The events that have taken place in the Balkan peninsula in the last four years are indicative of the changing nature of the international community. The thorny issues of minority rights and national self determination which led to the emergence of divisive nationalism in the early part of the twentieth century are resurfacing. Following World War II, these issues seemed to have been neutralized as the body of international law started to evolve. The United Nations Charter of 1945, the Universal Declaration of Human Rights of 1948, the Helsinki Final Act of 1975, and the process set in motion between 1975-1989 by the Conference for Security and Cooperation in Europe (CSCE) all progressively sought to redefine self determination and minority rights. By recasting minority rights as human rights, and national self determination as democratic self determination they sought to eliminate the divisive struggles of the past. Unfortunately, although the criteria set by the United Nations Charter and the Helsinki Process were easily adopted by the political and legal structures of Western Europe and North America, they did not find fertile ground in Eastern Europe.

The newly established Eastern European states were legal structures which had been carved out of large multi-ethnic empires on the basis of national self determination. As a result, the post-1945 legal standards established by the Western allies were never adopted in Eastern Europe because the ideas of democratic self determination and human rights that they championed threatened the fundamental political structure of these authoritarian regimes. Even Greece and Turkey which had been politically incorporated into the western bloc had problems accepting the standards. Their Eastern European traditions and their proximity to cold war frontiers had effected their internal political structures.

The end of the cold war and the obliteration of the authoritarian superstructures characteristic of the Eastern Bloc made the clash between the established norms of international law and the region’s outdated political standards inevitable. The recent crisis, however, highlighted much larger problems. For one thing, it rekindled devastating campaigns of ethnic cleansing. More importantly, it emphasized an alarming tendency in the international community-its willingness to allow terms such as minority rights and national self determination to resurface. The 1990 Conference for Security and Cooperation in Europe that took place in Helsinki and Paris was illustrative of this tendency. By amending the Helsinki Final Act, the CSCE allowed collective minority rights to resurface, weakened state-sovereignty, and took an ambivalent stance on the principle of self determination-a stance that could jeopardize the stability of Eastern Europe and the Balkans.

The combined drives for minority rights and self determination have cause fratricidal bloodshed in the Balkans for the last one hundred years. What relative peace the area has enjoyed has been primarily due to the recognition of internationally established borders and the inviolability of these borders as reaffirmed by the Helsinki Final Act of 1975. If questions begin to arise about these borders they could lead to an uncontrolled escalation of ethnic conflict in the area. Not only that, but if these questions led to the establishment of a legal precedent this could have consequences beyond the area of the Balkans.

ALTHOUGH IT HAS been influencing legal norms since the nineteenth century, self determination has not always been a legally defined concept. Originally it was a concept that resulted from the rising nationalist aspirations of the European peoples of the nineteenth and early twentieth centuries. In this context, national self determination was perceived as an inherent divine right which did not need the sanction of international law. Woodrow Wilson’s fourteen points and the League of Nations recognized its nationalist character and its decisive role in establishing the borders of the emerging nation-states following the First World War. It became the justification for the existence of states.

The agreements which followed the Peace Treaty of Versailles in 1919 sought to establish states which were coterminous with nations. Despite great pains to establish homogeneous nation-states through extensive voluntary and compulsory population exchanges, however, none of the states established completely coincided with patterns of ethnic composition. In fact, according to statistical information1, at the time East Central Europe had a total population of 112,792,000 of which 31,926,000 were outside the borders of the state in which their respective ethnic or religious groups were dominant. Thus, national self determination did not apply to all states and, more importantly, it had the potential of becoming a justification for future fragmentation. In order to curtail the future possibility of irredentist claims, the international community sought to protect these populations by identifying them as minorities and by drafting treaties for their protection.

All the peace treaties signed between the Entente Powers and the Central Powers included provisions for the protection of ethnic, religious, and linguistic minorities. The international legal precedents for the protection of minorities were extensive. Consequently, the protection of minorities was regarded by the ruling elites of the leading powers neither as some kind of novelty, nor as something that would in any way restrict the sovereignty of the new states that were being formed. Although the governments in the newly established states signed and ratified the treaties of obligations to minority rights, however, they remained apprehensive about the existence of minority groups within their state borders which could give rise to irredentist feelings and subsequent calls for self determination.

