004

N A T IO N A L M IN O R IT Y R IG HTS IN E UR O PE
National Minority
Rights in Europe
TOVE H. M A LLOY
AC
1
Great Clarendon Street, Oxford OX2 6DP
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British Library Cataloguing in Publication Data
Data available
Library of Congress Cataloging-in-Publication Data
Malloy, Tove H.
National minority rights in Europe / Tove H. Malloy.
p. cm.
Includes bibliographical references and index.
ISBN 0–19–927443–6 (hbk.: alk. paper) 1. Minorities—Legal status, laws, etc.—
Europe. 2. Minorities—Government policy—Europe. I. Title.
KJC5144.M56M35 2005
342.2408 0 73—dc22
2005003878
Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India
Printed in Great Britain
on acid-free paper by
Biddles Ltd., King’s Lynn
ISBN 0–19–927443–6
1 3 5 7 9 10 8 6 4 2
To Bill
Contents
Acknowledgements xi
Abbreviations xiii
Table of Treaties xv
Table of Documents xvi
Table of Travaux Préparatoires to the FCNM xviii
Table of Cases xx
Introduction 1
I. PROBLEMATIZATION: INDIVIDUALISM
AND COLLECTIVISM
1. Overview: National Minority, or Co-nation? 15
1.1 Who are Europe’s national minorities? 18
1.2 National minorities and the structure of
international law 24
1.2.1 National minority rights prior to 1989 28
1.2.2 National minorities and state nationalism 32
1.3 National minorities and public policy 35
1.4 Ethical terminology 38
1.5 Models of accommodation 40
1.6 Citizenship 44
1.7 Justice 48
2. Co-nation Rights after 1989: Cultural, or Political Rights? 51

2.1 The emergence of a co-nation rights regime in
Europe after 1989? 53
2.1.1 International treaties and conventions 54
2.1.2 International custom 60
2.1.3 General principles of law 70
2.1.4 Judicial decisions 75
2.2 The writings of publicists 77
2.3 Conclusions 81
viii Contents
3. Co-nation Rights and the Concept of ‘Collective Rights’:

Human Rights, or Institutional Rights? 83
3.1 ‘Collective rights’ in public international human rights law 84
3.2 Liberal theory and the problem of ‘collective rights’ 90
3.3 The problem of collective interests and collective goods 94
3.4 The problem of duties 97
3.5 Co-nation rights as institutional rights 102
3.6 Innovative conceptualization of co-nation rights in Europe 105
3.7 The philosophy of co-nation freedoms 107
3.8 Conclusions 110
I I . I N T H E O R Y : UN I V E R S A L I S M
A N D PA R T I C U L A R I S M
4. Liberalism and Nationalism: The Problem of Co-nation
Inclusion in National Self-Determination 115
4.1 What is state nationalism? 118
4.2 Terminology 126
4.3 Liberal pluralism 128
4.4 National identity 132
4.5 Theorizing national self-determination 137
5. Liberalism and the Constitutive Community:

Recognition and Individual Practical Reasoning
in Self-Determination 143
5.1 The constitutive community and moral values 145
5.2 Personal identity and the problem of loyalty 150
5.3 The ‘politics of recognition’ 153
5.4 The ‘struggles for recognition’ 156
5.5 The kantian self in autonomy 160
5.6 Justice as undecidability 166
5.7 Critical citizenship 169
6. Liberal Democracy and the Discursive Approach:

Ethics, Virtues, and Cosmopolitan Consideration 171
6.1 Models of accommodation 173
6.1.1 Federalism 175
6.1.2 Consociationalism 178
6.2 The discursive approach 184
6.3 The problem of proceduralism in ‘justice as democracy’ 191
Contents ix
6.4 The problem of strategic bargaining 197
6.5 ‘The return of the political’ 199
6.6 The problem of virtues in ethics 204
6.7 Discursive justice 209
III. IN PRACTICE: PROTECTIO N,

OR SEL F-PRO TECTION?
7. The Politics of Democratization: The Circular
Problem of State Sovereignty 215
7.1 The Inter-textual situation of the FCNM 217
7.2 Assumptions behind the FCNM 222
7.2.1 A definition 223
7.2.2 Corporate rights 226
7.2.3 A loyalty clause 229
7.2.4 Political representation 231
7.3 The assumption of state sovereignty 233
7.4 The PA approach: insistent rhetoric 235
7.5 The AC approach: rebellion from within? 239
7.6 The CLRAE approach: quiet rebellion 240
7.7 Conclusions: democratizing without the people 247
8. The politics of integration: The possibilities of

de facto co-nation sovereignty 250
8.1 Economic market integration: liberal rights
and freedoms 252
8.2 Transition to political integration: the emergence
of diversity? 259
8.2.1 Copenhagen and conditionality: Europeanization
and dichotomy 266
8.2.2 Amsterdam: toward complex constitutionalism 268
8.2.3 Nice and the Charter: the emergence
of co-nation protection 272
8.3 Political integration: overcoming dichotomy? 277
8.3.1 The subsidiarity approach: building the ‘cobweb’ 278
8.4 Multi-layered constitutionalism: de facto
co-nation sovereignty 281
8.5 Conclusions: integration with co-nation empowerment? 286
x Contents
9. Towards a Critical Theory of Co-nation Rights: Forging

Ethical Standing through Social Power 289
9.1 Positioning the discourse of co-nation rights 291
9.2 Deconstructing the notion of state sovereignty 294
9.3 Deconstructing the notion of self-determination 298
9.4 Co-nations in the design of the new Europe 304
9.4.1 Human rights as a self-discovery 307
9.4.2 The social exchange of rights and duties 308
9.4.3 The dilemma of co-nationalism within society 309
9.4.4 The co-nation and the dilemma of the self
and the other 310
9.4.5 The co-nation and the dilemma of the one and
the many 311
9.4.6 The international legal order and the notion
of state sovereignty 312
9.5 Concluding remarks: protection, or self-protection? 312
Bibliography 315
Index 345
Acknowledgements
There are many reasons for writing a book on national minority rights. My reasons
are linked to two personal experiences. First, during my years with the Danish
Foreign Service, I observed the fervour with which seasoned and senior diplomats
dealt with the so-called ‘border region question’. Denmark’s adventure into border
region constitutionalism and her subsequent military and political defeat in 1864
continue to have a remarkably strong impact not only on her foreign policy but
also on the national identity of her subjects. Secondly, when I was assigned to the
Danish Embassy in Budapest, Hungary, I had ample opportunity to observe the
impact of Hungary’s history on the Hungarian national identity. Thus, it was
when I realized the importance to the Hungarian national identity of the large
paintings of extra-territorial ‘possessions’ in the halls of the Hungarian Parliament,
that my ideas of researching a Ph.D. and eventually this book began in earnest.
Of course, I had no idea what was entailed in writing a major work on national
minority rights, nor did I realize as is often said that it is no simple matter to turn a
Ph.D. into a book. It is thus with great humility that I wish first and foremost to
thank Professor Michael Freeman of the Department of Government at Essex, for
the dedication and conscientiousness with which he attended to my many deficits
in the academic disciplines. His attention to detail as well as his untiring readiness
to explain complex matters were the supporting pillars when the structure of my
work was prone to collapse. Most of the material and the arguments in this book
are familiar to him, including the ones where our views did not meet. Some
material and arguments will be new to him, and I hope that he will appreciate
these with the usual healthy criticism and scepticism. One aspect I know that we
have in common is the need to see national minority rights in a multi-disciplinary
perspective. I thank Michael Freeman for three memorable years.
I also wish to thank Professors Geoff Gilbert and Frances Millard as well as
Dr David Howarth for their enthusiastic comments. I am particularly grateful
for the comments I received from Professor Peter Jones of Newcastle as he made
me see a number of issues much more clearly. Any deficiencies or inaccuracies are
of course mine.
The exhilarating experience of researching and writing a book could not have
been accomplished without the continuous support and permission to be absent
which I have been granted by the Danish Foreign Service. I would like to express
my gratitude to Ambassadors Claus Grube, Poul Erik Dam Kristensen, Reimer
Nielsen, and the late William Thune Andersen. My greatest debt of gratitude is
to Ambassador K. Erik Tygesen, whose personal efforts have supported my
pursuits for excellence on more than one occasion.
xii Acknowledgements
This book has taken longer than I expected to reach the publisher. This is
partly due to the months I took off to join Dr George Ulrich and his team at the
European Masters Programme in Human Rights and Democratization. I thank
him as well as Professors Manfred Nowak and Horst Fischer for inviting me to
Venice. The experience of spending those intensive months with 90 dedicated
knowledge-thirsty students was a gift that I will treasure for life.
Another delay was caused by a transatlantic move to join the European Centre
for Minority Issues (ECMI). I would like to thank Director Marc Weller for
inviting me to work with him in Flensburg even though he knew that there
would be times when I might be distracted as the deadline for my book drew
closer. The work at ECMI has greatly enhanced my understanding of national
minority issues. I also thank ECMI Chairman Ambassador Peter Dyvig as well as
my colleagues for support and encouragement, with special thanks to librarian
Wes McKinley for helping me on numerous occasions. It is indeed an irony that
I have completed this book in Flensburg, a town where national minority rights
are seen in action in daily life.
Thanks also to Gwen Booth who first read my proposal at Oxford University
Press. Her assistance in bringing this book to print has been invaluable. I also
wish to thank Louise Kavanagh and Virginia Williams as well as the anonymous
reviewers for valuable comments and support.
As often there is unfortunately one who did not live to see the final product
but who bears great responsibility for setting the author on a course to seek
understanding. In my case this is my late father who was a self-proclaimed
observer of the national minority question of the Danish-German border region
and who taught me how ingrained the ‘lesson of 1864’ is in the self-
consciousness of the Danish ‘nation’. This book is also for him.
Above all, my greatest debt is to Bill, my husband, without whom there
simply would not have been a Ph.D. thesis, let alone a book. Bill has supported
me from the very first moments of my academic pursuits, he has shared all good
as well as bad times, during the preparation of this manuscript. Words cannot
express my desire to thank him, but I hope to be able to pay back my debts in full
in the future.
T.H.M.
Flensburg, October 2004
Abbreviations
AC Advisory Committee to the Framework Convention

AER Assembly of European Regions
CAHMIN Ad Hoc Committee for the Protection of National Minorities

CDCC Council for Cultural Co-operation
CDDH Steering Committee on Human Rights
CDLR Steering Committee on Local Government
CDMM Steering Committee on the Mass Media
CEI Central European Initiative
CEMR Council of European Municipalities and Regions
CERD Committee on the Elimination of Racial Discrimination
CFSP Common Foreign and Security Policy
CLRAE Congress of Local and Regional Authorities of Europe
CM Committee of Ministers (Council of Europe)
CoR Committee of the Regions (European Union)
CPMR Conference of Peripheral and Maritime Regions
CSCE Conference on Security and Co-operation in Europe
CSFP Common Security and Foreign Policy (European Union)
DAHR Democratic Alliance of Hungarians in Romania

DH-MIN Committee of Experts for the Protection of National Minorities
EAGGF European Agriculture Guidance and Guarantee Fund

EC European Community
ECHR European Convention on Human Rights and Fundamental
Freedoms (1950)
ECJ European Court of Justice
ECLSG European Charter of Local Self-Government (1985)
ECMI European Centre for Minority Issues
ECRML European Charter on Regional and Minority Languages (1992)
ECtHR European Court of Human Rights
EEC European Economic Community
EP European Parliament
ERDF European Regional Development Fund
ESF European Social Fund
EU European Union
EWS Early Warning System (EU)
FIFG Financial Instrument for Fisheries Guidance

FCNM Framework Convention for the Protection of National Minorities (1995)
FIDH International Federation of Human Rights
xiv Abbreviations
GA General Assembly (United Nations)
GDP Gross Domestic Product
GOHMA Government Office of Hungarian Minorities Abroad
HCNM High Commissioner on National Minorities

HTMH Határon Túli Magyarok Hivatala
HRC Human Rights Committee
IBRD International Bank for Reconstruction and Development

ICCPR International Covenant on Civil and Political Rights (1966)
ICERD International Convention on the Elimination of all Forms of Racial
Discrimination (1966)
ICESCR International Covenant on Economic, Social and Cultural Rights (1966)
ICJ International Court of Justice
ILO International Labour Organization
LDA Local Democracy Agencies
NATO North Atlantic Treaty Organization

NGO Non-governmental Organizations
MKP Hungarian Coalition Party (Slovakia)
OSCE Organization for Security and Co-operation in Europe
PA Parliamentary Assembly (Council of Europe)

PCIJ Permanent Court of International Justice
PLO Palestinian Liberation Organization
RegLeg Conference of the Presidents of Regions with Legislative Powers

RFE/RL Radio Free Europe/Radio Liberty
SEA Single European Act (EU)

SPD Social Democratic Party (of Germany)
TBKP United Communist Party of Turkey

TEC Treaty establishing the European Community
TEU Treaty on European Union
ToRs Terms of Reference
UDHR Universal Declaration of Human Rights (1948)

