Introduction
The majority of historians of international law portray André Mandelstam above all as a pioneer of human rights. His declaration of human rights, adopted at the New York session of the Institut de Droit International (IDI) in 1929, was one of the precursors of the Universal Declaration of Human Rights of the UN (Aust Reference Aust2014; Adak Reference Adak2018; Burgers Reference Burgers1992). By emphasizing the protection of individual rights, Mandelstam’s declaration brought significant changes to the practice of international law in the interwar period, which focused above all on the protection of collective rights (Mazower Reference Mazower2004, 382–383; Weitz Reference Weitz2008, 1315). Nevertheless, the success of this particular project of Mandelstam should not lead one to ignore his less successful efforts to promote the collective rights of minorities and the idea of non-territorial autonomy as a universal principle of international law. According to Mandelstam, these two projects were closely connected with each other. Moreover, one project had initially been an aspect of the other (Mandelstam Reference Mandelstam1930, 509–512). Both proceeded from the idea of restricting state sovereignty and appealed to a universal international legal order (as opposed to bilateral treaties between states). An international legal order, rather than separate states, were supposed to guarantee the protection of the rights of both the individual representatives of minorities and of their cultural and linguistic associations (Mandelstam Reference André1925, 380–392; Mandelstam Reference André1929, 730–732).
The historical context in which Mandelstam drafted his project was very challenging for a former imperial subject and member of the imperial elite such as him (Gusejnova Reference Gusejnova2016, 140–173). No less dramatic were the changes in Mandelstam’s personal situation. As a result of the defeat of White governments, a large number of former subjects of the Russian empire who did not recognize Soviet power had to leave the country. Later, the decision of the Soviet government to deprive them of their citizenship made them reliant on the protection of the international community (Ther Reference Ther2019, 158–162; White Reference White, Ben-Nun and Caestecker2017, 18–38; Gousseff Reference Gousseff2008). Along with other emigrants of the former Russian empire, Mandelstam became a refugee, a stateless person and a representative of the Russian cultural minority dispersed throughout the world.
Mandelstam’s personal circumstances help to explain his universalist approach to international law. As a refugee, he could not rely on the support of his state of origin. At the same time, Mandelstam’s involvement in the preservation of the cultural unity of the Russian emigration provided additional grounds for his efforts to protect minorities. However, Mandelstam did not focus exclusively on the Russian minority and other stateless groups. On the contrary, his project considered both such groups and above all those minorities who were citizens of their states. In this respect, it was a continuation of his earlier plans for protecting the Christian population (above all Armenians) in the Ottoman empire.
In this article, I will focus on how Mandelstam came to formulate his project for a universal convention on the protection of minorities and how he used the idea of non-territorial autonomy as a means to ensure minority rights in the new conditions of emigration. Proposed by Karl Renner and Otto Bauer in the late Habsburg empire this idea envisioned the creation of legally guaranteed autonomous national communities based on personal principle of belonging. These communities could administer their cultural institutions and fulfill cultural needs of their members. They were not tied to a specific territory, but could function throughout the entire state (Nimni Reference Nimni and Nimni2005, 8–10). Non-territorial autonomy was an essential element of Mandelstam’s plans for the protection of minorities both in the beginning of his career and its later stages. As I will demonstrate, Mandelstam had initially acted on behalf of a great power and addressed above all to other great powers. However, he gradually came to support the initiative of the newly established small states such as Lithuania and Poland, which opposed unilateral restrictions of their sovereignty and advocated for a universal declaration of the rights of minorities. This declaration was supposed to be obligatory for all states, including great powers. This intellectual transformation also influenced Mandelstam’s approach to the idea on non-territorial autonomy. Both his earlier plans for protecting Christians in the Ottoman empire and his later project for a universal declaration of minority rights at the IDI referred to this Austro-Marxist concept. Yet as Mandelstam departed from his imperial view and assumed a universalist position, he narrowed down his concept of personal autonomy as compared to the initial projects by Karl Renner and Otto Bauer. He mainly reduced it to the protection of minorities from cultural assimilation, leaving aside all the political components of the original concept.
The analysis of André Mandelstam’s projects addresses several important issues discussed in recent historiography. Above all, it reveals the continuity between federative projects and projects of personal autonomy discussed in the Habsburg and the Russian empires, on the one hand, and interwar projects of minority protection, on the other. Studies by Terry Martin, Francine Hirsch, Jana Osterkamp, Börries Kuzmany, Ivan Sablin, and Alexander Semyonov provide enriching perspectives on how ideas about the reorganization of the political space in these empires were used and transformed in their successor states (Martin Reference Martin2001; Hirsch Reference Hirsch2005; Osterkamp Reference Osterkamp, Rumpler and Harmat2018, 431–457; Osterkamp Reference Osterkamp2020; Kuzmany Reference Kuzmany, Becker and Wheatley2020, 317–344; Sablin and Semyonov Reference Sablin and Semyonov2018, 543–560). In his project for a universal declaration on the protection of minorities, Mandelstam directly referred to the plans of Otto Bauer and Karl Renner, whereas its final version reflected the ideas of cultural autonomy of the Russian Constitutional Democrats.
André Mandelstam was part of a cohort of Russian emigrant international lawyers, such as Boris Nolde, Mikhail Taube, Konstantin Gulkevich, Mark Vishniak, whose professional and academic careers abroad reflected the challenges of their stateless existence. Recent studies reveal how these scholars adjusted their professional agendas and theoretical views to their new situation (Aust Reference Aust2014; Adak Reference Adak2018; Gusejnova Reference Gusejnova2016; Gusejnova Reference Gusejnova, Tuori and Björklund2019, Siegelberg Reference Siegelberg2020; White Reference White, Ben-Nun and Caestecker2017). I will examine how the changing international context influenced the revision of Mandelstam’s initial ideological assumptions and his shift from an imperial to a universalist vision of such problems of international law as the protection of minorities. From a broader theoretical perspective, which regards international law as a fruitful dimension of global and international history (Aust Reference Aust2019; Fisch Reference Fisch, Düffer and Loth2012), Mandelstam’s activity both in the League of Nations and in many reputable international legal organizations offers additional contributions to this overall issue. Of interest here are not only his contribution to the international academic and political discourses on human rights and minority protection, but also his endeavor to combine concepts borrowed from different national and imperial contexts.
In the Service of a Great Power
The early biography of André Mandelstam is a career of a very talented representative of the bureaucratic elite. His Jewish descent explains the many hardships and obstacles he encountered in his career. The son of a physician from Mogilev, Mandelstam entered St. Petersburg University in 1886, graduating 5 years later with degrees in both Law and Oriental Languages. Internships at the École de Droit and the École des Sciences Politique in Paris followed. He also attended lectures at the University of Constantinople (Grabar Reference Grabar1958, 313). Mandelstam’s dissertation “The Hague Conferences on Codification of the International Private Law” was highly praised by his academic advisor Fedor Martens (Mandelstam Reference Mandelstam1900; Pravo 1900). However, some reviewers of his dissertation were less favorable and displayed anti-Semitic attitudes (Nikol’skii Reference Nikol’skii2015, 381–382). Apparently, anti-Semitic colleagues impeded Mandelstam’s subsequent academic career. In his letters to Boris Nolde, he often complained about obstacles and setbacks in this domain.Footnote 1
Nevertheless, Mandelstam pursued a diplomatic career. He joined the Ministry of Foreign Affairs, where in 1898 he became a Dragoman (translator) at the Russian embassy in the Ottoman Empire. In 1903, he took over the consulates in Üsküp (Skopje) and Monastir. Along with other famous students of Fedor Martens (Boris Nolde and Mikhail Taube), Mandelstam was among the organizers of the Second Hague Conference in 1907 (Grabar Reference Grabar1958, 313).
