The Advisory Committee of the Framework Convention for the Protection of National Minorities and Equality Promotion Malte Brosig This article examines the promotion of standards for equal treatment by the Council of Europe’s (COE) Advisory Committee (AC) to the Framework Convention for the Protection of National Minorities (FCNM). It aims to explore the distinct character of the AC’s method of norm promotion on the basis of notoriously vague minority rights standards. The article focuses on the practice of implementing FCNM norms by analyzing the AC’s country-specific recommendations through which the AC seeks to enhance the wording of the Convention’s text. It is argued that the special quality of the AC’s norm promotion method lies not only in the interpretation of the FCNM articles in the context of particular countries but in the systematic and pervasive recognition of context-dependent variables of minority living conditions, thus enhancing the text of the FCNM. Introduction At the centre of this chapter’s analysis is Article 4 of the FCNM, which prohibits racial discrimination and allows measures of affirmative action and “effective equality”. This paper examines the substance of how the AC understands “effective equality”. While Article 4 provides a clear obligation for the promotion of equalizing integration programmes, this paper explores which concrete instruments for integration the AC endorses in its monitoring reports and which actors are envisioned for the implementation of integration measures. These questions are of pivotal importance for the European minority rights regime since the most severe violations against minority rights are racial discrimination and the persistence of social and economic marginalization resulting from it. Minority rights protection and minority integration are intrinsically linked to each other. As Rainer Hofmann, a former President of the AC, has pointed out: “The ultimate goal of minority rights protection consists of achieving the full integration of persons belonging to minorities into the society of the States in which they live, while at the same time, guaranteeing the preservation and promotion of their distinct identity” (Hofmann, 2006b, p. 13). 108 The AC and Equality Promotion ___________________________________________________________ Thus integration policies are directly contributing to the realization of minority rights and are a prerequisite for full compliance with minority rights standards. The article is structured in three main sections. The first section discusses the legal quality of the FCNM. The vague and open wording of the FCNM poses a particular challenge for the implementation of minority rights norms including standards for minority integration and nondiscrimination. This leaves considerable leeway for the AC to give meaning to FCNM standards. In the second section, this paper analyzes the AC’s country opinions on Article 4 clarifying the meaning of “effective equality” in everyday practice. The final section concludes with a short analysis of the AC’s concept of integration and its specific character of norm promotion. 1. The Legal Quality of Minority Rights Norms The FCNM entered into force in February 1998. It is the first and only legally binding human rights convention on minority rights. Its norms are legally binding for all contracting parties but, with the exception of Article 3, these norms are only “programme-type” provisions which are not directly applicable (Explanatory Report to the FCNM, para. 11). Consequently states are under a legal obligation to follow the principles and provisions of the FCNM through the application of domestic legislation and the implementation of policy programmes. In this process states enjoy a high degree of discretion because FCNM norms cannot be applied directly and their substance is not necessarily to be found in the Convention itself. The FCNM does not provide its contracting parties with readymade solutions for the settling of minority issues or unique instruments for setting up minority integration programmes (Steketee, 2001, p. 4). However, it provides states with principles and objectives which include the application of integration measures. The implementation of the FCNM is monitored by an Advisory Committee (AC) comprised of 18 independent experts who are nominated by the contracting state parties of the FCNM. The AC monitors the implementation of FCNM norms on the basis of reports periodically submitted by each of the state parties. An initial report is due within one year after ratifying the FCNM and every fifth year thereafter. The recommendations of the AC need to be approved by the Committee of Ministers (CM), an intergovernmental body of COE member states. The fact that states can block unwelcome recommendations of the AC in the CM has given rise to strong criticism by some scholars (Alfredsson, 2000, pp. Malte Brosig 109 ___________________________________________________________ 291–304; Troebst, 1999, p. 20). However, day-to-day practice has developed a “constructive” and “trusting” relationship between the two bodies, as former members of the AC have noted (Phillips, 2004, p. 118; Hoffmann, 2004, pp. 3–16). Due to the soft wording of the FCNM, leaving a considerable degree of discretion for member states, the most important sources of reference are AC country opinions. The substance of FCNM norms very much lies in the practice of the AC’s recommendations. The reason for the lack of substance and the specific character of the FCNM programme-type provisions is not only to be found in the inability of the COE member states to agree on stricter norms for minority protection. It also reflects on the very different living conditions of national minorities throughout Europe, which makes it difficult to develop single standards for the needs of all minority groups (Steketee, 2001, p. 4). Thus the often criticized soft and vague wording of the FCNM (Pentassuglia, 1999, p. 419) allows for the much needed flexibility of minority rights norms to account for the very diverse realities in which minorities are living. What distinguishes the FCNM from the European fundamental rights regime is the absence of directly litigable human rights norms and the existence of an independent court to which individuals might take their complaints under certain conditions. The AC is not a court nor can it coerce states and oblige them to revise domestic laws. Minorities cannot appeal to the AC nor is the AC a completely independent body. Its opinions still need to be approved by the CM which makes its decisions behind closed doors. The committee then seeks the cooperation of its contracting parties and issues opinions of legal quality. The language of its opinions is moderate and diplomatic. It tries to support and advise states in the process of norm implementation, but the AC does not exert judicial control which would result in clear decisions such as those of a jury or judge (Hofmann, 2006a, p. 6). Instead it partly abandons the judicial arena by commenting on policy developments. Thereby a certain norm is interpreted not only on the basis of legal provisions such as the FCNM but also flexible standards which are promoted on the basis of contextdependent conditions. As the empirical analysis will show, the choice of