Erzsébet Szalayné Sándor

International Law in the Service of the Protection of Minorities Between the Two World Wars[1]

 1. The Evolution of the Minority Protection System - The Lessons

 By the end of 1919, Western great powers had successfully persuaded the last reluctant East Central European state to sign a treaty on the protection of minorities.^[2] This brought the negotiations on minority protection, put on the agenda during the second phase of the Paris peace conference, to an end. The politicians at the conference, yielding to external pressure, decided to oblige the Central and East European states to sign treaties on the protection of minorities, which would fall under continuous international protection and monitoring following their entry into force. These politicians regarded the treaties as instruments in securing the territorial changes of 1918-1919 and preventing any threat to the peace of Europe. The threat that could destroy European peace in any moment was, according to the politicians embracing realpolitik, the partial application of the principle of national autonomy in Central and East Europe. For those national minorities that had not had the opportunity to exercise their right to autonomy prior to the First World War, minority rights guaranteed in a contractual form as reparations could have been the first step on the path of reconciliation - at least according to the hopes of the participants of the conference. According to the elaborators of this system, the ultimate objective would have been general political and national assimilation. Guarantees under the treaties would have made the path leading to that possible and tolerable. The necessity of offsetting the rather partially applied right to autonomy emerged already during the war. The American delegation appeared responsive and open-minded in this respect during the peace negotiations, and, with its preparations and drafts, in May 1919 it launched officially the process, which would lead to the creation of the system of the protection of minorities. The pre-war fate of Romanian Jews had a decisive effect on the diplomatic steps and steadfastness of the American peace delegation. Several members of the delegation were among the supporters of the initiative of the East European and American Jews. The proposals focused on the guaranteeing of individual and collective minority rights, and national autonomy. In the background, it was also to be acknowledged that the states of Central and East Europe were multinational formations. However, the ideal and model of a homogeneous nation-state left its mark on the negotiations and prevented the advancement of the above-mentioned more liberal and realistic conceptions, which were struck off from the agenda in the end. According to one of the most frequently mentioned, characteristically nation-state arguments that ran counter to the autonomy-concepts, it was a threat that "a state within a state" could eventually evolve. Similarly, it was the preservation of the fiction of the nation-state to guide the great powers at the conference - less the Americans, more the English, and even more so the French representatives - when, based on the proposals prepared by Jewish organisations, they decided on the elaboration of minority protection that would fall under international guarantees. It was not really the objective of positive minority protection that the decisive politicians of the era sought. They focused instead on the possibility originating from the treaties that would prepare the way towards comprehensive national assimilation. Renowned politicians of the Allies expressed these expectations but explicitly and implicitly through the interpretation of certain expressions and concepts in 1919 and thereafter.^[3]

When the draft provisions of the minorities treaties were ready in May 1919, further problems emerged. The great powers encountered instinctive and conscious resistance on the part of the countries concerned. They perceived the undertaking of minority protection commitments as constraints on their sovereignty and an intrusion into their internal affairs, and, therefore, brushed it aside. Every Central and East European state concerned set forth reservations to the drafts and expressed their worries. The great powers managed to put off the resistance, the small-scale "rebellion" that broke out on 31 May 1919, and persuade the states concerned to sign the minorities treaties elaborated for them.

Among the issues that emerged during the dispute of the Central and Eastern European and Western powers, we encounter the question as to what the reason of the relentless and rather dismissive behaviour of the Central and Eastern European states was: did they not want to sign the treaties at all or, in case they did, would they not want to fulfil their obligations deriving from the treaties?^[4] This problem, which, unfortunately, gained significance later on, seemed to be the key issue of the entire minority protection system. It became perceptible that the realisation of the hopes attached to the implementation and effectiveness of minority protection obligations at the time of their formulation, would always depend exclusively on the actual political atmosphere. It was not evident at the end of 1919 whether the system of the evolving regulations of minority law would be enough; what effect would the policies of the new states and the behaviour of the minorities in concern would produce; whether this system would be able to have the ideals of national tolerance and national equality accepted along or counter to the victory of the ideal of the nation-state.

 2. Substantive Minority Legislation Adopted with the Assistance of the League of Nations

 2.1. Categorisation of Legislation on the Protection of Minorities Adopted Under the Aegis of the League of Nations

 The sources of itemised international minority law under the protection of the League of Nations include for the most part bi- or multilateral agreements, certain contractual provisions and declarations. According to several authors, for example Ernő Flachbarth^[5] and Arthur Balogh^[6], these are to be considered primary sources. Besides these, they identify secondary sources as well, which include the resolutions adopted in order that the international contractual obligations undertaken with the purpose of the protection of minorities under the aegis of the League of Nations could be supervised and that the states could be held accountable. These, accordingly, include rules of procedure and regulations that ensure compliance with the treaties or concern the operation of the League of Nations and its Council. Under a broader interpretation, they can thus be regarded secondary legal sources. However, with regard to the principle on which I will base the use of the "substantive and procedural law" expression further on, I deem the use of the primary-secondary division unnecessary.^[7] For that matter, in the case of the minority protection system developed under the aegis of the League of Nations, the substantive-procedural and primary-secondary divisions of minority legislation can be considered synonymic, since it is on the basis of the mandate of primary, that is, substantive law (international treaties concerning the protection of minorities) that secondary, that is, procedural law can be elaborated by the League of Nations, as international organisation.

