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The Politics of Ethnicity and Stability:
Collective Rights, Democracy, and Hungarian Minorities
Institute on East Central Europe
Columbia University
March, 1996
Even as U.S. troops move from the Ubungsdorf 1 in Germany to Croatia and Bosnia, and as the various UN and non-governmental organizations gear up for the tremendous resettlement and reconstruction effort that will soon begin, no policymakers or academics are capable of offering clear remedies for the subnational ethno-political conflict in Bosnia. The causes of such conflicts have received a fantastic surge of attention since the fall of the Berlin Wall and the world beyond was revealed to Western Europeans and other bewildered spectators. Some lessons have been learned, histories re-examined and re-documented, and motivations stemming from economic, political and purely national origins, have been dissected and pondered. Yet, there is no clear consensus on what approach is most fitting in dealing with heterogenous nation-states where politics have become ethnically charged.
The clamor for increased rights for minorities living in states all across the territory of the former East Bloc has scarcely subsided since war broke out in Yugoslavia. Ethnic Russians in the Baltic states, Ukraine and Moldova, Ossetians in Georgia, Chechens and others in Russia, Albanians in Serbia and Macedonia, Romanies all across Central and Eastern Europe, and the Hungarians in Romania, Slovakia, Serbia, Croatia and Ukraine, to name just a few groups, have been demanding increased rights. Most steer away from advancing secessionist demands -- drawing the correct conclusions from Bosnia -- but they all call for increased cultural, and usually educational, rights, as well as the right to local self-government and representation at the national level. Their demands, sometimes couched in antagonistic language and employing loaded words such as "autonomy," have been met with distrust, fear of irredentism, bitterness and reactions ranging from police repression to denial of access to political decision-making structures.
The European ethnic groups living in a minority situation have swiftly internationalized their cause, turning to the United Nations, OSCE, Council of Europe and European Union for redress and assistance. In all cases they have demanded and received political acceptance of minority rights in the form of declarations asserting the rights of ethnic groups to protection by states, and in some instances, now lobby for the legalization of "collective rights." Such rights, reserved for groups that define themselves according to language, culture, and religion, would mirror individual rights, overlapping and reinforcing them. They would offer greater privileges -- "affirmative action" in a sense -- to groups to protect minorities living in newly- democratizing countries, where "nation-building" often assumes a nationalistic and exclusive aspect dominated by the prevailing ethnic group. Collective, or group, rights would give ethnic groups a legal status commensurate with that of individuals; adding this layer to individual rights would go beyond the newly-established system of minority rights, which recognizes the special needs of ethnic groups, but continues to base them upon individual rights. These distinctions warrant further examination. How does the current minority rights regime affect democracy and its underlying assumptions? What impact does it have on state sovereignty? What should the state forfeit? How far should the rights of ethnic groups extend?
This article will examine the implications of acknowledging minority rights for ethnic groups in Central and Eastern Europe with special reference to the Hungarian diaspora communities in Slovakia and Romania. 2 The first section will outline the current international legalistic approach to ethnic minorities, emphasizing recent post-Cold War developments. The discussion will trace the movement from an international legal regime based strictly on individual rights, as defined by classic liberal democratic theory, to the recognition that such a basis is insufficient. It will then examine the subsequent adoption of the essentially political approach embodied by multiculturalism. The Hungarian case -- including current minority demands and state responses -- will provide a point of reference for discussion and a basis for drawing some conclusions about the challenges ethnic minorities pose to classic liberal-democratic theory. Ultimately, the article will demonstrate that in the long run, common political and legal concepts need to be re-examined and re-defined (i.e., the relationship between ethnicity, democracy and majorities/minorities needs to be restructured), and that in the short run, the solutions to ethnically-based political power struggles lie not in the realm of international law, but in the development of liberal democracy.
The rise of the nation-state and nationalism created minority status. 3 Under multiethnic monarchies or theocracies ethnicity was constrained by stronger political forces, and therefore played a much smaller role in the formation and collapse of political units. It was only as territories were consolidated into new states based on cultural and linguistic affinity that this changed. The charge of nationalism -- to make ethnic and territorial boundaries coincide -- threatened many nations with extinction or assimilation. States obtained "sovereignty" to protect them from domination or interference by outside powers; within its boundaries state government was the sole enforcer of law and order. Later, as notions of self-government and democracy evolved, individual rights began to encompass rights to observe different religions and cultural traditions, and to employ different languages. 4 In some cases, this was reflected in a "bill of rights." Nonetheless, classic liberal democratic theorists did not concern themselves extensively with the question of ethnic minorities. It has been only in the twentieth century that academics and policymakers have attempted to clarify the relationship between ethnicity and democracy.
Individual rights were extended to collectivities or ethnic groups to some extent with the introduction of the term "self-determination," and especially through Woodrow Wilson's Fourteen Points. "To deal with the awkward fact that the national and political maps of the new Europe could not be made to coincide, the League of Nations Covenant provided for the protection of national minorities." 5 But these provisions were in many instances flagrantly disregarded, and after 1945, minority group rights were left out of the UN Charter altogether. Self-determination now only included the rights of sovereign states and individuals. The possibility of territorial revision, as delineated in Woodrow Wilson's original draft of Article X of the League Covenant, was also omitted. National self-determination, in the context of the post-World War II period, became synonymous with decolonization. The UN Charter itself referred to "peoples," a seemingly more neutral term than "nations" or "ethnic groups," but "if it was impossible a priori to establish which national groups had a right to self-determination, there was no reason to suppose that defining a people would be easier." 6
Though "self-determination" was based on individual rights, in practice it was granted to geographically-concentrated groups, but not scattered members of a diaspora. Under this conception of self-determination, ethnic communities now appeared to have the option to secede from states to create their own polities. Ultimately, however, self-determination as it was exercised through secession or irredentism was doomed. First, it was difficult to gauge the will of groups in a democratic manner, because in order to determine what was a majority vote, some arbitrary, or at least subjective, district lines had to be drawn. "...The absolute right of self-determination as expressed in referenda is sociologically irrelevant if it does not contain general criteria concerning electoral boundaries." 7 Second, in Europe, the concept came into direct conflict with balance of power politics: the fear of a multitude of unstable small states and, closer to home, of a diminution of influence, led the large powers to resist any attempt to shift boundaries. Finally, the experience with the Third Reich, where Hitler used the pretense of providing protection to ethnic Germans to invade neighboring sovereign states, led most decisionmakers to view collective rights in a critical light. The controversial nature of collective rights was evident in the fact that the United Nations Universal Declaration made no reference to the rights of groups.
