Current challenges for the international protection of national minoritiesicelds
With a special view of new challenges for the European minority rights regime, the organizers of the expert seminar “A Century of Minority Rights – Lessons from the Post-Versailles System” have asked me to elaborate on the idea of undoing wrongs in ethnic policies. I find this topic assignment very inspiring and challenging and it is a pleasure for me to deal with minority protection as an instrument for compensating past damage and harm committed to national minorities. I will pay particular attention to the question of how compensation is conceived in terms of international minority protection and international human rights law. I suggest distinguishing between political compensation which is the result of pragmatic interest-based bargaining and the concept of moral compensation which is underlying human rights law.
Minority rights as part of the Versailles system
The history of international minority protection is closely linked to the League of Nations. The first concise system of protection was mainly built upon bilateral treaties between the major victorious states of the First World War, the so-called Principal Allied and Associated Powers, on the one hand, and some newly independent nation-states on the other (Poland, Yugoslavia, Czechoslovakia, Romania and Greece). Minority protection standards, further, were included in unilateral declarations (filed by Albania, Estonia, Finland, Latvia, Lithuania and Iraq), peace treaties (with Austria, Bulgaria, Hungary and Turkey) and specific status agreements (on Upper Silesia and the Memel Territory).
At Versailles, the Allied Powers intended to conceive minority rights as a kind of political compensation. In exchange for recognizing the sovereignty of the newly independent states on the territory of which they were living, national minorities were granted a set of rights concerning non-discrimination, the acquisition of citizenship, the use of minority languages, education and, in some cases, territorial autonomy. In other words, minority rights were the political prize that newly independent states had to pay in order to gain full international recognition.
A very similar approach was adopted after the end of the Cold War. With a view to secession movements in former Yugoslavia and in the former Soviet Union, the international community repeatedly contended that the provision of minority rights would be a condition for the recognition of independence. In specific situations, negotiators proposed territorial autonomy in favor of minorities in order to guarantee their loyalty to the territorial state.
Not surprisingly, at present, a similar solution seems to be the subject of negotiations aimed at ending the armed conflict in eastern Ukraine (“Donbass”).
From this perspective, it seems that the basic international approach towards minority rights has remained unchanged over the centuries. However, on the other hand, we must not ignore that the evolution of international human rights law has caused a paradigm shift within the international legal system.
Minority protection and international human rights law
Whereas the system of the League of Nations was built upon the protection of national minorities (and their members) and did not include any legal and political standards for the protection of general human rights, after 1945, the Universal Declaration of Human Rights intended to establish a human rights system addressed to all individuals “without distinction as to race, sex, language, or religion”. Human rights protection which, from a traditional legal perspective, had been conceived as an internal affair of sovereign states was introduced as a new revolutionary element in international law.
Actually, the relation between the new field of general human rights protection and traditional minority protection was not completely clear at the beginning. Despite some drafts that aimed at including minority protection into the Universal Declaration of Human Rights, the General Assembly in 1948 did not adopt an explicit minority protection clause within the frame of the Declaration. Although the General Assembly, in its resolution 217 C (III) of 10 December 1948, stated that the United Nations should not remain indifferent to the fate of minorities, the General Assembly decided not to mention the problem in the Universal Declaration of Human Rights, as it would have been difficult to adopt a uniform solution of the minority question The international community found that, in principle, members of national minorities were to be sufficiently protected by the non-discrimination clause provided for in the Declaration.
With regard to the ambivalent relation between human rights and minority rights under the UN system, the Secretary-General in a study of 1950 admitted that respect for human rights and non-discrimination on the one hand, and the protection of minorities on the other, are concepts which do not entirely coincide. According to the Secretary-General, the protection of minorities is a broader concept than human rights protection as it includes special privileges e.g. in the fields of linguistic rights and education.
Although human rights protection and minority protection shared some common goals, the Secretary-General pointed at two major differences. Whereas minority protection under the League of Nations applied only to a few states (almost exclusively in Eastern Europe), respect for human rights was built upon the principle of universal application. Unlike minority protection that applies to some sections of the population only, respect for human rights shall apply to all individuals. Therefore, the UN Secretary-General in 1950 concluded that the old minority protection system had to a large extent been replaced by the system of international human rights protection.
In the light of these arguments, international law was no longer to be understood as a system of norms addressed exclusively to states and collective entities, but also included individuals and their inherent rights.
Whereas UN bodies after 1945 viewed minority protection and human law rather as competing areas, some human rights treaties, indeed, have chosen an inclusive approach and are aimed at integrating minority rights into the body of human rights law.
When in 1966 one of the major universal human rights treaties, the International Covenant on Civil and Political Rights (ICCPR), introduced a minority protection provision in Article 27, the preamble of the treaty made explicit reference to the inherent dignity of the human person and equal and inalienable rights of all members of the human family. Thus, it was made clear that human rights and minority rights form a unity or, in other words, minority rights within the meaning of Article 27 are a part of human rights.
This assumption has been confirmed even more clearly on the regional level. Article 1 of the Framework Convention for the Protection of National Minorities (FCNM), which was opened for signature by the Council of Europe in 1995, stipulates that 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. Therefore, just like the minority treaties of the interwar period, the FCNM contains a number of human rights provisions such as freedom of assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion (Articles 7 and 8).
