groupings are represented. Again, this will depend upon the spread
191
of the minority grouping as to whether they are concentrated territorially in a specific
geographic area or whether they are spread evenly throughout a large portion of the country.
It is a trend in developing countries, as well as in certain established democracies for the
demarcation body to be independent from government and to be representative and
legitimate in composition and structure. While, as is the case with electoral commissions,
many countries in Western Europe locate this responsibility within a government
department, there is no doubt that the legitimacy and credibility of the body is considerably
enhanced by locating it outside government with separate sources of funding which will
thereby ensure its legitimacy and operational independence. In addition, the decisions of the
demarcation body should be subject to judicial review, as with all executive decisions. In
certain countries this decision rests with the legislature, however, leaving this critical area of
decision making purely in the hands of the legislature, needs to be carefully considered.
Refugees or displaced persons need to be given careful consideration in terms of their choice
of constituency or the external voting provisions relating to them. This should apply to
nomadic groupings to ensure that they are represented. The dispensations for the Bedouin
people in Jordan provide a good example. Similarly the establishment of a district to enable
the election of a representative of the Roma community in district 85, in Shuto Orizam in the
former Yugoslav Republic of Macedonia, which encompasses the largest Roma population
in Europe, is a good example.
Best practices for boundary delimitation are as follows:
9.
•
Representativeness. Electoral district boundaries should be drawn such that constituents
have an opportunity to elect candidates that they feel truly represent them. This usually
means that district boundaries should coincide with communities of interest as much as
possible. Communities of interest can be defined in a variety of ways and would include
administrative divisions, ethnic or cultural neighbourhoods or natural communities
delineated by physical boundaries (such as islands). If districts are not composed of
communities of interest, however defined, it may be difficult for a single candidate to
represent the entire constituency.
•
Equality of voting strength. Electoral district boundaries should be drawn so that
districts are relatively equal in population size. These districts allow voters to have an
equally weighted vote in the election of representatives.
•
Reciprocity. The procedure for delimiting electoral districts should be clearly spelt out
in legislation so that the rules regulating the process are the same, regardless of who is
drawing the district boundaries. If the redistricting process is to be non-partisan, then all
political parties must refrain from attempting to influence the outcome. If political
concerns are permitted to play a role in the process, then all political parties must be
given access to the process. The rules must be clearly understood and must be
accessible to all relevant political parties and participants in the redistricting process.
ENSURING FAIR CONDUCT OF ELECTIONS: THE
ADMINISTRATION OF THE ELECTIONS
The guidelines and options detailed above are essentially mechanisms and legislative prescriptions
which are intended to address the issue of minority representation and to prevent discrimination
against minorities. The real efficacy of these provisions will however depend on two critical
192
factors. Firstly, the strong commitment of all major political parties and actors to ensure that these
provisions and mechanisms are effectively installed and maintained, with specific attention being
given to monitoring mechanisms. Monitoring mechanisms could include joint committees or
commissions which would ensure compliance by parties of electoral codes of conduct or other
provisions which may be designed to ensure that there is no discrimination against national
minorities and that the electoral process takes place in an atmosphere which is both free and fair.
In this respect, it is necessary to give attention to the appropriate adjudicatory mechanisms
(electoral courts / tribunals) which would be responsible for both compliance and sanction in the
event of breach.
Adjudicatory Mechanism
The issue of disputes / complaints that arise during the course of an electoral process is one
which gives rise to much debate and, in certain cases, controversy.29 These disputes and
complaints would include those which relate to behaviour and conduct as well as those of an
administrative nature which pertain to the electoral process and effect the equity and fairness
of that process. There are a number of different approaches and structures which are used to
address electoral disputes, certain of which have proved to be effective, while others have
been used at great financial cost and with disastrous consequences for the electoral process
and, in certain instances for the democratic process. The primary issue is the manner and
efficacy with which electoral disputes are resolved. In addressing the issue of the resolution
of electoral disputes, the following aspects should be emphasized:
•
•
•
•
•
•
•
The importance of a comprehensive legislative framework for electoral dispute
resolution;
The adoption and use of independent systems or institutions in relation to the resolution
of electoral disputes and complaints;
The implementation of cost effective models and systems of electoral justice and dispute
resolution;
The need for consistency, reliability and stability in the administration of electoral
justice;
The need for the constructive, timely and effective resolution of disputes and complaints;
The need to improve training in legal aspects, conciliation, and administration of
electoral justice;
The need for the selection of impartial and professional personnel to administer and
execute the electoral justice system.
