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Minority Protection Within the Concept of Self-Determination
Published online by Cambridge University Press: 21 July 2009
Astract:
Does contemporary international law offer sufficient and effective means to prevent any future secession by national minorities? In order to answer this question, general international instruments concerning minority-protection, as well as more recent international instruments designed specifically for the protection of minorities, will be investigated. The role that a guaranteeing of collective and, in particular, political rights to national minorities have or can have in order to prevent future secession by national minorities, will be given special consideration. It will be concluded that, in the author's view, the above-mentioned question must be answered negatively, and that an extension of political and collective rights for national minorities is needed, in order to enable a prevention of future secessionist claims by national minorities.
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- Copyright © Foundation of the Leiden Journal of International Law 1995
References
1 See, e.g., M. Galenkamp, Individualism Versus Collectivism - The Concept of Collective Rights 42–52 (1993); H. Hannum, Autonomy, Sovereignty and Self-Determination 58–59 (1990); D. Sanders, Collective Rights, 13 HRQ 368–386, at 373–374 (1991); F. Capotorti, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities,UN Doc. E/CN.4/Sub.2/384/Rev.l, at 26–27.
2 See, e.g., Chapter XI-XH of the UN Charter; UN Doc. A/RES/1514 (1960); and UN Doc. A/RES/2625 (1970).
3 See, e.g., UN Doc. A/C.3/L.489. Art. 1 of both 1966 Covenants reads: “[a]ll Peoples have the right to self-determination. By virtue of this right they freely determine their economic, social and cultural development.”
4 See P. Thornberry, Minorities and Human Rights Law 9 (1991). He writes: “[t]he Heading of Chapter XI [UN Charter]: Declaration regarding Non Self Governing Territories supplies the meaning of peoples: peoples became the inhabitants of the colonies as a whole. The term was not defined in any ethnic sense. People is a territorial concept: the territorial integrity of the colonies was to be maintained to and beyond independence.”
5 See G.J. Veerman, Het zelfbeschikkingsrecht der naties en de rechten van de mens 66 (1977).
6 See P. Thornberry, Minorities and Human Rights Law 5 (1987). He comments on this issue by writing: “[s]ome States […] regard self-determination as having no implication beyond the colonial context: it is considered to be passe. Many voices, however, do not agree with this, implying that the concept has some continuing function to play. But what functions? A concept such as ‘people’ is ambiguous: it can be ethnic, it can be territorial. It seems to the present author that one does not great violence to its meaning by treating people as a synonym for ‘State’.”
7 In theory, a distinction can be made between internal self-determination and external self-determination. Internal self-determination refers to the possibility of a people to decide about its own political system and under which rulers it wishes to live. External self-determination refers to the international status of (the people in) a state; the right to abstention of external interference. In practice however, a clear and distinct use of both concepts seems impossible, for external can be regarded as a consequence of the exercise of internal self-determination. But cf. Roethof, H.J., Het zelfbeschikkingsrecht der nationaliteiten 239 (1955).Google Scholar
8 See Oeter, S., Selbstbestimmungsrecht im Wandel; Überlegungen zur Debatte urn Selbstbestimmung,Sezessionsrecht und ‘vorzeitige’ Anerkennung, 52/3–4 HJIL 741–780, at 761–762 (1992).Google Scholar
9 Id., at 764.
10 See Franck, T.M., Postmodern Tribalism and the Right to Secession, in C. Bröllman, R. Lefeber & M. Zieck (Eds.), Peoples and Minorities in International Law 3–27, at 13 (1993).Google Scholar
11 Id.
12 See Capotorti, supra note 1, at 28–29.
13 See UN Doc. E/CN.4/641, Annex I, Res.II.
14 See Capotorti, supra note 1, at 96.
15 Id.
16 See UN Doc. E/CN.4/Sub.2/1985/31.
17 See UN Doc. E/CN.4/1986/43).
18 See, e.g., M. Leiris, Race and Culture 20–21 (1951).
19 See also ST/TAO/HR/23 (1965 Ljubljana Seminar on the Multinational Society).
20 See Franck, supra note 10, at 6.
21 Id.
22 See Veerman, supra note 5, at 160. According to Veerman, the Organization of African Unity, in 1964, declared itself in favour of the preservation of the established stateborders,because of its fears for a far-reaching disintegration of Africa.
23 See Franck, supra note 10, at 11. In this respect, Franck refers to the text of Art. 27 of the Covenant on Civil and Political Rights.