integration instruments promoted by the AC for accomplishing “effective equality” is highly dependent on the specific living environment of ethnic minorities as well as the capacity of states to carry out equalizing measures and the political history of inter-ethnic relations. The AC relies exclusively on soft mechanisms for norm enforcement. Unlike the case of EU enlargement, external incentives and condi- 110 The AC and Equality Promotion ___________________________________________________________ tionality (Schimmelfennig and Sedelmeier, 2005) do not play a prominent role. Likewise the COE cannot provide extensive funding for minority integration programmes as the EU can afford them (see contribution by Riedel in this volume). In the concert of European organizations, the AC compliance mechanism distinguishes itself from the policy of preventive diplomacy exercised by the OSCE High Commissioner on National Minorities. It can hardly be compared with the jurisprudence of the European Court of Human Rights, since its norms are not litigable and the AC is only a monitoring body and not a court. Thus the role the AC can play in order to bring states into compliance has narrow boundaries. The AC very much relies on its persuasive power and must try to socialize states into compliance. Socialization as a form of non-coercive norm enforcement relies on long-term communication as a vehicle for norm compliance. Deliberation, rhetorical commitment and persuasion are key elements of the socialization mechanism (Risse, 2000; Schimmelfennig, 2001; Checkel, 2002). Its incremental impact on state compliance has been analyzed by Risse, Ropp and Sikkink at length in their seminal volume, The Power of Human Rights International Norms and Domestic Change (1999). The AC uses socialization through its standard monitoring procedure within the framework of the FCNM. Pursuant to Article 25 the contracting parties to the FCNM have to submit regular reports on the progress of the implementation of FCNM norms. The AC replies to these state reports by compiling country-specific opinions to which the state parties usually send their statement responding to the AC’s opinion and criticism. A monitoring cycle is completed by a follow-up seminar. These follow-up seminars bring together members of the AC and state representatives in a joint conference evaluating the state of minority rights implementation in the respective country. Frequently minority representatives and members of civil society are invited too. A full monitoring cycle lasts two to three years before the whole machinery starts all over again. In this period state representatives are immersed in a communication process that is steered by the AC with the aim of explaining and teaching countries how to properly implement minority standards. Following the logic of socialization, the density and frequency of contacts exerts an incremental influence on countries. When countries are involved in this communication process, which does not terminate at any given point, they commit themselves to the goals of the FCNM. With every further contact the AC manifests its roles as a promoter of minority rights norms and reinforces these norms. However, the socialization process does not describe a grad- Malte Brosig 111 ___________________________________________________________ ual progress towards norm compliance. Patterns of non-compliance are frequently encountered. In the case of minority rights norms, the monitoring cycle is not only important because of its socializing effects on participating states, it is also a form of standard setting, benchmarking, and interpretation. A standard which on paper gives leeway for its application is given meaning primarily through its application. A monitoring cycle starts with the contracting parties, not the AC, interpreting the norms set forth in the FCNM. Each member state makes the initial decisions on how to implement and apply minority rights norms before the AC starts its review activities on state practice. Thus, at the beginning, the AC is reactive towards state practice. Norm adherence is not a simple reaction to prescriptive standards, rather vague norms acquire their meaning through application and supervision by monitoring bodies like the AC (Wiener, 2004). The AC monitors the application of FCNM norms by setting them in context to national and local conditions. This in the end may lead the AC to promote a certain measure like positive discrimination in one situation in order to reach substantive equality while it may reject this practice in another situation. This flexibility is seen as the most appropriate approach for minority rights protection because it is able to consider the very different living conditions of ethnic minorities in Europe. Thus the opinions are tailor-made for each country. Through the state reporting and monitoring process, the AC refines existing standards which need further refinement because they are vaguely formulated and often entail escape clauses. 2. The Legal Basis of Minority Integration and Equal Treatment Minority integration is not new to the COE. As early as 1969 the Parliamentary Assembly called for a better integration of Roma in western Europe (PACE, Rec. 563, 1969). Six years later the CM, for the first time, considered the application of “special measures” for integration (CM Res. 75(13) para. 5). With the Eastern enlargement of the COE in the 1990s the question of integration, primarily of Roma, triggered the issuance of a number of official COE recommendations and resolutions. Between 1993 and 2006 the COE authored six recommendations on the integration of Roma people and many more on general minority issues. Nonetheless, the FCNM does not provide minorities with a right to integration nor even the right to enforce a certain method or practice. There are, however, a few provisions of the FCNM which, combined, cover the most important aspects of standard minority integration programmes in Europe. Article 15 calls upon countries to create those 112 The AC and Equality Promotion ___________________________________________________________ conditions necessary “for the effective participation of … national minorities in cultural, social and economic life and in public affairs”. It raises the issue of the participation of minority groups in society in order to remedy their often marginalized position and underrepresentation in decision and policy making. Article 5 requires states to promote minority cultures and prohibits any form of assimilation in state integration programmes. The promotion of intercultural dialogue and tolerance is covered by Article 6. Finally, core integration goals are promoted primarily by Article 4 (see Table 1) demanding “effective equality” and prevention from discrimination. Racial discrimination is the most severe violation of minority rights and the issue of equal treatment and equal opportunities is pivotal to achieve equality and to ameliorate the existing marginalization and social and economic cleavages between ethnic minorities and the majority society, hence the empirical part of this paper will focus only on the AC’s promotion of Article 4. Article 4(1) first guarantees minorities equality before the law and the equal enjoyment of rights. Any discrimination based on belonging