The second component is the importance of having the appropriate independent and/or neutral
bodies to ensure proper implementation that will ultimately guarantee that minority provisions and
prescriptions do not become “paper” provisions. In this regard, the major implementing body in
relation to electoral laws, systems and administration will be the electoral administration or
electoral commission in a particular country. In order to build confidence and encourage minority
participation in elections, members of minorities should be included in election commissions.
9. 1 Electoral Body Options
Once the functions and features of an electoral body have been considered, it is then necessary to
determine where that body should be situated. To put it in its simplest form, there are two
competing options: inside the Government or outside the Government in an electoral commission.
29
OSCE/ODIHR publication “Resolving Election Disputes in the OSCE Area: Towards a Standard Election
Dispute Monitoring System”, Warsaw, October 2000.
193
However, there are variations on these two options, based on a variety of facts and circumstances,
four of which are discussed below:
9.1.1 Government approach
The first model is that the electoral body is located within a government ministry and is
charged with the responsibility of conducting and managing elections and utilizing the
resources of that ministry and civil service to achieve the task. This system works well in
cases where the civil service is respected as being professional and politically neutral.
9.1.2 Supervisory or judicial approach
A variation on the above is that a government ministry is tasked with the conduct of the
electoral process, but is supervised by an independent electoral commission consisting of
selected judges. The task of the commission is to oversee and monitor the conduct of the
electoral process by the relevant government ministry. This is the case in Eastern and
Central Europe in such countries as Albania, Croatia, the Czech Republic, Hungary,
Romania and Slovakia.
9.1.3 Independent approach
The third model is that an independent electoral commission is established that is directly
accountable to parliament or a parliamentary committee or to parliament. Independent
electoral commissions need to have a substantial degree of financial and administrative
independence from the executive government. The selection process for appointing
electoral commissioners should be transparent and impartial. Ideally, the selection should
be based on a consensus of the political parties contesting the elections and be individuals
with the relevant experience and expertise and who also have a reputation for
independence and integrity. The use of internationally recognized or prominent persons
which would also include prominent members of civil society has also been proven in
countries where there has been conflict or a breakdown of trust between the parties.
9.1.4 Political Party approach
A further option in terms of comparison is to have all registered political parties designate
representatives to the national electoral commission. This ensures that various interests are
represented on the commission and that each party exercises some form of oversight
concerning the operation of the commission. The problem associated with this is that in
transitional situations, the number of parties often proliferates, thereby resulting in an
unwieldy and ineffective commission. Secondly, the commission may be comprised of
individuals who lack the requisite skills and/or experience to ensure effective participation
on the commission.
In Eastern Central Europe, in practically all emerging democracies, elections are managed either
by independent commissions (71%) or by the government under supervisory authority (29%),
which usually includes political party representatives. It should however be noted that while there
may be legislative provision for the independence and neutrality of electoral commissions, in
practice this is often much harder to achieve. Issues such as the manner of appointment and by
whom, as well as the funding of election commissions are aspects that may detract from and
influence the independence or neutrality of the electoral body.
9.2
Composition of Electoral Commission or Body
It is essential that in terms of the composition of the electoral commission or body, that there is
appropriate national minority representation. This would apply to all of the approaches detailed
194
above, although it would be harder to achieve if the electoral body is located within a government
ministry. Notwithstanding this, if the body should be located within a government ministry, then
there should be sufficient representation and transparency to ensure that national minorities not
only play a role in the making of decisions, but that all decisions and the reasons therefore should
be made public.
This participation of minorities, where appropriate, in the composition of the commission at a
senior level should be replicated to ensure that there is minority participation and representation at
every level of the electoral administration, from national to local. In communities where
individuals and voters will interact with representatives of the electorate administration it is
particularly important for minority groupings to be represented and included in the administration.
In addition, the principles of transparency and impartiality are important in allaying the fears and
concerns of minorities.
9.2.1 Transparency
The overall credibility of an electoral process is substantially dependent on all relevant
groups, from government and civil society, participating in the formation and functioning
of electoral structures and processes. In this respect, the value of constant consultation,
communication and co-operation among the electoral administration, the political parties
and the institutions of society cannot be over emphasized. In the formulation of the
legislative framework of an electoral administration, this aspect should receive particular
attention.
