Global Minority Rights

Joshua Castellino, Joshua Castellino

• Editorial: Routledge
• Año: 2017
• ISBN:
  9781351933346
• Edición: 1
• Categoría: Politik & Internationale Beziehungen
• Categoría: Politik

This important volume brings together a range of material in different areas of law and the social sciences that address questions concerning the rights of minorities. The discipline is arguably one of the oldest branches of public international law, and owes its heritage to those who struggled to create standards to protect the numerically inferior and non-dominant communities from the excesses of the majority. While reflecting this rich heritage, the works contained in this volume show the extent to which policy constructs (especially in law) have begun to pay heed to the need to include minorities in different domestic settings across the globe. To provide readers with a structured approach to understanding global minority rights law the editor divides the issues into six main headings, namely: Historical Development; Conceptual Development; Contemporary Challenges; Fundamental Norms of Minority Protection; Specific Rights of Minorities; Human Rights and Minority Rights.

Part I
Historical Development of Minority Rights Law

[1]
Historical Background: International Law Moves from Protection of Particular Groups to Norms of a Universal Character

Patrick Thornberry

Throughout the history of international law¹ there are examples of protective treaties concluded for the benefit of specific groups; the treaty is the paradigmatic instrument recognizing the right of minorities to fair treatment. The treaties produce a wilderness of single instances rather than any comprehensive scheme. There is, however, a certain similarity in the occasions and circumstances resulting in a treaty, even though the occasions and circumstances did not produce this result in all cases. Occasions for instituting a protective treaty were similar to those relating to the protection of aliens; a bond between protecting Power and protected minority, whether of religion, nationality, or culture. The minority could, indeed, consist of former nationals of the protecting Power on ceded territory. Hence the association of minority rights with cession of territory. An early example is the Treaty of Oliva of 1660,² by which Poland and the Great Elector ceded Pomerania and Livonia to Sweden, guaranteeing the inhabitants of the ceded territories the enjoyment of their existing religious liberties. Article 2(3) of the treaty provides that the ‘cities of Royal Prussia, which, as a consequence of this war, have become the property of … (Sweden), will maintain all the rights, liberties and privileges which they have enjoyed … in the ecclesiastical or the lay domain.’ A later example is the multilateral Convention of 1881 for the Settlement of the Frontier between Greece and Turkey.³ Article III provides that The lives, property, honour, religion, and customs of those of the inhabitants of the localities ceded to Greece who shall remain under the Hellenic administration will be scrupulously respected. They will enjoy exactly the same civil and political rights as Hellenic subjects of origin.’ Article VIII complements this in providing:

Freedom of religion and of public worship is secured to Mussulmans in the territories ceded to Greece. No interference shall take place with the autonomy or hierarchical organisation of Mussulman religious bodies now existing, or which may hereafter be formed; nor with the management of the funds and real property belonging to them. No obstacle shall be placed in the way of the relations of these bodies with their spiritual heads in matters of religion.

The convention also provides for the retention of property⁴ titles to religious and educational institutions, and the autonomy of local religious courts.⁵

The Convention of Constantinople, 1879, between Austria-Hungary and Turkey⁶ respecting the occupation by the former of the Provinces of Bosnia and Herzegovina is another example of a wide-ranging guarantee of religious liberty on a cession of territory. The guarantee is not confined to Mussulmans; Article II provides: ‘the freedom and outward exercise of all existing religions shall be assured to persons residing or sojourning in Bosnia and the Herzegovina. Especially, entire freedom is assured to Mussulmans in their relations with their spiritual chiefs.’ The Austro-Hungarian authorities promised that they would protect the honour, customs, freedom of religion, personal security, and property of Mussulmans. Further, all aggression against them, their property or religion, would be severely punished.⁷

It may be seen that the protection of such ‘new’ minorities could be generous in spirit. The identification of beneficiaries was in terms of religious affiliation, but the guarantee extended beyond the religious aspects of the minorities’ existence to customs, property, educational institutions, and law. No distinction is made between religious belief and outward exercise of religion; the latter issue has been troublesome in recent times when States purport to accept freedom of religious belief, but curtail its exercise in terms of public order, etc. The rights in the conventions described are not limited in this fashion; they are simply declared.

Aspects of the treaties are emblematic of earlier, less disciplined societies despite the privations undoubtedly suffered by minorities; Article IV of the last convention provides that ‘The Ottoman currency shall continue to have free circulation in Bosnia and the Herzegovina.’ The stringency and discipline of modern societies provide an added element of threat to minorities which may produce similar culture disintegrating effects to the cruder methods of earlier times. The centralizing, homogenizing, and organizing tendencies of modern States are as great and perhaps greater than in earlier epochs. The Convention of Constantinople provides that the minorities are under the sovereignty of Austria-Hungary; they are not apparently compelled, as minorities are in many modern States, to subscribe to a national (or international) ideology as a condition of their continued existence.

