Review of International Studies (1999), 25, 389–410 Copyright © British International Studies Association Religio–nationalist minorities and the development of minority rights law

GEOFF GILBERT*

Abstract. The end of the Soviet period in Central and Eastern and the has seen the open development of tensions in the region based on the presence of minority groups in states trying to reassert their individual identity. There has been a flurry of international activity by various organizations to establish minority rights standards and to ensure their implementation. It is the thesis of this article that the idea of minority rights in stems originally from the treatment of religious minorities, and subsequently minorities defined in other terms, in this region, and that modern mechanisms to guarantee minority rights can be seen to have developed from the perceived need to make minority rights a matter of international concern rather than one solely for the kin-state. The various mechanisms in use now directly build upon the perceived successes and failures of earlier systems.

‘[The] “problem” of minorities . . . [is not] as susceptible of solution as those of physics and mathematics!’ (de Azcárate, and National Minorities, p. vii)

Introduction

Since 1989, Europe has witnessed its most intense period of reconstruction since the end of : the creation through war of five new states from the former Yugoslavia; the division of Czechoslovakia; tension concerning ethnic in Kosovo, and , ethnic Greeks and Macedonians in , ethnic in the Slovak Republic and , and ethnic Russians in the Baltic States; and the Roma community has suffered overt discrimination throughout most of the region. With the break-up of the former Soviet bloc from 1989 onwards, therefore, increased attention has been given to the international law of minority rights, particularly in Central and Eastern Europe and the Balkans. A prime example of this interest in resolving minority issues is the Framework Convention for the Protection of National Minorities, 1995,1 promulgated by the Council of Europe. It is the first multilateral treaty to deal exclusively with minority rights.2 This convention sets out a series of rights for national minorities focusing on

* The author is indebted to Françoise Hampson, Alison Jolly, Jane Wright, Peter Luther and Nigel Rodley for their views on an early draft—needless to add, the views expressed and any errors are mine alone. 1 International Legal Materials, 34 (1995), p. 351—in force, February 1998. See G. Gilbert, ‘The Council of Europe and Minority Rights’, Human Rights Quarterly 18 (1996) pp.160–89. See also, the European Union sponsored Pact on Stability in Europe, 20–21 March 1995, esp. para. 5. 2 Cf. General Assembly 1992 Resolution and Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, International Legal Materials, 32 (1993) p. 911. 389 390 Geoff Gilbert their linguistic, religious and cultural identity which states parties are meant to implement progressively within their domestic systems. The Framework Convention reflects a realization by the Council of Europe that the human rights to be found in the European Convention for the Protection of Human Rights and Fundamental Freedoms are not sufficient for minority popula- tions. Such a realization that human rights alone are not adequate to protect minorities, however, built on earlier developments. At the international level, while the Universal Declaration of Human Rights, 1948, had not mentioned minorities, Article 27 of the International Covenant on Civil and Political Rights 3 provides: 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 practice their own religion, or to use their own language. At the regional level, the Organization for Security and Co-operation in Europe not only concluded the Copenhagen Document, 1990,4 setting out a series of far- reaching rights for national minorities about which there had been political con- sensus, but also established the High Commissioner on National Minorities as a tool of conflict prevention.5 The international protection of minority rights is usually treated as having been established by the peace settlement at the end of World War I, with the detailed mechanisms being worked out by the League of Nations. However, the protection of minority groups goes back much further in history, focusing originally on the status and freedoms accorded to groups defined by their religious affiliation. It is the object of this paper to explore these earlier arrangements protecting religious minorities and their development, and to examine the links with present systems and practice. Any article which seeks to use five hundred years of history relating to so large an area as Central and Eastern Europe and the Balkans, however, will inevitably rely on generalisations which do not fit every particular case—all minority groups are different and the trends referred to did not develop as a continuous, uni-directional stream, but ebbed and flowed. Nevertheless, this overview reflects the predominating, discernable trends which, to continue the analogy with a river, established its final direction and course. There is one specific problem that religious minorities present that linguistic, ethnic, cultural or even nationalist minorities do not. The nature of most religions is that the believers acknowledge some supernatural being or revered teacher as guiding their lives and community. As such, compromise can be difficult, if not impossible, to achieve in balancing competing interests of the group and the state— it is hard for people to give up what they perceive to be a God-given right, particularly where they believe that to do so would be morally wrong. This is an

3 UNGA Res.2200A(XXI), UNGAOR, 21st Session, supp. no. 16, 52 (1966); 999 UNTS 171; International Legal Materials, 6 (1967) p. 368; American Journal of International Law, 61 (1967), p. 870. Hereinafter, ICCPR. 4 OSCE (CHD) Copenhagen Document, Human Rights Law Journal, 11 (1990) p. 232. The OSCE does not ordinarily promulgate legally binding treaties, but works through political consensus. 5 The Helsinki Document 1992, The Challenges of Change, Human Rights Law Journal, 13 (1992), p. 284. Religio–nationalist minorities and minority rights law 391 issue not just for religious minorities, but for all religious groups. An example can be seen in the fact that the holy sites of Serb Orthodoxy are in the Autonomous Serbian province of Kosovo, the population of which is 85% Albanian and, thus, predominantly Muslim;6 moreover, Albanian in the nineteenth century sprang up in Kosovo. The result is that Orthodox Serbs are a minority within this Serbian province but claim sites therein to have holy significance, while the Albanian population, a minority within as a whole, recognize it as the birthplace of modern Albania.7 Beyond that one specific issue, minority rights reflect more than mere freedom from discrimination.8 There is an obligation to promote and protect the group’s existence and identity, summarised as follows:- Article 1. (1) States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.9 The problem, though, is that many so-called religious minorities are multi-faceted and cannot be categorised solely by their religion. Where a group makes claims solely in terms of its freedom to worship, a purely religious minority as it were, then its demands can be satisfied through human rights mechanisms designed to guarantee freedom of religion and non-discrimination. However, other groups are religio-nationalist minorities and it is neither adequate nor sufficient to see them in terms only of their religious identity. This diversity of characteristics produces several problems: what conflicts arise between the religious and other aspects of the group’s identity; who determines how the group is to be perceived and categorised; how have states treated particular ‘religious’ minorities? Once it is accepted that groups may have different aspects to their identity, it is no longer enough to talk about the ‘Protestant’ minority or the ‘German’ minority. The group may be multi- faceted, but these several facets may also mean it is internally split: some of the

6 Some are Catholic—see The Guardian, p. 10, 16 March 1998. 7 See H. Poulton, The Balkans: Minorities and States in Conflict, (London: Minority Rights Publications, 1993) at p. 57. On the tension in the region, see: The Guardian from 27 December 1997 onward; OSCE Newsletter, 5:3 (1998), pp. 1–3. On majorities which are minorities in a particular region of a state, see Ballantyne, Davidson and McIntyre v. Canada, Communications Nos. 359 and 585/1989, UNGAOR, 48th Session, supp. no. 40 (A/48/40) at para. 11.2. 8 See G. Gilbert, ‘The Legal Protection Accorded to Minority Groups in Europe’, Netherlands Yearbook of International Law, 23 (1992) pp. 67–104. On religious discrimination, see H. Hannum, Autonomy, Sovereignty and Self-Determination, (Philadelphia: UPP, 1990) at p. 10. See also, O. Igwara, ‘Holy Nigerian and Apocalyptic Visions of the Nation’, Nations and Nationalism, 1 (1995) pp. 327–55. 9 Article 1, General Assembly 1992 Resolution and Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. This obligation is expressed in the Genocide Convention 1949 (78 UNTS 277 (1951), American Journal of International Law, 45 (1951) Supplement p. 7), and implicit in Article 27 of the ICCPR; moreover, it is arguable that the Declaration may, in this respect, also reflect general international law—see J. Packer, ‘United Nations Protection of Minorities in Time of Public Emergency: the Hard-Core of Minority Rights’, in D. Prémont (ed.), Non-Derogable Rights and States of Emergency (Brussels: Émile Bruylant, 1996), at pp. 514 ff. 392 Geoff Gilbert national group may not share the religious identity. In , the ethnic Germans were divided into Catholic Swabians and Lutheran Saxons.10 A second problem, indicated above, relates to who shall categorise the minority group. The Rumanian government in the nineteenth century consistently attempted to exclude its Jewish population from the constitutional protections offered to all Rumanians by defining them as foreigners.11 Conversely, the 1919 Treaty of Versailles with provided special protection for the Jewish population. In the letter from Clemenceau to Paderewski,12 this was stated to be because of the ‘historical development of the Jewish question and the great animosity aroused by it’. However, Clemenceau wrote that the religious guarantees should not ‘create any obstacle to the unity of Poland. They do not constitute any recognition of the Jews as a separate political community within the Polish State’. Thus, the Allied and Associated Powers, and through them Poland, deemed the Jewish minority to be solely religious in character. The Greco-Turkish Treaty of 192313 similarly cate- gorised the Turkish population of North-West as Moslem, again an exclusively religious description. Even today, the progressive 1993 Hungarian Statute on the Rights of National and Ethnic Minorities, Act LXXVII, does not apply to the Jewish minority because they are not recognised as a national or ethnic minority; section 61 lists only Armenians, , Croats, Germans, Greeks, Gypsies, Poles, Rumanians, Ruthenians, Serbs, Slovaks, Slovenes and Ukrainians. Sections 11 and 18 of the 1993 Act protect the religious identity of the recognised national and ethnic minorities, but the Jewish minority cannot rely thereon. A state might, therefore, use one of the categories of minority in order to limit the multi-faceted character of the group. Thus, it is hardly surprising that it will often be the case that the minority group will seek as much political autonomy as possible, even secession, so that it can control its own existence on its own terms. Every separatist movement in Europe . . . bases itself on ‘ethnicity’, linguistic or not, that is to say that ‘we’—the Basques, Catalans, Scots, Croats or Georgians are a different people from the Spaniards, the English, the Serbs or the Russians, and therefore we should not live in the same state with them.14