UN United Nations
UNESCO United Nations Educational, Scientific and Cultural Organization
USSR Union of Soviet Socialist Republics
Table of Treaties
Treaty of Peace between the Allied and Associated Powers and Austria, Poland, the
Serb-Croat-Slovene State, and Czecho-Slovakia of 19 September 1919,
Treaty Series, No. 11 (1919) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30
Montevideo Convention on the Rights and Duties of
States (1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 20, 21, 25, 27, 33
United Nations Charter (1945). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 63
Convention on the Prevention and Punishment of the Crime of Genocide (1948) . . . . . . 84
European Convention for the Protection of Human Rights and
Fundamental Freedoms (1950) . . . . . . . . . . . . . 31, 42, 53, 54, 55, 73, 76, 77, 85, 90,
194, 218, 219, 221, 226, 236, 251, 253, 260, 270, 273
UNESCO Convention against Discrimination in Education (1960) . . . . . . . . . . . . . . 85
International Covenant on Civil and Political Rights (1966) . . . . . . . . . 32, 79, 85, 167, 274
International Covenant on Economic, Social and Cultural Rights (1966) . . . . . . . . . . . 84
International Convention on the Elimination of all Forms of Racial
Discrimination (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 85
Vienna Convention on the Law of Treaties (1969) . . . . . . . . . . . . . . . . . . . . 61, 62, 67
Helsinki Final Act (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
European Charter of Local Self-government (1985) . . . . . . . . . . . . . . . . . . . . . . . . 217
Single European Act (1986). . . . . . . . . . . . . . . . . . . . . . 253, 254, 255, 259, 260, 284
Charter of Paris for a New Europe (1990)
European Charter for Regional and Minority Languages (1992). . . . . . . . . . . . . . 54, 218
Maastricht Treaty (1992) . . . . . . . . . . . . 57, 251, 255, 257, 259–266, 268, 269, 276, 287
Treaty on European Union (1992). . . . . . . . . . . . . . . . . . . . . . . . 268, 270, 275, 287
Framework Convention for the Protection of National Minorities
of January (1995) . . . . . . . . . . 54–56, 59, 67, 68, 69, 70, 76, 82, 85, 93, 139, 140, 153,
215, 216, 217, 219, 221-–228, 230, 231, 232, 235–240,
247, 248, 249, 270, 275, 292, 293, 296, 305, 306, 313
European Stability Pact (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 59, 74, 267, 292
European Convention on Nationality (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Amsterdam Treaty (1997) . . . . . . . . . . . . . . . . . . . . . . . 252, 266, 268–272, 273, 279
Treaty Establishing the European Community (1997) . . . . . . . . . . . . . . . . . . . 268, 272
Stability Pact for South Eastern Europe (1999) . . . . . . . . . . . . . . . . . . . . . . . 58, 267
Treaty of Nice (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252, 272–277, 278
European Charter of Fundamental Rights and
Freedoms (2000). . . . . . . . . . . . . 57, 250, 272, 273, 274, 275, 276, 277, 281, 287, 293
Treaty Establishing a Constitution for
Europe (2004) . . . . . . . . . . . . . 268, 272, 277–280, 282, 283, 287, 293, 306, 310, 314
Table of Documents
EC/EU
Regulation 1612 on the rights of migrant workers and their families (1968) . . . . . . 253 n. 4
Directive 486 on children of migrants (1977) . . . . . . . . . . . . . . . . . . . . . . . . 253 n. 4
Council Regulation 2052 as regards the European Regional
Development FUND (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 n. 17
Council Regulation 1035 establishing a European Monitoring Centre on Racism and
Xenophobia (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 n. 25; 57 n. 22
Declaration on Yugoslavia (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 n. 41; 261
Declaration on the guidelines on the Recognition of New States in Eastern
Europe and the Soviet Union (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 n. 4
Council Directive 43 ‘Implementing the Principle of Equal Treatment between
Persons Irrespective of Racial or Ethnic Origin’ (2000) . . . . . . . . . . 270 n. 76; 57 n. 22
Council Directive 750 ‘Action Programme to Combat Discrimination’,
2001–2006 (2000)
Laeken Declaration (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 n. 76, 278 n. 110
EP
Resolution on ‘the granting of special rights to be citizens of the European
Community in implementation of the decision of the Paris Summit of
December 1974’ (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 n. 8
Resolution on a Community Charter of Regional Languages and Cultures and
on a Charter of Rights of Ethnic Minorities (1981) . . . . . . . . . . . . . . . 257 n. 26; 257
Resolution on Measures in Favour of Minority Languages and
Cultures (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 n. 27
Resolution on the languages and cultures of regional and ethnic minorities
in the European Community (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 n. 27
Resolution adopting the Declaration of fundamental rights and
freedoms (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 n. 28; 85 n. 3
Resolution on the Community Charter of Fundamental Social
Rights (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 n. 30; 258; 273 n. 89; 273
Resolution on languages in the Community and the situation of
Catalan (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 n. 27
Resolution on Union citizenship (1991) . . . . . . . . . . . . . . . . . . . . . . . 258 n. 32; 258
Resolution on linguistic and cultural minorities in the European
Community (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 n. 27, 269 n. 73
Resolution on the Constitution of the European Union (1994) . . . . . . . . . . 269 n. 71; 269
Resolution on the establishment of the Charter of Fundamental
Rights (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 n. 89
Resolution on the drafting of a European Union Charter
of Fundamental Rights (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 n. 89
Resolution on measures to promote language learning and
linguistic diversity (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276 n. 101
Table of Documents xvii
CoR
Opinion of the Committee of the Regions on the revision of the Treaty on European Union and of
the Treaty establishing the European Community (1995) . . . . . . . . . . . . 271 n. 85; 271
Opinion of the Committee of the Regions on Culture and cultural differences and their significance
for the future of Europe (1998) . . . . . . . . . . . . . . 264 n. 54, 265 n. 55, 276 n. 99, 100
PA
Recommendation 1134 on the Rights of Persons Belonging to
National Minorities (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218; 236 n. 69
Recommendation 1177 on the Rights of Minorities (1992) . . . . . . . . . . . . 218; 236 n. 69
Recommendation 1201 on the Additional Protocol on the Rights of
National Minorities to the ECHR (1993) . . . . . . 219; 221; 228; 236; 238; 248; 236 n. 69
Recommendation 1231 on the follow-up to the Council of Europe
Vienna Summit (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235; 236 n. 67
Recommendation 1255 on the Protection of the Rights of National
Minorities of (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236; 236 n. 69
Recommendation 1285 on the rights of national minorities (1996) . . 236, 236 n. 68; 236 n. 69
Recommendation 1300 on the protection of the rights of minorities (1996). 236, 236 n. 70, 69
Recommendation 1345 on the protection of national
minorities (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236, 237 n. 71; 236 n. 69
Recommendation 1492 on ‘Rights of national minorities’ (2000) . . . . . . . . . 237, 237 n. 72
Recommendation 1609 on ‘Positive experiences of autonomous regions as a
source of inspiration for conflict resolution in
Europe’ (2003). . . . . . . . . . . . . . . . . . . . . 240; 238; 237, 237 n. 73; 238 n. 74; 248
Recommendation 1623 on ‘The rights of national minorities’ (2003) . . . . . . 238; 238 n. 76
Doc. 9862 ‘Rights of national minorities’ of 9 July
2003. . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 n. 78, 79; 245 n. 90; 246 n. 92, 93
CLRAE
Resolution 52, CG (4) 5 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 243; 246; 243 n. 85
Recommendation 43, CG (5) 11 of (1998). . . . . . . . . . . . 241; 242; 245; 248; 241 n. 82;
83; 242 n. 84; 245; 246; 248
Recommendation 70, CG (6) 16 (1999) . . . . . . . . . . . . . 243; 244; 245; 247; 243 n. 87;
244 n. 88, 267 n. 64
CSCE
Vienna Concluding Document (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 n. 42
Copenhagen Concluding Document (1990) . . . . . . . . . . . . . 63; 215; 229; 235; 291; 292
Helsinki Summit Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 n. 49
Concluding Document of the Inaugural Conference for a Pact
of Stability in Europe (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 n. 64
UN
Universal Declaration of Human Rights (1948) . . . . . . . . . . . . . . 31, 32, 36, 37, 53, 105
Declaration on the Granting of Independence to Colonial Countries
and Peoples, Res. 1514 (XV) (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 n. 52
xviii Table of Documents
Declaration of Principles on Friendly Relations between States,
Res. 2526 (XXV) (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 n. 53
Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities (1992) . . . . . . . . . . . . . . . . . . 65 n. 52; 66 n. 56
Draft Declaration on the Rights of Indigenous Peoples (1994) . . . . . . . . . . . . . . 31 n. 55
Capotorti, Francesco, Study on the Rights of Persons Belonging to
Ethnic, Religious and Linguistic Minorities (1977) . . . . . . . . . . . . . . 223 n. 21; 18 n. 10
Dechênes, Jules, Proposal concerning a Definition of the
Term ‘Minority’ (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 n. 21; 18 n. 10
Eide, A. ‘Final Text of the Commentary to the Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities’, UN Doc. E/Cn.4/Sub.2/AC.5/2001/2, 1–21 . . . . . . . . . . . . . . . . 65 n. 55
HRC General comment No. 23(50) on ICCPR Article 27 (1994) . . . . . . . . . . . . . 17 n. 8
HRC General Comment No. 12(21) on Article 1, Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies,
Doc. HRI/GEN/1/Rev.1 at 12 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 n. 8
HRC Concluding Observations regarding France’s report submitted under Article 40 of the
ICCPR, CCPR/C/79/Add. 80 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
OTHE R DO CUMENTS
Collier, Paul et al., Breaking the Conflict Trap: Civil War and Development
Policy (Washington: IBRD/World Bank, 2003) . . . . . . . . . . . . . . . . . . . . . 198 n. 80
T HE CO U NCI L O F EU R OPE
CM grouped reply to PA Recommendations 1134 (1990), 1177 (1992), 1201 (1993),
1255 (1995), 1285 (1996), 1300 (1996), and 1345 (1997) of
19 January 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 n. 69
CM reply to PA Recommendatioin 1609 (2003) adopted on 3 June 2004 . . . . . . 238 n. 75
CM reply to CLRAE Recommendations 43 (1998) and 70 (1999) of
29 May 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 n. 89
ILO
Convention No 169 concerning Indigenous Peoples in Independent
Counrtries (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 n. 55
Table of Travaux Préparatoires
to the FCNM
Final Activity Report on the protection of national minorities for the attention of the Committee of
Ministers, CDDH(92)9 Addendum of 16 April 1992 . . . . . . . . . . . . . . . . . 226 n. 32
Meeting Report, Committee of Experts for the Protection of National Minorities, DH- MIN(92)7
of 30 November 1992
Proposal for a European Convention for the Protection of Minorities, CDL-MIN(93)6 of
22 February 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 n. 10
Explanatory Report on the Proposal for a European Convention for the
Protection of Minorities, CDL-MIN(93)7 of
22 February 1993 . . . . . . . . . . . . . . . . 220 n. 11, 13; 221 n. 14; 229 n. 44; 232 n. 54
Report to the CDDH, DH-MIN(93)4 of 28 July 1993 . . . . . . . . 222 n. 17, 19; 223 n. 22
Final Activity Report of the CDDH for the attention of the Committee of Ministers, CDDH(93)
of 22 August 1993
Terms of Reference for the CAHMIN on the drawing up of a framework convention and a protocol
complementing the European Convention on Human Rights (ECHR), CAHMIN(94)1 of
10 October 1993
Meeting Report, CAHMIN(94)5 of 01 February 1994 . . . . . . . . . . . . . . . . . . 223 n. 23
Preliminary draft Preamble and opening provisions containing certain principles of the framework
Convention, CAHMIN/GR (94)1 misc. of 17 February 1994
Report of the first meeting of the CAHMIN Drafting Group, CAHMIN/GR(94)2 rev. of
04 March 1994
Meeting Report, CAHMIN(94)9 of 23 March 1994
Study of control and monitoring system in international conventions. Proposals for a control
or monitoring system under a framework convention on the protection of minorities,
CAHMIN(94)7 of 12 April 1994
Meeting Report, CAHMIN(94)13 of 15 April 1994 . . . . . . . . . . . . . . . . . . . 231 n. 52
Preliminary Draft Framework Convention for the Protection of National Minorities prepared by
the Chairman and the Vice-Chairman of the CAHMIN with the assistance of the Secretariat,
CAHMIN(94)12 of 10 May 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . 227 n. 34, 35
Contribution of the CDCC to the work of the Ad Hoc Committee on the Protection of National
Minorities (CAHMIN), CDCC-BU(94)7 rev. of 16 May 1994
Proposals concerning the Preliminary Draft Framework Convention for the Protection of National
Minorities, CAHMIN(94)14 rev. of 10 June 1994 . . . . . . . . . . . . . 224 n 25; 228 n. 43
Meeting Report, CAHMIN(94)16 of 13 June 1994. . . . . . . 227 n. 36; 230 n. 46; 231 n. 53
Control of the Implementation of the Framework Convention for the Protection of National
Minorities, CAHMIN(94)17 prov. of 20 June 1994
Meeting Report, CAHMIN(94)19 of 07 July 1994
Informal proposal for further discussion in the CAHMIN submitted by the delegation of the
Netherlands in co-ordination with Belgium, Germany, Hungary, Norway, and Portugal,
CAHMIN(94)24 of 18 August 1994
Summary of the main points raised by the opinion of the Directorate of Legal Affairs on the Draft
Framework Convention, CAHMIN(94)25 of 18 August 1994
Decisions of the Committee of Ministers concerning the work of the CAHMIN at the 516th
meeting of the Ministers’ Deputies, CAHMIN(94)27 of 08 September 1994
xx Table of Travaux Préparatoires to the FCNM
Meeting Report, CAHMIN(94)28 of 19 September 1994
Meeting Report, CAHMIN(94)32 of
14 October 1994 . . . . . . . . . . . . . . . . . . . . . . . . . 223 n. 24; 227 n. 37; 230 n. 47
Meeting Report, CAHMIN(94)33 of 15 November 1994
Meeting Report, CAHMIN(94)35 of 09 December 1994
Meeting Report, CAHMIN(95)9 of 08 March 1995
Meeting Report, CAHMIN(95)16 of 23 May 1995
Meeting Report, CAHMIN(95)21 of 19 September 1995
Meeting Report, CAHMIN(95)22 of 24 January 1996
Table of Cases
ECtHR
Isop v Austria (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 89
X and Y v Belgium (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 89
Certain Aspects of the Laws on the Use of Languages in Education in Belgium (1968) . . . 76 n. 89
K v France (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 89
Bideault v France (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 89
Loisidou v Turkey (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 91
The Socialist Party v Turkey (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 91
The United Communist Party v Turkey (1998) . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 91
Sidiropoulos and others v Greece (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 91
Sheffield and Horsham v UK (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 91
Özdep v Turkey (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 91
Okçnoglu v Turkey (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 91
Sürek and Özdemir v Turkey (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 91
Sener v Turkey (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 91
HR C
Sandra Lovelace v Canada (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 90
Kitok v Sweden (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 90
AD v Canada (Mikmaq Tribal Society) (1986). . . . . . . . . . . . . . . . . . . . . . . . 76 n. 90
Dominique Guesdon v France (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 51 n.2, 76 n. 89
SG v France (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 89
GB v France (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 n. 89
ICJ
Asylum case (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 n. 31
Morocco case (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 n. 31
E CJ
Casagrande v Landeshauptstadt München (1963) . . . . . . . . . . . . . . . . . . . . . . . 253 n. 6
Klöckner Werke AG and others v High Authority (1962) . . . . . . . . . . . . . . . . . . . 253 n. 6
Nold v Commission (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 n. 6
Defrenne v Sabena (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 n. 6
Prais v Council (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 n. 6
Hauer v Land Rheinland-Pfalz (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 n. 6
National Panasonic v Commission (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 n. 6
Mutsch v Belgium (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 n. 92
Friedrich Kremzow v Austria (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 n. 92
Bickel and Franz (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 n. 92
Angonese v Cassa de Risparmio di Bolzano SpA (2000) . . . . . . . . . . . . . . . . . . . 273 n. 92
PART I
PROBLEMATIZATION
Individualism and Collectivism
1
Overview: National Minority,
or Co-nation?
Protection rather than ethical consideration has been the focus of the post-1989
national minority rights discourse. Protection refers here to the responsibility of
the state to protect individuals against injury committed either by the state or
third parties and thus also implies the right to humanitarian intervention on
behalf of citizens belonging to a state. Ethical consideration refers to the act of
moral and social recognition of constitutive communities.1 A constitutive
community is usually one’s ethnic, linguistic, or national group but race, gender,
and sexual orientation have also been suggested as constitutive.2 Usually ethical
consideration brings ethical standing. Ethical standing refers to the individual’s
feeling of moral and social worth achieved and afforded through the recognition
of one’s constitutive community. In international law ethical standing is usually
afforded individuals through the moral recognition of their communities to
independence as states and through a national self-determination test.3 The 1933
Montevideo Convention on Rights and Duties of States holds that communities
have the right to moral recognition as states if they fulfil four criteria.4 These are
a permanent population, a defined territory, a government, and the capacity to
enter into relations with other states. The way in which these are verified is
through the test of the right of national self-determination, which determines the
right to state sovereignty. Thus, to have state sovereignty, both internal and
external self-determination must exist. Moreover, external self-determination is
legitimized by the existence of internal self-determination. Where both exist,
there may be statehood. However, a number of states or state-like communities
1 Honneth, Axel, The Struggle for Recognition: The Moral Grammar of Social Conflicts, trans. Joel
Anderson (Cambridge: Polity Press, 1995; 1st pub., 1992).

2 Taylor, Charles, Sources of the Self: The Making of the Modern Identity (Cambridge, Mass.:
Harvard University Press, 1989) and Young, Iris Marion, Justice and the Politics of Difference
(Princeton: Princeton University Press, 1990).
3 Malanczuk, Peter, Akehurst’s Modern Introduction to International Law, 7th rev. edn. (London:
Routledge, 1997), ch. 5.

