Erzsébet Szalayné Sándor
The Role of the League of Nations and the UN in the
Protection of Minorities under International Law
1. Initial Reflections
The changes of the past five decades since the Second World War have justified those who did not regard the minorities question a problem to be solved once and for all, but took into account the continuous development of the relations between a state and its minorities. Several branches of learning are interested in the subject, and it is hardly surprising, therefore, if the time-honoured volumes of minority research are now taken off the shelves, where they had been collecting dust for decades.
What necessitated this development? The first reason was the shattered trust in the omnipotence of human rights. We had to come to the conclusion that the natural, inalienable character of the human rights and fundamental liberties by themselves cannot provide adequate protection to the minorities. “Equality with the majority” was what the minorities wanted, yet at the same time they “required special treatment to a certain degree”. [i] We must accept that the special rights of the minorities are no privileges, no prerogatives secured at the expense of others, but guarantees permitting the possibility of preserving their roots. This statement allows two conclusions: the existence of multi-national states continues to be a reality at the end of the twentieth century, and if so, then the guarantee of minority rights, when based on mutual loyalties, can establish a balanced relationship between the state of the minority’s mother nation—in most cases there is such a state—and the state of the majority nation.
Our second conclusion is
connected with the point of non-intervention. It is a well-known historical
fact that Hitler’s
In conducting research
in international law, the situation preceding the Second World War offers
a good starting point, with special regard to the
2. The Preliminaries Leading to the Emergence of a Minority Protection System under International Law
The problem of national minorities became a political question only in the 19th century, with the spreading of nationalism. Religious minorities have been in existence since the oldest of times, and the attempt to eradicate heresies were often manifested in the persecution of religious minorities. The embittered fighting between Protestants and Catholics was sometimes concluded with international agreements, which were able to preserve the fragile peace in Christian Europe for a while. The Peace of Westphalia signed in 1648 tried to end the war devastating the German states. The protection of religious minorities was complemented with a number of treaties between the great powers during the 17th, 18th and 19th centuries. Analogous movements and demands in the national domain could not be observed during these early centuries.
The effects of modern nationalism
were first felt in the writings and speeches of prominent intellectuals in
the late 18th and early 19th century. The German philosopher
Herder assigned utmost importance to one’s mother tongue in the social and
cultural development of individuals. With the proud acceptance of their native
tongues and cultures, the peoples of Europe and the
Mazzini dreamt of a united
The minorities began to
play an increasingly important role in international relations. The minorities
issue stirred up by the national fervour disturbed the relationship between
the European great powers. Nineteenth-century nationalism became the hot-bed
of the quest for modern minority rights, while the dissatisfaction of the
minorities was—and has remained until this day—the most worrying force in
the shaping of international relations. The efforts by the great powers to
settle the minorities problem with the help of treaties and other international
agreements continued throughout the 19th century. These international
attempts ended in failure. The shot in
The scholarship of international
law came up with its own concept of nation-state in this period, too. Mancini
is named most frequently as the author of the concept, although his formula
failed to be a credit to the profession. Nevertheless, Mancini’s thesis, whereby
nationalities were to form the basis of international law, was perfectly befitting
to the age of Italian unity and national movements all over
“The nation as a characteristic
Participants of the Paris Peace Conference first of all had to decide whether to make the minorities issue subject of the national agreements, or to regard it the internal affair of the given states.
The great powers regarded the idea of the unitary nation-state more progressive than that of the multi-national states. At the Paris Peace Conference the task of securing autonomy for the minorities, or at least of having an internal minorities protection law accepted by the new or enlarged states, proved to be beyond the possibilities. The painful fact of the nationalities’ geographical division was dwarfed by the hysteria caused by the idea of unitary and indivisible nation-states. This was one of the reasons why the question of minorities was incorporated in the international agreements at the Peace Conference. There was another reason, namely that the great powers wanted to guarantee the rights of minority status to the nationalities who found themselves living in minority after the border corrections—so as to ward off any one-sided interpretation of the right of self-determination. The internal stability of the new and the enlarged states in East-Central Europe was not an end to itself: the peace and security of the new European system hinged upon it. The victorious powers’ willingness to protect the minorities was motivated by this third reason, also.