The imminent threat of secession as a result of calls for self determination led to the reluctance of peace treaty signatories to observe the articles protecting minority rights. The failure of the League of Nations to enforce these treaties, especially following Poland’s renunciation of the Minority Treaty in 1934 and Germany’s overt challenges, led to the realization that the nationalist character of self determination was leading to conflict and fragmentation.

Despite the influential role self determination continued to play in shaping political and legal precedents, it was still very rarely addressed explicitly by international law. In fact, in the Aaland Islands case2 “it was clearly accepted by both the International Commission of Jurists and the Committee of Rapporteurs that the principle of self determination was not a legal rule of international law, but purely a political concept.”

In 1945, for the first time, the United Nations Charter made reference to the idea of self determination in Article 1 and Article 55 defining it as a principle on which friendly relations among nations can be based. The United Nations definition and the post-1945 international law regime gave self determination a democratic character-a significant departure from its pre-1939 nationalist definition. This is especially evident in the passage of the General Assembly’s Resolution 1514 (XV) which claimed that “all people have the right to self determination [and] by virtue of that right they freely determine their political status and fully pursue their economic, social and cultural development.” Within this context, the principle of democratic self determination was applied only to cases of colonial territories or to non self-governing territories, such as Namibia and Western Sahara. This specific limitation attests to the international community’s conscious effort not to undermine the inviolability and sovereignty of the state -as the foundation of international law.

In 1966 the General Assembly’s adaptation of the International Covenant on Human Rights further defined the principle of self determination within a democratic context. In 1970, the United Nations Declaration of Principles of International Law Concerning Friendly Relations Among States also established that “all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every state has the duty to respect this right in accordance with the provisions of this charter.”

In the early 1970s, detente initiated a process which had been proposed by the Soviet bloc since 1954. In August of 1975, the Helsinki Final Act was signed which, although it was not a binding treaty, had a profound effect on the relations among European states. With its very first article, the Helsinki Accord recognized and reaffirmed the territorial integrity of states and the inviolability of state borders. The participants3 in the Helsinki process were very reluctant to expand the right to self determination in a way that would question the territorial integrity of an existing state. The non-binding resolution of the General Assembly 1541 specified that “a territory would be considered ‘non self-governing’ under Chapter XI of the UN Charter only if it were both ‘geographically separate’ and ‘distinct’ ethnically and/or culturally from the country administering it” (Halperin, p.22). The inclusion of geographic and ethnic/cultural criteria to establish the applicability of the right of self determination became known as salt-water colonialism.

In the post colonial period, the application of the principle of self determination was marked by its possible incompatibility with the concept of territorial integrity. This was especially true within the framework of international law where the recognition of legal entities was limited to states, the protection of which is the law’s fundamental responsibility. The Helsinki Accords and the Declaration of Friendly Relations attempted to address the possible conflict by emphasizing the preservation of territorial integrity and stating that “the affirmation of self determination should not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign independent States”(Halperin, p.23), A similar argument for the limitation of the concept of self determination was made by Sir Gerald Fitzmaurice, a retired judge of the International Court, when writing in 1973 he argued that the legal right of self determination is nonsense since “how can an as yet judicially non-existent entity be the possessor of a legal right?” (Halperin, p.303)

While protecting the inviolability of state borders, the Helsinki Final Act of 1975 began to redefine the concept of self determination beyond the colonial context of the previous decades. It adopted the phraseology of the United Nations Declaration of Principles of International Law Concerning Friendly Relations of 1970. The right of self determination extended to all people as a right to determine their political future (Article 1 of the Helsinki Final Act). Although this could be misinterpreted, the advisory decision by the International Court of Justice on the Western Sahara Case in 1975 maintained that the right to self determination had been accepted as a “right” of peoples in non self-governing territories. The inclusion of this ambiguous term within the articles of the Helsinki Final Act could also be interpreted as a method to undermine the authority of the Eastern European states.