Let us now look at the classification of the legal sources of minority protection created under the aegis of the League of Nations:

1. General treaties that aim at the protection of minorities;^[8]

-           minorities treaties;

-           relevant chapters of the peace treaties;

2. special treaties that aim at the protection of minorities;^[9]

3. minority declarations.

 2.2. Minorities Protection Treaties Signed Between the Allied and Associated Powers and the New or Territorially Expanded States

 These were the following:

1. Treaty of peace with Poland [Polish Minorities Treaty], signed in Versailles on 28 June 1919:^[10] Articles 1-12 under the protection of the League of Nations subsequent to 13 February 1920.

2. Treaty between the Principal Allied and Associated Powers and Czechoslovakia [Czechoslovak Minorities Treaty] signed in Saint-Germain Laye on 10 September 1919:^[11] Chapters 1-2 under the protection of the League of Nations subsequent to 29 November 1920.

3. Treaty between the Principal Allied and Associated Powers and the Serb-Croat-Slovene State [Yugoslav Minorities Treaty] signed in Saint-Germain Laye on 10 September 1919:^[12] Articles 1-11 under the protection of the League of Nations subsequent to 29 November 1920.

4. Treaty between the Principal Allied and Associated Powers and Romania [Romanian Minorities Treaty] signed in Paris on 9 December 1919:^[13] Articles 1-12 under the protection of the League of Nations subsequent to 30 August 1921.

5. Treaty between the Principal Allied and Associated Powers and Greece, signed in Sèvres on 10 August 1920 (amended by the Protocol of Lausanne signed on 24 July 1923):^[14] Articles 1-16 under the protection of the League of Nations subsequent to 26 September 1924.

[6. Treaty on Armenian Minorities signed in Sèvres on 10 August 1920: since Armenia lost its independence on 21 February 1921, the treaty was never ratified and did not enter into force.^[15]]

 2.3. Relevant Provisions of the Peace Treaties

 The peace treaties were signed by the Allied and Associated Powers and the former Central Powers. Only articles indicated below [I] would fall under the protection of the League of Nations. The text of the peace treaties contained provisions concerning minority protection beyond these [II].

[I]

1. Treaty of Peace between the Allied and Associated Powers and Austria, signed in Saint-Germain Laye on 10 September 1919^[16]: Articles 62-69 under the protection of the League of Nations subsequent to 27 October 1920.

2. Treaty of Peace between the Allied and Associated Powers and Bulgaria, signed in Neuilly on 27 November 1919^[17]: Articles 49-57 under the protection of the League of Nations subsequent to 27 October 1920.

3. Treaty of Peace between the Allied and Associated Powers and Hungary, signed in Trianon on 4 June 1920^[18]: Articles 54-60 under the protection of the League of Nations subsequent to 30 July 1921.

4. Treaty of Peace signed with Turkey in Lausanne on 24 July 1923^[19]: Articles 37-45 under the protection of the League of Nations subsequent to 26 September 1924.

 [II]

The former Central Powers received guarantee in the treaties they signed stating that the new or territorially expanded countries concerned would take international obligations upon themselves with respect to and for the protection of the minorities disannexed from the Central Powers. Therefore, in exchange of the recognition of the independence of the new states and the renouncement of the disannexed territories, the Central Powers received guarantees on the protection of their former citizens, who became citizens of the new countries through the commitment of these new countries to obligations of international concern.^[20] The reason for the inclusion of these guarantees into the peace treaties was clear: this sought to ensure that even those states - Austria, Hungary, Bulgaria, and Turkey - could refer to the minorities treaties and file complaints with the League of Nations that were not signatories of these minorities treaties (since these established a legal relationship only between the new or territorially expanded states and the Allied and Associated Powers).