4 The Montevideo Convention provides that ‘The State as a person of international law should
possess the following qualifications: (a) a permanent population; (b) a defined territory; (c)
government; and (d) capacity to enter into relations with other States’. Quoted in Brownlie, Ian,
Principles of Public International Law, 5th edn. (Oxford: Oxford University Press, 1998), 70.
16 Individualism and Collectivism
recognized before 1933 could not fulfil the Montevideo criteria today. The
Vatican City, for instance, does not have a permanent population,5 and it could
be argued that present-day Colombia does not control its territory as the drug
cartels have created a virtual state within the state. Similarly, in post-Milosevic
Yugoslavia, now Serbia, the UN is currently administering the province of
Kosovo, and in Afghanistan large parts of the south are not controlled by the
government in Kabul and its international protection forces. Nevertheless, these
entities have ethical standing in terms of moral recognition as independent
states. The Montevideo criteria were expanded when the UN was founded in
1944. The Charter of the UN stipulates that states wishing to become members
must be peace-loving, be ready to accept obligations contained in the Charter,
be ready and able to carry out these obligations, as well as willing to do so.6
Certainly, it is questionable how many members of the UN take all these
obligations seriously.
Partial ethical standing is also possible in international law. The Palestinian
Authority has been given recognition, albeit not yet as a state but as an inter-
national player, even though it does not have power over an independent
territory.7 This is because the Palestinians are seen as a people with the right of self-
determination. Likewise, self-determination for indigenous groups, who like the
Palestinians possess a certain degree of social and political cohesion as well as
state-like collective agency, is currently under consideration in the UN system. In
these cases internal self-determination has been established but external self-
determination remains problematic. Internal self-determination may here be seen
as a tool of protection. But even though a number of European national
minorities are socially and politically cohesive and show evidence of state-like
collective agency like the Palestinians and indigenous groups, and inasmuch as
some national minorities needed protection as they were subjected to ethnic
cleansing in the 1990s, they have not earned the right to ethical standing through
the test of self-determination let alone national self-determination. Instead the
international society has focused on protecting national minorities in terms of
human rights. But if internal self-determination ensures protection and partial
ethical standing, one must ask why do national minorities not enjoy the right of
some form of self-determination?
The reason for the differentiation in the national minority rights discourse
between national minorities and other constitutive communities is that,
according to international law and the prevailing view in European international
politics, states are seen as nations and therefore nations equate with states, and
only those nations that equate with states have moral recognition and national
5 Malanczuk, Akehurst’s Modern Introduction to International Law, 76.

6 Article 4, UN Charter. See, Castellino, Joshua, International Law and Self-Determination (The
Hague, Martinus Nijhoff Publishers, 2000), at 85–6.
7 Cassese, Antonio, Self-Determination of Peoples (Cambridge: Cambridge University Press,
1995), 247.
National Minority, or Co-nation? 17
self-determination. But in reality nations and states rarely coincide. Like
indigenous groups, national minorities consider themselves nations even though
they do not wish to become independent states. Certainly, many national
minorities like the Palestinians and indigenous groups consider themselves a
‘people’. However, international law and politics see national minorities as
cultural groups. This has resulted in national minority rights being categorized
primarily as cultural rights rather than political rights. Hence, inasmuch as the
right of national self-determination is a political right, national minorities are
not eligible for national self-determination. Furthermore, inasmuch as political
rights for groups such as states are usually institutional rights, these fall into the
category of particular rights. In contradistinction, cultural rights are considered
universal human rights. Thus, as the system of international law categorizes
national minority rights as cultural human rights, it leaves the enduring question
of self-determination for national minorities unresolved.8 This is the issue that
Part I will problematize.
To elucidate the problematic relation between protection and national self-
determination in international law one must problematize the discourse of
national minority rights not solely in terms of international law but also in terms
of social idealism. This is why political theorists have been forced to search for
solutions outside international law, within theories of democratization, cit-
izenship, and justice. Theories of democratization, citizenship, and justice merit
attention inasmuch as they relate to the issue of social recognition of national
minorities. Whereas law affords moral recognition in terms of granting rights to
national minorities and their members, democratic institutions, citizenship, and
justice help national minorities and their members achieve social recognition and
the feeling of moral and social worth. First, democratic institutions that include
national minorities in the political process provide them with the opportunity
for individual and collective self-determination. Secondly, citizenship not in
terms of rights but in terms of individual reasoning about action affords
members as well as non-members of national minorities the opportunity to learn
to be self-critical and critical about issues, thus feeling social inclusion. Thirdly,
justice in a form that is acceptable to all members of society and which is
negotiated through democratic institutions affords national minorities the
opportunity to achieve a sense of social worth inasmuch as they are socially and
morally recognized as equal members of society.
However, democratic institutions are often more exclusive than inclusive.
Designing inclusive institutions is a delicate matter in politics, especially in
societies where citizenship is cast in a narrow mould of rights and entitlements.
Citizenship in terms of action is difficult to foster; it requires individual
8 However, see the Human Rights Committee’s General Comment 12(21): ‘The right to self-
determination of peoples (Art. 1)’ of 13 March 1984. UN Doc. HRI/GEN/1/Rev.1 (1994).

See also, General Comment 23(50) ‘The rights of minorities (Art. 27)’ of 8 April 1994. UN
Doc. CCPR/C/21/Rev.1/Add.5.
capabilities and education. More importantly, it requires ethical guidelines upon

which we can rely in the social interaction of day-to-day democracy.9 This is why
justice becomes problematic as a structure for ethical guidelines. Justice is more
than rights and rules about our lives; it is about social interaction and the
ordering of societies that we ourselves negotiate. Hence, if justice is to afford us
the opportunity to achieve a feeling of moral and social worth through social
recognition in addition to moral recognition, it must be flexible and adjustable
to the constant changes in society. These issues constitute the theoretical ques-
tions that Part II will analyse.
Before addressing these substantive matters, it might be helpful to provide an
overview of the history and concepts that form the basis for these. This chapter
will begin with an introduction to national minorities in Europe and the cir-
cumstances under which they became minorities (Sect. 1.1) followed by a survey
of the problems they raise for international law (Sect. 1.2). This entails exam-
ining briefly national minority rights before 1989 (Sect. 1.2.1) and the rise of
state nationalism (Sect. 1.2.2). Arguing that much of the intractability of the
issue of ethical standing for national minorities lies in the state–minority rela-
tionship, as national minorities and states are usually opposites in terms of
nationalisms, the state–minority relationship and its implications for public
policy will be introduced (Sect. 1.3). Seeing that the term minority may be part
of the problem, I address briefly the ethics of terminology (Sect. 1.4). To provide
a preview of ways in which we may overcome the protection versus self-
determination syndrome, I will survey democratic models of political accom-
modation (Sect. 1.5), citizenship issues (Sect. 1.6), and the problematique of
justice (Sect. 1.7). The actual construction of a democratic model of ethical
accommodation will be the focus of Part II, and the model found will be applied
to the post-1989 national minority discourse in Part III.
1.1 Who are Europe’s National Minorities?
Answering the question of what is a national minority, or finding a scientific

definition of a national minority has been fraught with controversy for decades.
The problem of a definition in international law is a question of whether there
can be found a universal definition of national minorities.10 Inasmuch as
9 O’Neill, Onora, Towards Justice and Virtue: A Constructive Account of Practical Reasoning
(Cambridge: Cambridge University Press, 1996).

10 See Capotorti, Francesco, Study on the Rights of Persons belonging to Ethnic, Religious and
Linguistic Minorities (New York: United Nations, 1979); Dechênes, Jules, ‘Proposal concerning a
Definition of the term ‘‘Minority’’ ’, UN Doc. E/CN.4/Sub.2/1985/31 and Packer, John, ‘On the
Definition of Minorities’, in John Packer and Kristian Myntti (eds.), The Protection of Ethnic and
Linguistic Minorities in Europe (Åbo: Institute for Human Rights, Åbo Akademi University, 1993),
23–65 as well as Packer, ‘Problems in Defining Minorities’, in Deirdre Fottrell and Bill Bowring,
(eds.), Minority and Group Rights in the New Millennium (The Hague: Martinus Nijhoff, 1999), 223.
international law instruments must apply to a wide range of states, a definition
would have to be broad and general. But that is an impossibility in contemporary
circumstances where each national minority may be defined according to par-
ticular and diverse characteristics. Moreover, seeking a definition runs into the
quandary of whether to use objective or subjective criteria.11 Objective criteria
may result in discrimination; subjective criteria could lead to segregation. The
view that national minorities are voluntary associations has also been suggested.12
Over the years, scholars outside the realm of law have volunteered definitions
combining objective and subjective criteria;13 most recently Jennifer Jackson
Preece has put forth a detailed definition which holds that a national minority is
a group numerically inferior to the rest of the population of a state, in a non-dominant
position, well-defined and historically established on the territory of the state, whose
members—being nationals of the state—possess ethnic, religious, linguistic or cultural
characteristics differing from those of the rest of the population and show, if only
implicitly, a sense of solidarity, directed towards preserving their culture, traditions,
religion, or language. (emphasis added)14
As a working tool, this definition is helpful although I would suggest substituting
‘citizens’ for nationals inasmuch as the term national is misleading when
discussing national minorities in relation to national majorities, and because at
the European level national minority protection is viewed as a right of citizens.15
This latter issue is clearly seen in the codification of the term ‘national’ meaning
citizenship, recently introduced in the Council of Europe’s 1997 European
Convention on Nationality, which has only exacerbated matters as members
of national minorities are now demanding the right to dual citizenship.16
Will Kymlicka has suggested a shorthand version holding that national minor-
ities are ‘groups who formed functioning societies on their historical homelands
prior to being incorporated into a larger state’.17 The problem of objective
11 For a good discussion see Pentassuglia, Gaetano, Minorities in International Law (Strasbourg
and Flensburg: Council of Europe and ECMI, 2002), ch. III.

12 Packer, ‘Problems in Defining Minorities’, 49.
13 Claude, Inis L., National Minorities: An International Problem (Cambridge, Mass.: Harvard
University Press, 1955), 2; Laponce, J. A., The Protection of Minorities (Berkeley: University of
California Press, 1960), 6. See also in general Macartney, C. A., National States and National
Minorities (London: Oxford University Press, 1934) and Modeen, T., The International Protection
of Minorities in Europe (Åbo: Åbo Akademi, 1969).
14 Jackson Preece, National Minorities and the European Nation-States System (Oxford:
Clarendon Press, 1998), 28.

15 See Thiele, Carmen, ‘The Criterion of Citizenship for Minorities: The Example of Estonia’
(Flensburg: ECMI Working Paper No. 5, 1999).

16 ‘Hungarian Leader in Romania supports idea of dual citizenship’, RFE/RL Newsline 7/148,
Part II, 6 August 2003; ‘Vojvodina Hungarians Angry at Budapest’ and ‘Hungarian Foreign
Minister Willing to Discuss Dual Citizenship’, RFE/RL Newsline 7/146, Part II, 4 August
2003; ‘Bishop Tokes’s Supporters in Transylvania Back Request for Dual Citizenship’, RFE/RL
Newsline, 7/154, Part II, 14 August 2003.
17 Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford:
Oxford University Press, 2001), 54.

and/or subjective is clearly related to the issue of predetermination versus

self-determination raised by Arendt Lijphart. Where self-determination allows
national minorities to manifest themselves, predetermination requires a decision
in advanced on the identity of national minorities.18 Although Lijphart is in
favour of self-determination, he admits that a combination of the two may at
times be the best solution.
However, the problem of a definition is not only a question of universal versus
particular, it is also a problem of multi-contextualization, or the realization that
national minorities are not static, closed homogeneous groups with clear distinct
boundaries of identities. The individual member of a national minority belongs
to different contexts and identifies with a number of groups at all times. The fact
that a person belongs to a national minority may at times be the strongest
membership tie, but other times different ties may dominate. This phenomenon
of individual multi-identification makes for non-homogeneous groups of over-
lapping, interacting, internal negotiations of identities that cannot receive fair
treatment in any definition.19 As identities change constantly, a definition may
therefore be obsolete before it has been agreed upon. Certainly, it is not only
national minorities that defy definition. Most national majorities would defy
scientific definition too. In an age of intensified globalization, mobility, and
migration, how would it be possible to define an American, a British, or a French
national majority without doing injustice to some?
The drive in international law for a definition of a national minority seems
entirely misguided unless the Montevideo Convention criteria which are used to
define national majorities also pertain to national minorities. The Montevideo
criterion which appears to eliminate national minorities from the potential of
recognition is territory. This is because according to the Montevideo Conven-
tion the right to recognition requires a national group to have a permanent
population and a defined territory, meaning the holding of power over popu-
lation and territory. International law seldom withholds the right of recognition
from national groups that have power over their territory and their population.
However, while national minorities do have ‘populations’, they seldom have
power over defined territories. Thus, it would seem that the problem of a def-
inition in international law is linked to the question of sovereign territory, not to
the problem of defining populations. Hence, a national minority is not con-
sidered a national group unless it holds power over sovereign territory. Never-
theless, there are national minorities that hold power over sovereign-like territory
who have not received recognition, except perhaps in the case of federated
18 Lijphart, ‘Self-Determination versus Pre-Determination of Ethnic Minorities in Power-
Sharing Systems’, in Will Kymlicka (ed.), The Rights of Minority Cultures (Oxford: Oxford
University Press, 1995), 275–88 at 275.
19 Tully, James, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge:
Cambridge University Press, 1995), 10. See also William E. Connolly, The Ethos of Pluralization
(Minneapolis: University of Minnesota Press, 1995), ch. 3.
units, and it is still debated whether they have received international recogni-
tion.20 These national minorities fulfil the third Montevideo criterion because
they often have collective autonomy in terms of self-government or self-
administration. They do not however fulfil the fourth Montevideo criterion, the
capacity to enter into relations with other states. Although this criterion may
come under pressure in the integration of the EU where federal units are
increasingly networking across the European Continent, the capacity to enter
into relations with other states is of course linked to the issues of sovereign
territory inasmuch as it is the centrally held power over territory which deter-
mines recognition. Power over sovereign territory thus seems to be the issue
separating national minorities from being recognized in international law. The
notion of power over sovereign territory will be discussed in detail in Chapter 7;
suffice it to note that the notion is exclusionary not because of the value of
sovereign territory but because of the sentiment of power which excludes some
identities from the territory while not others.21 It would appear that the question
of a scientific definition is fraught with problems. Yet, some might argue that it
is still desirable to define national minorities scientifically, especially if we are
to consider claims by national minorities for special status in international law.
An approach that establishes who and where these groups exist in factual terms
may therefore be more helpful.
Applying the method of elimination may be useful here. Thus, it has been
argued that national minorities are not the religious and immigrant minority
groups that exist in most multicultural states.22 On the contrary, national
minorities are a specific type of minority; they are autochthonous.23 While not
entirely uncontroversial,24 the term autochthonous refers to a minority that is
native to a particular region, in this case certain regions of Europe that were once
either independent or belonged to a neighbouring state. The autochthonous
minority’s present minority status is a result of incorporation into a larger
political unit or the change of borders after major conflicts in modern times.
Most notably this has happened after major bellicose conflicts, such as the
20 The case of the Åland Islands, where there has been a debate as to the status of this
archipelago, is recognized in international law. See Åkermark, Athanasia Spiliopoulou, ‘The Åland
Islands in International Law and Cooperation: The Legal Capacity of an Autonomous Region’, in
Lauri Hannikainen and Frank Horn (eds.), Autonomy and Demilitarisation in International Law:
The Åland Islands in a Changing Europe (The Hague: Kluwer International Law, 1997).
21 Connolly, The Ethos of Pluralization, pp. xxii–xxiii.
22 Smith, Anthony D., Nationalism: Theory, Ideology, History (Cambridge: Polity, 2001), 10–13
and Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon
Press, 1995), 10–11.
23 I borrow the term autochthonous from Silvo Devetak who uses it in ‘Autonomy as One of the
Means of Minorities’ Protection: The Case of Slovenia’, in A. Klinke et al. (eds.), Ethnic Conflicts
and Civil Society (Aldershot: Ashgate, 1997), 99–115.
24 The concept autochthonous if not well defined could lead to discrimination. See ‘Consti-
tution Watch’ of Slovenia in East European Constitutional Review, 102/3 (2001), 41–4, reporting
that the Constitutional Court of Slovenia has ruled the lack of an official definition a cause for
concern, arbitrary and discriminatory.
Napoleonic Wars, World Wars I and II, but also after the break up of
the USSR.25
National minorities of autochthonous status in Europe are in essence the
groups that have inadvertently found themselves ‘on the wrong side of the border’.
They include, but are not limited to, Hungarians in Slovakia, Romania, Slovenia,
Serbia, and the Ukraine; Turks in Bulgaria and the Balkans; Albanians in Kosovo
and Macedonia; Rusyns, Russians, Romanians, Slovaks, and Belarussians in the
Ukraine; Moravians in the Czech Republic; German-speaking Austrians in
northern Italy; Italians in southern Austria and Slovenia; Germans in southern
Denmark; Danes in northern Germany, and Russians in the Baltic states. While
the territorial criterion for the autochthonous status of most of these groups is
usually quite clear, the criterion of time is less so. Whereas the Hungarians had
been in the Danube basin for many centuries prior to the demise of the Austro-
Hungarian Empire, the Russians in the Baltic states have migrated fairly recently.
But they were migrating within the territory of their own state in much the same
way as the Turkish people had migrated into Bulgaria and other parts of the
Balkans. Hence, the elimination of empires resulted in national groups residing
away from what became their ‘nation-state’ due to the change of borders within
which they had at some point migrated. Autochthonous national minorities also
include other ‘old’ minorities, such as the Bretons in France, the Basques and
the Catalans in Spain, the Welsh, the Scots, and the Irish in the United Kingdom.
In fact, these autochthonous national minorities might well be seen as auto-
chthonous in a stronger sense inasmuch as they have been national groups
attached to territory over an even longer period and some of which have held
independence at one time. Except perhaps for the Scots, most of these national
minorities did not choose to become minorities. Moreover, their members did
not choose to belong to their respective minority.26 Certainly, the view that
national minorities are voluntary associations is out of place here. A good
description of the phenomenon of chance membership as opposed to voluntary
membership is provided by Philip Allott when he argues that
We are born into societies. The first consequence of this fact is that we do not choose
the societies we are born into. The second consequence is that we cannot know what
we would have been, had we been born into other societies. The third consequence is that
we enter at once into a relationship of mutual interaction with societies, an interaction
which we do not leave until we die. The fourth consequence is that our participation
in every other society is conditioned by our participation in the societies into which we
are born.27
25 Jackson Preece, National Minorities and the European Nation-States System.

