Teleki László Foundation Institute for Central European Studies

Budapest 1996

The following thoughts rely upon the general assumption that the prerequisite of a successful conflict-mediation and settlement is the political will of the parties involved to negotiate. The contemplation of possible ways and means to bring parties to the negotiation table, however, is not part of this study. The international regional institutions referred to have no means of direct enforcement of their instruments upon their members. The vagueness of the principles on ethnic conflict management and resolution enshrined in these documents and the weakness of the relevant mechanisms designed to deal with such conflicts is due among others to the fact that in this region ethnic conflicts historically have engaged international politics in various unfortunate forms. Many states have considered in the 1920s the signing of minority protection treaties annexed to the system of peace treaties which ended the first world war as an unjustified pressure and intervention in their internal affairs by the major players. The mechanisms worked out under the auspices of the League of Nations to deal with minority complains proved to be ineffective. The abuse of the minority question by Nazi Germany in the 1930s, the “arbitration” processes led by the same Germany in 1938 and 1940 are part of a bitter European experience in this regard, and very much taken into consideration during any attempt to progress on regional level in the codification of the minority rights and conflict mediation and resolution involving national minorities.

It is not surprising therefore that the political discourse in Eastern and Central Europe on the national question, including the situation of national minorities in the early 90s was mostly focused on past oppression of certain nations and ethnic groups by their present neighbours, once being in a dominant position. This position has ended up from case to case respectively after 1920, 1945 or even 1989, and the former strong have usually related minorities on the present strong territory. There was and is still much talk in certain countries on collective guiltiness for the sins of the past of those belonging ethnically to the previously strong, regardless to their actual citizenship, confused historical rights on land, retribution and cultural revitalisation of the former weak, who are the present strong. The very idea of making justice is excluded from the outset in all regards - ironically enough, far right and extremist groups include usually in their political agenda the idea of “national justice”. The times when it was fashionable to speak about national freedom together with ethnic self affirmation, (impregnated otherwise by a great deal of romanticism á la belle époque) are indeed over.

The mainstream of the present European political discourse indicates at the same breath as long term endeavours the unification of Europe and the respect of national sovereignties and identities, associated with the idea of multiculturalism. Respect of the national, ethnic, linguistic, religious and cultural identity of groups living in minority and the protection of their mere existence tend to be considered as having the same grade of priority in the activity of regional organisations. Nevertheless, while in the early 90s the protection of national minorities and ethnic conflict prevention was very much on the agenda of the regional international organisations, the signature of The Pact on Stability in Europe (PSE) in Paris on March 20-21, 1995 and the subsequent developments suggest that the question of national and ethnic minorities is becoming an issue to be dealt with in the framework of bilateral relations between states. To be sure: the parties primarily concerned in this case are those Eastern and Central European countries which signed framework agreements with the European Union (EU) in relation with future accession to the Union. In principle, they risk in case of non-compliance to destroy the perspectives of a full membership. The governments of these states have also signed the Partnership for Peace with NATO (under the same hypothetical “sanction” regarding future NATO- membership, excepting obviously Austria and Sweden) which provides for the signatory parties inter alia to refrain from the threat or use of force against the territorial integrity or political independence of any state, to respect existing borders and to settle disputes by peaceful means. Despite all these developments the dangers of new intra- and inter-state conflicts due to ethnic animosities combined with other factors, mainly of a political nature are far from being a phenomena of the past. Let us remind in this regard only the very tense situation developed in Kosovo, the Yugoslav Federation in mid 1996, or the extremely dangerous military crisis occurred between Greece and Turkey earlier this year.

The European regional institutions, such as the CE and the OSCE in charge among others, of conflict prevention, confidence building and conflict mediation at present time lack the necessary power (obviously, since they are organisations created and maintained by sovereign and national governments equal under international law) to deal effectively with “hot” situations, and even in cases when the possibilities would be open for a fruitful involvement, there is a chronic shortage of financial resources, accompanied by political vacillation which is going to become nearly endemic. The Yugoslav, and even the Chechen case (although unanimously considered by policy makers as an internal affair of the Russian Federation) are instances of failures not easy to forget. At the same time, the complacency of the major players of the OSCE and the EU regarding manifest and gross violations of human rights in countries which are candidates to the NATO and the EU, or tolerating certain CE member-states not to comply fully with the obligations unilaterally assumed by these actors upon accession, or remaining silent regarding the signature of bilateral treaties containing minority clauses far below existing international standards in this domain - the effects of which will be felt in the future.

