Minorities in Eastern Europe and the Former USSR: Problems, Tendencies and Protection
| Author | Rein Mullerson |
| Date | 01 November 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb01907.x |
| Published date | 01 November 1993 |
Minorities in Eastern Europe and the Former
USSR:
Problems, Tendencies and Protection
Rein
Mullerson
*
Even before the dissolution of the USSR, Yugoslavia and Czechoslovakia, issues
concerning minorities and protection of their rights and interests had once again
become topical. These problems have now come to overshadow many other issues
concerning the protection of human rights and fundamental freedoms.
In this article, after a brief historical excursus into the issue,
I
will consider the
minority situation in the new states which have emerged
in
lieu of the erstwhile
Soviet Union.
I
shall draw too on some examples from other post-socialist states.
As nationalism clearly affects the resolution of minority problems, special
attention will be given to this issue. Finally, some controversial legal and political
questions concerning the protection of minorities in the light of relevant
international instruments will be analysed and a number of proposals made.
A
Some Historical Remarks
on
the Problem
An early focus of attention on issues of minorities was concerned with the
protection of religious minorities in different European countries in the
seventeenth century. For example, the Treaty between the King of Hungary and
the Prince of Transylvania of
1606
accorded to the protestant minority in
Transylvania free exercise of its religion. Again, one of the most famous treaties
of that time
-
the Treaty of Westphalia, concluded in
1648
between France and
the Holy Roman Empire and their respective allies
-
granted religious freedoms
to the Protestants in Germany in terms of equality with Roman Catholiw2
Approximately at the same time, European powers started to conclude treaties with
the Ottoman Empire in order to protect their respective religious minorities.
Article
7
of the Austro-Ottoman Treaty of
1615
reads as follows:
Ceux qui proffessent Ctre le peuple de JCsus-Christ et qui obCissent au Pape, de quelque dknomination
que le soit, kclesiastiques, moines,
ou
JCsuites, auront le droit de construire les Cglises dans les Etats du
s6rCnissime Empire des Turcs
oh
ils
pourront d’aprks leurs usage, conformdment au statut de leur ordre
et d’aprks l’antique rite, lire I’Cvangile, se rkunir en assemblks et vaquer ou service divin.’
It is interesting to note that already in the nineteenth century recognition
of
new
states was linked with their treatment of minorities. The contracting parties to the
Treaty of Berlin of
1878
(Austria, France, Germany, Great Britain, Italy, Russia
and Turkey) declared that they would recognise Romania and Bulgaria provided
that the following requirements were met:
The difference
of
religions, creeds and confessions shall not be alleged against any person as a ground
for exclusion
or
incapacity in matters relating to the enjoyment of civil and political rights, admission to
public employments, functions and honours,
or
the exercise of the various professions and industries in
any locality whatsoever. The freedom and outward exercise of all forms of worship shall be assured to
*Visiting Centennial Professor, London School of Economics.
1
A.
de Balogh,
La
protection internationale des minorit&
(Paris:
Les
editions internationales,
1930)
p
23.
2
F.L.
Israel,
Major Peace Treaties
of
Modem History.
1648-1967,
vol
1
(New
York,
1967)
pp
7-49.
3
See
P.
Thornberry,
Inremational
Law
and the
Rights
of
Minorities
(Oxford: Clarendon Press,
1991)
p
21.
793
0
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1993
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The Modern Law Review
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all persons belonging to the State, as well as to foreigners, and no hindrance shall be offered either to the
hierarchical organisation of the different communities, or to their relations with their spiritual chiefs.‘
In the context of contemporary discussion whether minorities consist of only
nationals of a state or also foreigners, it is necessary to underline that in this Treaty
religious rights were granted to aliens as well as to nationals.
A new wave of attention to the plight and protection of minorities came after
World War
I
and had as its main reason the redrawing of the political map of
Europe and emergence of new states following on the dissolution of the empires.
The experience of the League of Nations period of the protection of minorities has
been a subject of lengthy studie~,~ which makes it unnecessary to analyse the
modest achievements of the League’s minority protection system, as well as the
reasons of its general failure. Nevertheless, there were elements in that system
which are still of relevance today. For example, special minority treaties contained
stipulations regarding the acquisition of nationality. These stipulations provided
that the nationality of the newly created or enlarged country should be acquired by
persons habitually resident in the transferred territory; or by persons born in the
territory of parents domiciled there at the time of birth, even if they were not
themselves habitually resident there at the coming into force of the Treaty. The
treaties also provided that nationality should be
ips0
fact0
acquired by any person
born in the territory of the state, if he or she could not prove another nationality.6
Another element which sounds contemporary is a clause in a resolution of the
Assembly of the League of Nations on 21 September 1922 which declared:
L
While the Assembly recognises the primary right
of
the minorities to be protected by the League from
oppression, it also emphasises the duty incumbent upon persons belonging to racial, religious or
linguistic minorities to co-operate as loyal fellow-citizens with the nations to which they belong.’
It has been argued that the ultimate failure of the League’s system of minority
protection was caused not by shortcomings in the system itself, but by the overall
situation in the world and especially in Europe. After all, the system was but part
and parcel of the international structure established at Versailles, adopted to meet
particular conditions arising from the territorial settlements made there. Inevitably
the minorities system depended on the general state of international order and
relations, and when that order disintegrated the system collapsed with it.
According to T.H. Bagley:
The between-war world was witness to an appalling phenomenon
of
retrogression, a backsliding of
morals and politics. Dictatorships replaced democracies, hate and intolerance flourished, power
overrode reason, and passionate nationalism crushed the growing bloom of international co-operation.
That minorities should suffer in such a climate was inevitable; in fact it was quite natural that they
should
be
the first to suffer therefrom8
After World War
11,
other issues overshadowed problems concerning the
protection of minorities, though they were not, of course, completely ignored. In
the domain of human rights, the United Nations put the main emphasis on the
elaboration of norms related to the protection of rights of individuals and the right
of colonial peoples to self-determination. The only tangible, but nevertheless
important achievement in the domain of protection of minorities was the adoption
4
See
F.
Capotorti,
Study
on
the Rights
of
Persons Belonging to Erhnic, Religious and Linguisric
Minorities
(New York: United Nations,
1991)
p
3.
5
ibid
pp
16-26.
6
F.
Capotorti,
op
cit
n 4, p
18.
7
F.
Capotorti,
op
cit
n
4,
p
19.
8
T.H. Bagley,
General Principles and Problems
in
the Protection
of
Minoriries
(Geneva:
1950)
p
126.
794
0
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1993
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