From the moment of their creation, the international guarantees of minorities protection posed two theoretical problems: the question of sovereignty and the question of whether to elevate the guarantees to the status of fundamental laws.
The twentieth century finally produced the power structure, in which the states wishing to join the European community of nations, under pressure by the great powers, were obliged to sign treaties incorporating minorities protection passages that limited their sovereignty. And since the precondition of their recognition as states was the limitation of their sovereignty, they were not equal partners in the agreements. The decision to force the states concerned to sign agreements on the protection of minorities at the 1919 Paris Peace Conference was, therefore, not without precedents. The Chairman of the Peace Conference, Clemenceau, wrote a letter to the leader of the Polish delegation, Paderewski, in which he clearly outlined the historical, political and economic reasons leading the great powers to enforce the minorities protection agreements. In the letter he explained that in European constitutional law it was an established practice to sign an international agreement with newly formed or enlarged states, in which, in return for recognition, the states concerned agree on certain principles of government.
By the end of 1919 the great powers managed to convince the last of the hesitant Central and Eastern European states to sign the minorities protection agreement. With that the topic discussed in the second stage at the Paris Peace Conference, that of minorities protection, had been concluded. The politicians taking part at the conference—giving way to outside pressure—decided to force the Central and Eastern European nation-states to sign minority protection agreements, which would be placed under permanent international guarantee and control after their ratification. These politicians regarded the agreements as instruments to guarantee the territorial changes of 1918/19, which would make peace in Europe possible. Their ideal final goal was the general political-national assimilation, with the guarantees paving the way to it. Already during the war the need to counter-balance the partially applied right of self-determination emerged. In the course of the peace negotiations the American delegation proved very receptive in this question, and with their proposals of May 1919 they publicly launched the process, the end result of which was the system of minority protection agreements. The fate of Romania’s Jewry before the First World War weighed crucially in the diplomatic measures and perseverance of the American peace envoys. They were also the ones who gave backing to the proposals put forward by the Jewry of Eastern Europe and the United States. These proposals focused attention on the individual and collective minority rights and on national autonomy. In the background of all this was the acceptance of the fact that the countries of Central and Eastern Europe were multi-national states. The idea and model of unitary nation-state still dominated the mood at the Peace Conference, thus preventing the more liberal and more realistic concepts from gaining ground; these were eventually removed from the agenda. One of the most frequently mentioned arguments against the autonomy concepts, typically used by advocates of the nation-state idea, warned of the dangers of having “a state within a state”.
The texts of the minority protection passages had already been completed by May 1919, when a new problem arose: the politicians of the great powers came up against the instinctive and determined opposition of the states concerned, which looked upon the minority protection obligations as the limitations of their sovereignty and the intervention in their internal affairs, and therefore refused to sign them. Every single Central and Eastern European state concerned made reservations about the draft proposals, voicing their concerns. The minor “rebellion” broken out on May 31, 1919 was calmed down by the diplomatic skills of the great powers, who managed to convince the states to sign the minority agreements.
Another question arising in the dispute concerned the real motives behind the states’ stubborn refusal: was the intention not to sign the Treaty, or was it proposed to sign and then not to carry it out? This question, which later acquired unfortunate significance, seemed to be one of the key points of the entire minority protection system.
3. Material and Formal Minority Rights
The sources of the international minority rights guaranteed by the League of Nations are mainly bi- and multilateral agreements, accompanied by regulations and declarations. Several authors—Ernõ Flachbart, [iv] Arthur Balogh [v] —are of the opinion that in addition to the primary sources, the resolutions passed by the League of Nations in order to monitor and uphold the observation of international agreements form the secondary sources of minority rights. The latter, therefore, contain procedural rules and guidelines concerning the functioning of the League of Nations and its Council. Broadly speaking, they could be regarded as secondary sources, but in view of the principle on the basis of which I shall use the distinction of ‘material and formal minority rights’, I consider the division of ‘primary and secondary sources’ unnecessary. With regard to the system of minority protection under the aegis of the League of Nations, the two methods of division are in fact inter-changeable.