26 Bowring, Bill, ‘Multicultural Citizenship: A More Viable Framework for Minority Rights?’ in
Fottrell and Bowring (eds.), Minority and Group Rights in the New Millennium, 22.
27 Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press, 2004; 1st
pub., 1990), sects. 3.2, 39.

What unites the autochthonous national minorities above is that they have
become national minorities by remaining on the land where not only they
themselves were born but also their ancestors.
National minorities have erroneously been related to voluntary immigration
or forced migration. While national in denomination, immigrants that live
dispersed among majority populations, such as the Turkish immigrants in
Germany and Scandinavia, the immigrants from the former colonies living in the
United Kingdom, France, the Netherlands and Portugal, the Albanians in Italy,
and the Africans in Italy and Spain are not considered autochthonous national
minorities. These are usually referred to as ‘new’ minorities but are more cor-
rectly ethnic groups. They may have some of the exact same concerns as members
of autochthonous national minorities but in contradistinction to these members
of ethnic groups have decided to leave their national group and home territory
usually for economic prosperity.28 The difference between an ethnic minority
and a national minority is crucial here. Whereas an ethnic minority may be
defined as a tribe, from the Greek word ethnos meaning tribe, and described as a
group in which membership is based on long-standing association across gen-
erations, relationships of kinship, common culture, religious conformity, and at
times common territorial attachments,29 a national minority is a group in which
membership is based on territorial habitat in addition to a common national
identity. National identity, as we shall see in Part II, is based on nationalism,
meaning the sentiment and ideology of attachment to a nation, its interests and
its territory. Like ethnic group membership, national membership also refers to
common language, common customs and culture, but unlike the ethnic version,
national membership is based not only on a strong consciousness of these sen-
timents but also on presence on previously recognized territory. It is important to
note, however, that in the contemporary European discourse, territorial
attachments rarely result in dispute over borders. Rather, it is nationalism and
national identity which fuel democratic articulations in the discourse of national
minority rights. While ethnic groups may still be closely tied to their kin and a
national majority, arguably they are less tied to the territory of their citizenship or
previous citizenship inasmuch as they have left it when they migrated voluntarily.
In fact, ethnic minorities are often held together by a strong religious tie, such as
the Muslim groups in the United Kingdom, France, and Germany, and this
poses large problems of integration and accommodation in states that are oth-
erwise mainly Christian. The questions of adaptation of Western law to Islamic
law or vice versa will not be the focus of this book.
Three other types of minorities that often surface in the European discourse of
national minority rights are the Roma and Sinti, the Sami, and the refugee groups.
The Roma and Sinti groups have lived in Eastern Europe for centuries but with the
28 Kymlicka, Multicultural Citizenship, 14.
29 See Scruton, Roger, A Dictionary of Political Thought, 2nd edn. (London: Macmillan,
1996), 177.
opening up of borders after 1989 they began to migrate throughout Europe. They
are by definition nomads, and a defining feature is precisely that they do not wish to
hold power over territory. Nevertheless, most have today become citizens of a legally
recognized state. Some of the new states in Central and Eastern Europe have decided
to recognize Roma and Sinti as autochthonous national minorities thus recently
causing problems of legal definition.30 For the present purpose the Roma and Sinti
will not be considered autochthonous national minorities inasmuch as the problems
that governments face in incorporating these groups are considerably different from
the ones posed by national minorities. In my mind, the problem of integrating
Roma and Sinti groups is largely an economic one akin to the problem of ending the
exclusion of African Americans in North America. The Sami people who live in the
northern parts of Scandinavia, in Norway, Sweden, and Finland, do have autoch-
thonous characteristics, but they are considered indigenous groups rather than
minorities. There is a debate in international law as to whether indigenous peoples
are minorities or not. In my mind, both indigenous groups and national minorities
are nations. But as the issue of indigenous peoples’ self-determination is different
from that of national minorities, given that indigenous peoples do not evidence
strong ‘nation-state’ identities or specific sentiments of nationalism, I will exclude
them from this discussion.31 Finally, refugees who have been forced to flee their
national state and territory against their will and who sometimes settle in host-states
virtually permanently are not considered autochthonous.
Ideally, any one of these groups mentioned needs specific public policies to
address their grievances but these are public policies different from those per-
taining to autochthonous national minorities. As we shall see, Roma, Sinti, and
Sami, as well as refugees, differ from autochthonous national minorities inas-
much as their rights are not linked to the key components that define the
structure of international law.
1.2 National Minorities and the Structure

of International Law
Autochthonous national minorities challenge the structure of international law

at its very core: the definition of state sovereignty relying on a particular view of
30 See ‘Constitution Watch’ on Slovenia of July 2001 in which it is reported that the Roma in
Slovenia are defined according to two different definitions. Those Romani people who have been in
Slovenia for more than a century have autochthonous status, whereas those that have immigrated
recently do not. East European Constitutional Review, 10/2/3 (2001), 41–4.
31 See Crawford, James, The Rights of Peoples (Oxford: Clarendon Press, 1988); Aukerman,
Miriam J., ‘Definitions and Justifications: Minority and Indigenous Rights in a Central/East
European Context’, Human Rights Quarterly, 22 (2000), 1011–50, and Brölmann, C. M., and
Zieck, M., ‘Indigenous Peoples’, in Brölmann et al. (eds.), Peoples and Minorities in International
Law (Dordrecht: Martinus Nijhoff Publishers, 1993). See also, Kymlicka, Will, Politics in the
Vernacular: Nationalism, Multiculturalism and Citizenship (Oxford: Oxford University Press,
2001), ch. 6.
state nationalism. State sovereignty, as noted above, is dependent on fulfilling
the criteria laid out in the Montevideo Convention and the UN Charter as
well as passing the test of national self-determination. State nationalism refers
to the prevailing view of nationalism promoted by the state. When verifying
if recognition, and thus state sovereignty, can be had in international law,
not only power over sovereign territory and population must be verified but
the test of national self-determination must also be passed. National self-
determination is exercised through the power of a population to give its con-
sent. National self-determination being informed by the nationalism of the
state therefore assumes that the entire population adheres to the nationalism of
the state. Thus, for national self-determination and state nationalism to act
together, they presuppose a neat fit between the state and the nation. However,
as noted above, in reality nations and states rarely coincide. This conflation of
state and nation has ramifications for autochthonous national minorities
because state nationalism usually derives its legitimacy from being the
foundation of an independent state based on the assumption of one autoch-
thonous national group to one state. When state nationalism informs national
self-determination, the national self-determination test must presuppose one
autochthonous national group to one state. This results in national self-
determination being exclusionary, as autochthonous national minorities are not
members of the autochthonous national group constituting the majority of the
population. Inasmuch as international law recognizes state sovereignty based on
the national self-determination of one autochthonous national group, it would
appear that even if autochthonous national minorities fulfilled the Montevideo
and UN Charter criteria of power over sovereign territory and population, they
could not have recognition because they represent one nationalism too many
within a sovereign state. Surely, the argument that autochthonous national
minorities are not recognized in international law because they are not con-
sidered a ‘people’ is ambiguous.
How has international law arrived at this confusing situation? First, the history
of the concept of a minority predates the notion of the ‘nation-state’ as it became
known in the Westphalian era. As I will discuss below, prior to the so-called
Westphalian states system, whose inception is usually dated to 1648, the
problem of minority groups was still largely seen in terms of religion.32 It was
not until after the French Revolution in 1789 and the settlement after the
Napoleonic Wars in 1815 at the Congress of Vienna that the concept of a
national minority first came into being.33 The phenomena of national minor-
ities and national minority rights were to some extent also the result of the
32 For an excellent survey of the religio-national minorities see Gilbert, Geoff, ‘Religio-
nationalist Minorities and the Development of Minority Rights Law’, in Review of International
Studies, 25 (1999), 389–410.
33 Thornberry, Patrick, International Law and the Rights of Minorities (Oxford: Clarendon Press,
1991), 29.
secularization of Europe and what came to be known as modern international

law.34 This does not necessarily mean that Europeans became irreligious but
rather that religion became confined largely to the private sphere of people’s
lives. As secularization progressed, the national membership gained in import-
ance at the expense of the religious membership. Consequently, belonging to
a national group became significant in addition to belonging to a religious
community. The conceptualization of autochthonous national minorities and
their rights in modern international law was therefore a result of the secular-
ization of the European society, which in turn resulted in the rise of both
nationalism and the doctrine of state sovereignty in law.
Secondly, the doctrine of state sovereignty has rendered modern international
law state-centred, meaning the state is the primary entity in international
relations. As modern international law derives its legitimacy from the sovereignty
of independent states, it is in fact not the state but rather the sovereignty of the
state that legitimizes modern international law and vice versa. That a state has
sovereignty usually means that it is subject to no other political authority or
higher power in the political decision process. The fact that state sovereignty is
the overarching component of the structure of modern international law means
that without the sanctity of state sovereignty there would be no structure of
modern international law. However, in our world of globalization and unrest,
state sovereignty is no longer entirely inviolable, and the territorial application of
state sovereignty in particular is coming under pressure in modern international
law.35 I will return to this issue in Chapter 7. The rather rigid structure of
modern international law based on inviolable state sovereignty is therefore the
result of the historical process of state formations that began in the late Middle
Ages and culminated during the Westphalian era.
The development of the concept of state sovereignty followed two historical
developments. First, the idea of the sovereignty of the state derives from the idea
of the sovereign in natural law and in scholastic law and has in a sense remained
unchanged into modern times.36 Prior to the modern states system sovereignty
34 This term in fact encompasses two systems of international law. First, it refers to ‘public
international law’, which is the system of law in terms of adherence to treaties, custom, and general
principles and which usually refers to the adjudication of the relationships between states. The term
‘positive international law’ is sometimes used interchangeably with public international law.
Secondly, the term ‘public international human rights law’ refers to the post-World War II regime
of universal human rights law which is also enshrined in treaties but which usually refers to the
relationship between state governments and individuals. Both systems of law originated in the
modern era of history. Henceforth the term ‘modern international law’ will refer also to both these
systems, but when discussing issues prior to World War II, it will refer to ‘public international law’.
See also Chapter 3. In addition, there is the term ‘classic law’, which usually refers to law and legal
theory before the Westphalian system of modern states.
35 See the recent study by Evans, Garreth, and Sahnoun, Mohamed (eds.), The Responsibility to
Protect: Report of the International Commission on Intervention and State Sovereignty and its Sup-
plementary Volume (Ottawa: International Development Research Centre, 2001).
36 Carty, Anthony, The Decay of International Law? (Manchester: Manchester University Press,
1986), 2.
was a concept little defined and only God was considered morally eligible to hold
the rights of a sovereign as defended in the writings of one of the early theorists
of sovereignty, Jean Bodin (1530–96). Later the rights of the sovereign were
transferred to monarchs inasmuch as a need had emerged to explain the concept
of sovereignty as well as the right of sovereignty held by kings and princes when
states began to form in Europe. The need for conceptualization of the natural
right of sovereignty resulted in a transposition of the right from God to mon-
archs as a derivative divine right. This was also the beginning of the idea of
Hobbesian state sovereignty.37 On this conception, each state has a natural right
to self-preservation. Hence the relations of states in modern international rela-
tions were that of the state of nature, of all states against all.38 This outlook,
which renders the state the only sovereign, therefore leaves no room for any other
sovereign entity within the state. As we will see, this is one of the core conceptual
problems that the existence of national minorities challenges in law.
Secondly, with the rise of the doctrine of state sovereignty in modern inter-
national law, state sovereignty became equated with jurisdiction over a defined
territory and population. In terms of international law codification, in so far as
we agree with the view that international law is codified, the codification of state
sovereignty began with the 1648 Peace of Westphalia and the formation of a
system of treaty relationships among modern states in Europe. And it survived
into the twentieth century, exemplified in the 1933 Montevideo Convention
and the UN Charter. In modern international law, territory and borders are fixed
to the concept of state sovereignty and remain the jurisdiction of states only. This
became a firm principle in modern international law in the nineteenth century
by the edict laid out in the doctrine of uti possidetis iuris. This doctrine was
first articulated in Latin America after Spanish rule was overthrown and was
reconfirmed by the Montevideo Convention.39 Basically, it refers to ‘the prin-
ciple involving the preservation of the demarcations under the colonial regimes
corresponding to each of the colonial entities that was constituted as a state’.40
During the decolonization of Africa it was preserved, and in 1986, the Inter-
national Court of Justice (ICJ) acknowledged it in the Frontier dispute case
between Burkina Faso and Mali.41 Most recently, the principle of uti possidetis
has been upheld in the conflict over territories in the Balkans and thus expanded
beyond the colonial context. While the principle is currently under pressure in
the debate over the right to independence for Kosovo, there appears little pos-
sibility that it will be redefined. The artificiality of state borders seems set in
37 Hinsley, F. H., Sovereignty (London: C. A. Watts & Co. Ltd., 1966), 142.
38 Carty, The Decay of International Law? at 2.
39 Klabbers, J. and Lefeber, R., ‘Africa: Lost between Self-Determination and Uti Possidetis’, in
Brölmann et al. (eds.), Peoples and Minorities in International Law, 54.