However, in the 1960s experts began to express dissatisfaction with the UN Charter and other existing human rights documents for their failure to separate minority rights from human rights, thereby leaving them insufficiently addressed. The drafters of the 1966 UN Covenant on Civil and Political Rights (CCPR) responded by including Article 27, which states that: "in those States, in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language." 8 It was acknowledged here that minorities had cultural, religious and linguistic rights "in community" with one another. This was a significant departure from the strict argument that minority rights are only a subset of human rights.
In the final analysis, however, balance of power politics won out in Europe with the 1975 Helsinki Accords, wherein all parties -- from the Soviet Union and its satellites to the Western Europeans -- agreed to adhere to post-World War II borders. Borders were henceforth non-negotiable, but minorities were to be respected. The Soviet Union and the Eastern Bloc countries committed themselves to a document that included a "Declaration on Principles Guiding Relations Between Participating States." Principle VII, paragraph 4 declared: "participating States on whose territory national minorities exist will respect the right of persons belonging to such minorities to equality before the law, will afford them the full opportunity for the actual enjoyment of human rights and fundamental freedoms and will, in this manner, protect their legitimate interests in this sphere." 9 Whether they were willing to take their obligations seriously or not, the communist countries were now accountable for meeting certain standards. Measurement of these standards, which referred only to individuals, continued to be troublesome. However, the Helsinki Accords provided human rights groups and sympathetic governments with something to point to as the basis for their arguments on behalf of discriminated persons.
In the post-Cold War period much of the debate among minority group advocates, international lawyers, and bureaucrats has focused more immediately on the expansion of existing individual rights to cover the rights of linguistic, cultural, and/or religious groups, and increasingly, on extending special collective rights to such groups. As a result of these efforts, the European minority regime has been refashioned -- still on the basis of individual rights -- to recognize and encourage multiculturalism within the sovereign states. Driving these changing perspectives are the experiences in Yugoslavia, Georgia, Azerbaijan and elsewhere, which revealed the flaw in the individualistic `republican' conception, 10 and therefore left no basis or justification for secession. Formal non-discrimination failed to alter reality. "Many state laws and policies may be ethno-nationally neutral on their face, while in fact substantially disadvantaging ethnonational minorities." 11 Continued sensitivity to threats of secession appear to support this. "If ethno-national neutrality were attainable, a republican would not be antisecessionist." 12 If borders were irrelevant, it would be because no one wanted to secede; no one would perceive themselves as a minority. But states are worried and borders matter. Thus, the multicultural definition of the state, which came into favor from 1991 on, "...concedes that ethno-nationalism and public life cannot be decoupled." 13 States do and can have predominant national identities, but they must protect their minorities.
In 1990 the Conference on Security and Cooperation in Europe (CSCE) Copenhagen Conference on the Human Dimension placed the minority issue on the agenda. The Copenhagen Document that resulted from the conference contains a list of rights, ".. the broadest inventory of minority rights to have been adopted by an international body to date." 14 The document defends the rights of "persons belonging to national minorities to exercise fully and effectively their human rights and fundamental freedoms without any discrimination and in full equality before the law" and obliges states to "adopt, where necessary, special measures" to insure full equality. 15 Specific rights that can be exercised individually or in community include: utilizing the mother tongue in private and public, professing and practicing religion, establishing and maintaining cross-border contacts, establishing organizations and associations, and participating in non-governmental organizations. States are required to create conditions that protect and promote the ethnic, cultural, linguistic, and religious identities of national minorities. This can be accomplished by forming "appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned." 16 Finally, the CSCE states recognized the right of individuals to certain remedies in the event that their rights are harmed.
The 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Article 4.3, maintains that states should create opportunities to learn or be instructed in a minority mother tongue. Yet this, like the CSCE/OSCE 17 documents, is conditioned by the words "wherever possible." Likewise, the 1995 Council of Europe Framework Convention for the Protection of National Minorities, though it contains an extensive list of rights accruing to ethnic, linguistic, cultural or religious minorities, continues to firmly uphold the centrality of the state. The parties to this agreement, like the OSCE and UN documents, were the states. Moreover, almost an entire section (Section III. arts. 20-22) is devoted to reaffirming state sovereignty. "Nothing in the present framework Convention shall be interpreted as implying any right to engage in any activity or perform any act contrary to the fundamental principles of international law and in particular of sovereign equality, territorial integrity and political independence of States." 18 In all of these instances, the terms sovereignty, minority, territorial integrity and political independence are not clarified and in none of these documents are they legally binding.
In short, minority rights clauses instructed states to offer special protection to minorities and rights equal to those enjoyed by majorities in particular fields, especially education, culture and language. At the same time, the fact that they were based on individual rights was deemed insufficient by those who viewed the conditions for group survival as distinct from that of preservation of an individual's ethnicity. Thus, the drive for collective rights continues. Minorities and their advocates argue that multiculturalism offers insufficient protection and no compensation for second-class citizenship status, relying as it does on the states for enforcement. The sovereign status of states allows ethnic majorities to block measures that would give minorities greater control over their culture and education. "Thus the principle of minority rights, like the principle of self-determination, entered international law only to find itself inapplicable in those states that denied it." 19 Moreover, the permanence of the ethnic minority condition only serves to perpetuate inequities and the vulnerability of the minority to the majority. Minorities and their representatives insist that only a strict legal regime offering collective rights for ethnic minorities can protect such groups and persistently push collective rights onto the agenda of the organizations charged with addressing human rights and stability in Europe.