x x x

In the recent developments regarding the protection of persons belonging to national minorities in the Council of Europe (CE) and the Conference on Security and Cooperation in Europe (CSCE) after 1989 two periods can be distinguished: a) between 1990 and the Summer of 1992 almost 30 month of previously unseen development of the international soft-law concerning the protection of the rights of persons belonging to national minorities, and b) after 1992 - these years can be characterised by an increased importance given to the prevention, mediation and resolution of ethnic conflicts vis-a-vis to the protection of minority rights. Both periods are characterised by several ambiguities in approach, self contradictions regarding the premises and little effective practical results. This is largely due to the fact that the situation of national or ethnic, linguistic and religious minorities in Eastern and Central Europe is in many respects different that of in the rest of Europe. Moreover, in Eastern and Central Europe in every country the situation of communities or groups of these types is varying with regard to their number, social mobility and stratification, political awareness etc. Some are well organised politically. Others are not in a situation to create political organisations, either because of low number or simply they limit themselves to the establishment of cultural institutions or civic associations. There are also significant differences regarding the approach of different European governments concerning minority matters. The efforts made so far toward the protection of national minorities within the CE and the CSCE, later on the OSCE has contributed without any doubt to the followings:

- the spectacular return of the problem of minorities to the international agenda

- the recognition of the minority question in Europe as a matter of international concern

- the articulation in non-government circles of the idea that the problem is an internal affair of the states concerned, in a sense that a lasting solution can be reached only if based on a broad, internal social and political deal, a genuine new social and political Compact, regarding the peaceful coexistence and co-operation between the ethnic majority and politically active national or ethnic, religious and linguistic minorities.

The author of this paper is of the opinion that a real chance for regional international institutions in performing an effective role in ethnic confiict prevention, confidence building and mediation would be the catalyst role assumed in the course of a genuine internal political dialogue followed by an agreement between majority and minority (minorities), including the international monitoring of the implementation of such deals, in accordance with the principles and provisions of various international instruments being already in force.

