CYIL Vol. 7, 2016

ANDREA BARŠOVÁ CYIL 7 ȍ2016Ȏ rights of national minorities understood as human rights (a concept to which the Council of Europe strongly adheres), is enlightened by Helena Hofmannová. The universal character of minority rights and the principle of equality make the existence of the kin state an inherently suspect criterion when states define national minorities and set the standard for their protection. The Council of Europe’s predominately negative approach to the role of kin states 3 is not unique. It is in line with the lack of legal recognition of the special role of kin states in relation to kin minorities on the global level. If public international law does not give kin states any specific rights or duties to protect kin minorities, can an armed intervention to protect compatriots, as the most extreme form of protection, ever be legal? Veronika Bílková argues that the answer of the international law is negative. Interventions by states to protect own citizens cannot be subsumed under the right to self-defence (due to lack of either treaty law or customary law). If the legality of the doctrine on the right to self-defence of citizens is problematic, the more problematic it is in relation to compatriots. The fact that public international law provides only limited space to activities of a kin state is a source of dissatisfaction for Harald Ch. Scheu. He recognises that against the background of the official human rights doctrine, the building of a specific kinship relationship based on ethnic affiliation must necessarily be seen as highly problematic, or even anachronistic. Nevertheless, he does his best to defend it. The elements of his vindication, which at least some cosmopolitan liberals may find provocative, include certain recognition of group identity by public international law (e.g. article 27 of ICCPR), further and somewhat curiously, the concept of affirmative action or the lack of international standards in the citizenship area (which tolerates widespread practice of using ethnic criteria by states when distributing citizenship). He believes that preferential treatment by a mother country for the benefit of its minority shall not be discredited and labelled suspicious. A proper tool for positive arrangements, above the multilateral minimal consensus codified by international treaties, as Scheu suggests, are bilateral treaties, which are preferable to unilateral measures. (Such unilateral measures are e.g. the expatriate laws adopted recently in some Central and Eastern European countries – the topic of a contribution by Ivan Halász.) Scheu’s article raises not only some particular issues (such as the applicability of the concept of affirmative action to the rights of national minorities), but also a more fundamental one. Would we all live in a better world if his propositions are put in practice, or would just some minority groups be better off? 3 According to the Opinion of the Venice Commission from 2011, kin states may take an active role in the preservation of their kin minorities, but minority protection should be the responsibility of home- states and kin states may only help their kin minorities in accordance with existing international and bilateral treaties. Venice Commission, The Opinion on the New Constitution of Hungary, 17.-18. June 2011, Council of Europe, Strasbourg.

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