The integrity and sovereignty of states was further questioned by the inclusion of the “Third Basket” which included various provisions for the protection of Human Rights. This was another way to weaken the authoritarian regimes of Eastern Europe. In a unanimous decision, the participating members of the conference recognized that the protection of human rights constitutes an essential part of European security. This decision made it possible for one sovereign state to question and protect the rights of another sovereign state. This connection between human rights and self determination is a connection which has surfaced repeatedly in the last one hundred and fifty years.

The international community has always been concerned with the protection of the rights of minority populations. The protection of minorities has an equally long history in the Balkans since both the Eastern Roman and the Ottoman Empires were multi-ethnic states. In fact, the millet system which was the administrative system of the Ottoman Sultans was based on religious criteria, so as to allow the different religious groups to enjoy a certain level of autonomy.

In more recent history, treaties which were signed in the eighteenth and nineteenth centuries also had provisions for the protection of religious minorities. The treaties of Kutchuk Kainardji in 1774 and Adrianople in 1829, for example, gave Russia the right to represent the Christian subjects of the Ottoman empire. Similarly, as newly established states began to emerge in the Balkan peninsula the treaties which recognized their existence made provisions for the protection of minorities left in the ceded territories.

The nineteenth century was a turning point for the recognition of minority rights within the emerging nationalistic environment. The Congress of Vienna in 1815 and specifically the articles signed concerning the division of Poland dealt with the protection of the rights not of a religious minority, but rather an ethnic one. The recognition of the existence of distinct groups of people under foreign administration became the justification for irredentist tendencies and invoked calls for national self determination. This became increasingly evident as populations within the European empires began acquiring a national consciousness which differed from that of the ruling class. Conflicts among the nascent Christian Balkan states and the Ottoman Empire prior to World War I, for example, were justified under the argument that the respective states were protecting the rights of fellow nationals who were deprived of their right to self determination since they were under the administrative authority of a different national group. The First Balkan War was viewed in the European capitals as a war of Christian liberation of the Balkans and not as a belligerent act by one state against another as had been outlined by the Hague Conferences of 1899 and 1907.

Following World War I the attempt to partition Europe along coterminous nation-state structures was based not on established international law, but rather on the nineteenth century principle of self determination. As was pointed out earlier, however, despite the extensive voluntary and compulsory exchanges of populations which took place throughout Eastern Europe, none of the states established were uniform in terms of ethnic composition. In recognition of their obligation to protect minority rights, the European states under the guaranty of the newly formed League of Nations signed a series of treaties to protect the rights of minorities. In the inter-war period the notions of minority rights and self determination ceased to be regarded favorably by most established Eastern European states. The nations which had previously used the principle of self determination as justification for the acquisition of statehood, now perceived minority rights and self determination detrimental to their existence. Yet, they were obliged by the League of Nations to protect the collective rights of “persons belonging to racial, religious or linguistic minorities given the same treatment and the same civil and political rights and security as other nationals in the state in question” (Shaw, p.193).

Despite the assurances by the League of Nations and the ratification of these treaties by the signatory states, their enforcement became extremely difficult. Most states perceived these obligations as an infringement on their state sovereignty and contrary to their national interests. Even for the groups identified as minorities, the minorities’ regime established by the League was “denying their right to sovereign equality, stamping them as second-class citizens of the international community” (Thornberry, p.47). By 1934 and following the unchallenged Polish denunciation of the Minority Treaty the minorities system was floundering. According to Robinson, a jurist of the Permanent Court of International Justice, the states which had signed minority treaties could be categorized into three groups: “liberal” including Austria, Czechoslovakia, Hungary and the Baltic states; “less generous” including Yugoslavia, Bulgaria, Greece and Romania; and “peripheral” including Turkey, Iraq and Albania, which completely neglected the rights of minorities. By the end of the 1930s, the rights of minorities had been completely rejected by the rise of authoritarian and totalitarian regimes throughout Eastern Europe.