1. General aspects

National feelings as factors playing sometimes a decisive impact on politics in Europe have a long history. Most Europeans share the need to belong to somewhere, beyond family ties and beyond small, parochial, regional or professional communities. During the past 200 years ethnicity increasingly has become a guiding point to these needs. The creation of the European nation-states speeded up the emancipation of larger ethnic groups as politically organised, independent and sovereign communities. The nation became a focal point for politics, and the control over the state meant externally political independence of the nation, while internally it was conceived as a rationally organised government under the rule of law. The (legal) subject is the citizen, entitled in his - and in many countries after a period, in her - individual capacity with more and more rights and freedoms. The politically organised nation and mutatis mutandis the state - in case of a nation-state - is the only titulaire of decisions vitally linked with the existence or oriented toward the preservation of the group as such, as well as its ethnic, national, linguistic, cultural or even religious identity. Sub-divisions along other group identities, different of that of the majority ethnic group in the framework of the classic model are not possible, because such differentiation would endanger in the last instance the mere existence of the titulaire- nation and its state. Although in Western Europe this scheme does not apply any more as rigorous as described, it came again on the political agenda in Eastem and Central Europe after 1989, due to several reasons. The most important ones are the political considerations. The conviction of many Eastern Europeans that politics is an autonomous sphere of action and at the same time something dubious but nevertheless an effective, if not omnipotent tool of the social fabric, was filtered trough the experience of communist totalitarianism. During the past decades the word “political” emanated throughout the region a mysterious and frightening atmosphere. After 1989 suddenly the “political” became available for everybody: dozens of political parties and movements showed up over night and ran in free elections for power. National independence after the decades of Soviet domination and geopolitical defencelessness and threats has been achieved without bloodshed excepting the territory of former Socialist Yugoslavia. The totalitarian regimes collapsed in a few months. There is a paradox in this extraordinary disintegration of a world political system accompanied by a mass-availability of politics in this region: it was not followed by an ideological age, as it would have been reasonably expected in this classic homeland of ideologies. Modern Western ideologies have gain little terrain in the newly independent Eastern European countries, moreover, the political parties winning election have consciously avoided to commit themselves with a clear and out-spoken political ideology, even in their names in most of cases any reference to words like liberal, socialist, Christian-democrat were not included, or if mentioned were linked with additional qualifiers. Although the above mentioned burden has not been dropped the behaviour of people continued to be intensively a politically guided behaviour, which meant among others that hierarchy was regarded not only as a principle of organising society but society was perceived also as a hierarchy of symbols. Overlooking this aspect, many extemal observers were shocked witnessing sharp debates or even clashes around the question: which national symbols should be protected by the law and which should be not given legal protection, or even their use should be declared unlawful. The issue of public inscriptions in minority languages became again a permanent source of tension in certain countries of the region. Laws protecting the language of the majority by declaring it the only official state-language were enacted in a number of countries. In the first months after independence economic matters were almost forgotten, despite warnings expressed by several experts, not only for the euphoria of the first weeks of independence and liberty, but also for the wide conviction that after hyper-centralised communist planning anything but that will work better without any specific further explanation or action. National feelings, even the most nationalistic ones could be expressed publicly, without any limitation, but not free of manipulation, as it was proved later on. And at this point we should stop for a while. After 1989 in Eastern and Central Europe nationalism, as the ideology of the nation-state as a Republic had little or even lacked any mass influence. This statement is not contradicted by the fact that the public debate was and in many places is still seriously affected by nationalism, anti-Semitism, chauvinism and even racism. Obviously, it would be completely wrong to think that the peoples of Eastern Europe are nationalists or racists or xenophobic. All those political groups and politicians who abused and manipulated national feelings and ethnic or racial belonging in order to come to power can be exactly located on the political map and individually identified in each of the countries concemed. On the other hand, however, what worked in those countries where the situation is destabilised because of conflicts with a pronounced ethnic aspect was a vision of the nation-state legitimated solely on the factual, numerical majority of the dominant ethnic group, whose self affirmation after decades of external suppression had nothing strange or immoral in it for the citizens of the countries concerned. The logic of the morally justified and politically reasonable national self-affirmation and self-determination as a democratic principle was not applied internally, regarding the relations between different ethnic groups. Unfortunately, the ideological vacuum was filled up by public discourse like: “we are the majority, this is our country, our land”, and this was considered as sufficient legitimacy for the then-existing structure of the state and its politics. In fact however, the syntagma of the “national state” can be interpreted in a very narrow sense, that is a particular state, and its territory is the property of the majority ethnic group, which historically gives the name of the country. In those states where the idea of the “national state” was included in the constitution, its implementation is being realised in practice in different ways. It appears that in certain cases this implementation is based on a common central element, which consists in a particular meaning of ethnopolitics. This paper cannot provide a detailed analysis of the development of national policies in Eastern Europe, perceived initially as a promotion of national culture into an interpretation and practice of ethnopolitics as the positive discrimination of the majority ethnic group in the form of an afftrmative action taken by the state. The events of the past two years show that this interpretation of ethnopolitics in parallel with increasing social tensions and other hardships challenging the societies of this region is gaining now more and more terrain. We witnessed in Bosnia and Croatia where the conception according to which the state and its territory together with the pieces of land on which members of an ethnic group live or used to live on in the past are the properties of that particular ethnic group is leading to. What we cannot see very clearly the effects on long run of this “landlord” approach upon the majorities' society as a political community, beyond the consequences for ethnic and other minorities. A spectacular example for this “landlord” approach is the legaily sanctioned interdiction in several states of the region of public signs and inscriptions, including the names of localities and geographical orientation points in minority languages.

It was necessary to make this short comment in order to give a background to our opening remarks concerning the problems encountered by European regional organisations in dealing with minority rights and ethnic conflicts.

3. Protecting minority rights

This chapter contains examples taken from the activity of the CE and CSCE, (and OSCE after 1994) illustrating those sensitive issues which have not been resolved by these organisations due to differences in approach of the member states. A compromise, however was reached in almost all these cases, and the experience shows that in some of them a progress was achieved on this basis, but not in others. Generally, it can be stated that the problem of the protection of minority rights on European level is not solved at this stage. At the same time, after 1989, as it was mentioned the public debate on this issue has been put in a completely different light than before. The outcome, as it stands now, is far from satisfying the interested parties, governments or representatives of minorities and in addition, as it is described further, gives room to previously unexpected interpretations. Generally, minority representatives find the present European network of soft-law instruments on minority rights not satisfying their expectations. Governments, however, consider that the progress on this level was too fast, and due to objective reasons they are not in a position to implement fully all the provisions contained in these instruments.

From the perspective of the theme of this paper it is important to underline that a new type of political debate has occurred in the past few years in this region in relation to international instruments on minority rights. Its focus is on the interpretation of different relevant provisions contained in CE and CSCE, respectively OSCE documents. The debate has been developed in national parliaments between minority representatives and majority leaders, regardless to ideological orientations, between governments of states having on their territories related minorities, and the CE and different OSCE bodies and fora. At present stage, the nature of these debates is estimated not to open perspectives for positive contributions to the question of minority rights protection.