In the aftermath of World War I and with the conclusion of the treaties of Trianon and St. Germain, the borders of Austria, Hungary and Romania were redrawn and two "successor states" -- Czechoslovakia and Yugoslavia -- came into existence. The new borders left members of all of the nations, or ethnic groups, outside of the state. Each nation-state contained citizens of a different ethnic group and many states suddenly found themselves with a substantial diaspora community in the region. This was most dramatic in the case of Hungary, which lost two-thirds of its territory and one-third of its population. Roughly three million Hungarians suddenly became foreign citizens. Today, close to two million ethnic Hungarians live in Romania, 600,000 in Slovakia, 400,000 in Serbia (or somewhat less since the recent Balkan war), 200,000 in Ukraine 20 and approximately 200,000 combined in Austria, Croatia and Slovenia. 21 One out of three Hungarians lives in one of the countries bordering Hungary. 22
The Hungarians in Romania and Czechoslovakia suffered under communism from various forms of discrimination; they were targeted by Ceausescu, Husák, and their deputies for assimilation and treated as second-class, potentially traitorous, citizens. As the proclaimed transition toward democracy occurred, new constitutions were drafted and political structures and secondary laws were formulated to implement them. The Hungarian minorities, comprising nearly twelve percent and eight percent of the Romanian and Slovak populations respectively, were not included in the drafting process. 23 Their contributions came in the form of proposals for broader educational, cultural and political rights for minorities and in their negative response to government proposals that ranged from the reactionary and discriminatory to the conservative, laden with weak language and inadequate instruments to ensure legal and political implementation and enforcement.
All of the resulting constitutions fell short of minority expectations. In Romania, while Article 6 granted the right of ethnic identity, Article 1 proclaimed the "unitary and national state" of Romania and Romanian as its only official language. A Romanian foreign ministry official explained, "the formal approach is that unitary is an antonym to federalist state. The word `national' should be read according to Paragraph 4 [of the Romanian constitution]: `Romania is a common land of all its citizens.'" 24 Yet if this were the case, why not employ "democratic" instead of "national" or "republic" instead of "national state?" 25 The September 1992 Slovak constitution likewise speaks of "the Slovak nation" and designates Slovak as the sole official language.
Ethnic groups in Romania and Slovakia are constitutionally entitled to form parties, and have the right to obtain interpretation for documents and in court. In Romania, according to Decree/Law Number 8 on registering and establishing political parties (enacted December 31, 1989), 251 members are required to register a party. Decree/Law Number 92, adopted March 18, 1990, guarantees that "organizations representing the national minorities registered at the date of adoption of this decree-law, which fail to gather the necessary number of votes in order to get, in accordance with paragraph 1 [Article 4], a mandate to the Assembly of Deputies are entitled to one deputy mandate....Organizations of national minorities will be considered similar to political groups, if they propose lists of candidates on behalf of respective minorities." 26 Nevertheless, "the Romanian Government sets out from the principle according to which democracy is one and indivisible: there cannot exist one democracy for persons of Romanian etnic [sic] descent and a different democracy for the persons of other ethnic descent living in Romania." 27
The current "democratic" governments of Prime Minister Vladimír Meciar and President Ion Iliescu in the Slovak Republic and Romania respectively, are not liberal and are in fact, verging on autocratic. 28 While democratic constitutions and institutions exist, the political cultures are far from liberal in the classic sense. Slovak and Romanian citizens may suffer infringements on their individual rights, but the ethnic minorities in these two states are more routinely stigmatized and disadvantaged, politically and economically. 29 In both countries the governing coalitions have introduced secondary legislation regarding education and language rights that directly conflicts with the national constitutions and threatens to strip minorities of even those rights that had been preserved under communism.
Romania
The right to education in the mother-tongue, granted by Article 32 (3) of the Romanian constitution, was qualified by the clause: "The ways in which these rights are exercised shall be established by law." 30 On June 28, 1995, parliament passed, and on July 24, Iliescu signed, an education law which provides only for education in the mother-tongue at the primary and secondary levels. Instruction in the minority language is restricted at the tertiary level. The study of, and proficiency in, the Romanian language is declared compulsory for every Romanian citizen regardless of nationality, a provision which provides a potential justification for denying ethnic minorities translators for official (judicial, etc.) proceedings. The elderly, who were full-grown adults before they involuntarily became Romanian citizens, are particularly vulnerable. "Proficiency" is also an imprecise term, open to interpretation. Another article grants "officially recognized churches" the right to organize educational systems to train their personnel, a provision that is far too narrow in its exclusion of non-recognized churches, the congregation, or members of the community at large.
More disturbingly, a provision dealing with educational content holds that, "The history of Rumanians and the geography of Rumania are to be taught in the Rumanian language at the secondary level and according to the same curriculum and textbooks used by Romanian [sic] classes. In primary education these subjects are taught in the mother-tongue." Romanian history and geography cannot be taught at the secondary level in minority languages and all children will be taught the history of the Romanians, not the history of the nation-state. "Accordingly, ethnic Rumanian children grow up knowing very little about national minorities and their history thereby reducing the chances for a more tolerant generation to develop. This provision is a direct continuation of Ceausescu-era policies: teaching of geography and history in Romanian exclusively [emphasis in original] was only introduced during the 1980s." 31
The education law also bans minority-language vocational training in legal, technical, agricultural and commercial subject areas and provides exclusively for university education in pedagogy and the arts, "if requested and provided for by law." On the vocational level, the law eliminates training in subject areas -- which was permitted even by Ceausescu (though he successfully forced a decline in the number of institutions teaching in minority languages). This is tantamount to a restriction of access to jobs and professions to minorities in their native language, a violation of ILO Convention No. 111 and its 1991 Recommendation to the Romanian government. Finally, the education law maintains that all educational facilities will remain in the hands of the state. The Hungarians, who have yet to obtain compensation for or regain properties expropriated under communism, are permanently denied redress. In fact, the Honorary President of the Hungarian Democratic Union in Romania (HDUR) claims, "The education law renationalizes the church education, limiting secondary and postsecondary education to the Romanian language." 32
The law flies in the face of principles enunciated in the Copenhagen CSCE/OSCE concluding document, the Romanian constitution and Council of Europe recommendations (particularly Recommendation 1201 of 1993). 33 Little attempt was made to work out a legislative solution with the minorities. In fact, though several recommendations of the HDUR were unanimously approved by the Council of National Minorities in July 1993 and were submitted to the government, almost all were rejected.