Russia’s claim to protect the Armenian population was one of the means to apply pressure on the Ottoman Empire. In the late 19th century, Ottoman Armenians felt very vulnerable as a result of increasingly oppressive policies of the Ottoman government and the unrestrained violence from Kurdish nationalists. In the wake of the so-called Hamidian massacres 1894–1896, Russia, Britain, and France sought to put the situation under their control (Suny Reference Suny2015, 104–115). They established an international commission to develop a plan of reforms that would secure the protection of the Christian population. The Armenians of Russia welcomed this great power intervention. However, for the Russian government, the situation seemed far more complicated: the tsarist authorities viewed their own Armenian subjects as a destabilizing factor. Many Armenians supported revolutionary, socialist, and nationalist ideas or adhered to irredentist projects such as the creation of an independent Armenia (Reynolds Reference Reynolds2011, 71–72). After the Balkan wars, Russia took a more active position regarding Turkey. In 1913, a new commission under the lead of Alexander Girs was created to promote reforms in Turkey. André Mandelstam was invited to join this commission to rework the plan of reforms elaborated earlier in 1895.
The final version of Mandelstam’s project combined elements of territorial and non-territorial autonomy for Ottoman Armenians (Mandelstam Reference Mandelstam1917, 217–223; Mandelstam Reference Mandelstam1915, 26–36). It presupposed the integration of 6 provinces (vilayets) with an Armenian majority and Turkish and Kurd minorities into 1 territorial unit. These provinces consisted of smaller units defined along ethnic lines. The plan entrusted the executive authority to a governor-general appointed by the Sultan with the agreement of the great powers, which were to supervise the implementation of the reform. The legislative authority was to be exercised by a Regional Council consisting of “Muslims and Christians in equal numbers.” Deputies to this council were to be elected by representatives from councils on the lower level, and the number of candidates from each ethnic group had to be proportional to the relative size of this ethnic group in each territorial unit. Moreover, Mandelstam’s project stipulated an equal numbers of Muslim and Christian representatives in the local administration, courts, and police, and secured the right of each nationality to use its native language (Mandelstam Reference Mandelstam1915, 28–30).
According to Article 16 of the project, “every nationality of the Region has the right to establish and administer private schools on each level.” Nationalities also had the “right to levy taxes on their members for the maintenance of schools” (Mandelstam Reference Mandelstam1915, 33). Education could take place in national languages, but the curriculum had to include the Turkish language. Although Mandelstam did not endow the nationalities with the right to form public association, his project bore the influence of (or at least shared some common features with) Karl Renner’s plans for reorganizing of the Habsburg monarchy, and with Austrian non-territorial compromises, such as the one in Moravia (Renner Reference Renner and Nimni2005; Kuzmany Reference Kuzmany2016). Already in this reform draft, Mandelstam outlined a set of arrangements that one encounters also in his later projects. The commission approved Mandelstam’s plan with minor amendments. The great powers officially endorsed the plan, but it was never implemented because of the outbreak of World War I (Reynolds Reference Reynolds2011, 76–77; Holquist Reference Holquist, Suny, Göcek and Naimark2011, 153).
Mandelstam described the experiences he made during his 16 years in the Ottoman empire in his seminal scholarly work Le Sort de l’Empire Ottoman (Mandelstam Reference Mandelstam1917). The book offered a detailed review of the empire’s relations with the European great powers. It also allows us to trace the theories from which Mandelstam derived his idea of universal human and minority rights. In the fourth part of the book, he criticized the theories of absolute state sovereignty as suggested by Rudolf Ihering, Karl Gerber, Karl Gareis and opposed them to Hugo Krabbe’s theory of the impersonal sovereignty of law. While the adherents of absolute state sovereignty assumed that states create the legal order, for Krabbe, “law is binding by its nature, it is the only source of power both for state and individual” (Mandelstam Reference Mandelstam1917, 425).
Like Krabbe, Mandelstam was critical of the attempts to reconcile the principles of state sovereignty and the capacity of the international community to exercise universal principles of law. For Mandelstam, Georg Jellinek’s theory of voluntary self-restriction of sovereignty (Selbstbeschränkung der Souveränität) relied on similar principles as other theories of state superiority over the law. The restriction of sovereignty was moral by nature inasmuch as the state voluntarily imposed this limitation upon itself. However, Jellinek assumed the possibility for the state to violate universal legal norms in the situations in which international law contradicted the essential interests of the state or its existence (Mandelstam Reference Mandelstam1917, 434–435). This, according to Mandelstam, only proved that “the community of states was anarchic by nature. International law, which is based on unorganized power and thus deprived of the power to exercise its authority, can be called anarchic law” (Mandelstam Reference Mandelstam1917, 435).
According to Mandelstam, Fedor Martens did not completely overcome the “cult of the idolization of the sovereignty of state” (Mandelstam Reference Mandelstam1917, 443). On the one hand, Martens recognized the necessity of voluntary self-restriction of the sovereignty of the state to maintain order and law in international relations. For him, the international community was “an established legal order among nations, which has to protect the freedom of action of each state, while also taking into account the rights and interests of other states” (Mandelstam Reference Mandelstam1917, 443). On the other hand, Martens recognized the obligation of each state to pursue above all its own interests and “defend its autonomous power,” as this was the primary aim of joining the international community of the states. Mandelstam objected to this view of the international community consisting of “sovereign,” absolutely independent and anarchic states. He believed that “international law should be superior to laws of states and have the power to impose itself on a state if the interests of the international community thus required” (Mandelstam Reference Mandelstam1917, 443).
In his understanding of international law, Mandelstam relied on the ideas of Leon Petrazhitsky. A professor in Philosophy of Law at St. Petersburg University between 1897 and 1917, the latter developed a psychological theory of law. In particular, he opposed a Neo-Kantian distinction between natural and positive law as between desirable (ideal, i.e., non-existent) and actual law. Instead, he introduced a notion of intuitive law. If, according to Petrazhitsky, positive law is enacted by external power, whereas intuitive law is “a feeling of attributive obligation, which occurs without reference to any external authority” (Petrazhitsky Reference Petrazhitsky1910, 479). It mainly reflected moral and psychological experiences of individuals and groups, which went beyond the formal regulations. Applying this theory to the sphere of international relations, Mandelstam recognized the full sovereignty of international law despite the absence of an international organization superior to states. He further wrote:
Higher than international law, which regulates the relations between states, we, along with Fiore and Pillet, recognize the law that defines human rights and shields them from the arbitrary action of any state. Therefore, states are not sovereign. Or if we seek to preserve the term “sovereignty,” we must exclude from it the idea of absolute independence (Mandelstam Reference Mandelstam1917, 458).
After a detailed analysis of various theories of sovereignty, Mandelstam came to the conclusion that humanitarian interventions are necessary in cases where states violate human rights. However, he disagreed with Martens’ opinion that humanitarian intervention ought to be restricted to only a few cases, above all those concerning the “relations of civilized nations with non-civilized ones” (Martens Reference Martens1882, 297–298). Mandelstam advocated the universal application of this principle and applied it to the experience of military occupations and violation of human rights by the supposedly civilized powers during the Great War (Mandelstam Reference Mandelstam1917, 444). At the same time, his list of war crimes (for example, in Belgium) suggests that Mandelstam used this reference to human rights to promote the interests of the Russian empire in its relations with its military adversaries (Mandelstam Reference Mandelstam1917, 586)Footnote 2.