 2.4. Special Treaties Concerning the Protection of Minorities

 In general, treaties in this category were signed by two countries. Some of them would fall under the protection of the League of Nations, while others - although they were not directly part of the guarantee system as conceived in the narrower sense - served in part to expand the minorities treaties, peace treaties and minority declarations, and in part to include other states into the international system of minority protection conceived in a broader sense. This is one of the reasons why we can consider the twenty years between the two world wars the classic period of direct minority protection. Besides the system of international treaties under the protection of the League of Nations, a few multilateral and several bilateral documents were adopted [II] which, besides the regulation of the specific contractual object, incorporated clauses concerning minority protection as well.^[21]

[I] Treaties under the guarantee of the League of Nations:

1. Agreement between Sweden and Finland concerning the Åland Islands, unanimously approved by the Council of League of Nations on 27 June 1921.^[22]

2. Geneva Convention on Upper Silesia between Germany and Poland, signed on 15 May 1922: similar to the preceding documents, it was adopted with the assistance of the League Nations, and passed under its protection subsequent to 20 June 1922.^[23]

[II] Treaties independent of the guarantee of the League of Nations:

3. Treaty of Brünn between Austria and Czechoslovakia on citizenship and education, signed on 7 June 1920.^[24]

4. Treaty between Poland and Czechoslovakia (Warsaw, 23 April 1925). It contains primarily provisions concerning the minorities' educational affairs.^[25]

5. Treaty between Yugoslavia and Romania concerning the mutual protection of the Romanian minority in Yugoslavia and the Yugoslav minority in Romania (Belgrade, 10 March 1933).^[26]

6. Treaty between Bulgaria and Greece (Neuilly, 27 November 1919) on reciprocal emigration and immigration. (A further protocol was signed on 29 September 1924 on the protection of Greek minorities in Bulgaria and, on the part of the League of Nations, Bulgarian minorities in Greece. It was signed by the representatives of Bulgaria and Greece, the president of the Council, and the secretary-general.).^[27]

7. Treaty between the Allied Powers and Lithuania (Paris, 8 May 1924), on the legal status of the Memel region annexed to Lithuania.^[28]

8. Convention between the Free City of Danzig and Poland (9 November 1920), in which Danzig pledges to apply the provisions of the Polish Minorities Treaty with respect to its minorities.^[29]

 2.5. Minorities Declarations

 So far, we have discussed the minorities treaties and the relevant chapters of the peace treaties from among the sources of itemized minority law. Besides these, certain East Central European countries issued unilateral declarations in front of the League of Nations. The Assembly did not consider these declarations as a general criterion of a state's admission in the organisation - although Lord Robert Cecil, representative of South Africa proposed exactly that. The Assembly expressed its desire (!) only with respect to certain countries. More exactly, it recommended that they take appropriate measures concerning the protection of minorities in the case of their admission into the organisation:

"In the case when the Baltic and Caucasian states and Albania should be admitted into the League of Nations, the Assembly recommends that they take measures for the protection of minorities in conformity with the general principles established in the minorities treaties, and come to an agreement with the Council about the method of their implementation."^[30]

1. Albanian Declaration on the Protection of Minorities (2 October 1921, under the protection of the League of Nations subsequent to 17 February 1922). It complied with the wish of the Assembly: the text of the Declaration corresponded with the relevant provisions of the minorities treaties.^[31]

2. Lithuanian Declaration on the Protection of Minorities (12 May 1922, under the protection of the League of Nations subsequent to 11 December 1923). This too complied with the Assembly Recommendation.^[32]

3. Latvian Declaration on the Protection of Minorities (7 July 1923, under the protection of the League of Nations subsequent to 1 September 1923).^[33]

4. The Estonian Declaration on the Protection of Minorities (17 September 1923) is based on a resolution, in which the Council of the League of Nations endorsed the report of an Estonian representative on the situation of minorities in Estonia on 28 August 1923.^[34]

5. Iraq issued a minorities declaration on 30 May 1932 (Articles 1-10 under the protection of the League of Nations subsequent to the same date).^[35]

Accordingly, the above-mentioned five declarations, just as the similar provisions of the minorities treaties, fell under the protection of the League of Nations.

 2.6. The Legal Nature of the Sources of Substantive Minority Law

 The legal nature of the enumerated sources requires a short explanation. They are legislative acts that refer to a legal relationship between state and its minorities, which formerly belonged in the sphere of domestic legislation. This is a known phenomenon in international law: a state voluntarily curbs its own sovereignty concerning the protection of minorities when, in the form of international commitments, it pledges to behave in a certain way concerning the issue of a given regulation. It is characteristic of legislative international treaties that they contain reciprocal undertaking of obligations. Sources of itemised minority law differ from the general practice in this respect. The parties pledge reciprocity concerning their minorities in the Convention on Upper Silesia between Germany and Poland, and the treaties between Austria and Czechoslovakia, Poland and Czechoslovakia, Yugoslavia and Romania, and Bulgaria and Greece. As opposed to this, the other minorities treaties, the relevant provisions of the peace treaties, and the declarations contain obligations undertaken by the states concerned unilaterally, while the other party (the Allied and Associated Powers) does not make a similar pledge concerning the treatment of their minorities. The resolution of the seeming contradiction, which stretches between the nature of the theoretically voluntarily pledged international commitments and the unilateral character of the above-mentioned treaties, is to be found in the circumstances of the adoption of these international legal acts and the need for some solution of the minority issue.

