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Published online by Cambridge University Press: 09 June 2015
The ideology of ethno-nationalism creates a new world disorder. States and international organizations must find a way to deal with group conflicts to prevent ethno-nationalism from transmogrifying into ethnic cleansing and genocide. Minorities need protection against harm. The problem of minorities dominates many political conflicts.
The judiciary can provide a critical means of protection. Agreement comes readily over the general role for the courts in minority protection. Disagreement abounds over their specific role. Should courts, for instance, protect individuals but not specific groups? Should courts protect the identity of minority groups? The role of the judiciary becomes more tractable with a reorientation of our thinking by giving priority to the negative aspect of the minorities’ problem: the problem of injustice. Since group harm, and not group identity, lies at the heart of the difficulty, this is where the courts should look. Jurists become diverted in trying to define a minority in some positive terms when the harms that confront any minority are readily apparent.
1. Asbjom Eide, “Ethno-Nationalism and Minority Protection: The Need for Institutional Reforms”, The Reform of International Institutions for the Protection of Human Rights (Brussels: 1993) (“one of the most serious contemporary threats both to peace and to human rights is the ideology of ethno-nationalism, and … the best way to counter this threat is an appropriate and effective minority or group protection …”).
2. Except where otherwise noted, the terms “court” and “the judiciary” will be used interchangeably to refer to any adjudicatory mechanism.
3. E. Bello, African Customary Humanitarian Law (Northampton, UK: Oyez Publishing, 1980) at 29.
4. C. H. Alexandrowwicz, “The Afro-Asian World and the Law of Nations: Historical Aspects,” (1968) 123 Recuil des Cours 117 at 117.
5. E. Schwelb, “Human Rights” (1974) 8 Encyclopedia Britannica at 8.
6. Jay A. Sigler. Minority Rights: A Comparative Analysis (Westport, CT: Greenwood Press, 1983) at 69. The first draft also contained a provision protecting Jews.
7. The following treaties were signed: the 1919 Treaty of Versailles with Poland; the 1919 Treaties of Saint-Germain-en-Laye with Austria, Czechoslovakia and the Kingdom of the Serbs, Croats, and Slovenes; the 1919 Treaty of Neuilly-sur-Seine with Bulgaria; the 1919 Treaty of Paris with Romania; the 1920 Treaty of Trainon with Hungary; the 1920 Treaty of Sèvres with Greece; and the 1923 Treaty of Lausanne with Turkey. N. Lerner, “The Evolution of Minority Rights in International Law” in C. Brolmann, R. Lefeber, & M. Zieck, eds., Peoples and Minorities in International Law, (Boston: M. Nijhoff, 1993) at 83.
8. See Minority Schools in Albania, Advisory Opinion [1935], P.C.I.J. Ser. A/B, No. 64 at 17.
9. Carole Fink, “The League of Nations and the Minorities Question” (1995) 157 World Affairs 197 at 199.
10. In this essay, I shall promote a judicial approach to the minority problems. While the League gave priority to the political aspects of the minorities problem, the Permanent Court of International Justice issued a number of advisory opinions on minorities: Minority Schools in Albania [1935], P.C.I.J. Ser A/B, No. 64; German Settlers in Poland [1923], P.C.I.J. Ser. B, No. 6; Acquisition of Polish Nationality [1923], P.C.I.J. Ser. B., No. 7; Access to German Minority Schools in Polish Upper Silesia [1931], P.C.I.J. Ser. A/B, No. 40; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in Danzig [1932], P.C.I.J. Ser. A/B, No. 44.
11. For example, the treaties between Austria and Italy in 1946 and 1969 concerning South Tyrol.
12. Samuel Welles, Undersecretary of State, articulated the views held by the Roosevelt administration when in 1943 he said: “…in the kind of world for which we fight there must cease to exist any need for the use of the accursed term “Racial or Religious minority.” (June 5, 1943) U. S. Department of State, Bulletin at 482. As quoted in J. Sigler, supra note 6 at 77.
13. Rein Mullerson, “Minorities in Eastern Europe and the Former USSR: Problems, Tendencies, and Protection” (1993) 56 Modern L. Rev. 793 at 796.
14. World Directory of Minorities (Essex, UK: Longman, 1990) at 139.
15. Ted Robert Gurr, Minorities at Risk: A Global View of. Ethnopolitical Conflicts (Washington, DC: United States Institute of Peace Press, 1993) at 34.