10 See R. J. Crampton, Eastern Europe in the Twentieth Century, 2nd edn (London: Routledge, 1997), at p. 25. See also C. Hann, ‘Ethnic Cleansing in Eastern Europe: Poles and Ukrainians beside the Curzon Line’, Nations and Nationalism, 2 (1996) pp. 389–406, on the mix of Roman Catholics, Orthodox and Greek Catholics on the Polish-Ukrainian border, where both religion and nationhood had to be melded. A similar situation arises today with regard to the way Beijing categorizes the ethnic minorities in its western provinces as Muslim—The Guardian, p. 10, 29 July 1997. In that regard, to the extent that one’s religion is a matter of choice, religio-nationalist minorities are different from plain nationalist minorities where one is simply born into the group. 11 See text and footnote 76, below. It explains the very detailed provisions on Rumanian nationality found in the Treaty of 1919 (UKTS 6 (1919), Cmd 558) and, in particular, Article 7. 12 See fn. 73, at para. 6, below. 13 Convention concerning the Exchange of Greek and Turkish Populations—, 1923 (UKTS 16 (1923), Cmd 1929). The definition that is maintained by the present Greek regime; see the ECHR case considering the conviction by a Greek court of a person for distributing leaflets which referred to the Muslim minority in Thrace as ‘Turks’—Ahmet Sadik v. Greece, (46/1995/552/638), 25 October 1996. 14 E. Hobsbawm, Address to the American Anthropological Society, ‘Whose Fault-Line is it Anyway?’, first published in Anthropology Today, February 1992, and reprinted in the New Statesman and Society, pp. 23–6 (24 April 1992) at pp. 23 and 24. Although Hobsbawm’s focus was on ethno- linguistic differences, it would equally apply to groups asserting nationalist aspirations based on a difference in religion: indeed, that can be the only difference between his Croats and Serbs, for they are both South Slavs and speak Serb and Croat which are reasonably similar—see R. J. Crampton and B. Crampton, Atlas of Eastern Europe in the Twentieth Century (London: Routledge,1996), pp. 2–5. Religio–nationalist minorities and minority rights law 393

Traditionally, rights established in international law impose duties on the state. The actions and attitudes of that state will primarily reflect the will of the majority population, therefore leaving the minority indirectly dependent on the majority for the implementation of those rights—even if the granting of the right would not be controversial, it might still founder because there would be no benefit to the govern- ment from its implementation. Thus, political as well as legal demands are asserted by the minority for fear of subjugation. The minority also assert their political autonomy because international law normally only recognizes states and individuals, not groups of individuals; accordingly, the group has to seek statehood in order to have a voice on the international stage. Rodley has argued that human rights developed alongside the emergence of sovereign states as a bulwark against absolute power.15 Those minority rights which are mere communal expressions of individual human rights, therefore, are equally a post-Enlightenment development. However, it will be argued here that central elements of minority rights, the right to exist and to preserve the group identity, pre-date the Westphalian state and the Enlightenment: minority rights should reflect the fact that the international legal order is attempting to meet the rights and needs of an entity, the minority group, which is greater than the sum of its members.

The historical context of minority groups

It has been argued that religion defined people before the nation-state.16 This opinion, though, is something of a generalisation and may merely reflect the anachronistic imposition of modern perceptions and attitudes on to people in the Middle Ages, inferring how they must have viewed themselves before the advent of the nation-state.17 Nevertheless, where the idea that religion was the cultural identifier contains more than a grain of truth is in border regions, where different groups come in contact with each other. Catholic peasants in the Middle Ages living in central surrounded by other Catholics all of whom spoke the same dialect of French probably identified themselves by reference not to their religion, but to their village or local nobleman, whereas Catholic Croats in the Balkans living alongside Orthodox Serbs and under the rule of the Moslem would have been more aware of their religion as a distinguishing feature, as an essential element of their own and their community’s identity.18 Given that minority

15 N. S. Rodley, ‘Can Armed Opposition Groups Violate Human Rights?’ in K. E. Mahoney and P. Mahoney (eds.) Human Rights in the Twenty-first Century (The Hague: Kluwer Academic Publishers, 1993) pp. 297–318 at pp. 298–9. 16 See Hannum, Autonomy, at p. 50. 17 See generally, E. Gellner, Nations and Nationalism (Oxford: Blackwell, 1983) esp. pp. 53 ff; A. D. Smith, ‘Nations and their Pasts’, E. Gellner, ‘Do Nations have Navels?’, A. D. Smith, ‘Memory and Modernity: Reflections on Ernest Gellner’s Theory of Nationalism’, Nations and Nationalism, 2 (1996) pp. 358–88. 18 See Gellner, Nations and Nationalism, at pp. 71–3; P. F. Sugar, ‘External and Domestic Roots of Eastern European Nationalism’, in P. F. Sugar and I. J. Lederer, Nationalism in Eastern Europe (Seattle: U. Washington Press, 1969), at pp. 3 ff. Likewise, Irish Catholics ruled by Protestant England. This is not to ignore the regional differences in Catholicism—viz. the Great Western Schism (1378–1417) was not only a religious conflict within the Western Catholic Church, as first there were two and then three rival popes, rather it led to a division within the church on national lines as well. 394 Geoff Gilbert issues have arisen most prominently in those same border regions in Central and Eastern Europe today, the idea of religion as the defining quality before the nation- state bears greater validity, even if it is insufficient on its own. On the other hand, it also indicates how difficult it is to identify a minority as simply religious, given that in those regions religion had a wider significance than just one’s individual faith; it is no surprise, therefore, that the rights of ‘religious minorities’ in this region in the past could evolve into a more generic system of minority protection in international law when the advent of the nation-state made other cultural and linguistic factors take on a greater significance.19 Central and Eastern Europe and the Balkans have been the meeting point of several faiths and concomitant identities throughout the centuries. At the end of the fourteenth century in Bohemia, Jan Huss was challenging the Catholic hierarchy and the German influence at the University of Prague, although how far it was perceived as a nationalist question at the time is open to serious question.20 The Ottoman Empire began 500 years of rule in the region at the same time, further sowing the seeds of religio-nationalist identification. The Ottomans were Moslems and Christians suffered several disabilities, but there was greater religious tolerance than in the West—Orthodox Christians preferred Ottoman rule to that of Catholic rulers.21 Moreover, the Ottoman system of administrative devolution within its empire was not based on territory, but on religious affiliation—the millets. By the end of the eighteenth century, there were Gregorian Armenian, Catholic, Jewish and, by far the largest, Orthodox millets.22 The millet system provided more than mere religious freedom and tolerance within the Ottoman Empire, rather the millet had a great deal of autonomy over its members in secular matters on behalf of the Empire, too.23 The head of the millet had secular functions on behalf of the Empire with respect to all adherents of his faith, including education, tax, justice and social security; some of these functions even survived the establishment of the various Balkan states in the nineteenth and twentieth centuries.24 However, lack of recognition as a Church within the Ottoman Empire meant loss of identity for its members.25 The defeat of Catholic Hungary by Suleiman the Magnificent at the Battle of Mohacz (1526) led to an increase in Protestantism in the captured territories; the remainder of Hungary and Bohemia, however, fell under the control of the Catholic