9.2.2 Impartiality
The functioning of an electoral body should not be subject to the direction of any other
person, authority or political party; it must function without political favour or bias. The
body in charge of administering or supervising an election must be able to operate free of
interference, simply because any allegation of manipulation, perception of bias, or alleged
interference, will have a direct impact, not only on the credibility of the body in charge, but
on the entire process. There are many instances in which the perceived influence of a
political party or parties of the electoral machinery has severely detracted from the validity
of election results. Particularly in developing and emerging democracies, there is a much
greater degree of vulnerability to allegations of undue influence and bias, thereby making
the entire process more susceptible to credibility judgements, which then inevitably result
in a limited acceptance of elections results and of the process as a whole.
Permanent / Ad Hoc Electoral Bodies
9.3
The decision will need to be made as to whether the electoral commission should be a permanent
one, which would be appointed and operate on a continuous basis as opposed to an ad hoc one,
which would constitute itself over the period of the election and then disband until the next
electoral event. The trend is towards permanent electoral bodies, which provide for a much more
consistent and effective administration of elections. The advantages of a permanent electoral body,
particularly insofar as national minorities are concerned are the following:
•
•
•
A body of permanent and accountable officials who are known to the public and who
develop a reputation in the electoral field;
The retention of professional skills from election to election, as well as the institutional
memory that is necessary in this area;
The ability of national minorities to interact with a properly constituted and permanent
group of individuals and professionals;
195
•
The ability of electoral officials to interact internationally and also to ensure that
international norms are adhered to in relation to minority issues.
196
Addendum I
CHECKLISTS
Checklist of key provisions for the design of electoral systems
Item
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12
13.
14.
15.
16.
17.
18.
Yes
What is the structure of the society?
Is it divided along, ethnic, religious, linguistic or other lines?
Do the existing political institutions facilitate the management of
conflict and resolution of grievances related to minority issues?
Are ethnic groups concentrated in one or several distinct regions?
Are ethnic groups spread across the country as a whole?
Is there a specific conflict between groups that can be addressed
via the design of the electoral system? What is the source of this
conflict – i.e. over resources, territory, group rights etc?
Will the preferred electoral system design adequately represent
all groups in parliament?
Are any groups likely to be disadvantaged by the proposed
design?
Can their representation be secured in other ways?
How will the electoral system impact upon the development of
the political party system? Is it possible to encourage the
development of multi-ethnic parties?
Where there is minority representation in the legislature, are
there mechanisms for their effective representation?
Are there specific provisions, which encourage minority
appointments to public service positions?
Are there numerical or percentage thresholds, which enhance or
reduce possibilities of minority inclusion in governance?
Does the existing electoral system provide for a clear link
between some or all elected members and the minority electorate
or community?
Does the electoral system encourage inter-ethnic alliances?
Are parties encouraged to present inclusive and socially diverse
candidates or candidate lists?
Does the system tend to promote moderation and
accommodation and soften ethnic revelries?
Are small parties allowed to group together for electoral
purposes but at the same time remain as separate entities?
Are there reserved or quota seats for minority groups?
Are there mandatory ethnically mixed candidate lists?
Is the mechanism of over-representation of minority groups used
to facilitate their participation?
197
No
Depending on the electoral system in place, do the electoral boundaries take into
consideration or assume:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Item
Yes
Physical / geographical constraints and facilities such as rivers, mountains,
roads, etc.
Communities of interests
Ease of access by minority groups
A close identification by electors with an elected representative
The avoidance of dividing and dispersing minority groups in terms of voting
impact
The “independence” and neutrality of those charged with drawing up or
changing electoral boundaries
The opportunity for public input into the redistricting process
The intervals between major revisions to existing boundaries
The criteria (over and above those listed above) affecting the determination of
boundary lines
That electoral districts are relatively equal or equitable with respect to
population / geographic ratio
The need for equitable and balanced input by all parties if political involvement
is permitted
The existence of minority representation on, or official input into, the body
responsible for drawing up the electoral boundaries
The avoidance of gerrymandering or boundary manipulation
The rights of refugees and displaced persons
198
No
Safeguards to address minority fears and concerns
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Item
The appointment of an independent adjudicatory mechanism for complaints and ensuring
the appointment of the necessary level of minority representation on the adjudicatory body
Availability of special complaints / appeals mechanisms devoted to minority concerns
Appointment of a special “demarcations committee” accountable to parliament and on
which minorities are represented
Minority representation or participation in a “census committee” for population counts as
the basis for demarcating constituencies
Ensuring that such aspects as finances and budgetary allocations for elections are
transparent and made available to the public
Specific monitoring bodies in which minorities may be represented, tasked with the
responsibility to monitor such aspects as use of government resources, use of state media
including TV and radio time, etc.