In general, Mandelstam’s ideas reflected the political discourse of the Entente powers, who presented their war aims as a victory over German ideas that supposedly justified violence against other peoples. This rhetoric proceeded from the idea of supremacy of international law in relations between states (Hull Reference Hull2014, 3–14; Coates Reference Coates2016, 136–152). However, this law was expected to serve the interests of the allies. Mandelstam’s appeal to “liberate” the peoples from the “horror” of the Ottoman empire also reflected the influence of the Wilsonian notion of government by consent (Manela Reference Manela2007). Mandelstam directly referred to these ideas in the introduction to his book (Mandelstam Reference Mandelstam1917, XI–XII).
At this stage of his intellectual trajectory, Mandelstam perceived the protection of rights of minorities through a prism of assumptions that Gerrit Gong would later call the standard of “civilization” (Gong Reference Gong1984, 3). The idea of humane treatment of the Christian minority population was one of the ways for the great powers to measure their relationship with weaker non-European states and impose on them additional (sometimes very selective) demands. At the same time, the existence of these minorities and their claims for international protection provided European powers with moral and legal grounds to interfere into the affairs of other states (Rodogno Reference Rodogno2012).
From a Defender of a Vanishing Empire to a Stateless Legal Expert
The drastic transformations of the international order that occurred between 1917 and 1922 coincided with important changes in Mandelstam’s personal status. He turned from a diplomat representing Russia’s great power interests into a stateless Russian emigrant. At the same time, he nevertheless continued to be a scholar of international law. He pursued the career of a legal expert at the Institut de Droit International and the Hague Academy of International Law; he also became a member of the High Commission for Russian refugees at the League of Nations (Aust Reference Aust2014, 1108–1111; White Reference White, Ben-Nun and Caestecker2017, 27). One can also see how Mandelstam’s general approach toward international law evolved along with the changing political context and his personal situation.
As Georgy Mikhailovsky noted, the general tone of Le Sort de l’Empire Ottoman reflected its author’s ambition to secure a position in the new post-revolutionary government (Mikhailovsky Reference Mikhailovsky1993, 334–335). As the result of the October coup, the Foreign Ministry of the Provisional Government lost its mandate, even though Russia’s diplomatic missions abroad continued to function. Later, they were gradually transformed into missions and embassies of the White Russia. Thus, two competing centers of Russian foreign policy emerged alongside each other—the Soviet one in Moscow and the emigrant one in Paris. The latter could still exist despite the waning historical legitimacy of the former Russian empire (Smolin Reference Smolin2017, 29–40; Kocho-Williams Reference Kocho-Williams2020, 469–486). International recognition of this virtual Russia depended on the military success of the White armies. There was a widespread assumption that Bolshevik power would soon be abolished and the new democratic successor of the Russian empire would resume its place among great powers.
Along with Boris Nolde, André Mandelstam was invited in 1919 to serve as juridical consultant to the Ministry of Foreign Affairs, which represented the governments of both Kolchak and Denikin. Apart from assuring the international recognition of the anti-Bolshevik governments,Footnote 3 Mandelstam sought to provide the legal grounds for territorial integrity of the former Russian empire against the claims of national movements. Both the staff of the Russian Foreign Ministry in exile and the advocates of independence of Russia’s former borderlands appealed to the right of nations to self-determination (Manela Reference Manela2007; Chernev Reference Chernev2017, 64–105). Yet, each side understood these concepts differently.
In a memorandum addressed to the Paris Peace Conference, Mandelstam praised Wilson’s idea of the League of Nations as an expression of the supremacy of a universal law of humanity over the law of particular states (Mandelstam Reference Mandelstam1919, 15). From this principle, Mandelstam inferred the League’s right to undertake humanitarian interventions against those states that violated human rights or the rights of national minorities. In particular, he considered the possibility of such an intervention against Turkey or Soviet Russia (Mandelstam Reference Mandelstam1919, 22). In his analysis of Woodrow Wilson’s ideas on the rights of nations, Mandelstam emphasized the need of a special approach in each particular case. He argued that the decision of the international community to recognize the independence or autonomy of a particular nation had to be in what he saw as the general interests of humanity, and reflect the balance between the level of civilization of a dependent people and that of the dominant nation. On these grounds, Mandelstam justified the disintegration of the Habsburg monarchy. At the same time, he defended the unity of the Russian state within its former imperial borders, with the exception of Poland. He argued that Russia brought its peoples the benefits of civilization, such as railroads and economic development. Therefore, “the League of Nations, whose own interests are identical to those of peace and justice, cannot agree with a complete dissolution of the ties between Russia, on the one hand, and Finland, Estonia, Latvia, Lithuania, or Ukraine, on the other. The League of Nations should provide the peoples of Russia with the possibility of a free development of their nationality, without encroaching on Russian people’s right to life” (Mandelstam Reference Mandelstam1919, 85). Mandelstam thus proposed either an autonomous status for the peoples of the borderlands of the former Russian empire, or a general reorganization of Russia along federal lines (Mandelstam Reference Mandelstam1919, 79). He did not specify the principles of organization for both autonomy and federation, yet in general these plans reflected the approach of the Constitutional Democrats of Russia’s rearrangement.
Mandelstam’s project presupposed subordinating the universalist principle of supremacy of international law to the practical goal of preserving the political space of the former Russian empire. In his view, the differences in civilizational attainment between nations justified this approach. A more civilized nation could grant its borderlands the right to self-determination (understood as autonomy) but withhold the right to separation. At the same time, Mandelstam refused to apply this principle to Austria-Hungary. Thus, Mandelstam’s interpretation qualified the universalism of international law, and in particular, the principle of humanitarian intervention. He de facto recognized the right of some powers to impose their rules on other states.
Although the anti-Bolshevik governments were quickly losing ground (the last White government in Crimea was defeated in November 1920), Mandelstam continued to regard Russia as part of the community of great powers. One can trace this presumption in other publications by Mandelstam as well. In an article on the appointment of judges in the Permanent Court of International Justice, he argued for preferential voting rights for great powers in violation of the principle of equality of states in international law. According to Mandelstam, the decisive vote had to belong to states that played a more significant role on the international stage, including Russia (Mandelstam Reference Mandelstam1920, 249–250).
As the anti-Bolshevik governments suffered defeat after defeat, their diplomatic missions were losing their authority. The sense of a loss of empire permeated the correspondence of the Russian diplomats Vasily Maklakov and Boris Bakhmetiev:
In the public and political opinion of France, the Constituent Assembly is nevertheless over. At best, it has only preserved some of its literary potential associated with people like Mandelstam, Mikhelson, and Zagorsky. This is because they can write some interesting bulletins: but this is all they can do (Maklakov Reference Maklakov and Budnitskii2002, 152).
Already in 1921, the Russian Foreign Ministry in emigration began to prepare for the possibility of an international recognition of the Soviet government.Footnote 4 Russian emigrants turned from being representatives of White Russia into a community of refugees, deprived of the state that could protect their status abroad. The year of 1922 proved to be a turning point in this sense. Having officially recognized the Soviet Republic, many foreign states thus denied the emigrant diplomatic missions their mandate to defend the rights of Russian refugees abroad. Moreover, the Soviet decree of December 15, 1921, revoked the citizenship of those who supported the White armies and refused to apply for the Soviet passport (Kishkin Reference Kishkin1925, 57; Alexopolous Reference Alexopolous2006, 498).