19 See E. Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth and Reality, 2nd edn (Cambridge: Cambridge University Press, 1992), pp. 101 ff, and fn. 61, below. 20 See P. Longworth, The Making of Eastern Europe, 2nd edn (Basingstoke: Macmillan, 1997) at pp. 248–9. It is worth remembering that when printing was invented, however, some of the first new books were translations of the Bible into the vernacular. 21 See also, Sephardic Jews who moved to Salonika to avoid persecution in Spain—H. Poulton, Who Are the Macedonians? (London: Hurst & Co, 1995), p. 5; see also, The Guardian p. 13, 25 November 1997. 22 See B. Jelavich, History of the Balkans (Cambridge: Cambridge University Press, 1983) at p. 49; there was also a Moslem millet, but it was necessarily different in nature. 23 See F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, 1977 (New York: United Nations, 1991) at para. 6; Longworth, Making of Eastern Europe, p. 253; Poulton, Macedonians, pp. 26–47; S. J. Shaw, History of the Ottoman Empire (Cambridge: Cambridge University Press, 1977) vol. I, esp. pp. 151–3; Jelavich, History of the Balkans, pp. 48–62. 24 See Shaw, History of the Ottoman Empire, vol. I, p. 151. 25 Viz. the case of —see text, fn. 35 below, and following. See also, Poulton, Balkans, p. 3, and Gellner, Nations and Nationalism, pp. 58–62. Religio–nationalist minorities and minority rights law 395

Habsburg Empire, although even those regions proved fertile grounds for the Reformation.26 Indeed, the sixteenth century saw, for the most part, religious toleration in Poland, Bohemia and Transylvania.27 In the next century, however, the Thirty Years War (1618–48) was to highlight once more how religion and nationalism could become intertwined: 28 intolerance between Catholics and Protestants in the Habsburg Empire masked assertions of political independence for Bohemia and Hungary; Sweden fought for the Protestant cause (financed by Catholic France, enemy of the Habsburgs) and to secure its Baltic trade routes; German principalities of all religious persuasions (Catholic, Calvinist and Lutheran) feared domination by Habsburg . After the Thirty Years War, however, non- Catholicism was to be outlawed in the Habsburg Empire as the Emperor used Catholicism to justify the dynasty and underpin the state.29 The eighteenth century Enlightenment eventually improved the degree of religious tolerance in Central and Eastern Europe, although Jews fared less well than the various Christian denominations.30 On the other hand, the repression of Protestant and Orthodox Christians in Poland-Lithuania was used by the Prussian and Russian Empires as an excuse to divide up that country at the end of the century and ‘protect’ their co-religionists. Furthermore, Austria and used their influence over Catholics and Orthodox Christians, respectively, in the Ottoman Empire to destabilise the latter. Additionally, the nineteenth century rise of nationalism was to be linked with the assertion of distinctive religious identities.31 Serbs and Croats spoke the same language, and came from a common ethnic stock, but this did not produce unity because here, as in many other areas, religion was the most important cultural identifier, Croats being Catholic and the Serbs mostly Orthodox; the Bosnian Muslims also spoke Serbo-Croat. . . The correlation of ethnic identity and religion at times helped in the formation of national consciousness. Most Balkan Orthodox Christian peasants could be persuaded, by their intelligentsia,32 that they did not wish to be ruled by Muslims; Catholic Poles could find common cause against Russian Orthodox or German Protestant rulers, and Protestant

26 See Longworth, Making of Eastern Europe, p. 212—several archbishops and bishops were killed at Mohacz, leading to a loss of faith in the supremacy of Catholicism in the wake of this defeat by the Ottomans. 27 See P. S. Wandycz, The Price of Freedom (London: Routledge, 1992), pp. 51 ff. Jews moved into Poland to escape persecution in Western Europe—see H. A. L. Fisher, A , vol. 1 (London: Fontana, 1935), p. 570. This was partly because centralised control was weaker in these regions. 28 See Longworth, Making of Eastern Europe, pp. 231 ff.; Fisher, History of Europe, vol.1, pp. 617 ff. 29 Longworth, Making of Eastern Europe, p. 194. 30 See Longworth, Making of Eastern Europe, pp. 164–66. 31 See Longworth, Making of Eastern Europe, pp. 135 ff. A similar development can be seen in Ireland during the same period. Gladstone acknowledged this nationhood in the ultimately doomed Home Rule Bills which he proposed to the British parliament at the end of the century. In so doing, he recognised that Britain was faced with a ‘phenomenon similar to that which the Habsburg Emperor and Ottoman Sultan were facing’—J. Joll, Europe Since 1870, 4th edn (Harmondsworth: Penguin, 1990) at p. 19. 32 Author’s note: The ‘flow of influence’ was, in myth if not in fact, two-way, for the intellectuals, developing themes from the Romantic movement, saw in the peasants the pure, uncorrupted ‘people’ around whom the nation-state would be built—Hobsbawm, Nations and Nationalism Since 1780, at pp. 103–4; E. Hobsbawm and T. Ranger, The Invention of Tradition (Cambridge: Cambridge University Press, 1983), esp. ch.1. 396 Geoff Gilbert

Estonians or Latvians could resent domination by Orthodox Russians. But it would be dangerous to generalize . . . A common religion did not prevent Croat nationalists from resenting Magyar domination, or Czechs questioning Austrian supremacy; nor, conversely, did Protestant Hungarians or Poles feel any lesser loyalty to their nation than their Catholic brothers and sisters.33 Many examples could be given, but the Bulgarian case is instructive. Before the Ottoman invasion, there had existed a separate Bulgarian Patriarchate.34 The Ottomans placed it, and the associated education system, under the Greek Patriarchate’s Millet. The Greek Orthodox Church had increased its influence in Bulgaria in the eighteenth century, so much so that nationalist feeling in nineteenth century Bulgaria was directed against both Greek and Ottoman influence.35 It proved fertile ground, therefore, for the other great Orthodox Power, Russia, in its attempts to foment unrest within the Ottoman Empire for its own ends. The first serious assertion of modern Bulgarian individuality was not against their Ottoman, Muslim, temporal rulers, but against the Greek ecclesiastical hierarchy which had developed in the Bulgarian lands since the mid-eighteenth century.36 The Bulgarian Orthodox Church was eventually recognised in 1870, with the scope of its area of influence a question of regional politics as much as religious affiliation.37 Indeed a crucial factor in the growth of Bulgarian national consciousness was the establishment of the national church, the Exarchate, in 1870 by the Ottoman authorities following a long movement which began in 1820. In 1867 Patriarch Gregory VI had offered an autonomous Bulgarian church but one not to be extended to the parishes in Macedonia. The Bulgarians had refused and called for the populations of the relevant dioceses to decide. The decree of 1870 gave the Exarchate in only 17 dioceses but allowed parishes by two-thirds majority vote of all adult males to choose whether to join and have church services in [Bulgarian] or continue in Greek. This struggle for a national church was a political rather than a religious struggle. The parishes which opted for the vernacular comprised the so-called which was to come into existence following the in 1878 at the end of the Russo-Turkish war of 1875–78.38 Bulgaria was initially ‘constituted an autonomous tributary Principality’ within the Ottoman Empire by Article VI of the Treaty of San Stefano in March 1878,39 although the later that year was to limit the territorial extent of that grant because the United Kingdom and the Austro-Hungarian Empire feared so large a potentially pro-Russian Balkan state as had been created at San Stefano.

33 Crampton, Eastern Europe in the Twentieth Century, p. 5. Joll, Europe Since 1870, at p. 174, argues that Serbs and Croats in were united by a common desire to rid themselves of Austro- Hungarian rule. 34 See Longworth, Making of Eastern Europe, at p. 246. 35 Poulton, Balkans, notes an old Bulgarian proverb (p. 3): ‘Save us Lord from the Bulgarian who becomes a Greek and from the Gypsy who becomes a Turk’. By way of contrast, the European Court of Human Rights recognised the importance of the Greek Orthodox church to the preservation of Greek national identity during Ottoman occupation in Kokkinakis, series A, vol. 260–A, para. 14. 36 Crampton, Eastern Europe in the Twentieth Century, p. 5. 37 See Poulton, Macedonians, pp. 37–9, 49; Gellner, Nations and Nationalism, pp. 58–62. 38 Poulton, Balkans, p. 3. See also, A. D. Smith, ‘The Origins of Nations’, Ethnic and Racial Studies, 12 (1989), pp. 340–67. 39 F. L. Israel (ed.), Major Peace Treaties of Modern History, 1648–1967 (New York: Chelsea House, 1967), vol. II, pp. 959, 963. Religio–nationalist minorities and minority rights law 397

However, unlike Greece, which had gained full independence in 1830 so as to prevent Russia being able to use its Orthodox population as a justification for intervention against the Sublime Porte, Bulgaria remained nominally under Ottoman suzerainty even after 1878. As the old empires collapsed, the new states sought to emphasize their differences, which often included religion, even though these new states were pluralistic and multi-ethnic. The new states incorporated minority groups who were different from the new governing majorities in the same way that that majority had differed from its former imperial rulers—indeed, the new minority might consist of an that had formerly been the majority ruling population. As Smith has observed,40 minorities should not be seen as ‘inert strata’—history must be viewed as a continuum helping to shape the perceptions and attitudes of minority and majority populations, such that after having regard thereto, rights can be applied in an appropriate and useful way. It confounds credibility to designate certain minorities as solely religious given the history of the group with respect to the state within which it resides.