The 1949 Strasbourg inaugurated Council of Europe (CE) by the UK, France, Belgium, Holland and Luxembourg today is the highest European body dealing with human rights. In February 1995 the number of member states with the accession of Latvia reached 33, including some of the former socialist countries of Eastern and Central Europe. The European Commission and the European Court of Human Rights created by the European Convention on Human Rights (ECHR- signed in 1950 and entered into force in 1953) have a quiet limited practice in dealing with minority questions, due in part to the fact that it accepts only complains by individuals or in certain cases by member States. While minority problems are usually collective matters, the ECHR, like the relevant UN documents, does not recognise collective rights for minorities. This does not mean that different bodies of the CE did not touch the problem. It was first raised in a 1949 report of the Committee on Legal and Administrative Questions of the Consultative Assembly of the CE “on the establishment of a collective guarantee of essential freedoms and fundamental rights”, and in which the Committee recognised the importance of the “problem of the wider protection of the rights of national minorities.” Following other similar reports in 1950, 1959 and 1961, the Assembly Recommendation 285 on the rights of national minorities recommended the adoption of an additional Protocol to the ECHR “designed to guarantee to national minorities certain rights not covered by the Convention and its First Protocol.” The Committee of Ministers, the highest decision making body of the CE instructed during its 99th meeting in 1961 the Committee of Experts on Human Rights to consider whether it would be possible to include in the Second Protocol to the ECHR an article designated to safeguard certain rights for national minorities not covered by the Convention and its First Protocol. The Committee of Experts on Human Rights in a report issued at Strasbourg on 15 November 1973 concluded finally that: “from a legal point of view there is no special need to make the rights of minorities the subject of a further protocol to the European Convention. If, however, for other reasons, protection of minorities by a special protocol to the European Convention was considered advisable, there appears to be no overriding obstacle of a legal character to prevent this from being done.” In January 1995 the CAHMIN started the considerations on drafting a new additional Protocol to the ECHR on individual rights in the field of culture, with interest for persons belonging to national minorities. The way was long until reaching this stage and the work has not been completed yet. Following a long break after 1973, the Committee of Ministers of the CE adopted on 22 June 1992 at its 478th meeting the European Charter for Regional or Minority Languages (open for signature on 2 October 1992). The main goal of this document is considered to be “the protection of the historical regional or minority languages of Europe, some of which are in danger of eventual extinction”. Therefore the Charter, subject of signature and ratifcation, that is, in principle a legally binding international instrument, does not contain any provision on minorities, but as it attempts to give an indirect protection to minority groups and persons belonging to them through “language protection” and “encouragement” is widely recognised. Perhaps this is the reason why only Norway, Finland and Hungary have deposed the instruments of ratification of the Charter so far. Some member states, like France, made unofficially public that would not even sign this document. In the meantime, the Parliamentary Assembly of the CE was more than active, if compared with the so called governmental sphere (the Committee of Ministers and its subsequent bodies) and issued several recommendations on the rights of national minorities. The latest, Recommendation 1201/1993 on an additional protocol on the rights of national minorities to the ECHR in article 11 provided for instance the following: “In regions where they are in a majority the persons belonging to a national minority shall have the right to have at their disposal appropriate local or autonomous authorities or to have a special status, matching the different historical and territorial situation and in accordance with the domestic legislation of the state.” These documents are not legally binding. They serve as a constant reference for minorities throughout Eastern and Central Europe and among other causes and are one the sources of the political debates mentioned before between various interested parties.

The last result of the codification process is the EC Framework Convention on the Protection of National Minorities, adopted on 10 November 1994 and opened for signature on 1 February 1995. The work started in November 1992 based on a decision by the Ministers' Deputies in May 1992, replaced by a similar decision in March 1993, which assigned terms of reference to the Comité directoire pour les droits de l'homme of the CE (CDDH) in order to propose specific legal standards relating to the protection of national minorities, in accordance with the principle of complementarity of the work of the CE and the CSCE. The summit of the heads of member states held in Vienna on 9 October 1993 concluded with a declaration which (in its appendix II) on national minorities decided inter alia: “To draft with minimum delay a framework convention specifying the principles which contracting States commit themselves to respect, in order to assure the protection of national minorities. This instrument would also be open for signature for non- member States. To begin work on drafting a protocol complementing the European Convention on Human Rights in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities.” In comparing with the language of the 1993 terms of reference, the expression “legal standards” is at this time specified, that is the mandate of the codification body is twofold: to elaborate a framework convention on principles of minority protection and a protocol on individual rights in the field of culture (and not cultural rights as such!), which could be of interest for persons belonging to national minorities. As mentioned, the codification of the second document began in January 1995, therefore is too early to make any comment in this regard.