In this period, Mandelstam focused on defining the international juridical status of Russian refugees. Along with other Russian jurists (Boris Nolde, Konstantin Gulkevich, Jacques Rubinstein), he was invited to join the League of Nation’s High Commission of Russian Refugees as an expert (White Reference White, Ben-Nun and Caestecker2017, 19). These issues, including the status of the Russian cultural minority and related issues, were part of the programs of many Russian emigrant organizations that Mandelstam and other Russian legal activists took part in (Starodubtsev Reference Starodubtsev2000; Kévonian Reference Kévonian, Slotte and Halme-Tuomisaari2015, 254–255; Association Russe pour la Société des Nations 1920, 7). Although the status of refugees and the rights of minorities were distinct issues, they were linked together in the political discourse of the Russian emigration (Vishniak Reference Vishniak2016, 29).
Several recent studies have addressed the emergence of statelessness as a subject of political debate and an issue of international legal practice (Siegelberg Reference Siegelberg2020; White Reference White, Ben-Nun and Caestecker2017; Gousseff Reference Gousseff2008; Skran Reference Skran1995). Along with national minorities, stateless people found themselves in a vulnerable position in interwar states, where they faced discrimination and various forms of oppression. In both cases, the League of Nations assumed the role of an international protector of these groups. The League was supposed to embody the new international order and impose certain limits on the arbitrary actions of particular states. However, despite the attempts to create supra-national bureaucracy within the League, the effectiveness of its practical involvement varied from case to case (Pedersen Reference Pedersen2015, 46–50).
The introduction of the Nansen passports alleviated the problem of refugees by granting them minimal civil and social rights. In 1928, several states signed an agreement allowing the League of Nations to carry out consular functions for Russian refugees. The Refugee Convention, which was signed in 1933 by 15 states, provided a more detailed regulation of refugees’ rights on the territory of participating states. In particular, it limited the ability of states to expel refugees. Russian members of the League’s Commission on Refugees regarded this convention as their success, but it was binding for only several states (White Reference White, Ben-Nun and Caestecker2017, 31).
The status of Russian refugees abroad was part of wider minorities question. Russian emigrants formed a minority that had been deprived of citizenship. Other minorities were ethnic or religious groups that had long resisted assimilation or that had emerged as a result of changing state borders (as, for example, the German population in Czechoslovakia and in the territories that Germany ceded to Poland in 1919). The products of the post-war disintegration of empires, newly established states were reluctant to accept a special status for their minorities. They not only tended to perceive them as internal “others” and potential separatists, but also as instruments of foreign interference into their affairs (Weitz Reference Weitz2019, 183–196; Mazower Reference Mazower1998, 92–99; Fink Reference Fink2000, 391–395).
Above all, the protection of minorities presupposed the demand of non-discrimination on the basis of ethnicity, religion or race (Duparc Reference Duparc1922, 33–38). Especially controversial were the claims to special rights (for example, to education in native languages) for those groups that were often regarded as alien and a threat to a state’s territorial integrity. This issue was rather sensitive not only for the new states, but also for the allied powers, who refused to generalize the principles of minority protection on the level of international legislation and opted for a differentiated approach instead (Fink Reference Fink2006, 153–160, 213–217). The victors in the Great War obliged the successor states of the defeated empires as well as old states in new borders (like Romania) to protect their minorities. This new international legislation was in conflict with the concern of the new states for national consolidation through gradual assimilation of ethnic and religious minorities. Moreover, the new states regarded these laws as imposed limitation of their sovereignty in their relations with minorities and thereby humiliating. New rules were imposed on states that were regarded as immature (Pedersen Reference Pedersen2015, 23–35; Manela Reference Manela2007, 24–36). At the same time, great powers, such as France, were not ready to follow the same principles with regard to their own minorities (for example Basks).
Further international political discussions, which took place in 1920s and 1930s in the League of Nations and its associated organizations like the International Federation of the League of Nations Societies as well as Inter-Parliamentary Union and European Nationalities Congress showed that the issue of minorities was by no means solved (e.g., Dyroff Reference Dyroff2014; Smith, Germane, and Housden Reference Smith, Germane and Housden2019, 529–530; Vishniak Reference Vishniak1926, 44–105). States that had signed the minority treaties felt humiliated and insisted that the obligation to respect minority rights ought to apply to all states. The great powers ignored this demand and rejected universally binding international legislation both at the Paris Peace Conference and at the League of Nations (Kuzmany Reference Kuzmany, Becker and Wheatley2020, 324–325; Fink Reference Fink2006 153–160). One can trace this conflict of standpoints in both the discussions within the League of Nations and its branch organizations, as well as at other international forums and expert institutions.
André Mandelstam was actively involved in these discussions on the protection of minorities. And it is possible to trace the evolution of his views since his time as a Russian diplomat. He now decisively supported the standpoint of new states, such as Poland and Lithuania, which sought to promote universally binding legislation on minorities within the League. This new position reflected Mandelstam’s personal situation: Deprived of the protection of his state, he could count only on the support of the international community. However, the great powers proved to be deaf to appeals to universal norms. In his later texts, Mandelstam tried to gain the support of the international community for the claim by new and smaller nations for equal rights for all states. An advocacy of small states now informed his own projects. His concept of minority protection gradually ceased to rely on the notion of humanitarian intervention. All conflicts between states and minorities were supposed to be reconciled peacefully by means of negotiation and mediation at the League of Nations. This new theoretical position was also the point of departure for his project for a convention on the rights of minorities, which he proposed at the Institut de Droit International.
The Institut de Droit International and the Project for Non-Territorial Autonomy
The Institut de Droit International (IDI) was founded in 1873 as an expert organization of international legal scholars. Its founders Johan Bluntschli, John Westlake, and Gustav Rolin-Jaequemyns expected that the IDI would act as a “common legal consciousness of a civilized world” (Koskienniemi Reference Koskienniemi2004, 42). The projects discussed at the IDI offered a new normative standard for further international treaties and intergovernmental conventions. Having been an associate of the IDI since 1904, Mandelstam became a full member in 1921 (Aust Reference Aust2014, 1111). In 1921, he was appointed spokesman of the commission on the international protection of human rights, citizens’ and minority rights.
The main challenge for Mandelstam was to create a project for a convention that would offer an obligatory universal minimum of minority rights. To be acceptable, this project could not significantly restrict the sovereign rights of the participating states. Mandelstam’s concept of national personal autonomy was based on a compromise between the interests of states and those of minorities (Mandelstam Reference Mandelstam1923, 443–444). Nevertheless, most of the pre-war projects for the reorganization of states, including the concept of personal autonomy, referred above all to the sphere of internal legislation, which was not regulated by international law. Another pathway toward the minorities rights regime that Mandelstam had in mind was reform under the supervision of foreign powers, as in the case of the Ottoman Empire. However, this path entailed considerable restrictions on the sovereignty of the state that was the subject of such reforms. The League of Nations’ Minority Treaties had the same overtones as the articles in the Berlin Treaty of 1878 regarding Romania, Serbia, and Montenegro. Acceptance of their demands was a necessary precondition for the international recognition of these newly independent states. Yet another option was the conclusion of bilateral treaties between states, which contained mutual obligations regarding minorities on their territories.
