International Conference KNOWLEDGE-BASED ORGANIZATION Vol. XXI No 2 2015

TYPOLOGY OF REGULATIONS RELATED TO MINORITIES IN THE NATIONAL LEGISLATIONS OF CERTAIN STATES Claudia ANDRIŢOI

“Eftimie Murgu” University, Reşiţa, Romania [email protected]

Abstract: The international regulations in the filed of minorities settle not only an international standard, but also a set of norms generally accepted by the states in this respect. Like in other domains of human rights, these norms represent a minimum of regulations beyond which one or several states, depending on their concrete situation and the international commitment they assume in the regional or bilateral plane, may apply more comprehensive norms and concepts. Such an approach corresponds also to the distinct situations of diverse minorities in the word: numerous or less numerous, compact or dispersed from the demographic point of view; some have been taken centuries to congregate, others have been formed recently, as a result of migration, whereas others have originated from native populations; some minorities are constituted according to ethnic criteria, others according to linguistic, cultural or religious criteria, and these elements are rarely encountered together.

Keywords: minorities, national identity, discrimination, international regulations, assumed obligations, protection, guarantee

1. Introduction statement is given by the commitment The effort of integration into the great subscribed within the Conference of family of European democracy includes the Security and Cooperation in Europe - C. S. necessity to solve first the tensions C. E. The final act of al C. S. C. E. signed originated in the matter of national at Helsinki in 1975 provided a general minorities. The individualised treatment of stipulation, according to which „the each group, but especially the construction participant states on whose territory of the national and international frame national minorities live shall observe the meant to ensure the defence of human rights of the these minorities’ members to rights may be solved in this bold equality before the law, shall grant them endeavour. The obligations in relation with full opportunities to actually exercise their the minorities assumed by states in treaties human rights and fundamental liberties and represent only a premise for the setting of for this purpose they shall protect their an appropriate status of the persons who legitimate interests in this respect ". The differ from the majority population by provision was transferred in similar terms ethnic origin, language or religion. The to the documents adopted at the general states preserve a wide liberty of European reunions of Madrid (1980 -1983) appreciations as regards the legislative or and Vienne (1986-1989). administrative means by which their The guarantee and promotion of the rights assumed obligations are to be executed. granted to national minorities have The international consecration of this constituted the object of numerous

DOI: 10.1515/kbo-2015-0065 © 2015. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

386 normative acts, for completing and rights and fundamental liberties. "[1]. detailing the commitments assumed by the Furthermore, point 33 of the document ratification of international documents, such institutes the obligation of participant states as the Frame Convention for the National to protect the ethnic, cultural, linguistic and Minorities’ Protection of the Council of religious identity of national minorities on Europe of 1995 (Romania being one of the their territory and to create conditions first states to sign this Convention) or the meant to promote such identity. They shall 1992 Chart of Regional or Minority take the necessary measures in this respect Languages (ratified by Romania in 2007). after adequate consultations and especially Thus, step by step, one has built a complex after having contacted the organisations or well-articulated and stable system for associations of these minorities, according national minorities’ protection. This to the decision-making procedure in each system, compatible with the high state and with the observance of the international standards in the matter, has principles of equality and non- been built with the direct involvement of discrimination compared to the other minorities and is perfective in time by citizens of the respective participant state. adequate public policies. The Copenhagen document condemns any 2. The issues of national minorities in the type of discrimination and any persecution rule of law for religious and ideological reasons, and A more enhanced approach was realised by underlines the fact that the participant states the document adopted at the Copenhagen will take effective measures in order to Reunion of the Conference for the Human combat such phenomena, including by the Dimension of the Conference for Security adoption, according to their constitutional and Cooperation in Europe, which system and international obligations correlated the problems of human rights’ assumed, laws necessary for the ensuring of observance with the realisation of pluralist the protection against any act that could democracy and the rule of law. The constitute an incitation to violence based on document comprises important precisions national, racial, ethnic or religious in relation with requirements such as discrimination. organising free elections, installing The participant states pledge themselves to representative governance, concordance acknowledge the rights of any person to between states’ laws and their obligations effective recourse, and will endeavour to regulated by international law. As a new recognise, according the national element, we see intervening also the right of legislation, the rights of the interested persons to associate and create persons or groups of persons to file organisations meant to watch over the complaints against the acts of respect of human rights, bodies that should discrimination and to support such be granted the possibility of establishing complaints. Finally, the state shall take into contacts with similar organisations and account the possibility to join international international organisms. The persons instruments related to discrimination and belonging to the national minorities have shall guarantee they fully comply with the the right to fully and effectively exercise obligations contained in these instruments, their human rights and fundamental including those stipulating the presentation liberties, without discrimination and in full of periodical reports and will examine the equality before the law. The participant possibility of adapting the international states shall adopt, if need be, special mechanisms allowing the particular states measures aiming at guaranteeing, for the and private persons to send persons belonging to national minorities, communications to international organisms full equality with the other citizens in regarding the acts of discrimination. exercising and benefiting from the human The C. S. C. E. Experts’ Reunion, specially

