MINORITY RIGHTS.THE CHALLENGES OF WAR
AND ITS AFTERMATH
POST–WORLD WAR II
The fight for independence carried out by various religious and national minorities was a prominent factor in World War I, which from its start involved the rights of small nationalities (Serbia and Belgium). Nationality and self-determination were the basis of the postwar settlement advocated by President Woodrow Wilson in his Fourteen Points address to Congress on 8 January 1918, when he demanded at Point 9 "a readjustment of the frontiers of Italy … along clearly recognized lines of nationality"; at Point 10 that "the peoples of Austria-Hungary … should be accorded the freest opportunity of autonomous development"; at Point 11 the adjustment of Balkan relations "along historically established lines of nationality"; at Point 12 "an absolutely unmolested opportunity of autonomous development" for the minorities in Turkey; and at Point 13 the erection of an independent Polish state to include "the territories inhabited by indisputable Polish populations." In his address to Congress on 11 February 1918, the president declared that "all well-defined national aspirations shall be accorded the utmost satisfaction," under the condition that this would not have introduced new or perpetuated old elements of discord and antagonism likely to break the peace in Europe.
At the 1919 Paris Peace Conference that gave birth to the League of Nations the Allies were obliged to address the minority problem, given the twin impossibilities of giving birth to nation-states for all nationalities and of founding ethnically homogeneous nation-states in the territories of former multiethnic empires. International policy on the problem of minorities was developed in a twofold manner: firstly, in the drawing up of the Covenant of the League of Nations, based on President Wilson's Fourteen Points; and secondly, in the treaties on minorities, which for the first time established international regulation of this issue that included mechanisms of supervision and control. No provision for the protection of minorities was incorporated into the text of the Covenant of the League, although Wilson's second draft of 10 January 1919 contained an article according to which the League of Nations would have conditioned the recognition of new states on the promise to guarantee to all racial and national minorities the same legal status granted to the majority of the state population. Wilson's clauses would have required states to grant positive protection to minority groups, and there emerged a "general resistance to the formula of interposition of minorities as collectivities with special claims on the states" (Thornberry). More generally, the covenant shows a certain degree of ambiguity, and the concept of inferior and superior nations and peoples emerges in its provisions on mandates (Article 22: "peoples not yet able to stand by themselves"; "the tutelage of such peoples should be entrusted to advanced nations").
During the VIII Plenary Section President Wilson and French President Georges Clemenceau agreed on the need for special protection of minorities in certain states. A treaty was then signed at Versailles (28 June 1919) between the Allied and Associated Powers and Poland, which served as a model for similar "minorities treaties" signed with other nations, including Czechoslovakia and Yugoslavia (Saint-Germain, 10 September 1919), Romania (Paris, 9 December 1919), and Greece (Sèvres, 10 August 1920). Special chapters for the protection of minorities were also inserted into the peace treaties with Austria (Saint-Germain, 10 September 1919), Bulgaria (Neuilly, 27 November 1919), Hungary (Trianon, 4 June 1920), and Turkey (Lausanne, 24 July 1923). Later on, other treaties were signed with the aim of protecting minorities: the agreement between Sweden and Finland concerning the Swedish-speaking Åland Islands (approved by the Council on 27 June 1921); the German-Polish Convention on the protection of minorities in Upper Silesia (15 May 1922), the Graeco-Turkish agreement on the compulsory exchange of minority populations (30 January 1923), and the Convention on the Memel Territory of Lithuania (8 May 1924). Unilateral declarations regarding minorities were made before the Council of the League by five countries when admitted: Albania (2 October 1921), Lithuania (12 May 1922), Latvia (7 July 1923), Estonia (17 September 1923), and Iraq (30 May 1932).