On July 18, 1995, the HDUR executive body issued a twelve-point plan to protest against implementation of the education law. The strategy included lobbying international organizations, utilizing the Hungarian diaspora to inform international public opinion, and staging several rallies. The twelfth and final point instructed the HDUR "Crisis Commission" to draft "...proposals on further ways to protest, including possible forms of civil disobedience." 34 In a separate statement the executive chairman of HDUR stated that the party will take steps to organize an alternative Hungarian education system in Transylvania. 35
Slovakia
The current Meciar government has adopted a new educational program, which entails the gradual establishment of an "alternative" or bilingual education system. Sources explain, "at these schools students would study part of their curriculum in their mother tongue and part of it in the Slovak language. The current schools for ethnic groups with the entire curriculum taught in their native tongue would remain in place. Hungarian parents would be able to opt for either having their offspring's entire education in his/her mother tongue or for alternative education" 36 In effect, the dismissal of several non-sympathizing principals of Hungarian-language secondary schools indicates the Slovak government's intent to bring all schools under closer government control, probably at the expense -- literally and administratively -- of the Hungarian schools. The proposal has raised the ire of Hungarian political leaders and sparked student demonstrations and declarations advocating civil disobedience.
Furthermore, the government eliminated the 80 million koruny that had been allocated to the Hungarian minority from the 130-140 koruny total allotted to all Slovak minorities for the maintenance of their cultural and educational infrastructure. 37 Compounding this, a new language law was passed by the Slovak parliament on November 15, 1995, restricting the official use of non-Slovak languages to marriage ceremonies. It may also effectively lead to the abolition of all non-Slovak press. 38 This measure exploits the fact that the Basic Treaty Slovakia signed with Hungary to guarantee territorial borders and minority rights defers at various points to national legislation. The treaty has been accepted, with much praise, by ethnic Hungarians in Slovakia, but restrictive national laws -- violating the principles, letter and spirit of the treaty -- would place this important prerequisite to normalization of Hungarian-Slovak relations in jeopardy. Ethnic Hungarians protest: "Justification for teaching in our native language is solely determined by the state, not by citizens or demand. Education is still the main area in which state totalitarianism can be followed, even though Slovakia's political system has formally become pluralistic. The only reason why education in Slovakia has not been delegated to local governments is not to allow elected Hungarians to have a voice in matters of education." 39
Decentralization
Indeed, the conflict can be characterized as a struggle between local governments and the central government. The ethnic Hungarian former Yugoslav Minister of Justice under Milan Panic, described this phenomenon in the Balkan context: "Things have been made worse by an extreme centralization, which is -- in part -- inspired by a striving not to allow any decisions to be made at a level where the ethnic and socio-cultural mix might be different than that at the level of the (nation) state." 40 Centralized political structures and processes serve majority interests at a cost to minorities. In Slovakia, for example, the Meciar government has continually advocated redistricting Southern Slovakia, the region where Hungarians are most heavily concentrated, so that the Hungarians would be divided among five larger districts running wider from north to south, clearly in order to dilute the ethnic minority vote. This reflects a general practice in less-than-liberal democracies. "Minorities have frequently found that the geographic region within which they live has been divided into several political units, thus limiting the possibility of their group receiving representation in local, regional or national governing bodies." 41
Under Iliescu, the system of government-appointed prefects has undermined the power of local authorities by placing a check on their activities. When local authorities in several counties permitted the posting of bilingual or trilingual (Romanian-Hungarian or Romanian-Hungarian-German) signs, the prefects filed lawsuits against the localities and in Mures County -- where Hungarians constitute 40 percent of the population -- the prefect had the signs dismantled in seventeen villages without waiting for a court decision. 42 In thirteen out of sixteen cases argued from 1993 to July 1994, the courts ruled in favor of the government-appointed prefects and against the democratically-elected local councils, despite the fact that the prefects acted in violation of Article 7(4) of the Council of Europe's Recommendation 1201 (Protocol on the Rights of National Minorities to the European Convention on Human Rights) 43 and Article 6 of the Romanian constitution, which protects minorities' right to "preserve, develop and express their ethnic, cultural, linguistic and religious identity." 44
The ethnic Hungarian political parties have responded to the challenge of centralization and the perceived opportunities inherent in the transition to democracy with peaceful 45 articulation of their proposals for local, ethnic self-government. Without exception, the main organizations representing the Hungarians living in the Central and Eastern European diaspora advocate a concept they call "autonomy" as the solution to their troubles and the means for resolving the conflicts that have evolved between them and their ethnic majority governments. "Autonomy," as it is used in the literature and statements of the Hungarian minorities, refers to self-government in cultural and administrative domains, "guaranteeing genuine rather than merely formal equality of rights of the national and ethnic minorities..." 46 The minority leaderships elaborate by dividing this "autonomy concept" into three components: personal autonomy, local autonomy and territorial autonomy.
