DEALING
WITH
CLAIMS
OF
ETHNIC
MINORITIES
IN
INTERNATIONAL
LAW
Tina Kempin
Reuter'
A
BSTRA
CT
.............................................................................................................
201
I.
INTRODUCTION
.............................................................................................
202
II.
PROTECTION
.................................................................................................
203
A
.
E
xistence
.............................................................................................
206
B.
Equality
and
Non-Discrimination
.......................................................
210
C.
Identity
and
Culture
............................................................................
215
III.
EM
POW
ERM
ENT
............................................................................................
219
A
. P
articipation
.......................................................................................
223
B.
Secession
and
Independence
...............................................................
229
IV
.
C
ONCLUSION
................................................................................................
236
ABSTRACT
From an
international
legal
point
of
view, claims
by
ethnic groups
pose
serious
questions
touching
upon
fundamental
principles
of
international
law.
The
right
to
existence
of
ethnic
minorities;
equality
and
non-discrimination
measures; and
the
question
of
the relationship
between
self-determination,
participation,
and
minority
rights
are
some
of
the most
important
issues
that
arise. The
integration
of
ethnic
groups
in
regional
and
national
decision-making
processes,
minority-benefiting
power-sharing
arrangements,
and
territorial
claims
(notably
autonomy
and
secession)
implicate key
aspects
of
international
law
and
should
accordingly
be
regulated
by
international
law.
These key aspects
center
on
three series
of
questions:
1.
Does
the
active
protection
and
empowerment
of
ethnic
groups
and as
a
consequence,
the favorable
treatment
of
minorities, undermine
*
Assistant
Professor
of
International Relations
and
Comparative
Politics at Christopher
Newport University;
M.A.
(2002) and
Ph.D.
(2006) with distinction, University
of
Zurich, Switzerland.
Dr. Kempin
Reuter
was
a
researcher at
the Solomon
Asch
Center
for
Study
of
Ethnopolitical
Conflict,
University
of
Pennsylvania,
and
the
Institute
of
Public International
Law,
University
of
Zurich
Law
School.
The
author
would
like
to thank
Quentin
Kidd
and
Vale
Jokisch
for
their
insightful comments
on
earlier
drafts
of
this
article
and
Kurt R. Spillman
and
Daniel
Thfirer
for
their
guidance
and
support.
201
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CONNECTICUT
JOURNAL
OF
INT'L
LAW
fundamental
principles
of
equality
in
international human
rights
law?
What
is
the
"acceptable"
level
of
difference
in
treatment?
2.
How
can
international
law
contribute
to
the
protection
of
minorities?
What
are
the
legal
standards
regulating
ethnic
groups' rights to
exist,
protecting
minorities
from
political
and
economic
discrimination,
and
enhancing
the
preservation
of
a
group's
ethnic
identity?
3.
What
role does international
law
play
in
empowering
ethnic
groups?
How
can
minority
participation
in
state and
local
government
be
secured?
Are
power-sharing
arrangements
and
autonomy compatible
with
international
legal
principles?
How should territorial
claims
such
as
demands
for
secession and
independence be
addressed
in
international
law?
This
Article
examines
the
challenges
that
claims
of
ethnic
groups
pose
to
international
law
and
points
out
the
weaknesses
and
loopholes
in
the
protection
of
minorities.
It
gives recommendations
on
how international
law
could
effectively
contribute
to
dealing with
ethnic claims and
shows the
limits
of
an
international
law
approach
to
ethnic
issues.
I.
INTRODUCTION
Claims
of
ethnic
minorities'
generally
fall
in
two
major
categories:
demands
for protection
and
demands
for
empowerment.
The first category concerns
requests
for
protection against extinction
and
discrimination,
as
well
as
claims
focusing
on
the
preservation
of
culture
and
ethnic
identity
of
the
group. Claims
falling within
the
second category relate
to empowering
the group
to
have
the
authority
to
determine
its
own
affairs, actively
and
effectively participate
in
state
affairs,
to
obtain
autonomy
(non-territorial
[segmental, cultural]
and
territorial),
and,
in
some
cases,
to
be able
to
secede
from
the
state and
gain
independence.
The claims
depend
on the
structure
of
the
ethnic
group
and
its
role
in
society.
2
Regionally
concentrated
groups
with
a
history
or
myth
of
independent political
existence
tend
1. The
term
"ethnic
minority"
is
not clearly defined
in
political
and
social science research
or
international
law
and
its
characterization
depends
on
the
context
and
the academic
approach chosen.