The emphasis in these treaties was on the right to life and liberty; the free exercise of religion without discrimination on the grounds of race, religion, or language; equality before the law; the freedom to organize educational programs; and an obligation to ensure that elementary instruction of children was in their mother tongue. Such obligations were supervised by the League of Nations, and violations were subject to action by the League. Allegations of violations of the treaties were brought by the states to the Council of the League of Nations, and in many cases claims were taken to the Permanent Court of International Justice (PCIJ). Individuals also had the right to present petitions that were examined by the so-called Three Persons Committee. Between 1926 and 1939, 585 petitions were registered, 360 of which were declared admissible. Some of the petitions were brought to the PCIJ. In the case law of the Permanent Court, the two principles that emerged as necessary and complementary in order to ensure the survival of minorities were equality and autonomy: "Equality in law precludes discrimination whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations" (Minority schools in Albania, Advisory Opinion, PCIJ Ser. A/B, no. 64, 1935). The Secretariat of the League of Nations established minority sections and had observers in the field.
The system was certainly a first important step toward the creation of international standards safeguarding minority rights. Compared with the Treaty of Berlin of 1878, the Versailles minorities treaties were innovative in the sense that they attempted to embrace a mechanism and procedure for enforced compliance. Nevertheless, they did not establish a general system with universal application: no minimum standard of protection was provided for all European minorities, because obligations were imposed only on the newly independent (expansionist and irredentist) states and not on Allied and Associated states or even on Germany. The new states were obliged to limit their newly awarded sovereignty by accepting minority clauses imposed by the Great Powers as a condition for recognizing their new frontiers. Minority protection represented therefore a limitation of self-determination for the new states and was connected with the rise of expansionist and irredentist nationalism: the "quest for international minority protection in Europe involved the fusing of two powerful opposites: the attainment and maintenance of full national independence versus the expansion of outside control" (Fink).
In spite of President Wilson's Point 9, Italy was granted new frontiers by the peace treaty that included German-speaking minorities (in South Tyrol and Trentino) and Slovene- and Croatian-speaking minorities (in Trieste and maritime provinces) that were not protected by any treaty. Although not obliged by international law, in the first postwar period the Italian liberal governments (1919–1922) granted administrative and legislative autonomy to the territories inhabited by minorities. The use of their languages in public life, courts, and schools was guaranteed and the Italian language was gradually introduced, alongside the languages of the minorities. After 1924, with the consolidation of the Fascist regime, a process of denationalization and persecution began.
In Spain the quest for autonomy by the Catalans was rejected by the dictator Miguel Primo de Rivera (r. 1923–1930), but the Republic then granted limited local autonomy to Catalonia in the constitution of 9 December 1931. The Catalan Charter of Autonomy of September 1932 granted Catalonia the right to its own flag, president, parliament, and cabinet and to its official language. The Basques received more limited autonomy on 8 October 1936. The establishment of the Francisco Franco dictatorship in 1939 put an end to autonomy during the civil war in Catalonia and in the Basque country, and persecution of all minorities began.
In Ireland, the Sinn Féin party, founded in 1905 by Arthur Griffith with the aim of separating from England, obtained an overwhelming success in the elections of 1918. The members of the party that called themselves Dáil Éireann (assembly of Ireland) proclaimed in January 1919 the independent Republic of Ireland under the presidency of Eamon De Valera. On 6 December 1921 a treaty was signed by Great Britain and the Irish representatives (Griffith and Michael Collins). Southern Ireland became the Free State (Saorstát Éireann) and obtained the status of a dominion, in which the king was represented by a governor. Despite its ratification by both parliaments, the treaty produced a civil war between the moderates (authors of the treaty) and extremists lead by De Valera, at the head of the National Party (Fianna Fáil). In Northern Ireland a quasi-federalist system (home rule) was applied with local political bodies. In practice, however, it resulted in a system of hegemonic control by the majority and in discrimination against the Catholic minority, "systematically pushed out of the skilled industrial occupations which increasingly became Protestant monopolies" (Hobsbawm).
