Intervention by H.E. Victor Micula, Ambassador of Romania to Hungary
at the international conference “Diaspora Engagement – State and Civil Approaches”
Budapest, 25 September 2013
Disclaimer: the references in my statement to "minority" and not always to "persons belonging to national minorities" are out of convenience only and should not be understood to mean that Romania accepts the thesis on the existence of collective rights for minorities. As stated before, Romania considers that under international law, the rights of the persons belonging to national minorities are individual rights which can be exercised either individually or together with others.
I would like to place my intervention under an eloquent statement of the Venice Commission which so rightly considers that "Europe has developed as a cultural unity based on a diversity of interconnected languages and cultural traditions; cultural diversity constitutes a richness and acceptance of this diversity is a precondition to peace and stability in Europe".
In defining its policy on minorities, both as regards the minorities on its territory as well as its minority abroad, Romania considers the double role minorities play - as actors enriching the cultural component of the Romanian society and as bridges and contributors to the consolidation of cooperation and friendly relations between Romania, as State of citizenship, or Home-State, and the State whose ethnic, cultural, linguistic or religious identity they share, the Kin-State.
Minorities can effectively play this double role if States observe the dual responsibility incumbent upon them, namely:
As a "Kin-State", Romania has an interest in the protection of the rights of the Romanians belonging to the Romanian minority abroad, irrespective of the name under which they are known or called by in the "Home-State". This interest in no way overlooks the obligation Romania has towards its own citizens belonging to minorities as otherwise "the motives and credibility of [Romania's] actions may be put into question" to use the words of the OSCE High Commissioner on National Minorities in the Recommendation 15 of the 2008 Bolzano Recommendations on National Minorities in Inter-State Relations. Romania promotes a consistent policy towards minorities in general (be they on its territory or of its own abroad), by claiming for its minority abroad the treatment and protection enjoyed by the minorities in Romania in conformity with international law and international standards.
Romania has developed over the years, with the great contribution of the members of the national minorities living on its own territory themselves, a system of protection of their rights, going beyond the international standards in the field. This legislation proved efficient in protecting and promoting the cultural, linguistic and religious identity of the persons belonging to national minorities living in Romania, as attested by the opinions of the existing monitoring mechanisms under the Council of Europe relevant Conventions.
Law 299 of 2007 consolidated, on the support of the Romanians Living Abroad
Law no. 299 of 2007 consolidated, on the support of the Romanians Living Abroad (henceforth Law on Romanians Abroad) represents the framework for the action of Romania in favour of the members of its minority living outside its borders.
The law was developed on the basis of the lessons learned following the promotion in 2001, by Hungary, of the Law on the Hungarians Living in the Neighbouring States. The adoption of this law prompted considerable debates in Europe, finalised with the adoption of the following documents:
The law builds on the conclusions of these documents and of the standards they established which are to be considered by policies aimed at kin minority protection.
According to Art. 7 (Romanians abroad) of the Romanian Constitution "the State supports the consolidation of the ties with the Romanians abroad and acts for the preservation, promotion and expression of their ethnic, cultural, linguistic and religious identity, with due respect to the legislation of the State of whose citizens they are". By taking action in favour of its minority abroad, Romania pursues a twofold aim: 1.) to preserve, promote and assert the ethnic, cultural, linguistic and religious identity of the Romanians abroad in line with international and European standards and practices, and 2.) to consolidate the ties between Romania and its kin-minority living abroad.
In defining its relation with its kin-minority abroad, Romania does not assume any responsibility or obligation, but limits itself to defining its mere interest vis-à-vis the Romanians living abroad, which resides in the preservation and promotion of their ethnic, cultural, linguistic and religious identity and in the promotion of the Romanian culture and spirituality. This policy is not at all promoted in the name of the Romanian nation nor with the aim to rebuild, even if somehow symbolically, the Romanian nation. As a matter of fact, this concept is not to be found anywhere in the relevant Romanian legislation in the field of minority protection.
Even more so, Romania pursues this interest with due respect to the legislation of the Home-State, a constitutional guarantee that Romania understands to act on these matters as a responsible actor, in line with international law and standards and in full observance of the principle of friendly relations amongst States, and not on unilateral basis.
It is important to recall that the Venice Commission has established, in its Report on the Preferential Treatment of National Minorities by Their Kin-State (2001), the limits of intervention of the Kin-State in favour of the persons belonging to national minorities on the territory of another state. This issue has been also approached by the High Commissioner for National Minorities of the OSCE in its declaration "Sovereignty, Responsibility and National Minorities" (The Hague, October 2001). As underlined in the positions expressed in the context of the mentioned documents, the Kin-State may have a mere interest in the protection of its minority abroad, and certainly not a responsibility for their general well being.