In
this
article,
the
term
"ethnic community"
will
be
used
as
defined
by
Anthony
D.
Smith. According
to
Smith,
an
ethnic
group
has
six
characteristics:
a
common
name, a myth
of
common ancestry, shared
memories (including
historical experiences,
myths,
and
legends),
a
link
with
a
historic territory
or
a
homeland (which
the
group
may
or
may
not
currently
inhabit),
a
common
culture,
and a measure
of
common
solidarity
and
self-awareness.
See
Stephen
Van Evera,
Hypotheses
on
Nationalism
and
War,
35
INT'L
SECURITY
5 (spring
1994);
see also
Anthony
D.
Smith,
The
Ethnic
Sources
of
Nationalism,
in
ETHNIC
CONFLICT
AND
INTERNATIONAL
SECURITY
27,
28-30
(Michael
E.
Brown
ed.,
1993).
The
term
"minority"
will
not
only
be
used
to
refer
to
a group numerically inferior compared
to
the
whole
population,
but
also
to
express
the power
structure
in
a given
case,
namely
to
describe
a group
in
a
disadvantaged position.
2.
See
CHRISTIAN
P.
SCHERRER,
ETHNICITY,
NATIONALISM
AND
VIOLENCE: CONFLICT
MANAGEMENT,
HUMAN
RIGHTS,
AND
MULTILATERAL
REGIMES
113
(2003).
(Vol.
24:201
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DEALING
WITH
CLAIMS
OF
ETHNIC
MINORITIES
IN
INT'L
LA
W
to
seek
secession
or
autonomy,
while
minorities
integrated
in
pluralistic
societies
seek
equal
treatment
and access
to
power
within existing
political
structures.
3
Claims
of
ethnic
groups
per
se
are
not
generally
analyzed
and
settled
by
international
law.
However,
many
of
the
central
issues
arising
from
ethnic
claims
implicate
key aspects
of
the
international
order
and,
as
a
result,
international
law.
4
The
protection
of
ethnic
minorities
from discrimination,
their
right
to existence
and
preservation
of
their
culture,
the
integration
of
ethnic
groups
in
regional
and
national
decision-making
processes,
minority-benefiting
power-sharing
arrangements,
and
territorial
claims
(notably autonomy
and
secession)
touch
upon
international
legal
concepts
and
pose
difficult
questions:
First, how
can
international
law
contribute
to
the
protection
of
minorities, particularly
regarding
the
political
and
economic
discrimination
of
ethnic
groups
and
the
preservation
of
the
group's
identity?
Second,
how
should
territorial
claims
of
ethnic
groups
be
treated?
Are
power-sharing
arrangements
and
autonomy
compatible
with
international
legal
principles?
How
does
international
law
deal
with
claims
to
secession
and
independence?
And
third,
does the
active
protection
and
empowerment
of
ethnic
groups
and
as
a
consequence,
the
favorable treatment
of
minorities,
undermine
fundamental
principles
of
equality
in
international
human
rights
law?
Is
the
"acceptable"
level
of
difference
in
treatment?
This
article
examines
the
potential
of
international
law
to
effectively
address
claims
of
ethnic
groups.
It
examines
the
challenges
different
claims pose
to international
law
and
points
out the
weaknesses
and
loopholes
in
the
protection
of
minorities.
It
gives
recommendations
on
how
international
law
could
actively
contribute
to
dealing
with
ethnic
claims and
shows
the
limits
and debates
about
the
feasibility
of
an
international
law
approach.
The discussion
is
mainly
based
on
a
United
Nations
("UN")
perspective
that additionally
integrates
regional
and
national
views.
II.
PROTECTION
From
an
international
legal
point
of
view,
protection
of
ethnic
minorities
can
be
problematic
and lead
to
difficult theoretical
and
practical
issues.
In
particular,
the
tension
between
the
notion
of
equality
of
all
human
beings
as
promoted
by
international
human
rights
law
and
the
concept
of
the
protection
and
promotion
of
rights for
certain groups
has
caused
intense
debates
among
international
lawyers.
The
most
important
aim
of
protection
of
minorities
is
stated
in
the
Permanent
Court
of
International
Justice
("PCIJ")
advisory
opinion
in
the
Minority
Schools
in
Albania
case.'
The
court
states:
3.
Van
Evera,
supra
note
1,
at
5,
31.