to an ethnic minority is prohibited. However, this protection against discrimination and the formal admission of equality before the law does not always lead to substantive equality and the equal enjoyment of rights in practice. Therefore paragraph 2 demands the adoption of “adequate measures” for the promotion of substantial equality (Alfredsson, 2006, p. 144). The explanatory report to the FCNM on Article 4(2) makes it clear that special equalizing measures must adhere to the principle of proportionality: “This principle requires […] that such measures do not extend, in time or in scope, beyond what is necessary in order to achieve the aim of full and effective equality”. Thus affirmative action, which in some cases is needed in order to reach substantial equality, should be designed as a temporary instrument as long as the specific circumstances of marginalization or discrimination need to be overcome. Inevitably this requires a periodic and systematic assessment of minority living conditions and needs. Equalizing measures must be underpinned by statistical data and a socio-economic mapping clearly demonstrating the need for affirmative action. The final paragraph of Article 4 legitimizes temporary preferential treat of ethnic minorities if these measures aim at overcoming marginalization and discrimination based on belonging to a minority group. Affirmative action is not a discriminatory practice and does not contravene the principle of equality if it conforms to the principle of proportionality. Malte Brosig 113 ___________________________________________________________ Table 1. Article 4 of the FCNM Article 4 1 The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited. 2 The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities. 3. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination. The comments of the AC in response to state reports clearly show that there is an obligation to introduce equalizing measures under certain conditions, as the following section will show. However, despite the explanatory report and its additional explications on Article 4, many questions remain. It is not clear which specific measures are adequate for the accomplishment of substantial equality. Not every unequal treatment needs the application of positive discrimination. The term “effective equality” needs to be explained in greater detail which can only be done through the process of monitoring and application of these norms. The efficiency question is very much tied to the specific conditions in the social, cultural, economic and political environment that minorities encounter. The Opinion of the Advisory Committee on Article 4 The following section analyzes the opinion of the AC on Article 4. In order to make the analysis comprehensive, I reviewed all the comments of the AC to the contracting parties since the FCNM entered into force in 1998. I examined AC country opinions in the first and second cycle of state reports, which have been concluded by most countries. The third cycle, which is just beginning at the time of writing, has not been examined. For most states parties, the first cycle comprises an initial report on which the AC issues its first opinion. This first opinion comments primarily on the state of transposition of FCNM norms into legislation and inquires into the degree of legal protection of minorities with reference to the FCNM. In the second cycle, the AC proceeds by shifting its main attention away from the formal legal adoption of norms to the proper The AC and Equality Promotion 114 ___________________________________________________________ application and effective implementation of minority rights norms. Thereby the AC clarifies the scope and range of application much more than the explanatory report or legal commentaries in the literature. positive measures adequate resources insufficient monitor- legal status implementation gap local administration needs awareness EC/2000/43 consultation X X X X X X X X X X X X X X X X X X X - X X X X X X X X X X X X X X X X X X - X X X X X X X X X X X X X X X X X - X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X - X X X X X X X X X X X X X - X X X X X X X X X X X X X X - X X X X X X X X X X X X X X X X X X - X X X X X X X X X - X X X X X X X X X X X X X X X X X - legal aid and remedy institutional set up X X X X X X X X X X X X X X X X X X X X X confidence building deficient legal pro- X X X X X X X X X X X X X X X X X X X X X X X X X traditional way of poor data ALB ARM AUT AZE BH CHE CRO CYP CZE DEN ESP EST FIN GBR GER HUN IRE ITA KOS LIE LTU MKD MLD NOR POL ROM RUS SCG SLO SVK SWE UKR Roma women Country Table 2. Article 4 and AC country opinions X X X X X X X X X X X X X X X X X X X X X - X X X X X X X X - X X X X X - X X X X X X X X X X X X X X X X X X X X X - X = presence of a condition, - = absence of a condition Malte Brosig 115 ___________________________________________________________ In order to analyze the AC’s comments on Article 4, this section identifies those factors that are frequently mentioned by the AC. We have determined 16 such conditions (see Table 2). These conditions are the essence of Article 4, reflecting on the AC’s interpretation of equal treatment and non-discrimination. The data sheet in Table 2 documents the frequency of appearance of each factor by each country. As mentioned above, the FCNM norms are formulated quite vaguely with the intention of covering a variety of cases and allowing for flexibility in application. Thus the AC does not recommend the same procedures to every state party, but distinguishes between cases. The data sheet visualizes how frequently the AC refers to a certain factor and how systematically this factor is introduced in the AC’s opinions, which gives us a first hint of when a certain factor is picked up by the AC. The table also shows which mixture of conditions the AC highlights for each of the 32 countries. However, only a qualitative analysis which also inquires into individual conditions can evaluate the importance of these 16 factors in greater detail. The AC’s opinions can be grouped into three major categories; formal requirements, policy organization, and policy instruments (Table 3). At the beginning is the legal formal transposition of FCNM norms into domestic legislation which, with regard to Article 4, requires the transposition of comprehensive anti-discrimination legislation. If this first hurdle has been achieved successfully the AC requests the setting up of effective structures which implement integration programmes systematically and coherently. Finally the AC issues a number of very specific recommendations advocating certain policy instruments which aim at remedying the worst cases of marginalization. The following empirical analysis examines the AC’s country opinions according to these three categories. It seeks to clarify the actual meaning of equal treatment in practice and inquires into the context variables which guide the AC in its selection of minority integration instruments. 