The alternative formulated by Mandelstam was a universal convention to be signed by the majority of states, or at least by members of the League of Nations. He was aware of earlier unsuccessful attempts to promote such universal legislation on minorities, such as the article on ethnic, religious, and racial equality that did not enter the statute of the League of Nations, or the project for the International Treaty on the Protection of Minorities, which had been proposed by the Central Organization for Durable Peace in the Netherlands (Kuzmany Reference Kuzmany, Becker and Wheatley2020, 324–325; Fink Reference Fink2006, 153–160). Mandelstam’s effort to assure that minimal rights would protect minorities from assimilation, therefore, sought to address states’ concerns about possible restrictions of their sovereignty by the international community.
Mandelstam’s article “La Protection des Minorités” (Reference Mandelstam1923) contained his first attempt to justify his convention project. In it, he reviewed once again different theories about the sovereignty of international law as well as the idea of humanitarian intervention. He also analyzed minority treaties between particular states as well as those arranged by the League of Nations. He praised the Allied powers in concluding these treaties and stressed that they were of concern not just to minorities: Rather “[t]hey oblige governments to protect the lives and freedom of all their residents and proclaim the legal equality of all citizens” (Mandelstam Reference Mandelstam1923, 404). Mandelstam argued that, once intuitive law would be “recognized by the League of Nations, [it would become] positive law everywhere in the world” (Mandelstam Reference Mandelstam1923, 405). At the same time, while he acknowledged the importance of these treaties for the international legislation on minorities, Mandelstam understood that it might be problematic to implement the regime of minorities in particular states without reciprocity on the part of other members of the League of Nations. For Mandelstam, this situation would lead to serious limitations of sovereignty of some states and the arbitrary rule of others. “Contemporary international law denies absolute sovereignty,” he wrote. However, “the restrictions it imposes on [sovereignty] should apply to all states without exception” (Mandelstam Reference Mandelstam1923, 510).
Mandelstam presented the first draft of his minority rights convention at the session of the IDI in 1925. It combined articles on the status of minorities drawn from both the post-war international treaties and the constitutions of individual states. However, the core of the project was Karl Renner’s and Otto Bauer’s idea of national personal autonomy. In his Reference Mandelstam1923 brochure, Mandelstam directly referred to the projects of the Austrian Marxists and recognized their value in addressing the question of minorities in the former Habsburg monarchy and beyond. The ideas of Bauer and Renner were reflected in the resolutions of socialist parties in the Russian empire and in the law on national personal autonomy of the Ukrainian Central Rada from January 9, 1918. Mandelstam also mentioned other instances where these ideas had been discussed internationally as well as their influence on the constitutions of Estonia and Lithuania, which both consistently applied the idea of personal autonomy (Mandelstam Reference Mandelstam1923, 444). Mandelstam also relied on other non-territorial autonomy projects he was familiar with, particularly that of Kurt Wolzendorff (Reference Wolzendorff1921).
In his project, Mandelstam insisted on a clear distinction between personal and territorial autonomy: “Provided to a minority, personal autonomy, does not go beyond the religious and social sphere, whereas territorial autonomy is almost always political” (Mandelstam Reference André1925, 247). This interpretation of personal autonomy seriously reduced the scope of the rights of minorities as compared to the projects of Bauer and Renner, bringing the concept closer to what the leaders of the Russian Kadet party meant by cultural autonomy (Kokoshkin Reference Kokoshkin1905). In an attempt to take the project completely outside the political sphere, Mandelstam consciously rejected the option of territorial autonomy and reduced his provisions solely to the idea of personal autonomy. Moreover, he understood such autonomy above all as the protection of the cultural needs of minorities, ignoring those aspects of Renner’s and Bauer’s projects that referred to the proportional distribution of seats in the administration or to the election into state and local representative bodies. It also ignored the fact that the projects of Otto Bauer and Karl Renner combined both territorial and non-territorial autonomy.
Another important source for Mandelstam’s project was the “Declaration of the Rights and Duties of Minorities”, which was adopted in 1923 by the Inter-Parliamentary Union (Inter-Parliamentary Union 1937, 172–173). He regarded this resolution as a juridical precedent for his own planned universal convention. However, its weakness was the lack of clarity on the very notion of minority. It also did not outline a procedure for defining which groups were eligible for minority status and who would be included into them. Mandelstam proposed to regard a minority as comprising both citizens and persons who were merely permanent residents on the territory of a given state (Mandelstam Reference André1925, 381). However, the scope of rights available for citizens and non-citizens varied. All members of a minority (citizens and non-citizens) acquired “full protection of their life and freedom irrespective of their descent, nationality, language, race or religion” (Article 2). They also had the right to free public use of their language and practice of their confession. The remaining rights were reserved only for those members of the minority, who were the citizens of the state in question. These included civil equality, non-discrimination in the process of recruitment into the public administration, equal electoral rights etc. At the same time, Mandelstam proposed to reserve special positive rights for citizens who belonged to a minority, such as the right to use one’s native language in court and administration. Mandelstam’s project also granted minority citizens the right to establish their own educational and cultural institutions, and to have access to state universities (where they would benefit from special admission quotas) (Article 3). In addition, minorities gained the right to create voluntary national associations (personal autonomy), which were entitled to collect compulsory taxes from their members to meet the cultural and social needs of the community (Article 7). The project also required the state to publish laws and decrees not only in the state language, but also in the languages of minorities (Article 4).
The distinction between citizens, merely residents, and minorities, as Mandelstam explained, was already present in the minority treaties concluded by the League of Nations (Mandelstam Reference André1925, 263). Each of the groups was provided with a varying scope of rights. For example, in the League’s treaty with Poland “all inhabitants” enjoyed “full protection of life and property,” “all Polish nationals” were granted equality and same civil and political rights, whereas the “nationals, belonging to racial, religious or linguistic minorities” gained additional guaranties in the sphere of culture, economy, and education (Viefhaus Reference Viefhaus2017, 232–234). However, the main difference Mandelstam saw between the first two groups and minorities proper, which enjoyed the guarantees of the League of Nations. Thereby, according to the lawyer, the League identified a separate group within the minority, which it also sought to protect directly, rather than entrusting it to particular state. Mandelstam proposed to generalize this practice and indicate the limits of sovereignty for each state. At the same time, he opposed restricting sovereignty of states in their relations with population regarding the issues, which went beyond the protection of minorities. Instead Mandelstam proposed to indicate within a minority the rights attributed to state’s citizens and those of mere residents (Mandelstam Reference André1925, 264). In the latter category, he also included stateless people. The loss of nationality was most acute in cases of changing state borders (heimatlosen, particularly on the territory of the former Habsburg empire), as well as after population exchanges, such as the one between Turkey and Greece in 1923. Into this category Mandelstam included also refugees, like himself (Mandelstam Reference Mandelstam1923, 413–416). In his later comments on the project, Mandelstam justified the difference in the scope of rights available to citizens and non-citizens with reference to the internal legislation of various countries. His later proposal, however, was to oblige the states not to revoke arbitrarily citizenship without consent of involved persons (Mandelstam Reference André1931, 543–545).