The types of autonomy are designed to correspond to the different minority situations within which the Hungarians find themselves. Minorities that are territorially scattered obtain cultural autonomy, while those in compact areas -- where they are concentrated and make up over 50 percent of the population (in Romania this applies to Harghita and Covasna counties where 75-80 percent of the population is Hungarian) -- compound their cultural rights with local autonomy, and contiguous minority communities also receive regional autonomy. Local autonomy augments personal autonomy by providing the minorities with additional language rights in local administrative procedures. Regional or territorial autonomy is possible only if the members of the minority are physically concentrated. If not, personal autonomy is necessary to protect minority rights to education -- separate schooling -- and preservation of cultural traditions, not to mention language. 47
Personal autonomy deals essentially with the individual rights of members of a minority group. The Hungarian documents generally cite the Helsinki Final Act, Concluding Documents of the Madrid and Vienna follow-up meetings, the CSCE/OSCE Paris Charter for a New Europe, and the position of the Geneva expert committee on national minorities, as well as proposals of the Conference on Yugoslavia in the Hague as providing the legal and political basis for these rights. The statements and agreements that resulted from the above-mentioned list of meetings all assert the inviolable and inalienable rights of minorities to protect their identities, use their national symbols and, in principle, to form local and national institutions of self-government to exercise their rights. Specifically, this includes the use of the mother tongue in private life and opportunities for education in that language. Cultural and religious (often overlapping) traditions and practices are publicly permitted and encouraged, and individuals are not hindered in their contacts with the mother country. Protecting these ethnic, cultural, religious and linguistic identities is "...justified both by humanitarian political principles and by the minorities' participation in the general economic processes." 48
The Hungarian concept, however, goes beyond the existing European legal and political declarations, claiming that personal autonomy rests on the recognition of the collective rights of a Hungarian community and its collective legal identity. "The ambition of the Hungarian minority is to be accepted as a community in the state." 49 Though collective minority rights have been resisted on the international level, the Hungarian minority organizations argue, "the liberty of individuals cannot be ensured from the point of view of national affiliation unless protection is accorded to the national minority itself. Only assurance of collective rights affords a real chance of freedom and expression of will to the national minorities." 50 Ethnic groups must have the guaranteed ability to control their own affairs. Moderate ethnic Hungarians in the diaspora even agree, "Collective rights are not an end-all, but we need them until society here is liberal, we need them temporarily. As long as the state controls taxes and money there is a need for collective rights." 51
Based on such collective rights, the Hungarian minority groups advocate local autonomy, or self-government, in areas where the minority constitutes either a given percentage or is the majority. 52 Accordingly, state budget allocations are made for bilingual place-name and street-name signs and inscriptions on public buildings. Printed materials used in public administrative procedures are available in the language of the minorities, and officers conversant in the minority language are employed by local government authorities to deal with minority inhabitants. Regional, or territorial autonomy is also advanced by some Hungarian groups, whereby territorially-contiguous communities with an ethnic Hungarian majority form a "communality," as do Hungarian-majority settlements in the territory of other ethnic majority communities. The aggregate of these special areas of Hungarian majority constitute an autonomous area. Such an area obtains jurisdiction over not only cultural and educational policy, but also public order. Under this configuration, settlements with another ethnic majority that lie on the perimeter of the areas may choose to disassociate. This last type of autonomy is, however, much disputed even within the Hungarian minority communities, and is increasingly regarded as impossible to achieve.
Hungarian minorities and other proponents of supplementing the current (individual-rights based) minority rights regime with collective rights argue that collective rights should be allocated based on rights that accrue to individual members of an ethnic group when they come together or act as a group. Accordingly, minorities require additional protection because "...some rights find their locus in the community rather than the individuals who comprise the community." 53 Beyond this, advocates of collective rights are divided between those who maintain that national legislation and international agreements should secure the rights of minority ethnic groups without granting rights that the majority does not share, and those espousing a more "aggressive" approach whereby, "...minority group members must be given extra rights, rights that extend beyond those extended to the majority." 54 The latter approach is based on reasoning similar to that of the US Supreme Court in the majority opinion of the case Regents of the University of California v. Bakke, 438 U.S. 265 (1978) -- that under conditions of disproportionate discrimination formal inequality may be necessary to remedy the resulting situation. "The fact that facially neutral statutes can impact more adversely on minority groups than upon the majority suggests that collective guarantees of rights for ethnic minorities that exist beyond those afforded to members of the majority are both necessary and justified." 55 Thus, the Slovak and Romanian constitutions do not directly and explicitly discriminate against the Hungarians by designating an official language as the language of instruction at all levels -- though recent secondary legislation does. Nonetheless, any minority would find that this positive expression of preference is a de facto restriction on the use of their languages, with more discriminating effects than a "negative" legal situation in which no prohibition on restrictions is in place. The case for collective rights is often based upon the desire to compensate for situations of enduring imbalances with respect to the political power held by ethnic majorities and minorities. 56 Indeed, it is the distinction between apparently immutable ethnic interest groups and shifting interest-based coalitions that poses the greatest challenge to democracy as defined by classic theory.
Liberal democracy, as it is understood in the 1990s, is a democracy that combines the institutional structures of democracy, which rely mainly on majority rule, with a thriving pluralist civil society that protects the liberties of all minority groups, ethnic or otherwise. 57 While democracy is also territorially based (i.e., the majority is confined within specific borders), civil society creates enough "space" for private, non-governmental initiative. Thus, minorities are capable of a degree of self-determination within limited spheres, such as culture and education. Liberal democracy, as found in the United States, Western Europe, Japan, India, etc., allows ethnic minorities to organize to fill the political framework with their unique contributions to society. If they seize the opportunity, they will find that they have created something that is part of the civil society, something that is not controlled by the state; it may be protected -- but not directed -- by the state.
The troubling scenario occurs in democratizing states such as Slovakia and Romania, where liberal democracy appears to be far out of reach, where only institutional or nominal democracy exists, and where ethnic minorities are permitted a voice to express concern, but not to effect legislative change. Unfortunately, classic democratic theory offers no counsel for these minority groups. It addresses the rights of minorities and the contributions they make to society, but fails to differentiate ethnic minorities from political ones. The economist Friedrich Hayek writes, "it is the great merit of the market that it serves minorities as well as majorities. There are some fields, particularly those usually described as `cultural' concerns, in which it must even appear doubtful whether the views of majorities ought to be allowed to gain a preponderant influence, or those of small groups overlooked -- as is likely to happen when the political organization becomes the only channel through which some tastes can express themselves." 58 Hayek opposes the institutionalization of culture, which would only eliminate alternative, minority perspectives which are vital to the progress of society in general. He, however, operates under the assumption that the political process is dynamic and fluid; cross-cutting interests will facilitate the organization and reorganization of alliances. "The argument for democracy presupposes that any minority opinion may become a majority one." 59 Likewise, Herbert Spencer asserts, "...The right of a majority is a purely conditional right, valid only within specific limits." 60 In the absence of agreement there is no supremacy of majority over minority, no powers and obligations; in the presence of agreement power and obligations are divided between majority and minority. 61 Both Hayek and Spencer regard the various interest groups from the Lockean (and libertarian) perspective, not through the prism of nationalism and ethno-territorial rivalry.