 3. The Territorial Effect of the Minorities Treaties

 The territorial effect of minorities treaties^[36] varies in extent. As a general rule, the provisions of the international treaties in this category extend not only to the territories acquired by way of the peace treaties, that is, the territories annexed to the original state territory, but also to the territory preceding the peace treaties. These provisions seek to guarantee protection to the minorities in the original state territory as well.^[37] We can find the following exceptions to this general rule in the treaties:

- Provisions of Article 9 Paragraph 3 of the Polish Minorities Treaty apply to Polish citizens of German speech only in that part of Poland which was German territory on 1 August 1914 and then was annexed to Poland with the Peace Treaty.

- Provisions of Article 9 Paragraph 3 of the Minorities Treaty of the Serb-Croatian-Slovenian State apply only to territory transferred to Serbia or to the Kingdom of the Serbs, Croats and Slovenes since 1 January 1913.

- Similarly, provisions of Article 9 Paragraph 3 of the Greek Minorities Treaty apply only to territory transferred to Greece since 1 January 1913.

Despite these regulations, the Assembly of the League of Nations expressed its hope at its 3rd Full Session on 21 September 1922 that all the states not bound by minority protection treaties and, therefore, not linked to the League of Nations, would nevertheless be equally fair and tolerant towards the minorities in their territory as the countries bound by treaties have be.^[38]

 4. Contents of the Relevant Provisions of the Minorities Treaties and Peace Treaties (Substantive Minority Law)

 Below is an analysis of the contents of the Polish Minorities Treaty. The other minority protection treaties were modelled on this one.

Every minorities treaty, the provisions of the peace treaties, and the contents of the declarations by Albania, Lithuania, and Iraq more or less correspond to the Polish Minorities Treaty.^[39] Their similar traits can be categorised according to five conceptual units:

1. All citizens of a country are entitled to the right to life and liberty, and the free exercise of religion.

2. Right to citizenship: One is entitled to citizenship in the case his habitual residence or domicile ("leur domicile ou leur indigénat"; pertinenza; Heimatsrecht^[40]) is in the country at the date of the coming into force of the treaty, or when he was born in the territory of the country. The stipulations that applied to citizenship differed in the various treaties, but these two elements could be found in all of them. There are few exceptions to the first above-mentioned provision; one in Article 91 Paragraph 2 of the Versailles Peace Treaty, according to which German nationals or their descendants who became resident in Polish territory after January 1, 1908, will not acquire Polish nationality without a special authorisation from the Polish State.^[41] In several treaties a third ground was also included: persons who were born in the territory of the country from parents habitually resident there, but they did not live in the territory at the date of the coming into force of the treaty, could nevertheless acquire the citizenship of the given country.

3. The rights of ethnic, religious and minorities. These are: equality before the law, equal civil and political rights, as for instance admission to public employments; free use of the mother tongue in private and business life, religious activity, in the press or in publications of any kind, at public meetings or before the courts; equal rights to establish at their own expense charitable, religious and social institutions; in those towns and districts, where there is a considerable proportion ("proportion considérable") of Polish nationals belonging to racial, religious or linguistic minorities, their right for education in their mother tongue, and an equitable share from those sums that are allocated from public funds under the State, municipal or other budget for educational, religious or charitable purposes..

4. The legal character of the obligations enumerated above: According to Article 1, the state recognised these stipulations as fundamental laws that no law, regulation or official action should conflict or interfere with. According to the last article of the treaties, so far as the treaties affected persons belonging to racial, religious or linguistic minorities, they constituted obligations of international concern and were to be placed under the guarantee of the League of Nations. Any Member of the Council of the League of Nations had the right to bring to the attention of the Council any infraction, or any danger of infraction, of any of these obligations, and the Council could thereupon take such action and give such direction as it deemed proper and effective in the circumstances. In the case any difference of opinion as to questions of law or fact arising out of these Articles between the given 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, was to be held a dispute of an international character under Article 14 of the Covenant of the League of Nations. The given Government consented that any such dispute should, if the other party thereto demanded, be referred to the Permanent Court of International Justice. The decision of the Permanent Court was to be considered final.^[42]

5. The last unit contains regulations that take special and local circumstances into consideration. For example, the Polish Treaty contained special stipulations with respect to Jews. The treaties signed with Yugoslavia and Greece contained stipulations on the protection of the Muslim minority. The Czech Treaty included the charter of the autonomy of the Ruthenians living in the southern parts of the Carpathians. Romania would guarantee autonomy to the Székely and Saxons in educational and religious matters; etc.