The participation of minorities in the drawing up of campaign finance and political party
funding regulations to ensure equity
The use of political party liaison committees within the electoral administration to ensure
that there is constant communication and liaison with political parties and particularly
minority groupings with respect to their concerns and special electoral needs
Provision for international and local election observers in electoral legislation to ensure
observation and scrutiny of the freeness and fairness of the elections
Ensuring that specific regulations / directives have been issued by the Electoral
Management Body which support constitutional and / or legislative provisions concerning
minority rights.
199
Addendum II
Electoral Systems: Glossary of terms
Alternative Vote (AV) – A preferential, plurality-majority system used in single-member districts
in which voters use numbers to mark their preferences on the ballot paper. A candidate who
receives over 50% of first-preferences is declared elected. If no candidate achieves an absolute
majority of first-preferences, votes are re-allocated until one candidate has an absolute majority of
votes cast.
Block Vote (BV) – A plurality-majority system used in multi-member districts in which electors
have as many votes as there are candidates to be elected. Voting can be either candidate-centred
or party-centred. Counting is identical to a First Past the Post system, with the candidates with the
highest vote totals winning the seats.
Closed List – A form of List Proportional Representation in which electors are restricted to voting
for a party only, and cannot express a preference for any candidate within a party list.
First Past the Post (FPTP) – The simplest form of plurality-majority electoral system, using
single-member districts, a categorical ballot and candidate-centred voting. The winning candidate
is the one who gains more votes than any other candidate, but not necessarily a majority of votes.
Free List – A form of List Proportional Representation which provides for apparentement or
cumulation.
Limited Vote – A plurality-majority system used in multi-member districts in which electors have
more than one vote but fewer votes than there are candidates to be elected. Counting is identical
to a First Past the Post system, with the candidates with the highest vote totals winning the seats.
List Proportional Representation (List PR) – In its most simple form List PR involves each
party presenting a list of candidates to the electorate, voters vote for a party, and parties receive
seats in proportion to their overall share of the national vote. Winning candidates are taken from
the lists.
Majority-Plurality (Two-Round System) – In French Two-Round elections any candidate who
has received the votes of over 12.5 per cent of the registered electorate in the first round can stand
in the second round. Whoever wins the highest numbers of votes in the second round is then
declared elected, regardless of whether they have won an absolute majority or not. We therefore
refer to it as majority-plurality variant of the Two-Round System.
Majority-Runoff (Two-Round System) – The most common method for the second round of
voting in a Two-Round System is a straight “run-off” contest between the two highest votewinners from the first round – this we term a majority-runoff system.
Mixed Member Proportional (MMP) – Systems in which a proportion of the parliament
(usually half) is elected from plurality-majority districts, while the remaining members are chosen
from PR lists. Under MMP the list PR seats compensate for any disproportionality produced by
the district seat results.
Open List – A form of List Proportional Representation in which electors can express a
preference for a candidate within a party list, as well as voting for the party.
200
Parallel System – A semi-proportional system in which proportional representation is used in
conjunction with a plurality-majority system but where, unlike MMP, the PR seats do not
compensate for any disproportionality arising from elections to the plurality-majority seats.
Party Block Vote (PB) – A form of the Block Vote in which electors choose between parties
rather than candidates. The successful party will typically win every seat in the district.
Plurality-Majority Systems – The distinguishing feature of plurality-majority systems is that
they almost always use single-member districts. In a First Past the Post system, the winner is the
candidate with a plurality of votes, but not necessarily an absolute majority of the votes. When
this system is used in multi-member districts it becomes the Block Vote. Majority systems, such
as the Australian Alternative Vote and the French Two-Round System, try to ensure that the
winning candidate receives an absolute majority of votes cast.
Preferential Voting – Electoral systems in which voters can rank-order candidates on the ballot
paper in order of their choice. The Alternative Vote, the Single Transferable Vote and the system
used to elect the Sri Lankan president are all examples of preferential voting.