The Lockean notion of democracy based on individual rights is unsatisfying and misleading because it assumes that all majorities are temporary. "...If liberal society contains comprehensive minority communities, this assumption becomes dubious, since such communities, which embody all or most of the important interests of their members, can never form a majority in the polity, and no majority has an interest in the particular needs of these minorities. These are not Lockean minorities -- i.e., those who happen to be on the losing side of a decision-making vote -- but structurally subordinate elements of society." 62 At the core of the dispute between ethnic majorities and minorities is the fact likely to happenthat the division between them is permanent: it is not linked to shifting political debates, but rather to the question of identity, even if that identity can coexist with a strong sense of civic, as opposed to national, participation, or belonging. Of course, Hayek might argue that majorities can be persuaded to support minority agendas, just as the 1960s civil rights movement recruited non-blacks and ultimately raised awareness to the level needed to pass significant pieces of legislation that would directly improve conditions for African-Americans, but not necessarily for other Americans. Such consensus, however, is rare among ethnic groups and difficult to maintain over the long-term. In addition, even liberal nation-states that appear to emphasize a patriotism based on citizenship have a predominant -- albeit suppressed -- ethnicity. Consequently, in ethnically heterogenous societies "unlimited democracy affords no protection of the minority against the reigning majority." 63
The implications of the omission of the ethnic dimension become evident and troubling upon consideration of the self-determination of peoples as defined by classic democrats. "The `people' who judge whether the right to revolution should be activated turn out to be the majority. Thus the theory of individual rights leads to the doctrine of majority rule." 64 An ethnic minority, therefore, has an incentive to demand its own state, that is, to call for secession. This is certainly true within a non-liberal democracy where power is centralized and legal protection for minorities is virtually absent. Without a developed civil society, there are no alternative power structures to balance the authority of the majority-controlled government, and minorities become vulnerable to the sort of legislation currently being adopted in Slovakia and Romania.
Multiculturalism and collective rights attempt to address this problem by creating legal protection for minorities, but "...the notion of minority rights does not meet the fundamental challenge posed by ethnonational conflict." 65 The power of enforcement still lies with the state, which possesses a special sovereignty vis-à-vis other states or international organizations or law. Minority rights fail to address the problem of self-determination for ethnic minorities, a problem inherent in "a territorial-majoritarian conception of democracy" where "democracy is the rule of the majority of the population of a clearly defined territorial unit." 66 They simply provide for the coexistence of an "official" majority "ethnonationalism" and minority rights, which would provide ethnic minorities with the basic guarantees to discourage them from seceding. Nonetheless, "if the democracy mission is to meet the challenge of ethnonational conflict, it must provide a justification of borders." 67 There must be a basis within democratic theory for self-determination for ethnic minority groups in its various forms, ranging from the personal autonomy proposed by the Hungarians to any combination of their three types of autonomy.
The solution may lie in a revision of our understanding of state sovereignty and democracy. Any resolution of the tension between democracy and ethnic group self-determination must contain a re-evaluation of state sovereignty, and within that context, of self-determination. "One can overcome the possible conflicts of the future only if one does focus on the concept of the state and the concept of self-determination." 68 The role of the state must be differentiated from that of nations, and this may entail limiting state sovereignty to political or administrative purposes, leaving cultural and educational agendas to nations, and re-defining unlimited sovereignty to encompass mankind. This approach is based on the series of convictions that, "the state has to be limited to the political, civil society and it has to be open for all human beings as part of mankind. States should never become hostages of their nations. [Emphasis in original.] The national community therefore has to be separated from the state. Its right to self-determination must be limited to self-determination for cultural and educational values, but not for political aims." 69 In any case, decentralization and the vital significance of the pluralistic civil society ought to be emphasized, particularly in the contemporary Central and Eastern European scenarios. Only then can the issue of collective rights be adequately considered.
At this juncture, the decision on the applicability of collective rights to situations such as that of the Hungarian minority must be deferred until liberal democratic theory and international law have developed a coherent view of the relationships between individual and collective values and rights. "In the specific context of democratization, our best hope, perhaps our only hope, is to start sketching a conception of democracy that refrains from sanctifying territorialism and majoritarianism (and minoritarianism)." 70
The Hungarian proposals for autonomy attempt to fix minority rights and privileges via the legal codification of collective rights. This may be more than collective rights can do, and moreover, may actually serve to infringe upon individual rights and to fix ethnic divisions à la Lebanon from 1943-75. 71 Before international lawyers and politicians capitulate to Hungarian anxiety and pressure, the basis upon which minority rights are currently extended ought to be clarified.
The theoretical argument for granting minorities more privileges and autonomy, based on individual and/or collective rights, is still being formulated. In the meantime, the daily predicament does not disappear. If the goal is to accommodate minority cultures and languages, as well as education rights by removing the central government from these local spheres of activity, the task for Slovakia and Romania -- indeed, anywhere in the world -- is formidable. It is particularly difficult to imagine the possibility of decentralization given the historical legacy of the most recent periods, from Habsburg rule up to and including the communist era.
In light of Central and Eastern European political development and the resulting social mentality, it is unrealistic to expect central governments to revoke recently-enacted detailed legislation in areas affecting minorities, such as culture, and then to abstain from any regulation at all. Under the current regimes in Romania and Slovakia, as demonstrated in the case studies, no meaningful change can be realized in the status of ethnic minorities. This is not to say that the minorities should not argue their cases before their parliaments, but the most fruitful results can be achieved if the people of Slovakia and Romania work to create alternatives to the government monopoly. Local initiatives and independent activity could be harnessed to erode, and ultimately diffuse, the power of the central government, and to nurture the roots of a potential groundswell of support for individuals and political groups with a more liberal approach. Then, having forged their own structures and financial foundations, minorities will cease to be completely dependent on the state for their cultural sustenance.
