This article aims to understand the concept of social minority, as it is utterly important to delve into the historical and legal aspects before explaining the notion. Human rights are most likely to be infringed by states even though they are protected by both national and international legal norms. The power is vested into people to change the tide of the battle and ensure equal rights for all minorities.
‘Where there is no law, there is no freedom’ (Locke, 1689) and the question which arises is: is it right to abide by legal dispositions which are inherently wrong? The minorities’ issues have governed the lapse of time and they have remained an intractable problem, one which needs concrete solutions. In Ancient Roman times, the status of the wealthy minority prevailed over the majority. Since then, everything has changed and legal relationships are founded on other social structures.
Article 21 of the Romanian Constitution, called ‘free access to justice’, states the following: every person is entitled to bring cases before the courts for the defence of his/her legitimate rights, liberties, and interests. Moreover, the exercise of this right shall not be restricted by any law. This principle was carefully regulated in Protocol no. 11 to the European Convention of Human Rights and it represents the kernel of the statutory rights that all the states should take into account when implementing democratic legislation. For instance, the Constitution of the United States, in its preamble, states in a clear-cut manner the basic foundation of an independent society: ‘in order to form a more perfect Union, establish Justice, ensure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our posterity’.
Even though the American Constitution claims that it will follow the democratic principles, the death penalty puts at stake all the rights that should be protected including the access to justice. For instance, an article published in The Guardian that the death penalty in the United States has been applied on racial considerations, questions at the same time the lawfulness of the decisions (Love, 2012). Statistics show that most of the people condemned are African-American, which indicates indirectly that some of the judgments do not respect the principle of non-discrimination. Moreover, in the past 10 years, in Alabama, some cases were rejected due to the fact that prosecutors have banned African-Americans to be part of the jury. In this situation, can we still talk about free access to justice?
The right of free access to justice implies that every request of the parties should be solved in such a manner that entails a reasonable time for the cause. Therefore, Article 21 from the Romanian Constitution is in accordance with Article 6 of the European Convention of Human Rights.
But when we reach the subject of minorities, do the above mentioned articles apply in the same manner as in the majority citizens’ case? Or it is necessary to look into subsidiary legislation to find the legal answers towards the conclusion that minorities have the same rights and obligations as the majority citizens?
In order to understand the concept of minority it is utterly important to investigate the significance of nationality. The term changed its former meaning throughout history, by embracing the concept of citizenship, which is a legal and political connection between the state and its citizen (Dinstein, Mala, 1992).
In the European Convention on Nationality, singed on November 6, 1997, the term ‘nationality’ includes a legal link between a person and a State, and does not indicate the person’s ethnic origin, but confusion might arise when using the notion of nationality while referring indirectly to ethnic origin. Without taking into consideration its large scope, the term ‘national origin’ is used by various documents interchangeably with the concept of ‘ethnic origin’. For instance, the Amsterdam Treaty and the European Union Charter on Fundamental rights of Nice are more likely to use ‘ethnic origin’. The attempt to create a proper definition in order to service minorities was offered by the Permanent Court of International Justice in the Greco-Bulgarian Communities case by stating that ‘the community’ is a group of persons living in a given country or locality, having a race, religion, language and traditions of their own and united by this identity of race, religion, language and traditions (Dinstein, Mala, 1992).
As a result of the territorial changes, especially after the demise of the Allied Powers, there were a lot of countries, such as Romania, Yugoslavia, and Greece, who signed peace treaties in order to ensure the protection of the minority groups living within their borders. The following provisions are worth mentioning: right of equal treatment in law, including the possibility for minorities to use their native language in court proceedings.
After the Second World War, states have recognised that some social minorities are in need of special protection due to the fact that they are put in peril by the actions of the majority, like the treaty of Osimo signed between Italy and Yugoslavia in 1975 (Dinstein, Mala, 1992). It mainly focuses on the protection of Yugoslav and Italian ethnic groups settled in the region of Trieste. These ethnic groups were granted the right to a minority press in their native language, as well as the right to use their native tongue when dealing with the administrative and judicial authorities.
It is necessary to bring up in discussion the constitutional system of Switzerland, where the government is comprised of representatives from each social group. Therefore, Switzerland can be perceived as a structural pillar which ensures the decentralization of administration and the autonomy of every individual.
Another clear-cut example is the Amendment to the Belgian Constitution, introduced in 1970, which ascribes special rights for some linguistic groups (French and Dutch) in order to vote in the House of Representatives and Senate for the purpose of a democratic governance.
Furthermore, the protection of minorities regarding their rights is guaranteed by what is known in the international field as ‘the kin-state representing the minority beyond its borders’. For instance, Article 16 from the Basic Treaty concerning the Friendly Co-operation and Partnership in Europe between Romania and the Federal Republic of Germany states that the former shall permit and facilitate the measures of promotion by the Federal Republic Germany for the German minority living in Romania” (Năstase et al., 2002).
Where can we see the fine line between reality and myth? Most of the time, states have tried to get away with the protection of minority rights. What is the purpose of these actions, when the rule of law is brought to a standstill and the entire society keeps infringing the legal measures?
The minority problem will always remain a complicated subject to deal with properly. The states have two options: they can either implement positive discrimination for minorities, and expunge the gap created between minorities and the majority, in order to see all the inhabitants as a unity, or they can adjust their own legislation in such manner that it will stop any type of infringement.