Proportional Representation (PR) – Any system which consciously attempts to reduce the
disparity between a party’s share of the national vote and its share of the parliamentary seats. For
example, if a party wins 40 per cent of the votes, it should win approximately 40 per cent of the
seats.
Semi-Proportional Systems (Semi-PR) – Those electoral systems which provide, on average,
results which fall some way in between the proportionality of PR systems and the
disproportionality of plurality-majority systems.
Single Non-Transferable Vote (SNTV) – A semi-proportional system which combines multimember districts with a First Past the Post method of vote counting, and in which electors have
only one vote.
Single Transferable Vote (STV) – A preferential proportional representation system used in
multi-member districts. To gain election, candidates must surpass a specified quota of firstpreference votes. Voters” preferences are re-allocated to other continuing candidates when an
unsuccessful candidate is excluded or if an elected candidate has a surplus.
Two-Round System (TRS) – A plurality-majority system in which a second election is held if no
candidate achieves an absolute majority of votes in the first election.
201
Addendum III – INTEGRATING MINORITY ISSUES INTO ODIHR ELECTION
OBSERVATION ELECTION OBSERVATION
Contents
I.
Introduction
II.
Role of ODIHR in Pre-Mission Phase
Table 1: Legislative Review
III.
Role of Needs Assessment Mission
Table 2: Voter Registration Issues
IV.
Role of Election Observation Mission (EOM) Core Team
Table 3: Voter Education Issues
V.
Role of Long-Term Observers
VI.
Role of Short-Term Observers
VII.
Reporting on National Minority Issues
VIII. Recommendations for Future EOMs
Annex 1
I.
National Minority Issues and Observation Techniques
Introduction
How far a participating State’s electoral system could assist representation for national minorities
in elected bodies raises interesting problems for ODIHR Election Observation Missions (EOMs)
in terms of international standards. The challenge for ODIHR is to provide EOMs with a
framework for assessing the extent to which participating States meet those standards, whilst
taking full account of comparative experience in the OSCE region and the political dynamic of the
country in question.
This section will attempt to place the Lund Recommendations in the context of the work and
existing methodology of an ODIHR EOM, highlighting the important factors to be considered and
seeking to identify ways in which they can be adequately addressed.
The format of the paper considers each component of an EOM, from the ODIHR Election Section
to the deployment of STOs. Suggestions are also offered on how the findings can be reported,
both within an EOM and publicly. Finally, some changes are recommended to the existing
ODIHR EOM methodology in order to accommodate this new approach.
202
II.
•
Role of ODIHR in Pre-Mission Phase
The ODIHR Election Section routinely obtains relevant legislation prior to the commencement
of a Needs Assessment Mission (NAM). This will include:
-
•
Election Law
Constitution
Political Parties Law
Other relevant laws and decisions which affect the process, such as the formation of
election commissions and media coverage of the campaign
In addition, the ODIHR should also obtain copies of any reports on the situation of national
minorities in the country to be observed. This might include:
-
Law on National Minorities
OSCE reports, HCNM, Council of Europe Reports on the implementation of the
Framework Convention for the Protection of National Minorities, in-country mission
reports
International and domestic NGO reports, etc.
•
When ODIHR carries out an assessment of the electoral legislation, defining whether the legal
framework governing the election process is in line with the OSCE commitments, the
assessment should include a consideration of national minority issues, in line with the present
Guidelines.
The following table raises some of the basic questions that can be asked:
Table 1
•
Does the Constitution afford universal suffrage without restrictions pertaining to
national minorities?
•
Are there any special criteria on voting rights relating to national minorities and
do these raise concerns?
•
Are there specific provisions within the election laws for national minority
participation?
•
Is the right to form a political party or political formation universally applied,
without limitations aimed at preventing participation by national minorities?
•
Are there any restrictions on the establishment of political parties based on
communal identity?
•
Does the election law raise any administrative restrictions which limit the fair
participation of candidates / parties from national minorities?
•
Is the participation of candidates from national minorities prejudiced by
unreasonable requirements?
•
Is the provision of state funding of parties / candidates (where applicable) equal in
law and practice?
203
III.
