Protecting power and minorities
In international law, there is a particular sensitivity to the situation where a foreign state sees itself as the defender of minorities of the same ethnicity living on the territory of another state. Such situations can lead to international conflicts. In Europe, the issue first arose after the Reformation, when the confessional unity of several states was broken up. Catholic and Protestant princes often tried to act as defenders of Catholics or Protestants living in other states. The issue took on a new dimension with the decline of the Ottoman Empire in the 18th century. From that time onwards, the various European states (Austria, France, Russia, etc.) often included in their peace treaties with the Osman’s a clause allowing them to act as defenders of Orthodox or Roman Catholic Christians living in Ottoman territory. With the emergence of the idea of the nation state in the 19th century, the role of protector of one’s own fellow nations abroad also came to the fore. The post-World War I peace treaties, which resulted that significant communities, including one third of the Hungarian nation, being placed in a minority situation, the establishment of the borders of the new Central European states were connected to the guarantee of minority rights within the framework of the League of Nations. The shortcomings in the functioning of the minority protection system also caused dissatisfaction among the minorities concerned and later in the kin-state countries. This became a particularly sensitive issue in the 1930s, when the Nazi Germany tried to act as the legal protector of Germans living in Eastern and Central Europe. This role was known in German as Schutzmacht. This, in turn, provided grounds for interference in the internal affairs of other states. This was particularly problematic in the case of Czechoslovakia and Poland.
After the Second World War, this led many to distrust the role of the kin-states in minority protection, the post-World War I minority protection system was dismantled, and even minority rights and minorities themselves became suspect. In Europe, only the Republic of Austria succeeded in acting as the protector of the autochthonous South Tyrolean Germans living in Italy (the “Protecting Power”), on the basis of the Agreement of Paris between the Austrian Foreign Minister Karl Gruber and the Italian Prime Minister Alcide di Gasperi, concluded on 5 September 1946 and annexed to the peace treaty of 10 February 1947 between the Allied Powers and Italy. This bilateral treaty formed the basis for the regulation of the rights of the German-speaking community in Italy. South Tyrol was granted limited autonomy, which Austria wanted to extend through bilateral negotiations after the restoration of its independence in 1955. Austrian diplomacy invoked the treaty in bilateral relations and before UN bodies when advocating for the legal protection of the Germans in South Tyrol in the post-war decades. UN General Assembly resolutions urged Italy and Austria to negotiate, tacitly recognising Austria’s right to provide for the fate of the South Tyrolians under the Paris Treaty. In 1969, after the conflict escalated, a ‘package deal’ was agreed for the benefit of the South Tyrolean minority. In the summer of 1992, the Austrian government issued a declaration recognising that the Italian government had implemented the package. In 1996, Austria and Italy informed the United Nations that a mutually satisfactory solution had been found. Despite the success of the Austrian policy, no new doctrine has emerged from this in Europe. Another issue is the problem of the rights and support given to minority communities living across the border and to fellow nationals in the diaspora. This became particularly accepted after 1989. However, the term ‘protective power’ is also avoided by the mother countries, because this concept is still controversial and sensitive.