Framework Convention, which came into force in 1 February 1998,
contains several references to the European Convention on Human Rights
(the Rome Convention). In the preamble, the words "having regard
to" the Rome Convention are used. Article 19 provides that the
High Contracting Parties "undertake to respect and implement the
principles enshrined in the present framework Convention making, where
necessary, only those limitations ... provided for in international
legal instruments, in particular the Convention for the Protection of
Human Rights and Fundamental Freedoms". Article 23 provides that
"The rights and freedoms flowing from the principles enshrined in
the present framework Convention, in so far as they are the subject of
a corresponding provision in the Convention for the Protection of
Human Rights and Fundamental Freedoms or in the Protocols thereto,
shall be understood so as to conform to the latter provisions".
rules in the Framework Convention recognise, in respect of members of
minorities, rights which replicate or further specify rights secured
by the Rome Convention. For instance, Articles 7-9 of the Framework
Convention echo the rights to freedom of association, expression,
conscience and religion, for which Articles 9-11 of the Rome
Convention already provide.
rules of the Framework Convention, however, provide for rights not
referred to in the Rome Convention, for example, Articles 10-11 on the
right to use a minority language, Article 13 on the right to set up
and manage private training establishments, Article 16 which obliges
Contracting Parties to refrain from altering the proportions of the
population in areas inhabited by persons belonging to national
Framework Convention does not provide for a right to petition the
European Court of Human Rights. However, acts constituting a violation
of the rights secured by the Convention may be the subject of an
application to the Court if they also constitute a violation of any of
the rights secured by the European Convention on Human Rights.
respect of rights secured by the Framework Convention which do not
correspond to those secured by the European Convention on Human
Rights, the Framework Convention does not prescribe any remedy before
the Court, not even for the purpose of requesting the Court to give
the Parties to the Convention an authoritative though not binding
interpretation. This gap
is still more embarrassing considering that it has been filled in
other more recent Council of Europe-sponsored conventions such as the
Convention on Human Rights and Biomedicine.
It is precisely in order to concord with the model furnished by
this Convention that the present proposal is made for a Protocol to
the Framework Convention prescribing a non-binding advisory function
for the European Court of Human Rights.
Framework Convention is a Council of Europe Convention, the
consultative competence which it is proposed to give the European
Court of Human Rights does not pose any formal problem regarding
access to the Court, nor does it require any modification of the
Court's statutes as set out in the Rome Convention.
As the Court itself stated in an opinion given in the course of
the drafting of the Convention on Biomedicine, it may receive requests
for advisory opinions from governments of Parties to the Convention as
long as this is not related to specific proceedings pending before a
national court or the European Court of Justice – i.e. proceedings
which could result in an application under the Rome Convention.
of Article 1 of the proposed additional protocol, the text of which is
taken directly from Article 29 of the Convention on Biomedicine, takes
account of this point of view.
It will be
for the Court to determine whether it will be appropriate to set up a
special Chamber for the purposes foreseen in this proposal, or
depending on the circumstances, which of its Chambers should be
assigned this task.
PROTOCOL TO THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL
of the Convention
European Court of Human Rights may give, without direct reference to
any specific proceedings pending in a court, advisory opinions on
legal questions concerning the interpretation of the present
Convention at the request of:
the Government of a Party, after having informed the other
the Committee set up by Article 26, by a decision adopted by a
two-thirds majority of votes cast by members entitled to vote.
Protocol shall be open for signature by the Signatories to the
Convention. It shall be subject to ratification, acceptance or
approval. A Signatory may not ratify, accept or approve this Protocol
unless it has previously or simultaneously ratified, accepted or
approved the Convention. Instruments of ratification, acceptance or
approval shall be deposited with the Secretary General of the Council
This Protocol shall enter into force on the first day of the
month following the expiration of a period of three months after the
date on which five States, including at least four member States of
the Council of Europe, have expressed their consent to be bound by the
Protocol in accordance with the provisions of Article 2.
In respect of any Signatory which subsequently expresses its
consent to be bound by it, the Protocol shall enter into force on the
first day of the month following the expiration of a period of three
months after the date of the deposit of the instrument of
ratification, acceptance or approval.
After the entry into force of this Protocol, any State which
has acceded to the Convention may also accede to this Protocol.
Accession shall be effected by the deposit with the Secretary
General of the Council of Europe of an instrument of accession which
shall take effect on the first day of the month following the
expiration of a period of three months after the date of its deposit.
Any Party may at any time denounce this Protocol by means of a
notification addressed to the Secretary General of the Council of
Such denunciation shall become effective on the first day of
the month following the expiration of a period of three months after
the date of receipt of the notification by the Secretary General.
Secretary General of the Council of Europe shall notify the member
States of the Council, the European Community, any Signatory, any
Party and any other State which has been invited to accede to this
the deposit of any instrument of ratification, acceptance,
approval or accession;
any date of entry into force of this Protocol in accordance
with Articles 3 and 4;
any other act, notification or communication relating to this