The Russian Empire was inhabited by almost one hundred nationalities. Among them, the Germans in the Baltic provinces, along with the Poles and the Finns, enjoyed a high level of autonomy until the first half of the nineteenth century. Later, the policy of russification of all minorities began. All groups, and the Jews in particular, experienced oppression, especially the denial of equality and political rights. The situation of minorities began to improve with the revolution of 1905, and with the democratic revolution in March 1917 their complete equality was proclaimed. The Baltic states, the Finns, and the Poles proclaimed their independence, and the rest of the empire was reconstructed as the USSR (1924) in which European and Asian peoples were organized in "federal" republics (originally seven, then eleven, and finally sixteen in the early 1950s). The constitution of the Soviet Union even enshrined the right of secession, but recognition of this right, in Lenin's opinion, in no way led to the "formation of small States, but to the enlargement of the bigger ones, a phenomenon more advantageous for the masses and for the development of the economy" (V. I. Lenin, Prosvestcenie nos. 4, 5, 6, April–June 1914).
Equality was formally guaranteed to all persons belonging to all racial and linguistic minorities, and minority religions were held to be on the same footing as the Orthodox Church. From a political point of view, the USSR actively promoted the use of minority languages to implement many social goals, such as literacy, compulsory education, and equality between men and women. However, no effective cultural and political autonomy could exist in practice, because the public life of all citizens was uniformly molded in the pattern of the totalitarian dictatorship.
Movements for national independence on the part of the larger national groups (Ukrainians, Caucasians, and Muslims in Central Asia) were suppressed, and the totalitarian direction of all life and the administration by the strictly centralized Communist Party provided a framework for uniformity. The discontent of minorities emerged in World War II, in which it became clear that Soviet government represented Russian domination.
The need for a general discipline concerning minorities in Europe was urged by many states. In 1933, Poland, with the support of other states, presented a draft multilateral treaty to the League of Nations that was open to all states and contained rules on the protection of minorities. The draft was rejected, as many states (including France and Italy) were in favor of a reduction of the level of protection settled in the treaties and, as a consequence, of the external interference on states with minorities. As a consequence, Poland renounced the Polish treaty on minorities on 13 September 1934 and stated that from then on minorities would be protected only by Polish law. This renunciation by the most powerful minority state influenced the others and produced a loss of credibility in the whole supervisory system of the League. In 1939 only four petitions were brought to the Secretariat and three were rejected. The tendency from then on was to solve the minority problem through bilateral treaties, a system that lasted even after World War II.
The final blow to the system devised by the League was the deterioration of international relations due to the rise of Nazism. With the nationalistic propaganda in Germany, Austria, Italy, Hungary, and Bulgaria, the principle of the protection of minorities was definitely put aside.
The beginning of World War II produced a worsening of the repressive and assimilatory measures against minorities in all fascist regimes. In Italy on 6 October 1938 the Fascist Great Council approved a "declaration on the race" that contained discriminatory measures toward non-Italians and Jews in particular. Members of minorities were prevented from urbanization, and minority working-class families were transferred to the African colonies. An exception to this attitude was the annexation of the province of Ljubljana to Italy in 1941, which was accompanied by special legislation of the kind applied in the occupied Dalmation Slavic-speaking areas (Trau, Sebenico, Spalato, and Cattaro) and accorded to the local population a minimum standard of protection.
In Nazi Germany, there were two stages of genocide: the elimination of the national pattern of the oppressed peoples and the establishment of the national pattern of the oppressor. It included the prohibition of the use of local languages and compulsory education in the spirit of the official ideology ("cultural genocide"), various measures to favor a lower birthrate in non-German populations and a higher rate in German groups ("biological genocide"), racial discrimination, and mass killing of certain groups ("physical genocide").
The victorious powers decided with the Potsdam Declaration of 1945 to solve the German minority problem by compulsory transfer. As a result of the implementation of this decision 6,650,000 persons were sent to the four occupied zones. Between 1945 and 1947 a number of treaties were signed to allow voluntary repatriation of central and Eastern Europeans (for example, Poland signed such an agreement with the USSR, Czechoslovakia, Yugoslavia, and France).
