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Do minorities have the right to self determination?

All international instruments grant the right to self-determination to 'peoples', and despite their large number, no precise meaning of the term "people" has been construed. Although there is no international legal definition of "peoples," who are entitled to the right of self-determination, the term is generally used to describe a population who shares the following characteristics: (1) a common historical tradition; (2) self-identity as a distinctive cultural group; (3) a shared language; (4) a shared religion; and (5) a traditional territorial connection.

Attempts to give a definition of the term people occurred in the process of the drafting of the UN Charter. Self-determination in the Charter attaches to "peoples". However, the travaux preparatoires of the San Francisco Conference point to an inconclusive discussion of the term 'peoples'. The UN Secretariat, in an attempt to interpret the term 'nation' and 'peoples', suggested that "the word 'nation' is broad...enough to include colonies, mandates, protectorates and quasi-States as well as States"; and, "...'nations' is used in the sense of all political entities, States and non-States, whereas 'peoples' refers to groups of human beings who may, or may not, comprise States or nations." (UNCIO DOCS, Vol.XVIII, p.657-658).

Further attempts to define the meaning of the word "people" were made in the course of the preparatory works of the Covenants on Human Rights, where self-determination refers to "all people". To this end, it was suggested that this word mean "peoples in all countries and territories, whether independent, trust or non-selfgoverning", "large compact groups", "ethnic, religious or linguistic minorities", or "racial units inhabiting well-defined territories" etc. However, it was thought, that the term 'peoples' should be understood in its most general sense and that no definition was necessary (UNDOC E/CN.4/SR.253, p.4 (GR); E/CN.4/SR.256, p.7 (YU); E/CN.4/SR.256, p.5 (IND); E/CN.4/SR.257, p.9 (RL); See also Bossuyt, M.J., GUIDE TO THE "TRAVAUX PREPARATOIRES" OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 1987, Martinus Nijhoff Publishers, at 32).

Indeed, it appears to be exceedingly difficult to define the term 'people'. It has been suggested that peoplehood must be seen as a contingent of two elements. The objective element is that there has to exist an ethnic group linked by common history. A random group of persons, lacking any common tradition, cannot be categorised as people. There is also a subjective basis to peoplehood for it is not enough to have an ethnic link in the sense of past genealogy and history. It is essential to have a present ethos or state of mind.

In this regard, it appears relevant to refer to the Judgement of the Canadian Supreme Court on the secession of Quebec which attempted to ascertain the meaning of the term "people" for the purpose of the right to self-determination as follows:

" It is clear that a "people" may include only a portion of the population of an existing state. The right to self-determination has developed largely as a human right, and is generally used in documents that simultaneously contain references to "nation" and "state". The juxtaposition of these terms is indicative that the reference to "people" does not necessarily mean the entirety of a state's population.( See Judgment of the Supreme Court of Canada, at para.# 124).

Although the Court does not give a definition of the term" people", it authoritatively confirms that "people" could point to other groups of individuals other than the entirety population of a state. Subsequently, the Court forwards the reasons for its finding: To restrict the definition of the term to the population of existing states would render the granting of a right to self-determination largely duplicative, given the parallel emphasis within the majority of the source documents on the need to protect the territorial integrity of the existing states, and would frustrate its remedial purpose".

It is apparent that commentators have sought to meld the various definitions within the term "ethno-national" group, which is a politically self-conscious sub-national group that asserts plausible historical claims to a particular territory and shares racial, cultural, or historical characteristics that distinguish its members from the dominant population. In short, in order for a group to be entitled to the right to self-determination, it must possess a focus of identity sufficient for it to attain distinctiveness as a people. Furthermore, as highlighted in various reports of the State parties to the Covenant on Civil and Political Rights, which describe their compliance with Article 1 on Self-determination, another requirement for a group to be entitled to the right of self-determination, is to demonstrate close connections to a particular territory (See Third Periodic Report of France to the Human Rights Committee, UN DOC.CCPR/C/76/Add.7, May 15, 1997, at para.# 6-17; also Fourth Periodic Report of the Russian Federation to the Human Rights Committee, UN DOC. CCPR/C/84/Add.2, February 22, 1995; Initial report of the United States of America to the Human Rights Committee, UN DOC. CCPR/C/81/Add.4, August 24, 1994, at para.# 30, whereby Native American Tribes are described as "unique aggregations possessing attributes of sovereignty over both their members and their territory.").

