This confirms a general insight: that states have to make international policy partly independent for it to work. For the further understanding of this form of governance it is helpful to take the conventional doctrine of the separation of powers or state functions as a reference, but with the modification that these conventional functions be exercised unconventionally in a context that is not institutionalized. Accordingly, the legislative function is allocated to diverse institutions.
The normative foundational legislative act of this governance is the EU Treaty, more precisely the criteria for accession to the European Union of Article O TEU, with its initially unwritten substantive criteria that, since Amsterdam, have been set out in Article 6 1 TEU. A first stage of concretion takes place, now inclusively, through the Framework Convention for the Protection of National Minorities, elaborated by the Council of Europe in — Of specific importance is the OSCE soft law instrument of General Recommendations; the preponderance of the OSCE can be explained by the fact that the transformation countries have participated from the beginning in this organization.
This participation fosters the legitimacy of the recommendations. Moreover, there are Recommendations by the Committee of Ministers of the Council of Europe as well as by its Parliamentary Assembly. Following up the legislative function in the multi-level system, another important institution of governance emerges: the European Commission for Democracy through Law of the Council of Europe, better known as the Venice Commission. It advises legislators of the transformation countries and sometimes even takes them by the hand.
The executive or implementing function of European diversity governance is distributed between just as many institutions. In the centre is again the European Union, with the central mechanism being — seemingly typically for many forms of governance — a positive incentive, and not the threat of sanction: the effectiveness of the law, the so-called compliance pull , is first and foremost due to the perspective of accession to the Union, promising the transformation countries full inclusion and recognition as equals.
A series of institutions has assumed this task. First, the European Commission provides periodic progress reports, based on its own findings, those of other international institutions, and input from civil society. They are of importance not only for the accession process and public opinion, but also for financial allowances under the PHARE programme. Furthermore, the Council of Europe is involved in this control, especially via the Advisory Committee to the Framework Convention for the Protection of National Minorities.
This compensates for the cumbersomeness of the European Union with regard to foreign affairs, but also the operative weakness of the Council of Europe. European diversity governance is thus relatively well positioned regarding the legislature and the executive. In accordance with the traditional doctrine on functions, the analysis needs to be concluded with the judiciary.
Here there is a striking gap. No transformation state has the ability to obtain judicial protection against encumbering decisions taken within the framework of European diversity governance : there is a judge neither for the general allegation of discrimination, nor for specific discrimination due to the domestic policy opportunism of influential Western European states.
The perspective of accession falls into the category of conditionality, an established instrument in the framework of governance.
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Certainly, so far there has been no comprehensive doctrinal reconstruction of this subject; but there are remarkable approaches with respect to conditionality being an instrument of the World Bank. An assessment of this governance directed at the implementation of norms of international law serving cultural diversity can be legal or political.
A legal assessment has to confront the regular problem that legal categories, because of the consent of the state concerned and the avoidance of formal instruments, can hardly grasp the subject. As demonstrated, European diversity governance can be traced back to non-legal tenets, which do not allow for a legal assessment. Thus only vague precepts like non-interference and sovereign equality remain, which give little guidance. The considerable restrictions placed upon the transformation countries by the system of governance do not infringe the principle of non-interference simply because of the contractual nature of the standards.
State practice and doctrine regarding Article 52 of the Vienna Convention on the Law of Treaties show that the exploitation of the Western European hegemony also does not infringe the principle of sovereign equality.
Politically, European diversity governance has to be assessed primarily under the aspect of legitimacy. It has been called illegitimate, since it is supposedly asymmetric and discriminatory against the transformation countries. In contrast to the West, there was the well-founded danger of severe conflicts which might even have led to international crises. After the recovery of their sovereignty, the transformation countries structurally had to face the task of establishing functioning states, i.
In this process, which can be conceived as nation building, the minority problem posed itself in a different way from in the West, as thes proved in many cases. The assessment is more critical under the aspect of output legitimacy, i. However, a full realization of the international standards generally took place only if the government of a transformation state became dependent upon the political party of a minority, or if a transformation state wanted to set a good example in order for its ethnic group to receive the same rights abroad: the effectiveness of international law and governance depends on the internal situation of the addressed state.