40 Brownlie, Ian, citing Hyde in Principles of Public International Law, 4th edn. (Oxford:
Clarendon Press, 1990), 134.

41 Musgrave, Thomas D., Self-Determination and National Minorities (Oxford: Clarendon,
1997), 236.
concrete.42 State sovereignty therefore is not only a right that belongs uniquely to
states but also a codified de jure right that stipulates the border jurisdiction over
territory and population.
1.2.1 National minority rights prior to 1989

Although the phenomenon of autochthonous national minorities is a modern
phenomenon that basically did not exist before the rise of the modern state
and international law system, the protection of minorities was not unknown in
pre-modern times, as noted above. Religious minorities in France received pro-
tection as early as 1598 by the Edict of Nantes, and the Treaty of Vienna of 1606
afforded protection to Protestants in Transylvania. But even then religious
minorities also had national characteristics.43 Their religion was of course a
stronger bond than their national affiliation, and owing to religious persecution
they often had to flee their region of birth to seek solace under rulers who
purported to provide protection. This was the case of the Huguenots and the
Jewish communities around Europe. In contemporary terms they would most
probably be considered political refugees fleeing from the persecutions of their
‘nation-state’ government. The reason why they were seen as religious minorities
rather than national minorities was that religion was the barometer by which
ethical standing was measured, and ethical standing could only be had in Europe
on the basis of religious affiliation with the ruler of the land according to the
cujus regio ejus religio principle. One exception was the Millet system in the
Ottoman Empire, which awarded religious groups wide-ranging autonomy
rights in civil and political matters. Elsewhere, minorities practising alternative
religions were rarely tolerated and often persecuted.
Autochthonous national minority rights were not clearly defined in contrast to
religious minority rights until after World War I, even though autochthonous
national minorities had been conceptualized at the Congress of Vienna in 1815
when cujus regio ejus natio had become the dominating international relations
principle. The redrawing of state borders during the 1919–20 peace negotiations
at Versailles resulted in diminishing the number of national groups living as
minorities in some states by creating a number of new ‘nation-states’, while
simultaneously creating new national minorities in other states, primarily
Hungarian minorities in Czechoslovakia, Romania, and Yugoslavia.44 To
provide protection for these autochthonous national minorities, the Minorities
Treaties were subsequently signed between the League of Nations and Austria,
42 See Kovacs, Maria M., ‘Standards of Self-Determination and Standards of Minority-Rights in
the Post-communist Era: A Historical Perspective’, in Nations and Nationalism, 9/3 (2003), 433–50.
43 Gilbert, ‘Religio-nationalist Minorities and the Development of Minority Rights Law’, 389.
See also Jackson Preece, National Minorities and the European Nation-States System, ch. 4.
44 Vieytez, Eduardo Ruiz, The History of Legal Protection of Minorities in Europe, XVIIth–XXth
Centuries (Derby: University of Derby, Working Papers in International Law and Relations, 1,
1999), 29.
Poland, the Serb-Croat-Slovene State as well as Czecho-Slovakia, the states that
had been on the losing side of the war.45 These Treaties were the first attempt in
modern international law to codify the rights of autochthonous national
minorities per se. However, as the Council of the League of Nations disintegrated
and the Nazi regime employed its deceitful rhetoric of autochthonous national
minority protection, the Treaties system suffered the unusual fate of disap-
pearance from international law. Today, it is largely held that the establishment
of the UN has replaced not only the League of Nations but also the Minorities
Treaties system. In this post-war system of modern international law, by some
termed ‘liberal’ international law or ‘pacifist’ international law46 the regime of
autochthonous national minority rights suffered the same fate as its parent
system. Autochthonous national minority rights as a legal concept surfaced again
only after 1989. This eclipse was in large part due to the fact that Lockean
individual natural rights, by now termed human rights, had gained hegemonic
power in modern international law and created the system of public interna-
tional human rights law as distinct from public international law.
The Minorities Treaties as well as a number of parallel and specific treaties and
unilateral declarations had established a common model of rights that protected
the rights of autochthonous national minorities. This model ensured for
members the right to adopt the citizenship of the state in which they lived and
full civil and political rights, including the freedom to access public office and
full equality before the law. The model also entitled individual members of
autochthonous national minorities to basic education in their native language,
freedom to receive tutoring in their mother tongue, and most importantly,
financial support from the state when necessary for the maintenance of their
native language and culture.47 In addition to these individual rights, certain
treaties established the right to autonomy for specific autochthonous national
minorities. The right to local autonomy was secured for the Saxons and
Hungarians in Transylvania and the regions of Transcarpathia and Ruthenia
were given territorial autonomy. Unfortunately, Czechoslovakia never fulfilled
its obligations to the latter two regions. Hence, as could be expected, the general
tenor of these treaties, as well as their procedural framework within the Council
of the League of Nations, were primarily propelled by the urge to protect the
status quo of borders in Europe.48 However, the concept of autochthonous
45 Treaty of Peace between the Allied and Associated Powers and Austria, Poland, the Serb-
Croat-Slovene State, and Czecho-Slovakia. See Treaty Series, No. 11 (1919).

46 The post-war system of states has also been referred to as the post-Westphalian system,
although this concept remains disputed. With respect to the legal system of this period, David Held
during a seminar at the University of Essex, 7 February 2001 termed this ‘liberal’ international law.
Siegfried Schieder has termed it ‘pacifist’ international law in ‘Pragmatism as a Path towards a
Discursive and Open Theory of International Law’, European Journal of International Law, 11/3
(2000), 663–98. 47 Vieytez, The History of Legal Protection of Minorities in Europe, 32.
48 See the discussion of the Tittioni Report in Eppstein, John, Ten Years’ Life of the League of
Nations (London: May Fair Press, 1929), 116.

national minority rights that emerged, albeit inconsistent in its application,49

spanned the gamut of rights from the individual rights of members to participate
in political life to the right of collective autonomy, either attached to the national
minority or to the territory.50 It would therefore appear that there was an honest
but also pragmatic attempt to provide autochthonous national minorities with a
sense of self-determination in terms of moral and social recognition.
The approach to autochthonous national minority protection became entirely
different after World War II. Whereas some provisions in the Minorities Treaties
had allowed members of national minorities to decide within a year after World
War I whether to remain under the auspices of their new state or voluntary
resettle in the state of their national allegiance, large national minorities were
forcefully resettled after World War II. Seventeen million people, most of them
belonging to German and Polish groups, were forced to leave their traditional
places of residence and move to the states of their national allegiance.51 In the
Soviet bloc the problems of autochthonous national minorities were settled by
Stalin’s policies of oppression and expulsion. In the West, where autochthonous
national minorities had been allowed to remain, subsequent bilateral agreements
and/or new constitutions based on federal arrangements secured some protection
for these communities. Protection, rather than self-determination, had clearly
become the focus of national minority rights in the post-war period. Moreover,
the protection of autochthonous national minorities was seen as fully covered by
the emerging individual human rights regime put in place by the UN system.
This was in part due to the fact that the international discourse had become
extremely wary of any notion of group rights following the Nazi regime’s abusive
rhetoric and misuse of minority protection. Ironically, this eclipse of group
rights in the development of the UN human rights regime was therefore a result
of the international legal community’s reaction to the Holocaust, which was a
gross violation of one group’s humanity.
To be sure, group protection was implied in modern international law in the
Charter of the UN after World War II in terms of the principle of self-
determination although the concept has not been firmly established as belonging
to groups. This group protection was granted to all ‘peoples’ in the joint Article 1
of the two 1966 Covenants. However, even though public international human
rights law has yet to provide a definition of the concept of ‘peoples’, autoch-
thonous national minorities are not considered a people. In the decades after
1945 the scope of national self-determination was expanded to include the right
of independence of colonized peoples in 1960 but to accomplish this the
internal–external self-determination test was disconnected from the concept.52
49 Thornberry, International Law and the Rights of Minorities, 49.

50 For a critique of this argument, see Musgrave, Self-Determination and National Minorities, 44.
51 Vieytez, The History of Legal Protection of Minorities in Europe, 35.
52 UN Resolution 1514 titled ‘The Declaration on the Granting of Independence to Colonial
Countries and Peoples’.

In 1970 national self-determination was redefined as the right of individual
self-determination through democracy.53 While reiterating the principle of ter-
ritorial integrity, this redefinition provided for alternative arrangements within
state borders by which to achieve internal self-determination, such as power
sharing through federalism or consociationalism and regional autonomy.
In practice, however, it has been interpreted as the duty of states to secure the self-
determination of all citizens through representative government and good gov-
ernance, thus retaining the state-centred structure of international law. This has
brought Jackson Preece to argue that the concept of national self-determination is
‘fudged’ inasmuch as self-determination remained the right of ‘nation-states’
only.54 As noted earlier, a right of self-determination for indigenous groups is
currently under consideration by the UN.55 Hence, except for the short period
after World War I, the possibility of group protection through internal self-
determination for autochthonous national minorities has not been on the agenda
as a specific item of modern international law in the twentieth century.
In spite of the realities of the atrocities against the Jews as a group in the
Holocaust, group protection was put on the international agenda not in terms of
the rights of (minority) groups but in terms of individual protection. While the
reaction to the Holocaust resulted in the 1948 Convention on the Prevention
and Punishment of the Crime of Genocide and the recognition of the state of
Israel, the 1948 Universal Declaration of Human Rights (UDHR) rejected the
issue of group protection of autochthonous national minorities. The issue had
been raised during the drafting of the instrument but although there was con-
siderable support from some states, the inclusion of a national minority clause
was eventually voted down in the UN’s GA. The belief that human rights in
general and the right to non-discrimination in particular were sufficient meas-
ures to protect autochthonous national minorities had won. In Europe the
establishment of the Council of Europe and its constitutive international
instrument, the 1950 Convention for the Protection of Human Rights and
Fundamental Freedoms, the European Convention on Human Rights (ECHR)
for short, likewise skirted the issue of group protection of autochthonous
national minorities. At the time, a non-discrimination clause was considered
sufficient. Like Article 7 of the UDHR, Article 14 of the ECHR prohibits
discrimination on the grounds of membership of various groups but, unlike
the UDHR, the ECHR specifically mentions national minority membership.
The issue of minorities arose again during the drafting of the International
53 UN Resolution 2625 titled ‘The Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the Charter of the United
Nations’.
54 See Jackson Preece, National Minorities and the European Nation-States Systems, 9.
55 ‘Draft Declaration on the Rights of Indigenous Peoples’, UN Doc. E/CN. 4/Sub.2/1994/2/
Add.1; International Labour Organization (ILO) Convention No. 169 of 1989, ‘Convention
concerning Indigenous and Tribal Peoples in Independent Countries’. See also the Martinez Cobo
Report in UN Doc. E/CN.4/Sub.2/1983/21/Add.8.
Covenant on Civil and Political Rights (ICCPR), adopted in 1966. This time
the international community agreed on the inclusion of a minority clause, but
not a national minority clause. Article 27 of the ICCPR granted the individual
members of minorities the right to enjoy their ethnic, religious, or linguistic
culture. The Article reads as follows:
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 practice their own religion, or to
use their own language.
This article thus established the right to minority culture as a norm in public
international human rights law. However, conceptually these rights followed the
norm of the UDHR and the ECHR as well as the other articles of the ICCPR
inasmuch as it established these rights as individual human rights. It remains an
argument among scholars whether Article 27 should be interpreted as conferring
rights on a group notion.56 Moreover, not only was the notion of group rights
eclipsed in the post-World War II regime, the adjective national which had been
introduced after World War I was entirely dropped from the post-war language
of autochthonous national minority protection in public international human
rights law. This was on the supposition that if linguistic minorities considered
themselves autochthonous national minorities, the cultural right to language in
Article 27 would protect their rights. By the time that sub-state nationalisms
jetted out from the break-up of the former Communist bloc and back onto the
European political horizon in 1989, autochthonous national minority rights
were non-existing in modern international law.
1.2.2 National minorities and state nationalism

The rise of state nationalism in Europe occurred simultaneously with the
forming of modern states and was a major factor in autochthonous national
minorities becoming anomalies in modern international law and relations.
Jackson Preece rightly attributes the anomaly to the national self-determination
fudge mentioned above. The fact that the adjective ‘national’ had disappeared
from the post-World War II rights discourse was due to the century old
assumption that states alone had national characteristics. Notwithstanding the
argument that nationalism may predate the modern states system,57 the lack of
distinction between the state and the nation in the French Revolution had
produced a situation whereby autochthonous national minorities came to be
even more in opposition to the majority population than religious minorities
had been. Inasmuch as Article 3 of the Declaration of the Rights of Man
stipulates the right of popular sovereignty as a right held by the nation, there was
56 See Chapter 2 for further discussion.
57 See Smith, Anthony D., The Ethnic Origins of Nations (Oxford: Blackwell, 1986).
basically no room left for groups of different nationalities unless they assimilated.
Article 3 of the Declaration of the Rights of Man and the Citizen (1789) reads:
The basis of all sovereignty lies, essentially, in the Nation. No corporation nor individual
may exercise any authority that is not expressly derived therefrom.58
The framers were greatly influenced by the Rousseauan theory of republicanism,
which could not recognize dissenting minorities.59 This lack of distinction in
theory between statehood and nationhood is of course due to the fact that states
were seen as fairly homogeneous national groups although in reality they were
not. Those who refused to assimilate were considered potential seekers of
independent statehood, thus arousing a fear of secession which resulted in these
non-assimilating groups being viewed as not deserving ethical standing. The late-
modern differentiation in political theory was not made between, on the one
hand, the state, meaning the governance, administration, and protection of a
territory within certain borders and, on the other hand, the nation, meaning the
people of a certain territory. As new states formed in the nineteenth century as a
result both of unification and of wars, state building came to mean nation
building. Through to the twenty-first century the ‘nation-state’ is still considered
the primary holder of both state sovereignty and national self-determination, and
the post-World War II global system of states is still curiously called the United
Nations.
Few policy-makers address this terminology confusion which has resulted in
the anomaly of national minorities in modern international law. For the sake of
clarity, the term ‘state’ will henceforth in this study refer to an independent,
sovereign entity that has received international recognition by fulfilling the four
Montevideo criteria as well as the internal–external self-determination test.
The term ‘nation,’ which only relates to one Montevideo criterion, that of a
permanent population, will refer to a group of people that evidence contours of
institutions and collective agency as well as social cohesiveness, are possibly semi-
politically constituted, speak the same language, live in a particular geographical
area, and whose individual members self-identify and feel kinship mainly with
others within that nation.
Simultaneously with the building of ‘nation-states,’ the strengthening of
nationalism as an ideological force further contributed to the anomaly. Nation-
alism came to be seen both as a cohesive force and as a force of separatism. The
cohesive force was predominant in Italian and German nationalisms, whereas
the separatist force was considerably stronger in Greek, Norwegian, and some of
the Balkan nationalisms. While the nineteenth-century separatist notion of
nationalism has become the dominating view of nationalism in international
politics, the notion of a social cohesive force has been folded into the liberal
58 Reproduced in Waldron, Jeremy, ‘Nonsense Upon Stilts’ (London: Methuen, 1987), 26.
59 See Rousseau, Jean-Jacques, The Social Contract and Discourses (London: Everyman, 1993),
ch. 2 at 177.
democracy of the state. This ‘domestication’60 of nationalism by liberal

democracy has been particularly acute in the second half of the twentieth century
during the period of the Cold War where Western policy-makers have turned a
blind eye to the problem of national sentiments in politics.61 The fact that
demagogue rulers, especially in the Third World, have continued to make use of
nationalist rhetoric in defence of their causes does not appear to have warned
liberal democrats, nor did the fact that in the Communist bloc nationalism was
but dormant. The separatist notion has come to be known in political theory as
ethnic nationalism and the cohesive force as civic nationalism.62 Moreover, ethnic
nationalism is often assumed to be a ‘bad’ nationalism, whereas civic nationalism
is considered ‘good’. Any nationalism that is not contained within a legitimate
‘nation-state’ appears to be a non-legitimate nationalism. Therefore, it is not only
the interchangeable use of the terms state and nation which is still the accepted
axiom but also the assumptions behind the ethnic and civic forces of nationalism
that contribute to the anomaly of national minorities in modern international
law and European relations.
The anomaly resulted in the problem of more than one nationalism within a
single state. In many states it resulted in a problematic state–minority dicho-
tomy. The state–minority dichotomy might best be described as the problem of
two or more national groups cohabiting within one sovereign state. While this
may or may not become a problem of clashing nationalisms, it certainly is a
powerful dynamic that can slow down the process towards democratization in
new democracies after the end of the Cold War.63 In practical terms this means
that from the state’s point of view, autochthonous national minorities are often a
disturbance. This usually stems from the fact that they speak a language that
differs from that of the majority of the population or because they may adhere to
a different religion, or both. This has been described as the syndrome of the
‘troublesome minorities’ but, as Kymlicka reminds us, ‘behind every minority
that is causing trouble for the state, we are likely to find a state that is putting
pressure on minorities’.64 Moreover, national minorities are often of a different
origin, or they may feel some degree of loyalty to another state than the one in
which they reside. From the point of view of the autochthonous national
minorities, the public policies of the government will be the primary reasons for
either the promise of a good life or the fear of actual discomfort, even threats to
60 Canovan, Margaret, ‘Sleeping Dogs, Prowling Cats and Soaring Doves: Three Paradoxes in
the Political Theory of Nationhood’, Political Studies, 49 (2001), 203–15 at 207.

