Introduction
In the 25 years of existence of the institution of the High Commissioner on National Minorities (HCNM), participating states’ approaches to addressing the ethnocultural diversity existing in the Organization for Security and Co-operation in Europe (OSCE) area have been much discussed and explored. Such discussions have been geared toward the adoption of measures that would promote equal opportunities to participate in public life in a way that reduces tension and ultimately the risk that ethnic conflict might erupt in the future. This specific angle of the HCNM’s work is naturally embedded in the 1992 conflict prevention mandate of the institution. The content of this mandate remains unique: “the High Commissioner provides ‘early warning’ and, as appropriate, ‘early action’ at the earliest possible stage in regard to tensions involving national minority issues that have the potential to develop into a conflict within the CSCE area, affecting peace, stability, or relations between participating states” (CSCE 1992, paragraph 23). It is a highly intrusive mandate given to the post holder, “an eminent international personality” according to the text of the said mandate: ultimately, the decision to engage in complex and sensitive interethnic situations is based on the political judgment of the High Commissioner. It may also be worth recalling that this mandate was borne out of a historical necessity—the Yugoslav wars—and a then prevailing consensus among OSCE states that the promotion of human rights, including minority rights, is a precondition for sustainable peace and security.
Over the years, the work of the HCNM has focused mainly on assisting states undergoing democratic transition to address the challenge of diversity in a way that fully respects and protects differences in culture and identity. The OSCE HCNM acts as a normative intermediary in finding political solutions to strained majority-minority relations that would be respectful of minority rights, standards, and the territorial integrity of the states. Undoubtedly, issues of nonterritorial cultural autonomy (NTCA) have been part of the discussions on the modalities for the implementation of minority rights, namely the right to effective participation of national minorities in public affairs. To a certain extent, arrangements grouped under the category of NTCA have allowed discussions on stepping up participation of national minorities in public life in a way that is not threatening to states’ territorial integrity. This is of particular importance for states, especially those in Central and Southeastern Europe, where, because of historical and political sensitivities, the mere use of the term “autonomy” has become a sort of red line, reflecting their persistent suspicion that demands for autonomy are in fact a first step toward secession and hence a challenge to the unitary character of the state.
Some of the possible options available to increase inclusiveness of national minorities in decision-making are detailed in the Lund Recommendations on the Effective Participation of National Minorities (OSCE HCNM 1999). These recommendations encompass arrangements at all levels of government—central, regional, and local—and refer to electoral and nonelectoral models such as advisory and consultative bodies. They also elaborate on models of territorial and nonterritorial arrangements, highlighting the role of the latter in regulating “education, culture, use of minority language, religion, and other matters crucial to the identity and way of life of national minorities” (OSCE HCNM 1999, 11).
After the Lund recommendations were issued, a notable number of instruments for minority nonterritorial self-governments were put in place. These include, in particular, the system of minority self-governments, as first established in Hungary in 1993 and since revised, and the various forms of national minority councils that have been developed in most of the Western Balkan states as part of their democratization process and rapprochement with the European Union (EU).
This article discusses the OSCE HCNM practical experience with regard to situations where cultural autonomy arrangements exist. It highlights some concrete aspects of their functioning and the implications for national minorities and society as a whole. To this end, the article provides an overview of the main points of discussion with regard to two sets of issues. The first relates to the legal and political framework of institutions of cultural autonomy; the second discusses the respect of good governance principles by these institutions and examines their potential contribution to managing ethnic diversity.
Defining Cultural Autonomy in the Legal System: A Legal or Political Affair?
In some states of the OSCE area, legal provisions have been adopted to delegate to national minority organizations substantial competences in the area of minority culture, language, and education or media. However, questions have arisen regarding the extent to which these provisions have been integrated into the overall legal framework, especially as provisions have sometimes been ill-defined and have left room for ambiguity. Experience has shown that in some instances tensions may exist regarding the competencies granted to bodies of national minority autonomy, as these may contradict other legal, including constitutional, provisions. The failure to resolve possible conflicting norms and ensure legal consistency and predictability may ultimately provide grounds for political grievance on the part of national minorities and de facto partly neutralize the capacity of autonomy bodies to exercise their functions.
It is therefore important that the constitutional and legislative provisions clearly specify the nature and scope of the autonomy system and the competencies of the autonomous bodies. The highest level of legal protection for NTCA, namely the constitutional level, would of course be welcome in so far as it provides firm legal entrenchment for such bodies. At the same time, a certain level of flexibility in devising the way these bodies operate should be envisaged so that they are not locked into a set of rules that would deny them the ability to respond to the evolving needs of the communities concerned.