After this clarification, here is the classification of the sources of minority rights established with the co-operation of the League of Nations:
1. General agreements in the interest of minority protection
a. the so-called minority treaties (between the allied and associated powers on the one hand, and individually Poland, Czechoslovakia, Serbo-Croat-Sloven State, Romania and Greece on the other)
b. the relevant chapters of the peace treaties (between the allied and associated powers on one side and Austria, Bulgaria, Hungary and Turkey individually on the other)
2. Special agreements in the interest of minority protection (for example, the agreement between Sweden and Finland in the matter of the Aland Islands, the agreement between Germany and Poland concerning Upper Silesia)
3. Minority declarations (Albania, Lithuania, Latvia, Estonia, Iraq)
All the minority protection agreements, the passages of the peace treaties dealing with minority protection and the declarations made by Albania, Lithuania and Iraq are more or less identical in content with the minority protection agreement signed with Poland. The common features can be arranged in the following five conceptual units:
1. The rights due to every citizen of the country: right to life and freedom, right to religious freedom.
2. The right to naturalisation: under the claim that the applicant had residence in the given country at the time of the agreement’s ratification, or that he/she was born in that country. The provisions regarding naturalisation were different in the various agreements, but these two points were included in all of them. There were only a few exceptions regarding the first point, such as the one in Chapter 91, Paragraph 2 of the Versailles Peace Treaty, according to which Germans settling in Polish territory after January 1, 1908 could only be naturalised by a special permission issued by the Polish government. Several agreements incorporated a third legal basis, namely that those persons who were born in the given country to parents still living there were also eligible to naturalisation, even though at the time of signing the agreement they themselves no longer lived there.
3. The rights due to citizens belonging to racial, religious or linguistic minorities. These were: equality before the law—in other words, equality of civil and political rights in filling public offices; free use of one’s native tongue in private and business life, in publication through the press or by any other means, in public meetings, in court; equal right to establish charitable, religious and social institutions, and in those districts where a considerable proportion of the population was formed by minorities, the right to education in the language of the given minority in state-run elementary schools, and the allocation of a proportionate sum from the public funds dedicated to educational, religious or charitable purposes.
4. The legal character of the previously listed obligations: according to the Chapter 1 of the agreements, the signatory states were to recognise these provisions as fundamental laws, not to be contradicted by any other laws. According to the last chapter of the agreements, the dispositions—insofar as they concerned minorities—were to be regarded as international obligations, and as such were guaranteed by the League of Nations. As regards to disputes, legal or factual, between a government and the Council or a member of the League of Nations, such matters qualified as international disputes according to Chapter 14 of the Covenant, which could have been passed to the Permanent International Court, the ruling of which was unappealable.
5. Of the special regulations taking the local conditions into account, we mention only a few: the Polish agreement contained special directives with regard to Jews. In the agreement signed with Yugoslavia and Greece, separate provisions were made to protect the Muslims. The Czech agreement contained the charter of Ruthenian autonomy. In educational and religious matters Romania gave autonomy to the Szeklers and Saxons of Transylvania, etc.
The material rights of racial, linguistic, religious and minority aspects in the system of minority protection were guaranteed by the League of Nations, specifying neither the scope nor the procedure to be followed by one of the League of Nations organisations to process an application by a minority seeking legal protection. Only the framework was provided: the last chapters of the agreements—in identical wording—empowered the Council of the League of Nations to conduct the procedure. In this way, therefore, the course from the material minority rights to the formal minority rights applied in case of violations led through a whole list of reports and resolutions by the League of Nations.
Regardless of its faults, the system worked as a whole as long as it was in existence. The driving force of the petition procedure was the need to co-operate: the goal was arbitration, persuasion and the seeking of compromises. The procedure started with the registration of a complaint: without this possibility the League of Nations could not have been able to guarantee the obligations for the protection of minorities. The procedure made use of public opinion, approval and disapproval alike, as the so-called triple or minority committees only had one sanction at their disposal: they could give publicity to a complaint in the world press.