116 The AC and Equality Promotion ___________________________________________________________ Table 3. Advisory Committee: Groupings of Country Opinions Formal requirements Policy organization Policy instruments Availability of adequate statistical data Effective monitoring capabilities Tailor-made country recommendations Comprehensive legal protection against discrimination Effectively working Ombudsman (institutional independence, regional availability) Variety of preferential measures depending on living conditions Availability of effective legal remedies against discrimination Clarification of legal status questions Cross sector coordination at the horizontal and vertical axes Affirmative integration measures especially in the employment and education sector Special emphasis on local authorities Special measures for Roma woman Minority consultation Respect for the traditional way of life Incorporation of civil society when implementing integration programmes Promotion of best practice solutions Proper planning, execution, evaluation of all integration measures Availability of adequate resources and funding Formal Legal Requirements Many of the AC opinions in the first monitoring cycle focus on formal and legal requirements for the full implementation of Article 4. The AC systematically addressed the need for countries to protect minorities against discrimination through comprehensive anti-discrimination legislation providing victims of discrimination with effective legal remedies. It also collected statistical data on the living conditions of ethnic minorities and commented on problems related to the legal status of minorities. According to the AC, only a comprehensive anti-discrimination law can guarantee full equality. Although most countries prohibit dis- Malte Brosig 117 ___________________________________________________________ crimination on various grounds in their constitutions, a general discrimination ban does not suffice to guarantee real equality when confronted with persisting forms of marginalization, stigmatization and social and economic deprivation. According to the AC country opinions, two-thirds of the analyzed counties did not provide minorities with sufficiently comprehensive legal protection against discrimination. Comprehensive legislation must protect minorities from any form of discrimination, protecting individuals from discrimination by public and private institutions (Serbia first cycle, para. 31, 17/11/04). Besides general bans on discrimination, many countries have introduced additional legislation to prohibit discrimination in employment, which the AC actively supports (Croatia, first cycle, para. 23, 06/04/01). However, greater protection is needed in areas in which minorities and in particular Roma people frequently suffer discrimination, like housing (Sweden, first cycle, para. 31, 20/02/03), education (Russia, first cycle, para. 32, 13/09/02), health care (Lithuania, first cycle, para. 28, 21/02/03 and CM Rec. 2006(10)), and employment (Italy, first cycle, para. 22, 14/09/01). The transposition of the EU Racial Equality Directive is also supported, however, without making comments on whether a state has transposed the directive properly or not. In some cases the AC combines its call for comprehensive adoption of anti-discrimination legislation with the transposition of the EU Racial Equality Directive (Germany, second cycle, para. 28, 01/03/06). In the case of Ireland, the AC used the belated transposition of the EU directive as a tool to apply pressure to accelerate legislative reforms from which the AC hopes to bring Irish law into compliance with the FCNM (Ireland, first cycle, para. 21, 22/05/03). However, the promotion of this EU directive for some EU member states, but not for non-EU members, poses the potential threat of establishing differential treatment without having a solid legal justification for this practice. As part of a comprehensive legal protection against racial discrimination which reaches all areas of the life of minority groups, the introduction of effective remedies is required of all contracting parties. The existence of legal protection mechanisms against discrimination is a precondition that necessary but not sufficient to guarantee the promotion of “full and effective equality” in real life. The effective working of legal provisions depends on a number of conditions of which the AC is aware in its comments on state reports. Low numbers of legal trials concerning acts of racial discrimination being brought before courts, despite NGO reports on widespread discrimination in everyday life, is very often indicative of a malfunctioning of the national administration and judicial 118 The AC and Equality Promotion ___________________________________________________________ system which deprives many minority members of access to effective remedies (Russia, second cycle, para. 46, 11/05/06). Despite the fact that many Central and Eastern European countries (CEEC) have transposed the Racial Equality Directive punctually does not automatically give their minority populations the opportunity to seek a remedy before a court. Moreover, the AC attaches great importance to the possibility that victims of discrimination can seek compensation for damages suffered (Cyprus, first cycle, para 23, 06/04/01). The CM even pledges free legal aid for the very poor (CM Rec. (2005)4 para. 13). In addition to the proper transposition of comprehensive nondiscrimination legislation, great importance is attached to the availability of reliable statistical data. In 25 out of 32 cases the AC criticizes the insufficient availability of statistical data concerning national minorities. Any effective integration measure needs a careful evaluation of minority living conditions based on reliable statistical data before it can be implemented properly. In many cases there appear to be significant discrepancies between the data made available to the COE and the actual ethnic minority populations in a certain country (Austria, first cycle, para. 22, 16/05/02 or Czech Republic first cycle para. 28, 06/04/01). This is particularly true for Roma people. National census data frequently do not provide reliable figures on the Roma population. In its comments, the AC requests not only exact data on the ethnic composition of states but also asks member states to provide details according to age, sex, and geographical location (Germany, second cycle para. 33, 01/03/06). It is only possible to judge the effectiveness and appropriateness of national integration measures if reliable data is provided. This data is also important for countries in order to allow them to develop what the AC calls “targeted measures” for integration (Slovenia, second cycle, para. 61, 26/05/05). Collecting statistical data is essential not only for the development of integration strategies but also for the implementation and evaluation of equalizing measures (Macedonia, first cycle, para. 41, 27/05/04). Guaranteeing “full and effective equality” requires states to constantly reevaluate and up-date their data on ethnic minorities. Changes in the ethnic composition in certain territories or changes in the socio-economic conditions of minority groups have to be recognized within an appropriate time span. Collecting data based on ethnic characteristics does not always find support in state administrations and concerns about it can be justified. A potential danger is the misuse of this data to discriminate against a certain group. For instance, the gathering of crime-related data according Malte Brosig 119 ___________________________________________________________ to racial origin can be politically exploited for populist reasons and might even fuel resentment against minorities. In countries in which ethnic conflicts have recently been overcome or continue to exist, this form of data collection can lead to an unintended division of society into ethnic groups with far-reaching consequences. Therefore, this data was not explicitly demanded from Kosovo and Bosnia, which were reminded to comply with personal data protection provisions (Bosnia and Herzegovina, first cycle, para. 53, 27/05/05). A further formal requirement for the proper application of FCNM norms is the question of the legal status of ethnic minorities. This issue is particularly relevant in the Baltic countries and in the Balkans. In Estonia and Latvia, for example, around one-third of the population belong to the Russian-speaking minority, many of whom did not obtain an Estonian or Latvian passport automatically after the Soviet Union collapsed. The issue of citizenship and of what constitutes an ethnic minority is of the highest importance for the implementation of FCNM norms. In their explanatory declaration to the FCNM, both countries declared that only citizens fall under the category of national minorities and thus can enjoy rights set out in the FCNM. However, similar declarations have been issued by Austria, Germany, Luxembourg, Portugal and Switzerland (Thiele, 2006, p. 126). In the Balkan region the uncertain legal status of Roma hinders the implementation of integration programmes in many cases. The unclear legal status of Roma settlements in Serbia led the authorities to forcefully evict Roma from their homes (Serbia, first cycle, para. 40, 17/11/04, see also CM Rec. (2005)4, para. 24). Roma living in non-legalized settlements often belong to the most disenfranchised and marginalized group of people. These settlements often lack basic infrastructure like water supply or waste collection. There have also been cases in which Roma have been removed from residence lists, leaving these people with an uncertain residence status (Slovenia, second cycle, para. 56, 26/05/05). Policy Organization A substantial proportion of the AC country opinions focus on the organization and administration of minority integration programmes. Indeed the AC spends more time and effort on commenting on the correct set-up of state implementing organs and administrative coordination of minority policy instruments than on the promotion of specific policy programmes. This section presents the AC’s opinion on state policy organization mentioning the effective working of Ombudsman institutions, the need for 120 The AC and Equality Promotion ___________________________________________________________ proper policy coordination between state institutions at the central and local level, models for adequate minority participation and problems of monitoring and implementation. According to the AC, the availability of effective remedies depends on the existence and proper working of a specialized monitoring institution. The introduction of the office of Ombudsman has become a standard recommendation. States without such a specialized body are advised to establish such an institution “in a timely manner” (Armenia, first cycle, para. 26, 16/05/02). The Ombudsman primarily serves the interest of the public including ethnic minorities but is not a representative for minority interests. In many cases the duties of this office are narrowly defined. An Ombudsman institution classically investigates complaints by individuals whose rights have been violated by state authorities (Cyprus, first cycle, para. 23, 06/04/01). Against this narrow understanding of the duties and functions of an Ombudsman the AC wants to expand its competences to the promotion of equal treatment (Czech Republic, second cycle, para. 20, 24/02/05). In its country opinions, the AC has expressed the view that the mere existence of an Ombudsman office may not suffice for guaranteeing effective remedies against discrimination. It attaches a number of conditions or expectations for this institution to work well. The offices should be accessible to people in regional areas and in areas in which minorities reside, to increase the accessibility of the Ombudsman office for ethnic minorities (Azerbaijan, first cycle, para. 26, 22/05/03). The building of popular confidence between state institutions and minorities is a further issue of concern in the cases of Azerbaijan (ibid., para. 24), Bosnia (first cycle, para. 36, 27/05/05), Russia (second cycle, para. 46 11/05/06), Kosovo (first cycle, para. 37 25/11/05) and Slovenia (second cycle, para. 50, 26/05/05), which have shown signs of serious disruption of public trust in state institutions. The AC takes a keen interest in the effective working of Ombudsman institutions within the domestic state structure and considers it as “indispensable for the Ombudsman to be able to rely on cooperation from all authorities” (Slovenia, first cycle, para 27, 12/09/02). This is a particular challenge since often minority issues do not fall in the competence of only one ministerial office but cut cross many portfolios. The effective working of Ombudsman institutions also requires a well-informed minority which knows its rights and actively uses them. Furthermore, countries are reminded to provide adequate financial resources and institutional Malte Brosig 121 ___________________________________________________________ independence when setting up such an office (Armenia, first cycle, para. 27, 16/05/02). For guaranteeing effective equality, the AC investigates the domestic organization of state integration programmes. Questions of the proper implementation of integration instruments and the efficient organization of integration programmes, including the allocation of adequate funding, supervision, administration and evaluation, are important elements of its opinions. In 19 out of 32 cases, comments on the organizational set-up of integration programmes were made. Indeed the challenge when setting up national integration programmes is not only the often low public support for minority integration projects but also the need for proper planning and cooperation between national and regional authorities on the vertical level as well as between different ministries at the horizontal level. Based on comprehensive non-discrimination legislation, the AC demands that countries develop comprehensive integration strategies remedying “at all levels” social and economic discrimination and marginalization (Bosnia, first cycle, para. 49, 27/05/05). Such measures need to involve “close coordination” of all relevant ministries (ibid., para 51). The CM has supported this view in a number of recommendations on Roma integration issues (CM, Rec. (2001)17; CM Rec. (2005)4; CM Rec. (2006)10). Problems of coordination between different ministries are a frequent challenge for the implementation of integration projects. Repeatedly the AC expresses concern about the varying degrees of commitment of the state administration bodies involved. Concerns were issued on the full and consistent implementation of integration projects by all involved actors (Romania, first cycle, para. 25, 06/04/01). The success and sustainability of minority integration programmes depends to a large extent on an effectively working regional and local administration. It is the local authorities that run integration projects and thus local governments feature frequently in AC recommendations (see also CM Rec. (2005)4 para. 9, 35; Croatia, second cycle, para. 74, 01/10/04). Resistance or ignorance against integration projects by local authorities can impact negatively on national integration programmes and at worst can undermine the ability of these programmes to promote effective equality (Czech Republic, second cycle, paras. 