4.
Several areas
of
international
law,
including
international human
rights and
humanitarian
law,
the
law
of
treaties,
state
succession,
state
responsibility,
state
recognition,
and
the
law
of
international
organizations,
are
relevant
to
the
legal
analysis
of
claims
by
minority
groups.
5.
Minority
Schools
in
Albania,
Advisory Opinion,
1935
P.C.I.J.
(ser.
A/B)
No.
64
(Apr.
6)
[hereinafter
Minority
Schools].
2009]
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The idea
underlying the
treaties for
the
protection
of
minorities
is
to
secure
for
certain elements
incorporated
in
a
State,
the
population
of
which
differs from
them
in
race,
language
or
religion,
the
possibility
of
living
peaceably alongside
that
population
and
co-operating
amicably
with
it, while
at
the
same
time
preserving
the
characteristics
which
distinguish
them
from
the majority,
and
satisfying
the
ensuing
special
needs.
6
This
view
was
confirmed
by
the United Nations
Human
Rights Committee
("HRC")
in
General
Comment
No.
23
on
Article
27
of
the
International Covenant
on
Civil and
Political Rights
7
("ICCPR")
regarding
minority
rights,
"[t]he
protection
of
these rights
[under
Article
27]
is
directed
towards
ensuring the
survival
and continued
development
of
the
cultural,
religious
and
social
identity
of
the
minorities concerned,
thus
enriching the
fabric
of
society
as
a
whole."
'
Justification
of
the
protection
of
ethnic minorities
is
thus
based
on
three
concepts:
maintenance
of
peace and security,
respect
of
human
dignity,
and
preservation
of
minority culture.
9
First,
one
of
the causes
of
ethnic
conflicts
is
the
failure to
protect
the
rights
of
ethnic minorities. Minorities
rebel
against suppression, collective disadvantages,
and
human
rights
abuses.'
Ethnic
conflict poses
a
threat
to peace
and
security
on
the
regional
and
international
level.
Conflicts
in
the
Balkans, Rwanda,
Chechnya,
Iraq,
Israel/Palestine, Indonesia,
Sri
Lanka, India,
and
Darfur
are
only
the
deadliest
and
best-known
ethnic conflicts
that
have shaped
international relations
over
the
last
fifteen
years.
Provinces,
states,
and
in
some
cases
even
whole
regions have
been destabilized
through
a
wave
of
ethnic
insecurity
and
violence," often
paired
with
a
downward spiral
of
economic decline and
state failure,
accompanied
by
corruption
and
mismanagement.
2
Ethnic
conflicts
often
involve
massive
attacks
on
civilians,
especially
on
the
weakest
part
of
the
population.
Widespread
and
systematic human
rights violations,
mass
murder, genocide, rape,
torture,
and
expulsions
are
among the worst atrocities committed
during ethnic
conflicts.
Spillover
effects
of
ethnic conflict
to
nearby
regions
can
include refugee
problems,
6.
Id.
at
17
(emphasis
added).
7.
International
Covenant
on
Civil
and
Political
Rights art. 27,
Dec.
19,
1966,
999 U.N.T.S.
171
[hereinafter
ICCPR].
8.
Office
of
UN
Human
Rights
Council,
CCPR General
Comment
No.
23: Article 27
(Rights
of
Minorities),
9,
UN
Doc.
CCPR/C/21/Rev.1/Add.5
(Apr. 8,
1994).
9.
See
ATHANASIA
SPILIOPOULOU
AKERMARK, JUSTIFICATIONS
OF
MINORITY
PROTECTION
IN
INTERNATIONAL
LAW
68-83
(Kluwer
Law
Int'l
1997) (1996).
10.
See
Ted
Robert
Gurr,
Why
Minorities
Rebel:
A
Global
Analysis
of
Communal
Mobilization
and
Conflict
Since
1945,
14 INT'L
POL.
SCI.
REv.
161,
161
(1993).
11.
See
David A.
Lake
&
Donald
Rothchild,
Containing
Fear:
The
Origins
and
Management
of
Ethnic
Conflict,
21
INT'L
SECURITY
41,
41
(1996).
12.
See
Michael
E. Brown,
Ethnic
and
Internal
Conflicts:
Causes
and
Implications,
in
TURBULENT
PEACE:
THE
CHALLENGES
OF
MANAGING
INTERNATIONAL
CONFLICT
209,
214-22
(Chester
A. Crocker
et
al.
eds.,
2001).