A different concept is the one referiing to indigenous communities, many of them throughout the world are claiming the right to self-determination. These are peoples, such as American Indians and Australian Aborigines, who constitute a "first people," with a prior history of territorial occupation and an ancestral attachment to their land before it was conquered and occupied by others. At various international fora, spokespersons for indigenous groups have claimed that their situations are identical to those of colonized peoples who have been conquered and then ruled by others. They argue that the salt water test should not apply to them. Both the UN's Draft Declaration on the Rights of Indigenous Peoples and the Inter-American Draft Declaration on the Rights of Indigenous People provide for the right of self-government or autonomy for indigenous peoples within their states of residence. Neither draft, however, recognizes a right of complete territorial and political independence. For example, the UN Draft Declaration states that "as a specific form of exercising their right of self-determination, [indigenous peoples] have the right to autonomy or self-government in matters related to their internal and local affairs."

Further, in General comment 23 (50) the Committee stated that 'the covenant draws a distinction between the right to self-determination and the rights protected under art. 27'. (Para. 3.1). 'The enjoyment of the rights to which art. 27 relates does not prejudice the sovereignty and territorial integrity of a State party' (para. 3.2).

Minorities (whatever the definition) appear not to have the right to self-determination in the form of succession.

EU Badminter commission on the Former Yugoslavia held that the predominant principle that must be respected is that of uti possidetis - the boarders of territories are inviolable. It held that Serbs in Croatia did not have the right to form their own state although the Croatian government is obliged to afford them the widest possible minority protections / rights.

All the above implies that minorities, at least in principle, do not have a right to secession (so called "external self-determination") they are restricted to "internal self-determination": through the granting of some form of autonomy within the state structure, inclusion in the democratic process and through protection of minority rights. 'Internal' self-determination means the right to authentic self-government, that is the right for a people really and freely to choose its own political and economic regime, while 'external' self-determination implies the choice of the international status of the people and the territory where it lives. See A. CASSESE, SELF-DETERMINATION: A LEGAL REAPPRAISAL 72 & 101 (UK: Cambridge University Press, 1995) [hereinafter SELF-ETERMINATION: A LEGAL REAPPRAISAL].

In its Advisory Opinion of 20 August 1998 [Source: http://www.lexum.umontreal.ca/csc-scc/en/pub/1998/vol2/html/1998scr2_0217.html ] the Canadian Supreme Court had to respond to a question concerning international law - Is there a right to self-determination under international law which would give the National Assembly, Legislature or government of Quebec the right to effect the succession of Quebec from Canada?

The Court noted that a question would exist as to whether the Quebec population would constitute "a people" in international law, but found it unnecessary to resolve. After an examination of the general principles of international law relating to self-determination, the Court found a right of secession exists "where 'a people' is governed as part of a colonial empire; where 'a people' is subject to alien subjugation, domination or exploitation; and possibly where 'a people' is denied any meaningful exercise of its right to self-determination within the state of which it forms a part." The Court found that Quebec does not satisfy these threshold tests and so does not have a right to unilaterally secede. The Court did note that if Quebec were to make a unilateral declaration of secession, a de facto secession would depend, in large part, on recognition by the international community. But the court said that the right to self-determination may mean cessation when 'a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to excursus it by cessation". Also note that on the 1 April 1999 the Inuit peoples in Canada, who form a majority in Nunavut, were given an autonomous form of self government in order to fulfil the internal self-determination wish of the Inuit.