The implementation of the international law of cultural diversity is regarded as being more deficient than the implementation of the other accession criteria. Gwendolyn Sasse convincingly ascribes this to a series of specifics in European minority policy. For lack of an EU internal minority policy, the relevant standards are not part of the acquis communautaire , which is the main focus of the Commission.
The plurality of the diversity arrangements in the EU Member States impedes a consistent and coherent approach. Political considerations like these have a bigger effect in such a system of governance , where international law basically remains a political instrument, than in a political order placed under the rule of law. The limited success of the implementation of international standards of cultural diversity in some Central and Eastern European states before their accession to the European Union leads to the monumental question whether and, if necessary, how the Union should assert and, where necessary, implement the relevant standards with regard to its Member States.
A diversity policy aimed at the Member States leads the Union into an area that has so far been largely prohibited. The Union does not have the competence to harmonize the diversity management law of the Member States: the interest of the Member States in their independence from the Union, not least for the purpose of preserving constitutional diversity and national identity, is too profound.
This may be clarified by means of the following considerations. Regarding national unification it needs to be recalled that the Union still does not play a role in internal conflicts concerning the self-determination of minorities, be it in Northern Ireland, Catalonia, the Basque region, or — in former times — South Tyrol. Certainly the instruments of political unification are not completely free from the Union law's influence: thus citizens of the Union and citizens of third countries in possession of a residence permit have to be included in the systems of national solidarity, e.
National reservations with regard to international parameters for national diversity management are not specific to the Union but can often be found in the pertinent international law. Here the openness of the notion of minority, the decision not to stipulate European minority protection in a protocol to the ECHR, and the design of the Framework Convention as not self-executing can be recalled.
Against this background, two fundamental and far-reaching alternatives arise for the European Union and its Member States. National unity and national protection of fundamental rights can either principally remain outside the Union's field of activity, or become part of the Union's competences. The most important disadvantage of the first alternative is that an essential premise of the European Union's success might be endangered. The Union operates on the premise that its Member States are consolidated, not segmentarily divided, political communities enjoying in principle recognition by all their subjects, minorities included.
Given the not yet fully accomplished nation building in some transformation countries, the argument can be made that the Union must guarantee these prerequisites. If for these reasons the second alternative is chosen and the preservation of cultural diversity in the Member States thus made a task of the Union, there is the disadvantage of noticeably restricting a Member State's national autonomy in designing its political union and in protecting fundamental rights by extending the power of the Union in two areas central to national identity.
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As the weakness of the Union's policy with regard to the accession states teaches, European harmonization of national diversity management, i. It is certain that such a policy cannot be aimed solely at the transformation countries, but must include all Member States. This second alternative thus has the potential substantially to modify the federal relationship between the Union and its Member States and considerably to curtail national diversity. The Union and its Member States face a difficult choice.
To maintain the legal status quo would point to the first alternative. Also the mandate of the recently founded European Fundamental Rights Agency is limited — after a considerable tug of war — to the thematic areas within the scope of Union law. There are some competences of the Union allowing for approaches to develop a harmonized diversity policy, especially Articles 7 1 and 2 , 29, and 34 2 TEU, and Article 13 1 and 2 as well as Article 63 TEC. In view of the hesitation by the Member States, the diversity policy of the Union rather appears as diversity governance.
There are some indications as to its design, although in general this governance is far more rudimentary than the one concerning transformation countries. The goals of this governance are devised by Philip Alston and Joseph H. Weiler in a path-finding work for the European Parliament looking for a fundamental rights policy. The lessons learned from the governance regarding the transformation countries indicate that the Union will hardly be able to construct efficient internal governance without the legal, institutional, and legitimizing resources of the Council of Europe and the OSCE.
