Minority Rights in International Law

I. Introduction

The twentieth century has seen a cyclical resurgence of the issue of minority rights. The first international regime of minority protection was put into place following World War I within the framework of the League of Nations. The League system is widely credited both for acknowledging that minority rights exist and for legitimizing minority protection as an area of international concern. Its main failing, however, was that it never became universal, thus leading to discontinuity with the human rights system established after the Second World War. The mid-twentieth century inaugurated the era of individual human rights. While some progress was made over the ensuing decades in defining minority rights, the legal framework for responding to crises involving minorities did not become sophisticated enough. Since the end of the Cold War and the crises in the former Soviet Union and the former Yugoslavia, the importance of minority rights has once again been forcefully demonstrated in the international arena. This article will attempt to outline the existing international framework and some of the key issues that are still being debated.

It is submitted, however, that normative efforts at regulating minority rights cannot and will not be successful as long as an underlying policy dilemma remains unresolved. That dilemma may be summed up in the following question: multinationalism or postmodern tribalism? ¹

A multinationalist approach to dealing with minority issues is one in which legal solutions are conceived and implemented based on the idea that diversity, plurality, tolerance, and mutual respect are values that deserve to be upheld. It entails striving for the equality of minorities not only in law, but also in fact, by means of specifying and expanding the currently vague content of minority rights and the mechanisms for their implementation. It follows that the essence of a multinationalist approach is compatible with the principle of territorial integrity of states. This differs from the phenomenon of postmodern tribalism, which has been described succinctly by Professor Franck as one that “seeks to promote both a political and a legal environment conducive to the breakup of existing sovereign states. It promotes the transfer of defined parts of the populations and territories of existing multinational or multicultural states in order to constitute new uninational and unicultural—that is, postmodern tribal—states.” ²

It should not be inferred from the above that a unicultural outcome may never be acceptable, because certain factual situations simply might warrant it. What is implied is that multinationalism, as a policy, should be given preference over uninationalism. Such a preference cannot be derived from the existing international law on minorities. In fact, no preference in either direction can be gleaned. There are few legally binding provisions relating to minority rights and even they are of disputed meaning. Implementation mechanisms, similarly, leave much to be desired. While legally nonbinding instruments offer better guidance on certain aspects of minority rights, their debilitating weakness is that they cannot be used to demand compliance. Lastly, almost a century after the creation of the first minority rights regime there still is no definition of what is a minority under inter-national law.

II. Attempts to Define a Minority in International Law

The expression “minorite de race, de langue et de religion,” as well as the term “minorites nationales,” became part of international law terminology during the era of the League of Nations. ³ There was, however, no attempt to define what a minority was. Efforts to tackle this issue within the United Nations were practically coincidental with the organization’s establishment, but proved no more successful. ⁴ Neither the United Nations Charter ⁵ nor the 1948 Universal Declaration on Human Rights (UDHR) ⁶ include reference to minorities, even though there were suggestions to insert a provision on minorities in the latter. The UN General Assembly (GA) declared at the time that “the United Nations cannot remain indifferent to the fate of minorities” and explained that agreement could not be reached because of the difficulty of adopting “a uniform solution [to] this complex and delicate question, which has special aspects in each State in which it arises.” ⁷ The...