90th Anniversary of the Treaty of Trianon: the default international perspective
As sovereignty and citizenship have been surprising resilient features of the post-Westphalian world, the 2001 Hungarian Status Law represented a radical challenge to existing norms; it invoked a neo-medievalist world in which there are competing legitimate organising principles for the international arena and in which individuals are legal members of a transnational community while also being under the control of the territory on which they reside. […]
[…] these laws move towards a concept of a ‘transsovereign nation’ and a vision of Europe as a collection of nations, not states. […]
The pre-Westphalian world was characterized as a ‘system of overlapping authority and multiple loyalty’. Not only were the Church and Holy Roman Empire based on different notions of legitimacy, but individual rulers were enmeshed in complex webs of often contradictory obligations. The emergence of the sovereign state therefore signalled a fundamental change in the international system. As Westphalian sovereignty commonly refers to legitimate and hierarchical authority within the state and bounded, rational states operating in a world of external anarchy, the emergence of neo-medievalism would entail the decline of state sovereignty. […]
Currently the word ‘neo-medievalism’ is generally used in two ways. Focusing on how states have lost control over their domestic affairs, one details the rise of non-states actors, transnational networks, and international institutions. However, increasing interdependence and reduction in domestic capacities does not necessarily reduce sovereignty in the absence of new organising principles competing with the state. The European Union (EU) may represent an alternative view of neo-medievalism. […] While the EU is already more than the sum of its states, states are not disappearing. While sovereignty may be diminished, authority structures are not in open competition, as would be the case if authority were truly overlapping. Because of this strong institutionalisation, the EU is far from the chaos and competition implied by neo-medievalism. Furthermore, neither of these models generates real issues of multiple loyalty. […]
Currently sovereignty in Europe is understood to mean that states may not interfere directly into the domestic affairs of other states; in other words, horizontal violations of Westphalian sovereignty are impermissible. International institutions do not constitute the excluded ‘external actors’, so vertical violations of sovereignty are allowed. […]
Since the Treaty of Westphalia, most major European treaties have addressed minority rights. The mere existence of international documents delimiting state treatment of its citizens seems to violate usual definitions of Westphalian sovereignty. The grand bargain of Westphalian sovereignty, though, has been that states are recognized as independent entities with power over their people to the extent that they do not violate certain rights of minorities. If norms are violated, the international community has the collective right to intervene. This bargain is rooted in fears of prolonged violence, and while not consistently applied, its endurance for 350 years is rather remarkable. […] The sudden religious differences combined with the principle cuius regio, eius religio (the religion of the ruler is the religion of the ruled) meant that state borders clearly marked the boundaries of religious identity communities, although religious minority communities were created in the process. Given that interventions of one state into another were increasingly framed in terms of protecting co-religionists and the resulting ‘religious’ wars were incredibly destructive, the Treaties of Westphalia and, by the mid-eighteenth century quite a number of other international treaties, modified the cuius regio, eius religio standard by including broad provisions for states to tolerate different Christian faiths on their territory as a way to increase international stability. In the 19th century European concerns shifted to include national and ethnic minorities. The central dilemma faced by the Great Powers was how to handle the emergence of new national states without encouraging nationalist movements either within existing states or amongst the minorities in the new states. These treaties, then, were attempts to ensure new players did not disrupt the game. […]
In essence, the acknowledged language and education rights could only be practiced in terms of collective action of individuals. […] Since nationalist aspirations were so closely tied to World War I, there was considerable discussion after the war on these issues. One problem was the meaning of the right to self-determination, which earlier had been implicitly endorsed by recognising both those national states escaping Ottoman rule and certain rights to cultural autonomy. At Versailles it remained unclear how self-determination could be operationalised to be compatible with a stable system of states. […] Conflicts over the meaning, impact, and desirability of the ‘right to self-determination’ meant it was put aside in the peace treaties and the charter of the League of Nations.
After World War I the peace treaties primarily enshrined equal rights for citizens, although ideas about nations as collective entities did not disappear. […] Given the territorial revisions envisioned by many European states, these states were only too happy to maintain ties with their co-ethnics and advocate for greater rights of ‘self-determination’. In the late 1930s the forceful emergence of claims of national minorities to exercise their natural rights of collective self-determination and the failure of Europe to clearly delimit the rights of minorities again plunged Europe into war.
After the horrors of World War II and the concern that codification of collective minority rights would be the source of continued instability, the victors subsumed minority rights under a doctrine of individual human rights. After all, horizontal invention by one state on behalf of co-ethnics only makes sense if individuals are conceived of as members of trans-boundary collective entities, and so the rationale for individual rights is partly based on the effort to delegitimise ties between minorities and their kin-states. If states did not uphold their duties toward their minorities, it was presumed the United Nations, not individual states, would have primary responsibility for addressing human rights violations. […]
The EU, Council of Europe, and HCNM continually hammered away on several points. First was that the law could not promote a transsovereign nation. This objection was rooted in three interrelated concerns. The traditional formulation since the Treaties of Westphalia is that ‘responsibility for minority protection lies primarily with the home states’. If Hungary violates this norm and takes responsibility for the ethnic Hungarians in its neighbours, it raises questions about whether the home state can then abrogate its responsibilities to its minority citizens. Furthermore, the prospect of a transsovereign nation challenged the notion of sovereign states as the primary actors in international affairs. Certainly the staff of the European organisations appreciated the apparent irony in pressuring Hungary to change its domestic laws in the name of sovereignty, but they argued that they were not undermining the basic nature of the state itself, which they believed the Status Law did. Finally, in their eyes the law ‘allowed for discriminatory treatment of the majority in that state’ by requiring legal identities and providing special treatment on the basis of those identities. Because of these concerns, these institutions insisted the Hungarian government could broadly promote Hungarian language and culture to the extent allowed by bilateral treaties, but anything beyond this was a violation of sovereignty and principles of good neighbourly relations. […]
There was one issue that was completely non-negotiable for these two European institutions: the phrase in the preamble that the law was ‘to ensure that Hungarians living in neighbouring countries form part of the Hungarian nation as a whole’ had to be removed. The paragraph stating that it applied to ‘Hungarians who […] lost their Hungarian citizenship for reasons other than voluntary renunciation’ was also removed. In fact, almost everything that implied a transsovereign nation was removed. Added throughout the text are references to the importance of bilateral treaties for implementing provisions of the law. […]
By envisioning a Europe that legitimately encompasses sovereign nations and sovereign states, a ‘system of overlapping authority and multiple loyalty’, the Hungarian Status Law did seek neo-medievalism in Europe. The controversy surrounding the law, however, reminds one why Europe moved away from medievalism and established norms on minorities in the first place. To restrict states from intervening on behalf of their co-religionists, states accepted religious toleration and, in this way, sought to enhance their sovereignty. Discrimination of minorities was therefore seen as threat to international peace, which in turn implied that minority policy is a matter of collective concern for Europe. […]
[…] the issue of ‘nation’ was the most important part. The Council of Europe’s report deals extensively with this issue, stressing that ‘[t]he Council of Europe, and public international law in general, is based on the concept of “state” and “citizenship”. This leaves no room for the concept of “nation”.’. […]
Stephen Deets, 2004: Pulling Back from Neo-Medievalism: The Domestic and International Politics of the Hungarian Status Law [pdf]