24 See Sanders, supra note 1, at 369.
25 Cf., e.g., Saladin, C., Self-Determination, Minority Rights and Constitutional Accommodation:The Example of the Czech and Slovak Federal Republic, 13 MJIL 172 (1991).Google Scholar
26 See Sanders, supra note 1, at 369.
27 Id., at 370. Sanders illustrates this by giving the example of labor unions. According to Sanders, a union “has no role beyond achieving the goals of the industrial workers. No cohesive collectivity is involved. Every member of a unionized work force can be replaced without affecting the goals of the union.” 28. Indeed, it must be added that determining the subjects entitled to collective rights, as well as the contents of the entire concept depends on different approaches. In this respect, Galenkamp points at the ‘globalist’ approach, which considers collective rights to be a response to emerging global problems (like environmental concerns) and the ‘Third World’ approach, which places the concept of collective rights within the broad concept of the right to development. This clearly reflects the absence of any analytical clarity of the concept of collective rights. See Galenkamp, supra note 1, at 33–35.
28 See, e.g., Crawford, J., The Rights of Peoples: ‘Peoples’ or ‘Governments’?, in J. Crawford (Ed.), The Rights of Peoples 55–67, at 58 (1992).Google Scholar
30 This League of Nations system of minority was also based on nothing more than the protection of the individual members of minorities. See, eg., Galenkamp, supra note 1, at 44. She comments on this by writing: “only by presupposing this ‘individualistic’ bias for postwar minority protection […] one may understand the predominant trend in the handbooks of international law to consider the prewar minority rights protection as - the forerunner of - the postwar individual human rights protection”.
31 For an extensive historical review of the completion of Art. 27 of the 1966 International Covenant on Civil and Political Rights, see Capotorti, supra note 1, at 31–41. See also Thornberry, supra note 4, at 14–16.
32 See also Capotorti, F., Are Minorities Entitled to Collective Rights, in Y. Dinstein & M. Tabory (Eds.), The Protection of Minorities and Human Rights 505, at 510 (1992). He strikingly remarks: “it can be easily understood that States are often opposed to the qualification of the rights internationally granted to minorities as ‘collective’, because they are aware that self-determination is the main right of peoples. They fear that minorities could pretend to exercise that right as soon as they are considered the holders of collective rights.”Google Scholar
33 See UN Doc. ST/HR/l/Rev.4 (Vol. 1, Part 1), at 101–107.
34 See Art. 8 of the Convention.
35 UN Doc. A/RES/2106 (1965). See also UN Doc. ST/HR/l/Rev.4 (Vol. 1, Part 1), at 66–79.
36 Emphasis added.
37 UN Doc. A/RES/36/412 (1981). See also UN Doc. ST/HR/l/Rev.4 (Vol. 1, Part 1), at 122–125.
38 Emphasis added.
39 See ECHR Commission, Application No. 8142/78, 18 Decs, and Reports (1979), at 92–93.
40 ECHR Commission, Application Nos. 9278/81 and 9415/81, 23 Decs, and Reports (1984), at 357–359.
41 See J. Donnelly, Universal Human Rights in Theory 8c Practice 36 (1989). See also M. Nowak, UNO-Pakt über biirgerliche und politische Rechte und Fakultativprotokoll CCPR-Kommentar 467 (1989).
42 See UN Doc. E/CN.4/1985/10, at 22–27.
43 Universal Declaration of Human Rights (GA Res. 217 A (ID), of 10 December 1948), see,e.g., UN Doc. A/810.
44 See, eg., UN Doc. A/C.3/L.489.
45 See also Donnelly, supra note 41, at 37.
46 See UN Doc. E/CN.4/SR.368–371.
47 See, e.g., Sandra Lovelace case, HRC. Communication No. 24/1977, UN Doc. CCPR/C/OP/1; Lubicon Lake Band v. Canada, HRC Communication No. 167/1984, UN Doc. A/45/40, Vol. II; Kitok v. Sweden, HRC Communication No. 197/1985, UN Doc. A/43/40.
48 See HRC Communication No. 167/1984, UN Doc. A/45/40, Vol. II, at 27.
49 See Preamble of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UN Doc. A/RES/47/135 (1992).
50 Council of Europe Doc. CDL (91)(7)(1991). See 12 HRLJ 270–273 (Nos. 6–7, 1991).
51 The Draft Convention has been drafted within the framework of the CSCE-process and has its basis in the Final Act of Helsinki (1975), the Conclusive Document of the Copenhagen meeting of the CSCE-Conference on the Human Dimension (1990), and the Charter of Paris for a New Europe (1990). See, e.g., 29 ILM (1990); and 30 ILM 190 (1991).
52 See B. Sloan, General Assembly Resolutions Revisited (Forty Years After), LVUI BYIL 39–142, at 138 (1987). According to Sloan, the main factors determining the effect of a UN General Assembly resolution are: “(1) terms and intent, (2) voting patterns or support [within the General Assembly] and Statepractice.”