The Framework Convention on the protection of national minorities, signed on 1 February 1995 by 22 member states from a legal point of view is an instrument of a particular interest. In its 13th preambular paragraph it is stated that member states are resolved through this instrument “to define the principles to be respected and the obligations which flow from them, in order to ensure, in the member States and such other States as may become Parties to the present instrument, the effective protection of national minorities and of the rights and freedoms of persons belonging to those minorities, within the rule of law, respecting the territorial integrity and national sovereignty of states.” The principles defined by the document will be implemented through “national legislation and appropriate government policies”, according to the last preambular paragraph. Indeed, the operative paragraphs are formulated in a very general manner, and “persons belonging to national minorities may exercise the rights and enjoy the freedoms flowing (underlined - GB) from the principles enshrined in the present Convention individually as well as in community with others” (Article 3(2)) The few rights concretely formulated raised intensive debates among experts during the drafting. Some of the experts were of the opinion that rights like the right to manifest his or her religion or belief and to establish religious institutions, organisations and associations, the right to freedom of expression, the use of the minority language, the use of surname and first names in the minority language, or to display signs, inscriptions and other information of a private nature etc. are already covered by the ECHR. The argument was not retained because, as it was stated, the Framework Convention defines some principles orienting state-policies toward minorities, from which arise the obligation for the signatory parties to take or, on the contrary to refrain from taking certain measures regarding the rights and freedoms of persons belonging to minorities. As it is emphasised in the explanatory report to the convention, the last preambular paragraph should be interpreted as indicating that “the provisions of this framework convention are not directly applicable. It is concerned with the law and practice of the Parties in regard to the reception of international treaties in the internal legal order.” (para.29) On the other hand, the statement contained in the first article: “The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such, falls within the scope of international co-operation”, according to the explanatory report “does not confer any competence to interpret the present framework Convention on the organs established by the ECHR”(para.30), that is the Strasbourg based European Commission and the Court of Human Rights. It is clear that the rights mentioned by the convention are not justiciable. Moreover, although according to the same explanatory report, the Framework Convention “is, the first legally binding multilateral instrument devoted to the protection of national minorities in general” (para.10), but “it contains mostly programme-type provisions setting out objective which Parties undertake to pursue. These provisions, which will not be directly applicable, leave the States concerned a measure of discretion in the implementation of the objectives which they have undertaken to achieve, thus enabling them to take particular circumstances into account.”(para.11) The first declarations made after the official ceremony in Strasbourg (1 February 1995) by the ministers of foreign affairs of the signatory states revealed serious contradictions regarding the interpretation of the document. Some government officials were of the opinion that the Framework Convention is a maximum European standard regarding the issue and states are free to decide on the ways of its implementation. A few declarations considered the document only as a new element of a broader European system of minority protection, which should be regarded in its complexity and complementarity of the respective documents. According to this view this system comprises existing universal instruments, like the universal bill of human rights and other conventions related to, as well as soft-law type material issued during the years in the CE (as mentioned) and the CSCE process. The Framework Convention therefore should not be regarded as something which puts into brackets previous commitments on European level and should be interpreted together with them. With regard to the CE, it is worth mentioning finally that the Framework Convention leaves open the question of monitoring. The Committee of Ministers of the CE shall monitor the implementation of the convention by the contracting parties (article 24 (1)). According to article 26: “In evaluating the adequacy of the measures taken by the Parties to give effect to the principles set out in this framework Convention the Committee of Ministers shall be assisted by an advisory committee, the members of which shall have recognised expertise in the field of the protection of national minorities. The composition of this advisory committee and its procedure shall be determined by the Committee of Ministers within a period of one year following the entry into force of this framework Convention.” Until April 1996 the advisory committee was not created.The Helsinki Final document of the CSCE in 1975 stated that “The participating States on whose territory national minorities exist will respect the right of persons belonging to such minorities to equality before the law, will afford them the full opportunity for the actual enjoyment of human rights and fundamental freedoms and will, in this manner, protect their legitimate interests in this sphere.” (Chapter VII of the Declaration on Principles Guiding Relations between Participating States) Since 1975 several other documents containing more or less detailed provisions on the rights of persons belonging to national minorities were adopted in the CSCE process. The most comprehensive statement of principles in this respect is Chapter IV (paragraphs 30 to 40.7) of the final document of the June 1990 Copenhagen Meeting of the Conference of the Human Dimensions of the CSCE. Another important contribution is the Report of the CSCE Meeting of Experts on National Minorities held in Geneva in July 1991, with a substantial co- operation by the Council of Europe and several international human rights non- governmental organisations. Finally, during the 1992 Helsinki Summit of heads of states a particularly important step was made towards minority protection and conflict prevention by the creation of the institution of the CSCE High Commissioner on National Minorities. The final document of this meeting entitled “The Challenges of Change” contains the mandate of the High Commissioner, defining at the same time the expectations of the m.ember states in this regard: “The High Commissioner will act under the aegis of the Council of Senior Officials (of the CSCE) and will thus be an instrument of conflict prevention at the earliest possible stage. The High Commissioner will provide 'early warning' and, as appropriate, 'early action' at the earliest possible stage in regard to tensions involving national minority issues which have not yet developed beyond an early warning stage, but, in the judgement of the High Commissioner, have the potential to develop into a conflict within the CSCE area, affecting peace, stability or relations between participating States, requiring the attention of and action by the Council of Senior Officials.” The actions - mostly of a confidential nature- initiated by the High Commissioner can be carried out only with the consent of all parties involved, including the government concerned. The High Commissioner will not communicate with and will not acknowledge communications from any person or organisation which practices or publicly condones terrorism or violence. From the mandate two conclusions result clearly: a) the High Commissioner is neither dealing with the situation of the rights of national minorities or persons belonging to minorities as a substantial matter nor with what means in practice the “legitimate interest” of such persons in the field of human rights, and b) the High Commissioner's involvement either is not allowed or expires in cases when violence is practised or condoned, including terrorism, that is after the break-up of a conflict. As a result the High Commissioner has had no access to the really hot areas troubled by ethnically rooted conflicts throughout all Europe from the very beginning, including countries affected by terrorism long before 1989. At the same time, the fact that the High Commissioner is not dealing with minority rights as such, but with the ways of implementation or cases of non-implementation or even violation of CSCE commitments and principles, means in practice that he has at his disposal larger possibilities of conflict prevention than other European fora, bound by soft-law type documents. In practice, since 1992 the High Commissioner played a beneficial role in monitoring the situation of Hungarians living in the neighbouring countries of Hungary and of the Russians in certain Baltic states. Many experts and politicians agree that the institution and the activity of the High Commissioner should be largely supported and that he had to be given all the political, moral and logistical support in carrying out his mandate.It is worth mentioning here that in December 1992 the UN General Assembly adopted its declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities, which codification was completed in Geneva one year before, in December 1991. As mentioned, after this date in Europe the emphasise from the codification process of minority rights was removed to conflict prevention and a new spirit regarding the issue of the protection of national minorities.4. Conflict prevention and mediation.The extremely complex and fluid situation of Central and Eastern Europe does not allow for the time being for the elaboration of a consequent theory on the methodology of conflict prevention, mediation and resolution, including conflicts with a marked ethnic determination. What can be assumed at theoretical level is that the first half of the 90s in Eastern and CentraI Europe cannot be described as the era of an ethnic renaissance.