The new multilateral and bilateral treaties
Peace settlements after World War II led to the conclusion of several multilateral and bilateral instruments and measures forbidding discrimination or providing for special protective measures for ethnic, religious, and linguistic minorities. The agreement signed in 1946 between Austria and Italy related to the rights of the German-speaking minority in the Bolzano province. The 1947 peace treaty with Hungary and Romania and the 1955 Austrian State Treaty contained general provisions prohibiting discrimination. The latter also provided specific provisions concerning the Croats and Slovenes in the three Austrian provinces of Carinthia, Burgenland, and Styria. The 1954 agreement among Italy, Great Britain, the United States, and Yugoslavia concerning Trieste established the protection of the Yugoslav and Italian minorities in the respective parts of the region of Trieste. Also, agreed statements by Denmark and the Federal Republic of Germany in 1955 included special provisions to protect German and Danish minorities.
Such treaties, unlike the ones signed after World War I, did not provide a specific discipline for the protection of minorities. The reason is twofold: on one hand, the problem was significantly less consistent in practice thanks to the transfer of populations and the changing of the frontiers; on the other hand, the atmosphere in Europe had changed (mainly as a result of the use made by the Nazis of the alleged ill-treatment of German minorities in central Europe). Minority rights fell into disfavor and were seen as a threat to peace.
International and supranational treaties protecting human rights
After World War II a new universal and individualistic conception of human rights prevailed. For a long time the very idea of a specific, internationally recognized status for national minorities as collective subjects was put aside in the hope of solving the problem not through special group rights but by guaranteeing basic civic and political rights to all individuals regardless of group membership. However, the ongoing quest for rights by European minorities and their resistance to assimilation demonstrated the limits of such a conception—which resulted in rendering "minorities vulnerable to a significant injustice in the hands of the majority" (Kymlicka) and the importance of having an international discipline for the protection of minorities. Under the UN Charter of 1945 and the Universal Declaration on Human Rights (1948), persons that belonged to minority groups were protected only by the principles of equality before the law and the prohibition of discrimination on the grounds of race, language, and religion. Nevertheless, the Economic and Social Council authorized the Commission on Human Rights to make a recommendation on this subject and approved the establishment in 1947 of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities. While nondiscrimination implies a formal guarantee of equal treatment before the law and a uniform treatment for all individuals, protection implies special measures or even affirmative action on the part of the state in order to protect the special features of the minority and prevent it from assimilation. Moreover, special rights may be conferred on individuals within minorities, but obviously they also have a collective dimension as they are aimed to protect the interests of the individual not only as an individual but also as a member of the group.
The first general convention to recognize and protect the fundamental collective rights of minorities was the Convention on the Prevention and Punishment of the Crime of Genocide (1948), which in Article 2 defines the objects of protection as a whole or part of "a national, ethnical, racial or religious group." Linguistic groups were not included because language was regarded as an element of national collective identity. This convention protects the right to the existence of a minority, which does not only coincide with the right to life of its members but also the right of the group to exist through the shared consciousness of its members, the prerequisite for the enjoyment of all other rights. Therefore Article 2 affirms that the acts that constitute genocide are: "(a) killing members of the group;(b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;(d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group."
Article 27 of the 1966 International Covenant on Civil and Political Rights declares that: "In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language." This implicitly confers on the states a precise duty that is likely to require, in order to be fulfilled, some form of positive action. In order to supervise the implementation of this article, three instruments can be used: state reports, state complaints, and individual petitions (Articles 40 and 41 and the Optional Protocol to the Covenant). Reports by states have developed dramatically since the first years, as most states have issued particular laws that protect minorities.
The same approach was taken by the 1960 UNESCO Convention against Discrimination in Education: "5(c) It is essential to recognize the right of members of national minorities to carry on their own educational activities, including the maintenance of schools and, depending on the educational policy of each State, the use or the teaching of their own language." More explicitly, the UN General Assembly's (non–legally binding) 1992 Declaration on the Rights of Persons Belonging to National, Ethnic, Religious, or Linguistic Minorities states the principle of both formal and substantial equality in order to preserve and develop the characteristics of the minorities.
The European Convention on Human Rights of 1950 refers to national minorities in Article 14, which states that "association with a national minority" constitutes one of the grounds on which discrimination is forbidden. Individuals belonging to national minorities are therefore protected, but minorities themselves do not enjoy any specific legal status. Despite this absence of specific attention to languages and minorities, there has been, as Geoff Gilbert puts it, a "burgeoning" minority rights jurisprudence of the European Court of Human Rights.