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DEALING
WITH
CLAIAS
OF
ETHNIC
MINORITIES
IN
INTL
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economic
disasters,
ecological catastrophes,
military
complications
(armament
and
proliferation),
and
instability
leading
to
interstate
war.
3
Protection
of
minorities
and
their
rights
is
thus
vital
for maintaining
international and
regional peace and
security,
a
realization
that
has been confirmed
by
recent
UN
practice." Furthermore,
the
provisions
in
the
Charter
of
the
United
Nations
regarding
the
prohibition
of
the
use
of
force,
equality
and
non-
discrimination,
human rights,
and
the
peaceful
settlement
of
disputes
are
all
relevant for
the
issue
of
minority
protection
and
for dealing with ethnic
conflict."
Former
UN
Secretary-General
Boutros
Boutros-Ghali
stated
in
his Agenda
for
Peace:
"One
requirement
for
solutions
to
these
problems
[maintaining
peace
and
security]
lies
in
commitment
to
human
rights
with
a
special
sensitivity
to those
of
minorities,
whether
ethnic, religious,
social
or
linguistic."'
6
He
continued
by
reaffirming
that
democracy
does
not
only
require
respect
for
human
rights
and
fundamental
freedoms,
but
also
"a
deeper
understanding
and
respect
for the
rights
of
minorities
....
17
The second rationale
justifying
the
protection
of
minorities
is
respect
for
human dignity.
The
preamble
of
the
UN
Charter
refers
to
the
reaffirmation
of
"faith
in
fundamental human
rights,
in
the dignity
and worth
of
the
human
person"
and
thus connects
human
dignity directly
with
human
rights.'"
The
preamble
of
the
Universal
Declaration
of
Human Rights
("UDHR")
speaks
of
the
"inherent
dignity
...
of
all
members
of
the
human
family,"
while
Article
1
pronounces
that
"[a]ll
human
beings
are
born
free
and
equal
in dignity
and
rights."'
9
Autonomy,
integrity,
and
freedom
of
human
beings
as
well
as
individual
well-being
lie
at
the
core
of
the
concept
of
human
dignity,
which permits
a
dynamic
treatment
of
rights.
2
" The
protection
of
minorities
and
human rights guarantees
the
individual
dignity
and
well-being
of
human
beings.
Individual
well-being,
in
the
context
of
ethnicity,
is
strongly
connected
with
the
preservation
of
ethnic
identity
and the
group's
cultural
attributes.
Granting
ethnic groups
minority
rights preserving
their
culture
therefore
promotes
human dignity.
2
'
13.
See
Michael
E.
Brown,
Causes
and
Implications
of
Ethnic
Conflict,
in
ETHNIC
CONFLICT
AND
INTERNATIONAL
SECURITY
3, 5
(Michael
E.
Brown
ed.,
1993).
14.
See,
e.g.,
S.C.
Res.
688,
U.N. Doc.
S/RES/688
(Apr.
5,
1991)
(concerning
the
repressed
Kurdish
minority
in
Iraq); S.C.
Res.
918,
3,
U.N.
Doc.
S/RES/918
(May
17,
1994)
(expanding
the
mandate
of
the
operation
in
Rwanda
to
include peace
enforcement);
see
S.C.
Res.
1244,
10,
U.N.
Doc.
S/RES/1244
(June
10,
1999)
(regarding
the
establishment
of
an
interim
administration
for
Kosovo).
15.
See
generally
UN
Charter.
16.
The
Secretary-General,
An
Agenda
for
Peace,
18,
delivered
to
the
Security Council
and
the
General
Assembly,
U.N.
Doc.
S/24111,
A/47/277
(June
17,
1992).
17.
Id.
atpara.
81.
18.
UN
Charter
pmbl.
19.
Universal
Declaration
of
Human
Rights,
G.A.
Res.
217A
(HI),
at
71,
72,
U.N.
GAOR,
3d
Sess.,
183rd
plen.
mtg., U.N.
Doc.
A/810
(Dec.
10,
1948)
[hereinafter
UDHR].
20.
See
CARLOS
SANTIAGO
NINO,
THE
ETHICS OF HUMAN
RIGHTS
178-80
(1991).
21.
See
WILL
KYMLICKA, MULTICULTURAL
CITIZENSHIP,
A
LIBERAL
THEORY
OF
MINORITY
RIGHTS,
75-91, 121-30
(Oxford
Univ.