61 Connor, Walker, Ethnonationalism: The Quest for Understanding (Princeton: Princeton
University Press, 1994). See also, Moynihan, Daniel Patrick, Pandaemonium: Ethnicity in
International Politics (Oxford: Oxford University Press, 1993).
62 Smith, Nationalism. See also Smith, Nations and Nationalism in a Global Era (Cambridge:
Polity Press, 1995). 63 Kymlicka, Politics in the Vernacular, 223.

64 ibid. 2. See also, Liebich, André, ‘Ethnic Minorities and Long-Term Implications of EU
Enlargement’, in Jan Zielonka (ed.), Europe Unbound: Enlarging and Reshaping the Boundaries of the
European Union (London: Routledge, 2002).
their lives. The differences between the autochthonous national minorities and
the majority population representing the state are likely to be fairly well pro-
nounced and may create not only differences as to what constitutes the good life
but may also bring about clashes of rights and entitlements. Although such
practical issues are not the only reasons for clashes, they are certainly an over-
whelming reason and cause for day-to-day disputes.65 If the assumption is that
all human beings including members of national minorities wish to lead a good
life and feel respected, public policies that are conducive to the well-being and
respect of members of autochthonous national minorities are therefore vital to
the stability and peace of divided states.
1.3 National Minorities and Public Policy
Public policies are a way in which state governments can show that they want
to include national minorities that are not members of the majority national
group in the affairs and management of society. Public policies that are not
conducive to the well-being and respect of autochthonous national minorities or
are discriminating in favour of the majority may lead autochthonous national
minorities in the direction of separatism. This could force autochthonous
national minorities to face the problem of whether they wish to accept the
public policies or reject them and seek some form of separation either through
partition or secession. However, if state governments forge inclusive citizenship
for members of autochthonous national minorities that emphasizes ongoing
constructive relations and negotiations between the governments and the
autochthonous national minority groups, there may be a basis for honourable
accommodation if not democratic cohabitation. The major link between the
majority and autochthonous national minorities being public policies, problems
in this relationship usually arise when the substantive content of the public
policies has to be determined.
Given that autochthonous national minorities most often speak a foreign
language, language policies are usually the most prominent issue and frequently
the most contentious. In the Ukraine the question of the status of the Russian
language has had ramifications for the bilateral relations between the Ukraine
and Russia, and in Croatia the issue of minority languages has reached the
highest court.66 It appears to be one of those ‘damned if you do, and damned if
you don’t’ issues. Speaking one’s mother tongue is more than just a habit and
65 Kymlicka, Politics in the Vernacular, 61.
66 For an assessment of the situation in the Ukraine see, Kuzio, Taras, ‘Status of Russian
Language again Threatens Ukrainian–Russian Relations’, RFE/RL 5/2, part II, 10 January 2001.
See also ‘Croatian Bilingualism on Ice’ and ‘Istria to Appeal Decision on Bilingualism’, RFE/RL
5/79, Part II, 24 April 2001; ‘Croatian Government sends Istrian Language Law to Constitutional
Court’, RFE/RL 5/98, Part II, 23 May 2001, and ‘Istrian Party leaves Croatian Government’,
RFE/RL 5/105, Part II, 4 June 2001.
being able to communicate. It is also a question of identity and passing on one’s

heritage through education: education at the primary, secondary, and higher
levels. It has to do with freedom of speech and the public media, the contro-
versial aspect of bilingualism, an ‘official’ language, public sector language use(s)
and employment, plus the myriad of discrimination aspects that the teaching or
funding of one or more ‘secondary’ languages bring with it. Moreover, the
question as to the level, state, regional, or local at which the decision about its
use, education, and limitations are made only raises other issues. Solutions to this
problematic are difficult but it would appear that as the matter is highly con-
textualized, it is probably best addressed at the state level, leaving the more
specific to be handled at the local level. But the aspects of identity and cultural
heritage have to be balanced with the impact these decisions will have on people’s
life chances. To achieve this balance will require an ongoing dialogue, with input
from all the relevant parties and at all levels. Consequently, public policies for
autochthonous national minorities may be in a different category in terms of
rights than policies that pertain to the entire population of a state, or indeed the
entire world. Public policies for autochthonous national minorities therefore
appear to be differentiated rights.67
Public policies that seek to incorporate the principle of equality of universal
human rights often run into problems of how to reconcile these with
contextualized situations. According to Article 2(1) of the UDHR, everyone has
the same equal rights and freedoms irrespective of race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth, or
other status. On this view, the principle of equality means that the rights
enshrined in the UDHR are valid for all people, whether they are members of an
ethnic minority, an autochthonous national minority, or, form the majority of a
population. This seems very honourable; however, it is not clear that it ensures
actual equality even though it suggests equal rights. The problem with equal
rights is that in spite of individual rights to equal standing before the law,
many people experience inequality based on unequal capabilities and, more
importantly, unequal opportunities. These may be rectified through education,
training, and welfare entitlements, but if education, training, and welfare
entitlements are not forthcoming because an individual is deemed arbitrarily not
eligible for these measures owing to her difference as a member of a minority
group, the conditions of possibility for equality are modified. This results in
discrimination on arbitrary grounds, which in the case of members of some
autochthonous national minorities has resulted in these being barred from some
of the opportunities set out in the UDHR. Hence, the Hungarian government
claims that its kin-minority in Slovakia suffers discrimination at many levels in
society, and the Albanian minority in Macedonia charge that they have been
subject to ‘quiet discrimination’ since the break-up of the Federal Republic of
67 Kymlicka, Multicultural Citizenship, ch. 9.

Yugoslavia.68 Whether members of autochthonous national minorities are suf-
fering discrimination as a result of their difference as members of a specific group
or based on their lack of capabilities is of course difficult to discern. But
according to the UDHR neither is correct. Therefore, it would seem that to
ensure the conditions of possibility for equality, even human rights at times have
to be tailored to the particular rights-holders’ special circumstances.
But it is questionable whether the principle of equality in terms of the right
to non-discrimination provides the protection required for autochthonous
national minorities to live a life of respect without discrimination. Discrim-
ination because of difference is usually due to group membership, as in the case
of racism. In such cases there is reason to believe that not only the individual
member of the group but also the group itself is singled out for discrimination.
This is the well-known dilemma in multi-ethnic immigrant states that wish to
accommodate cultural pluralism through equal rights. However, as noted earlier,
autochthonous national minorities are not immigrants, they are constitutive and
historical groups that claim special rights based on their autochthonous, non-
immigration status. Although both types of rights may be claimed on the basis of
discrimination, the rights to differential treatment of members of autochthonous
national minorities are more often problematic than the rights of ethnic
minorities. This is due to the fact that ethnic minorities who live dispersed
among the majority population are not usually considered a threat to the unity of
the state, whereas members of autochthonous national minorities often live
concentrated in a specific region. By being regionally defined and living in
regions close to the kin-state to which they claim national allegiance, autoch-
thonous national minorities appear more threatening to the unity of the sov-
ereign state. Public policies with regard to autochthonous national minorities
thus require governments to give not only a political commitment but also a
moral commitment to include national minorities within their sovereign ter-
ritory. Such moral commitment is an official recognition that more than one
national group within the state can have ethical standing, and moral recognition
of the ethical standing of the group is important to members of autochthonous
national minorities.69 Group discrimination in addition to individual discrim-
ination can result in lack of ethical group standing in terms of individual moral
and social worth.70 The question of public policies for the accommodation of
autochthonous national minorities thus becomes an issue of how to achieve
ethical standing.
68 See ‘Report on the Situation of Hungarians in Slovakia’ issued by the Government Office of
Hungarian Minorities Abroad (GOHMA) and Hungarian Ministry of Foreign Affairs, Budapest,
December 1997 available at www.htmh.hu, and Daftary, Farimah, ‘NGO Roundtable on
Inter-ethnic Relations in the FYR of Macedonia, First Meeting’, in ECMI Report, No. 7 (Flensburg:
ECMI, 2001).
69 See Crawford, Leslie, ‘Nation Fights for Recognition’, Financial Times, Spain Annual Report,
6 June 2001, IV. 70 Honneth, The Struggle for Recognition.

1.4 Ethical Terminology
As a result of the historical situation of autochthonous national minorities being

distinct from the national majority in terms of nationalism, the question
essentially becomes one of the ethical standing of national majorities versus the
ethical standing of autochthonous national minorities. The terminology of a
minority is of course logical in its numeric sense as most national minorities in
Europe are in the minority compared to the rest of the population. However,
when adding the adjective national to the word minority, the phrase acquires a
moral connotation. This is precisely because the word national invokes senti-
ments of sovereignty in terms of territory and homeland, a sovereignty that
national minorities do not feel they have. This is why the Hungarian autoch-
thonous national minority in Romania has suggested a different terminology.
In the so-called Cluj Declaration adopted by the Democratic Alliance of Hun-
garians in Romania (DAHR) on 25 October 1992, the Hungarian minority held
that they see themselves not as a national minority but rather as a ‘co-nation’.71
To the Hungarians in Romania the term minority is decidedly derogatory and it
goes back quite a long way in history. When the Hungarian Bishop Sandor
Makkai left his native Transylvania for Hungary after World War I, he declared
that ‘minority being was unbearable for him’ and the category of minority
undignified for man.72 Even in 2001, not much had changed for the Hungarians
in Romania when they made an attempt to rid the Romanian Constitution of the
‘myth of the national state’.73. Hence, to the Hungarians a ‘co-nation’ is a group
which does not look upon itself as a minority but which considers itself of equal
worth to other constitutive groups, even if size in numbers does not warrant
equality in power.
The term ‘co-nation’ is controversial because it implies equal status with the
national majority. Surely, the numbers seldom justify such a redefinition except
maybe for the Flemings and the Walloons in Belgium and perhaps for large
national minorities, such as the Scots, the Catalonians, and the Hungarians in
Romania, to mention a few.74 Moreover, although it would seem logical to
describe the Swiss cantons as co-nations, there is arguably a sense of one Swiss
nationality. In the case of such federal units, it should also be noted that some of
71 See Craiutu, Aurelian, ‘A Dilemma of Dual Identity: The Democratic Alliance of Hungarians
in Romania’, East European Constitutional Review, 4/2 (1995).

72 Recounted by Csaba G. Kiss in ‘National Minorities in Central Europe—Definition and
Typology’, delivered at the Bratislava Symposium II, 13–16 November 1991, published in
Jena Plichtova (ed.), Minorities in Politics Bratislava Symposium II(Bratislava: European Cultural
Foundation, 1992).
73 See ‘Romanian Opposition Party Opposes Hungarian Demand’, RFE/RL 5/27, Part II, 8
February 2001.
74 I am grateful to Peter Jones for pointing this out to me and in general for engaging very
strongly with my arguments on terminology.

these decided to join the national majority, thus rather resembling ‘union
states’.75 On the other hand, one may argue that union states are co-nations in a
stronger sense perhaps. There are of course different normative implications
when we refer to union states versus national minorities. Union states are usually
self-contained whereas national minorities are not. And secession by a union
state would create a new state, whereas secession by a national minority may be
the result of irredentism. Union state relationships imply greater obligations on
the other states in the union, whereas national minorities cannot always demand
such obligations. However, if one wishes to seek equality for national minorities
at least ethically if not in terms of practical power, the question arises of how to
distinguish smaller national groups from larger ones within the same state.
Surely, it would seem odd to call the Slovaks in Slovakia the larger national
minority and the Hungarians the smaller national minority. If equality at least
by definition is an ethical way forward, perhaps the union state relationship
sets good guidelines. Certainly, the obligations embedded in a union state
relationship could help mitigate some of the problems national minorities
face in their relationship to the national majority. Indeed, it may make national
minorities feel rather more equal.
Other terminology has been put forward and terms such as kin-minorities and
ethnic minorities are being used interchangeably with national minorities. For
instance, the phrase ‘sub-state national groups’ has been used, but to this author
the term seems no better than national minority.76 Unlike these various terms,
‘co-nation’ takes into account the moral value of group equality that national
minorities claim is important to their moral worth. Moreover, in the case of both
a union state and a national minority, the major purpose of an ethical rela-
tionship with the national majority is to achieve ethical standing in terms of
moral and social recognition. Granted, the argument for giving ethical standing
to national minorities in terms of recognition does of course imply a linkage to
the concept of the ‘nation-state’. Such linkage is natural and cannot be avoided
precisely because the ‘nation-state’ holds hegemonic privilege of the idea of
nationhood. In other words, if the concept of the state did not imply nationhood
as it does in prevailing theory, national minorities would neither constitute a
problem in theory nor even perhaps in practice. Terminology concerns may be
purely academic, but individual moral worth in terms of ethical group standing
is vital to members of autochthonous national minorities. Although the term
‘co-nation’ will be very hard for most European governments to accept, it seems
the correct ethical term to use. To this author it offers one way forward towards
defining a model of justice which affords national minorities ethical standing in
terms of moral and social recognition.
75 I thank one of the anonymous reviewers for drawing my attention to this.