At the end of World War II, the international community sought to establish a system dealing with the rights of minorities in ways which would not repeat the inter-war scenario. Even during the war, within the framework of the North Atlantic Charter, minority rights were replaced by human rights. The shift from collective rights to individual rights was a significant attempt by the international community to safeguard the territorial integrity and sovereignty of states and to protect the rights of individuals in a way that would not weaken state structures. The United Nations Charter which was drawn up in San Francisco in 1945, explicitly rejected the concept of minority rights in favor of human rights. On December 10, 1948 the Universal Declaration of Human Rights departed even further from the notion of minority rights as collective rights. From a legal standpoint it should be noted that although there were no dissensions, the

Universal Declaration of Human Rights was a “preamble” not a binding document. It was not until the International Covenant on Civil and Political Rights in December of 1966 and the Proclamation of Tehran in 1968 that respect for human rights as prescribed in the United Nations Declarations constituted “an obligation for members of the international community” (Weston, Falk, D’Amato p.691).

By the early 1970s the gradual shift from minority rights to human rights had been completed and, although not binding, it had arguably become Common Law. The only provisions which remained within the framework of international law dealing with minority rights were selective references made in treaties following World War II4 and the incorporation of Article 27 of the United Nations Covenant on Civil and Political Rights. Article 27 which was a response to General Assembly Resolution 217c(III), clearly defines minorities as groups which have distinct religious, linguistic, and ethnic characteristics that should be protected by the State. Article 27 also points out, however, that “such rights may not be interpreted as entitling any group settled in the territory of a state to form communities which might impair its national unity or its security” (Thornberry, p.150). By the time of the Helsinki Final Act the relationship between the notions of self determination and minority rights was clearly different than it had been in the inter-war period. Both concepts had been eliminated from the jargon of international law, having been replaced by universal definitions which would be less likely to upset the integrity of the state-centric system.

AS A PROCESS, the Conference for Security and Cooperation in Europe (CSCE) was merely an extension of the Helsinki Final Act. The CSCE’s creation had been proposed by the Soviet Union since the mid-1950s as a way to validate existing borders and legitimize its control over Eastern Europe. In the era of detente, the Helsinki Process became a pawn that both sides of the bipolar world community were trying to use in order to promote their political and ideological agendas. For the Western states the Helsinki Final Act and the CSCE process was an attempt to commit the Soviet Union and the Soviet Bloc to a series of interdependent human rights obligations in a way that would internally undermine them. For the Soviet Union, signature of a treaty which guaranteed the territorial integrity of the existing European states provided legitimacy for its presence in Eastern Europe. Despite its political undercurrents, however, the Helsinki Final Act guaranteed the inviolability of state borders, outlined binding articles for the protection on human rights, and promoted a notion of self determination which has a “democratic” and not a “nationalist” character.

The resulting CSCE Process which evolved from the 1975 Final Act followed cold war norms: it was a political process and not a legally binding treaty. Its political nature allowed it to exist within the Cold War environment and to eventually influence the international system.

The Process was composed of a series of meetings that took place over a little more than decade. The first of these, the Belgrade Meeting (1977 -1978) was deemed a failure since most of its participants used it as an opportunity to criticize each other. The follow-up meeting in Madrid (1980 -1983) went back to the Helsinki text and was able to reach agreement on the initiation of disarmament talks in Stockholm. The 1986 meeting in Stockholm saw the adoption of a series of compulsory confidence building measures that supplemented those approved in Helsinki. The spirit of cooperation that prevailed in Stockholm was very much influenced by the emergence of Gorbachev as the leader of the Soviet Union. Its success carried through to the Vienna Meeting of 1986-1989, where proposals that had been made in Madrid and Stockholm were included in a Final Text which went beyond the Helsinki Final Act.

Following the successful Vienna Meetings and the collapse of the Berlin Wall, the CSCE was perceived as a significant contributor to the defeat of the “socialist” bloc. In a meeting in Copenhagen in June 1990, freed from its political limitations, the CSCE gathering attempted to create a new constitution for Europe - “a new Magna Carta and Charter for the New Europe “ (Korey, William p.120). This became the foundation for the Paris Meeting of November 1990, which has been compared by analysts to the Yalta Conference of 1945 because of the extent of its implications.

