A Case Study on Trianon

Part V

Sixty Years After

Frank Koszorus, Jr.

Perhaps the most significant legacy of the League of Nations was the protection extended to members of "racial, linguistic and religious" minorities. After reaching that milestone, international concern for the protection of minorities diminished almost to the point of non-existence. Following the demise of the League and at the conclusion of the Second World War, the emphasis shifted from minority protection to the promotion of individual human rights. One commentator wryly observed that it appeared as if "there were fashions in international law just as in neckties" with the fashion of minority protection having been replaced so that "today the well-dressed international lawyer wears 'human rights'."¹

Conventional wisdom was that the securing of fundamental human rights would make the protecting of minorities' interests superfluous. The standards for the respect of individual human rights, however, have proven to be insufficient to address the unique and complex difficulties faced by minorities. Indeed, the international community is no longer altogether ignoring minority issues. Rather than being a taboo subject, minority protection slowly is resurfacing as a topic of discussion among international lawyers, experts, and even to a limited extent within international organizations.²

Although the League of Nations Minority System significantly advanced the concept of minority protection, it had ample precedent to draw upon and, in that sense, represented the apex of what had been an evolving process. For example, the rights of aliens, which is related to group rights, extends back to antiquity.³ Moreover, among the first direct attempts at minority protection were measures to safeguard religious minorities. These first appeared in the 13^th century and grew in importance as a result of the Reformation. By way of example, we might mention the Peace of Augsburg, 1555, the

Pact of Warsaw, 1573, and the Edict of Nantes, 1598.⁴ As early as the 17th and 18th centuries, bilateral treaties contained provisions concerning religious minorities. The Treaty of Vienna of 1606 was one of these which guaranteed the right of the Hungarian Protestant minority to exercise its religion in Royal Hungary. By the 19th century, minority protections, including civil and political rights, were enshrined in multilateral treaties and extended to groups other than religious minorities. For instance, the Final Act of the Congress of Vienna was among the first international instruments to embrace national minorities.⁵

The scheme of international protection of minorities in that era was not very satisfactory. Politically motivated powers arbitrarily and unilaterally intervened in the internal affairs of weaker states. Moreover, the scheme lacked the machinery to ensure that minorities would not be maltreated and that they would have the opportunity to communicate their grievances to the "interested" powers.⁶

The 20th century ushered in a new era of minority protection. The League of Nations System for the protection of minorities emerged as a result of the drastic redrawing of frontiers after the First World War, when new states were created or old ones enlarged. In revising the borders, however, the Peace Conference failed fully to apply the principle of national self-determination. Although the Conference reduced the number of minorities, it nevertheless did not solve the nationalities problem, as evidenced by the approximately 30 million individuals who were left or transformed into minorities.⁷ For instance, over 3 million Hungarians found themselves under foreign rule as a result of the Treaty of Trianon which drew Hungary's boundary so as to allow the Successor States "to extend their frontiers well beyond the line warranted by ethnography, to meet their economic and, above all, their strategic conveniences."⁸

Even if the framers of the peace treaties would have intended to implement the principle of self-determination, minority problems would still have survived because of the patchwork-quilt pattern of ethnic distribution throughout East-Central Europe. Among the congenital weaknesses of the Paris Peace Conference, therefore, was the application of the theory of the nation state to an area that was not prepared to adapt it because of the national, ethnic, linguistic and religious heterogeneity of the region. Indeed,

[e]xtreme national pride and intolerance did not subside after the establishment of the new nation-states. In fact, rather than settling passions heightened by the Great War, the flaming heat of personal nationalism did not cool with the achievement of political independence; national homogeneity became the ideal rather than national tolerance; the equitable treatment of minorities by the governments of the national states could not be expected; in fact, minorities constituted anomalies and blemishes to be eliminated.⁹

This already volatile situation was further exacerbated by the natural reluctance of the minorities to cooperate with the new states to which they were assigned, and by the revisionist policies of states which viewed the minorities as tools to be used to further their own policies.¹⁰ The potential for international instability, including the threat to the minority states, stemming from the unsolved or newly created minority situations, was recognized by several peacemakers, including Woodrow Wilson who stated on May 31, 1919, at the Peace Conference that,

Nothing ... is more likely to disturb the peace of the world than the treatment which might in certain circumstances be meted out to the minorities.¹¹

It was obvious that tranquillity could be assured only if some form of international protection of minorities was erected.