The protection of minorities—historical context

Minority rights are often perceived to have been the product of the World War I peace treaties, usually in contrast to the human rights obligations which were established post-World War II. Such a short term view of minority rights, however, ignores their long history, a history which shapes modern methods of upholding present day minority rights guarantees. The Capitulations, trade concessions granted by treaty to citizens of other empires by the Ottomans from the late 14th century onwards, provided for exemp- tion from the Ottoman legal system and equality for Christians before Ottoman courts—these rights, though, were for foreign traders resident in the Empire, not for religious minority groups within the Empire.41 However, given the religious resonance to many of the wars and conflicts in the Middle Ages, it is hardly surprising that guarantees for religious minority groups can be found in the peace treaties, too. The Peace of Prague (1635) between the Elector of Saxony and other Lutheran German princes on the one side and the on the other, guaranteed freedom of worship to Protestants.42 Unfortunately, the Peace of Prague did not hold and the later Treaty of Westphalia (1648), while at least asserting the principle cuius regio, eius religio, and containing some guarantees for religious minorities, allowed for the prohibition of Protestant worship in Austria,

40 A. D. Smith, ‘Gastronomy or Geology? The Role of Nationalism in the Reconstruction of Nations’, Nations and Nationalism, 1 (1995), pp. 3–23 at p. 13. 41 The first true capitulation was with France in 1536, but similar agreements with Venice and Genoa preceded it. See generally, Shaw, History of the Ottoman Empire; A. Palmer, Decline and Fall of the Ottoman Empire (London: J. Murray, 1992); Jelavich, History of the Balkans. See also, N. Kontou, The Termination and Revision of Treaties in the Light of New Customary International Law (Oxford: Oxford University Press, 1994) pp. 78–85. 42 See Fisher, History of Europe, vol. 1, p. 630. 398 Geoff Gilbert including Bohemia where, ironically, religious intolerance had been the spark for the Thirty Years War which the 1648 Treaty sought to conclude.43 Where territory was ceded in a peace treaty, it was a matter of form to include a guarantee of religious liberty for those populations transferred to a new sovereign whose belief was different from their own, and a matter of honour for the sovereign to uphold that liberty. Catholics in Prussia were specifically protected in the Treaty of Wehlau (1657).44 In the Treaty of Oliva (1660), where Livonia and Pomerania were ceded to Sweden by the Great Elector and Poland, Sweden promised to observe the liberties and privileges of the Catholics in those territories.45 In the Treaties of Nijmegen (1678) and Ryswick (1697),46 France sought similar guarantees for the Catholic population of territories ceded to The Netherlands.47 The First Partition of Poland between Russia, Prussia and Austria, provided for religious freedom for Catholics in territories ceded to Orthodox Russia and Protestant Prussia, and for Uniates (Greco-Catholiques) and Protestants of all persuasions in all of the ceded territories.48 Religious minority guarantees were also used as part of a wider campaign by the Great Powers to extend their influence. These treaties tended to allow for external intervention on behalf of the minority,49 a right asserted by the Empire of the kin- religion not only to protect their co-religionists, but also as part of the realpolitik of the period: before the nation-state took hold in Central and Eastern Europe, religion was a ready method of identification, which means that it is difficult to separate guarantees of religious freedom for the minority group from wider assertions of the group’s rights. Furthermore, within the Ottoman Empire, the millet system meant that protection of co-religionists could extend into secular matters.50 The Habsburg and the Ottoman Empires concluded a very early treaty of this type in 1615, giving freedom of worship and religious establishment to Catholics in the Ottoman lands, with Vienna being given the right to show an ‘interest in the free performance of Christian religious rites’, thereby permitting Habsburg intervention in internal Ottoman affairs.51 The (1699) reaffirmed Austria’s right of

43 Treaty of Westphalia (1648), Israel, Major Peace Treaties, vol. I, p. 7, esp. Articles XLIX and XXVIII. Cuius regio, eius religio, asserted first in the Peace of Augsburg 1555, has more to do with the relationship between German principalities and the Habsburg Empire than with religious freedom. See also text at fn. 29 above; Fisher, History of Europe, vol. 1 at p. 636; and P. Thornberry, International Law and the Rights of Minorities (Oxford: Oxford University Press, 1991), pp. 28–9. 44 Longworth, Making of Eastern Europe, p. 195. Cf. Brandenburg, another part of the Elector’s domains. 45 See J. Fouques Duparc, La Protection des Minorités de Race, de Langue et de Religion (Paris: Dalloz, 1922) at pp. 75–6. In the case of the ceded Pomeranian cities, the religious freedom and liberty guaranteed by Sweden was general (as it had been under the Great Elector) and not limited to the practice of Catholicism. 46 Israel, Major Peace Treaties, vol. I, p. 129 (Article IX) and p. 145, respectively. 47 The Prince of Orange guaranteed equality to all Belgians when Belgium was assigned to The Netherlands at the end of the , British and Foreign State Papers, vol. 2, p. 141; hereinafter, BFSP. 48 Israel, Major Peace Treaties, vol. I, p. 351, 7/18 September 1773, Russia-Poland Articles V and VII; Prussia-Poland, Articles VIII and IX; Austria-Poland, Article V: 4/15 March 1775, Russia-Poland Article IX. NB. It should be noted that no express guarantees were made for Poland’s Jewish population. See also, Longworth, Making of Eastern Europe, pp. 165–8. 49 On non-treaty based intervention, see Fouques-Duparc, La Protection des Minorités, pp. 74–5. 50 See text at fn. 22 above, et seq. 51 Shaw, History of the Ottoman Empire, vol. I, p. 189 and Fouques Duparc, La Protection des Minorités, p. 79; see also, R. Müllerson, International Law, Rights and Politics (London: Routledge, 1994) at p. 92. Religio–nationalist minorities and minority rights law 399 intervention in the treatment of Catholics in the Ottoman Empire,52 as did Passarowitz (1718),53 (1739)54 and Sistova (1791), the last also containing a clause whereby the Sultan promised to treat well the Christian populations of previously conquered territories surrendered by Austria.55 The major gain in influence for Russia among the Orthodox population came with the Treaty of Küçük Kaynarca (1774).56 Its original meaning may never be definitively established,57 but it is taken to have provided international acknowledgement that the Sultan was supreme leader of the Islamic faith (Article 3), a matter further acknowledged in the Treaty of Aynali Kavak 1779–84, and that Russia, having been given permission to build a church of the Greek rite in Constantinople, could intervene on behalf of all Orthodox Christians in the Ottoman Empire (Articles 7 and 14).58 What is agreed, is that Russia manipulated her assumed rights under Articles 7 and 14 to foment unrest in the Ottoman Empire; one can even find roots of the in this development. The Treaty of Bucharest (1812)59 reaffirmed the right of Russian intervention on behalf of Orthodox Christians. The Treaty of Bucharest, however, also contained a clause whereby the Sultan expressly confirmed his respect for Serbian autonomy gained during the Napoleonic period.60 This marked a shift in thinking by the Great Powers with regard to con- cessions to minority groups. Previously, the focus had been on protecting the rights of religious minorities, whether in ceded territories or in the Ottoman Empire: the early nineteenth century saw a series of international agreements whereby the political and cultural rights of minority groups were recognised.61 The Treaty of Edirne (1829) contained provisions whereby the Sultan recognised that Greece should become autonomous,62 that Serb autonomy should be reaffirmed, with Milosˇ Obrenovic´ being recognised as hereditary prince of Serbia the following year, and