In this sense Articles 8—10 of the Council Regulation establishing a European Union Agency for Fundamental Rights arrange for co-operation between the Agency and relevant governmental and non-governmental organizations, albeit only within the range of application of Union law. The traditional doctrine on functions separation of powers can again serve as a guideline for a functional outline of governance.
From a legislative aspect, the fundamental act is the EU Treaty, in particular Article 6 1 TEU; in so far as reference can be made to the considerations above.
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Its vague parameters are again partly being operationalized by norms of international law. The fact that the Union does not have to develop its own standards but finds them in international law, and also in the Charter of Fundamental Rights, also unburdens the Union's organs of diversity governance from the point of view of legitimacy. While the legislative component of this governance has rather clear features, that is not the case for the executive component. Its possible cornerstone, i. However, the future of this panel is uncertain.
As further institutions with executive functions, the already mentioned institutions, the Council of Europe and the OSCE, come into consideration; in particular the committee of the Framework Convention has always also examined the situation of minorities in the old EU Member States and detected many shortcomings. The work of the Network of Experts on Fundamental Rights is based to a considerable extent on the work of these implementation institutions.
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Lastly the question regarding the judicial function arises; in this respect EU internal governance looks slightly better than that aimed at the East. According to the current case law regarding Article TEC, there is arguably no chance for the Member States or the Council to take action against measures in the form of reports by the Parliament or the Commission.
However, decisions like the establishment of the Network of Experts are assailable. As is generally known, no direct legal action before the ECJ is possible for individuals against measures taken by the Member States. It is, however, conceivable that the ECJ, considerably extending its current competences, could use the preliminary ruling procedure in order to review national measures for their compatibility with principles of law protecting diversity national measures, building on the EC fundamental freedoms and the directives on discrimination. It has by now a well defined shape, not least because it has been laid down in Articles — TEC concerning employment policy.
More important still: according to the prevalent understanding, the open method is an instrument of the European Council, which does not play a leading role in this diversity governance. Rather, policy assessment by the public appears to be the central instrument of this governance. Experience with the governance aimed at the East shows that regular and systematic reports are of great importance and that positive data on the situation of minorities and immigrated groups are necessary if this instrument is to have any effect at all.
Other than the diversity governance directed at the transformation countries, the internal governance of cultural diversity can resort to expedient legal criteria. With respect to the competences, it has to be noted that there is no explicit norm allowing for a human rights, minority, or diversity policy for the Union.
It has not yet been clarified which legal basis is required for other measures executed by the Union's institutions. However, in the end it seems hardly disputable that the competence of the Commission, deriving from Article 7 1 TEU, to initiate proceedings before the Council when there is a clear risk of a serious breach by a Member State of principles referred to in Article 6 1 TEU, confers upon the Commission monitoring competence with regard to the Member States.
This is confirmed by the fact that a reasoned proposal is required. Also in these policy areas the Commission can make proposals only if it is informed about the situation in the Member States. Also the decision by the European Parliament to set up a temporary committee examining whether the Member States have infringed Article 6 TEU by taking anti-terrorism measures points in this direction. This competence to monitor and even control the Member States is due to a fundamental constitutional innovation of the Amsterdam Treaty. Putting down explicit prerequisites for structural compatibility, or homogeneity , as many put it, in Article 6 1 TEU, the contracting parties formulate uniform standards of the democratic rule of law for all bearers of public authority in the European constitutional area and confer upon the Union the task of guaranteeing a liberal-democratic constitutional system.
In the present context, monitoring is admissible only if protection and promotion of cultural diversity in the sense of minority rights belong to the principles of Article 6 1 TEU. The wording remains silent. However, the legitimacy, maybe even the legality, of the diversity governance regarding the transformation countries depends on Article 6 1 TEU requiring the protection of minority rights; the majority of the commentators thus sees it as rooted in the notion of democracy.
There is the prospect that EU internal monitoring might change the understanding of democracy in the EU Member States along the lines of the international law of cultural diversity. It is first necessary that an objective cannot be sufficiently achieved by the Member States. The report by the EU Network of Independent Experts on Fundamental Rights concerning the protection of minorities shows that the situation of minorities and immigrant groups in the Member States of the Union does not always meet international standards.