•
Role of Needs Assessment Mission
Assess General Legislative Framework
Depending upon whether an analysis of the legislative framework has been conducted prior to
the NAM, the NAM team should seek to identify main concerns and the political implications
of the relevant laws.
Based on Table 1 above, the NAM should assess to what extent legislative provisions may
limit the participation of national minorities.
If a full analysis has already been completed, the NAM should raise the key points and
concerns with their interlocutors to gain a greater insight into the issues.
•
Meet Representatives of Political and Civil Society
One of the prime reasons of a NAM is to meet with representatives of key institutions and
organizations. With regards to national minority issues, interlocutors may include:
-
Central Election Commission / Ministry responsible for election
Government ministry responsible for citizenship claims
Political Parties, including parties representing national minorities
National minority interest groups / representatives
International and domestic NGOs concerned with national minority issues
Local media, including representatives of national minorities
During these meetings, the NAM should raise any specific concerns that have come to light,
such as during the analysis of the legislative framework, or based on previous elections or
recent developments.
•
Assess Process for Attaining Citizenship and Implications for Voter Registration
During NAM meetings, it is important to ascertain whether any national minorities have faced
impediments in trying to register to vote. This may be due to problems in attaining
citizenship, in which case the NAM should look into the issue of citizenship with the
appropriate body.
Table 2 below lists some of the questions that may be raised:
Table 2
•
•
•
•
•
•
•
Is a permanent residence or address a requirement for registration?
Did a particular national minority face problems registering as voters?
Are these problems legislative, administrative, or political?
Are the authorities making a good faith effort to rectify the shortcomings?
What will be the political ramifications of the gaps in the registration process?
Will it affect the level of representation for the national minority?
Can a citizen without identity documentation register to vote?
204
Assess to what extent there may be restrictions on the possibility for minority representation
due to provisions in the process for nominating candidates, forming parties etc.
Such restrictions may include:
•
Limitations on forming parties with a communal identity
Language requirement for nominated candidates
Assess Media Regulations
The NAM should ascertain whether there are restrictions for national minorities to gain access
to the media.
Restrictions could include:
-
IV.
•
A lack of media coverage in outlying areas populated by the national minority
No broadcasting in language of national minority
A lack of access for candidates / parties from national minorities
Unequal coverage for candidate / parties from national minorities
Role of Election Observation Mission Core Team
Prepare Overview of National Minorities in Country
One of the first tasks of an EOM should be to supplement an overview of the national
minorities in the country. This overview could include:
-
•
Identification of areas in which national minorities are present
Identification of main issues raised by NAM / law review / other reports
Identification of main parties / candidates / groups representing national minorities
Incorporation of national minority areas into LTO deployment plan
Briefing for LTOs deployed to these areas (see LTO below)
Meet Representatives of Political and Civil Society on an On-Going Basis
The EOM should continue to meet with representatives of government, parties, civil society
and national minority groups throughout the mission, seeking to follow-up on issues and
concerns.
•
Follow Registration of Voters and Compilation of Voter Lists
Using information from LTO meetings and the on-going meetings with local representatives,
follow issues raised in Table 2 above.
•
Civic and Voter Education
Any voter education undertaken should also be in the languages of national minorities.
Election-related information will normally include:
-
Information for prospective candidates
205
-
Pre-election information for voters
Election day information for voters
An EOM can incorporate the following points into its analytical framework for core staff and
LTOs:
Table 3
•
•
•
•
•
•
•
•
•
Does the law obligate the central election commission, or some other body, to
adequately inform voters on all aspects of the electoral process? Was this obligation
met?
Has the national and local media adequately met their responsibility to inform the
public?
Were prospective candidates well enough informed to seek and attain registration?
Were there a high number of invalid ballots, indicating a lack of comprehension
among voters?
Were the invalid ballots concentrated in a particular area or among a particular
societal group?
Were the communication means of the voter and civic education campaign adequate
to reach all parts of the country?
Did minorities in remote areas have access to voter and civic education materials?
Were minority languages utilized for the voter and civic education programmes?
Follow Nomination Procedures for Candidates and Parties
In addition to analysing the extent to which existing legislation might limit or prevent minority
participation (such as with a strict language requirement), an EOM must also follow the actual
implementation of the legislation.
The appropriate core staff and LTOs should monitor the nomination process and investigate
instances of refusal of nomination. Core staff and LTOs should meet regularly with
representatives of minority parties / groups / candidates and in cases where nomination has
been refused should gather copies of all relevant documentation. Meetings should then be
held with the relevant election commission / ministry for clarification of the issue.