During the past seventy years almost everything imaginable was experienced by people living in this region: the individualist and the collectivist approach, national communist style totalitarian social homogenisation, including cultural nivellation, positive discrimination on affirmative action ground, ethnocracy with the notorious and infamous numerus clausus system, territorial changes, accompanied by exchanges of population etc. And still noting seems to be solved. Above all, the experience shows that the lack of the political will of the concerned parties to co-operate with the international factors in case of armed conflict is definitely making hopeless any action of mediation and resolution of a given conflict at any stage and at any level, global or regional. Even humanitarian efforts were and are in most of the cases successfully undermined by the interested parties, although such actions are in clear violation of international humanitarian law. Generally speaking no action can be undertaken by anyone from outside concerning the conflict itself and the victims without the consent of the parties to the war or at least one of them, in control of the situation in a particular area.Referring only to existing and not all potential situations three cases should be separated:

l. Conflicts, which are in fact debates at the political level, originated from different interests between a minority and the ethnic majority in matters identity preservation. Such conflicts are often due to the rigid refusal of the representatives of the majority even to consider the demands of the minority. Since a politically organised ethnic minority is a structural minority, without any chance to gain the majority of votes in the framework of democratic majority rule, the rigidity of positions of the majority is a determining factor for future perspectives of coexistence. This situation is characteristic for instance for Hungarian communities living out of Hungary and the Roma throughout all Eastern and Central Europe.

