Associate Professor of public international law at the Faculty of Law, Masaryk University in Brno, where is Vice-Dean for international relations, research and science. He has been head of the International and European Law Department (1997-2002) and the Department of International Humanitarian Law and National Legal Branches at the Military University of Ground Forces in Vyskov (1996-2002). He is a member of the Permanent Court of Arbitration of The Hague since 1994, a member of the European Commission against Racism and Intolerance since 2002. He has been a member of the Advisory Committee to the Framework Convention for the Protection of National Minorities (1998-2002), and as well National Correspondent to the Council of Europe's Directorate of Human Rights. He is chairman of the Czech Appeals Commission for the Asylum Procedure since 1998, and as well a member of the Government Council for Human Rights since 2002.

A PERSON BELONGING TO A NATIONAL MINORITY AS HOMO INDIVIDUALIS AND THE RIGHT OF PERSONAL CHOICE

1. Prolegomena

As a rule, the preamble forms an integral component of an international treaty drafted in full form. The systematic¹ and teleological² methods of interpretation in particular seek and find legal arguments and bases solely in the preamble. As regards the 1995 Framework Convention for the Protection of National Minorities,³ it is only in the penultimate recital of the preamble that the substantive objective of the instrument is revealed: to ensure the effective protection of national minorities and of the rights and freedoms of persons belonging to those minorities, within the rule of law, while respecting the territorial integrity and national sovereignty of states.⁴ The mere reading of the text in the inner context (at least if we take the mere number of provisions as an indication), results in the preliminary conclusion that the protection of such particular segments of population is supposed to be achieved by means of protecting individuals belonging to national minorities. Using the singular "every person belonging to a national minority" or the plural "persons belonging to national minorities" seems to be relevant for the determination of the method to be applied for the protection of a minority.⁵ Both normative phrases undoubtedly consider a person belonging to a national minority as homo individualis,⁶ or a minority community as a community of individuals. Certainly, the Framework Convention remains faithful to the European ideal of the individual conception of human rights, where a member of a national minority is apparently "imprisoned" in an atomised position⁷, even though the cultural identity of a minority is transmitted from one generation to the next by a community, not by isolated individuals.⁸ However, the rights and freedoms of persons belonging to national minorities may be exercised individually as well as in community.⁹ No doubt, both manners are intrinsically tied together. Moreover, Article 3, paragraph 2 of the Framework Convention does not restrict the common exercise of those rights and freedoms exclusively to members of national minorities. The clause contains the important legal formulation "in community with others".¹⁰ The breadth of the legally imprecise concept of "others" includes not only members of that national group, but other parts of the population as well. The scope of the mentioned term definitely does not exclude persons belonging to the majority. Furthermore, the meaning seems to cover even persons without permanent link to the population of the state. In this way, the Framework Convention presupposes transboundary human contacts. This simple formula purposefully and systematically makes space for a secure "coalition of cultures" and, at the same time, tempers the possible isolation of segments of the population.¹¹ A culture, understood in the broad sense, covers not only a dynamic value system, but likewise a collective way of life.¹² As a very wide-ranging and expansive notion, it embraces such social elements as language, religion, art, education, politics and customs.¹³ Those societal constituents have both a creative and relational dimension: they integrate the individuals into the community and permit them to communicate within the society, to develop their creative potential as well and to maintain a peaceful, and in no way malicious, dialogue with different cultures.¹⁴ The coalition and co-operation of cultures is normatively supported by Article 6, paragraph 1 of the Framework Convention as an abstract ideal which is to be implemented by quite concrete measures.

