Ward, Christopher --- "Minority Rights in the 'New' Europe by Peter Cumper and Steven Wheatley (Eds); Majoring in Minorities: Minority Rights in Europe" [2000] MelbULawRw 20; (2000) 24(2) Melbourne University Law Review 530
Book Review
Majoring In Minorities: Minority Rights In Europe
Minority Rights in the ‘New’ Europe
by Peter Cumper and Steven Wheatley (eds)
(The Hague: Martinus Nijhoff Publishers, 1999) pages
i–ix, 1–385. Price £79 (hardcover). ISBN
90 411 1124 7.
The development of a body of rights belonging to minority groups is a feature of 20th century international law. Co-existing with other more general human rights, minority rights raise unique issues and give rise to tensions with other topics of international law.
Minority rights include rights of political participation, cultural rights, rights of identity, language and self-identification, and rights to equal treatment and religious freedom. By their nature, minority rights are less easily identified and less easily implemented than other rights. Some of the rights considered to be minority rights are perhaps in the nature of aspirational rights. Others, such as the right of political participation, have a more immediate application. Thus, the identification and characterisation of minority rights are a focus of recent scholarship in the field.
One of the features of minority rights discourse that renders the topic a fertile area of theoretical study is the fundamental ways in which minority rights intersect and interact with other international and domestic law rights and rules. Of particular importance are the inherent tensions between minority rights, such as the rights to political and religious freedom, and the established international law principles of self-determination, territorial sovereignty and stability of boundaries.
However, the study of minority rights is not merely of theoretical interest. The issues raised by minority rights are at the root of several current or recent international conflicts and humanitarian disasters. Conflicts and disputes in the Socialist Federal Republic of Yugoslavia (‘Former Yugoslavia’) and Bosnia-Herzegovina, Rwanda, Northern Ireland and East Timor can all be traced to the existence of minority peoples asserting various rights. The suppression of minorities within a state leads to continued political instability and unrest and, in extreme cases, to the regional destabilisation seen recently in Indonesia and the Former Yugoslavia.
The development of minority rights as a distinct topic of international law has proceeded in an ad hoc manner, with sparse references in bilateral and multilateral treaties and a slowly developing foundation in customary international law. Some protection of minority rights was accorded under the more general umbrella of human rights in the early part of the 20th century.[1] The fundamentals of minority rights as presently understood can be seen in article 27 of the International Covenant on Civil and Political Rights:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.[2]
It is noteworthy that article 27 is framed in terms of a proscription: persons belonging to a minority ‘shall not be denied’ the rights contained within it. This perhaps reflects the relatively defensive nature of minority rights jurisprudence as a whole: protecting, rather than promoting, rights. More recently, the United Nations Human Rights Committee has looked at article 27 in the course of its consideration of more general examples of discrimination.[3]
However, notwithstanding the partial elaboration of article 27 of the ICCPR by the Human Rights Committee, and the subsequent adoption of other international instruments such as the Council of Europe’s Framework Convention for the Protection of National Minorities,[4] the content and characterisation of minority rights remains obscure.
Nowhere have minority tensions been more apparent than in the Europe of the 1990s, particularly with the disintegration of the Former Yugoslavia and the continuing tensions in several of the resulting states. In addition, minority tensions continue to be the source of political unrest in other European states such as France, Germany and the United Kingdom. As a result, European commentators may be considered uniquely qualified to give a perspective and analysis of minority rights. This is precisely what the work Minority Rights in the ‘New’ Europe[5] achieves. Notwithstanding its European focus, the lessons contained in the work are universal, and apply as much to local instances of minority oppression as they do to the European experience.
The editors, Peter Cumper from Leicester University and Steven Wheatley from the University of Central Lancashire, have divided the book into four main sections.