Parallel to these efforts, the Hungarians must work with the Slovaks, Romanians, and international organizations to establish trust and to determine which autonomy formula will be most effective. Clarification of the relationship between ethnicity and democracy will only further this stability-forcing objective. In the short run, it will not be the legalization of the notion of "collective rights" or the inclusion of Hungary, Slovakia and Romania into the EU or NATO that will offer the possibility for Hungarian minorities to protect their education and culture. Instead, their ability to do so will be inextricably intertwined with the fate of the structure and process of governing in the nation-states concerned. Only decentralization, i.e., minimizing involvement of prime ministers and other national politicians, will grant ethnic minorities, including Hungarians, the freedom to develop local programs that not only meet Hungarian, but also local Slovak and Romanian, needs. Subnational ethno-political conflict can be avoided in the short term via NGO activity, private initiative and constant negotiation. But in the long run, the international community must address the vital challenge presented by minorities, such as the Hungarian ones, to modern democratic states. Democratic theory must be reconciled with nationalism.
Note 1: US armed forces training village in Hohenfels, Germany, approximately 200 miles from Bosnia. Back.
Note 2: The situation in the Slovak Republic and Romania is most politically sensitive. There are more Hungarians in either country than in Serbia, Ukraine, Croatia or Austria. Back.
Note 3: The term nationalism is used here, as Ernest Gellner defines it: "... a political principle which holds that the political and the national unit should be congruent." Nation is defined as a group of people who share a national consciousness, which can be based on several variables in any number of combinatiNations and Nationalism (Ithaca, New York: Cornell University Press, 1983), 1. There is still no definition of "minority" that is accepted by international law, although a consensus has evolved in favor of the following formulation of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities: A group numerically inferior to the rest of the population of non-dominant position, whose members -- being nationals of the State with ethnic, religious, or linguistic characteristics differing from the majority of the population and show, if only implicitly, a sense of solidarity towards preserving their culture, traditions, religion or language. See Francesco Capotorti, "Study on the Rights Belonging to Ethnic, Religious and Linguistic Minorities," at 16-26 E/CN.4/Sub.2/384/Rev. 1, UN Sales No. E.78XIV.1 (1979). Back.
Note 4: See J. S. Mill and his contemporaries. Back.
Note 5: James Mayall, "Nationalism and International Security after the Cold War," Survival (Spring 1992), 20. Back.
Note 7: Géza Ankerl, "The Native Right to Speak Hungarian in the Carpathian Basin," The Hungarian Quarterly (Spring 1994), 9. Back.
Note 8: Florence Benoît-Rohmer and Hilde Hardeman, The Minority Question in Europe: Towards the Creation of a Coherent European Regime (Brussels: Center for European Policy Studies, 1994), 10. Back.
Note 10: The republican concept of the nation-state, which postulates a neutral state without ethno-national identity, is best exemplified by Ernest Renan's writings. See Ernest Renan, Q´est-ce q´une nation? (Paris: Calmann Lévy, Ancienne Maison Michel Lévy Frères, 1882). Back.
Note 11: Jean E. Manas, "The Council of Europe's Democracy Ideal and the Challenge of Ethno-national Strife," in Abram Chayes and Antonia Handler Chayes, eds., Preventing Conflict in the Post-Communist World: Mobilizing International and Regional Organizations (Washington: The Brookings Institution, 1995), 121. Back.
Note 14: Benoît-Rohmer, 10. Back.
Note 15: Human Rights Law Journal11, no. 1-2 (1990), 233. Back.
Note 17: At the January 1995 CSCE summit in Budapest the organization was rechristened the Organization on Cooperation and Security in Europe (OSCE). Back.
Note 18: Council of Europe, Framework Convention For The Protection of National Minorities,Strasbourg, February 1, 1995, Section III, Article 21. Back.
Note 20: Most of these Sub-Carpathian Hungarians (85 percent) live in a 25-kilometer zone along the Slovak, Hungarian and Romanian border that was given to Czechoslovakia after the first World War and then taken by Stalin in 1945. Back.
Note 21: George Schšpflin, Hungary and Its Neighbors (Paris: Institute for Security Studies, Western European Union, May 1993), 2. Back.
Note 22: Johnathan Sunley, Hungary: The Triumph of Compromise (London: Institute for European Defense and Strategic Studies, 1993), 28. Back.
Note 23: The percentage for Romania was found in The Democratic Alliance of Hungarians in Romania: Documents 1 (Cluj: 1994), 35, and the figure for Slovakia was cited by Edit Bauer, Member of Parliament (Coexistence Party), Republic of Slovakia, during Promoting European Security and Integration: The Role of National Minorities, conference organized by the Hungarian-American Coalition/Potomac Foundation, Washington, DC, November 3, 1995. Bauer maintained that her figures were based on the 1995 census and added that 11.5 percent of the Slovak population claimed Hungarian as a mother-tongue. The CIA World Fact Book: 1995 (http://www.odci.gov/ cia/publications/95fact/index.html) put the Hungarians at 8.9 percent and 10.7 percent of the Romanian and Slovak populations, respectively. Back.
Note 24: Alexandru A. Farcas, Director, Division for Human Rights, Ministry of Foreign Affairs, Romania, interview with author, Bucharest, July 8, 1994. Back.
Note 25: Since the author does not speak Romanian, the chance that this discrepancy is a question of improper translation cannot be entirely discounted. Back.
Note 26: Romanian Ministry of Foreign Affairs, White Paper on the Rights of the Persons Belonging to Ethnic, Linguistic or Religious Minorities in Romania (Bucharest: Ministry of Foreign Affairs of Romania, June 1991), 7. Back.
Note 28: Nicolae Vacaroiu is currently the Prime Minister of Romania, but President Iliescu is widely regarded as controlling the government agenda. Back.