2. The Web of Relations Among the Preamble as Well as the Text of the Framework Convention and Other Related Instruments

The preamble to the Framework Convention points out subtle normative connections with other international treaties and non-binding political documents having the same general objective: the international protection of human rights. The Framework Convention, however, governs exclusively the individual rights and freedoms of persons belonging to national minorities nevertheless it leaves room for enacting collective rights on the national level. The conventional protective shield extends over members of national minorities, thus, the instrument should be classified amongst special human rights treaties.¹⁵ First and foremost, the relation of the Framework Convention to the European Convention on Human Rights and the Protocols thereto is, however, not guided by the two rules: lex specialis derogat legi generali and lex posterior derogat priori.¹⁶ Although the two norms of logic ought to be considered as general rules of law, they cannot be applied to resolve the relation between the Framework Convention and the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, because the special instrument contains in its Article 23 a provision concerning application and interpretation, which provides that under no circumstances can the Framework Convention modify the rights and freedoms safeguarded in the European Convention on Human Rights.¹⁷ To this effect, the aforementioned provision imposes a categorical ban. The rights and freedoms flowing from the "programmatic" principles enshrined in the Framework Convention have to be interpreted in conformity with the corresponding provisions of the European Convention.¹⁸ The clause markedly goes beyond the material scope of the general rule regulating the mode of systematic interpretation.¹⁹ Nevertheless, the clause safeguards the necessary cohesion and harmony in application of both instruments and prevents any divergence from the standard established by the European Convention and actively shaped by the European Court of Human Rights.

Both instruments are united by the common denominator of the individual conceptualisation of human rights protection. However, both of them consistently apply a different method of regulation. The Framework Convention contains principles from which flow obligations directly addressed to the states. The drafters of the Framework Convention deliberately adopted very similar "rhetorical" means. Its provisions generally start with phrases "the Parties undertake to recognise", "the Parties undertake to adopt", "the Parties undertake to guarantee", "the Parties undertake to promote", etc. The above-mentioned phraseology eloquently designates states as addressees of such international commitments. Those addressees, however, cannot be mere abstract units.²⁰ According to the Framework Convention, the fulfilment of treaty obligations shall be undertaken by legislative and executive bodies of the state machinery. On the other hand, the rights and freedoms deduced from the programmatic principles of the Framework Convention cannot be, with perhaps some exceptions, directly enjoyed by members of national minority communities, and such persons may not directly invoke them before national courts. The uninterchangeable nature of these provisions is also emphasised in the last recital of the preamble to the Framework Convention.²¹

The non-self-executing character of the conventional provisions does not categorically hamper the reception of the Framework Convention by the contracting parties in their domestic legal system either by a vehicle of transformation, incorporation or adaptation. Beyond doubt, this legal operation is their exclusive domestic affair. By definition, an act of transformation would not constitute the due legal effect in the national legal order.²² And incorporation could barely establish the rights and freedoms directly enjoyed by members of national minorities, since the provisions are not designed for such an effect in most cases.²³

Thus, adaptation seems to be the most practical method of reception of the conventional commitments into national law. In this case, the law-maker may utilise a space in the sphere of his legislative activities for fulfilling programme-type provisions and the letter and spirit of the Framework Convention. Consequently, adaptation allows for the reflection of various social conditions of life of distinct national minorities and careful consideration of such material sources.

The legal construction of the Framework Convention is of specific nature. The principles set out in the Framework Convention mostly impose obligations of result. As an immanent feature of those duties, permission should be identified. Obligations of result give the parties sufficient discretion as regards the choice of means and methods to achieve the objective established.²⁴ This mode of obligation allows an assessment of characteristic situation of national minorities in the state and an adjustment of legislative and executive measures according to the situation.²⁵ Only a small part of commitments of the Framework Convention requires a particular way of conduct consisting in acts or omission on the part of state bodies.

3. Membership in a National Minority as Free Choice

There is one provision enshrined in the Framework Convention that, from its normative structure, should be regarded as self-executing, that is, a rule which does not require any act of legislation and which may be directly enjoyed by its beneficiaries. Article 3, paragraph 1 guarantees a person belonging to a national minority the right to choose to be treated or not to be treated as such. From this provision, the right to self-identification can be deduced in favour of members of national communities.