52 Israel, Major Peace Treaties, vol. II, p. 869. Article XIII: ‘Moreover, let it be permitted for the [Austrian Monarch] to set forth to the Sublime Porte the matters entrusted to him concerning the religion . . ., and to bring his requests to the [Ottoman] throne’. The Polish ambassador had a similar right under Article VII according to Fouques-Duparc, La Protection des Minorités, at p. 80, but Israel, Major Peace Treaties, contains no such provision. It was, however, the Catholic Austrians’ treatment of the Orthodox population of the Ottoman territories it occupied that led to the Serbs, Wallachians and Transylvanians calling for help from the Sultan to restore their political and religious freedoms in the preceding war—Shaw, History of the Ottoman Empire, vol. I, pp. 220–1. 53 Ibid., p. 883, Article XI. 54 Ibid., p. 897, Article IX. 55 Shaw, History of the Ottoman Empire, vol. I at p. 259. 56 Israel, Major Peace Treaties, vol. II, p. 913. The spelling varies and there are four versions of the text in Russian, Ottoman Turkish, Italian and French—Palmer, Decline and Fall, pp. 45–7. 57 Compare Shaw, History of the Ottoman Empire, vol. I, p. 250, with Palmer, Decline and Fall, pp. 45–7. 58 Palmer, Decline and Fall, points out that one reading of Article 7 is to make the Sultan responsible for the protection of all Christians in his Empire. The Russo-Greek Church referred to in very specific terms in Article 14 was never built. 59 13 BFSP 908. See also, the Convention of Akkerman (1826), 13 BFSP 899. 60 Article VIII. See also the Convention of Akkerman, fn. 59 above, Article V and the Additional Act re Serbia, guaranteeing Serbia, inter alia, freedom of religion and autonomous internal administration. 61 Linguistic rights per se were not expressly protected at that time. NB. Within such large empires it was to be expected that there would be a plurality of languages. Language rights only came to the fore with increased social mobility following industrialization—see Gellner, Nations and Nationalism, pp. 58–62, esp. at p. 61. The Enlightenment and Romanticism had combined to elevate the various languages of the Empires. Linguistic identity was to become a focus of national consciousness, but linguistic minorities were not to become a focus of attention in international agreements for almost a century—Longworth, Making of Eastern Europe, at pp. 171–9. 62 Article X, 16 BFSP 647 (or Adrianople); Israel, Major Peace Treaties, vol. II, p. 931. 400 Geoff Gilbert that and should come under Russian protection whilst remaining part of the Ottoman Empire—Article V provided for freedom of religion in the Principalities and autonomous national government. Another provision, which was to have echoes in the post-World War I treaties, required Muslims to leave the territory of the Principalities and sell their goods to locals, akin to the position in Serbia. Subsequently, the 1830 Protocol re Greek independence63 was to foreshadow the Convention Concerning the Exchange of Greek and Turkish Populations 1923, providing that the respective minority populations could, if they so wished, sell their possessions and move to the state of their nationality: under Article VI, ‘La Porte Ottoman accordera à ceux des Sujets Grecs qui désireroient (sic) quitter le Territoire Turc, un délai d’un an pour vendre leurs propriétés et sortir librement du pays’.64 Nor was this interest in matters of a political or cultural nature solely confined to international agreements concerning the rights of Christian minorities in the Ottoman Empire. In the First Partition of Poland,65 Russia and Poland, while in part restricting the rights of Uniate and Protestant nobles with respect to their role in the governing of the country, did accord them the right to sit in lower level government bodies; however, the overall effect of the 1775 Russia– Poland Instrument was very negative towards Uniates and Protestants and reflected the desire for an increased identity by the majority Catholics after the Partition. Later, the Final Act of the (1815),66 in re-partitioning Poland after ’s defeat, promised the Poles the preservation of their ‘nationality’. Article I. Les Polonais, sujets respectifs des hautes parties contractantes, obtiendront la conservation de leur nationalité, d’après les formes d’existence politique que chacun des gouvernements, auxquels ils appartiennent, jugera convenable de leur accorder. Nowhere was this nationality defined as to its content, but Russia did allow for some Polish autonomy within its portion of the partition—it became known as the Congress Kingdom and it had a constitution and Parliament.67 Russia also acknowledged the right of the co-signatories of the Congress of Vienna to make representations regarding its treatment of its Polish population.68 The nineteenth century saw the development of the principle of nationality, that is, that each nation should have its own state69—in part, the principle of nationality was also a tool of the Great Powers which they used to destabilise each other, but the effect was to create new states with new minorities resident within them. Alongside this principle, therefore, the protection of minority groups, including

63 17 BFSP 191. 64 See fn. 13, above. There was a similar right for Turks wishing to leave Greece. The Protocol also accorded freedom of worship to Muslims remaining in the newly independent Greece. 65 See fn. 48, above, Russia–Poland 4/15 March 1775. 66 2 BFSP 7; Israel, Major Peace Treaties, vol. I, p. 519. 67 See Longworth, Making of Eastern Europe, pp.179–80. See also the Correspondence between the various Powers in 1814 and 1815 in 41 BFSP 163, esp. at pp. 187 ff. 68 See, Fouques-Duparc, La Protection des Minorités, pp. 122 ff., and C. A. Macartney, National States and National Minorities (London: Oxford University Press, 1934), p. 161. 69 See Macartney, National States and National Minorities, pp. 92–156; K. Plamenatz, ‘Two Types of Nationalism’, in E. Kamenka, Nationalism, the Nature and Evolution of an Idea (London: E. Arnold, 1976). Not all discrete groups can become nations, and not all nations can be granted statehood, but it is nationalism that forms the nation (Gellner, Nations and Nationalism, pp. 55–6), which is at the root of the state—W. Connor, ‘A Nation is a Nation, is a State, is an Ethnic Group, is a . . .’, Ethnic and Racial Studies, 1 (1978), pp. 377–400; A. D. Smith, Nations and Nationalism in a Global Era (Cambridge: Polity Press, 1995). Religio–nationalist minorities and minority rights law 401 religious ones, through international treaties also grew as new states were created or territories were ceded from one empire to another. The ceding by the Ottoman Empire of Bosnia-Hercegovina to Austro-Hungarian protection in 1878 contained a guarantee for the ‘freedom and outward exercise of all religions’ in the territory.70 The freedom and outward exercise of religion was also laid down in Articles 5 and 44 of the 1878 as a condition for the recognition by the Great Powers71 of Rumania and Bulgaria.72 The ceding of territory to Greece by the Ottoman Empire in the 1881 Convention of Constantinople also contained guarantees for religious minorities.73 La liberté ainsi que la practique extérieure du culte sont assurés aux Musulmans dans les territoires cédés à la Grèce. Aucune atteinte ne sera portée à l’autonomie et à l’organisation hiérarchique des communautés Musulmanes existantes ou qui pourraient se former, ni à l’administration des fonds et des immeubles qui leur appartient. Aucune entrave ne pourra être apportée aux rapports de ces communautés avec leur chefs spirituels en matière de religion. Les Tribunaux du Chéri locaux continueront à exercer leur juridiction en matière purement religieuse. The problem with the guarantees by the Great Powers of kin-minorities was that concern for human rights and minority rights was perceived to be a tool of international relations, a mere excuse for aggrandizement. The Crimean war in the middle of the century can in part be blamed on intervention to protect religious groups within the Ottoman Empire. This abuse of intervention by the protecting power was to have a long-term influence on the means of guaranteeing minority rights. More immediately, in the aftermath of the Crimean war, the (1856) provided that none of the Great Powers was any longer to have a right of individual intervention on behalf of minority groups in the Ottoman Empire;74 indeed, in Article IX they jointly accepted the Sultan’s assurances that he would implement his Reform Decree.75 Subsequently, the Treaty of Berlin was to provide the most detailed set of minority guarantees before 1919 and which, by imposing these guarantees as a condition of recognition for Serbia, Bulgaria, and Rumania, inter alia, was deemed to have provided the Great Powers with a right to intervene collectively on behalf of the minority populations in the new states and the Ottoman Empire. It also provided a precedent for the principle that minority rights are a matter of international concern. Nevertheless, while for example Rumania’s treatment of its Jewish population, a longstanding problem, led to concern, recog- nition was granted, there was never any question of its withdrawal and few steps

70 Thornberry, International Law and the Rights of Minorities, p. 26. See I. Andric´, Bridge Over the Drina (London: Haverhill/HarperCollins, 1994), p. 135—first published in Serbo-Croat in 1945 and in English in 1959; it won the Nobel Prize for Literature for him in 1961. 71 The Treaty of Berlin, 69 BFSP 749, was concluded by Germany, Austria–Hungary, France, the United Kingdom, Italy, Russia and Turkey. 72 Capotorti, Study, at para. 12. Similar demands were made of Serbia and Montenegro. 73 72 BFSP 382, Article VIII; see also, Article III. See also a letter from Clemenceau to Paderewski which accompanied the communication of the final draft Treaty of Versailles to the Polish government in June 1919, at para. 4; UKTS 8 (1919), Cmd 223. 74 46 BFSP 8, e.g. exclusive protection rights over Wallachia and Moldavia, for instance, were renounced in Article XXII. 75 Shaw, History of the Ottoman Empire, vol. II, pp. 140–1. The Hatti Humayun guaranteed equality to Muslim and Christian alike. 402 Geoff Gilbert were taken to intervene on behalf Rumania’s Jews.76 A greater degree of involvement was undertaken on behalf of Turkey’s Armenian population, but the effect, as history reveals, was minimal. While individual rights of intervention in the eighteenth and early nineteenth centuries had been abused, the general collective right adopted at Berlin was never formalised into an effective mechanism and foundered on internal rivalries between the Great Powers.