387 summoned to deal with the issues of When we examine the significance of minorities, adopted a report reaffirming that international law as regards the minorities’ the human rights and fundamental liberties status, we remark that international law constitute the foundation of the protection settles most of the times the rights related to and promotion of the rights of persons a minimum protection standard. A series of belonging to minority groups. The report fundamental aspects related to the regime of consecrates one more the rights mentioned minorities and the role within the state of in the Copenhagen document and insists on different communities constituted by ethnic, the action modalities for their language or religion criteria, as well as the implementation: the participation of the modality of ensuring the political persons belonging to minorities to public representation of these communities, life and consultations, special measures for involves the estimation of a complex of these persons, on non-discriminatory bases factors the states are in no circumstance in relation with other citizens and with the willing to leave to the appreciation of consideration of the history and territorial others. Granting or failing to grant local, particulars related to minorities. It includes territorial or personal autonomy, identifying more detailed provisions in relation with the groups of persons different by ethnic, the contacts of persons from minorities and religious or linguistic aspects as minorities, their access to information. Moreover, it nationalities or constituting nations of the reiterates recommendations regarding the state, establishing higher education condemnation of acts of hate, anti- institutions in the minorities' language are Semitism, xenophobia, discrimination, and acts that are part of the appreciation area the states’ obligation to struggle for the circumscribed to national sovereignty. [2]. promotion of tolerance, understanding, As long as the norms of international law equal opportunities and good relations remain limited to the imposition of among persons of different origin. minimum standards for minorities’ The activity of international human rights protection, the domestic legislation is organisms are necessarily correlated with expected to offer concrete solutions meant the domestic action of governmental or to ensure the political integration of the non-governmental organisations and their persons belonging to minorities and contacts with the national institutions guarantees them the preservation, interested in the matter, according to the manifestation and development of their available information. According to our ethnic, linguistic or religious identity. data, at present there are in the world 3. The approach of national minorities' national institutions for the promotion and rights in protection of human rights in more than 30 According to its political traditions states. The geographic distribution of these instituted during the 1789-1792 Revolution, institutions is relatively proportional, they France has long denied the existence of are present in Europe, as well as in Africa national minorities on its own territory. or on the American continent. As for the This attitude was manifested in the most main types, we may list the French system, obvious manner on the occasion of the encountered on the territory of the former ratification of the International Pact related French colonies in Africa (Togo, Morocco, to the civil and political rights, when France Tunisia etc.), the British model found in the formulated a reserve related to art. 27, Commonwealth countries too, and the claiming that there are no minorities on its American type (including in Canada, the territory, only linguistic particularities. Art. Philippines etc.). These institutions can be 2 of the 1958 French Constitution stipulated categorised into human rights commissions, the indivisibility of the French Republic Ombudsman and specialised national and implicitly the existence of a institutions. homogenous national, of the idea of nation-