Mandelstam had argued that it was necessary to compose a complete list of recognized minority groups protected by the convention (Article 1). The very idea of defining minorities as legal persons within the municipal law had already been present in the projects of Karl Renner and other Austrian legal scholars (Renner Reference Renner and Nimni2005, 17–20; Bernatzik Reference Bernatzik1910, 66–69; Nimni Reference Nimni and Nimni2005, 10). They proposed above all the creation of voluntary associations and introduction of cadasters, comprising the members of the association. However, they did not address the procedure for establishing these associations. Otto Bauer generally welcomed the awakening of “non-historic” nations as an expression of the political rise of the lower classes (Bauer Reference Bauer2000, 448–449). Mandelstam rejected this approach. He believed that the voluntary creation of new associations presented potential risks to states, especially if this principle were enshrined in the universal convention. He feared that it would cause a wave of creation of what he regarded as artificial minorities (Mandelstam Reference André1925, 261–262). Another proponent of non-territorial autonomy, the German international lawyer Kurt Wolzendorff also drew attention to this shortcoming of the principle of voluntarism. He argued that the ultimate right to recognize or deny minority status to an ethnic group ought to be left to the state. At the same time, Wolzendorff argued for a scholarly approach to the recognition of particular minorities, fearing that states would otherwise deliberately ignore the existence of minorities on their territory and refuse to protect them. He, therefore, proposed to transfer the function establishing what constituted a minority to an international expert organization (Wolzendorff Reference Wolzendorff1921, 22–23).
Concurring with Wolzendorff’s idea, Mandelstam also suggested that the League of Nations should take upon itself the function of recognizing previously unacknowledged minorities: “The recognition of new minority groups in accordance with the regime of the convention is carried out by the General Assembly of the League of Nations on the basis of surveys, organized by the League’s Council” (Article 1). In his report, Mandelstam specified that the League of Nations’ commission of experts should travel to specific localities to scientifically determine whether or not a particular group constituted a minority (Mandelstam Reference André1925, 261–262). At the same time, Mandelstam recognized the pitfalls of “objectively” establishing minority status. To avoid what he saw as artificial impediments to voluntary assimilation, he left it to the individual to decide his or her belonging to a particular minority.
Articles 7 and 8 of the project dealt specifically with the subject of personal autonomy. Minorities were given the possibility to “establish personal autonomy with their representative bodies, which had the right to levy obligatory taxes for the maintenance of religious, cultural and educational institutions” (Article 7). Where minorities refused to organize themselves on the basis of personal autonomy, they were entitled to state subsidies to meet their cultural needs. The amount of these subsidies would depend on the size of a particular minority. In cities or regions where the proportion of minority citizens was 20% or higher,Footnote 5 the state had to maintain schools and other cultural and educational institutions (Articles 6 and 8). Mandelstam’s project presupposed equal recognition of the diplomas and certificates issued by communal and state funded minority schools and universities, on the one hand, with those of educational institutions, on the other. In addition, the author envisaged the possibility of state control over the quality of education in these schools as well as over their curricula, which had to include the study of the state language (Article 6).
Mandelstam paid special attention to the question of introducing admission quotas for members of minorities (Numerus Clausus) at institutions of higher education to ensure equal access to higher education. He was cautious about the idea of proportional quotas for members of minorities in universities because this could lead to discrimination, especially for those members of the minority, who voluntarily strove for assimilation. This was the case of the Jews in the Russian empire, where the government pursued the policy of segregation (Nathans Reference Nathans2002, 262–266). Similar law, restricting the access of minorities (above all Jews) in universities was introduced in Hungary in 1920 (Kovács Reference Kovács2005, 23–32). At the same time, Mandelstam suggested quotas that assured a minimal number of admissions for members of a minority. To prevent discrimination, he left open the possibility of enrolment above the quota, where there were vacant places. He believed this was important for those members of a minority who wanted to become assimilated into the majority group. Mandelstam tried to find an uneasy balance between the principles of equality of all citizens and the protection of such special minority rights as quotas, which are a means of positive discrimination.
Mandelstam’s project completely rejected the idea of proportional representation of minorities in the government and the creation of local representative bodies and special minority curia for parliamentary elections. He interpreted the Moravian compromise of 1905 and the relevant parts of Karl Renner’s and Edmund Bernatzik’s projects as the cases of political autonomy. In his view, they went far beyond the cultural and social rights of minorities and would impose obligations on states that international law should not demand.
“Personal cultural autonomy has absolutely nothing to do with the exercise of political power, and all demands of minorities in this sphere turn into demands for territorial autonomy. Therefore, we come to the conclusion that personal cultural autonomy does not presuppose proportionality in the distribution of state functions between the members of the majority and the minority” (Mandelstam Reference André1925, 276).
Mandelstam thus sought to notably narrow down the concept of personal autonomy. One can assume that he did this to safeguard states from the political activity of minorities, which could entail potential threats to their unity. Thereby he sought to make his project more acceptable to state and more universally applicable as part of international law.
Similarly, Mandelstam sought to protect his project from criticism by proponents of unconditional state sovereignty by adding special articles that prevented the threat of states being destabilized by minorities. For example, his project included an article that obliged minorities to respect the constitution and other laws of the state (Article 9). He justified this by referring to the third article of the resolution of the Inter-Parliamentary Union, which declared it to be the duty of minority members to fulfill all obligations to their states (Inter-Parliamentary Union 1937, 173).
The remaining part of the project was devoted to the problem of international control over the observance of the rights of minorities, which Mandelstam expected to be this issue most likely to affect the sovereignty of participating states. At the same time, the international legal practice demonstrated the deficiency of the mechanism to protect minority rights even in those countries that had signed the minority treaties (Dyroff Reference Dyroff2014, 216–228; Fink Reference Fink2000, 390–395). In cases of violation of a minority treaty or of an infringement of the rights of minorities, only those appeals to the League of Nations that were submitted by member-states of the League’s Council had juridical force. In practice, this protected only those minorities who enjoyed the support of an internationally influential country. The appeals of other states or those submitted by representatives of a minority itself were regarded as petitions and, hence, merely as providing information on the violation of minority rights. In legal terms, they did not provide any ground for international sanctions against the state in question (Fink Reference Fink2000, 390–391; Dyroff Reference Dyroff2014, 218–220).
Mandelstam suggested extending the right of appeal to the Council of the League of Nations to all the League’s member-states. According to his project, states could refer cases of alleged violations of minority rights by a member state to the Permanent Court of International Justice. At the same time, he opposed the idea of providing minorities with the right to appeal to the League because this would suggest recognizing minorities as legal persons in international law. Mandelstam argued against this. He argued that “the plans of opening the Permanent Court of International Justice to individuals called into question not only the sovereignty but also the existence of states,” because this suggested allowing individual citizens to take legal action against their own state (Mandelstam Reference André1925, 337). To oppose minorities against their states in the League’s Council—he believed – might prevent their reconciliation and lead to fatal consequences regardless of the outcome of the process. In other words, the interference of the international community as a third party could only aggravate the existing conflict, as it would put into question the sovereignty of a given state and make it dependent on external actors. At the same time, Mandelstam proposed to make the examination of petitions on behalf of minorities in the League both mandatory and more transparent. He also proposed to admit representatives of minorities alleging oppression during the proceedings of the Council of the League, giving them an opportunity to testify (Articles 12 and 13). The purpose of these proceedings was not so much to interfere in the internal affairs of a given state as to help start a process of reconcilement between that state and its minorities.