2. Conflicts threatening directly the integrity of a given state; when the quest for secession has been openly formulated by the minority and some concrete actions towards this were taken, is clear that a zero sum game like situation has occurred.

For these type of conflicts is not a necessary precondition the existence of a political conflict of as described above. This does not mean that secessionist claims cannot be handled by political means and a successful resolution of the conflict is not possible by these type of means when there is a will for compromise, as it happened in the case of the self proclaimed secessionist Republic of Tiraspol and the Gagauz ethnic group in the Republic of Moldova. Again, if the political will is lacking to begin at all a dialogue, the zero sum game situation will develop.

3. War, which as mentioned, is outside of the scope of this paper.

It is worth mentioning that often social conflicts are confused with ethnic conflicts or regarded as a consequence of them. In most of the cases this approach should be given some more nuance and placed in a different framework, than that of the ethnic conflict resolution. For example the question of the Roma population in most of the countries of the region - excepting Hungary - is regarded by governments as an exclusively social problem without any ethnic aspect. In Hungary however, there was a strong demand from a significant part of the Roma population to be granted the status of a national minority, request which was met by the state through the 1993 act on the rights of national and ethnic minorities. Generally speaking, discrimination, or even atrocities against the Roma, where occurred during the past years in Eastern and Central Europe had ethnic and racial connotations. The distinctions made above can be regrouped taking into account among others the followings: - whether violence, including verbal violence was employed or not before the break-out of the conflict; - the position of parties, i.e. the clear identification of the victims and the perpetrators, and - the position of the kin-state of the minority group is concerned, if it is the case. For instance the Roma were subjected to atrocities in certain countries, that is they are almost in all cases victims of aggression, either as scapegoats for real or just alleged common crimes committed by individuals belonging to their group or as victims of ethnic and raciaI discrimination individually as well as a distinct ethnic group, without the possibility of an appeal to a kin-state. It is worth rnentioning here the idea raised a few years ago, concerning the international recognition of the Roma as a transnational, “European minority”, placed under the direct protection of the existing European institutions and mechanism for the protection of human rights. This idea raises far-reaching problems, and indeed except some very broad- formulated political declarations nothing happened in this direction.It is widely believed in Europe that ethnic questions are security problems of primary importance as well. This opinion has been strengthened by developments in the former Soviet Union and the former Yugoslavia. While not questioning the essence of this statement, a few remarks should be made. The question of national, ethnic, religious or linguistic minorities is indeed a security matter in the cases when: a state would commit aggression against another state or other states, with or without a formal declaration of war claiming persecution of nationally, ethnically, linguistically or religiously related groups by the government concerned, or when armed factions of ethnic groups, including minorities undertake actions motivated by different reasons, for instance self defence. Without these limitations a general security policy approach towards the question of minorities could easily lead to the conclusion that these matters are first of all national security matters, therefore specific administrative means should be used in dealing with, instead of that of seeking for a democratic political dialogue and legislative steps, before events are running out of control.Finally, while underlining again that conflict resolution and mediation in Europe regarding ethnic rooted conflicts have produced little effects despite all efforts made by the international community, it should be observed that the proposals worked out within different international initiatives concerning the settlement of conflict situations, including the those in which of armed clashes occurred or even degenerated in war, went far beyond all existing instruments and international soft-law materials. For instance both the so called 1991 Carrington-plan on the relationship between the states of the former Yugoslavia and the documents of the 1992 London Conference on former Yugoslavia in ethnic matters contain provisions on a broad ethnic autonomy, including territorial autonomy. It would be cynical to state that it is well proved now that if needed, existing international standards could be largely ignored or even broadened when the claims toward ethnic autonomy is backed by the use or the threat of the use of force. Should such a statement be accepted, it can lead to dangerous effects, notwithstanding that appearance - as mentioned - supports that. It would be recommended to undertake a more comprehensive approach into the political background of these conflicts because in some cases what looks like an ethnic conllict in fact is purely a competition for political power or influence by determined interest groups which happen to belong to certain ethnic groups at the same time. As mentioned, it is not proved at all that claims by ethnic groups for culturaI rights or even for a limited, internal self determination lead necessarily to conflict. On the contrary, as the recent case of the Republic of Moldova shows, ethnic conflicts can be tempered significantly or even resolved by the readiness toward a tolerant, generous attitude and open dialogue of the majority and the granting of large group rights to minorities.

