Local and regional autonomy: the comparative law approach to residential and spatial conflicts* André EAM Thomashausen** ETHNICITY AND TERRITORY Writing of Africa, Ernst Jiinger, a great contemporary German philos- opher observed in one of his last works Democracy becomes a doot to violence, For a start, all are equal: rich and poor. black and white, and so forth. Next comes the quantification, and voting cakes place. The black majority is overwhelming. Now, the blacks are more black, and the whites whiter chan ever before. The white man, being the slave of his own ideas, himself put the sling around his neck. There are more intelligent ways co commit suicide. These few words express fears and prejudices which are common in South Africa: the fear that the white minority who played an important role in making South Africa a great nation may in the future lose all say, and the prejudice that democratic rule for all would unleash the forces of merciless fanaticism.” Comparative law attempts to study any appropriate choice of different legal systems and to identify and compare various legal arrangements of and answers to any common phenomenon of social life.? Comparative law is based on the belief in the universality of humanity, and therefore its approaches do not accept that any particular aspect of social life in a given country could be so particular and unique that it would not be possible to recognise it in a different country’s legal environment. Legal comparison allows for reflection from a disengaged and distant angle. It helps one to understand and discover common denominators of similar problems in different countries and distinct systems of law and it thus becomes possible to isolate the core and the determining factors of a given phenomenon. Ina recent American study based on UN materials 124 countries are *Inaugural lecture held on 20 June 1985 at Pretoria. **Dr Jur (Kiel), Assessor (W Germany) 1E Jiinger Siebzig verwehe IT 1983 432 2Eg Vereniging van Oranjewerkers Witman, Waar is jou Tuisland 1984. 2A Heldrich “Sozialwissenschaftliche Aspekte der Rechtsvergleichung” 34(1970) RabelsZ 427 et seq.298 XVII CILSA 1985 listed which can be classified as countries with minority problems.* Minor- ity conflicts triggered the world wars. The history of religion is a history of. minority struggle and of wars of religious minorities. The freedom of religion was first recognised, by implication, through the freedom of movement.® Migration for reasons of religion led to the fragmentation of states in Europe and to the creation of entirely new nations, such as the United States. South Africa’s own history is a history of the struggles of minorities and distinct population groups. These struggles can be seen in terms of religion, language and ethnicity or race.® It is natura] for humans to live in families and for families to associate with other families in a community. Functional division of labour and the collective security of a community are necessary conditions for ensuring the preservation of the group. It is also natural for a community to strive towards defining and securing the area of its physical expansion. The genesis of the formation of states is the history of the transformation of clans and tribes (‘“Personalverband”) into territorially defined societies (“Territorialverband”). Nomads are the single great exception.” The com- munity offers comfort and reassurance through the sharing of a common language, beliefs and traditions, However, space, and therefore the availability of territory, is limited. Small communities living in the vicinity of much larger, more fertile and distinctly different communities will feel threatened. This threat is even greater if the minority lives in the midst of such distinctly different and larger groups of people. Matters are further complicated if 2 minority’s settlemengs are scattered all over a country’s territory, or if distinctly different population groups are of more or less similar size. The Portuguese in Paris will relax in the evening in a smal] Portuguese restaurant, where the music, food, and language make them feel at home. The Turkish dustman in Germany will cease to be self-conscious when he meets other Turks in a mosque.’ Two South Africans meeting by accident 4JA Sigler Minority Rights, A comparative Analysis, 1983 205 et seq; the list does not mention Germany where at least one distinct minority, ie the Danish minority can be identified; see the “Declaration on Minorities of Bonn and Kopenhagen of 29/03/1955 and 7/06/1955; see “25 Jahre Bonn-Kopenhagener Minderheitenerklarung” in 11(1980) Schrifien der Hermann- Ehlers-Akademie, T Veiter “Die Volksgruppen und Sprachminderheiten in der Bundesre- publik Deutschland” in 1970 Europa Ethnica 3G Jellinek Die Erklarung der Menschen- und Biirgerrechte 2ed 1913 36 et seg; Diirig “Artikel 11” in Maunz/Diirig/Herzog/Scholz Grundgesetz Kommentar vol 1 11/3 et seq “Most recently GM Fredrickson White Supremacy — A Comparative Study in American & South African History Oxford 1981 * Furth “Gemeinschaft” in H Kunst/R Herzog'W Schneemelcher Evangelisches Staatslexi- kon 2ed 1975 797 et seq: R Zippelius Allgemeine Staatslehre 5ed 1975 24 et seq; R Herzog Allgemeine Staatslehre 1971 75 et seq. G Kegel / Sedl-Hohenveldern “On the Territoriality Principle in Public International Law” 5 (1982) Hastings International and Comparative Law Rewiew 245 et seq Eg for Germany: V Gessner “Das Soziale Verhalten der Gascarbeiter” in Ansay/Gassner ed Gastarbeiter in Gesellschaft und Recht 1974 11 et seg; see also 1984 Der Spiegel (N° 42) 85 et seq.Residential and spatial conflicts 299 on the London underground will have more to say to each other than they would have had, had they met at home. The great mobility of people made possible by modern technology increases the need for community protec- tion and for the moral support of familiar environments. Occasionally the natural tendency of man to identify with his own kind may be absorbed, in conditions of urbanisation and pursuit of higher incomes, by an identifica- tion in terms of social class or professions.” However, in most countries “regionalism” or “particularism” has in the last two decades become the single greatest threat to national unity. Austria, Belgium, Canada, France, Yugoslavia, India, the United Kingdom, the Soviet Union and Spain are but a few examples. The territorial identification of ethnically or otherwise distinctly de- fined groups is a reality which is being confirmed in Europe by the lifestyle of the large numbers of migrant workers who have settled mainly in England, France and West Germany.'° In conditions of marked differences in productivity and wealth between various regions and ethnic groups high mobility of the less favoured groups into areas and territories traditionally occupied by wealthier communities challenges spatial policy. The more privileged communities perceive the influx of underprivileged people of a radically different cultural background as a threat. The strain on com- munity services and the satisfaction of basic needs may cause infrastruc- tures to break down, Other undesirable effects will result from an excess- ive concentration of uprooted people. As was observed in Europe in the past decade, uncontrolled influx leads to ethnic concentrations in urban areas. Such ethnic concentrations provoke hostility from the members of the groups originally occupying the areas. In turn, this leads to progressive segregation. Forced integration appears to strengthen de facto segregation."! SPATIAL ETHNICITY IN SELECTED COUNTRIES From the overwhelming number of at least 124 countries with minor- ity problems,'? even a limited choice is sufficient to show that a whole °G Ganguillet/H Kriesi “Der Heimatlose Birger im Leistungsstaac” 23(1983) Annuaire Suisse de Science Politique 141 et seq at 147 "PD Lohmeyer “Gastarbeiter” in Ev Staatslexikon op cit 774 et seq, from 1977 until 1982 the number of alien migrant workers in West Germany increased according co official figures by 719 000 to a total of 4,667 million (7,5% of the coral population). Many metropolitan areas show a concentration of aliens of up to 30%. In 1982, 2.2 million had already been resident for more than 10 years, which qualifies many under ss and 11 Auslindergesetz for strengthened rights of permanency. Unofficial figures estimate a number of at least 6 lion aliens, of which at least 10% are “second gencration” aliens (ie born in West Germany). Some 12% of aliens are unemployed, and of the aliens who have not yet reached full age, 60% leave school without even having passed the equivalent of standard 8 See also Die Welt of 11/3/82 3; Frankfurter Allgemeine Zeitung of 23/2/82 4 USigler op cit 10 et seq, with further references; C Tomuschat “Freiziigigkeit nach deutschem. Recht und Valkerreche” 27 (1974) Die Offencliche Verwaltung 757-756 758 and 763. "Sigler supra 205.