Monthly Archives: January 2018

Minority Protection and the Foundations of Human Rights

León Castellanos-Jankiewicz (Law Max Weber Fellow)

22 January 2018, 17:00-19:00, Seminar Room 3, Badia Fiesolana

This work builds on the idea that human rights originate from group protection standards developed after the Great War. A close reading of minority protection instruments and the League of Nations practice suggests that the 1919 peace midwifed contemporary human rights. Most accounts highlight the break between the League and the United Nations in the wake of war, neglecting the experiences of the past. Our thesis bridges the discourse by arguing that human rights are consecutive to minority rights in substance. It also advances that the employment of equality as a legal standard of protection was seamlessly transposed from minority rights to human rights. The principle of equality between minorities and majorities informed the League regime and was embraced by the Permanent Court of International Justice, arbitral tribunals and mixed claims commissions. After the Second World War, the 1948 Universal Declaration merely expanded the scope of application of the previous regime to all individuals equally, regardless of group membership. Thereafter, individual equality acquired a prominent role in human rights instruments, and the prohibition of certain forms of discrimination became a peremptory norm of international law.

These avenues of research have seldom been travelled, perhaps because individual rights overtook group concerns after 1945. Moreover, the ideological bipolarity of the cold war meant that the scholarly landscape of international law was dominated by enquiries on the relationship between individuals and the state well into the 1990s. But the rationale of group protection predates individual rights in law by at least a century, so it is odd that commentators bend over backwards to label individual rights as timeless when pre-Charter experience proves the exact opposite. An important vocation of our study is to disambiguate these experiences and provide clarity by circumscribing ourselves to interwar law and practice. To further understand why individualism became the main horizon of human rights after 1948 we describe the demise of the principle of nationalities embedded in the League’s structure that appeased states with national minorities abroad by recognizing groups as such. The outbreak of the Second World War rendered European nationalism increasingly toxic after 1945, and protecting groups became less viable as a matter of legal policy. Consequently, most studies highlight the rupture with group protection that was evident by 1950 to dismiss the minorities regime as irrelevant and buttress the singularity of human rights. Far from seeing such a paradigmatic shift after 1945, we weave past into present by following the sustained preservation of the international life of rights inaugurated by the League, and the legacy of interwar group equality that was universalized into the sphere of human rights today.