Supporting the official effort to establish a minority protection regime were a number of private organizations. Among them the Jewish organizations were very active and had an impact on the formulation of the evolving system. For instance, the American delegation, including Woodrow Wilson, gave serious consideration to the memorandum of the Committee of Jewish Delegations of May 10, 1919.¹²

While the affected minorities were relatively inactive, the newly created or enlarged states which were to be bound by the minority treaties were opposed to the establishment of a minorities regime. Poland, Romania and Yugoslavia proved to be the most vehement opponents while Czechoslovakia, Bulgaria, and Austria were far less outspoken clearly because of the protection which was to be extended to their co-nationals outside of their borders.¹³ In the case of

Hungary, which was left with few minorities but which lost a large number of its co-nationals to the successor states, outright support for the System was reflected by the note of its delegation to the Peace Conference dated February 12, 1920:

The guarantee concerning the protection of Hungarian minorities entrusted to the League of Nations constitutes for us the most important part of the treaty about to be concluded, and only our trust in the effective realization of this guarantee can make us sign the Treaty of Peace.¹⁴

As far as the League's Minority System is concerned, it did not establish general principles of international law but rather consisted of treaty and other obligations which only bound a few small states and which were placed under the guarantee of the League. There were five Minorities Treaties concluded between the Allied and Associated Powers and the following new or enlarged states: Poland, Czechoslovakia, Romania, the Serb-Croat-Slovene State, and Greece.¹⁵ Reciprocity dictated that similar minority protection clauses be included in the Peace Treaties Concluded with four of the defeated states: Austria, Bulgaria, Hungary, and Turkey.¹⁶ Several other states made unilateral declarations, assuming similar obligations upon being admitted to the League of Nations: Albania on October 2, 1921; Lithuania on May 12, 1922 (including the application of the declaration to the Territory of the Memel which was placed under Lithuanian sovereignty as an autonomous region by the Convention of May 8, 1924, between the Allied and Associated Powers and Lithuania); Latvia on July 7, 1923; Estonia on September 7, 1923, and Iraq on May 30, 1932.¹⁷ Finally, the System applied to special situations such as the Aaland Islands pursuant to the declaration by Finland to the League on June 27, 1921, and the German-Polish Geneva Convention concerning Upper Silesia of May 15, 1922.¹⁸ The System thus initiated by the peacemakers "created a large and continuous Eurasian region stretching from the Aaland Islands down to Iraq, in which the Bill of Rights, being also a common code of protection of minorities ... came into being."¹⁹

In the first instance, substantive provisions common to the instruments forming the System first guaranteed rights applicable to all residents, namely, the protection of life, liberty and the free exercise of religion. They also included stipulations concerning the acquisition

of nationality. All nationals were further granted the right of equality before the law and equality of civil and political rights; the right to be free from discrimination in public employment, functions, honors or in the exercise of professions and industries irrespective of the individual's race, language or religion; and the right to use any language in private intercourse, at public meetings or before the courts, in religion, in commerce and in the press and publications.

Particularly significant from a minority protection viewpoint were the rights extended to the racial, religious and linguistic minorities, meaning national minorities. They were granted the right to establish at their own expense charitable, religious, social and educational institutions and the right to use their mother tongue and exercise their religion therein.

Moreover, in those towns or districts where a substantial number of minority nationals resided, the state was to provide adequate facilities to ensure that instruction at the primary school level was to be available in the language of the minority. In such areas, public funds were to be equitably apportioned for educational, religious or charitable institutions of the minority. Finally, special provisions were tailored for local conditions, such as Article 11 of the Romanian treaty which provided for the educational and religious autonomy of the Saxons and Szekelys (Szeklers) of Transylvania.

The substantive rights enshrined in the minorities' treaties were intended to achieve two objectives. First, the treaties established negative equality of all individuals, namely the right to be free from discrimination on the basis of race, language or religion. Second, members of racial, linguistic and religious minorities were also assured positive equality, namely, the minimum conditions necessary for them to preserve and foster their unique characteristics, language, religion and historical traditions. In the words of the Permanent Court of International Justice:

The idea underlying the treaties for the protection of minorities is to secure for certain elements incorporated in a state, the population of which differs from them in race, language or religion, the possibility of living peaceably along side that population and cooperating amicably with it, while at the same time preserving the characteristics which distinguish them from the majority, and satisfying the ensuing special needs,²⁰

Thus, the basic purpose of the League of Nations Minorities System (and of any system for minorities protection) was to establish an equality between the respective majorities and minorities by permitting the latter to maintain and develop their unique characteristics, and at the same time to assure their freedom from discrimination based on their race, language or religion.