•
Monitor Media
Consideration of the fair participation for national minorities should be part of the standard
ODIHR media monitoring methodology.
Key concerns are:
-
Do minority parties / candidates have reasonable and fair access to media
Is media available in the language(s) of national minorities
Do minorities in outlying areas have sufficient access to media?
206
•
Observe Campaign
As part of the regular observation of the election campaign, the EOM should incorporate
consideration of national minorities into the methodology.
Important questions, which parallel the basic campaign methodology, include:
-
•
Was there freedom of movement and assembly in minority areas? Or, were voters
prevented from attending meetings or were parties and candidates prevented from moving
around their electoral districts and organizing meetings?
Are national minority associations and parties allowed to use public facilities during the
campaign?
Can national minorities print and display campaign posters publicly?
Can they print these posters and campaign in the minority language?
Was there any anti-minority campaigning or intimidation by other groups or the
authorities, possibly attempting to incite hatred.
Assess Impact of Electoral System and Constituencies on National Minorities
Through meetings with national minority representatives and by analysing the election results,
an EOM should be able to ascertain whether the election system and drawing of election
constituencies has had an impact on minority representation.
Important factors to consider are:
-
Have minorities secured representation? If yes, to what extent is it comparable to their
proportion of the population?
Are the constituencies containing minorities drawn in a way that serves to minimize or exclude
minority representation?
Are constituencies drawn across natural demographic borders, in that a national minority
population is divided and therefore subsumed by the majority population in constituencies?
Based on the number of registered persons per constituency, are national minorities underrepresented by having larger numbers of voters in their constituencies than in others?
Is any consideration given to nomadic citizens?
V.
•
Role of Long-Term Observers (LTOs)
Framework Established by Core Team
The EOM Core Team should include national minority issues and questions as part of the
analytical framework for LTOs.
This will include:
-
Incorporating above questions and issues into LTO briefing materials, including:
list of relevant persons / organizations for LTOs to meet, such as election commissions,
political parties / candidates, national minority representatives, civil society groups,
media
list of relevant questions to be asked, regarding opinions on election law and system,
candidate nomination, voter registration, election campaign etc.
207
-
•
The deployment of LTOs should take into account areas with a concentration of national
minorities and such LTO team should be specially briefed.
LTOs to Fully Brief STOs
LTOs with responsibility for areas with a concentration of national minorities should ensure
STO teams deployed to the area are fully briefed on the particularities of the area.
Written materials from LTOs should clearly explain to STOs the demographic composition of
the area and identify main issues and concerns.
LTOs should ensure that STOs properly cover polling stations serving national minority
communities. The issues to be considered are outlined below.
VI.
Role of Short-Term Observers (STOs)
Where appropriate, STO Report Forms should include special sections on national minority
questions and STO briefings should cover the same questions.
•
Level of Participation and Understanding of Process
STO Report Forms may well ask questions regarding the level of participation and voters’
understanding of the process.
STOs in areas with a national minority should be encouraged to report specifically on these
issues, as they are highly pertinent to the assessment of minority participation and the extent to
which the issues of voter registration and voter education have been addressed by the
authorities.
•
Evidence of Intimidation or Restrictions on Movement
As above, all STOs will be asked about instances of intimidation of voters or restrictions on
movement.
STOs should be asked whether there were for example, road blocks or large number of police /
security forces / party activists either preventing voters from participating or intimidating them
into voting for a particular party / candidate.
•
Accuracy of Voter Registers
STOs should be asked to observe closely the processing of voters in national minority areas
and check for instances of voters not on the register.
If the incidence of names missing is high, STOs should ask election commissions (including at
the district level) and voters for a possible explanation.
208
Provision of Polling Stations and Composition of Election Commissions
STOs should report on the convenience of polling stations for national minorities. For
example, were polling stations situated in a location which made it impossible to vote without
undue hindrance and without having to travel excessive distances.
STOs should also have a sense of the composition of election commissions, and to what extent
they reflected the local community.
VII. Reporting on National Minority Issues
•
NAM Report
The NAM report should include a specific section on national minorities if there are serious
concerns that require highlighting. This is important as it raises issues that can then be
incorporated into the EOM analytical framework, including the deployment of observers to the
areas at issue.