Instead of replacing the traditional procedure prescribed by the material minority rights, referring the matter to the Council, the procedure before the preliminary, triple committees complemented it. And on the rare occasions when a case was referred to the Council, it invariable turned out that the Council could not use any method other than that applied in the course of the preliminary procedure. And the method in question was not characterised by rigid rules. A certain degree of flexibility was necessary to allow for the possibility of sensible compromises, which could lead to a practical solution of the problems without inevitably creating winners and losers. In turn, the success of a procedure, which hinged on compromises to such an extent, depended on the sincerity and the uprightness of the participants.
Naturally, there was a list of other conflicting interests straining the relationship between the states concerned, the import of which often surpassed that of the minority problems. And as to the effectiveness of the instrument of publicity, we must point out that it was employed not nearly as frequently as it should have been.
No rationalisation can be found, however, for the fact that the governments’ explanations and the letters containing the findings of the triple committees were not published regularly and in full, independent of everything, most notably of the consent of the state concerned. The parties filing the complaint should also have been notified of the improprieties on the ground of which their application had been turned down.
The sluggishness of the system can be attributed to the lack of experience as well as to the political nature of the whole business. The investigations about a complaint often took years to complete: the governments concerned could frequently extend the deadline by referring to the need for thorough examination. Things were not helped much, either, by the fact that the Council was very rarely in session.
One thing should not be overlooked, however: in 1920, when the Council assumed responsibility over the system, not a single realistic politician had any idea of the manner of execution. The narrower department of the Secretariat provided the core which prepared the resolutions constituting the formal minority rights, and promoted their wide-scale application.
The League of Nations’ minority protection system has often been criticised—during its existence, but even after the Second World War—as a complete failure, clamouring about its shortcomings and faults far exceeding its results. I am of the opinion, however, that—without denying its deficiencies—the system of protection afforded by the League of Nations saved the minorities from many unpleasantness, and for a while it even preserved the peace of Europe.
The outbreak of the Second World War ultimately made the system illusory, and its successor, the United Nation, did not breathe new life into it, leaving the system of minority protection the only area within the League of Nations, which would not have an equivalent within the framework of the United Nations.
4. The After-Life of the System
In 1919 not a single clause was inserted in the Covenant of the League of Nations, which covered the issue of minority protection or human rights. Nor was received the proposal submitted by the Japanese delegation on April 28, 1919 with an ovation. According to this, the Preamble of the Covenant should have been the place where the principle of equal and just treatment in every respect, without distinction on account of race or nationality was formulated. As to those states that were made subject to the minority obligations, they continuously lobbied—on various grounds but with equal futility—for the universal introduction of the system of minority protection. Similarly futile was the Lithuanian initiative of 1925, which proposed the drafting of a general minority protection agreement within the framework of the League of Nations. At the same time, the Chinese suggestion to insert a clause in the text of a future universal minority protection treaty to meet the specific needs of a majority living under minority rule was met with no approval.
From the above it must be clear that the binding force of these minority obligations was only extended to some states, and even here the emphasis was not on guaranteeing various human rights and liberties without distinction on account of race, language or religion. Rather, these agreements served to secure the maintenance of peace between the sovereign states of the region, viewing the minority problem as a highly volatile source of conflict and, as such, an area to be regulated.
Tempora mutantur: after the events of the Second World War, in order to avoid a repeat performance of the horrors of the 1930s and early 1940s, the human rights and the fundamental freedoms were given due emphasis at last. In the proclamation of the United Nations, on January 1, 1942, the Allied countries declared the protection of human rights to be a war aim:
“...that complete victory over their enemies is essential to defend life, liberty, independence and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands.”
With that the emphasis was shifted from the protection of minorities to the protection of human rights: the earlier, direct methods of minority protection gave way to an indirect mode of minority protection. No longer were members of certain minorities singled out for protection under international law; instead, the human person in itself was protected. ‘Peaceful coexistence’ was no longer satisfactory, and the demand for international law capable of operating a genuine peace system was put forward, which was inconceivable without the universal protection of human rights.
Other factors also contributed to making the switch to indirect minority protection. The League of Nations was known to be European-centric, mostly preoccupied with its dealings with the states affected by the minority undertakings. By contrast, the work of the UN was, from the very start, directed more to the other continents, as seen from the fact that the principle of self-determination in Paragraph 2 of Chapter 1 of the founding document was limited to the colonies, earlier mandates and protectorates.