5. Conclusions

National minorities are not recognised subjects of international law. In Europe however, they are at this stage actors of international regional relations. Not because any coherent concept was at the origin of such a situation, which undoubtedly is one of the unexpected results of the processes started after 1989, mentioned above. The European framework of soft-law type documents regarding the rights of persons belonging to national minorities and the protection of national minorities is strictly individual-centred, denying any communal aspect of the problem. The mere endeavour from behalf of European international fora regarding the elaboration of a generally applicable and legally binding definition of national minorities as distinct groups in society, volens-nolens is a step forward to the recognition of a legal capacity of these groups. Several scenarios are equally possible at this stage. All European documents after 1989 relevant to the issue contain invariably a noble idea, which is for instance formulated in article 1 of the CE Framework Convention for the Protection of National Minorities of 1994 as follows: “The protection of national minorities and of the rights and persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation.” On the one hand, minorities were and are not represented and operating - like for instance NGO's in the UN system - neither in institutions like the CE or OSCE, nor in initiatives of the type of the preparatory process of the Pact on Stability in Europe. On the other hand, cited international documents prescribe certain obligations to these groups and the persons belonging to them, who are not being formally parties to these instruments. Also there is an increasing demand by several states, mainly from Eastern and Central Europe concerning the necessity of an internationally codified obligation of loyalty due to the state by national minorities and persons belonging to national minorities. It is worth mentioning that no definition of the concept of ethnic loyalty with a meaning beyond the overall obligation of respect of the legal order, i.e. the common obligation of all citizens of a state was advanced so far. Taking into account all these, and in addition:

a) that even soft-law type regulations are developing in the direction of just formulating general principles and then leaving to the governments concerned to translate into practice these principles according to the specific conditions of the given country,

b) taking into account the declaration of the matter as part of the international protection of human rights,

the followings can be estimated. It appears that what certŕin governments in Eastern and Central Europe endeavour - and if the present trend continues this can become reality - it looks strikingly as a new system of perpetual guardianship on a personal basis. Through this guardianship relation states are mandated to define what they understand under minority protection and policy towards minorities, observing a general political and moral obligation, which is valid regarding regional international institutions as well, consisting in the assumption that the “protection of minorities is essential to stability, democratic security and peace in this continent” and to “protect within their respective territories the existence of national minorities.” National minorities are without any hesitation regarded today in Europe as groups with distinctive features in society, but from a legal point of view they are considered only sums of individuals who can act and deserve protection exclusively in their individual capacity. This element turns these government endeavours into a guardianship involving the state, the individual citizen belonging to a national minority and the international institution in charge with monitoring the respect of specific individual rights of these persons, without any possibility of legal enforcement, except the existing mechanism of the Council of Europe for universal human rights, based on individual complaints. It is to be noted that according to the cited Framework Convention, only certain rights and the ethnic, cultural, linguistic and religious identity of the individuals belonging to national minorities deserve protection. In a widely supported view - as mentioned also, the individual rights listed in the Framework Convention are already covered by the European Convention on Human Rights of 1950. It is not hard to imagine a situation in which since certain rights cannot be implemented due to local conditions the only logical alternative for minorities is free will assimilation. A third possibility would be open conflict, with any possible outcome.

The search for effective remedies, beyond this framework it is blocked at the moment by the fact that states are regarding once again group rights and collective guarantees for the protection of national minorities as something threatening their territorial integrity and political unity. Minorities on the other side, consider that the syntagma of the “national state” is a password of enforced assimilation and ethnic discrimination. The confusions between minority ethnic autonomy and collective guarantees for the protection of minorities are not lesser than those between the national sovereignty (understood as the dominance of the majority group) and the sovereignty of the state, as institution constituted by the civil (political) society. Therefore, we underline again that in our opinion any inter-state agreements on minorities, whether on regional or bilateral level could start to work only in the case when a preliminary, internal social and political deal, a genuine “social compact” is achieved by the legitimate and mandated representatives of minority (or. minorities) and the majority. The existing European soft-law, corroborated with the relevant international instruments of the United Nations provides a sufficient basis for these type of “compacts”, which of course may vary from country to country, taking into account:the particular local circumstances. To make this functioning within the particular circumstances of Eastern and Central Europe, together with the generally accepted principles of equality and non-discrimination, it is needed a complex international monitoring and conflict prevention mechanism, in which minority groups, represented by democratically elected representatives, can articulate and defend their interests, in respect of the interests of the majority and in accordance with existing international standards.