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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.