The requirement of autonomous choice is already contained in the Document of the Copenhagen Meeting of the Conference on the Human Dimension held on 29 June 1990.²⁶ Its paragraph 32 provides that "to belong to a national minority is a matter of a person's individual choice and no disadvantage may arise from the exercise of such choice". In addition, the preamble to the Framework Convention makes an explicit reference to the Copenhagen Document.

On 4 March 1991, one year after the Copenhagen Meeting, the Venice Commission submitted the Proposal for a European Convention for the Protection of Minorities. Article 2, paragraph 3 thereof reasonably reiterates that "to belong to a national minority shall be a matter of individual choice and no disadvantage may arise from the exercise of such choice".

The prologue of the Framework Convention also quotes certain United Nations conventions and declarations. Of course, the provision from the 1966 International Covenant on Civil and Political Rights governing the rights of members of ethnic, religious and linguistic minorities, is silent on the question of individual choice.²⁷ Neither is the subjective right subjected to analysis by the general commentary to Article 27, elaborated by the Human Rights Committee in 1994.²⁸

Nevertheless, the Committee at least touched upon this pivotal and sensitive issue in the Lovelace case.²⁹

The 1989 Convention on the Rights of the Child, which plainly prefers a purely individual conceptualisation of human rights (as is clear from its title), takes as its predominant model the International Covenant on Civil and Political Rights. Article 30 of the Convention clearly concerns children belonging to ethnic, religious or linguistic minorities. However, the provision mentions expressis verbis children of indigenous origin³⁰, which is not perhaps the case for the International Covenant on Civil and Political Rights. A systematic reading of the Convention on the Rights of the Child further reveals that, under Article 8, paragraph 1, the child enjoys the right to preserve his or her identity. The latter expression might imply the ethnic, cultural, linguistic or religious identity of the child even though the provision only lists three elements of such identity - nationality, name and family relations. The counterpart of the right of each child is the correlative duty of the state to provide assistance and protection to a child that is unlawfully deprived of his identity, in whole or in part. In this context, of course, a broad interpretation of the above-mentioned provision appears to be impossible.

Furthermore, on 1 February 1993 the Parliamentary Assembly of the Council of Europe adopted its Recommendation 1201 which contains the text of a draft for an additional protocol to the European Convention on Human Rights. Article 2, paragraph 1 confirms that "membership of national minority shall be a matter of free personal choice". This positive formula is supplemented by a negative clause: "[N]o disadvantage shall result from the choice or the renunciation of such membership". Otherwise, the proposal does not lay down this choice as the right of a person belonging to a national minority, but such a right can be derived from the wording. Clearly speaking, the object of the right of a minority member is free choice. The term, "free", may be considered as signifying the non-intervention of other persons (the state as well as individuals) into the choice. In other words, the expression may mean a categorical prohibition of any restriction upon his or her choice of identity.³¹ Individual self-determination in respect of a life plan can also be understood as an indispensable aspect of the meaning of the term, "free".³² Nevertheless, the next adjective grants the right exclusively to a person that intrinsically belong to a minority community. Such an individual is designated in existential philosophy as "his own choice".³³ Unquestionably, subjective choice is inseparably linked to objective criteria relevant to personal identity.³⁴ In no case can the choice be a wild act of an individual deprived of the essential ground of his cultural identity. The choice stems from the personal realisation of a cultural identity.³⁵

The particular rule, containing only a disposition, is incorporated into the general principles of the draft. In addition, it occupies a decisive place in the structure of the section. The formal configuration of the draft underlines the central significance of the principle. The enjoyment of rights given to persons belonging to national minorities depends upon personal choice. That means a self-definition and self-identification of the individual by means of such choice.³⁶

The Framework Convention only stipulates the right of choice as a human right belonging to members of a national minority. By so doing, the instrument establishes relations to constitutions and statutory provisions of contracting states of the Council of Europe.