In the first section the institutional responses to minority issues in Europe are described and considered. Chapters deal with the Organisation for Security and Co-Operation in Europe (‘OSCE’), the Council of Europe, the Framework Convention developed by the Council of Europe, the European Union (‘EU’) generally and the different benefits of bilateral as opposed to regional approaches to resolving minority tensions. Although much of the content of these chapters is specific to the European context, and indeed presupposes a level of understanding as to the status and roles of the various institutions considered, some universal principles emerge. In the chapter dealing with the OSCE, María Amor Martín Estébanez outlines the institutional structures with responsibility for minority issues. He describes in some detail the obligations placed upon OSCE member states[6] and, in particular, the obligation on those states to create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of minority groups.[7] He contrasts this obligation with the defensive nature of the Framework Convention (which is itself considered in detail in a later chapter). Some of the main contributions of the OSCE to the protection of minority rights have been the institution of conflict prevention and management techniques, and field missions. Although the primary focus of such missions has usually been more general human rights protection, it has proven impossible to avoid a subsidiary focus on inter-ethnic tensions. Martín Estébanez describes the assistance of OSCE missions as including the provision of expert advice on new constitutions, assistance in relation to issues of autonomy and regional status, as well as more direct assistance in mediation and the implementation of minority protection legislation.[8] He concludes that the relative success of the OSCE in protecting and promoting minority rights in Europe is a result of its willingness to take a ‘hands-on approach’ to the issue, in particular by fostering inter-state co-operation.[9] This is of note given the conclusions reached in a later chapter of the work dealing with bilateral and regional approaches.[10]
In the following two chapters, Geoff Gilbert[11] and Gerd Oberleitner[12] describe efforts by the Council of Europe to protect minority rights. Gilbert analyses the approach of the Council of Europe with a critical eye. He refers to the essential difficulty in providing an accurate definition of a ‘minority’ or ‘minority rights’, suggesting that the ambiguities inherent in the interchangeable use of terms such as ‘ethnic minority’, ‘national minority’ and ‘religious minority’ are a barrier to the efficient protection of the rights in question.[13] He notes that the European Convention for the Protection of Human Rights and Fundamental Freedoms[14] contains no express guarantee of minority rights, a position which has been accepted by the European Commission and the European Court of Human Rights. Importantly, Gilbert includes a brief analysis of some of the jurisprudence of the European Court of Human Rights and the European Commission of Human Rights in the context of the limited protection provided by article 14 (freedom from discrimination) of the European Convention on Human Rights. He argues that the Strasbourg organs have been slow to protect linguistic and religious minority freedoms as a result of the ambiguity and failings of the European Convention on Human Rights.[15] He concludes that the Council of Europe has a role to play in the reform and development of a minority rights regime in Europe and, in particular, in overcoming the divide that exists between Western Europe and Eastern Europe on the topic.[16]
Oberleitner considers the Framework Convention which entered into force in 1998. It has been the subject of sustained criticism for its lack of definition and inadequate supervisory mechanisms. Oberleitner focuses on the reporting mechanism established under the Framework Convention, describing it as the ‘weakest’ available mechanism.[17] He predicts that the problem of overdue and incomplete reports will fundamentally detract from the efficacy of the system and that the only solution is the creation of a more powerful Advisory Committee to supervise compliance with the Framework Convention in an apolitical manner.[18] Although it is undoubtedly true that any system of reporting is relatively weak when compared with a quasi-judicial system such as that established by the European Convention on Human Rights, the Framework Convention’s reporting mechanism is not without merit as a means of encouraging modification in state behaviour. Indeed, the interaction between states, non-governmental organisations (‘NGOs’) and supervisory bodies is complex and involves an interaction on many levels beyond the mere act of providing a report. Oberleitner refers briefly to the role played by NGOs in the context of the Framework Convention, noting their ‘increasing importance ... in the monitoring of human rights’,[19] a feature of modern international law that has been well recognised in other contexts.[20]
A chapter dealing with the role of the EU itself in the protection of minority rights follows. The author, Adam Biscoe, justifies its inclusion, notwithstanding the real lack of detailed consideration of minority issues by the EU, on the basis that ‘the European Union, as an embryonic political system, has an increasing role in the day to day lives of its member states and their citizens and is an emerging political actor in international affairs’.[21]
Biscoe focuses on the perceived inconsistency in the relative failure of the EU to grapple with minority protection within the EU and its contrasting recognition of minority rights outside the EU context. He considers this inconsistency in terms of the institutional conflicts that exist between the various arms of the EU itself and then places the debate in the context of the individual versus group rights discourse.