The OSCE HCNM was requested by the states concerned to review NTCA-related legislation: in some instances, the OSCE HCNM drew attention to the excessive complexity of the national legal framework regulating national minority protection, including NTCA, with minority rights provisions scattered throughout other pieces of legislation, resulting in an excessively complex and occasionally contradictory set of norms. The OSCE HCNM and other international bodies, such as the Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities, have called for a simplification in the codification of rights of persons belonging to national minorities. Making the legal framework clearer also helps make it accessible to citizens and, first and foremost, to persons belonging to national minorities. Meetings with persons belonging to national minorities and other civil actors, at least in some of the countries of Southeastern Europe, have shed light on the overall lack of awareness, different interpretations, and misunderstandings that may exist in complex minority rights provisions. This complexity has sometimes resulted in these norms being accessible to and discussed among only a limited number of experts.
Lack of legal consistency and clarity may open up room for diverging interpretations, with relevant actors standing their ground in the hope of arriving at a negotiated solution. Such an ad hoc approach favors the quest for political solutions—some would say in certain contexts, the brokering of political deals—rather than legal solutions. This can result in a shift of emphasis from norms toward particular interests (often those of more politically vocal communities), something that may be problematic in terms of adherence to fundamental principles of the rule of law. In the long term, the sustainability and legitimacy of these specific mechanisms for the participation of national minorities may be called into question.
In their functioning, bodies of cultural autonomy have to develop a multilayered cooperation. There are several challenges to their meaningful integration in decision-making processes. They have to establish in practice their relationship with the government. Depending on the specific national context, that relationship may sometimes be complicated by a perceived subordinate role of these bodies, a tendency toward concentration of power at the central level, or, in some cases, simply a lack of capacity or responsiveness at the central level of authority when it comes to meeting minority bodies’ needs. Being placed in the same situation as their peers, one would expect cooperation between the various autonomies of national minorities in order to address challenges that are common to all of them. In practice, this type of cooperation seems to be underdeveloped: the different situation of each national minority and a lack of incentive to engage in greater cooperation may be factors that come into play here. Communication with minority constituencies and broader outreach to civil society are yet other important areas of cooperation for NTCA bodies. This cooperation is often hindered by a lack of awareness among the wider population, including national minority communities, about the role of these bodies and, conversely, insufficient efforts by these bodies to engage with the general public on minority issues. This leaves the discussion of minority demands limited to electoral periods when they could be activated as part of NTCA’s election process or as part of general election campaigns should there be scope for minority-related negotiations on a political platform with mainstream parties.
Financing,Footnote 1 or lack thereof, is reported as a frequent concern by minority self-governments. If self-governance implies a certain measure of control by communities over their affairs, this degree of control may well remain only on paper if a self-government lacks the funds necessary to fulfill the tasks that it has been assigned.
The question of financing raises issues related both to volume and to process. While often the amount of funds is considered insufficient to meet the needs, the process for obtaining funds may also be so cumbersome as to partly hamper the effective functioning of cultural autonomy. For example, excessive financial reporting requirements or a lack of synchronization between the disbursement of funds and, say, the start of the school year have been a source of dissatisfaction voiced by some NTCA bodies. Admittedly, there may be a legitimate requirement to establish such procedures to account for the use of public funds. In practice, however, requirements may be excessive and may result in a weakened capacity of NTCAs to carry out some of their tasks.
The recurrent lack of adequate funding of NTCA mechanisms ultimately raises the question of whether these bodies are approached in a purely formal way or whether they are seen as genuine tools for ensuring that national minorities have a say in decisions affecting the development and maintenance of their identity and culture. Such a question has been particularly salient in the countries of Southeastern Europe, all of which aspire to join the EU. These aspirations have translated into the adoption and implementation of policies likely to satisfy the criteria for EU accession. In this context, the establishment of national minority councils in most of those states may also symbolically signal efforts to include national minorities in decision-making and may help satisfy the external scrutiny of the EU on the countries’ compliance with the “respect for and protection of minorities” requirement included in the Copenhagen criteria (European Commission 2016). This is all the more so, given that these councils have been the object of much attention by the EU and other international actors present in the region, which has in some instances translated into capacity-building programs for these councils being developed by the OSCE and others.
In some cases, one may legitimately raise the question of whether establishing such concrete mechanisms responds to a pressing social need other than the need to ensure a certain level of formal equality between all minorities. In some cases, especially in Southeastern Europe, the institutionalization of ethnicity has led to the multiplication of mechanisms meant to preserve group-based cultural identity. This has often resulted in institutions that are unsure about their role and are granted rather symbolic means to operate. In practice, these mechanisms appear to receive more attention, and sometimes support, from the international community than do the state authorities.