52, 59, 24/02/05; Hungary, second cycle, paras. 49, 52, 09/12/04). Coordination with local authorities is important because many services in which Roma, primarily, suffer discrimination, such as health care, housing etc. are administered by them (Italy, second cycle, para. 56, 24/02/05). Besides calling for proper coordination of central, regional, and local administrative institu- 122 The AC and Equality Promotion ___________________________________________________________ tions, the AC also calls for cooperation with civil society (Macedonia, first cycle, para. 33, 27/05/04). Contact with civil society organizations is an important information source for the AC. Occasionally it refers to NGO opinions or reports on the state of integration measures and revealed shortcomings in their implementation (Norway, second cycle, para. 39, 05/10/06). The incorporation of civil society organizations is particularly valuable in situations in which there is only a weak or no political representation of minority interests. In these situations, the AC tries to integrate civil society organizations to represent minority interests (Poland, first cycle, para. 39, 27/11/03). Following the country opinions of the AC, it is not fully clear if states should feel required to set up a special or separate administrative unit which administers integration projects. However, the AC supports their establishment and proper funding (Spain, first cycle, para. 31, 27/11/03). In many cases it reminds countries to provide sufficient funding for integration programmes. In 17 out of 32 cases, the AC finds that countries provide insufficient resources for the proper implementation of integration programmes, and 12 of these 17 are Eastern European countries. Additionally the CM has highlighted the need to “provide long-term budgetary support” especially for Roma integration projects (CM Rec. (2001)17, para. 28). Besides the proper coordination of state institutions involved in designing integration programmes, the AC frequently calls for the “active participation of Travellers and Traveller organizations in the implementation structures set up” (Ireland, first cycle, para. 42, 22/05/03). In half the countries which have ratified the FCNM, proper minority consultation when setting up minority integration programmes has been called for (see Table 2). Systematic minority consultation primarily seeks to guarantee that minority integration projects reflect the real needs of minorities and are not developed without minority input (Russia, second cycle, para. 70, 11/05/06). In some instances the AC recommends increasing the number of minority employees in state administrations (Kosovo, para. 37, 25/11/05; Macedonia, first cycle, para. 36, 27/05/04). Minority consultation has also been mentioned in a variety of COE recommendations by the CM stressing the importance of minority participation at the planning, implementation and evaluation of integration projects (CM, Rec. R (2000)4; CM Rec (2001)17; CM Rec. (2005)4; CM Rec. (2006)10). As can be seen in Table 2, almost two-thirds of countries inadequately monitor their non-discrimination legislation or insufficiently su- Malte Brosig 123 ___________________________________________________________ pervise their integration programmes. Governments, according to the AC, need to have information available on the practical application of nondiscrimination legislation in order to guarantee fully that equalizing measures and non-discrimination legislation work properly (Ukraine first cycle, para. 28, 01/03/02). Only if countries have up-to-date information available are they able to adjust current programmes to the needs of minority members. Furthermore, the monitoring and evaluation of integration measures should be conducted by independent institutions (Macedonia, first cycle, para. 33, 27/05/04). Not only states need to monitor the implementation of non-discrimination and integration programmes, however. This information is also crucial for the AC, which has to rely on statistical data and survey studies provided by the state parties, or other independent research institutes or NGOs, to fulfil its task, the monitoring of the FCNM (Slovakia, first cycle, para. 21, 22/09/00). The insufficient monitoring apparatus in many countries also complements the frequently observed problems of implementation. One-third of country opinions complain about insufficient implementation of nondiscrimination rules or integration, and the majority of such cases are Eastern European countries. The reasons for this implementation deficit are manifold. In the case of Bosnia (first cycle, para. 42, 27/05/05) it is a “deeply-rooted discrimination” in society. In other cases, the AC has attributed the implementation gap to; lack of statistical data to monitor the progress of implementation (Croatia, second cycle, para. 43, 01/10/04), lack of commitment of national governments towards integration goals (ibid., para. 51), insufficient budget (ibid., para. 72), lack of systematic evaluation of integration projects (Ireland, second cycle, para. 41, 06/10/06), lack of minority participation during the implementation of integration programmes (Ireland, first cycle, para. 42, 22/05/03), misconduct of police officers (Lithuania, first cycle, para. 32, 21/03/03), unclear guidelines for implementing agencies (Romania, first, cycle, para. 29, 06/04/01), unclear legal status of ethnic minorities (Russia, first cycle, para. 36, 13/09/02), lack of judicial independence (Serbia, first cycle, para. 36, 17/11/04), or the unawareness of existing non-discrimination laws among the broader public and within the judicial system (Romania, second cycle, para. 47, 24/11/05). In its comments on the organizational set up of integration programmes, the AC is primarily reacting to the situation on the ground. Confronted with implementation deficits, inadequate monitoring and widespread organizational shortcomings, the AC has to devote large parts 124 The AC and Equality Promotion ___________________________________________________________ of its commentaries to questions of administrative organization before recommending specific policy instruments. Policy Instruments The promotion of minority integration measures is primarily based on Article 4(2) and thus the AC’s comments on the implementation of this paragraph are central for our understanding of what equalizing measures are about. The AC actively encourages states to use minority integration tools for the promotion of effective equality. However, it has not developed objective criteria for when affirmative action is justified, it only refers to persisting and considerable inequalities between national minorities and mainstream society which justify the introduction