For example, Article 3, paragraph 2 of the Czech Charter of Fundamental Rights and Freedoms safeguards the right of an individual freely to choose his own nationality.³⁷ The concept nationality in the context of the Charter definitely cannot be comprehended as citizenship or a genuine link to the state. Rather, the meaning may include national and racial elements as well.³⁸ According to a commentary to the Charter, the choice of nationality need not presuppose the respect for "brutal" objective facts which substantively determine nationality, such as the nationality of one's parents, one's language, colour, tribe membership, race, etc.³⁹ The particular conception of choice consists exclusively in an ultimate subjective decision, not resting on any objective basis.

A comparative interpretation demonstrates that the Charter of Fundamental Rights and Freedoms prefers a very liberal concept of such choice, whereas the Framework Convention, in contrast, attempts to strike a stable and rational balance between subjective and objective aspects of personal decision-making. The personal ambit of the Charter provision recognises any individual as a beneficiary of such a right. However, the Framework Convention ascribes the right to self-identification only to persons belonging to national minorities. The second sentence of Article 3, paragraph 2 of the Charter imposes an absolute ban on state organs and third persons intervening into a person's decisions concerning nationality, as well as the prohibition of all forms of pressure aiming at denationalisation. The goal of this normative modus is to prevent forced assimilation of an individual or collective of persons. The imposition of this constitutional prohibition results from historical tradition and the experience of the National Revival, and reflects Section 134 of the 1920 Constitutional Charter (which is no longer in force).

A different historical experience is mirrored in the 1993 Hungarian Act on the rights of national and ethnic minorities. The right of choice is classified amongst individual rights of persons belonging to national or ethnic groups.⁴⁰ The first sentence of Article 7 of the Law states as follows: "[T]he acceptance and recognition of the fact that a person belongs to a national minority or an ethnic group is the exclusive and inalienable right of the individual." In a classic formulation, the Act postulates the right of choice as exclusive and inalienable. Indeed, the right of choice is granted to the autonomous individual. Nevertheless, this individual empowerment is systematically coupled with the phenomenon of collective self-identification, which is presumed in Article 61, paragraph 2 of the Act. This provision requires the submission of a petition signed by 1,000 voters declaring themselves as members of a minority. At this crucial point, however, the free choice of the individual is confronted with the sovereignty of the law. Such a legal situation also sheds the new radiant light upon the relationship between a majority and minorities, namely by means of the minority law.

The inalienable character of the right of choice is manifested by the legal impossibility of transferring this empowerment, by any act, to another person. Article 7, paragraph 1 contains yet another significant legal formula. This provision states that nobody is obliged to declare to which minority he or she belongs. Article 7, paragraph 1 reveals, inter alia, that a person's freedom to choose his or her own identity is a matter of discretion. Clearly noted, one of main and distinctive features of human rights is discretionary exercise thereof.⁴¹ The right of choice certainly cannot be separated from this specific sphere which means that the individual may, but need not, exercise his right. Nonetheless another aspect of the exercise of the right, however, becomes more substantial in the context of the law. Pursuant to Article 8, the declaration concerning membership in a minority group is considered to be very sensitive personal data.⁴² In reaction to bitter historical experience, the act openly prevents an abuse of personal data.

The Act is properly structured in relation to the right of choice. Article 7, paragraph 2 reflects yet another fact, namely that the individual understood as "one's own choice" need not have only one national and ethnic identity. This provision does not preclude the individual from having double or multiple vital bond with various ethnic or national groups. However, double identity must result from objective facts and, in this context, such ties to several minority groups would seem to be rather exceptional.

Article 3, paragraph 1 of the Framework Convention has a wide range of practical consequences. Its is entirely up to a person belonging to a national minority to decide whether he or she wishes to come under the protection flowing from the principles of the Framework Convention. In relation to the Framework Convention, a person belonging to a national minority, certainly together with further members of the minority, continues always to hold his fate in his own hands. Affiliation with a minority group cannot be made to depend upon an act of authority on the part of state organs. Such a choice by the individual is conditioned solely and exclusively by cultural facts. The existence of a national minority as a cohesive community of individuals is not in the sense of human rights, conditioned on the exercise of state power. The existence of a minority is factual condition, not a legal one.

