The 2006 Venice Commission report on non-citizens and minority rights - Presentation and assessment

Helsinki Monitor

Volumn 18, Issue 2, 2007, Pages 150-163

  Aurescu, Bogdan ^a  

^a UNIVERSITY OF BUCHAREST   (Romania)

Author keywords

[No Author keywords available]

Indexed keywords

CITIZENSHIP; CONSTITUTIONAL REFORM; HUMAN RIGHTS; INTERNATIONAL AGREEMENT; MINORITY GROUP;

EURASIA; EUROPE; ITALY; SOUTHERN EUROPE; VENETO; VENEZIA [VENETO]; VENICE;

EID: 34547956690     PISSN: 09250972     EISSN: 1571814X     Source Type: Journal    
DOI: 10.1163/157181407781486831     Document Type: Article

References (42)

1. Study no. 294/ 2004, hereinafter referred to as 'the Report'. For the full text of the Report, see the Venice Commission document CDL-AD(2007)001, http://www.venice.coe.int/docs/2007/cdl-AD(2007)001-e.asp.
2. See paragraph 1 of the Report. See for a comprehensive analysis Gaetano Pentassuglia, Minorities in International Law, European Centre for Minority Issues, Council of Europe Publishing, Strasbourg, 2002, pp. 55-72.
3. See Alan Phillips, 'The Framework Convention for the Protection of National Minorities (FCNM)', in Mechanisms for the Implementation of Minority Rights, European Centre for Minority Issues, Council of Europe Publishing, Strasbourg, 2004, pp. 109-129.
4. Opinion on Estonia, adopted on 14 September 2001, specific comment in respect of Article 3 of the Framework Convention.
5. Declaration contained in the instrument of ratification of the Framework Convention, deposited by Estonia on 6 January 1997.
6. Opinion on Estonia, adopted on 14 September 2001, paragraph 17.
7. Ibid, Executive Summary, paragraph 5.
8. See also footnote 14.
9. See, for the text of the Estonian Constitution, http://www.legaltext.ee/ et/andmebaas/tekst.asp?dok=X0000&keel=en.
10. Second Opinion on Estonia, adopted on 24 February 2005, paragraphs 10, 26, 37, 48, 62, 65,180. According to paragraph 37, 'The Advisory Committee recalls that in the Estonian context, where many residents are without the Estonian citizenship, legal safeguards against discrimination on the basis of citizenship -which do not exclude differential treatment with objective and reasonable justifications -would be of direct relevance to a large segment of society.'
11. See http://www.am.gov.lv/en/policy/4641/4642/4651/7print=on.
12. State Report submitted by Latvia pursuant to article 25 (1) of the FCNM (11 October 2006), p. 3.
13. Elga Freiberga, 'The European Values and Latvian Identity', in Petr Drulak (ed.), National and European Identities in EU Enlargement, Institute of International Relations, Prague, 2001, pp. 123-124. The following statement is telling for the perception in this regard in Latvia: 'After the restoration of the independence in Latvia this layer of the society sooner identified itself with the lost Soviet State ... This factor seems dangerous... because it might become the basis for uncontrollable and unpredictable processes.'
14. Opinion on Croatia, adopted on 6 April 2001, Executive Summary, paragraph 4.
15. See in particular CDL-INF (2001)012, Opinion on the Draft Law on Rights of National Minorities of Bosnia and Herzegovina, ad item 4, and CDL-INF (2001)014, Opinion on the Constitutional Law on the Rights of National Minorities in Croatia, ad item 4, in which the Venice Commission stated: 'Under the draft Law as well as in the list of minorities that continues to exist in the Preamble to the Constitution, the notion of minorities is restricted to citizens of Croatia. Such a restriction departs, however, from recent tendencies of minority protection in international law interpretation by the Human Rights Committee (General Comment No23 of 6 April 1994 of Article 27 of the International Covenant on Civil and Political Rights and practice of the OSCE High Commissioner on National Minorities). Furthermore, except in the case of political representation at levels other than the local level, citizenship is generally irrelevant to the content of internationally prescribed minority rights'. See also CDL-AD(2003)013, Opinion on the Draft Law on Amendments to the Law on National Minorities in Lithuania, ad §§ 5-6;
16. CDL-AD (2004)013, Opinion on Two Draft Laws amending the Law on National Minorities in Ukraine, ad §§ 16-22;
17. CDL-AD (2005)026, Opinion on the Draft Law on the Statute of National Minorities Living in Romania, ad §§ 24-30, which stated inter alia: 'The Venice Commission has had a few occasions to express itself on the issue of the citizenship requirement with regard to legislation protecting national minorities. In this context, the Commission stressed that a new, more dynamic tendency to extend minority protection to non-citizens has developed over the recent past'.
18. See CDL-AD (2004)026, Opinion on the revised draft law on the exercise of the rights and freedoms of national and ethnic minorities in Montenegro, ad §§ 31-37.
19. Mr Gudmundur Alfredsson (Expert, Iceland), Mr Bogdan Aurescu (Substitute Member, Romania), Mr Sergio Bartole (Substitute Member, Italy), Mr Pieter van Dijk (Member, the Netherlands), Ms Mirjana Lazarova Trajkovska (Member, 'The former Yugoslav Republic of Macedonia'), Mr Giorgio Malinverni (Member, Switzerland), Mr Franz Matscher (Expert, Austria).
20. The Advisory Committee on the Framework Convention for the Protection of National Minorities, the Committee of Experts of the European Charter for Regional or Minority Languages, the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, the OSCE High Commissioner on National Minorities, the Office of the UN High Commissioner for Human Rights.
21. See paragraphs 12-13 of the Report.
22. See paragraph 22 of the Report.
23. See paragraphs 29-31 of the Report.
24. See paragraph 62 of the Report.
25. See paragraph 71 of the Report.
26. See paragraph 85 of the Report.
27. See paragraph 95 of the Report.
28. At the initiative of the author of this article.
29. See paragraph 101 of the Report.
30. At the European level, a number of Constitutions lay down a State obligation to grant diplomatic protection when the human rights of a citizen abroad are violated. In many States, this obligation even implies a corresponding right of the citizen abroad to be granted diplomatic protection.
31. See Venice Commission document CDL-INF (2001)019, Report on The Preferential Treatment of National Minorities by Their Kin-State (19-20 of October 2001).
32. See footnote 110 of the Report.
33. See paragraphs 114-115 of the Report.
34. See paragraph 119 of the Report.
35. See paragraph 125 of the Report.
36. See paragraphs 127-128 of the Report.
37. See paragraph 129 of the Report.
38. See paragraph 132 of the Report.
39. See paragraph 133 of the Report.
40. See paragraph 134 of the Report.
41. See paragraphs 136-137 of the Report.
42. See paragraph 144 of the Report.