Post-World War I

The major systematic protection of minority rights, including the rights of religious minorities, is found in the peace settlement concluded at the end of World War I 77 and in the subsequent agreements reached then and later under the auspices of the League of Nations—the so-called Minorities Treaties. In dividing up Central and Eastern Europe and the Balkans, President Wilson of the US sought to follow the principle of nationality, but its limitations in a region where there were so many groups was acknowledged at the time in a letter from Clemenceau to Paderewski. The situation with which the Powers have now to deal is new, and experience has shown that new provisions are necessary. The territories now being transferred both to Poland and to other states inevitably include a large population speaking languages and belonging to races (sic) different from that of the people with whom they will be incorporated. Unfortunately, the races have been estranged by long years of bitter hostility. It is believed that these populations will be more easily reconciled to their new position if they know that from the very beginning they have assured protection and adequate guarantees against any danger of unjust treatment or oppression.78 Indeed, a contemporary commentator 79 estimated that while the number of people who were members of a minority population in was reduced from over 50 million to less than 20 million, a quarter of the ‘population of Jugo-Slavia, one third of that of Roumania, two fifths of that of Czechoslovakia and well towards one half of that of Poland consist of ethnic minorities’. The post-World War I treaties 80 all followed a similar pattern in guaranteeing rights to the minorities in the new states and the defeated parties to the war. Later treaties, drawing on the development of the League of Nations, such as the Aaland

76 See, Fouques-Duparc, La Protection des Minorités, at pp. 98–112, and Macartney, National States and National Minorities, at pp. 164–9. 77 E.g. Article 93 of the Treaty of Peace between the Allied and Associated Powers with Germany, signed at Versailles on the 28 June 1919 (UKTS 4 (1919), Cmd.153), with respect to Poland’s commitment to draft a Minorities Treaty. Strictly, only those subsequent international agreements with Poland, Czecho-Slovakia, Rumania, Greece and the Serb-Croat-Slovene state were properly called Minorities Treaties. 78 See fn. 73 above. The idea that the situation was new seems a little disingenuous. 79 See E. C. Mower, International Government (Boston: D. C. Heath, 1931), p. 455. For greater detail, see Macartney, National States and National Minorities, pp. 510 ff. 80 See, for example, the Treaty of Versailles with respect to Poland, fn. 73 above; the Treaty of St Germain with Czechoslovakia, 1919 (UKTS 20 (1919), Cmd 479); the Treaty of St Germain with the Serb–Croat–Slovene state, 1919 (UKTS 17 (1919), Cmd 461); and the with Hungary, 1920 (UKTS 10 (1920), Cmd 896). For a full list, see the Commission on Human Rights, Study of the Legal Validity of the Undertakings Concerning Minorities, E/CN.4/367, 7 April 1950, Geneva, at pp. 2–3. Religio–nationalist minorities and minority rights law 403

Islands agreement,81 were not so formulaic.82 The aim of all the treaties, however, was twofold: to guarantee equality with the majority population for the members of the minority group and to ensure that the minority could preserve its characteristics and traditions,83 for without the latter, the former amounted to little more than assimilation. In brief, the treaties provided for: (1) the acquisition of the nationality of the new states for all residents who so desired it, but with an option to go to the kin-state for those not wishing to remain and become nationals;84 (2) the equality of members of the minority group with the majority population; (3) freedom of religion, including public worship; (4) the right to establish, manage and control, at their own expense, charitable, religious or social institutions, schools and other educational establishments, and to exercise their own religion therein; (5) a general right to use the mother-tongue of the minority group, including in the exercise of their religion; (6) an equitable share of public funds for minority groups where the group formed a considerable proportion of the nationals of a town or district; (7) there were also specific provisions for various religious minorities in several treaties—these latter treaty provisions included Poland not forcing Jews to violate their Sabbath and the Greek government recognising the traditional rights and liberties of the non-Greek monastic communities of Mount Athos and the personal laws of its Moslem population, recognition which the Serb-Croat-Slovene state similarly accorded to its Moslem minority.85 The 1923 Treaty of Lausanne with Turkey only accorded rights to non-Moslem minorities, but these groups, differen- tiated by their religion, were given the right to educate their children in their mother- tongue, indicating the multi-faceted character of minority groups. Sometimes religious rights were accorded somewhat mechanically to minorities by these treaties, even where the minority in question was of the same religious persuasion as the majority; the German-Polish treaty on Upper Silesia of 15 May 1922 devoted thirteen articles in Part III to the religious freedom of the respective minorities on each side of the border, despite the fact that, according to a contemporary com- mentator, ‘the Upper Silesia Germans and Poles rival each other in their devotion

81 Resolution of the Council of the League of Nations, Geneva, 27 June 1921, approving an Agreement between Sweden and , Preserving the Language, Culture and Local Swedish Traditions of the Population of the Aaland Islands, LN Doc. C.L.110 1927 I Annex, p. 16. 82 See Macartney, National States and National Minorities, at pp. 261–3 on the declarations by the Baltic States on accession to the League of Nations; see also, P. de Azcárate, League of Nations and National Minorities: An Experiment (Washington DC: Carnegie Endowment for International Peace, 1945), pp. 174–6. 83 Advisory Opinion of 6 April 1935 on Minority Schools in Albania, PCIJ Series A/B, no. 64, p. 17. 84 There does not seem to have been any consideration of the issue of dual nationality—various reasons can be advanced, such as the fact that the Allies were, for the most part, creating new states and giving them a population formed predominantly, but not exclusively, from one ‘nation’, the fear that if the minorities had the nationality of another state this would be a destabilising factor and, finally, because the treaties were influenced by a draft drawn up by Jewish groups who lacked a nation- state—Macartney, National States and National Minorities, at pp. 212 ff., and pp. 507–9. In spite of the guarantee of a nationality, it proved possible to create stateless persons in the new states formed from the old Austro-Hungarian Empire and, inevitably, these persons tended to belong to minority groups—Macartney, ibid., at pp. 507–9. 85 Viz. the Jewish minority in Poland (Articles 10 & 11 of the Treaty of Versailles with Poland, fn. 73 above), the non-Greek monastic communities of Mount Athos (Article 13 of the Treaty of Sèvres with Greece, 1920, UKTS 13 (1920), Cmd 960 cf. Article 62 of the 1878 Treaty of Berlin, fn. 71 above, had placed the same obligation on the Ottoman Empire) and Moslem minorities in Greece (Articles 14 & 15 of the Treaty of Sèvres) and the Serb-Croat-Slovene state (Article 10 of the Treaty of St Germain, fn. 80 above). 404 Geoff Gilbert and zeal to the Catholic Church, . . ., and by the additional fact that of all the central European zones this territory has the lowest proportion of Jews’.86 In sum, the Minorities Treaties dealt with all kinds of religious minority, from the purely religious through to the national minority identified by its religion. The means of implementing the rights accorded to the minority groups in the Minorities Treaties consisted of several different measures. It should first be noted that despite the fact that all the post-World War I treaties included a clause stating that the League of Nations would guarantee the minority rights provisions, they were negotiated outside the auspices of the League of Nations; thus, the Council of the League had to adopt each treaty ‘. . . so far as they affect persons belonging to racial, linguistic or religious minorities’.87 The Guarantee Clauses 88 drawn up by the Principal Allied and Associated Powers provided that any member of the Council of the League of Nations, that is, the Powers plus four other members of the League on a rotating basis, could bring any infraction to the attention of the Council and that the Council could ‘take such action or give such direction as it may deem proper and effective in the circumstances’; a member of the Council of the League could also refer a dispute to the Permanent Court of International Justice. Once before the Council, the League of Nations had wide powers to deal with an alleged infraction, but, as drafted, the Guarantee Clause first required a member of the Council to be prepared to assert that another member was in violation of its obligations in the treatment of its own population. Inter-state cases are rare today, even though human rights matters are recognized as no longer being solely an internal matter, but in the inter-war period such an assertion would have been perceived as an intrusive interference in national sovereignty—the League of Nations’ guarantee of minority rights was almost stillborn. Furthermore, while the powers appeared wide when an infraction was before the Council, because the Council would include a represent- ative of the offending state and since, in accordance with Articles 4 and 5, voting had to be unanimous, the effect was that all responses proposed by the League had to be acceptable to the alleged violator. Minority rights before the League were more a matter of political negotiation than legal sanction. The League of Nations, however, established two new tools for minority protection not contained in the original treaties—the right of petition and the Minorities Committees. Neither required the applicant to exhaust domestic remedies before exercising these procedures. In summary, a petition89 could be submitted by anyone or any group and would be assessed for its receivability 90 by the League of Nations’ secretariat in these matters, the Minorities Section; given that it passed that stage, then it would be forwarded to the state concerned and subsequently to the Council of the League of Nations. In the Council, the substance of the petition