The Right to Self-Determination:

Self-determination could be considered to be the political and legal processes through which a people gain and maintain control over their culture, society, and economy. With the creation of the United Nations, self-determination of peoples became an established principle of international law. The principle is embodied in several international instrument among which the UN Charter and both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

The United Nations practice surrounding self-determination, including defining the content and subject of the right, has been consistent on certain central tenets. These tenets are preserving territorial integrity; granting self- determination only to dependent, external colonial peoples; and defining the subject of self-determination based on territory rather than ethnic criteria. Further, the political imperative of decolonization and the effort to clarify and define the Trusteeship system in the early 1950s served as the driving forces behind the shift from the Charter’s principle of self-determination to the right of self-determination expressed in the international human rights covenants drafted during the 1950s and 1960s. Though self-determination is only implied in the Charter chapter describing the trusteeship system, the idea of self- determination provided the movement for decolonization a moral and legal rationale. When self-determination was discussed during the drafting of the International Human Rights Covenants, the debates heavily linked the understanding of self-determination to the decolonization context. Tracing the development of the UN defined relationship between self-determination, Non-Self- Governing Territories, and decolonization clarifies the current status of self-determination at the UN.

The International Court of Justice refers to the right to self-determination as a right held by people rather than a right held by governments alone (Western Sahara Case, 1975 International Court of Justice 12, 31) (click here). In the case Concerning East Timor it held that [T]he principle of self-determination has been recognised by the United Nations Charter and in the jurisprudence of the Court … [and] is one of the essential principles of contemporary international law.( See Case Concerning East Timor, International Court of Justice Reports [hereinafter ICJ REPORTS] 102 (1995). (click here)

Worth reading are the two important United Nations studies on the right to self-determination which set out factors of a people that give rise to possession of right to self- determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance. (see: The Right to Self-determination, U.N. Doc. E/CN.4/Sub.2/404/Rev. 1, U.N. Sales No. E.80.XIV.3 (1980) (click here) and H. Gros Espiell, The Right to Self-Determination, U.N. Doc. E/CN.4/Sub.2/405/Rev.1, U.N. Sales No. E.79.XIV.5 (1980)). (click here)

The principle is contained in different instruments: 1) the United Nations Charter; 2) the United Nations Covenants on Human Rights; 3) the Declaration on the Granting of Independence to Colonial Countries and Peoples; 4) the Declaration on Friendly Relations; 5) the Helsinki Final Act; and 6) the Charter of Paris and Document of Copenhagen.

The UN Charter:

The UN Charter contains explicit references to “self- determination” which is considered to be within the “purposes” of the UN. The principle is explicitly mentioned in Articles 1(2) and 55. Article 1(2) provides that one of the purposes of the UN is “to develop friendly relations among nations based on respect for the principle of equal rights and self determination of peoples”. Article 55 instructs the UN to promote higher standards of living, solutions to health and cultural problems, and universal respect for human rights “with a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self determination of peoples...”

Thus, references to self-determination in the Charter are linked to the context of friendly relations among nations in conjunction with the “equal rights” of peoples. The Charter therefore, points towards the fact that the principle of self-determination is essential for “universal peace”. The text outlines a comprehensive concept linking independent factors of security, stability and human rights. The subcommittee responsible for the consideration of the Dumbarton Oaks Proposals and Amendments presented by the various governments gave its interpretation of the principle of self-determination (See UN Charter Debates, VI UNCIO 300, (May 15) at 703-4;), identifying the following main points:

a) free and genuine expression of the will of the peoples is an essential element of self-determination;
b) the principles of equal rights of peoples and that of self-determination are two component elements or one norm; c) that norm is a basis for the development of friendly relations, and is in effect, one of the appropriate measures to strengthen universal peace;
d) the principle in question should be considered in relation to other provisions of the Charter;
e) the principle as one whole extends as a general basic conception to a possible amalgamation of nationalities if they so freely choose.

The references to self- determination in Articles 1(2) and 55 of the Charter are further complemented by Chapters XI and XII on non-self-governing territories and the international trusteeship system. Article 73 of Chapter XI of the UN Charter describes the development of self- government in non-self-governing territories as a “sacred trust”. Article 76 of the Charter regarding the international trusteeship system provides for a progressive development in the Trust territories towards “self government or independence”.