4. Epilogue: Some Conclusions

1. The enjoyment of rights flowing from the principles of the Framework Convention by an individual belonging to a national minority is the result of his or her individual choice without the interference of the state authority or third persons into this decision on. It must be admitted that the option is an autonomous act in positive terms, since by the deed of choice, the individual decides together with others on the actual existence of the minority as well.

2. By definition, individual choice cannot have a "wild" character, as cultural facts are its determinants. Furthermore, the act of making an autonomous decision expresses consciousness of belonging to a national community. This option manifests an inner decision of self-identification as well. The character of the choice is, however, not only "introvert", because it is oriented both inside and outside the national minority. By his choice, the individual expresses his existential relation to the minority, as well as to the majority.

3. A person's choice can never be final. No general rule of res iudicata applies to the choice, because the life of man is, in fact, based on freedom. Thus, all that is definitive is the ongoing power of choice.

4. By means of a choice, a member of a national minority can voluntarily assimilate to the majority, by which he also expresses his new relationship to the minority, which in any case can always be changed again in the future.

   The choice limits state power and perhaps also its dictating paternalism. It is not the State which authoritatively designates the existence of a national minority, it is rather the group members who create, maintain and develop such a group.

Footnotes

¹See F. Ost, The Original Canons of Interpretation of the European Court of Human Rights. In: M. Delmas-Marty (ed.), The European Convention for the Protection of Human Rights: International Protection Versus National Restrictions. Dordrecht-Boston-London, 1992, pp. 290 - 292.

²I. M. Sinclair, The Vienna Convention on the Law of Treaties. Manchester, 1973, pp. 74-75.

³Framework Convention for the Protection of National Minorities and Explanatory Report. Strasbourg, 1995, p. 13.

⁴R. Hofmann, Durchsetzung der Staatenverpflichtungen aus der Rahmenkonvention des Europarats zum Schutz nationaler Minderheiten. In: P. Sturma (ed.), Implementation of Human Rights and International Control Mechanism. Prague, 1999, pp. 45 - 48.

⁵J. Malenovsky, Obecne problemy pravni ochrany mensin. Casopis pro pravni vedu a praxi, 1994, No. I, p. 10.

⁶G. A. van der Wal , The Individualism of Human Rights. Rechtsfilosofie und Rechtstheorie. Journal for Legal Philosophy and Jurisprudence, 1989, No. 3, p. 195.

⁷M. Strasser, Obraz cloveka vcasne diskusi o lidskych pravech. Casopis pro pravni vedu a praxi, 1999, No. IV, pp. 318 - 319.

⁸H. J. Steiner - Ph. Alston, International Human Rights in Context. Law, Politics, Morals. Oxford, 1996, p. 994.

⁹M. Galenkamp, Individualism versus Colectivism: the Concept of Collective Rights. Rotterdam, 1993, pp. 72 - 73.

¹⁰Supra note 3, p. 26.

¹¹Supra note 8, p. 1000.

¹²"[C]ulture is a dynamic values system of learned elements, with assumptions, conventions, beliefs and rules permitting members of a group to relate to each other and to the world, to communicate and to develop their creative potential." A. Dundes Renteln, Cultural Bias in International Law. ASIL Proceedings of the 92nd Annual Meeting, 1998, p. 233.

¹³Supra note 12, p. 33.

¹⁴H. Hannum, Minorities, Indigenous Peoples and Self - Determination. In: L. Henkin - J. L. Hargrove, Human Rights: An Agenda for the Next Century. Washington, 1994, pp. 8 - 9.