The question raised in connection with the Minorities System was whether it applied to individuals or only to groups. The answer is not perfectly clear. The rights conferred on minorities were certainly in the nature of collective rights, "for no individual is capable of establishing, managing and controlling a fully fledged school by himself and for himself."²¹ The System, nevertheless, exhibited an individual bias in that Article 12 of the Polish Treaty-the other minority treaties were patterned after the Polish Treaty-refers to "persons belonging to racial, religious or linguistic minorities"; moreover, states feared that a recognition of minorities as collective entities would derogate their sovereignty.²²

It is also important to note that while the League System sought to safeguard the rights of minorities, its underlying purpose was political. The peacemakers sought to ensure lasting peace by avoiding "... the many interstate frictions and conflicts which had occurred in the past, as a result of the frequent ill-treatment or oppression of national minorities."²³ By promoting amicable relations between majorities and minorities, the peacemakers intended to minimize such interstate tensions and thereby safeguard peace.²⁴

The League System, contrary to previous minority regimes, internationalized the rights afforded minorities by virtue of the League's role as guarantor of those rights. By establishing the collective guarantee of an impartial international organization, the weaknesses of earlier regimes, i.e., unilateral intervention by specially interested states, were eliminated.²⁵ The international guarantee derived from Article 12 of the model Polish Treaty, commonly known as the guarantee clause, which stated, in part:

Poland agrees that the stipulation in the Foregoing Articles, so far as they affect persons belonging to racial, religious or linguistic minorities, constitute obligations of international concern and shall be placed under the guarantee of the League of Nations.

Poland agrees that any Member of the Council of the League of Nations shall have the right to bring to the attention of the Council any infraction of any of these obligations, and that the Council may thereupon take such action and give such direction as it may deem proper and effective in the circumstances.

Poland further agrees that any difference of opinion as to questions of law or fact arising out of these Articles between the Polish Government and any one of the Principal Allied and Associated Powers or any other power, a Member of the Council of the League of Nations, shall be held to be a dispute of an international character under Article 14 of the Covenant of the League of Nations (i.e., a dispute that could be heard and decided by the Permanent Court of International Justice). The Polish Government hereby consents that any such dispute shall, if the other party thereto demands, be referred to the Permanent Court of International Justice.

In addition to placing the substantive provisions of the minorities treaties under the guarantee of the League, the guarantee clause also enumerated the rudimentary procedures to be followed by the organization. By enumerating those procedures, rather than leaving the task of promulgating them to the Council, the guarantee clause initially almost paralyzed the League. Since the responsibility of bringing treaty violations to the attention of the Council devolved on the members of that body, members were thus assigned the difficult task of individually and directly challenging the policies of the minority states. But if this were done, either considerable ill will would have been generated between members and the accused states, or, as would have most likely occurred, members would have refrained from bringing violations to the attention of the Council.²⁶ The Council quickly remedied this potentially debilitating effect by creating the Minorities Committees in 1920, which "collectivized" the minorities procedure and removed from individual members the onus of being accusers. The report guaranteed that minority issues would be addressed by the League. For this reason, the states bound by the treaty provisions unsuccessfully but strenuously insisted on the "purity of the guarantee clause."²⁷

The Council continued to develop the requisite procedures through 1929.²⁸ These procedures, as finally refined, were triggered by the stated right of any person to submit a petition, which functioned solely as a source of information of minority rights violations.

However, the Council was so adamant on not giving its review the appearance of a judicial proceeding that the petitioners were not only deprived of any rights or standing in the proceeding, but, until 1929, were not even informed of the disposition of their petitions.²⁹ Eventually, by its resolution of June 13, 1929, the Council decided that petitioners should be informed if their petitions were deemed non-receivable. This failure to notify petitioners about the status of their petitions, except for acknowledgment of receipt, was among the most controversial features of the procedures, particularly before 1929. The criticism was fueled by the discovery that the government concerned was afforded an opportunity to challenge a determination that a petition was receivable.³⁰

The petition's receivability was determined by the Minorities Section of the Secretariat.³¹ If deemed receivable and if the state in question did not successfully challenge the Minorities Section's determination, the petition was transmitted to the state in question for comment. The petition and the comments by the state, if any, were then transmitted to the Members of the Council and to the Committee of Three (also known as the Minorities Committee), consisting of the President of the Council and two or three other members. The Committee would examine the petition and would either reject it, attempt to resolve the matter by entering into informal negotiations with the state, or decide that the matter should be placed on the Council's agenda.³²