However, under no circumstances this interest implies a right for the Kin-State to exercise jurisdiction over the members of its minority living abroad. In other words, "the fact that the State considers a person abroad to be one of its "kin", does not justify any unilateral intervention on that person's behalf".
No unilateral action can be taken by the Kin-State that might affect the principles of territorial sovereignty of States, pacta sunt servanda, friendly relations amongst States and the respect of human rights and fundamental freedoms, in particular the prohibition of discrimination. Therefore, what a Kin-State can do in favour of the members of its minority living abroad is to grant them certain preferences within its jurisdiction, with due regard to the principle of non-discrimination. Should these preferences imply effects on foreign citizens abroad, the consent of the "Home-State" should be sought prior to the implementation of any measure.
In short, the cooperation between the "Home-State" and the "kin State" is vital in order for the measures adopted by the kin State in favour of its minority abroad to be legitimate and permissible under international law. As the OSCE High Commissioner on National Minorities stated "bilateral treaties can serve a useful function in respect of national minorities in the sense that they offer a vehicle through which States can legitimately share information and concerns, pursue interests and ideas, and further protect particular minorities on the basis of consent of the State in whose jurisdiction the minority falls".
It is self explanatory, from this perspective, that the Law on Romanians Abroad stipulates, from the outset, that the measures to achieve its aims are to be taken with due respect to the principles of territorial sovereignty of States, pacta sunt servanda, friendly relations amongst States and the respect of human rights and fundamental freedoms, in particular the prohibition of discrimination (art. 2 of the Law) and on the basis of agreements and programmes concluded with the States of citizenship of the Romanians abroad or of the Protocols of joint committees or on the basis of the principle of reciprocity and in conformity with the provisions of the Framework Convention for the Protection of National Minorities, of the 2001 Report on the Preferential Treatment of National Minorities by their Kin State and of the recommendations of the High Commissioner on National Minorities (art. 3 of the Law).
Thus, the policy of Romania towards its minority abroad is not based on unilateral demarches and actions. Our firm stand is that this policy should always be pursued through co-operation with the State of citizenship and in accordance with international law and standards. The Romanian Constitution itself prevents such unilateral demarches, by invoking the necessity to respect the law of the State of citizenship.
Romania has already concluded bilateral treaties with all States on whose territory there is a significant Romanian minority containing specific provisions on the protection and promotion of minority rights. On the basis of each of these treaties joint committees were established aimed at monitoring the promotion and respect of the rights of minorities. Although striving for regular meetings of these committees and praising this format of discussion for dealing with the issues related to minority protection, it was not always possible to ensure adequately the fulfillment of their mandate. However, this does not mean that unilateral demarches are permitted or justified in such circumstance and Romania strongly advocates against any such practice as being contrary to international law. We are confident that this framework of discussion could bring good results in solving the problems our minorities are facing with.
In relation with the "Home-States" of its minority abroad, Romania strictly follows these principles and calls for the full implementation of the international obligations assumed by these States for the protection of national minorities, including the Romanian one, living on their territory.
The measures in favour of minorities, irrespective of whether they are promoted by the "Home-State" or by the "Kin-State" must have as a general aim the preservation, promotion and expression of the ethnic, cultural, linguistic and religious identity of the members of the national minority.
Such measures cannot in any circumstance affect the integration of the recipient member of the national minority in the society in which he/she lives, nor the obligation to observe and respect the laws of the State of citizenship or the rights of others belonging to the majority or to other national minorities (to quote from Art. 20 of the Framework Convention for the Protection of National Minorities). As the High Commissioner on National Minorities underlined in its introduction to the 2008 Bolzano Recommendations, "States should ensure that their policies with respect to national minorities abroad do not undermine the integration of minorities in the States where they reside or fuel separatist tendencies". A similar idea was previously expressed by the High Commissioner in the 2001 Statement "Sovereignty, Responsibility and National Minorities": "While maintaining their identity, a minority should be integrated in harmony with others within a State as part of society at large. This is fundamental to international peace, security and prosperity".
It is Romania's strong belief that the Romanians living abroad should enjoy rights and benefits in the territory of the State of citizenship that would allow for a proper preservation and assertion of their identity so that it can be passed generations on. This is the leading aim of our policy concerning our minority abroad that we constantly emphasize in the dialogue with our Partners, "Home-States" for Romanians abroad.
I will just briefly address some of our points of interest in the dialogue with our Partners on the protection of the rights of Romanians abroad:
Education in Romanian language is of prior concern to us and we insist that the teaching in the Romanian language should thoroughly be implemented form the pre-school and school levels to guarantee that the Romanian identity will be adequately preserved and promoted. The institutions of education in mother tongue should be properly financed and assisted by the State authorities in order to make the right to education more effective and efficient and not turn it into an illusion.
Use of Romanian language in relation to public authorities should be properly implemented by the State of citizenship in accordance with international law.