86 de Azcárate, League of Nations and National Minorities, p. 142. 87 See Capotorti, Study, paras. 106–34. 88 E.g. Article 12, Polish Treaty, fn. 73 above, which was the model for all the others. 89 Merely a means by which to draw the attention of the League to an infraction or potential infraction—see the Tittoni Report of 1920, extracted in the League of Nations, Protection of Linguistic, Racial or Religious Minorities by the League of Nations, Series of League of Nations Publications, I. B. Minorities, Geneva, 1931. I.B.1 (C.8.M.5.1931.I), pp. 13, 14. 90 The conditions, adopted by the Council of the League of Nations resolution of 5 September 1923, may be found in de Azcárate, League of Nations and National Minorities, at pp. 103–4; see generally, pp. 92 ff. In 1929, the League of Nations amended the petition procedure so that the petitioner would be told if the petition had been deemed inadmissible. Religio–nationalist minorities and minority rights law 405 would be reviewed by an impartial 91 Minorities Committee established specifically for the purpose. A Committee could reject the petition, refer it to the full Council or try to negotiate a resolution of the issues set out therein—in this latter regard, the Committees were assisted by the Minorities Section whose Director would, at the invitation of the Minorities States, visit their capitals and undertake trips to the minority regions.92 The system of negotiated solutions was not meant to be legalistic: The Council has established for minorities petitions a sui generis procedure adapted to the nature of the right of petition . . . The object of this procedure is, not to enable the Council as it were to settle a lawsuit between two parties, but to ensure that reliable information as to the manner in which the signatory states to the Minorities Treaties are carrying those treaties into effect is laid before the Members of the Council . . . It is in this light that the present procedure and its application should be considered. Any comparison between it and ordinary judicial procedure under the internal law of individual states might give rise to misunderstanding and lead to erroneous conclusions. The respective aims of the two procedures being different, they cannot be expected to be subject to the same guarantees or the same formalities.93 On the other hand, the treaties provided that if there was a dispute between any state party to one of the Minorities Treaties and any Allied or Associated Power or any other Power which was a member of the Council of the League of Nations, then the issue could be put before the Permanent Court of International Justice. The PCIJ also had its general advisory opinion role which applied equally to issues arising from the Minorities Treaties. Article 14. The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly. With respect to religious minorities, the Commission on Human Rights in 1950, reviewing the overall protection afforded to minorities in the inter-war period, held that the regime produced satisfactory results for both the minority groups and the states.94 The work of the PCIJ and the Minorities Committees with respect to minority issues is well documented elsewhere, but the collapse of the system and the causes of World War II should not be put down to failings within the established procedures and structures.95 Indeed, the system suggests that pre-1919 errors had been recognised:

91 Macartney, National States and National Minorities, questions whether Committees were impartial in practice—pp. 325–6. 92 On the basis that minorities issues tend to require domestic measures by the states concerned, negotiation is often going to be more effective than external sanctions by the international community. See the work of the High Commissioner on National Minorities of the Organization for Security and Cooperation in Europe—J. Wright, ‘The OSCE and the Protection of Minority Rights’, Human Rights Quarterly, 18 (1996), pp. 190–205. 93 Protection of Linguistic, Racial or Religious Minorities by the League of Nations, p. 175. 94 Study of the Legal Validity of the Undertakings Concerning Minorities, p. 42. 95 As de Azcárate, League of Nations and National Minorities, points out, ‘the problem of minorities’ could never be solved as a ‘problem’ of mathematics or physics (p. vii). 406 Geoff Gilbert

• Whereas previously kin-minority issues had led to war, kin-states could speak for minorities in other countries, but through the petition procedure and the PCIJ; 96 aggressive intervention was prohibited under Articles 15 and 16 of the League’s Covenant. • Whereas the minority had previously had no voice on the international stage, the minority group itself could use the petition procedure to state its grievances, although the League had no facility to initiate its own investigations. • Whereas the end of the nineteenth and the beginning of the twentieth centuries had seen the Great Powers turn a blind eye to minority issues, now the League of Nations, in theory, provided a formalised, supra-national procedure through which complaints could be addressed without it being seen as confrontational.97 However, the fact that it only applied to new and defeated states and that, at that time, the treatment by a state of its own citizens was seen as a wholly internal affair, meant that many of the minority states resented this international oversight; on the other hand, the failure of the League to obtain redress where there was a violation led to disenchantment with the processes among the minority groups.98 In many ways, it was a system based on ideas ahead of their time and predicated on an international situation less degenerate than that which existed in the inter-war period. It is unjust to view the failure of the minority system of the League of Nations independently of the general international conditions of the time. The minorities protection system was but a part of the world structure established at Paris, adopted to meet particular conditions arising from the territorial settlements there. Inevitably the minorities system depended on the general state of international order and relations, and inevitably when that order disintegrated the system collapsed with it, . . . That minorities should suffer in such a climate was inevitable; in fact, it was quite natural that they should be the first to suffer therefrom. As respect for international obligations declined and the authority of the League of Nations wilted to oblivion, the ability of the organization to carry out effectively its minorities responsibilities declined accordingly, and the ultimate failure of the system accompanied the failure of the League . . . In general, the minorities states did all in their power (1) to thwart the aims and procedures of the minorities system, or (2) utilize it for their own political designs.99 The new states had learnt well the techniques utilised against them by the great Powers when they had been part of larger Empires.

The present status of the post-World War I treaties

That still leaves the question as to whether the traditional view that the League of

96 Cf. Little use was made of petitions by kin-states because of the resentment it aroused—Macartney, National States and National Minorities, p. 313. A state could always argue, however, that a minority issue might threaten ‘to disturb the international peace or the good understanding between nations’ and bring it to the attention of the League under Article 11 of the Covenant—Macartney, at pp. 342–5. On Advisory Opinions before the PCIJ, see de Azcárate, League of Nations and National Minorities, at pp. 64–5, 74–5. 97 Macartney, National States and National Minorities, at p. 420, suggests that the Council of the League of Nations was not always willing to seek proper redress when an infraction was found to have occurred. See also, de Azcárate, League of Nations and National Minorities, at pp. 97–8 and paragraph 3 of the letter from Clemenceau to Paderewski, fn. 73 above. 98 de Azcárate, League of Nations and National Minorities, pp. 130–6. 99 T. H. Bagley, General Principles and Problems in the Protection of Minorities (Geneva: University of Geneva, 1950) at pp. 126–7 (emphasis added); Bagley goes on to commend the attitude of Czechoslovakia, Estonia and Yugoslavia, and condemn that of Poland, Rumania and Lithuania. See also Macartney, National States and National Minorities, pp. 420–1. Religio–nationalist minorities and minority rights law 407

Nations system is now defunct is justified? The Commission on Human Rights100 opined in 1950 that all the treaties, apart from the Treaty of Lausanne and the Aaland Island agreement, had lapsed. The reasons given for this lapsing were the effects of World War II, the dissolution of the League of Nations, the Charter of the United Nations (which makes no direct reference to the protection of minorities) and the treaties concluded after World War II, the territorial transfers and population movements which took place after World War II and, more generally, the change of circumstances from when the World War I treaties had been concluded (rebus sic stantibus).101 With regard to Turkey, the Commission decided that there had been no new treaty to replace Lausanne and that circumstances had not materially altered.102 The main reasons put forward by the Commission for the continuance of the Aaland Islands agreement were that, subject to the United Nations expressly taking on the role of the League of Nations in relation to the agreement, Sweden and Finland had not been at war and the specific scheme could continue unaffected by the events of World War II.103 In the early 1950s, the Finnish parliament contested the agreement’s survival, while not challenging the rights given to its Aaland Island minority, on the grounds of the 1947 peace treaty made between the Allies and Finland and the dissolution of the League of Nations.104 However, the Commission, in an addendum to its report,105 drew on the International Court of Justice judgment in the International Status of South West Africa Case106 to argue that the United Nations had succeeded to the League of Nations’ role, although it was not prepared to take the analogy too far. Since the 1950 ICJ decision, though, further consideration has been given to the position of South Africa’s former League of Nations mandate over what is now Namibia, and it may be that, mutatis mutandis, the Minorities Treaties obligations can be argued to have survived. In the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council 276 (1970) Case,107 the ICJ delivered an advisory opinion upholding its view from the 1950 case that South Africa’s mandate had survived the end of the League of Nations and had now come within the remit of the United Nations. This remit included the right to receive the annual reports from the Mandatory state and petitions from the mandated territory’s inhabitants.108 Moreover, while the United Nations Charter made no express mention of minority rights, subsequent United Nations instruments have