Examining the 1925 draft of Mandelstam’s international convention on minority rights, one can notice significant differences from his earlier projects, which presupposed the right of “civilized” states to intervene into the internal affairs of those less “civilized.” The 1925 draft pays considerably more attention to the need to protect states from foreign interference in their relationship with minorities. While in 1925 he limited the role of the League of Nations to that of a mediator, his 1923 “La Protection des Minorités” still justified humanitarian interventions of protecting Christian minorities in Turkey, and praised the Allied Powers for imposing minority legislation on newly established states and partially restricting their sovereignty. “The Allied powers deserve credit for… understanding the need … to protect minorities, which just yesterday had still constituted the majority, from the vengeance of those who had not shown great tolerance before” (Mandelstam Reference Mandelstam1923, 404). Such reasoning was absent in his 1925 project, even though it otherwise reproduced the main ideas of his earlier text. Now Mandelstam treated the state’s relationship with its minorities as a subject of internal legislation, merely adding the provision that the League of Nations ought to control the observance of the convention—a provision that did not include an enforcement mechanism. The role of the international community in his project was that of a mediator that acted only on the initiative of the League’s member-states.
Mandelstam strove to find a compromise between two different standpoints. On the one hand, the existence of a minority was an objective fact to be established by international expertise. On the other hand, in case of conflict between a minority and its state, the minority had no right to appeal to the international community for protection. It could only file a petition to the League of Nations, which, however, did not have the right to interfere into this conflict. Instead, it could merely function as a mediator between both sides. Mandelstam’s compromise was thus biased in favor of the state. All the provisions outlined in his project were recommendations or obligations that states would voluntarily take upon themselves. In the case of violations of these provisions, Mandelstam’s suggestions did not go far beyond the legal practice of his time. His project contained no real sanctions against offending states unless another state acted on the minority’s behalf.
Mandelstam’s project thus departed (practically, if not theoretically) from his original idea of the supremacy of international law over the sovereignty of states. This was also noted by Mark Vishniak, who worked alongside Mandelstam on minority protection issues within the framework of the Russian League of Nations Association (Vishniak Reference Vishniak2016, 27–31). In his review of Mandelstam’s project, Vishniak criticized him for being too moderate and cautious. In Vishniak’s view, this did not allow Mandelstam to bring the issue of protection of minorities to a new level:
“Only the recognition of minorities as units with a certain national and international legal capacity can assure the stability and objectivity of minority legislation … Either there is minority legislation—and then there are holders of these rights; or there are no such holders, and then there is no minority legislation, but only international conventions establishing a special regime in favor of a third party, i.e., the minorities” (Vishniak Reference Vishniak1926, 599–600).
Apart from softening the mechanism of preventing violations of the universal convention, Mandelstam considerably narrowed the range of rights for personal autonomy as compared to his initial approach. His understanding of personal autonomy as absolutely non-political turned it into an extension of human rights, such as the right of individuals to profess their religion or establish voluntary associations. At the same time, there are certain similarities between Mandelstam’s project and the ideas of cultural (and later personal autonomy) formulated by the representatives of the Russian Constitutional-Democratic Party. Both Mandelstam’s project and that of the Kadets reduced the concept of autonomy to the right of nationalities to realize above all their cultural needs. Both delegated all other issues to the sphere of universal legislation that guaranteed civil equality and the absence of any discrimination on national or religious grounds. Boris Nolde’s suggestion in the latest version of the Kadet program (July 1917) included provisions of personal autonomy. It proposed the creation of corporate associations (publichno-pravovye soiuzy) to deal with the educational and religious matters (S”ezdy i konferentsii 2000, 723; Nolde Reference Nolde1917; Holquist Reference Holquist2006). But as in Mandelstam’s project, these associations were deprived of any political competences, such as the creation of separate minority curia for parliamentary elections or the fulfillment of other functions at the state level.
In contrast to Mandelstam’s Reference Mandelstam1923 article, his 1925 project was silent about the role of great powers as guarantors of minority protection. The unintended consequence of the creation of a universal convention that would satisfy all states was the lack of an enforcement mechanism for this minority protection regime in the case of a conflict. The fact that the project no longer envisaged states as guarantors of minority rights reflected changes in Mandelstam’s own position. In 1925, he no longer hoped that the Allied Powers would take an interest in fulfilling these universal guarantees. As a result, Mandelstam had to defend a compromise between realist and idealist positions. It seems that he counted on international public opinion to push for states’ compliance with his convention. Apart for a limited number of cases in which the Permanent Court of International Justice could step in, he did not foresee any mechanism of enforcing it.
Universalism vs. Non-Territorial Autonomy
In 1928, during a session of the IDI, which took place in Stockholm, Mandelstam presented a new version of his project. The discussion took place within his commission on the protection of minorities itself. He changed the preamble so that it referred directly to the minority treaties of the League of Nations as providing positive norms of international law. He also mentioned the demands of some members of the League such as Poland and Lithuania to universalize the norms for minority protection. Finally, he mentioned the resolution of the League that called on non-member states to follow the same principles of tolerance that the signatory states had signed. His other modifications were mostly technical, for instance, affecting the numbers of articles and the arrangement of parts of the text. He also excluded the provision for a fixed list of minorities in the convention and added a stipulation whereby the General Secretariat of the League had to inform minorities of the status of their petitions.
Along with the main declaration, Mandelstam presented a project for an international convention on human rights. According to him, the “declaration of the Institute regarding racial, linguistic and religious minorities should be accompanied by a statement in support of a convention that generalizes the protection of human rights and citizens, as recognized in earlier minority treaties” (Mandelstam Reference André1928, 288). This draft for a human rights convention consisted of 2 articles, which repeated the first and the second articles of Mandelstam’s Reference André1928 version of his minorities convention. The aim of this, as he explained in one of his later essays, was to save the overall project by promoting at least its minimal elements—the protection of human rights. The convention on minority rights as being more demanding had to be considered separately (Mandelstam Reference Mandelstam1930, 510–511).
Subsequent discussion at the IDI commission demonstrates which particular parts of Mandelstam’s project on minorities were most controversial among experts. In their reviews on Mandelstam’s project, almost all members of the commission endorsed the idea of a universal convention on minority rights. Their objections referred to particular details. The critics either proposed reinforcing the bargaining capacity of minorities in their relationship with states, or, on the contrary, insisted on strengthening the states capability to counter the challenges posed by the minorities (Mandelstam Reference André1928, 314–338).
Hans Wehberg asked to specify that a minority’s commitment to loyalty toward the state should not be synonymous with the abandonment of its plans for separate statehood, as long as these plans were peacefully fulfilled within the framework of the existing legal order (Mandelstam Reference André1928, 314–315). He advised Mandelstam not to deny minorities the status of subjects of international law, even though this idea might look premature. Wehberg argued that various groups expressed this demand and it would be fairer to support the international public opinion, rather than oppose it (Mandelstam Reference André1928, 315).
Mikhail Taube acknowledged “the particular cautiousness of the author,” and recommended to omit details that were “not quite mature for codification,” and to present the declaration in more general terms. He suggested that “[i]t would be enough to… proclaim a more general principle of legal equality for persons belonging to minorities, and to postpone the issue of higher education as too complex” (Mandelstam Reference André1928, 330). Taube thought it unacceptable to oblige states to provide minorities with subsidies to allow them to open educational institutions in their own languages (Mandelstam Reference André1928, 331). In fact, he denied any special rights for minorities and recognized only the articles promoting non-discrimination. Another expert, Marquis d’Olivart, approved the project in general but opposed the idea of creating artificial minorities, and even warned that the League of Nations must not “become their factory” (Mandelstam Reference André1928, 332). He argued that for the maintenance of “inner peace within states,” minority status should be given only to those groups that found themselves in other states as a result of changing borders. Yet another expert, Louis Le Fur, maintained that both public opinion and governments were not ready to recognize the need for an effective protection of minorities. For him, the most important benefit of Mandelstam’s project was that it helped to “shape the still undecided public opinion” (Mandelstam Reference André1928, 338).