In the euphoria of charting a new course for Europe, the Copenhagen and Paris Meetings re-introduced the concept of collective minority rights. The first article of the Final Text emphasized the right of all peoples to self determination just as the Helsinki Final Act had. It should be noted, however, that the principle of self determination as stated by the text of 1975 was within the framework of universal individual human rights as they were defined by Article 27. In the text that emerged from the Copenhagen and Paris meetings, minority rights were not considered vis-a-vis human rights, nor were questions dealing with self determination of minorities considered. The conclusions of the Paris meeting did not consider the ethnological diversity of Eastern Europe which had caused the conflict and strife which were characteristic of the area in the early part of this century. Whereas these ethnic animosities had been controlled under the authoritarian rule of the post-World War II regimes, the increased ethnic tension and conflict in eastern Europe since 1990 are indicative of the strong vestiges of pre-1939 politics.

In this environment, the changing definitions of minority rights and self determination could have a disastrous effect. The precedent established by the United Nations Charter and the Helsinki Final Act regarding the inviolability of state borders is already being weakened by the crisis in the former Yugoslavia and the nature of the international community’s response. Increasing calls for self determination on the basis of national identification are spreading throughout the region regardless of existing borders.

The changing definitions of self determination and minority rights will probably have global consequences. The Balkans will be especially susceptible because within the borders of each of the region’s established nation-states there are populations which do not share a linguistic, religious, or ethnic affiliation with the dominant group. These populations were either established by treaties or left behind as borders changed in the earlier part of this century. The United Nations Charter of 1945 and its provisions for the protection of individual human rights afforded them populations the protection of the state regardless of their differences. It would seem, therefore, that these populations were guaranteed protection and equal treatment within the confines of international law. In reality, however, most governments continued to view them as an adversarial minority. As such, state administrations tried to assimilate these groups by eradicating their distinctiveness or eliminating them altogether, either by expulsion or non-recognition. This approach has had a detrimental effect on organized state structures since these populations have chosen to see themselves as an oppressed group with a different consciousness from the dominant group.

With all the political changes that have taken place since 1990 and the instability that characterizes the world community, these groups are now seizing the opportunity to proclaim their right to determine their own political, economic, and social future. In many instances, these movements are supported by neighboring states which are attempting to advance irredentist claims. In that sense, these oppressed population groups are being used to advance changes in existing borders in a politically-motivated game. It is ironic that in many instances the state which claims a minority as its ethnic brethren has contributed through its policies to the misery of the minority. It is equally incongruous that most of these governments which claim their fellow nationals are being oppressed do not really observe democratic standards within their own borders. Proclamations for autonomy in Kossovo, Vojvodina and other parts of the Balkan peninsula could have a domino effect which would spread beyond the southern Balkans.

1. Galantai, Jozsef. Trianon and the Protection of Minorities. Columbia University Press, 1992.
2. Halperin, Morton H. self determination in The New World Order. The Carnegie Endowment for Peace, 1992.
3. Henkin, Louis, Pugh, Richard Crawford, Schachter and Hans Smit. International Law: Cases and Materials. West Publishing Company, 1993.
4. Human Rights Watch World Report 1994: Events of 1993. New York, December 1993.
5. Korey, William. “Minority Rights After Helsinki.” Ethics & International Affairs. Carnegie Council on Ethics and International Affairs, Volume 8, 1994.
6. Shaw, M.N. International Law. Grotius Publications Limited, Cambridge, 1991.
7. Thornberry, Patrick. International Law and the Rights of Minorities. Oxford University Press, Oxford, England, 1991.
8. Weston, Burns H., Falk, Richard A. and Anthony D’Amato. International Law and World Order: A Problem - Oriented Coursebook. West Publishing Company, 1990.

1. The statistical information was published in Oscar Janowsky’s Nationalities and National Minorities with Special Reference to East Central Europe (New York, 1945), adapted by (Galantai pp. 14-17)
2. The Aaland question dealt with the Swedish population of an island claimed by Finland. The League of Nations recognized Finnish sovereignty of the island and granted minority rights to the Swedish population.
3. All Western Europe except Albania, but including the United States and Canada.
4. Austria and Italy (of 1947) with respect to the German speaking minority South Tyrol (the Italian provinces of Bolzano and Trento). There are stipulations for the protection of the Slovene and Croat minorities in Article 7 of the 1955 State Treaty for the Re-establishment of an independent and Democratic Austria. Reference also ought to be made to Article A of the 1950 New Delhi Agreement between India and Pakistan (Weston, Falk, D’Amato, page 690).