In the following I shall present the most important rules of substantive minority law on the basis of the Polish Treaty.^[43] I shall touch upon the articles of other treaties only in the case they depart from the Polish model.

In Article 1, Poland undertook that the stipulations contained in Articles 2 to 8 of this Chapter should be recognised as fundamental laws, and that no law, regulation or official action should conflict or interfere with these stipulations, nor should any law, regulation or official action prevail over them. The text of Article 1 could have equalled an internal guarantee on the part of the state, if Poland had known the institution of constitutional jurisdiction back then.

According to Article 2, Poland undertook to assure full and complete protection of life and liberty, and guaranteed the free exercise, whether public or private, of any creed, religion or belief to all inhabitants of Poland without distinction of birth, nationality, language, race or religion. This stipulation thereby ensured the protection of the most fundamental human rights. This is a legal minimum, which the states, under international unwritten law, have to guarantee to every foreign citizen.

Article 3 settled citizenship questions with respect German, Austrian, Hungarian, and Russian nationals ("ressortissants"), who live in territory which was or was to be recognised as forming part of Poland. Poland admitted and declared to be Polish nationals ipso facto and without requirement of any formality these nationals,^[44] but, at the same time, it entitled them to opt for any other nationality. This right was open to persons over eighteen years of age, with option by a husband covering his wife and option by parents covering their children under eighteen years of age. Persons who have exercised the above right to opt had to leave Poland within twelve months. They were entitled to retain their immovable property in Polish territory, and they could carry with them their movable property of every description. No export duties were to be imposed upon them in connection with the removal of such property.^[45] If we consider this right to opt an opportunity of persons affected by the state succession to opt for their former citizenship out of their own free will, then we are to infer that the persons affected by the state succession ipso facto became Polish citizens. Since members of ethnic, religious, or religious minorities were entitled to exercise their right to opt, we can undoubtedly classify Article 3 among minority protection measures.

While Article 3 determined who was entitled to opt on a territorial basis (based on one's residence), Article 4 referred to the principle of birth, although it may seem that the Polish solution referred much more to the principle of descent. Accordingly, citizenship depended not only on one's place of birth, but also on whether he was born in the said territory of parents habitually resident there. Nevertheless, within two years after the coming into force of the treaty, these persons could make a declaration before the competent Polish authorities stating that they wanted to abandon Polish nationality. They did not have to go through further formalities in this case.

In Article 5, Poland undertook to put no hindrance in the way of the exercise of the right which the persons concerned had to choose whether or not they would acquire Polish nationality.

Under Article 6, Poland eliminated one of the reasons that could have made one stateless by stating that all persons born in Polish territory who were not born nationals of another State should ipso facto become Polish nationals.

Article 7 guaranteed equality before the law and the enjoyment of the same civil and political rights for all Polish nationals without distinction as to race, language or religion. No differences of religion, creed or confession could prejudice them concerning their admission to public employments, functions and honours, or the exercise of professions and industries. No restriction could be imposed on the free use by any Polish national of any language in private intercourse, in commerce, in religion, in the press or in publications of any kind, or at public meetings. Although the first three paragraphs of the article concerned all Polish nationals, it is evident that it aimed first of all at the protection of members of ethnic, religious, or religious minorities. Paragraph 4 realised the direct protection of linguistic minorities, in so far as Polish nationals of non-Polish speech were granted adequate facilities for the use of their language, either orally or in writing, before the courts. According to certain authors,^[46] a drafting error occurred concerning language use before the courts ("devant les tribunaux"), since it is indisputable that this obligation concerned the use of language not only before the courts but before every other authority as well. Notwithstanding this, the establishment the official language was to be a separate and independent decision of the Polish Government.

Article 8 concerned directly the minorities. It established the protection of those Polish nationals who belonged to racial, religious or linguistic minorities in so far as the treaty guaranteed that they should enjoy the same treatment and security in law and in fact as the other Polish nationals. The drafters of the treaty sought to protect minorities against discrimination on the part of the state. The Article guaranteed the right of association to them, in so far as they were granted an equal right to establish, manage and control at their own expense charitable, religious and social institutions, schools and other educational establishments (e.g. schools), the right to use their own language and to exercise their religion freely therein.