388 state. According to the data corresponding World War, most of the Corsican to the ‘80s, France had seven minority population exhibited anti-Italian feelings populations, without taking into account the [6]. The problems of the Basques and persons who effectively speak a regional Catalonians are raised in France in a less language; consequently around 5 million severe manner than in , where this persons, a tenth of the population, was minority fights against the state and the concerned with issues specific to Castilian predominance. In the political minorities. According to recent data, the plane, we must remark that the E.T.A. situation appears largely changed, in the terrorism, violently manifested in the sense that along with the French ethnic Basque Country, province belonging to group another 7 ethnic groups and 11 Spain, does not have an equivalent in the minorities are mentioned, representing small French Basque region. around 40% of the country’s total An extremely interesting situation is population [7]. represented by Alsace; it had been part of The Occitan area represents the most the German world more than a thousand important and complex Latin-origin entity. years and represented a dispute matter Comprising a third of the territory and a between France and Germany during the fourth of the population, French-Prussian war of 1870-1871 and the represents the largest nation state in Europe two world wars. After 1871, spread in the south of France, and several Germanophone Alsace and Lorrain became valleys in and Spain. The global territories of the German Empire, and the population of this territory is of 10.5 Law of June 9th 1871 established "for ever” million inhabitants, of whom more that a the common property of the 25 federal half can speak one of the Occitan idioms. states. 50,000 Alsatians and Lorrainers The use of these idioms recorded a emigrated then to France and Algeria. The withdrawal in the post-war period and the autonomist tendency has rapidly developed majority of this population ignore their own and the constitutional law of 31 May 1911 identity. In the opinion of Jacques Ressaire, turned Alsace and Lorraine into a federal the good progress of the French state's state with 3 parliament members in the decolonisation depends on the future of Bundestag. An Assembly of two Chambers Occitan , as the French state was constituted in Strasbourg. Toward the should be turned into a federation, end of the First World War, on November according to its regional structures. The 9th 1918 they proclaimed the independence Occitan originality is well marked from the of the Neutral Republic of Strasbourg. This point of view of ethnic, ethnic- precipitated the entry of France troops into psychological, political and cultural origin, Alsace, however the French assimilation not to mention the demographic, economic policies provoked extremely powerful and social perspective. The absence of autonomist claims. With a dramatic national unity, the permeability of natural history, Alsace inherited a particular mental frontiers in the east and south, the mentality situation. According to Emile Baas, "to of the population could be the factors assume Alsace was a fatality much too necessary for the justification of an heavy to bear". The need for security and effective decentralisation , in other words of inner peace provoked the Alsatians’ rupture internal federalism [3]. with the past, in order to get totally The Corsica Island is situated at the frontier integrated into the French and the of two indigenous languages, one in the francophone universe ". In the opinion of north, of Italian type (Cismontane- the quoted authors, what is frapping for Cismuntanu), and another in the south, of Alsatians is this permanent will of the the Sardinian type (Ultramuntanu). Despite inhabitants to affirm themselves as more the fascist temptations during the Second French than the French of Ile de France.

389 Despite the complexity of the sociological perspective, especially by today’s and psychological complexity of Alsace, in immigrants[4]. time Alsatians started again to discover In France, the immigration issue is still their origins, first by establishing certain debated in terms of „integration”, a phase centres meant to defend the Alsatian that should be understood more than a mere language and culture, and then, later on, in euphemism of the former „assimilation” the political plane, by the apparition of notion (although the social dimension is three autonomist parties. The pressures to stressed more than the cultural one). In fact, intimidate the revival of Alsatian autonomy French culture, although undergoing a took not long to appear, but the Alsatian process of transformation as a result of the autonomists inscribed their actions within processes of globalisation, European the context of Rhenanian and European integration and adoption of foreign perspective, turning autonomy into the first traditions, especially by the French youth. stage of „Europe of the hundred flags "[5]. 4. Conclusions France has encouraged jus loci as regards The life of any national minority, its citizenship, in contrast with the emigration identity and welfare cannot be the fruit of a countries, which consecrate the privilege of particular commitment, because, no matter jus sanguinis, in order to allow the citizens’ how well- protected minorities may be from children to preserve their parents’ the legislative perspective, and no matter citizenship. Although the immigrants how high the autonomy granted to it could originating from some of the former French be, it cannot be efficient as long as it would colonies spoke the language as means of present an insular character. It is only in a international circulation, the assimilations state which, in its entirety, ensures all its project has failed because of the huge citizens the certainty of the irreversibility of cultural gap between the French culture and a democratic system and economic that of immigrants, before the well-shaped prosperity that the protection of the ethnicity „of their large number and the individual rights could be fully achieved, organization and family groups and ethnic irrespective of the individuals’ ethnic communities preserving their own cultural origin. identity and the relations with the origin The protection of cultural identity and country. At the same time, the representation of the interests of ethnic assimilationist project started to look less communities members are fundamental and less legitimate, and the old idea obligations of any democratic state, and according to which France has a civilising what’s more, they represent national mission started to fade. Concomitantly, the interests. However, the attempts of cultural respect for cultural differences increased isolation or ethnic purification are along with the awareness of the fact that it beneficial neither for the community nor for is necessary to renounce to the own cultural the state, and each state taken separately has identity in order to finally obtain the French the duty to act in order to make society citizenship, „exchange” seen as more and attractive for all its citizens, either members more difficult to accept, from the moral of the minority groups or majority citizens.

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390 [4] Duculescu, Victor, Călinoiu, Constanţa, Duculescu, Georgeta, Compared constitutional law (in Romanian), Bucharest, Ed. Lumina Lex, 1996. [5] Henri Giordan, Les minorities en Europe. Droits linguistiques et Droits de l 'Homme, Paris, Editions Kime, 1992. [6] Năstase, Adrian, Conflict of minorities–historic, cultural, political or economic causes (in Romanian) , in: "Pro Democraţia", vol. 1, no. 1, October 1994 [7] Zlătescu, Victor Dan, Moroianu, Zlătescu Irina, Human Rights in Action (in Romanian), Romanian Institute for Human Rights, Bucharest, 1994.

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