16. Parallel claims are made in reports to the Committee on the Elimination of Racial Discrimination. For a discussion of these see Patrick Thornberry, International Law and the Rights of Minorities (Oxford: Clarendon Press, 1991) at 272.
17. Special Rapporteur F. Capotorti, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, UN Sub-Commission of Prevention of Discrimination and Protection of Minorities (New York: United Nations, 1991) at 13 (UN Doc E/CN. 4/Sub. 2/384/Add. 1–7, Sales No. E.78. XIV.I)
18. Ibid.
19. Ibid.
20. ‘“No Turks live in Greece,” Greece’s former Deputy Foreign Minister, Ioannis Kapis, once told me: “There are some Greeks who happen to be Muslim and happen to speak Turkish to each other. Nor are there any Macedonians….’” Robert D. Kaplan, Balkan Ghosts (New York: Vintage, 1993) at 240.
21. Gurr, supra note 15 at 45.
22. Ibid, at 18.
23. Ibid, at 49.
24. See my “Group Harm” (1995) 26 J. of Soc. Phil. 123.
25. This analysis is extensively developed in my Democracy and Social Injustice (Lanham, MD: Rowman & Littlefield, 1995).
26. Supra note 15 at 37.
27. Special Rapporteur F. Capotorti, supra note 17 at 96.
28. Jules Deschênes, Proposal Concerning a Definition of the Term “Minority” UN Doc E/CN. 4/Sub. 2/1985/SR. 13–16.
29. Patrick Thornberry, supra note 16 at 7.
30. “Sociologist estimate that today there are around 5,000 discrete ethnic or national groupings in the world.” S. James Anaya, “The Capacity of International Law to Advance Ethnic or Nationality Rights Claims” (1990) 75 Iowa L. Rev. 837 at 840.
31. [1930] P.C.I.J. Ser. B., No. 17. at 19.
32. In 1945, Thailand briefly became Siam following World War II before changing back to Thailand in 1948.
33. Anthony Diller, “What Makes Central Thai a National Language?” in Craig J. Reynolds, ed., National Identity and Its Defenders (Chiang Mai, Thailand: Silkworm Books, 1991) 87 at 87–132,91
34. Ibid., p. 98.
35. Chai-anan Samudavanija, “State-Identity Creation, State Building and Civil Society” in Craig J. Reynolds, ed., National Identity and Its Defenders at 59–86, 65.
36. See, Evely Kallen, “Ethnicity and Human Rights in Canada: Constitutionalizing a Hierarchy of Minority Rights” in Peter S. Li, ed., Race and Ethnic Relations in Canada. (Toronto, ON: Oxford University Press, 1990) 77. Kallen argues that in Canada the English and the French founding majorities in Quebec constitutes a distinct society. Kallen bemoans the fact that section 15(1) and (2) of the Charter gives greater protection against discrimination to ethnic (aboriginal and multicultural) minorities and women (since they have separate constitutional protection) than to other enumerated minorities (race, age, physical or mental disability). The least protected groups are non-enumerated minorities (sexual orientation, political belief, criminal record) at 89.
37. UN GAOR, 44th Sess., Supp. No. 40, UN Doc. A/44/40 (1989) at 53.
38. Special Rapporteur F. Capotorti, supra note 17 at 8.
39. Ibid.
40. Primo Levi, The Periodic Table (New York: Schocken Books, 1984) at 35–36 as quoted in Cora Diamond, “Sahibs and Jews” in David Theo Goldberg & Michael Drausz, eds., Jewish Identity (Philadelphia: Temple University Press, 1993) at 99.
41. See Thomas Auxter, “Justice for Farm Workers” in George Lucas, Jr., ed., Poverty, Justice, and Law: New essays on Needs. Rights, and Obligations (Lanham, MD.: University Press of America, 1986).
42. Terrance Meyerhoff, “Multiculturalism and Language Rights in Canada: Problems and Prospects for Equality and Unity” (1994) 9 Am. U. Int’l. L. & Policy 913 at 974–77.
43. Gudmundur Alfredsson & Alfred de Zayas, “Minority Protection by the United Nations” (1993) 14 Human Rights L. J. 1 at 3.
