Minorities, Territories and the Law of Ownership. Back to Basics and the Way Forward

Abstract

In public law, the concept of property plays, arguably, a much more limited role than in private law. At a closer look, however, a rather different picture emerges. In fact, in public (national and international) law, property is less (if at all) regulated, but not less important than in private law. Rather, it is implicitly assumed and developed in collective rather than individual terms. Especially in the nation state construct, territory is the property of a state and the state is the property of a group of people (the dominant nation), whose power to control a territory is called sovereignty. For this reason, when the question emerges of how to deal with a territory predominantly inhabited by a minority group, the answers by different actors involved might be diametrically opposite. This is essentially because the link between people and territory is always framed in terms of ownership: who “owns” a territory? And how to deal with those who inhabit the territory without (being seen as those) owing it? This essay explores the responses to such questions. The focus will be on challenges posed by autonomy regimes as instruments for the accommodation of minority issues, including the evolving concept of territory. Against this background, the different understandings of the link and the recent practice of selected international bodies will be analysed, leading to some concluding remarks. It will be argued that territory is an unavoidable point of reference, but many aspects are not sufficiently addressed, such as the issue of the addressees of such arrangements, the evolution that minority-related concepts are facing in the present era, marked by the challenge of diversity and the overall understanding of territorial arrangements.