If the petition was not rejected, the Committee's policy was to engage in friendly negotiations with the state concerned.³³ This practice came under criticism by not only the minorities and their champion states, but also by objective and neutral observers.³⁴ Distrust regarding such negotiations was exacerbated by the Committee's tendency to accept any agreement on the issues presented.³⁵ The expediency of negotiations was reinforced, however, by the lack of resolve on the part of the Great Powers to insist on the full implementation of the minority treaties. France was less than committed to minority questions because of its relationship with the Little Entente and Poland; Italy was muted because of its large German minority; and Britain, despite genuine efforts, was ineffective.³⁶

Such negotiations were not altogether fruitless, however, particularly when the concerned state sought to avoid the publicity attendant on the matter being considered by the Council. Under these circumstances it would agree to concessions,³⁷ as did Romania in the

matter of Hungarian education in Transylvania, when it modified certain objectionable provisions of a draft law concerning private education.³⁸

If the concerned state refused to compromise, the Council could be seized of the matter. Theoretically, the guarantee clause empowered the Council to take any action "it may deem proper and effective." In practice, the Council was governed by its normal procedures, including the rule of unanimity, which severely circumscribed its purported unlimited discretion. The effect of the rule of unanimity required that the state in question participate in the Council's deliberations and concur in its decisions.³⁹ This rule was the greatest weakness in the League's procedures in general, and as it related to minority questions. It nevertheless reflected reality, since the absence of effective sanctions left no alternative to seeking the concerned state's cooperation, with or without the rule.⁴⁰

The proceedings before the Council actually consisted of two stages. The first stage was investigatory whereby the Council was appraised of all relevant documents and facts. Settlement was still possible if the state adopted a flexible posture, as did Romania in the Hungarian farmers' case in 1925, when it assured the Council that it would "suspend all measures which might affect the status quo, as regards the holdings of these farmers" until the Council had formed an opinion on the matter.⁴¹ An indication from the Council that it would interpret the case in favor of the minority in question also promoted settlement. Since compromising at this stage was not equivalent to an admission of wrongdoing (because issues of law would not have been formally determined), the concerned state could still avoid the adverse publicity surrounding formal action by the Council.⁴²

If the matter was not remedied at the investigation stage, the Council would proceed to form an opinion and attempt to persuade the state in question to abide by the terms of the applicable treaty.⁴³ Thus, the Council, as the Minorities Committees, could be compelled to negotiate only by oral pressure and publicity, and skillful negotiations would result in a solution acceptable to the state concerned.⁴⁴ In other words, the League's success in blunting minority tensions depended on its commitment, prestige and diplomatic acumen.

The Council in rare instances supervised the implementation of the agreement reached between it and the state concerned. One such instance involved the Hungarian farmers' case in which Romania

agreed to pay additional compensation to dispossessed farmers.⁴⁵ Post-settlement negotiations were undertaken to ensure the equitable distribution of the 700,000 gold francs to the farmers. Subsequently, the Rapporteur advised the Council of the proposed arrangements whereby the "promised sum had been placed at the disposal" of the farmers,⁴⁶ and the Council continued to monitor the matter until a final accounting two years later.⁴⁷

The judicial element of the League System was as significant to the elevation of the concept of minority protection as was the guarantee of the League. By the terms of the minority treaties "difference[s] of opinion as to questions of law or fact" concerning the minority treaty provisions were to be referred to the Permanent Court of International Justice if any Principal Allied or Associated Power or any other power sitting on the Council so requested. This procedure, however, was rarely invoked. Another judicial procedure available to the Council was to seek an advisory opinion from the Permanent Court of International Justice on matters relating to minorities' issues. Although there were few such requests, the advisory opinions rendered by the Court played an important role in defining what was meant by "minorities," in delimiting the scope and nature of their rights, and in persuading obligated states to adopt a more conciliatory attitude, if not to abide by the terms of the treaties. The Council could also enlist the aid of a Committee of Jurists before turning to the Court, as it did in the Szekely (Szekler) case.⁴⁸ That case involved a petition alleging that certain Romanian agrarian laws discriminatorily expropriated without compensation the property of the descendants of the former Szekely Frontier Guards, while they exempted the property of the descendants of two Romanian frontier regiments from similar treatment.