of preferential treatment (Romania, first cycle, CM Conclusions, 06/04/01). In many cases the AC narrows down the area in which it recommends positive measures for securing full equality; employment (Serbia, first cycle, para. 38, 17/11/04), housing (Norway, first cycle, para. 76, 12/09/02), education (Sweden, first cycle, para. 26, 20/02/03), or Roma woman (Norway, first cycle, para. 76, 12/09/02). A number of terms are used to express the need for preferential treatment without calling directly for affirmative action. In the country recommendations one can find the terms; “positive measures”, “targeted measures”, “specific measures”, “decisive measures”, “remedial measures”, “suitable measures” and “additional measures”. They all, in a polite and diplomatic manner, point to persistent inequalities between ethnic minorities and mainstream society that require state intervention and some kind of positive discrimination. However, the AC avoids the naming of specific equalizing measures and it does not prescribe concrete instruments for any particular issue. The AC’s approach is to emphasize problems and to make countries aware of existing inequalities. The measure applied to remedy the situation is left to the discretion of each state party. There are differences in emphasis, however; while the term “suitable measure” leaves considerable scope for interpretation, the wording “positive” or “remedial” measures demands more direct state intervention. However, it is not clear according to which benchmarks the AC decides a situation requires “additional” or “targeted” measures. In some cases the AC’s comments appear as rather non-coercive recommendations. Phrases like, “The Advisory Committee considers that the Armenian authorities should step up their efforts in this regard (effective equality)” without going into the matter of the scope and extent of the govern- Malte Brosig 125 ___________________________________________________________ ment’s efforts can only formulate very vague obligations for Armenia (Armenia, first cycle para. 93, 16/05/02). Positive measures in the area of education are seen as vital for success in other fields such as employment and housing and therefore education forms a special focus for AC comments (Finland, first cycle, para. 20, 22/09/00). As stated earlier, no specific integration measures have been prescribed nor is it inquired why certain instruments have worked effectively or not. The decision as to which instruments best apply for the integration of minority people is left for the state parties. The AC not only criticizes shortcomings in its periodic country opinion, it also encourages states to continue and systematically apply projects that have a proven positive impact. One case in point is the introduction of Roma assistant teachers (see the contribution by Cashman in this volume), which lowered the school drop-out rates of Roma students significantly (Poland, first cycle, para. 37, 27/11/03). The Parliamentary Assembly of the COE, more directly than the AC, calls upon countries to recruit Roma staff in public services ranging from administrative work in local authorities to health-care assistants in hospitals (PACE, Rec. 1557 (2002) para. 15c). Examples of successful “best practice” are promoted which can be developed by regional authorities or organizations from which a whole country may profit if applied coherently (Serbia, first cycle, para. 38, 17/11/04). In its comments on Article 4 the AC, with the exception of Roma women, rarely singles out a sub-group of any particular ethnic minority. However, because Roma women frequently encounter double discrimination based on their ethnic origin and gender, the AC devotes special attention to the situation of Roma women. In more than 20 country opinions the AC has made a direct reference to the situation of Roma women, making states aware of their vulnerable situation. In many cases it uses the standard phrase, “the Advisory Committee underlines that, when implementing special measures, particular attention should be paid to the situation of Roma women” (Denmark, first cycle, para. 20, 22/09/00) to express the need for special integration measures. The AC also finds “that the gender dimension needs to be taken into account in the design and implementation of all minority initiatives” (Ireland, second cycle, para. 51, 06/10/06). On some occasions more specific advice has been found. For Ireland (first cycle, para. 38, 22/05/03) the AC recommends improving the access to childcare facilities from which it expects women to have better access to the labour market. Indeed unemployment among Roma women is one of the most worrying and persistent forms of lack of inte- 126 The AC and Equality Promotion ___________________________________________________________ gration (Norway, second cycle, 05/10/06). In Romania the AC welcomes the training of Roma women as social workers to improve the health and living conditions in Roma settlements (Romania, second cycle, para. 53, 24/11/05). This measure combines efforts to raise health-care standards among Roma and provides Roma women with job training and employment. The 2003 Body and Soul Report, which revealed dozens of cases of forced sterilization of Roma women mostly in Slovakia, has triggered the AC to focus more intensively on Roma women and their needs in the health-care system (Slovakia, second cycle, para. 57, 26/05/05). Lastly the AC makes reference to the traditional way of life of Roma Travellers, however, only in a small number of cases (5 of 32) does it indicate that their lifestyle needs special consideration. For example, integration measures should take into account the special needs of Roma and their traditional way of life (Spain, first cycle, para. 37, 27/11/03). Hereby the AC highlights especially the needs of Travellers and their nomadic lifestyle to which integration measures need to be adapted (Norway, second cycle, para. 45, 05/10/06). Respect for the traditional way of life of Roma has also been acknowledged by the CM (CM Rec. (2005)4) and even by the European Court of Human Rights based on Article 8 of the European Convention on Human Rights (Morawa, 2004; Gilbert, 2002, pp. 778–780). The AC and Norm Promotion This contribution aims to clarify the meaning of “effective equality” of Article 4 of the FCNM, which is a central element of many minority integration programmes in Europe, and thereby analyzed the immanent character of the AC norm promotion mechanism. Two conditions have shaped the AC norm promotion process the most; first, the lack of legal power and robust enforcement mechanisms, and second, the vague meaning of FCNM norms giving considerable discretion for its interpretation. The AC has to rely almost exclusively on its socialization power. FCNM standards, although they are legally binding, are not directly litigable. Furthermore, the COE cannot offer any significant external incentives for norm compliance, like financial subsidies for what are often costly integration programmes. Thus the AC mechanism is primarily characterized by a lack of political and legal power and the absence of material support for the implementation of FCNM standards. Incrementally, the EU is filling this gap through its non-discrimination legislation and large-scale funding of minority