Article 128 of the Maastricht Treaty provides that ‘[t]he Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity’.[22] Biscoe asserts that this provision recognises that ‘member states are not culturally homogenous’.[23] Although this is true, the article 128 reference to ‘regional diversity’ gives greater importance to national than to regional diversity, reflecting the traditional international law focus on territorial sovereignty. This writer therefore questions the conclusion reached by Biscoe that ‘[a]rticle 128 represents a major shift in the status of European sub-state nations within the Community’.[24] As Biscoe later notes, the record of the EU in relation to minority protection remains chequered and restrained by the territorial concerns of its member states. Promotion of minority issues has been limited to relatively small-scale financial assistance for linguistic projects and the conservation of heritage items.[25]
The comparatively minor efforts of the EU in protecting and developing minority rights within EU states can be contrasted with its promotion of minority issues in states outside the EU. The EU has been a significant promoter of human rights in general, and has taken a relatively major role in the protection of minority rights in instances of clear repression outside the EU, in particular in the states of the former Soviet Union.[26] Conditions for membership of the EU include a recognition of minorities within the boundaries of the state seeking membership.[27]
The following chapter provides an unintended conclusion to the first section dealing with institutional responses to minority issues, and focuses on the complementary use of bilateral and regional mechanisms.[28] The European context is particularly useful as a model in this regard, since it has a relatively large number of regional institutions (many of which are considered in earlier chapters of the work), but individual states within Europe have also maintained a tradition of bilateral agreements touching upon minority issues. The most frequent examples of this type involve agreements between a state and an adjoining state, where a national or ethnic group exists as a majority in one state and as a minority in the second state. Article 18(1) of the Council of Europe’s Framework Convention provides that:
[T]he parties shall endeavour to conclude, where necessary, bilateral and multilateral agreements with other States, in particular neighbouring States, in order to ensure the protection of persons belonging to the national minorities concerned.[29]
The focus of Istvan Pogany’s chapter on bilateralism is, like article 18, on the potential for complementary regional and bilateral action. Bilateralism is seen as having potential for greater specificity and more detailed treatment of specific rights and issues, whilst regional action may be more appropriate for dealing with systemic issues. Pogany demonstrates this argument with a detailed consideration of the status of Hungarian minorities in East Central Europe, and the conclusion of treaties between Hungary, Slovakia and Romania.[30]
The second main section in the work is entitled ‘The Content of Rights in the “New” Europe’. It contains a number of case studies of minority rights issues in Europe: the treatment of the Roman Catholic minority in Northern Ireland under the Northern Ireland Constitution Act 1973 (UK),[31] the development of jurisprudence surrounding the right of minorities to preferential treatment and equal consideration,[32] the rights of religious minorities,[33] and new religious movements and the protection of cultural rights.[34] As examples of the tensions inherent in minority rights discourse these chapters are effective, in addition to being of general interest.
The inherent inconsistency in the position taken by the EU in relation to minority protection highlights the difficulties now faced in the development of minority rights discourse generally and, in particular, demonstrates the as yet unresolved tension between territorial stability and minority participation in government. This issue forms the substance of the third section of the work, which is entitled ‘The Challenges of State Building in the “New” Europe’. This is perhaps the most interesting and challenging section of the text. It focuses on the problems of power sharing and the tensions that exist between the state and minorities. The first chapter in this section is provided by Steven Wheatley, who emphasises that any successful resolution of these tensions must be grounded in a human rights approach.[35] He identifies two main approaches to the issue: that of power sharing and that of pluralist participatory democracy. He examines each approach in some detail, and concludes that the power sharing approach is ineffective when compared with genuinely plural democracy.[36]
The asserted right to democratic governance has been the subject of considered recent debate.[37] It seems clear that an inability to participate in government is an infringement of basic human dignity. At the least it is a departure from the principles of fairness that must underlie any successful legal system.[38] Equally, at the heart of minority rights discourse is the recognition that a class or group of individuals in a state is less equal than the majority group in that state. Whilst accepting the need to take action to overcome such an inequality, Wheatley asserts that entrenched power sharing arrangements within the state are fundamentally inconsistent with the right of the people of that state to self-determination.[39] This argument forms the basis of his view that pluralistic democracy (described below) is more appropriate than entrenched constitutional power sharing systems. Although there may be other grounds for reaching that conclusion, it seems clear that Wheatley’s description of self-determination as being a right belonging to the ‘population of a given state’ as a whole,[40] is overly simplistic. It ignores the substantial discourse that questions the ownership of self-determination and that suggests that self-determination is a right of ‘peoples’ and not necessarily of populations bounded by artificial state boundaries.[41] In fact, it is the very denial of a voice to a minority within a state that is at the heart of the problem of minority repression.[42] Indeed, arguments of that nature are considered in the following chapter by Javaid Rehman, who focuses on autonomy and argues that autonomy structures have a legitimate place in resolving minority rights issues.[43] Nevertheless, notwithstanding the insufficiency in that regard, it is difficult to disagree with Wheatley’s conclusion that ‘[i]t is clearly of vital importance that minorities enjoy some “ownership” over the decision-making process’.[44]
Perhaps this ‘ownership’, described by Wheatley as plural democracy, could best be achieved by a process of sustained dialogue between the various actors in the domestic legal context, interacting as necessary with the broader international legal system. The importance of dialogue has been recognised in the context of the internalisation of international legal rules,[45] and clearly forms the basis of any effective system of democratic governance. Without an effective legal system that enables all members in a society to engage in dialogue, any attempts at pluralistic democracy are doomed to failure.