Religious service in mother tongue is another point of interest for the Romanians living abroad, just as the proper financing of the media (written or spoken) in Romanian, of the cultural associations, of the schools and of the churches is.
The full participation of Romanians abroad in the public life of the State of citizenship is one other right that we consider that the members of our minority should benefit of, in line with the provisions of the Framework Convention for the Protection of National Minorities and the 2008 Bolzano Recommendations and just as the members of the national minorities in Romania enjoy.
Implementation of cultural projects for the Romanians abroad contributes greatly to the promotion and expression of the Romanian spirituality and culture and should be of greater concern to the relevant State authorities.
These rights and others as established under international law should be enjoyed by all Romanians living abroad, irrespective of the name under which they are known or called. And probably this is a particularity in our history, that Romanians were called by various names all reflecting, in fact, the same root, the same culture, language and spirituality. That is why we disagree with any attempts to interpret history in such a way as to affect the sacrosanct principle of self identification and to impose a different identity on those who feel Romanian and declare that they belong to the Romanian cultural identity and spirituality. The name a minority is called by should not be an excuse for the non-observance by a State of its obligations assumed on the basis of international law vis-à-vis persons belonging to that national minority living on its territory. Names do not matter. The substance behind the name does.
As the Venice Commission indicated in its 2001 Report, "preferential treatment may be granted to persons belonging to kin-minorities in the fields of education and culture, insofar as it pursues the legitimate aim of fostering cultural links and is proportionate to that aim. Preferential treatment cannot be granted in other fields than education and culture, save in exceptional cases and if it is shown to pursue a legitimate aim and to be proportionate to that aim". The interest of the Kin-State itself is to ensure that the ethnic, cultural, linguistic, religious identity of its minority abroad is adequately promoted and preserved and, therefore "the preferential treatment" should follow this interest.
Article 5 of Law on the Romanians Abroad establishes what rights the Romanians Abroad can enjoy in Romania for the preservation, promotion and expression of their ethnic, cultural, linguistic, religious identity. The article contains a number of 12 rights that can be enjoyed by the Romanians living abroad. Additionally, the Romanians living abroad could benefit of any other rights set forth in international agreements or programmes of collaboration.
Generally, the rights prescribed by law in favour of the Romanians living abroad consider, with due respect to the principle of non-discrimination, free access in the Romanian museums, public institutions of culture, historical monuments or national heritage sites; the right to study in Romania at all levels of education; the right to ask for and obtain scholarships in Romania; the right to take part in trainings for teachers organised in Romania; the right to ask for and obtain financial and material support from Romania for activities related to the preservation and promotion of their identity; the right to participate in the Congress for the Romanians Abroad; the right to obtain free visas for the participation in events organised in Romania dedicated to the preservation and expression of their cultural, ethnic, linguistic and religious identity; the right to be awarded distinctions for the promotions of the cultural, spiritual and scientific Romanian values.
The law does not contain any provision that would allow for the Romanians living abroad to receive the Romanian citizenship under a simplified, more favourable procedure. Nor does the Law on Romanian Citizenship contain a provision concerning the acquisition under more favourable conditions of the Romanian citizenship by the Romanians living abroad.
From this point of view, the Romanian and the Hungarian authorities opted for different approaches to granting citizenship on the basis of ethnicity. I will particularly make reference to this law on citizenship, since there are sometimes statements trying to assert that the Hungarian model is allegedly copied after the Romanian legislation.
The purpose of the amendments to the Hungarian Law on Citizenship is defined in the Preamble of the amending law by reference to the "co-nationals living abroad" and to the "tightening of the relations of the Hungarians abroad with their Kin-State", especially "the preservation of their Hungarian identity". These provisions indicate that the main criterion used by the law is the ethnicity of the beneficiaries.
To the contrary, the Romanian legislation on citizenship is clear on this issue: the law does not operate on ethnical criteria and, consequently, the law makes reference to that criterion in none of its parts.
The Romanian law, for its part, considers the relationship between Romania and its former citizens who lost the citizenship independently of their will/ descendents of these former citizens up to 3rd level of kinship in order to justify a special procedure for the acquisition of the Romanian citizenship. The focus of the Romanian law is the former Romanian citizen - no matter its ethnicity, as an individual who, having lost the citizenship independently of his or her will, is entitled to reparation. The law extends the reparation to a limited number of descendents - up to 3rd level of kinship.
Unlike the Romanian law, the Hungarian law - as amended - is focused on the descendents of former Hungarian citizens, irrespective of the level of kinship and, thus, it is very difficult to ascertain the amplitude of the personal domain of application of the law and the purpose of this simplified procedure.
The proof of the Hungarian citizenship of the ascendants of the person claiming the Hungarian citizenship is equally a point of divergence as to the Romanian law, as the Hungarian authorities are persuaded by any paper that creates at least the presumption that the ascendant had at some moment in time the Hungarian citizenship.