The transition from one system to the other was reflected in the structure of the international agreements signed. The closed format of the several-pages-long peace treaties and minority agreements of 1919-1920 were replaced by the lengthy, multilateral, open-type agreements in the UN practice. This is best illustrated by the founding document of the UN itself, which, in Paragraph 3 of Chapter 1, makes the protection of human rights a universal law. Then there are the peace treaties of 1947, which contain no regulations about the protection of minorities, only a rather generally phrased clause on human rights.
Therefore, the UN, the legal successor of the League of Nations, did not take it on itself to protect the minorities in international agreements and to set up a direct system of minority protection. It could not avoid addressing problems concerning the protection of minorities, however. In the following I would like to present a few snapshots from the first 25 or 30 years of UN history, which evidently reveal traces of the minority system between the two wars. The period beginning with the 1970s no longer show such a direct influence. [vi]
According to the preliminary plans, the Universal Declaration of Human Rights, passed on December 10, 1948, would have contained an article about minority protection, but on the insistence of Eleanor Roosevelt, who was one of the members of the committee drafting the proposal, it was eventually left out. In her view, the minority problem had “no general importance” and “only applied to Europe”. [vii] Although with her remark Roosevelt helped to hush up the problem, in some sense I tend to agree with her: in all fairness, the minority issue, and especially in the case of nationalities, is a European problem. However, the minority question in general cannot be limited to any one of the continents. So, parallel to this, the General Assembly passed a resolution, in which it declared that the UN could not remain indifferent to the fate of the minorities, and ordered the Council of Economy and Society to prepare a thorough study. The report, which was made by an Italian professor of law, Francesco Caporoti, was published in 1979. [viii] It was not his fault, nor the fault of the Human Rights Committee of ECOSOC, that 31 years had to pass between the date of commission and the publication. The explanation lied in the indifference of the member states: even in 1972, when the UN Secretariat sent a query to its 132 members in the matter of minorities protection, only 19 governments bothered to reply.
In the 1920s and the 1930s, but even after 1945, countless volumes were written by countless authors about the content, the faults and the advantages of minority protection between the two wars. However, much less was written about its effects after the foundation of the UN and the system of peace treaties of Versailles. Similarly little attention was given to a study prepared by the UN Secretariat, published in April 1950, on the effectiveness of the minority protection undertakings. [ix] And although according to some views—admittedly born in the early 1980s—the minority protection obligations guaranteed by international law between the two world wars have no relevance whatsoever today (a view not fully acceptable), the ethnic cleansing of the last years of the millennium can once again arouse interest in the old system’s impact. According to a UN study, the final result is as follows: the declarations made by Albania, Lithuania, Latvia, Estonia and Iraq should be regarded as suspended until the UN takes over the relevant functions of the League of Nations. The obligations of the states bound by the peace treaties after the Second World War will be rendered null and void, if the new peace treaties did not contain minority protection clauses or declarations accepting the earlier obligations. This applies to Bulgaria, Hungary and Romania. The reason why the obligations of Latvia, Estonia and Lithuania can be regarded as terminated is that, in Soviet interpretation, the annexation of these states did not imply the full legal succession of the obligations, and the substantial changes in the circumstance were sufficient to apply the clause of rebus sic stantibus. The same method of proof is applied in the UN study in the evaluation of the relationship between Danzig and Poland. In the case of Hungary, Poland and Czechoslovakia, in other words in countries where population resettlements took place under the Potsdam Agreement, the minority protection obligations terminated when the persons to be protected ceased to be citizens of that state. The UN study says nothing about the legality of the Potsdam Agreement. It confirms the continuation of Turkey’s obligations and the agreement between Finland and Sweden on the Aland Islands. In the case of most of the agreements studied, the UN document accepted the applicability of the principle of clausula rebus sic stantibus. In the concluding chapter of the study the Human Rights Committee of UN declared its faith in the omnipotence of human rights, thus committing a mistake the rectification of which is still going on now, in the last decade of the 20th century.