The linkage between self-determination and colonies was supported by the many member states who favored the right of self-determination only for colonies. Resolution 637 linked self-determination with non-self-governing territories, defining those territories and in essence defining who would be recognized as possessing the right to self-determination. However, some nations attempted to expand the definition of a non-self- governing territory to include internally colonized peoples. Belgium took the lead in trying “to extend the obligations entered into by the UN members under Chapter XI to those parts of the metropolis inhabited by peoples whose degree of actual subordination to the rest of the state community in the midst of which they lived placed them in a ‘colonial situation’.” The “Belgium thesis” or “blue water thesis” as it came to be known, would have “extended the concept of ‘Non-Self-Governing Territories’ to include disenfranchised indigenous peoples living within the borders of independent states, especially if the race, language, and culture of these peoples differed from those of the dominant population.” In doing so, Belgium was attempting to bring back 23(b) of the League of Nations Covenant “which bound members to ‘secure just treatment of the native inhabitants of territories under their control’.”

However, the response of most other member states was unsympathetic and unequivocal. Chapter XI of the Charter did not “apply to peoples in independent sovereign states who enjoyed full rights as nationals of the state. ”The framers of the Charter in San Francisco had included Article 74, which clearly distinguishes Non-Self-Governing Territories from a state’s metropolitan areas, in order to restrict application of the term to peoples and lands geographically distinct from the administrating power. Western powers, who had indigenous peoples within their borders, led the opposition to Belgium’s more inclusive vision of a non-self- governing territory. This came to be known as the salt-water thesis, the alternative to the Belgium thesis and envisioned self-determination as the evolution towards self-government and independence, the goal of colonized African nations. By expanding the definition of a non-self-governing territory and applying self-determination to non-geographically distinct colonies, independence would not be the obvious and necessary result of self-determination.

Colonies located across the ‘salt-water’ could gain independence without disrupting the territorial integrity of existing nation-states while independence for domestic non- self- governing territories had the potential to cause a severe disruption. Alternate arrangements other than independence would seem to be the natural result of two self- determining peoples occupying the same territory. Thus, the salt-water thesis, now the accepted norm at the United Nations, has effectively eliminated indigenous peoples from gaining recognition as self-determining people at the United Nations.

However, the Charter fails to give a proper definition of “non-self-governing territories”, it loosely describes non-self-governing territories as “territories whose peoples have not yet attained a full measure of self-government.” (UN Charter, Chap. XI, Article 73). The definition is vague at best and contains no specific criteria for ascertaining when a non-self- governing territory has ‘attained a full measure of self- government.’

In Article 73(e), Administering powers are required to “transmit regularly to the Secretary General…statistical and other information of a technical nature” but the General Assembly is given no particular powers with regard to the transmissions or their contents.

In June of 1946, the Secretary General requested that member states submit the names of the non self-governing territories under their administrative care. Nation-states from around the world responded, and Resolution 66 (I) click here adopted on December 14th, 1946, formally enumerated the seventy-four territories falling within the scope of Article 73 (e). Two sessions later, the number of transmissions received by the Security Council had dropped from 74 to 63. Passed on November 3rd, 1948, resolution 222 (III) entitled ‘Cessation of Transmission of Information under 73(e) of the Charter’ click here attempted to address the ‘missing’ transmissions by reminding states of their responsibility to continue transmitting under Article 73. Some states argued that they had ceased transmissions because the territories in question no longer fell under the definition of a non- self-governing territory. Achieving ‘self-government’ was the seemingly straightforward criterion set by Article 73 indicating when a territory had ceased to be non self- governing, yet the article provided no definition for ‘self- government’.

Before culminating in two important resolutions in 1960 that provided definitions for these contested terms, the General Assembly continued to debate the issue and passed numerous resolutions including Resolution 334 (IV) 2 December 1949, click here Resolution 567 (VI) 18 January 1952, click here Resolution 648 (VII) 10 December 1952, click here and Resolution 742 (VIII) 27 November 1953 click here which articulated its evolving views.

UNGA Resolution 637 (VII) 16 December 1952 (click here)

While debating the definition of non-self-governing, or when a non-self-governing territory ceased to be a non-self- governing territory, the General Assembly was also struggling to form a definition to identify such territories. In resolution 637 (VII) of 1952, the General Assembly clearly recommended that “States Members of the United Nations shall recognize and promote the realization of the right of self-determination of the peoples of Non- Self-Governing and Trust Territories who are under their administration” and that “States Members of the UN shall uphold the principle of self-determination of all peoples and nations.”.) 

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© F.J. Leon-Diaz, 2002
Javier Leon Diaz Human Rights Law Page
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