Article 9 settled matters related to public education. It established that the Polish Government was to provide adequate facilities for ensuring that in the primary schools the instruction shall be given to the children of Polish nationals of other than Polish speech through the medium of their own language.^[47] This provision, however, could not prevent the Polish Government from making the teaching of the Polish language obligatory in these schools. According to Paragraph 2, racial, religious or linguistic minorities were to be assured an equitable share^[48] in the enjoyment and application of the sums which may be provided out of public funds, for educational, religious or charitable purposes. However, provisions of Article 9 were to be applied in those towns and districts only where there was a considerable proportion ("proportion considérable")^[49] of Polish nationals belonging to racial, religious or linguistic minorities. Paragraph 3 narrowed the stipulations in the case of Polish citizens of German speech further down: the provisions of this Article applied to them only in that part of Poland which was German territory on 1 August 1914.^[50]

Let us expand a bit on one of the conceptual units of the passage discussed above, namely that minorities (!) were to be assured an equitable share in the enjoyment and application of the sums which may be provided out of public funds. Did this provision entail the general recognition of the legal personality of minorities? In my opinion, this is connected more to a possible way of exercising the right to association, as political right (already mentioned with respect to Article 8), according to which minorities could set up organisations for the establishment and maintenance of educational institutions. These organisations were to transfer the sums received from public funds to the schools under their supervision. This meant basically a role that the state performed with respect to public education in general. If minorities did not have such an institution, the state authorities had to break down the sums to be transferred to the schools, which was not always advantageous for the interests of the minorities. László Buza remarked: "It is undeniable that minority legislation is defective in this respect: it grants certain rights to the minority as such but it does not define the minority that would have to exercise this right. Furthermore, it does not stipulate for its establishment. [...] Treaties and declarations do not establish these organisations because that would entail minority authority to a certain extent; however, general minority legislation is based not on the principle of minority autonomy."^[51]

Article 10 of the Polish Minorities Treaty is an exception with respect to one minority to the above-mentioned general deficiency present in minority legislation. Considering that the Jewish community in Poland had an organisation with a legal personality (religious communities, "communautés juives de Pologne"), Educational Committees appointed locally by the Jewish communities of Poland, subject to the general control of the State, administered the distribution of the proportional share of public funds allocated to Jewish schools. Therefore, this provision established collective minority protection, and granted personal autonomy[52] to the Jewish minority of Poland in educational matters.

According to Article 11 Jews could not be compelled to perform any act which constituted a violation of their Sabbath, nor could they be placed under any disability by reason of their refusal to attend courts of law or to perform any legal business on their Sabbath. Furthermore, Poland declared her intention to refrain from ordering or permitting elections, whether general or local, to be held on a Saturday. Nevertheless, the provision did not exempt Jews from such obligations as shall be imposed upon all other Polish citizens for the necessary purposes of military service, national defence or the preservation of public order.

I shall touch upon the significant Article 12 during the discussion and assessment of procedural minority law. It is to be mentioned in advance, however, that the provisions of Article 12 set up the framework of the procedures of the League of Nations. The procedural (formal) law of minority protection of the period between the world wars will be outlined on this basis and through the body of reports and resolutions of the League of Nations.

 5. The Development of the Petition Procedure: Procedural Minority Law (1920-1925)

 5.1. The Starting Point

 The last section of the above-mentioned minorities treaties, which belong to substantive law, can be considered the basis upon which procedural minority law developed. The text of section is as follows:

"[...] agrees that the stipulations 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. They shall not be modified without the assent of a majority of the Council of the League of Nations. The Allied and Associate Powers represented in the Council hereby agree not to withhold their assent from any modification in these Articles which is in due form assented to by a majority of the Council of the League of Nations. [...] 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, or any danger of 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. [...] further agrees that any difference of opinion as to questions of law or fact arising out of these Articles between the [...] 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. The [...] Government hereby consents that any such dispute shall, if the other party thereto demands, be referred to the Permanent Court of International Justice. The decision of the Permanent Court shall be final and shall have the same force and effect as an award under Article 13 of the Covenant." ^[53]

The provisions included in the section above can be grouped around three logical units:

a) Legal provisions that affect persons belonging to racial, religious or linguistic minorities, constituted obligations of international concern ("obligations d'intérêt international"), and were placed under the guarantee of the League of Nations. This meant that the provisions could not be modified without the assent of a majority of the Council of the League of Nations. Modification could take place only with the assent of the parties, and the fact that the assent of the Council was required did not change this; it only limited the rights of the parties.

b) Protection meant that the observance of the provisions in concern was under the continuous supervision of the League of Nations. Accordingly, any Member of the Council of the League of Nations had the right to bring to the attention of the Council any infraction, or any danger of infraction, of any of these obligations, following which the Council could give such direction as it deemed proper and effective.

c) Finally, any difference of opinion as to questions of law or fact arising out of these Articles between the parties or any other Power, a Member of the Council of the League of Nations, was held to be a dispute of an international character. Any such dispute, if the other party demanded, was to be referred to the Permanent Court of International Justice, the decision of which was final. Accordingly, the minorities treaties and declarations on the protection of minorities established two kinds of procedures: one before the Council of the League of Nations and one before the Permanent Court of International Justice. In both cases only the members of the Council were entitled to initiate such proceedings: they disposed of the procedure and, according to Article 11 of the Covenant, the given procedure had the legal nature of a matter that was "declared a matter of concern to the whole League".