Note 29: This is not necessarily the case where the minority political leadership is concerned, since they can turn to the mother-country, Hungary, and to the international Hungarian diaspora for assistance. Back.
Note 30: Romanian Council for Ethnic Minorities, The Legislative and Institutional Framework for the Ethnic Minorities in Romania (Bucharest: Government of Romania/Council for Ethnic Minorities, 1993), 18. Back.
Note 32: Laszló Tokés, Honorary President, Hungarian Democratic Union of Romania, conference statement during Promoting European Security and Integration, Washington, November 3, 1995. Back.
Note 33: The relevant portion of Council of Europe Recommendation 1201 (1993) reads: "Every person belonging to a national minority shall have the right to learn his/her mother tongue and to receive an education in his/her mother tongue at an appropriate number of schools and of state educational and training establishments, located in accordance with the geographical distribution of the minority." Back.
Note 34: "Ethnic Hungarians: Ethnic Hungarians Issue 12-Point Plan against Education Law," The British Broadcasting Corporation, July 27, 1995. Back.
Note 35: Romania: EIU Country Report, The Economist Intelligence Unit, Ltd., Third Quarter 1995, 10. Back.
Note 36: "Newspaper Comments on Issue of Minority Languages in Schools," The British Broadcasting Corporation, March 2, 1995. Back.
Note 37: "The Position of the General Educational Meeting of Hungarians in Slovakia," Szabad Úság,May 3, 1995. Back.
Note 38: The Slovak President, Michal Kovac, signed the bill into law upon the stipulation that the government adopt a separate minority language law, which would protect the language rights that now appear threatened. The Slovak Minister of Culture has declared that the drafting process has been initiated. Back.
Note 39: "The Position of the General Educational Meeting of Hungarians in Slovakia." Back.
Note 40: Tibor Varady, "Remarks on Cultural Pluralism and Multiethnicity in Ethnic Societies," conference speech, 1994, 2. Back.
Note 41: Michael R. Geroe and Thomas K. Gump, "Hungary and a New Paradigm for the Protection of Ethnic Minorities in Central and Eastern Europe," Columbia Journal of Transnational Law (1995), 683. Back.
Note 42: Hungarian Human Rights Foundation release, "Rumanian Government Prefects Systematically Violate Principles of Local Democracy: Authorities Forcibly Remove Bi-Lingual Signs," New York, Hungarian Human Rights Foundation, July 20, 1994, 2. Back.
Note 43: The protocol, ratified by Romania, holds: "In regions in which substantial numbers of a national minority are settled, the persons belonging to that minority shall have the right to display in their language local names, signs, inscriptions and other similar information visible to the public." Article 20 of the Romanian constitution gives precedence to international law over Romanian law. Back.
Note 44: Hungarian Human Rights Foundation, "Rumanian Government Prefects." Back.
Note 45: This point must not go unappreciated, nor should it be taken for granted, despite the fact that the ethnic Hungarian leadership is composed of intellectuals, usually literati, who advocate rational, democratic, and non-violent means toward obtaining their ends. Back.
Note 46: Csaba Tabajdi, Functions and Dysfunctions of the National Factor in Central and Eastern Europe (Budapest: European House, 1994), 17. Back.
Note 47: Béla Markó, President, Hungarian Democratic Union of Romania, Harvard Circle meeting, Newton, MA, October 20, 1994. Back.
Note 48: Memorandum on the Self-Government of Hungarians in the Republic of Serbia (Budapest: Foundation for Southland Hungarians, 1992), 9. Back.
Note 49: Géza Entz, Former Head, Office for Hungarians Beyond the Borders, interview with author, Budapest, Hungary, June 16, 1994. Back.
Note 50: Memorandum on the Self-Government,6. Back.
Note 51: Laszl— Végel, Director, Novi Sad Office, Soros Foundation, and writer, interview with author, Novi Sad, Serbia, June 22, 1994. Back.
Note 52: This figure differs among the Hungarian groups with the Democratic Community of Hungarians in Vojvodina (DCHV) -- one of two Hungarian political groups in Vojvodina, Serbia -- calling for ten percent, while the HDUR requires fifty percent. Back.
Note 53: Geroe and Gump, 675. Back.
Note 57: See Ernest Gellner, Conditions of Liberty: Civil Society and Its Rivals (New York: The Penguin Press, 1994), for an elaboration of the relationship between democracy and civil society. The source on the relationship between these two concepts and liberty is "Circumventing the State: The Case for Non-State Solutions to Hungarian Minority Demands for Education and Cultural Rights," unpublished paper by this author. Back.
Note 58: F.A. Hayek, Law, Legislation and Liberty: Volume 3: The Political Order of a Free People (Chicago: The University of Chicago Press, 1979), 49. Back.
Note 60: Herbert Spencer, The Man Versus the State (Caldwell, Idaho: Caxton Printers, 1940), 181-82. Back.
Note 61: Spencer favored the republican solution, particularly of the United States, where individual rights, he felt, would prevent a tyranny of the majority. The right of the majority only held constant with respect to the use of force, domestically against criminals, and internationally against aggressor states. Back.
Note 62: Michael Freeman, "Minority Rights in Liberal-Democratic Theory" in Nationalism and Minorities (Belgrade: Institute for Social Science and University of Essex, 1995), 11. Back.
Note 68: Thomas Fleiner, "State-Nation-Nationalities-Autonomy, The Nation-State Reconsidered: Basic Concepts for Autonomy, Decentralization and Minority-Protection in a Post-Modern World," Conference on Self-determination, Autonomy and Independence in the 21st Century,United Nations Office at Vienna (January 16-17, 1995), 25. Back.
Note 69: Ibid. 23. Fleiner's use of "civil society" differs from the one employed throughout the paper. Back.
Note 71: The National Pact of 1943 established ethnic quotas that resulted in a severely divided society and the 1975-84 Lebanese civil war. See Donald L. Horowitz, thnic Groups in Conflict (Berkeley: University of California Press, 1985). Back.
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