Despite the conceptual advances made by the League System regarding international protection of minorities, the System itself was doomed to failure. The success or failure of the Minorities System was linked to the post-war European order and the prestige of the League. As that order and organization crumbled so did the protection of minorities. The peacemakers were to learn that it was "easier to destroy the Dual Monarchy [old order] than to improve the conditions of Man in Central Europe."⁴⁹

Factors specifically related to the League's Minority System, other than the procedural deficiencies mentioned above, also proved to be damaging and ultimately fatal to the System. Among its primary

weaknesses was the limited scope of the obligations. Instead of establishing general norms of international law, the System's purview was restricted to a few small states which resented their seemingly second-class status. This perception was aggravated by the System's exclusion of other states with minority populations, such as Italy, which had embarked on a campaign to denationalize its Austrian and Yugoslav minorities. Even more infuriating to the obligated states was the exclusion of defeated Germany. The ensuing exasperation was reflected by Eduard Benes, who condemned the inconsistency of having Czechoslovakia internationally bound "while supervision is exercised by states in which the minority problem. though acute, goes unregulated."⁵⁰

As important as the issue of generalization may have been from an international legal perspective, its proponents nevertheless overlooked the origin of the scheme devised by the peacemakers. The Minority System was directly related to the drastic territorial settlements following the War. President Wilson concisely articulated the justification for a minority protection scheme when on May 31, 1919, he responded to Romania's objections by stating,

But I beg him (Bratianu) to observe that he is overlooking the fact that he is asking for the sanction of the Allied and Associated Powers for great additions of territory ... and that, therefore, we are entitled to say: 'if we agree to these additions of territory we have a right to insist upon certain guarantees of peace.'⁵¹

Although the obligated states could have seized the opportunity genuinely to strive to broaden the new international law, their aim was quite the opposite. Their attitude was anything but cooperative and, in fact, the demand for generalization "was nothing more than a code word for outright cancellation of the minorities provisions. "⁵² This hostility characterized their attitude toward the minorities and the Minorities System and, indeed, the obligated states undermined the System whenever possible. With this goal in mind, they insisted on a strict interpretation of the guarantee clause; used delaying tactics at every stage of a proceeding, which rendered the League's procedures ineffective; prohibited the minorities to invoke the provisions of the treaties in domestic legal proceedings; and judicially did not accept the supremacy of the treaties in their courts.⁵³

Equally disruptive of the System was the tendency by the obligated states to equate petitions from minorities with disloyalty. The resulting fear of reprisals inhibited members of minorities from fully exercising their right to bring their grievances to the League's attention, as specifically guaranteed by the System.⁵⁴ The continuous effort to vitiate the Minorities System culminated in Poland's virtually unopposed and unilateral repudiation in 1934 when Colonel Beck stated:

Pending the introduction of a general and uniform system for the protection of minorities, my government is compelled to refuse, as from today, all cooperation with the international organization in the matter of the supervision of the application by Poland of the system of minority protection.⁵⁵

This hostility was not justified considering the less than far reaching, yet necessary, provisions of the System. Even Professor R. W. Seton-Watson, who was far from unfriendly towards the minority states, noted in connection with the Romanian treaty that "only those who are willfully blind or have assimilationist aims can deny that the treaty contains nothing which runs counter to the paramount interests of state unity and all that is essential for a just settlement of this vexed question."⁵⁶

The minorities also shared in the responsibility for the decline of the System. Instead of adopting a cooperative attitude, some of them agitated conspiratorially with their kindred states against their new states. Orderly political processes were thereby made even more difficult. In addition, many were bitter toward the League and the international order which had transformed them into minorities, often in contradiction to the proclaimed principle of national self-determination. Their bitterness often was reinforced by "their fate [which had] almost everywhere been unfortunate-much more unfortunate, as a general rule, in the new states and transferred territories than in the old states,"⁵⁷ and by the League's failure to give them a full, speedy and impartial hearing and the absence of satisfactory remedies,

Some of the Hungarian minorities never fully acquiesced in their new status as minorities under what they considered to be foreign rule, particularly in those transferred territories which were predominantly Hungarian and a homogeneous continuation of ethnic

Hungary. Although genuinely tolerant policies by the new and enlarged states would have contributed to reconciling such minorities, the treatment meted out to some of them exacerbated their already restive attitude. It was just a matter of time before they embraced irredentism.

Even more fatal to the League System was that certain minorities readily became pawns in Hitler's aggressive designs. As Germany regained its strength, it donned the mantle of the champion of minorities. It soon became apparent, however, that Germany was "using the ideology and the instrumentalities of 'Minderheitenschutz' to undermine and finally blast to pieces the European and international status quo."⁵⁸

A Case Study on Trianon