During the discussion at the IDI, many initial provisions of Mandelstam’s draft convention on minorities underwent serious revisions. Its first and second articles as well as parts of the third and fourth one, all referred to general rights, were left out. Mandelstam turned them into a separate project, the earlier-mentioned Declaration of Human Rights (Mandelstam Reference André1928, 376). In this declaration, he replaced the initial term “minority” with “the residents” (les habitants) of the state (Mandelstam Reference André1928, 372). The two other articles, cut off from the initial project for the protection of minorities and added to the project of the declaration of human rights prescribed that the citizens must not be discriminated against on the basis of ethnicity, race, and language. Additionally, the draft preserved the right of citizens to establish and administer religious, educational, charity, and social institutions from their own funds (Mandelstam Reference André1928, 373).
The new version of 1928 project on the protection of minorities now began with a provision, which stipulated that all citizens of the state belonging to a minority should have equal access to educational institutions (Article 4 of the initial version). The parts of the original article that referred to special quotas for minorities at state universities were omitted. The same applied to the clause about the use of national languages in courts. The commission also voted against the Mandelstam’s inclusion of subsidies for minority universities and schools in the their languages. Finally, the Articles 7 and 8 about personal autonomy were also significantly revised.
Some members of the commission supported the idea of non-territorial autonomy. But M. Hobza and Marquis d’Olivart were against its inclusion into the universal declaration. Baron Taube and Le Fur noted the “vagueness” of the term, which, in their view, “could provoke various interpretations” (Mandelstam Reference André1928, 380). Ultimately, the commission agreed on the right for minorities to organize public unions and authorize these unions to levy taxes from their members for cultural, religious, and social needs. However, the commission decided not to include the term of personal autonomy, which, according to its critics, “could potentially have political consequences” (Mandelstam Reference André1928, 380). Ultimately, the seventh article (in the final version, fifth) now read as follows:
§ 1. The citizens of the state who belong to racial, religious, or linguistic minorities have the right to administer their interests through representative bodies within the limits of state laws.
§ 2. The laws of the state can determine whether the minorities are allowed to organize themselves at a state-wide level (Mandelstam Reference André1928, 380–381).
Mandelstam thus left it to states themselves to define the limits within which they were ready to accord minorities the rights of self-government and satisfy their cultural and educational needs. Furthermore, he let states decide whether to allow the public associations of minorities only at the local level or also at that of the state (as the notion of personal autonomy had initially propounded).
These changes completely deprived Mandelstam’s project of its original meaning. The very concept of national personal autonomy was omitted. There only remained the vaguely formulated right of minorities to create associations and establish schools and other cultural institutions at their own expense. The state itself could define the limits for the activity of these associations. Universality thus only remained a declaration in this final version of the project. In practice, states were free to regulate the regime of special rights on their own. As a result, the only part of the initial project for the protection of minorities, which raised no objections, was the Declaration of Human Rights adopted by the institute in 1929. However, it was not directly related to the protection of minorities proper.
Conclusion
The projects for personal autonomy formulated by Mandelstam underwent certain evolution between 1917 and the beginning of 1930s. This evolution can be characterized as a transition from an imperial domination that entailed the idea of humanitarian intervention to enforce international law, on the 1 hand, toward an abstract universalism lacking any enforcement mechanism and relying on international public opinion alone, on the other.
Initially Mandelstam adhered to the idea of protecting minorities through legislation imposed by the great “civilized” powers on those that were regarded as less “civilized.” Here, the main concern was the protection of the life and property of the members of a minority. The promotion of their cultural needs was of secondary importance. For this entire protection package, Mandelstam adapted Karl Renner’s and Otto Bauer’s projects for non-territorial national autonomy. Without mentioning Renner and Bauer explicitly, he did preserve the main political features of their projects, in particular the idea of national curia and proportional representation in legislative bodies and administration.
The post-war period witnessed the creation of new states and the restructuring of old ones. During this process, the victors of the Great War sought to use the League of Nations to impose certain limitations on the sovereignty of weaker states. These restrictions were laid down in the international treaties and the internal legislation of those states. Mandelstam was not directly involved in this process. As a representative of different White governments, he either sought to advocate the interests of the vanishing Russian empire, or focused on securing a legal status for Russian refugees abroad.
The subsequent evolution of Mandelstam’s views reflected his new position as a free-floating intellectual and expert of the IDI. Now being more sympathetic toward smaller states opposing unilateral restrictions of their sovereignty, Mandelstam insisted on the adoption of a universal convention to establish an obligatory minimum of minority rights that was equal for all states. While relying on the idea of national personal autonomy for this convention, he reduced its scope to the cultural needs of the minorities to make it acceptable for the majority of states. He reasoned that, in contrast to territorial autonomy, national personal autonomy would not provoke fears among states that minorities could use it to undermine the territorial integrity of the state. For the same reason, he reduced the role of international organizations in solving conflicts between states and minorities to persuasion. According to Mandelstam, any international interference on behalf of minorities risked causing a deterioration of their situation.
The discussion of Mandelstam’s proposal by the commission of the IDI demonstrated that his project provoked criticism even in its softened and exceedingly moderate version. The Institute adopted only the part of the project that guaranteed human rights in a limited understanding as the non-discrimination of citizens on the basis of ethnicity, race, and religion. The latest addition to Mandelstam’s declaration, Article 6, prohibited states from revoking citizenship on the basis of gender, language or religion. As for positive rights to protect minorities from assimilation, their scope and implementation mechanism were left to the discretion of participating states. The notion of national personal autonomy was wholly omitted from the final version of the proposed draft.
This disappointing outcome did not, however, deprive Mandelstam of the hope that his project of the protection of minorities in some form might be implemented in future. During a session of the IDI in 1931, Mandelstam proposed to discuss the following principles to be included in his universal convention on the protection of minorities: (1) states should guarantee minorities the freedom of their national, religious, and cultural life in exchange for a declaration of their loyalty to the states; (2) states should not attempt to forcibly assimilate minorities, and members of a minority should have the right to voluntary assimilation without hindrance from their own minority (Mandelstam Reference André1931, 565–566).
Mandelstam thus gradually abandoned the principles of imperial domination, which had no longer any real force behind it. He abandoned the idea of enforced restriction of sovereignty for the sake of international law, and instead counted on the adoption of universal conventions of such general character that they were virtually deprived of any substantial content. As long as there was no enforcing mechanism contained in the proposed convention, any provisions based on the loftiest humanitarian considerations turned out to be no more than wishful thinking, the projects of a free-floating intellectual.
Acknowledgments
I am very grateful to Börries Kuzmany, Matthias Battis, Marina Germane, Timo Aava, and the Non-Territorial Autonomy Team for their enriching feedback and helpful comments. I also thank Martin Aust, Helmut Aust, and Peter Holquist for inspiring and informative conversations about André Mandelstam and the whole cohort of Russian international lawyers in emigration. I also express my gratitude to the reviewers.
Disclosures
Financial Support: The article had been prepared under the financial support of Russian Science Foundation (project no: 17-78-20117). I am grateful to COST (European Cooperation in Science and Technology) ENTAN. Their STSM grant made possible my research stay at the University of Vienna with the team of NTAutonomy project, which was very important for finalizing the article. The NTAutonomy project leading to this publication has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (Grant agreement No.758015).
