A critical analysis of international legal instruments reveals that the laws do make reference to ‘minorities’. However, there is lack of a universally acceptable, legally binding definition of the term ‘minority’. The reason for this is that there are numerous minority groups that possibly exist and no proposed definition can accommodate all of them (Forsythe 2012). Moreover, many states provide a restrictive definition to prevent large swathes of their population from falling within the boundaries of the group.
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The innumerable and diverse groups claiming to be minorities also make it difficult to formulate a universally acceptable definition. Consequently, there are no firm guidelines informing the definition of the concept ‘minority’ in international law. However, considerable efforts have been made through different forums by international lawyers to provide guidelines as to factors to consider in defining the concept (Allen & Xanathaki 2011).
One of the factors to consider in the definition of the minority concept is numerical inferiority. The numerical inferiority factor is determined in reference to the overall size of the states’ population. In addition, ‘non-dominant’ positions of the group are taken into consideration.
Politically speaking, a minority situation is brought about by such a group. Another factor to consider is the nationality of the group. To qualify as member of a minority group, one has to be a citizen of the state they live in. As a result, the definition of the concept excludes refugees, foreigners, and immigrant workers (Hatvany 2006).
A group may be considered as minority if it is distinguished from the rest of the population in the state they live in with regard to ethnicity, religion, or language. Collective will has also emerged as a factor to consider in the definition of minority. The will comes into play when a group maintains a sense of solidarity and has distinctive characteristics that emerge over a long period of time (Preece 2009).
Minorities and International Law: Historical Overview
Provisions of international law try to protect the rights and freedoms of persons. The same applies to the case of minorities as a group in the society.
The Minority Treaties of the League of Nations
Protection of minorities was a major concern during the post World War I period. There were territorial re-alignments brought about by the war. The realignments led to the creation of new countries. The rights and freedoms of minority groups could not be overlooked. It was important to address them in order to have lasting peace in Europe. The minorities’ treaty system of the League of Nations was developed against such a background (Preece 2009).
The system embraced by the League was structured on individual treaties. The stand-alone treaties addressed particular scenarios in Europe. In most cases, the treaties fell within three clusters. Their classification was informed by the parties involved. The first category was made up of those agreements adopted by the states that lost in the war.
They included Austria and Turkey. Others were Hungary and Bulgaria (Hatvany 2006). The second group comprised of the new states created. In this group were Greece, Poland, Romania, and Yugoslavia. The last group was made up of special consideration given to minorities in the new establishments. The new entities included Aland and Upper Silesia (Allen & Xanathaki 2011).
The system of protection of minorities adopted at this juncture varied from one country to the other. The arrangement was not intended to develop into a system of international law for the protection of minorities. The intention is supported by the rejection of the idea to enshrine the protection of minorities in the Covenant of the League of Nations.
The United States of America made several suggestions to enhance the system. For example, it was suggested that all governments interested in joining the League should respect the rights and freedoms of minority groups. Despite the signing of the covenant, the League Assembly rejected efforts made by some members to improve the system. A case in point is the suggestion by some members to make protection of minorities a universal undertaking (Sigler 2004).
As already indicated, many countries were against the expansion of the minority protection system. There are several factors that contributed to this resistance. One of the factors was fear of possible external scrutiny and constraints on the states’ sovereignty.
The fear was prompted by the dissatisfaction expressed by the countries that had already adopted the system. The states maintained that the minority protection system allowed any person to file a petition against them. Such petitions would force the states to appear in public courts as defendants against their own citizens (Preece 2009).
Another reason for the rejection of the expansion had to do with the colonial territories under the control of European countries. The expansion would have raised issues with the legitimacy of the control that these countries had over the colonies. The questions would have required the colonialists to grant their subjects the freedoms and rights espoused in the minority protection system.
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The right to self-determination was only applicable to the situation in Europe and European powers were not willing to extend it to other regions in the world, such as in Africa. Therefore, the system was not developed to tackle minority issues in countries under the control of the colonialists (Thornberry 2003).
As made clear in the discourse above, the protection of minority system has faced a number of challenges since its inception. The challenges led to its failure, especially as a result of the ramifications of World War I. The political and economic reality of the time could also have led to the failure of the system.
According to Forsythe (2012), World War II led to the disintegration of the League of Nations. The disintegration brought down the protection of minority system. However, protection of the minority system has continued to be of value to the development of international law touching on the welfare of this group (Forsythe 2012).
It is a fact beyond doubt that the minority system had several inherent limitations that affected its effectiveness as an instrument of international law. The limitations notwithstanding, the system provided some level of protection to the identified minority groups in the countries. It is a fact that the system offered special protection to minorities, which created two possible scenarios.
The two scenarios were ‘equality’ (Sigler 2004) and non-discrimination against this category of citizens. The development provided grounds for the formulation of international laws for the protection of the rights of minorities. The system also led to the formation of the International Judicial Protection of the Minorities. The Permanent Court of Justice (PCIJ) gave decisions and opinions that are still applied during discussions on minority rights in international law (Sigler 2004).