Of course, not all treaties were so generous on their face and the condition of minorities was perilous over continents and centuries. Relations between Christian and Islamic powers were frequently strained and gave rise to early instances of protection. An example which belongs to the protection of minorities rather than the protection of aliens is the promise by St Louis of France in 1250 to protect the Maronites as if they were French subjects.⁸ The promise was contained in a letter to the Emir, Patriarch, and Bishop; it was renewed in 1649 by Louis XIV in a communication to the Maronite Patriarch of Antioch and the Maronite nation, and by Louis XV in 1737.⁹ These were unilateral acts; the earliest treaty in this context appears to be the Austro-Ottoman Treaty of 1615, article 7 of which reads:

Ceux qui professent être le peuple de Jésus – Christ et qui obéissent au Pape, de quelque dénomination que le soit, écclesiastiques, moines, ou Jésuites, auront le droit de construire les églises dans les Etats du sérénissime Empire des Turcs où ils pourront d’après leur usage, conformément au statut de leur ordre et d’après l’antique rite, lire l’évangile, se réunir en assemblées et vaquer ou service divin; ils seront traités avec bienveillance par le sérénissime empereur des Turcs et par ceux qui dépendent de lui …¹⁰

Many treaties followed the one of 1615, as the status of France as a Christian protector was rivalled by Austria and Russia in relations with the Sublime Porte. The Treaty of Carlowitz, 1699, provided a method of implementing guarantees in article 7:

les religieux catholiques româins, partout où ils ont leurs églises, pourront, sans empêchement, exercer leurs fonctions et vivre en toute sécurité, conformément aux ordres émanés de la Sublime Porte, et il sera permis à l’ambassadeur de Pologne près de la Sublime Porte d’exposer devant le trône impérial toutes les demandes qu’il aura ordre de faire au sujet de la réligion.¹¹

In the Treaties of Koutchouk-Kainardji, 1774,¹² and Adrianople, 1829,¹³ Russia obtained the right to make representations on behalf of Orthodox Christians.

If these instances were a melancholy reflection of relations between Christian and Moslem powers, the Reformation gave rise to the pressing need of protecting one Christian sect from another when religious wars and spontaneous changes resulted in the partisans of one faith finding themselves within the territory of a prince belonging to a different confession. Therefore, several treaties dealt with the rights of Protestants in Catholic territory, and vice versa. The Treaty of Oliva may be cited as one example. Others include the Treaty of Vienna, 1607, signed by the King of Hungary and the Prince of Transylvania, granting to the Protestant minority in the latter region the free exercise of their religion.¹⁴ The Peace of Westphalia, 1648,¹⁵ between France, the Holy Roman Empire, and respective allies, while confirming the rule of cuius regio, eius religio set out in the Religious Peace of Augsburg, 1555,¹⁶ provided safeguards for minorities, though the protection was applied incompletely. Thus, Protestant worship was excluded in the Dominions of the House of Austria as a whole. The Treaty of Nijmegen, 1678, between France and Holland, is another example of an inter-Christian treaty;¹⁷ this guaranteed freedom of worship to the Roman Catholic minority living in the territories ceded by France to Holland. To similar effect is the Treaty of Ryswick, 1697,¹⁸ concluded between the same parties. The emphasis in early treaties is on freedom of conscience and worship, though sometimes even these freedoms were subject to restrictions in favour of public order. Article 14 of the Treaty of Peace between France and Great Britain, 1713, by which France gave Hudson Bay and Acadia to Great Britain is one example:

it has been expressly agreed that in all the territory and colonies which by virtue of this treaty must be ceded or returned by [the King of France], the subjects of the said King will have the liberty of leaving within a year with all their movable properties. Those who, nevertheless, would choose to stay and remain under the domination of Great Britain, must be able to enjoy the exercise of the Roman Catholic religion, in so far as the laws of England permit it.¹⁹

Similarly, the Treaty of Paris, 1763, provides in Article 4 that the King of Great Britain ‘agrees to grant to the inhabitants of Canada the freedom of the Catholic religion: consequently [he] will give the most precise and most effectual order, that his new Roman Catholic subjects may profess the worship of religion according to the rites of the Romish church, as far as the laws of Great Britain permit’.²⁰ By contrast, other treaties, for example, those of Oliva and Nijmegen, provided more precise guarantees in that they simply reaffirmed the status quo. An extreme example is provided by the Treaty of Dresden, 1745,²¹ between the King of Prussia and the Elector of Saxony: Article 8 stipulated that the Protestant religion would be maintained in the territories of the two parties, in accordance with the Treaty of Westphalia, without it ever being possible to introduce the slightest innovation.

After the Congress of Vienna, treaty clauses for protection of minorities become more detailed and there is a shift from protection of religious minorities to protection of national minorities. At no time would it appear that any doctrinal ‘purity’ was maintained in treaty practice in conferring rights on individuals or collectivities: churches, religious courts, those who profess to be the people of Jesus Christ, inhabitants of ceded territories, were all mentioned in texts as objects of protection. One writer surmises that there is a difference between inter-Christian instruments and the Christian and Turkish treaties in that the former tended to confine protection to ceded territories and the latter were more wide-ranging, applying throughout the Ottoman Empire. One reason for this may be that minority clauses were in contradiction to the spirit of the law in European states, whereas in Turkey the traditional Millet²² system granted religious freedom to minorities throughout the Empire.²³ From the end of the fifteenth century to the 1920s each religious community (Millet) in the Empire enjoyed wide-ranging autonomy in civil and religious matters: Millets controlled education, records of birth and death, marriage, and wills. Millets could tax members, subject to paying a tribute to the Sultan. The origins of the system in the fall of Constantinople may have been inglorious for minorities in that it derived from the Moslems’ contempt for Christians, whom they thought unworthy of the community of the faithful.²⁴ It was none the less a beneficial autochthonous system, not imposed by treaty.

The new era in Europe, building upon the French and American Revolutions, developed treaty protection in a more secular style: the French revolution of 1789 established in France the principle of freedom of religion and public worship; the First Amendment of the Constitution of the United States of America provided that Congress could ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof’. The emergence of nationality as a principle for nation building and identifying ‘alien’ minority elements within nation States did not mean that religious differences were of no account is the institution of ...