76 See Hutchings, Kimberly, International Political Theory: Rethinking Ethics in a Global Era
(London: Sage Publications, 1999), 130.
Henceforth in this study, ‘co-nations’ will refer to autochthonous national

minorities, whereas ‘minorities’ will refer to ethnic, cultural, religious, and
linguistic immigrant minorities. It is true that, on the ethical argument, these
minorities should also be named differently, but that is beyond the scope of this
study. Furthermore, inasmuch as the term co-nation implies that the majority
national group or groups are also a co-nation, and indeed a co-nation of
autochthonous status, but also a co-nation holding the power of the state, ‘ruling
co-nation’ will hereafter refer to the national majority that according to modern
international law has been granted state sovereignty based on national self-
determination. While the term ‘ruling’ might also be questioned as it has the
connotation of ‘power over’ and thus differentiates between a stronger and a
weaker group, such differentiation need not be unethical as it merely portrays the
reality of social interaction in democratic systems, a reality to which we consent
in our daily plebiscite on democracy and which we may change through the
democratic political process. The institutions in our democracy are designed
such that one group does not abuse its power over less powerful groups. Models
of political accommodation are therefore another way of protecting co-nations
inasmuch as models of accommodation may secure not only equal rights for
co-nations but also ethical standing.
1.5 Models of Accommodation
Given that we now turn to focus on how to protect co-nations through

accommodation, we must analyse those political institutions at the state level
which might contribute to resolving ‘internal’ conflicts. Accommodation itself
is a controversial notion which usually is distinguished from confrontation and
conciliation and aims at avoiding aggression between groups. Thus, accom-
modation must depend on as many different tools as it takes to prevent groups
from getting into actual conflict but should ideally go beyond mere dispute
settlement. This is not to argue that international rights are not important; on
the contrary. But if co-nation rights are not easily understood as individual
human rights inasmuch as co-nations are groups whose nationalism differs
from that of the ruling co-nation, and if cultural rights are not adequate to
protect co-nations inasmuch as co-nations are groups with strong political
identities in addition to cultural identities, the rights most likely to comple-
ment co-nation accommodation are presumably political rights in terms of
citizenship rights. To design political institutions and citizenship rights that
enable peaceful cohabitation of diverse co-nations within one sovereign state is
however not a simple matter. Although most democratic states rely on the
juridical institutions to settle differences, the peaceful cohabitation of diverse
co-nations is not always achieved. Of course, there are ethical guidelines in
every society that people follow, and human interaction in the public sphere is
usually delineated in the legal and political institutions that are based on
accepted norms.
However, institutionalization of human interaction in terms of group inclu-
sion in politics is complex. In many Western societies it is reserved for a number
of groups who have gained access to or influence on the political process through
civil society interaction as a result either of social pressure or, as often seen, of
financial might. These groups are not participating on the basis of co-nation
ideologies but on common interests and are generally held to be supportive of
democracy and peace and social unity. But inasmuch as co-nations represent a
different nationalism from that of the ruling co-nation, they may not fall into the
category of accepted groups. Although some co-nations in Western Europe have
been granted the right to inclusion on the basis of guaranteed proportional
representation, this right is either non-existent or has not been adequately
implemented in some new democracies in Central and Eastern Europe. The
result is that members of co-nations in these states remain excluded from the
public sphere.
In general, institutionalization of democratic cohabitation and accommoda-
tion in states divided along co-nation lines has proved reasonably efficient in
Western states where institutions have been well defined and implemented.
Basically, three models of accommodation have been applied in Western Europe,
depending on the degree of division along co-nation lines. These are central-
ization, federalism, and consociationalism, each of which is based on liberal
democracy. By liberal democracy is meant in broad terms government by popular
majority rule, a parliamentarian system based on party representation either
representational or proportional, the rule of democratic law, human rights, and
liberal individual freedoms.77 There is, however, no guarantee that Western-style
systems of accommodation based on liberal democracy may be a panacea for
cohabitation in the new democracies in Central and Eastern Europe. The way in
which co-nations have historically been incorporated into states in Central and
Eastern Europe is different from the way this has happened in Western states.
A fourth model, the so-called ethnic democracy model, is seen as a model for
democratizing states that attempt to manage their divided societies without giving
up structured majority dominance.78 Hence, it is a model where the ruling co-
nation holds on to its hegemonic position without contemplating any models of
accommodation for other co-nations. Thus, in my mind, it is similar to the
centralized model of liberal democracy discussed above. However, the grievances
behind the demands for special rights in Central and Eastern Europe are often
different than those lodged by Western co-nations. While both types of co-
nations would ultimately wish to have ethical standing, co-nations in Central and
Eastern Europe suffered the fate of invisibility for decades under Communism
77 Lakoff, Sanford, Democracy, History, Theory, Practice (Boulder, Colo.: Westview Press, 1996).
78 See Smooha, Sammy, The Model of Ethnic Democracy, ECMI Working Paper No. 13
(Flensburg: ECMI, 2001).
resulting in suppressed expressions of identities. Hence, the resurgence of

nationalism after the Cold War. This is why their demands are not just based on
grievances but also on self-determination type demands that would guarantee co-
nations ethical standing in terms of the moral and social worth of identities. The
design of political institutions of cohabitation and accommodation must there-
fore be more sensitive to ethical issues than has generally been the case in liberal
democracy in Western Europe and the model of ethnic democracy does not seem
to provide this.
In Western Europe, most notably the Scandinavian countries and the United
Kingdom, unitary systems of centralization have been in force for centuries and
when needed these states have given concessions to co-nations in various degrees
without changing their constitutionality as unitary states. Sweden and Norway
have granted collective cultural autonomy to the Sami indigenous people in the
north; Denmark has granted political home rule arrangements to the Faroe
Islands and Greenland; the UK has adopted devolution laws for Scotland and
Wales as well as on and off for Northern Ireland. In some of the new demo-
cracies in Central and Eastern Europe which have adopted the model of cent-
ralization concessions have been given to co-nations, albeit not as far-reaching
as in Western states. Hungary has granted cultural autonomy to a number
of co-nations and minorities, while other states have preferred to limit it to
preambular mention. However, these new democracies are experiencing tre-
mendous problems because co-nations are dissatisfied with both the level of
implementation of their rights and the scope of their rights. As these states are
considerably more divided along co-nation lines than Western European
democracies, nationalism runs high. Moreover, human rights are still a new idea,
not well understood and poorly implemented. These states, therefore, face
considerably more serious problems, which still need to be resolved.
A number of Western European states have constituted themselves along
federal lines, primarily economic and regional/territorial lines. While in the
federations of Germany and Austria there are no federal arrangements for
co-nations per se, Spain has a federal structure which grants collective autonomy
to Catalonia and the Basque region. While it is questionable to what extent Italy
is functioning as a federal state, as the political administration of the state is
highly centralized, the region of Alto Adige in the north has been given
administrative autonomy. Switzerland and Belgium are states federated basically
along linguistic lines. Although not ideal in all aspects pertaining to co-nation
membership, systems of linguistic federalism have been reasonably successful in
adjudicating differences among co-nations. But this is not to say that linguistic
federalism has been a panacea for inter-group problems. Belgium has had a
number of cases petitioned before the ECHR owing to the two linguistic federal
units not being a 100 per cent pure in terms of linguistic population.79 Similar
79 See X and Y v Belgium (1966) and the Belgian Linguistic case (1968).
problems have been cited as probably the most intractable issues of the Canadian
federal state.80 Although not a European state, Canada has been grappling with
the same problems as many European states are now experiencing, especially the
new democracies in Central and Eastern Europe. The problems in Canada have
caused frictions in the relationship between the French co-nation of the federal
unit of Québec and the Anglophone people who are not members of the French
co-nation. Moreover, linguistic federalism may not in fact provide co-nations
with power at the central level that they had hoped for. This is the problem that is
particularly acute in those states in Central and Eastern Europe where co-nations
are small in numbers compared to the French in Canada. While Macedonia and
Romania are both wary of tensions that have resulted from federation, such as the
break-up of the Czech and Slovak republics, Moldova has recently taken steps to
institutionalize federalism. Bosnia and Herzegovina, although a federal state, has
in fact been founded on a rather more complex model of power sharing.
A third and much more complex model of power sharing seen in Europe is
consociationalism in terms of groups that are not territorially defined.81 This
model, successful in the Netherlands between 1917 and 1967, is struggling to
come into existence in Northern Ireland, Bosnia and Herzegovina, as well as
Kosovo and exists to some extent in Switzerland.82 It is a model which has had
little success outside Europe, collapsing in Lebanon but it still exists in Malaysia.
Like federalism, this system promises a great deal to co-nations in terms of the
right to power over their own affairs and guaranteed inclusion in decision-making
processes. While it is not a model designed specifically for co-nation accom-
modation, it might work with some adjustment and fine-tuning. One of the
problems with consociationalism, however, is that it is not clear whether it can
overcome the problem of undemocratic results, such as discrimination against
minorities within co-nations.83 Moreover, inasmuch as the powers that it would
decentralize to co-nations might be far-reaching in terms of self-administration,
this might result in undemocratic rules within the co-nation, such as forced
homogenizing of co-nation identities. In a time of multi-contextual identities
this seems implausible. However, it is also possible that the human interaction
across co-nation lines that consociationalism requires might overcome this.
In fact, greater human interaction might promote non-discrimination through
the sharing of problems and knowledge.84 The political institutionalization of
80 See Ballantyne, Davidson, McIntyre v Canada, Communications Nos. 359/1989 and
385/1989, UN Doc. CCPR/C/47/D/359/1989 and 385/1989/Rev.1 (1993).

81 Well analysed in McGarry, John, and O’Leary, Brendan (eds.), The Politics of Ethnic Conflict
Regulation (London: Routledge, 1993), introduction.

82 For a broader view of consociationalism in Europe see Schöpflin, George, ‘Liberal Pluralism
and Post-Communism’ in W. Kymlicka and M. Opalski, (eds.), Can Liberal Pluralism be Exported?
Western Political Theory and Ethnic Relations in Eastern Europe (Oxford: Oxford University Press,
2001), 109–25 at 112.
83 McGarry and O’Leary (eds.), The Politics of Ethnic Conflict Regulation.
84 Connolly, The Ethos of Pluralization, 97–104.
consociationalism could therefore be seen as conducive to better cohabiting and

accommodation arrangements as well as being a tool to combat discrimination.
But political institutions require implementation in order to counter both
co-nation conflicts and discrimination. The lack of implementation of rights is
largely seen as the cause of the recent conflict in Macedonia, as I will discuss in
Chapter 6.85 In unitary European states where the principle of equality in terms
of individual political rights to political participation and voting is considered
sufficient for members of co-nations to gain access to the political process,
some co-nations are still experiencing exclusion at local levels. This is the situ-
ation for Hungarians in Slovakia where group discrimination is cited as a reason
for exclusion from public administration.86 Guaranteed inclusion rights to
participate in local administration may therefore be necessary. Thus, even
though most Eastern as well as Western European states have adopted non-
discrimination clauses either in their domestic laws or through international
human rights conventions, discrimination persists. But even if these were ade-
quately transcribed into domestic law, they would not guarantee that members
of co-nations are not discriminated against. A primary reason for this is that in
some states these rights are not adequately implemented. In order to bring
members of co-nations into the affairs of society in states that are divided along
co-nation lines not only better legal incorporation of rights but also better
implementation in terms of actual application is needed. The actual application
of non-discrimination is, however, very difficult to foster. Certainly, it is ques-
tionable whether it is achievable at all. To overcome discrimination it would
seem that aspects of ethical behaviour must be addressed. But this presupposes
that both ruling and non-ruling co-nations co-operate in terms of seeking to get
along rather than merely co-existing by tolerating and not engaging with the
other. In some states this is not the case. The question therefore is how to
solve the problems of conflict in human interaction in societies divided along
co-nation lines.
1.6 Citizenship
Even if states institutionalize power-sharing mechanisms, problems of conflicts

in human interaction must also be addressed. This is the issue of citizenship.
According to Marshall’s authoritative definition of modern citizenship, there are
three notions of membership in society: the civil, the political, and the social.87
The first notion, civil membership, usually refers to individual liberty, whereas
85 See Daftary, ‘NGO Roundtable on Inter-ethnic Relations in the FYR of Macedonia, First
Meeting’. 86 See ‘Report on the Situation of Hungarians in Slovakia’.

87 Marshall, T. H., ‘Citizenship and Social Class’ (1963), reprinted in Robert E. Goodin, and
Philip Pettit (eds.), Contemporary Political Philosophy: An Anthology (Oxford: Blackwell, 1997),
291–319.
the second, the political, and the third, the social notions, refer to individual
power in terms of political participation and welfare. These distinctions should
not be seen as absolutes because, arguably, in many cases they overlap. Indeed,
twenty-first-century citizenship is considerably more complex, and the thematic
aspects are intertwined and change constantly with the evolutions of globaliza-
tion and technology. Moreover, as it has been argued that there is a danger of
conflating ‘citizenship-as-desirable-activity’ with ‘citizenship-as-legal-status’,88 a
concentration on the latter has often resulted in neglect of the former. Certainly,
citizenship refers to the right of political participation, duties to other citizens,
and responsibility for the welfare of the community as a whole.89 In theorizing
the accommodation of co-nations one must take into account all three themes of
citizenship as well as rights and activity. One should also ideally go beyond these
to include a co-nation dimension.
The co-nation dimension is important inasmuch as co-nations have at times
become adversaries to the ruling co-nation, and at other times they have even
become enemies owing to their co-nation identity invoking an ‘us–them’ rela-
tionship with the ruling co-nation. Even if recognized legally as citizens of
their state, members of co-nations rarely identify with the nationalism of the
ruling co-nation. Moreover, as they cannot be expected to shed their co-nation
identity just because they live in a different national state, problems of loyalty are
posed, loyalty towards the co-nation and loyalty towards the state. This creates
the problem of what Philip Allott calls ‘two forms of energy’ within one sov-
ereign state.90 In terms of identity, rather than fostering dual identities, this has
resulted in members of many co-nations feeling like and actually at times
becoming second-class citizens.91 Feeling like a second-class citizen is of course
not a problem only experienced by members of co-nations; women, blacks, poor,
and homosexuals, to mention a few, have also claimed to feel like second-class
citizens in their respective societies. However, when members of co-nations
have been excluded from public administration on the basis of their lack of
language abilities, it seems plausible to consider their complaints. After an official
language law was adopted in Slovakia recently, members of the Hungarian
co-nation were excluded from public service due to lack of language abilities.
Similarly, Albanians in Macedonia have integrated poorly due to lack of edu-
cation and language abilities. Kosovo-Albanians, on the other hand, were
excluded during Milosevic’s regime simply on the basis of their membership
of the ‘wrong’ co-nation. It would seem that co-nations are discriminated
88 Kymlicka and Norman make this distinction in Kymlicka, Will, and Norman, Wayne,
‘Return of the Citizen: A Survey of Recent Work on Citizenship Theory’, Ethics, 104 (1994)
352–81 at 353.
89 Linklater, Andrew, The Transformation of Political Community: Ethical Foundations of the Post-
Westphalian Era (Oxford: Polity, 1998), 184.