However, these few provisions were far from enough for the comprehensive regulation of the procedure of the Council. That would be elaborated by the organisation itself in only a few years, by 1925 approximately. Before the introduction of the petition procedure, it is important to indicate certain points that were kept in mind throughout the elaboration of the petition procedure.

Minorities did not have legal personality internationally. Their rights were obligations of international concern to be fulfilled by certain states. Minorities were not the subjects of these obligations but only their beneficiaries (or even objects).

The second point follows from this: minorities did not have the title to bring action against anybody, since, in the case they had grievances, they could not elicit the protection of the Council just because of their existence. Their petition had only an informative character; a member of the Council could then draw attention to the fact that protection procedure should be necessary. Accordingly, only members of the Council could act as parties during the procedure and not in the name of the minorities but only in their interest.

The third point is that not purely law but also political considerations led the bodies of the League of Nations in their dealings with the complaints of the minorities. ^[54]

The procedural law of minority protection under the aegis of the League of Nations had been consolidated by the end of 1925. The "procédure écrite", ^[55] that is, the procedure in force at the end of 1925 based on resolutions can be summarised as follows:

A petition concerning minorities is submitted to the Secretariat General of the League of Nations. On the basis of the five points of Article 1 of the Council Resolution of 5 September 1923, the Secretariat decides whether the petition is acceptable or not. In case it is, this is brought to the attention of the government concerned (against whom the complaint is lodged). Should this government object to the acceptability of the petition for any reason, the secretary-general would present the question of acceptability to the President of the Council, who could ask the help of two other Council members during the examination of the problem (they formed the tripartite committee). This procedural question could be put on the agenda of the Council at the request of the state concerned.

If the petition was deemed acceptable, the state concerned had three weeks after the communication of this to inform the secretary-general whether it wanted to comment on the petition or not. In the case it did, then it had a period of two months to do so. The president of the Council could extend the deadline upon the request of the state concerned or when circumstances required so. The petition and the comments of the state were then presented jointly to the members of the Council. All members of the League of Nations could receive these documents but only at their explicit request.

Subsequently, the president of the Council asked two other members of the Council to join him in examining the petition and the comments (which usually took place during the following session of the Council). If any of them or any other member of the Council deemed it important, it could bring the petition to the attention of the Council, and request that it be put on the agenda. The duties of the Council were twofold: first, it had to establish whether any infraction, or any danger of infraction, of any of these obligations did actually take place or not. Second, in the case the answer was yes, the Council had to take measures to put an end to this infraction. Neither the treaties nor the Assembly or Council resolutions provided for the elaboration of the rules of procedure before the Council ("procedure non-écrite"). It always proceeded as it seemed right and correct with respect to the case in concern. During this procedure, it could gather data, request the parties to present their statement in writing or orally, hear experts, visited the location, and took various measures. According to Article 5 of the Covenant^[56], the Council had to bring a decision agreed to by all members of the Council on whether the infraction was in fact real or not. If it was, the Council thereupon could take such action (in the case of the Serb-Croatian-Slovenian "implement such measures") and give such direction as it deemed proper and effective in the circumstances.^[57] It could, in general, order - in reality, request - the state to amend the laws and decrees injurious to the minorities in the shortest time possible, to repeal these or not to let them enter in force at all. Should this have taken place indeed, it would have been most proper from purely a legal aspect. However, the Council could not impose sanctions, so it contacted the state in concern prior to the final decision and requested information on how it planned to settle the situation described in the petition. If the Council deemed the answer of the government acceptable, it was accepted.^[58] There was only one sanction to threaten the given state with: according to Article 16 of the Covenant, it could be declared to be no longer a Member of the League by a vote of the Council.^[59]

In the case any difference of opinion as to questions concerning minorities arose between the given government and any member of the Council, it was to be held a dispute of an international character, which, under Article 14 of the Covenant, could be referred to the Permanent Court of International Justice. The decision of the Permanent Court was to be considered final and has the same force and effect as an award under Article 13 of the Covenant.^[60] The parties were obliged to comply with the award, but the League had no instrument to force the parties to do so, unless we consider the power of international public opinion such an instrument. Under Article 14 of the Covenant, the Council was entitled to refer a dispute or a question to the Permanent Court of International Justice for an advisory opinion.^[61] The avis consultatif was not binding but the weight of the court and public opinion did have an influence on the final position of the Council.