The Final Act of the Conference on Security and Co-operation (CSCE; since 1995 the OSCE) in Europe adopted in Helsinki in 1975 mentioned the right of persons belonging to minorities to equality before the law and the duty of the signatory states "on whose territory national minorities exist" to "afford them the full opportunity for the actual enjoyment of human rights and fundamental freedoms" in order to "protect their legitimate interests in this sphere" (Principle 7). Principle 7 also contains a guarantee for religious minorities: participating states will "recognize and respect the freedom of the individual to profess and practice, alone or in community with others, religion or belief." In the concluding documents produced by the followup meetings (Vienna, 1989; Copenhagen, 1990; Geneva, 1991; Helsinki, 1992), as well as the Oslo recommendations on linguistic rights (1998), the positive obligation of the states to preserve the collective rights of minorities was clearly stated, along with their duty to create conditions for the promotion of the ethnic, cultural, linguistic, and religious identity of national minorities in their territory. All decisions of the OSCE are not legally binding, although they have an important political significance.
In the framework of the Council of Europe, the European Charter for Regional or Minority Languages (1992) and the Framework Convention for the Protection of National Minorities (1994) form an important site for the gradual development of a minimum standard with regard to the legal position of regional and minority languages. The Framework Convention is self-executing, but only regarding the loose commitments that the states have undertaken toward the minorities. Beyond this point the execution of this convention requires special regulations in order to be effective at the domestic level. Both the Framework Convention and the Charter on Languages entered into force in 1998. By 2005 neither of the two was yet so universally accepted as the European Convention on Human Rights (1950), but the number of states parties was rising. Nineteen states had ratified the Charter on Regional and Minority Languages, including thirteen of the twenty-five member states of the European Union (United Kingdom, Sweden, Spain, Slovenia, Slovakia, Netherlands, Luxembourg, Hungary, Germany, Finland, Denmark, Germany, and Austria). The Framework Convention was much closer to becoming a genuine pan-European standard; by 2005 it had been ratified by thirty-seven states, and the only ones missing, apart from some mini-states, were Turkey and four European Union states: Belgium, France, Greece, and Luxembourg.
The provisions of these two treaties do not seem easily capable of directly affecting the national legal order of nation-states. Also, their international supervision mechanisms do not lead to binding judicial or quasi-judicial decisions. Periodic state reports on the application of the conventions must be submitted to the Committees of Experts that were set up under each of the two conventions. However, the dynamic approach adopted by these committees in fulfilling their monitoring tasks is quite remarkable, perhaps even unprecedented in international monitoring practice. They have established a dialogue with the governments concerned, visit the country and speak to minority groups, and do not hesitate to make statements as to whether the states have adequately complied with their obligations, expressing detailed views on how to improve the situation. These statements then lead to recommendations adopted by the Committee of Ministers of the Council of Europe and, in fact, the ministers have so far largely followed the views of the experts. Pressure is thus exerted on the states to adopt best practices as formulated by the expert bodies.