In the period after the First World War the minority question was organically linked to the fundamental strategic shortsightedness characterising the establishment of Eastern and South East European states. New multi-national states were created, in which alien blocs—millions of people in some cases—living in closed geographical units were transferred, artificially separated from their mother nation with new borders. The unilateral territorial advantages based on various political motives were given only to some nations: the Poles, the Czechs, the Romanians, and the Serbians. It should have been the task of minority protection to balance, or at least to alleviate, this one-sidedness. The new states’ governments had to accept the minority protection obligations under the guarantee of the allied powers in return for their recognition and membership in the United Nations. Such a diplomatic precondition was nothing new by the early 20th century: it had already been applied in 1878, at the Congress of Berlin, when the first large-scale reconstruction of the Balkans took place. It is hardly surprising, therefore, that in its declaration on December 19, 1991, the UN Council made the recognition of minority rights the precondition of international recognition for the Eastern-European and former Soviet states gaining independence in the early 1990s. The minority protection obligations between the two wars touched the new states legally and psychologically precisely where it hurt them most: it affected their newly acquired national sovereignty, the realisation of old political dreams. The enforced minority agreements humiliated them in their capacity as nations and states, and they tried everything to evade them. The sovereignty of the new states came under fire from two directions: one potential source of crisis was the political identity and loyalty of the minorities separated from their mother country, and the other was the hostile attitude of those states, which lost territory in the changes.
The new and the territorially increased states felt the minority protection obligations to be discriminative, since their contracted partners—the great powers—staunchly resisted all efforts to raise the minority protection obligations to the status of universal laws. Thus, according to the practice of international minority rights, two kinds of states existed: the great powers not saddled with minority obligations, which often behaved in a manner that was in sharp contrast with the spirit of minority rights; and the East Central European and the South East European states bound by material minority rights.
inevitably led to the situation where the great powers, voluntarily or involuntarily,
misinterpreted the fundamental concepts and the institutions, thus immensely
harming the credibility of formal minority rights established under the aegis
of the UN. The most blatant misunderstandings and misinterpretations were
precisely in connection with the aim of the entire minority protection
system at the General Assembly of the UN—causing incalculable uncertainty
in the application of minority rights. According to this (Mello-Franco) the
goal of minority protection cannot be the creation of groups of people who
feel to be aliens in the general body of the nation; quite the contrary: the
goal is to guarantee the security of the minorities from all sides, in the
interest of creating the conditions of full national unity. Other prominent
politicians (for example, Sir
From that angle,
the minority protection of the United Nation was established in the interest
of the political stability of the nationally heterogeneous states placed under
the obligations, and indirectly in the interest of preserving the peace
In view of the nature of 19th and 20th-century nationalism, the question seems to be whether it is only within its own state that a nation can be identical with itself. Can international law handle such a psychological phenomenon? According to the evidence of the United Nation’s minority protection system—the answer is, hardly; but in knowledge of the current international guarantees of minority protection—perhaps, yes.
[i] UN-Doc. E/Cn. 4/52. sec. V, 1947.
[ii] UN Seminar on the promotion and protection of human rights of national, ethnic and other minorities. Ohrid 1974, Draft report on the seminar. ST/TAO/HR/49. p. 17.
[iii] István Bibó: A kelet-európai kisállamok nyomorúsága. In: Válogatott tanulmányok 1945-1949. Vol. II, Budapest 1986, pp. 187-188.
[iv] Ernõ Flachbarth: System des internationalen Minderheitenrechtes. Budapest 1937, pp. 66-67.
[v] Arthur Balogh: Der Internationale Schutz der Minderheiten. Munchen 1928, pp. 44-45.
[vi] For more details see: Péter Kovács: Nemzetközi jog és kisebbségvédelem. Budapest, 1996.
[vii] UN-Doc SR/A/C.3/161, p. 726. In agreement with this, see Otto Kimminich: Neuere Entwicklung des Minderheiten- und Nationalitätenkonflikts, In: Aus Politik und Zeitgeschtichte, 1985/43, p.16.
[viii] UN-Doc. E/CN. 4/Sub. 2/384-F. Capotorti: Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities. New York 1979.
[ix] UN-Doc. E/CN. 4/367-April 7, 1950-Study on the Legal Validity of the Undertakings Concerning Minorities.