Conceptual Problems in the Protection of Minorities: International Legal Developments

I. Introduction

Not since the close of the First World War has the issue of minority rights achieved the central place in international relations and their legal regulation that it currently occupies. The volatility of central European inter-communal conflict, epitomized by the assassination in 1914 of Archduke Ferdinand of Austria in Sarajevo, in the capital of what is now Bosnia-Herzegovina, is commonly considered as having spurred the outbreak of the “Great War.” A desire to attenuate that conflict and achieve respect for the post-war redrawn frontiers of the region led to the establishment of the minority treaties regime. It was a regime primarily imposed on the defeated powers by the victorious powers who were not interested in a general regime for the protection of minorities (that is, one that would restrict the victorious powers’ treatment of their own minorities). The regime declined with the fortunes of the League of Nations which was meant to supervise it.

Present concern for minority protection arises from the post Second World War approach to the problem in Eastern Europe. After a period of massive forced population transfers, engaged or acquiesced in by the Allies that founded the United Nations, ¹ minority movements were effectively suppressed. Despite the existence of constitutional structures, (as in Yugoslavia or the Soviet Union) of a federal nature, that could even envisage a right to secession, the reality of totalitarian one-party rule ensured that most social differences were prevented from finding political expression. In particular, minority aspirations were frozen. The ice that engulfed them during the Cold War did not eliminate them. On the contrary, they remained an unfinished agenda preserved intact. With the demise of Soviet control in Eastern Europe and the collapse of the Soviet Union itself, together with the ending of the Cold War, the door was open for a return to older agendas. From Bosnia to Azerbaijan, from Georgia to Macedonia, the lamentable results give us our daily headlines.

It is not the purpose of this essay to add to the already extensive literature analyzing the causes of inter-communal conflict or schemes for dealing with minorities’ questions. ² Neither does it seek directly to revisit the vexatious problem of the definition of a minority, ³ although the matter has unquestionable relevance to the issues under discussion. Neither, finally, does it review the questions relating to self-determination: which minorities constitute a people entitled to self-determination? When does self-determination imply a right to secession or merely to autonomy within an existing state? And in the latter case, what form should the autonomy take?

The limited objective here is to consider how international law addresses three related problems that bedevil political and legal discourse in the field. The first is the problem of how to reconcile the demand for the provision of special rights for members of minority groups with respect to the rights of others, that is, with the principles of nondiscrimination and equality under the law. The second is how to reconcile special arrangements for minority groups with respect to the individual human rights of members of the minority. The third is how to reconcile such arrangements with respect to the rights of minorities within the minority.

II. Equal Rights Versus Special Treatment

In 1894, Anatole France spoke of “[T]he Law’s majestic equality, which forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread.” ⁴ In this telling phrase, he captured the perennial tension between form and substance in law. The aphorism demonstrates the reality that a neutral norm applied to parties in an unequal condition can have an unequal effect. That unequal effect may be intentional or accidental. But it is real, and, once it is consciously perceived, is apt to generate a profoundly alienating sense of injustice. High sounding principles can have the ring of hypocrisy in their application. It may be hazarded that no single factor was more potent in the Marxist debunking of concepts such as the rule of law and human...