90 Allott, Eunomia, sect. 13.39, 219. See also, Craiutu, ‘A Dilemma of Dual Identity’.
91 Parekh, Bhikhu, Rethinking Multiculturalism: Cultural Diversity and Political Theory
(London: Macmillan Press, 2000), 233.

against both in terms of social injustice and historical misfortune. Either way
recognition seems an ethical approach to reconciliation. This does not mean that
all complaints are valid nor that other groups in society, such as ethnic or cultural
groups, do not suffer similar discrimination. They often do, and their problems
should also be addressed. But unlike co-nations, these groups do not pose any
apparent threat to peace and stability. In the name of not only peace and social
unity but also human dignity and respect, it would seem that responsibility for
seeking to alleviate discrimination against members of non-ruling co-nations lies
with the ruling co-nation.
Addressing the problem of second-class citizenship requires not only a con-
cern for opportunities; it is also necessary to value such groups equally with
other people. Although this might in practice be utopian, it should at least be
regarded as an honourable ideal for which people have the right to strive. To
co-nations, individual worth in terms of having ethical standing is linked
to moral and social recognition. The idea of recognition and status is a
decidedly modern and primarily a European concept. It is best known in
European philosophical thought from the writings of the German philosopher
G. W. F. Hegel, who pointed out that the individual’s constant striving for
recognition is not a good basis for social relationships.92 Charles Taylor has
picked up on this and argued that lack of recognition is a serious matter because
it may deprive the individual of recognition. Mis-recognition, he argues, can
result in individuals feeling
real damage, real distortion, if the people or society around them mirror back to them a
confining or demeaning or contemptible picture of themselves. Nonrecognition or
misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a
false, distorted, and reduced mode of being.93
Thus, when co-nations are concerned with recognition, one must take it that
they are concerned with the well-being and respect of their members. This means
that they are concerned with the exact same issues with which most members of
ruling co-nations are concerned, namely the freedom to self-identify with their
peers, to speak and learn their mother tongue both in the public and the private
spheres, and to preserve their national heritage and pass it on to their offspring
through community life, to mention a few. Recognition for co-nations is a
question of desiring respect, not only in terms of being left alone, but also in
terms of self-esteem and moral and social worth. However, recognition of
people’s worth is a highly subjective matter; we all harbour some feelings of
prejudice within us.94 This is why philosophers such as Taylor and Axel
92 See Hegel, G. W. F., The Phenomenology of Spirit, trans. A. V. Miller (Oxford: Oxford
University Press, 1977), ch. 4.

93 Taylor, Charles, ‘The Politics of Recognition’ in Amy Gutmann (ed.), Multiculturalism:
Examining the Politics of Recognition (Princeton: Princeton University Press, 1994), 25–74 at 25.
94 Connolly, The Ethos of Pluralization, chs. 1 and 4.
Honneth have identified the constant need for struggles of recognition as a major
component of human interaction and subsequently a prerequisite for developing
democratic societies. Hence, recognition also becomes a very arbitrary matter.
But when we decide that we cannot give recognition to an individual or a group
of people because of our subjective dislike of them, we may not always have
factual reasons for doing so. This is why in liberal ideology toleration is such an
important virtue.
To political theorists toleration comes in different shades but two meanings
have emerged as general knowledge. Susan Mendus in paraphrasing Lord
Scarman argues that on a narrow scope toleration refers to the act of disapproval
of somebody morally, meaning the ‘non-act’ of letting someone alone.95 On a
more positive notion, Karl-Otto Apel, Sheldon Leader, and Michael Walzer have
argued for a form of acceptance of the opponent’s right to existence that builds
on a sentiment of respect.96 While on the narrow scope toleration makes social
interaction difficult, the positive notion would promote the virtue of showing
respect. However, it is not entirely clear that the positive notion will help
individuals to foster self-esteem and self-respect inasmuch as it does not require
interaction with the people who are the object of this toleration. The problem
with both types of toleration is that they do not go far enough to support an
ethical theory of citizenship.
Citizenship theory is a large topic in political theory. The positive conception
of toleration coupled with rights is generally the conception of citizenship that is
fostered in liberal democracies. Stephen Macedo describes this in terms of a set of
liberal virtues and responsibilities that are required to make human interaction
function in liberal societies.97 But there are limits to this liberal citizenship as it
presupposes neutrality in terms of commitments to nation, region, or tribe.
David Miller has proposed a citizenship that takes into consideration national
identity and nationality but considers the ‘nation-state’ as the locus of people’s
identity.98 Kymlicka has argued for a multicultural citizenship based on liberal
pluralism that takes in the notions of both nationality and regionality.99
However, in addition to focusing on how to incorporate nationalism into a model
of citizenship, it is also important to theorize how people should act to one
another. This is an approach that is particularly helpful to theorizing citizenship
95 Mendus, Toleration and the Limits of Liberalism (Basingstoke: Macmillan, 1989), 5.

96 Apel, Karl-Otto, ‘Plurality of the Good? The Problem of Affirmative Tolerance in a
Multicultural Society from a Ethical Point of View’, in Ratio Juris, 10/2 (1997),199–212, and
Leader, Sheldon, ‘Three Faces of Toleration in a Democracy’, Journal of Political Philosophy,
4/1 (1996), 45–67 as well as ‘Toleration without Liberal Foundations’, Ratio Juris, 10/2 (1997),
139–64. Walzer, Michael, On Toleration (New Haven: Yale University Press, 1997). See also
Mendus (ed.), The Politics of Toleration (Edinburgh: Edinburgh University Press, 1999).
97 Macedo, Stephen, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitu-
tionalism (Oxford: Clarendon Press, 1990).

98 Miller, David, On Nationality (Oxford: Oxford University Press, 1995) and Citizenship and
National Identity (Cambridge: Polity Press, 2000). 99 Kymlicka, Multicultural Citizenship.

for diverse societies and which has been championed by William Galston.100
Unfortunately, he does not address the problem of how citizens achieve the
ability to act in an ethical way. Indeed, few theorists concern themselves with the
way in which individuals might reason in order to achieve and promote the goal
of recognition. Individual practical reasoning determines how we reason about
the values that guide actions, our own as well as those of others. A recent
reinterpretation of Immanuel Kant’s model of individual practical reasoning
proposed by Onora O’Neill as a critical mode of reasoning seeks to alleviate
some of these problems.101 This is a model that is highly idealized, and it may be
argued that it is difficult to implement in terms of public policy. William
Connolly has suggested a comparable, non-Kantian, post-Nietzschean critical
responsiveness mode to social interaction in a democratic ethos.102 While
respecting each philosopher’s ideological leanings, both O’Neill and Connolly
theorize, in my mind, a critical citizenship approach and in doing so question the
assumption that it is desirable to seek a fixed model of justice.
1.7 Justice
A non-fixed, non-static model of justice requires that we refocus our theorization

from the model itself to how we arrive at a flexible model of justice relevant for
communities that wish to accommodate co-nations. Justice is another hotly
debated topic in political theory and arguably one of the most controversial ones.
Justice is a desirable virtue in both the public and the private sphere. Justice in
the public sphere is usually concerned with law and public policy and thus of
primary concern with regard to co-nation accommodation. The argument for
designing a critical citizenship that can support an ethical model of co-nation
accommodation should be seen as related to justice in the public sphere as it
seeks to theorize how citizens act towards each other in public. This is not to say
that citizenship values are not important in the private sphere, but it would be
beyond the scope of this study to address that subject.
The notion that justice is a fixed concept, enshrined in our constitutions and
institutions, has been challenged by a number of political philosophers. Among
them, James Tully has argued that one way in which to arrive at a model of
justice that is acceptable to all groups in a diverse society is through a discursive
approach.103 By discursive is meant that differences may be settled by argument
and collective reasoning. This is an approach that has potential value for
including co-nations democratically in the management of their society and state
as it seeks to arrive at a just system of cohabitation through democratic exchange
rather than juridical adjudication by experts. It is also a system that wishes to take
100 Galston, William, Liberal Purposes: Goods, virtues, and diversity in the liberal state
(Cambridge: Cambridge University Press, 1991). 101 O’Neill, Towards Justice and Virtue.
102 Connolly, The Ethos of Pluralization. 103 Tully, Strange Multiplicity, 24.
into account all voices in society. In fact, if rules are to be found as to how voices
are to be heard, the discursive system suggests these rules be defined by all rather
than by the few. Essentially, this approach seeks to return the space for virtues
and ethics in terms of rules of conduct to the activities of human interaction.
Disagreements and divergences about the good life are not however easily settled.
Relying on law alone to settle disputes risks excluding those co-nations which
are not capable of bringing their cause to the courts. And allowing disputes to
be settled through bargaining is even more likely to exclude co-nations as
bargaining often results in the overriding of less forceful arguments. Of course,
there might be co-nations who opt not to participate in the management of their
society. They may not have the political will or leadership required. However, a
healthy political debate that allows for all voices to be heard, irrespective of the
languages and modes used, could possibly bring together both strong and weak
voices. The debate should ideally go beyond the view that adversaries in the
discussion are enemies. That is why a healthy debate is signified by its ability to
produce respect and consideration of the other. The healthy debate that pro-
duces participation across the board is nevertheless very difficult to achieve. This
is why the discursive approach proposes a return to virtues and ethics.
Ethics here means a set of rules constituting a defined sphere, and virtues refer
to the way in which human beings interact. While the discursive approach needs
an account of ethics in terms of both action and guidelines for dialogue, most
accounts of human interaction stop short of establishing what virtues are needed
when individuals and groups reason with each other during the discursive
approach to justice and democracy. This may in part be due to the fact that it is
often argued that ethics and politics should be kept apart, and that, inasmuch as
ethics are not seen as part of politics, an account of virtues is not deemed
necessary.104 However, theorizing co-nation relations in divided societies is
impossible without taking into account virtues and ethics. The expansion of the
Lockean ideal of toleration as reworked by Kant in the ethics of virtue and duty is
found in much of European life today. But while both Locke and Kant are
considered liberal philosophers, the ethics of virtue defended in liberalism has
recently been put under scrutiny and a revisionary conception of Kantian ethics
has emerged.
Revisionary Kantian ethics argues that virtues and liberalism used to com-
plement each other but have become severed in modern times because liberalism
diverged.105 On this view, liberalism developed into an ethos of freedom and
choice, which suppressed the importance of virtues. Moreover, liberalism divided
into two different strands of liberalism.106 One, the European version, retained a
strong ethos of virtues and settled into the European tradition of republicanism
104 Bellamy, Richard, Rethinking Liberalism (London: Pinter, 2000), 103.
105 O’Neill, Towards Justice and Virtue, 37.
106 Onuf, Nicholas Greenwood, The Republican Legacy in International Thought (Cambridge:
Cambridge University Press, 1998).

that was descended from the Roman Republic and Nicolò Machiavelli’s political
theory. The other liberalism, the Atlantic version, adjusted to the expansive
commercialism of laissez-faire policies and the economic changes of the Industrial
Revolution in the nineteenth century and became the Anglo-American tradition
of liberal justice. The revisionary theory of Kantian ethics retains the strong link
between the virtues of the European version and the justice of the Anglo-
American version. Thus, it appears to have the potential to support the need in
the discursive approach for individual virtuous action as it builds on the critical
practical reasoning model and seeks to provide the science of human interaction
with a mode of ethical consideration. Ethical consideration, as stated above, refers
to the act of moral and social recognition of constitutive communities. But more
importantly, it refers to the ability to be able to foster a notion of individualism
that enables the individual to de-emphasize her own needs and desires when
required and show regard for those of others. This means that the individual
should be capable of going beyond positive toleration and simple respect to foster
cosmopolitan consideration. In a sense this theory of ethical consideration would
promote a cosmopolitan environment of mutual respect as well as a mutual desire
for the other’s self-esteem to grow. It is of course a highly idealized theory and it is
questionable whether it would work in every state where co-nations are seeking
ethical standing. It is a theoretical model that requires much in terms not only of
political will but also civic education and transparency. Indeed, it is a model that
is mainly action guiding and should not be expected to determine action. But in
those societies in Europe where co-nation conflicts have festered and are escal-
ating, it should be investigated whether ethical cosmopolitan consideration might
be fostered through critical individual practical reasoning. If not, its imple-
mentation should be sought across the board to promote a productive environ-
ment for discursive agreement about justice. This may further a desire on behalf
of all members of society for reconciliation, for willingness to show cosmopolitan
consideration, and, most of all, for a flexible model of justice that is relevant to
and accepted by the people it touches.
Inasmuch as the vocabulary of reconciliation, willingness, and consideration is
not as yet part of the legal discourse of co-nation rights and accommodation, a
journey that embarks on elucidating this problem might be worthwhile. More-
over, to attain the purpose of assessing the influence of the post-1989 co-nation
rights discourse on European international ‘politics of accommodation’, the
theoretical approaches to institutionalization of cohabitation and accommodation
that inform the political discourse need scrutinizing. The remainder of Part I will
focus on the post-1989 discourse within the realm of modern international law
and legal theory. Part II will analyse theoretical approaches to accommodation,
citizenship, and justice that dominate the theoretical debate and will seek to
develop an alternative framework of co-nation accommodation. And Part III will
seek to assess the extent to which the post-1989 discourse has informed European
international politics, specifically in the Council of Europe and the EU.

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N A T IO N A L M IN O R IT Y R IG HTS IN E UR O PE

2. Co-nation Rights after 1989: Cultural, or Political Rights? 51

3. Co-nation Rights and the Concept of ‘Collective Rights’:

5. Liberalism and the Constitutive Community:

6. Liberal Democracy and the Discursive Approach:

III. IN PRACTICE: PROTECTIO N,

8. The politics of integration: The possibilities of

9. Towards a Critical Theory of Co-nation Rights: Forging

AC Advisory Committee to the Framework Convention

CAHMIN Ad Hoc Committee for the Protection of National Minorities

DAHR Democratic Alliance of Hungarians in Romania

EAGGF European Agriculture Guidance and Guarantee Fund

FIFG Financial Instrument for Fisheries Guidance

HCNM High Commissioner on National Minorities

IBRD International Bank for Reconstruction and Development

LDA Local Democracy Agencies

NATO North Atlantic Treaty Organization

MKP Hungarian Coalition Party (Slovakia)

OSCE Organization for Security and Co-operation in Europe

PA Parliamentary Assembly (Council of Europe)

RegLeg Conference of the Presidents of Regions with Legislative Powers

SEA Single European Act (EU)

TBKP United Communist Party of Turkey

UDHR Universal Declaration of Human Rights (1948)

Anderson (Cambridge: Polity Press, 1995; 1st pub., 1992).

Routledge, 1997), ch. 5.

5 Malanczuk, Akehurst’s Modern Introduction to International Law, 76.

determination of peoples (Art. 1)’ of 13 March 1984. UN Doc. HRI/GEN/1/Rev.1 (1994).

capabilities and education. More importantly, it requires ethical guidelines upon

1.1 Who are Europe’s National Minorities?

Answering the question of what is a national minority, or finding a scientific

(Cambridge: Cambridge University Press, 1996).

and Flensburg: Council of Europe and ECMI, 2002), ch. III.

Clarendon Press, 1998), 28.

(Flensburg: ECMI Working Paper No. 5, 1999).

Oxford University Press, 2001), 54.

and/or subjective is clearly related to the issue of predetermination versus

18 Lijphart, ‘Self-Determination versus Pre-Determination of Ethnic Minorities in Power-

25 Jackson Preece, National Minorities and the European Nation-States System.

pub., 1990), sects. 3.2, 39.

1.2 National Minorities and the Structure

Autochthonous national minorities challenge the structure of international law

secularization of Europe and what came to be known as modern international

Brölmann et al. (eds.), Peoples and Minorities in International Law, 54.

Clarendon Press, 1990), 134.

1.2.1 National minority rights prior to 1989

Croat-Slovene State, and Czecho-Slovakia. See Treaty Series, No. 11 (1919).

Nations (London: May Fair Press, 1929), 116.

national minority rights that emerged, albeit inconsistent in its application,49

49 Thornberry, International Law and the Rights of Minorities, 49.

Countries and Peoples’.

1.2.2 National minorities and state nationalism

democracy of the state. This ‘domestication’60 of nationalism by liberal

the Political Theory of Nationhood’, Political Studies, 49 (2001), 203–15 at 207.

Polity Press, 1995). 63 Kymlicka, Politics in the Vernacular, 223.

1.3 National Minorities and Public Policy

being able to communicate. It is also a question of identity and passing on one’s

67 Kymlicka, Multicultural Citizenship, ch. 9.

6 June 2001, IV. 70 Honneth, The Struggle for Recognition.

1.4 Ethical Terminology