100 Study of the Legal Validity of the Undertakings Concerning Minorities. 101 Ibid., pp. 5–6. The reasons are, of course, intertwined. See also, Kontou, Termination and Revision of Treaties, at pp. 91–6. 102 Study of the Legal Validity of the Undertakings Concerning Minorities, pp. 56–7. 103 Ibid., p. 69. 104 See Hannum, Autonomy, at p. 370; K. Myntti, ‘National Minorities and Minority Legislation in Finland’, in J. Packer and K. Myntti (eds.), The Protection of Ethnic and Linguistic Minorities in Europe, (Åbo/Turku: Åbo Akademi University, 1993), pp. 79 ff. NB. Finland and Sweden, which was a neutral state, had not been at war. 105 E/CN.4/367, Add.1, pp. 3 ff. 106 ICJ Rep. 1950, p. 128. 107 ICJ Rep. 1971, p.16. See also, Voting Procedures on Questions Relating to Reports and Petitions concerning the Territory of South West Africa Case, ICJ Rep. 1955, p. 67; South West Africa (Petitioners) Case, ICJ Rep. 1956, p. 23; South West Africa (Preliminary Objections) Case, ICJ Rep. 1962, p. 319; South West Africa Cases (Second Phase) ICJ Rep. 1966, p. 6. 108 See the 1950 Case, fn. 106 above, pp. 143–4. 408 Geoff Gilbert done so.109 With the re-emergence of nationalism in the Central and East European and Balkan states following the demise of communism after 1989, many of the minority issues dealt with expressly in the World War I treaties also have to be addressed once again.110 Nevertheless, even though many of the factors put forward by the Commission on Human Rights in 1950 to suggest that the World War I treaties which lapsed as a result of World War II and its aftermath have since been reversed, the change in approach to minority rights and human rights since 1945 means that even if the Minorities Treaties are still extant in some form, they could only ever be a stop-gap until proper, post-World War II provision is made. The thesis of this article, that present-day minority rights are the product of the previous 500 years in Central and Eastern Europe and the Balkans, does not mean that new measures are not essential—only that we should learn from earlier errors.

The root of the present procedure?

In conclusion, minority rights in international law have a long pedigree. Initially protecting religious minorities, they were extended to national or ethnic minorities and later to linguistic minorities. On the other hand, present day mechanisms to protect minority rights, other than rare cases of humanitarian intervention, are more closely associated with the inter-war systems. Nevertheless, even if, as suggested in the previous section, the post-World War I treaties still offer ‘paper’ guarantees to the various minority groups of the region, the systems and practices created for their implementation under the League of Nations are undoubtedly defunct. However, modern systems of implementing minority guarantees under the commitments of the United Nations, the Council of Europe and the OSCE did not ignore the improvements that the League of Nations mechanisms had offered. The roots of present procedure are arguably found in the improved mechanisms of the inter-war period and in its failings, perceived and real. The protection of minority groups in the period up to the end of the Crimean war had been a matter of intervention, usually aggressive, by a kin-state. Such an approach was rejected at the Treaty of Paris 1856. While the idea of intervention by individual states to protect minorities is probably redundant in international law,111 collective humanitarian intervention under the authority of the United Nations Security Council does survive, though it seems, having regard to events in Bosnia- , Rwanda and Northern Iraq, to be as ineffective as the purported collective intervention by the Great Powers under the Treaty of Berlin.112 Given that kin-states will always show an interest in the treatment of their kin- minorities, any mechanism designed to protect minorities must allow for such

109 See Alan Phillips’ of the Minority Rights Group’s June 1993 paper to the World Conference on Human Rights, Minority Rights and the United Nations. For example, the ICCPR, fn. 3 above and accompanying text. See also the General Assembly’s 1992 Declaration, fn. 2 above. 110 E.g. Article 10 of the Treaty of St Germain with the Serb–Croat–Slovene state, fn. 80 above, on the protection to be accorded to the Moslem minority. 111 Kin-minorities are not treated as if they were nationals of the kin-state and within its protection in international law. 112 See G. Gilbert, ‘The Rights of Religious Minorities’, International Journal on Minority and Group Rights, 5:2 (1998), pp. 97–134. Religio–nationalist minorities and minority rights law 409 interest. The League of Nations alternative to aggressive intervention had been to allow kin-states to petition the Council or raise concerns under Article 11 of the Covenant as a threat disturbing international peace. The more modern alternative method of intervention on behalf of a kin-minority, however, can be found in inter- state cases alleging violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms before the Strasbourg organs—inter- state cases, though, have proved to be exceedingly rare. In addition, the right of states to raise concerns about the treatment of minorities in other OSCE states under the Vienna and Moscow mechanisms113 could also be said to parallel and build upon the petition procedure open to members of the League of Nations. However, the increasing desuetude of these two mechanisms may well reflect fears that the process harks back too much, as it had done under the League of Nations, to the eighteenth and nineteenth century interventionism of individual states that did naught but engender increased disaffection between the minority and the home state and disrupt good international relations, which does not bode well for the series of bilateral treaties that have been concluded, particularly by Hungary, since 1995. Furthermore, the pre-World War I scheme of relying on the kin-state, while the best available at the time, had turned minorities into a pawn of international relations and left minorities with no kin-state unprotected: there is nothing to suggest these less aggressive methods are any improvement in that regard. On the other hand, the impartial intervention by the OSCE’s High Commissioner on National Minorities114 to prevent conflict between participating states within the OSCE also displays the reality that minorities are a potential source of conflict between states and that a neutral but formalised institution is the best way of proceeding to a resolution. Although there was no precise League counterpart to the HCNM, his impartiality mirrors that expected of the League of Nations and he can be seen as a more interventionist descendant of the League’s Minorities Committees and the Director of the Minorities Section. The idea seen in the League systems that minority issues need political rather than legal solutions is very much evident in the function of the HCNM. Intervention has moved on, though, from protecting the group itself, to protecting international peace through supranational mechanisms. There is no direct modern equivalent, however, to the petition by a minority group in the League of Nations system. When a state files its report under Article 40 of the International Covenant on Civil and Political Rights, it is open to interested parties to submit their own comments which the Human Rights Committee may then draw on when reviewing the report. However, the minority group cannot initiate an investigation as a petition might in the inter-war period. It may be that the Framework Convention for the Protection of National Minorities will develop so that minority groups will be able to petition the Advisory Committee directly and prompt action by it and the Committee of Ministers to meet particular problems, but there is no hint of such an approach in the Convention as it stands.115

113 And thereby send a mission of experts or rapporteurs to the state in question to obtain information and seek solutions where appropriate—see Wright, OSCE and Minority Rights, pp. 198 ff. 114 See Wright, OSCE and Minority Rights, pp. 200 ff. 115 Cf. A. Phillips, Memorandum on the Composition and Procedures of the Advisory Committee to be set up under the Framework Convention for the Protection of National Minorities, AS/Jur/DH (1996) 2: 21, March 1996, Council of Europe Parliamentary Assembly. 410 Geoff Gilbert

While the minority group does not have the petition procedure, it does have one means of raising matters of concern not available between the wars. Either through an individual representative under the ICCPR or in its own right under the ECHR, the minority group can seek a legalistic response to a violation of the state’s international human rights obligations. One of the major criticisms in the inter-war period was that the minority group had no right of redress, merely a means by which to provide the Council of the League with information. Thus, in so far as a judicial or quasi-judicial procedure puts the minority group in charge of the process and on an equal footing with the defendant state, the modern system may be seen as an improvement. Solutions to minority problems, though, are more likely to require political remedies, so only if there is a flexible mechanism in place to enforce any decision against the state will this approach represent a true improvement. Legalistic responses on their own will never be sufficient to resolve the issues surrounding minority populations. What is clear is that while equality in law and fact for members of minority groups is an essential element of minority rights, greater autonomy for the group, much more of a collective and less of a justiciable, legal right, has to be seen as a necessary development as well. Where national minorities are concerned, what is needed is the establishment of adequate juridical and political institutions—according to the circumstances of the moment—in order to prevent the existence of these minorities from becoming a threat to peace, both internal and international.116

116 de Azcárate, League of Nations and National Minorities, at p. vii. See Article 11 of Recommendation 1201 (1993) of the Parliamentary Assembly of the Council of Europe and Article 35 of the Copenhagen Document of the OSCE, fn. 4 above. It remains to be seen how successful the Good Friday 1998 peace agreement to ‘solve’ the Northern Ireland conflict, which goes so far as to allow kin-state involvement in the government of the region where the minority reside and to permit eventual secession and union with Ireland, proves to be—see G. Gilbert, International and Comparative Law Quarterly, 47 (1998), pp. 943–50. What is clear is that legal and political responses need to be available.