Although the Hungarian legislation appears to have the same approach as the Romanian one, it does contain certain provisions which make this "reparatory procedure" unique. Given the language of the Preamble, the ethnical criterion is still applied by the law, which, together with no limitation of kinship and the "light" proof of the ascendant's citizenship represents just as many differences from the invoked Romanian model.
One might argue that these differences, and especially the one concerning the personal field of application of these so called simplified procedures, could reflect in statistics. I can not argue for or against, but as far as Romania is concerned, since 1991 until 2011 almost 266.000 Romanian citizenships were granted through the re-acquisition procedure, regular and simplified, to applicants from all over the world. The official information published this year by the Hungarian authorities indicate that from 2011 until April 2013, approximately 342.000 Hungarian citizenships were obtained on the basis of the simplified procedure introduced in 2010 (which entered into force in 2011). In a speech delivered in Serbia/ Vojevodjna, the Hungarian Minister of Rural Development even stated that until August 2013, 500.000 new Hungarian citizenships were granted on the basis of the new citizenship procedure.
Before coming to the conclusions of my statement, please allow me to emphasize that the Law on Romanians Abroad is not at all limited to ethnic Romanians, but it includes in its field of application all those who belong to the Romanian cultural identity, in line with the approach recommended by the Venice Commission to focus more on cultural approaches rather than on strictly ethnic ones.
Article 2 of the Law contains a definition of who are the Romanians Abroad: the members of the historical Romanian minority irrespective of the name under which they are known or called in the State of citizenship and the members of the more recent Romanian minority resulted from the increased emigration process (as a logical consequence of the free movement principle following our accession to EU).
My previous remarks concerned mostly the policies with regard to the historical minorities, but the relevant principles behind these policies are the same irrespective of weather we focus on the historical or new minorities.
The experience of Romania since its accession to EU indicates that thousands of Romanians benefitted from the new rights as EU citizens to move, reside, attend schools and universities and work in the EU. The vast majority of Romanian citizens exercise their right to reside in order to work as employees/self/employed.
The overwhelming majority are very well integrated into the societies they now live in - a living proof of the advantages of mobility, including regarding the well functioning of the EU Single Market. This intra-EU mobility has been beneficial in terms of the overall GDP growth of the receiving countries and has a positive contribution to labour markets throughout Europe.
At the same time, many economic and financial operators from all over Europe have made substantial investments in Romania and they certainly did so because it was profitable for them. On the other hand, Romania is now a significant source of highly qualified personnel (physicians, IT specialists, researchers etc.), medium-level professionals (especially in the construction field, but not only), as well as less qualified workers, somehow more visible, all of them being required on the labour markets of more developed EU member states. What all of them have in common is that they contribute, to various extents, to the development of the countries where they work now.
Minority protection is not and should not be a business. It is the legitimate right of those citizens of a State who share the ethnicity of another State to have this identity preserved and promoted. States should be aware of this legitimate right and respect it by creating adequate frameworks for the preservation, promotion and expression of the ethnic, cultural, linguistic, religious identity of those citizens, members of a national minority.
Policies in the field of minority protection should not lead to segregation between the minority and the majority within a State, but should contribute to the full integration of the members of a national minority within the society where they live, while endeavoring to protect and promote the distinct ethnic, cultural, linguistic, religious identity of these members. As written in the Preamble of the Framework Convention for the Protection of National Minorities, "the creation of a climate of tolerance and dialogue is necessary to enable cultural diversity to be a source and a factor, not of division, but of enrichment for each society".
Minority protection is a question of responsibility towards the citizens of our own State and towards the relationship with our neighbours. States, especially neighbouring States, should preserve the climate of cooperation in between themselves and, thus, should abstain from promoting unilateral initiatives that might affect such climate. It is our firm belief that, in view of the principles of territorial sovereignty of States, pacta sunt servanda, friendly (including good neighbourly) relations amongst States and the respect for human rights and fundamental freedoms, States should strengthen their efforts to ensure an effective cooperation on matters pertaining to minority protection in line with the recommendations of the Venice Commission and of the OSCE High Commissioner on National Minorities and refrain from making recourse to unilateral demarches on the basis of national kinship that have the potential to lead to tensions and frictions in the relations between the concerned States.
 CDl-INF (2001) 19, European Commission for Democracy through Law (Venice Commission) - Report on the Preferential Treatment of National Minorities by their Kin State, Conclusions
 Section II, para. 3
 Recommendation 3 and the Explanatory Note, p. 11
 Explanatory Note to Recommendation 4 of the 2008 Bolzano Recommendations on National Minorities in Inter-State Relations, p. 13
 Statement of the OSCE High Commissioner on National Minorities Sovereignty, Responsibility and National Minorities, the Hague, 26 October 2001
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