 I have attempted to present how the legal framework of minority protection evolved through the resolutions of the Council and the Assembly of the League of Nations. During the operation of the minority protection system, however, "procédure écrite" was completed by "procédure non écrite"[62], which referred to the actual procedures of certain institutions and to those unwritten rules that accompanied the petitions starting from their submission until a decision was reached on them or they were dismissed. The working practices of the minority committees during the preliminary procedure, the relations they maintained with the states concerned, and the way they made them an active participant of the decision-making process on the petition, furthermore the procedure before the Council,^[63] all exerted a significant influence on the effectiveness of the system. The prime mover of events was, however, the minority department of the Secretariat of the League of Nations. During the elaboration of the rules of procedure, that is, the resolutions presented above, the Secretariat played an important role through the involvement of its various (political, legal) departments. The work of its minority department had a major role in the elaboration of unwritten procedural law, and the working practices.^[64]

 6. 1930-1939: A Period of Inertia and Political Debates

 All structures built by humans have their sour points. It is around those points that the signs of some imminent crisis manifest, and it is around them that the symptoms of some latent disease become visible. There is every reason to consider the minority protection system such a point in the case of the political regimes and the League of Nations in the period between the world wars. Accordingly, the imminent crisis of the 1930s cast its shadow to the minority protection negotiations of the League of Nations already in 1929. In the following section I attempt to present the path that led to the definitive disruption of the delicate balance that underlined the minority protection procedure.

The history of the minority protection system after 1930 can be described in a few words. The 6th Committee of the Assembly discussed the rules of procedure annually between 1930 and 1934. Initiatives were launched first on the part of Germany and then on the part of Hungary. 1931 and 1932 went by relatively peacefully: no significant proposals were submitted and the already established rules of procedure were confirmed. One positive initiative was launched on the part of the English. Henderson, then president of the Council, issued an appeal to the majority and minority populations of Upper Silesia in connection to a problem that emerged in the area: it called upon the majority to recognise that it was not in its interest to oppress the minority, and it called upon the minority to acknowledge that it had real interests in loyal co-operation with the government. For the comprehensive realisation of the minorities treaties, said Henderson, were of decisive importance for the maintenance of peace. Should this system break down or the trust in it be shaken, it would entail unforeseeable consequences.^[65] The conciliatory, prophetic speech of the British foreign secretary found response all over Europe but it was not enough to change the course of events.

1933 brought a fundamental change: the National Socialists came to power in Germany on 30 January, following which the minority protection system had little chance to survive. This became evident when, in May 1933, the petition of Franz Bernheim concerning the Jewish population of Upper Silesia was examined. Bernheim enumerated German laws and decrees that forbid to "non-Aryan" clerks, lawyers, notaries, and doctors to exercise their profession, moreover drastically limited the admission of Jews to schools and universities. Since the text of these documents ran counter to the provisions of the Geneva Convention on Upper Silesia (1922), Bernheim asked the Council of the League of Nations to implement measures or take actions under Article 147 of the Convention in order to prevent the application of the laws and decrees in concern in Upper Silesia.^[66] All that the German representative remarked in his reply was that the internal legislation of Germany, naturally, could not impair its international obligations. In the case the Geneva Convention was violated in Upper Silesia, that could be but a mistake that derived from the erroneous interpretation of the laws on the part of administrative officers. The Council of the League of Nations had no weapons to retaliate for this reply.

In the autumn of 1933, the case of the Jews in Germany was put on the agenda of the Assembly. The French delegation submitted a draft proposal, the first part of which wished to confirm the 4th Resolution of the Assembly in 1922. It was suggested that the states not bound by minority treaties should nevertheless act in conformity with the principles laid down in the treaties. The second part dealt directly with the problem of the Jews in Germany. The German delegation declared this issue sui generis a problem that should be settled internally; this was a sovereign right of Germany. Accordingly, the German delegation prevented the adoption of the second part of the draft at the full session of the Assembly. It could easily achieve this, since resolutions had to be adopted unanimously.^[67] Only three months later, Hitler declared on air the withdrawal of Germany from the League of Nations.

The reply came quite fast. Scarcely one year later, on 13 September 1934, Jozef Beck, representative of Poland, proposed before the Assembly that minority protection should be transformed into a general system. Furthermore, he declared that the Polish government would refuse any co-operation with the international bodies with respect to the minorities treaties in force until the day the comprehensive minority protection system should enter into force. Poland, therefore, arbitrarily exempted itself from the international protection and supervision of its obligations with respect to minority protection. The League of Nations faced a fait accompli.

The rest of the states affected by the minorities treaties distanced themselves from the Polish step. However, in the autumn of 1935, Romania gave notice to the Secretariat that its government would not submit comments to the petitions and it would not want to represent itself in the tripartite committees either (Romania was elected into the Council of the League of Nations shortly before that). The Romanian government declared passive resistance. However, in 1937, it returned to the full recognition of the minority procedure because of the attitude of the Little Entente.

Although active tripartite committees functioned even in 1939, the minority protection framework weakened after 1937, after which no rapporteurs were for the examination of the minorities issues. In the end, the minority protection system withered under the blows it received throughout the 1930s.

Vissza