Within the European Union, the Treaties of Maastricht (1992), Amsterdam (1997), and Nice (2001) declare that the full development of the culture of the member state, respecting its national and regional differences, constitutes one of the objectives of the Community (Article 128 of the Treaty of Maastricht and Article 151 of the Treaty of Amsterdam). The Charter of Fundamental Rights of the European Union (2000) states, along with the principle of nondiscrimination on the grounds, inter alia, of ethnicity, language, and belonging to a national minority (Article 21), the respect by the EU of cultural, religious, and linguistic differences (Article 22). The project of the Constitutional Treaty of the EU (2004), which includes the Charter of Fundamental Rights, states, among the values that also have to be fulfilled by candidate member states, the respect for human rights, including the rights of persons belonging to a minority (Article I-2; Article I-57)
Not all European states protect minorities through positive measures. France is an example of a neutral, or agnostic, state, in the sense that it does not protect a (collective) "right to difference" or to cultural identity, the expressions of which should be left to the private sphere. Language, religion, and culture are grounds on which discrimination is forbidden but not on which a special status may be conferred. The only applicable principle is equality before the law: no one may suffer negative treatment because he or she belongs to a minority, but minorities are not protected as such. (With decision no. 99-412 DC of 15 June 1999, the French Constitutional Council ruled that Article 7 of the preamble of the European Charter of regional languages was unconstitutional as it confers "specific rights to those speaking regional or minority languages within the territories in which such languages are spoken.") Neutral states do not constitute the rule. Almost all European systems protect minorities also through domestic legislation. Most constitutions provide for the protection of linguistic or national minorities and/or minority or national languages: In the constitution of Italy, Article 6; Spain, Article 3, paragraphs 2 and 3; Switzerland, Articles 4 and 70; Belgium, Articles 2 and 30; Ireland, Article 8; Finland, Article 17; Sweden, Article 2, paragraph 4 and Article 15; Austria, Article 8; Slovakia, Articles 6 and 33; Poland, Articles 27 and 35; Croatia, Articles 12 and 15; Albania, Article 20, paragraph 1; Romania, Articles 6; 32, paragraph 2; 59, paragraph 2; and 127, paragraph 2; Slovenia, Articles 11 and 64; Lithuania, Article 45; and Estonia, Article 37.
The state representatives in the Meeting of Experts on National Minorities, held by the CSCE in Geneva in July 1991, took account of the diversity and the variations in constitutional systems and identified different positive approaches pursued by European democracies. These included advisory and decision-making bodies in which minorities are represented, in particular with regard to education, culture, and religion; elected bodies and assemblies of national minority affairs; local and autonomous administration as well as autonomy on a territorial basis, including the existence of consultative, legislative, and executive bodies chosen through free and periodic elections; self-administration by a national minority of aspects concerning its identity in situations where autonomy on a territorial basis does not apply; and decentralized or local forms of government.
In general terms there are two main constitutional models of protection. The first may be described as the "states of minorities," where all languages are co-official, despite the numeric consistence of the groups and in which the monopoly of each minority corresponds to the territorial dimension of the state sub-unit. This is typically the case of asymmetrical federations such as Belgium and Switzerland in which all languages enjoy an equal status at the federal level, whereas at the local level linguistic territoriality is strictly applied, resulting in monolingual sub-units. A second category is that of the states that recognize the existence of a linguistic majority/minority relationship and in which the protection of minority rights is a fundamental principle of the constitutional system. In such cases minorities enjoy a special degree of positive protection (that derogate to the principle of formal equality) on the basis of the classical principles of welfare states, in which the interests of social groups are legally relevant (for example, Article 6 of the Italian constitution: "The republic protects linguistic minorities by special laws"). Such states are typically those characterized by a large linguistic majority and by one or more linguistic minorities. If there are multiple minority groups, the level of protection of their linguistic rights may not be the same. Numerical, historical, political, and economic differences may constitute the grounds for choosing different models of protection, such as in Italy and Spain, in which the regions inhabited by the most consistent minorities enjoy a higher degree of autonomy, and such as Finland, in which political autonomy is conferred only to the Swedish-speaking Åland Islands.
If the protection is effective in "old" European democracies, younger ones have so far succeeded only to a limited extent in assuring a minimum standard of minority protection, in spite of the constitutional and legislative provisions that they have adopted with this aim. In most cases (e.g., the Balkan states) this is due to the foundation of the newly independent states on an ethnic and nationalistic basis, in which all citizens are equal before the law, regardless of their nationality, but the majority nation is the only subject that, having the right to statehood, is entitled to legitimize the newborn state. Consider the wording of the preamble to the Croatian constitution of 1990: "Proceeding from … the inalienable, indivisible, non-transferable and non-exhaustible right of the Croatian nation to self-determination and state sovereignty, … the Republic of Croatia is hereby established as the national state of the Croatian people and a state of members of other nations and minorities who are its citizens." Thus majority nations create states, and through their legitimacy, can recognize the rights of minorities to live there.
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