integration programmes (see contribution by Riedel Malte Brosig 127 ___________________________________________________________ to this volume). However, the power of the AC is in its monitoring process, which immerses states in a communication process on the proper application of minority rights norms creating commitments states cannot easily evade. This rather soft norm enforcement mechanism is a logical reaction to the vague wording of minority rights norms. The open wording of many minority rights standards may, in some cases, be a burden, giving states the opportunity to circumvent strict norms. However, it also legitimizes the function of the AC as a guardian and interpreter of European minority rights. Indeed having strict norms but weak enforcement instruments may be worse than having vague norms but relying on the power of socialization. Without the open wording of the FCNM the work of the AC would be seen with much more scepticism. Its current approach, which combines socialization through monitoring and elements of norm-setting, also suits the COE because it assigns to the AC the role of interpreter and promoter of European minority rights norms. The country-specific recommendations of the AC are indispensable for a deeper understanding of the principle of equality in Article 4. By reference to the AC’s opinions, we can more systematically comprehend the meaning and scope of “effective equality” for minorities in Europe. The AC’s recommendations give detailed information on the obligations states have accepted when ratifying the FCNM. For monitoring the implementation of Article 4 the AC has developed its own “choreography”. In a first step the AC demands the adoption of comprehensive antidiscrimination legislation, in a second step it comments on the organizational set-up of state integration efforts, and thirdly the AC recommends more concrete integration measures. Thus the special value of analyzing the AC’s comments also lies in the creation of meaning through the monitoring of Article 4. The AC is not only a monitoring body but also a norm constructor through monitoring. The above sections could reveal a number of characteristics of this monitoring process and thereby specify the special character of norm promotion of the AC. Each recommendation is a country-specific comment which takes into account the specific living environment of ethnic minorities in Europe. The tailoring of country opinions is guided by implicit context variables. These variables are rather pragmatic benchmarks reacting to the real-life situation of minorities. The AC cautiously avoids normative language that would give preference to any theory of multiculturalism or other ideology. The fact that a substantial proportion of the AC opinions deal with questions of administrative organization of integration measures instead of integration instruments itself is a reaction to 128 The AC and Equality Promotion ___________________________________________________________ implementation problems on the ground. The FCNM does not provide any guidelines for how states should organize their integration programmes, thus the AC’s opinions generally do not promote a certain type of coordination. The AC’s comments are outcome-oriented and rather advise than prescribe a certain method of coordination. However, the AC insists on commonsense elementary conditions, like adequate funding or proper coordination between different levels of state institutions. Thus the AC opinions help states to design their integration programmes properly, but the choice of instruments is left to the countries. Any specific instruments are welcome as long as they remedy substantial inequalities. The AC’s recommendations are very often general in nature, only occasionally recommending specific integration instruments or policies. This can largely be explained by the open wording of Article 4 which does not give preference for any specific measure. The AC only requires states to adopt a certain measure if there is an objective need for it (Hofmann 2006 b, p. 13). It calls for the adoption of specific, targeted or positive measures which are country, issue, and minority specific. Recommendations by the AC are individually tailored for each country and thus measures recommended for one country may not be adequate for all others. Integration measures in the area of education and employment are the most frequent ones recommended by the AC, followed by the special protection of Roma woman and respect for the traditional way of life of Roma Travellers. However, the AC has not developed transparent criteria according to which it decides which situation deserves the application of additional or positive integration measures. The existence of persisting forms of inequality is made on pragmatic assumptions on the living conditions of minorities. Conclusion Of all European international organizations, the AC is the institution that has developed the most sophisticated and elaborated approach to minority rights in general and minority integration in particular. Through a process of long-term monitoring, commenting, and socialization, the AC has further developed the scope and meaning of full equality and its organizational prerequisites. It has developed flexible and individually tailored benchmarks for minority integration programmes, setting standards in accordance with and beyond the legal framework. Yet the AC has been reluctant to prescribe specific integration tools, its soft law approach leaves considerable space for multiple ways to reach equality. The choice of instruments for furthering social inclusion is largely left to the discre- Malte Brosig 129 ___________________________________________________________ tion of countries. Furthermore, the work of the AC aims to reinforce integration efforts by state and non-state actors. It gives minority activists external (international) legitimacy and political support for their work. References Alfredsson, G. (2000), “A Frame for an incomplete painting: Comparison of the Framework Convention for the Protection of National Minorities with international standards and monitoring procedures,” International Journal on Minority and Group Rights, 7(4): 291–304. 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(2006), “Minority rights in Europe: An introduction into a fragmented regime,” in: M. Brosig (ed.) Human Rights in Europe. A Fragmented Regime? Frankfurt a. M.: Peter Lang, 121–136. 132 The AC and Equality Promotion ___________________________________________________________ Troebst, S. (1999), “From paper to practice: The Council of Europe’s Framework Convention for the Protection of National Minorities,” Helsinki Monitor 1999, 1: 19–26. Wiener, A. (2004), “Contested compliance: Interventions on the normative structure of world politics,” European Journal of International Relations, 10(2): 189–234. Documents of the Advisory Committee Advisory Committee, Opinion on Armenia, first cycle, 16/05/02. Advisory Committee, Opinion on Austria, first cycle 16/05/02. Advisory Committee, Opinion on Azerbaijan, first cycle, 22/05/03. Advisory Committee, Opinion on Bosnia and Herzegovina, first cycle, 27/05/05. Advisory Committee, Opinion on Croatia, first and second cycle, 06/04/01 and 01/10/04. 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