The alternative to autonomy is considered by Rehman. He considers various forms of autonomy, noting that autonomy is swiftly becoming a favoured option in the resolution of minority tensions.[46] He recognises that the study of autonomy is in its infancy and that it requires further urgent attention. The potential of autonomy structures is obvious: the possibility of reconciling the fundamental tension between minority government and territorial stability. As yet, however, autonomy theory remains ill-equipped to resolve such a basic conflict.
The final section of the work develops these themes in more detail, focusing on the resolution of conflicts involving national minorities. Of great interest to students of international law is a detailed analysis of the Dayton Peace Accords,[47] including a general historical overview of the conflict in the Former Yugoslavia, which must surely be one of the greatest minority-driven tragedies of the 20th century.[48] However, of greater theoretical interest is the chapter written by Nedzad Basic, Donald Fleming and William Vaughn, which attempts to explore the relationship between self-determination and territorial integrity, and to examine the danger of armed conflict that results.[49] They commence their analysis with the assertion that it is the conflicting claims of self-determination and territorial sovereignty discourse that promote armed conflict.[50] As a result, they presume that adjustments in the relationship between those competing principles can avoid or reduce the risk of armed conflict. Applying international relations game theory, they introduce a third principle, that of respect for international human rights law, to provide alternative ‘rational choices’ for the participants. Under this model, respect for international human rights law becomes a trumping norm that overcomes the tension inherent in the other two principles.[51]
Although a tantalising solution to an immediate dilemma, the fundamental premise underlying the theory is open to question. In particular, notwithstanding the wishes of many international lawyers (this writer included), it is not possible to place all rules of international human rights law in a category that ‘trumps’ all other rules of international law. The requirements of international law in cases of a conflict of obligation are complex, and depend on such things as whether the rules are contained in one or more treaties, are considered to form a part of customary international law, or form a rule of jus cogens. As a result, the suggested introduction of a ‘rule’ that human rights law be respected does not accord with either the reality or the theory of international law. The authors attempt to reconcile this international legal dilemma with their theory with a passing reference to the danger that a failure to respect human rights will constitute a threat to international peace and security, such that the respect for human rights becomes a fundamental principle of international law.[52] Although there is certainly scope to develop arguments along those lines, in this writer’s view a failure to respect human rights does not at present constitute, of itself and automatically, a threat to international peace and security such that Chapter VII of the UN Charter would or could be triggered.[53] Notwithstanding this, the chapter is of great interest and will no doubt serve as the basis of further academic discussion.
In conclusion, Minority Rights in the ‘New’ Europe is an ambitious work which is of great value. It develops existing scholarship in the field and promotes further discussion and consideration of crucial issues. Although the book’s structure is slightly confusing at times, the contributors are well-credentialled and have provided valuable commentary and insights into a universal issue in a European context. It is a valuable addition to the human rights library.
CHRISTOPHER WARD[*]
[1] See Stephen Schwebel, ‘Human Rights in the World Court’ in R Pathak and R Dhokalia (eds), International Law in Transition: Essays in Memory of Judge Nagendra Singh (1992) 267.
[2] Opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force 23 March 1976) (‘ICCPR’).
[3] Eg Aumeeruddy-Cziffra v Mauritius (1981) 62 ILR 285; Lovelace v Canada (1981) 68 ILR 17.
[4] Opened for signature 1 February 1995, ETS No 157, 34 ILM 351 (entered into force 1 February 1998) (‘Framework Convention’). As at 30 June 2000 there were 29 states parties.
[5] Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (1999).
[6] María Amor Martín Estébanez, ‘Minority Protection and the Organisation for Security and Co-Operation in Europe’ in Peter Cumper and Stephen Wheatley (eds), Minority Rights in the ‘New’ Europe (1999) 31, 34–5.
[7] Ibid 34; Conference on Security and Co-Operation in Europe, Document of the Copenhagen Meeting of the Conference on the Human Dimension (Copenhagen, 29 June 1990), 29 ILM 1305.
[8] Martín Estébanez, above n 6, 41.
[9] Ibid 45.
[10] Istvan Pogany, ‘Bilateralism Versus Regionalism in the Resolution of Minorities Problems in Central and Eastern Europe and the Post-Soviet States’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (1999) 105.
[11] Geoff Gilbert, ‘Minority Rights under the Council of Europe’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (1999) 53.