Moreover, the treatment of some groups, especially the Sinti and Romanies, is sometimes so bad that the threshold of Article 7 1 TEU may be reached. It is not to be expected that other supranational or international institutions, first and foremost the ECHR, can correct these grievances on their own. Secondly, the principle of subsidiarity demands that the Union contribute to furthering the objective.
In this respect there are few indications of a well-founded judgment. The diversity governance with respect to the transformation countries and findings as to its limited success raises some doubts. However, since such a decision has to be taken in accordance with Article 1 TEC, only 14 insightful governments are needed in order to move the Union in this direction. The human rights conditionality often incorporated by the Union in its international agreements can be interpreted as an instrument for the global promotion of cultural diversity.
By means of this contribution it can be demonstrated how the Union has by now become a political actor, using the international law of cultural diversity to strengthen European unity. According to its general status with UNESCO, the Union was initially only able to send the Commission as observer with a rather passive role; that also served to preserve the national competences in the cultural field. This Diversity Convention benefits European unity in many respects. It confirms that the European states can only collectively assert themselves against the USA.
It promotes European unification, since the Union can, under the legal personality of the EC, ratify the convention itself; this strengthens not only its international role but also its influence in the cultural field. Furthermore, the Diversity Convention serves the acceptance under international law of an important EU internal policy in the area of diversity management and the development of a European cultural area, namely media politics with its quotas which are problematic under WTO law.
Altogether the Diversity Convention proves to be an expedient instrument of the Union's policy in many respects. The activities of the Union within the framework of the UNESCO convention show that it strives to play a role in global diversity politics. An important trump in the global diversity discourse is its own diversity-oriented constitution, a source of inspiration for a diversity-preserving design of political organizations, be it for supranational institutions with public authority, or be it for federal state constitutions.
The constitution of the Union aims first and foremost for the preservation of the diversity of national cultures, even if this is not required by international law. Herein the will for self-assertion of the European states and peoples reveals itself. Many characteristics of the Union's constitutional law can be explained from this perspective: the lack of will to found a state, the lack of a comprehensive defence and solidarity community, the lack of formation of a proper nation.
The European enterprise is constituted on the premise of distinct, state-organized peoples that are supposed to maintain distinct identities. Reference to the diversity-preserving design of the organization's constitution has already been made; among the further pertinent legal complexes the organization of competences, the language regime, and the institutions of differentiated integration can be recalled.
"unabhängig" English translation
How powerful the innovative force of the Union in this respect really is becomes obvious if one recalls the helplessness of Georg Jellinek when searching for a viable constitution for the multi-ethnic structure of the Hapsburg monarchy over years ago, or John Stuart Mill's scepticism regarding the possibility of a free pluralistic society.
Returning to the first sentence of this article, the concluding question arises whether diversity is only a topos or rather a legal principle. Those considerations are helpful on a political-ethical level. Nonetheless, as a legal principle diversity appears as doubtful as an abstract legal principle of unity or integration.
So far it has not been demonstrated what a principle of diversity could accomplish that the doctrines on competences, the protection of national interests through the institutional set-up of the Union, the principles protecting citizens, and minority rights cannot. It would be accorded a positive role only if abstract principles like integration or homogeneity had to be confronted; however, those principles are known neither by the European nor by the international legal order.
From a conceptual point of view, a juridical conceptualization that embraces opposing interests is problematic, since legal rationality requires that opposing poles be conceptualized by different notions. These considerations argue against the stipulation of an international legal principle of cultural diversity, not to mention its weak foundation in positive law. Returning to the starting point of this article, it can be stated that, first, the cultural diversity topos should remain exactly this, a mere topos; that, secondly, from an international law perspective, the motto of the Union grasps an important aspect of its constitutional and political project; but that, thirdly, the international law perspective does not exhaust the issue.
Conformity with international law alone cannot dissipate concern for the future of cultural diversity within the Union. Translated by Jenny Grote. Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Sign In or Create an Account.
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