¹⁵R. Hofmann, Implementing States Obligations under the Council of Europe Framework Convention for the Protection of National Minorities, Europa Ethnicea, No.1-2, 1999, pp. 1-2.

¹⁶C. Cepelka, Pravo mezinarodnich smluv. Videnska umluva o smluvnim pravu (1969) sarem. Prague, 1999, pp. 50 - 54.

¹⁷Supra note 3, p. 39.

¹⁸Supra note 3, p. 39.

¹⁹Article 31, paragraph 3 of the 1969 Vienna Convention on the Law of Treaties.

²⁰Article 1 of the Montevideo Convention on the Rights and Duties of States. LNTS, 165, p. 19.

²¹The last recital of the preamble to the Framework Convention reads as follows: "[B]eing determined to implement the principles set out in this framework Convention through national legislation and appropriate governmental policies..."

²²J. Malenovsky, Mezinarodni pravo verejne. Obecna cast. Brno, 1997, p. 64.

²³J. Malenovsky, Pripad prakticke aplikace clanku 10 Ustavy Ceske republiky: Ramcova umluva o ochrane prav narodnostnich mensin. Pravnik, No. 9, 1995, pp.856 - 859.

²⁴Report of the International Law Commission on the work of its twenty-ninth session, 9 May - 29 July 1977, New York, 1977, pp. 21 - 65.

²⁵D. Jilek, Kratke zamysleni nad kontrolnim mechanismem Ramcove umluvy o ochrane narodnostnich mensin. In: P. Sturma (ed.) Implementace lidskych prav a mezinarodni kontrolni mechanismy. Implementaiton of Human Rights and International Control Mechanism. Prague, 1999, pp. 54 - 55.

²⁶H.Ch. Scheu, Ochrana narodnostnich mensin podle mezinarodniho prava. Prague, 1998, pp. 36 - 37.

²⁷G. Alfredsson - A. de Zayas, Minority Rights: Protection by the United Nations. Human Rights Law Journal, No. 1-2, 1993, pp. 1 - 3.

²⁸General Comment by the Human Rights Committee on Article 27 of the International Covenant on Civil and Political Rights, UN 1994. In: G. Alfredsson - G. Melander, A Compilation of Minority Rights Standards. A Selection of Texts from International and Regional Human Rights Instruments and other Documents. Lund, 1997, pp. 69 - 73.

²⁹No. 24/1977 Sandra Lovelace versus Canada.

³⁰R. Hodgkin - P. Newell, Implementation Handbook for the Convention on the Rights of the Child. Geneva, 1998, pp. 407 - 414.

³¹I. Berlin, Dva pojmy slobody. In: O svobode a spravedlivosti. Bratislava, 1993, pp. 31 - 32.

³²Ch. Taylor, Omyl negativni svobody. Filosoficky casopis, 1995, No. 5, pp. 798.

³³Supra note 7, p. 319.

³⁴Supra note 3, p. 20.

³⁵Paragraph 5.2 of the General Comment by the Human Rights Committee on Article 27 of the International Covenant on Civil and Political Rights, UN 1994.

³⁶M.A.M. Estebanez - K. Gal, Implementing the Framework Convention for the Protection of National Minorities. Flensburg, 1999, p. 20.

³⁷V. Pavlicek, Ustava a ustavni rad Ceske republiky. Komentar. Pravo a svoboda. Prague, 1999, pp. 54 - 55.

³⁸Prirucka procedur a kriterii pro priznani postaveni uprchlika podle Konvence z1951 a Protokolu zroku 1967 o postaveni uprchliku (cesky preklad). Geneva, 1979, p.

³⁹Supra note 37, pp. 54 - 56.

⁴⁰Chapter 3 covers collective minority rights.

⁴¹J. Donnelly, International Human Rights. Boulder - San Francisco - Oxford, 1993, p. 20.

⁴²Hungarian Helsinki Committee, The Situation of Minorities in Hungary. Budapest, 1999, p. 6.