National minorities and human rights morality
Despite the holistic concept introduced by contemporary human rights law, some crucial conflicts remain unresolved. The individualistic approach towards human rights, for example, does not explain sufficiently how collective entities shall be represented in a legitimate manner. This is especially true for collectives such as some religious communities and some indigenous minorities who themselves seem to show disrespect for the fundamental rights of their members (e.g. women and children).
More fundamental conflicts are caused by the different moralities of human rights law and minority protection law. The Universal Declaration of Human Rights and other major human rights documents, by introducing a system inherent everybody´s rights, are based on the concept of universal morality. All members of the human family shall have the same rights irrespective of their ethnicity, language or religion. Consequently, the principle of non-discrimination has been set out as the cornerstone of human rights protection.
However, in the course of the following decades, the codifications of everybody´s civil, political, social and economic rights have been amended by an ever-growing number of hard law and soft law documents reflecting the rights and specific vulnerabilities of women, children, migrant workers, persons with disabilities, sexual minorities, socially marginalized people, asylum seekers, the elderly, etc.
This fragmentation of human rights law might be well explained by the doctrine of positive obligations. In the light of human rights protection, it is not sufficient for states parties to merely abstain from interfering with individual rights. In specific situations, states shall adopt appropriate measures to secure the effective enjoyment of fundamental rights by all people within their jurisdictions. From the perspective of vulnerable minorities suffering from the consequences of historical and contemporary injustice, preferential treatment may be required. Various human rights bodies have confirmed the legitimacy and legality of such measures as long as they are aimed at removing and compensating structures of historical inequality and historical wrong.
This new moral concept of human rights law is somehow colliding with the pragmatic tradition of minority protection. Whereas, the minority provisions of the Versailles system were conceived as a political compensation taking into account political reality, in the frame of human rights law, moral compensation has become more relevant. At Versailles, political compensation was agreed upon with regard to concrete power relations. Therefore, minority protection, by its nature, is relative. This means that minority rights are granted with a view to the specific circumstances of a case. In contrast, human rights law, by its very nature, formulates absolute principles valid in all situations and for all individuals.
The UN Declaration on the Rights of Indigenous Peoples in its preamble recalls “that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests”. Although I fully agree with this general statement adopted by the General Assembly in 2007, I wonder about how to define the limits of moral compensation in such context. In which way human rights law shall address cases of injustice which happened 50, 100 or 500 years ago? Which kind of moral compensation shall be provided? It might seem quite surprising in which manner human rights lawyers and activists, in the past years, have started to interpret European asylum and migration law as a form of moral compensation which shall be provided to the descendants of former victims of racism and colonialism.
This development affects the protection of a national minority indirectly but, nevertheless, very significantly. The call for moral compensation which is immanent to current human rights law has led to a battle for resources between different social groups. Practice shows that in this highly competitive market national minorities are at a disadvantage. Whereas, for example, the interests and human rights claims of migrants, asylum-seekers, members of sexual minorities are supported by strong financial and political networks, national minorities are much less visible in the human rights discourse.
The weak position of national minorities, in the first place, is not the result of a lack of generous donors and media coverage, although this fact may be relevant as well. It is more important that the moral standing of national minorities is significantly weaker than the position of pro-migration movements and LGBTIQ people. As the very existence of national minorities is, among others, based upon ethnic identity and the will of the group to preserve this identity, minority protection seems to be an anachronism, in the best case. The focus on distinct ethnic identity which shall be preserved may also be interpreted as a dangerous form of nationalism and rightist populism. A feeling of solidarity based upon ethnicity, paradoxically, is in stark contrast to the ideology of multiculturalism and diversity which favors fluid identities of the individual and views with deep skepticism long-lasting and stable ethnic and cultural ties inside communities.
Therefore, as current human rights law is focusing on the creation of diverse and multicultural societies it offers particular hierarchies of vulnerability and injustice. The interests of national minorities do not play a significant role within this system.
The future relationship between minority protection and human rights law
One major challenge of contemporary minority protection is to clarify its relation to human rights law. In order to be successful in the competitive market of human rights, national minorities need to strengthen their moral arguments e.g. by pointing at specific forms of vulnerability and historical injustice. Further, they need to focus on the acquisition of sufficient funding and effective PR campaigning. The strong moral standing of national minorities shall be communicated more clearly to human rights bodies which, so far, did not focus on this issue. As resources quite naturally are limited, national minorities need to successfully compete with other minorities, i.e. in particular well-organized new minorities.
As an alternative, national minorities may stress the distinct character of international minority protection, in contrast to the area of international human rights law. However, if minority protection shall be conceived as an autonomous field of public international law the international community has to provide separate resources and structures in order to maintain an effective system of protection.
Author: Harald Christian Scheu, Doc., Mag. phil., Dr. iur., Ph.D., is a member of the Department of European Law of the Law Faculty of Charles University in Prague. He teaches and conducts research in the fields of International and European Law and International Human Rights Law. Since 2015 he is a member of the Management Board of the European Union Agency for Fundamental Rights.
Image: Rally in Riga to defend the right to schools in mother tongue, 1 May 2018. © Vitaly Drobot