Minority Protection under the UN
The United Nations was formed after the collapse of the League of Nations. It acted as the new world organisation following the World War II. However, in contrast to the League of Nations, it adopted a totally different perspective as far as the protection of minority groups in the world was concerned. Initially, the UN did not make any efforts to adopt the minority protection system of the League (Hatvany 2006).
Moreover, the organisation did not make attempts to develop a new system for the protection of minorities. European nations dealt with the issue of minorities through bilateral or multilateral treaties without the involvement of the UN. The UN was of the opinion that human rights and the principle of non-discrimination were appropriate means of protecting everyone, minority groups included (Rodley 2005).
The UN General Assembly made efforts to address this issue a few years after the formation of the agency. The efforts were characterised by the passing of the Declaration for the Granting of Independence to Colonial Countries (Julie 2010). The declaration was made in 1960. It was based on, among other things, the provision of equal rights and self-determination of people as declared in the Charter of the UN (Julie 2010).
The declaration required a speedy and unconditional termination of all forms and manifestations of colonialism. Under Article 2, the declaration provides for the right to self-determination for each and every nation in the world. Based on this right, sovereign countries have control over their political, economic, and socio-cultural progression (Hilpold 2007a).
To achieve its mandate, the UN heavily depended on the provisions of human rights and the freedom of the nations (Preece 2009). Many people were of the opinion that minority groups were protected through non-discrimination, equal rights, and equality before the law. Such an assumption prompted the adoption of several conventions and declarations in the field of non-discrimination by various international organisations and the UN (Julie 2010).
The Universal Declaration of Human Rights (UDHR) was crucial as far as human rights were concerned. It was one of the first aspects of international law that made provisions for the protection of human rights. The declaration complemented the already existing provisions for non-discrimination. Under Article 2, the declaration provides that everyone is entitled to all the human rights in the declaration without distinction of any kind (Hatvany 2006).
However, the declaration failed to address the issue of the protection of minority groups. Furthermore, it did not mention the group anywhere. Various states, such as Denmark, made a proposal for the inclusion of provisions for the protection of minorities in the UDHR. However, such proposals were opposed by majority of the member states, leading to their rejection. The rejection was as a result of little or no interest on the part of majority member states of the UN with regard to the concept of minorities (Rodley 1995).
The rejection of minority rights and protection by majority of UN member states was brought about by many factors. A classic example of such a factor was non-alignment with the policies of the nations touching on cohesion. The nations were concerned that adopting these rights would lead to divisions within their boundaries (Thornberry 2003). Another factor leading to the rejection of these rights involved concerns over the stability of the nation.
The states feared that the adoption of such rights will result in distinctions between citizens. Such distinctions will be created by a sense of unfair treatment on the part of those not classified as minorities in the society (Sigler 2004). The General Assembly felt that the UN could not afford to ignore the plight of minority groups (Rodley 2005). The development prompted the authorisation of two commissions expected to thoroughly address the issue of minorities (Hilpold 2007b).
In addition to the UDHR, the UN and its affiliates formulated a number of provisions to address human rights on the international arena. In all these legally binding instruments, the UN almost exclusively focused on individual rights and freedoms. However, the instruments did little to acknowledge the minority as a group (Hilpold 2007a).
The situation changed in 1948. In this year, the agency formulated the UN Convention on the Prevention and Punishment of the Crime of Genocide (Hatvany 2006). The convention addressed the rights of minorities separately from individual human rights. However, there is no clear prohibition of any measures taken to destroy these groups other than physical or biological genocide (Julie 2010).
Internationally, minority protection is mainly based on human rights and non-discrimination. Such a basis is evident even in instruments that are designed solely for minority protection. The observation raises the question of whether or not individual rights and non-discrimination offer enough protection to minorities. Moreover, there are concerns over the effectiveness of individual rights and non-discrimination approach in addressing the problems faced by minority groups.
Allen, S & Xanathaki, A 2011, Reflections on the UN Declaration on the Rights of Indigenous Peoples, Haart Publishing, London.
Forsythe, D 2012, Human rights in international relations, Cambridge University Press, London.
Hatvany, C 2006, ‘Legitimacy of kin-state politics: a theoretical approach’, Regio-Minorities, Politics, Society, vol. 1, pp. 47-64.
Hilpold, P 2007a, ‘Tendencies of minority protection in the law of the European Union’, Miskolc Journal of International Law, vol. 5 no. 1, pp. 34-49.
Hilpold, P 2007b, ‘UN standard setting in the field of minority rights’, Int. J of Minority and Group Rights, vol. 181 no. 14, pp. 342-369.
Julie R 2010, ‘Minority rights in a time of multiculturalism’, The Evolving Scope of the Framework Convention on the Protection of Minorities, vol. 99 no. 10, pp. 243-267.
Preece, J 2009, ‘National minority rights vs. state sovereignty in Europe: changing norms in international relations?’, Nations and Nationalism, vol. 3 no. 3, pp. 345-364.
Rodley, N 2005, ‘Conceptual problems in the protection of minorities: international legal developments’, Human Rights Quarterly, vol. 17 no. 1, pp. 48-71.
Sigler, A 2004, Minority rights: a comparative analysis, Greenwood Press, Connecticut.
Thornberry, P 2003, International law and the rights of minorities, Clarendon Press, Connecticut.