Nonterritorial Cultural Autonomy, Good Governance, and the Integration of Society
“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” (OSCE HCNM 1999, 20).
Inclusive and transparent decision-making should also apply to national cultural autonomy arrangements if one wants to maintain a degree of confidence in these. In practice, the degree of compliance of NTCA with democratic principles should not be analyzed in isolation but placed in the overall political context in which these institutions are functioning. In some instances, institutions of cultural autonomy are said to have been captured by some minority political parties and have become their instrument in the pursuit of these parties’ political agenda. How should such trends be addressed? Some have suggested introducing rules on the composition of the NTCA that would embrace power-sharing in its leadership or rules prohibiting holders of high political office from simultaneously exercising a leadership function within an NTCA.
As is the case with any other form of representation, ensuring political pluralism within minority representation through NTCA is a real concern. This challenge is most likely to arise in cases where there is some level of co-optation between certain minority elites (or parties) and the ruling government or if minorities themselves are either unaware of, uninterested in, or not given a chance to voice their concerns regarding the quality of representation in those bodies.
As we look at the equation between autonomy, minority rights, and integrating ethnic and cultural diversity in governance, it is perhaps the last element that has dominated the OSCE HCNM’s agenda during the last decade. In particular, specific vigilance has been exercised regarding the risk of self-isolation resulting, notably, from the excessive institutionalization of minority rights.
Such concerns are reflected in the Ljubljana Guidelines on Integration of Diverse Societies (OSCE HCNM 2012), an attempt to summarize the lessons learned in discussing and influencing the political choices made in accommodating minority cultures and competing interests. These recommendations insist that NTCA must adopt an inclusive approach in addressing issues of cultural autonomies and avoid a situation whereby national minorities controlling their own affairs translates into one political segment of the minority community dominating or excluding others. The latter stipulation is especially important, for without it, NTCA becomes little more than a replica of the majority rule that minorities so often criticize at the level of the state as whole.
This is perhaps the overall trend in the approach of the OSCE HCNM as reflected in the Ljubljana guidelines: that effective participation can be increased through instruments such as territorial or nonterritorial devolution or power-sharing arrangements is of course not disputed. And of course the arrangements to be decided upon will vary according to national circumstances. What is novel is the advocacy of a more inclusive or a more integrated approach to autonomy. As already mentioned, the Lund recommendations reflect the need for institutions of self-governance to abide by democratic principles to secure everyone’s enjoyment of their rights. The Ljubljana guidelines articulate this point further: “Regardless of form, institutions of self-governance must be based on democratic principles and processes to ensure that they can legitimately claim to reflect the views of all the communities settled in the concerned territory and that they fully respect the human rights of all persons, including of minorities, within their jurisdictions. In this context, power-sharing arrangements, where in place, should not be constructed in a manner that excludes any communities from representation” (OSCE HCNM 2012, 47).
This is perhaps the main challenge of national minority participation in decision-making today: how to achieve a more inclusive approach to autonomy that is not locked into the traditional concepts inherited from the nation-state. In other words, how can one ensure that autonomy arrangements do not assume that a national minority community is a self-evident social category but rather acknowledge diversity within the community and pay attention to the needs of that community rather than to its status as such? This is where a strong correlation exists between the evolution of international minority rights law and autonomy discourse, both of which advocate a shift from defining groups in order to concentrate on needs.
Conclusions
NTCA—and generally the issue of national minorities’ participation in public affairs—is perhaps the area where the lessons of the HCNM shed the greatest light on the interconnection between human rights and politics. There are two reasons for this: Firstly, the functioning of NTCA highlights the central issue of good governance for addressing the needs of national minorities. Secondly, NTCA is an area in which the HCNM is naturally well equipped to engage, by virtue of its political mandate, in order to realize the potential of cultural autonomy as a model of good governance that addresses not only national minorities in isolation but also their relations with others.
Good governance of NTCA presupposes respect for the freedom for individuals to define themselves and to ensure national minorities do not become locked into a single collective and monolithic identity. This requires the emergence of a political and social context that allows individuals to make an unhindered choice regarding their identity and to exercise that choice, including within the minority group.
Disclosure.
Stéphanie Marsal is a human and minority rights consultant who worked as a senior political advisor to the OSCE HCNM from 2010 to 2017. This article is based on the confidential dialogue between successive high commissioners and governmental and nongovernmental interlocutors in the OSCE area and aims at respecting the confidential nature of this dialogue. The views expressed in this article belong solely to the author.