[12] Gerd Oberleitner, ‘Monitoring Minority Rights under the Council of Europe’s Framework Convention’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (1999) 71.
[14] Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (‘European Convention on Human Rights’).
[15] Gilbert, above n 13, 61–3.
[16] Ibid 64.
[17] Oberleitner, above n 12, 83.
[18] Ibid 83–4.
[19] Ibid 81.
[20] See, eg, Martijn Wilder and Christopher Ward, ‘Voices in the Asia Pacific: A Survey of Local and Regional Environmental Non Governmental Organisations’ (1998) 3 Asia Pacific Journal of Environmental Law 78.
[21] Adam Biscoe, ‘The European Union and Minority Nations’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (1999) 89, 89.
[22] Treaty on European Union, opened for signature 7 February 1992, 1755 UNTS 3, 31 ILM 247 (entered into force 1 November 1993) (‘Maastricht Treaty’).
[24] Ibid 94.
[25] Ibid 95.
[26] See, eg, Final Act of the Helsinki Conference on Security and Co-Operation in Europe: Questions Relating to Security in Europe — Declaration on Principles Guiding Relations between Participating States, 1 August 1975, 14 ILM 1292 (‘Helsinki Final Act’).
[29] Framework Convention, above n 4.
[30] Pogany, above n 10, 114–21.
[31] Brigid Hadfield, ‘The Northern Ireland Constitution Act 1973: Lessons for Minority Rights’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (1999) 129.
[32] John Edwards, ‘Preferential Treatment and the Right to Equal Consideration’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (1999) 147.
[33] Peter Cumper, ‘The Rights of Religious Minorities: The Legal Regulation of New Religious Movements’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (1999) 165.
[34] Wolf Mannens, ‘The International Status of Cultural Rights for National Minorities’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (1999) 185.
[35] Steven Wheatley, ‘Minority Rights, Power Sharing and the Modern Democratic State’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (1999) 199, 199.
[36] Ibid 200.
[37] See, eg, Gregory Fox, ‘The Right to Political Participation in International Law’ (1992) 17 Yale Journal of International Law 539; James Crawford, Democracy in International Law (1993).
[38] See, eg, Thomas Franck, Fairness in International Law and Institutions (1995) 83–4.
[39] Wheatley, above n 35, 202.
[40] Ibid.
[41] See, eg, Patrick Thornberry, ‘The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism’ in Christian Tomuschat (ed), Modern Law of Self-Determination (1993) 101, 114–19; see generally Robert McCorquodale, ‘Self-Determination: A Human Rights Approach’ (1994) 43 International and Comparative Law Quarterly 857.
[42] Franck, above n 38, 482–3.
[43] Javaid Rehman, ‘The Concept of Autonomy and Minority Rights in Europe’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (1999) 217, 217.
[44] Wheatley, above n 35, 210.
[45] Harold Koh, ‘Bringing International Law Home’ (1998) 35 Houston Law Review 623.
[47] Republic of Bosnia and Herzegovina–Federation of Bosnia and Herzegovina: Dayton Agreement on Implementing the Federation of Bosnia and Herzegovina, 10 November 1995, 35 ILM 170; Bosnia and Herzegovina–Croatia–Yugoslavia: General Framework Agreement for Peace in Bosnia and Herzegovina, 14 December 1995, 35 ILM 75.
[48] Julie Mertus, ‘The Dayton Peace Accords: Lessons from the Past and for the Future’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (1999) 261.
[49] Nedzad Basic, Donald Fleming and William Vaughn, ‘International Legal Order and
Minority–Government Conflict’ in Peter Cumper and Steven Wheatley (eds), Minority Rights in the ‘New’ Europe (1999) 285.
[50] Ibid 285–6.
[51] Ibid 299.
[52] Ibid 294.
[53] The recent trend of the Security Council towards intervention in cases of humanitarian abuse remains linked to a more or less objective determination that there be a threat to international peace and security: see SC Res 841, 48 UN SCOR (3238th mtg), UN Doc S/Res/841 (1993) (Haiti); SC Res 733, 47 UN SCOR (3039th mtg), UN Doc S/Res/733 (1992) (Somalia); SC Res 812, 48 UN SCOR (3183rd mtg), UN Doc S/Res/812 (1993) (Rwanda); SC Res 713, 46 UN SCOR (3009th mtg), UN Doc S/Res/713 (1991) (Former Yugoslavia).
[*] BSc, LLB (Hons) (Syd), LLM (Cantab); Barrister of the Supreme Court of New South Wales, Wentworth Chambers, Sydney.