•
Internal Mission Reports: Weekly Report / LTO Reports / STO Reports
As outlined above, LTOs will report on issues of concern for national minorities. Main issues
can also be raised in the EOM weekly reports to the ODIHR Election Section.
STOs can report both through the regular report forms and during the LTO de-briefing, which
will focus on region-specific information.
•
Press Statement and Preliminary Findings and Conclusions
If there are any important concerns during the EOM, these can be included in the post-election
press statement and preliminary findings and conclusions.
•
Final Report / Annex
Issues and concerns regarding national minorities should also be raised in the ODIHR final
report on a given election. If there are significant issues regarding national minorities then a
more lengthy annex to the final report can be considered. This will allow more scope for a
discussion of the issues.
•
Special Minorities Report
See below.
VIII. Recommendations for Future EOMs
•
National Minority Focal Point
An expert in the EOM, probably the Political Analyst, should be the national minorities Focal
Point.
209
The Focal Point can work with the Head of Mission to set the analytical framework for LTOs
and to produce written reports. The Focal Point will also be responsible for collating all LTO
reports on national minority issues.
A local national minority specialist should be included into the EOM to work under the
supervision of political analyst or the Focal Point.
STOs and LTOs in areas where there is a large concentration of national minorities should be
provided interpreters in both minority and majority languages.
210
Annex 1
National Minority Issues and Observation Techniques
Recommendation
Issue
Observation Technique
Responsibility
Right of persons belonging to
national minorities to take part in
the conduct of public affairs,
including through the right to vote
and stand for office without
discrimination
Legislative Framework
Assessment of Constitution, Electoral Law and
other relevant legislation to assess whether they
adequately provide for basic human rights for
national minorities
Pre-NAM Assessment
/ NAM / EOM
Meeting with representatives of national
minorities, political parties and governmental
representatives to identify the key issues for
national minorities in the country
NAM / EOM / LTO
Check with national minority groups and relevant
officials whether there are problems for the
national minority relating to the securing of
citizenship and/or voter registration
NAM / EOM / LTO
Check voter registration figures for relevant
constituencies and observe the administrative
process for amending / updating voter lists
LTO
Voter and Civic
Education
Check if voter and civic education are targeted
to meet the needs of the national minority, both
in the language used and the communication
mode
EOM / LTO
Nomination of
Candidates and Political
Parties
Check whether there are any stipulations relating
to the nomination of parties and candidates, such
as language provisions, which might serve to
prevent participation of representatives from
national minorities
NAM / EOM
Campaign Rights and
Media Access
Check if candidates / parties from minorities are
free to campaign in the language of their choice,
at rallies, printed materials and media broadcasts
EOM / LTO
Voter Registration and
Citizenship
Check if minority candidates / parties are free to
organise and hold rallies and political meetings
without intimidation or undue interference
211
Recommendation
Issue
Observation Technique
Responsibility
There should be freedom to
establish political parties based on
communal identities as well as
those not exclusively identified
with the interest of a specific
community
Establishment of
Political Parties
Are there any legislative or administrative
impediments to the formation of political parties
based on communal identity?
NAM / EOM
EOMs should follow the nomination process to
check whether the spirit and letter of the
legislative been followed in practice
EOM / LTO
Funding of Political
Parties
Assess whether the mechanism for providing
financial support to parties / candidates is fair
and if it is implemented properly
NAM / EOM
The choice of electoral
system
There should be a full analysis of the electoral
system, and the implications of it for any national
minority
EOM
A final analysis on the fairness of the system,
with regards to national minorities, should take
full account of the national political culture,
recent political history, the implications of other
systems for the country’s political and
democratic development, and the regional
context
EOM
Delineation of election
constituencies
Assess whether the drawing of the electoral
boundaries has been designed to deliberately
exclude or under-represent a national minority.
Such an assessment should consider the
settlement patterns of the minority in question,
and the extent to which they could have been
accommodated
EOM / LTO
Size of election
constituencies
Based on registration figures per constituency, an
assessment should be made as the number of
voters per constituency, to ascertain whether the
size of the constituency is in line with the overall
national trend and in line with electoral
legislation
EOM / LTO
The electoral system should
facilitate minority representation
and influence
Geographic boundaries of
electoral districts should facilitate
the representation of national
minorities
212
provided interpreters in both minority and majority languages.
213
214

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