Press
Inc.
1997)
(1995).
He
argues
that
culture
provides
individuals
with
"meaningful options,"
which
in turn
promotes
the
individual
freedom
of
human
beings
and
thus
human
dignity.
Id.
at
83.
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The
third
reason
for
justification
of
the protection
of
ethnic
groups
in
international
law
is
the preservation
of
culture.
Protection
of
culture
is
seen
as
a
fundamental
value
in
itself
2
as
will
be
discussed
below.
3
The
realization
that
minority
protection
is
central
to ethnic
conflict
prevention
and
resolution
led
to
the
development
of
a
range
of
norms,
instruments,
and
institutions
in
international
law
addressing
ethnic
conflict
and
the
rights
of
ethnic
groups.
Within
this
protection
framework,
ethnic groups
have
different
claims,
ranging
from
the defense
against
genocide
to
non-discrimination
and
the
protection
of
the
group's
culture
and identity.
The
following
paragraphs
address
each
of
these
issues
and
examine
the
response
of
international
law.
A.
Existence
The
claim
to
physical
existence
is
the
most
fundamental
claim
voiced
by
ethnic
groups.
In
turn,
the
right
to
life and
the
right
to
existence
are
the
most basic
human
rights. Thus,
among
the
corpus
of
international
standards
that
are
relevant
to
the
protection
of
minorities
is
the
right
to
be
protected
against
genocide.
Genocide
targets
minorities
with
the
"intent
to
destroy,
in
whole
or
in
part, a
national,
ethnical,
racial
or
religious
group
....
",
Genocide
does
not
happen
without
warning,
but
is
usually
planned,
organized,
and
systematically
executed.
5
In
international
law,
the
term
"genocide"
was
first
defined
in
the
context
of
the
Jewish Holocaust.
The
legal
scholar Raphael
Lemkin
described
genocide
in
1944
as:
[A]
coordinated
plan
of
different
actions
aiming
at
the
destruction
of
essential
foundations
of
the
life
of
national
groups,
with
the
aim
of
annihilating
the
groups
themselves.
The
objectives
of
such
a
plan
would
be
disintegration
of
the political
and
social
institutions,
of
culture,
language,
national
feelings,
religion,
and
the
economic
existence
of
22.
Take
for
example,
the
establishment
of
the
UN
Educational,
Scientific,
and
Cultural
Organization
(UNESCO)
within
the
UN
system
or
the
European
Cultural
Convention
of
the
Council
of
Europe.
See
Convention
on
the
Rights
of
the
Child,
at
arts.
29, 30,
32,
Nov.
20,
1989, 1577
U.N.T.S.
3
[hereinafter
CRC];
International
Convention
on
the
Protection
of
the
Rights
of
All
Migrant
Workers
and
Members
of
Their
Families,
G.A.
Res.
45/158,
U.N.
GAOR,
45th
Sess.,
69th
plen.
mtg.,
U.N.
Doc.
A/RES/45/158
(Dec.
18,
1990)
[hereinafter
Migrant
Workers
Convention];
International
Labour
Organisation,
Indigenous
and
Tribal
Peoples
Convention,
at
art.
2,
72
ILO
Official
Bull.
59 (Sept.
5,
1991);
and
U.N.
Educ.,
Scientific,
&
Cultural
Org.,
Declaration
on
Race
and
Racial
Prejudice,
at
art.
1,
U.N.
Doc.
E/CN.4/Sub.2/1982/2/Add.I,
annex
V
(Nov.
27,
1978).
For
a
discussion
on the
preservation
of
culture
in international
law,
see
generally
AJ.M.
MILNE,
HUMAN
RIGHTS
AND
HUMAN
DIVERSITY,
AN
ESSAY
IN
THE
PHILOSOPHY
OF
HUMAN
RIGHTS
(1986).
For
more
general
discussion
about
the
relationship
of
culture
and
international
law,
see
generally
MARTIN PHILIPP
Wyss,
KULTUR
ALS
EINE
DIMENSION
DER
VOLKERRECHTSORDNUNG:
VOM
KULTURGUTERSCHUTZ
ZUR
INTERNATIONALEN
KULTURELLEN
KOOPERATION,
in
79
SCHWEIZER
STUDIEN
ZUM
INTERNATIONALEN
RECHT
(1992).
23.
See
infra
Part
2.3.
24.
Convention
on
the
Prevention
and
Punishment
of
the
Crime
of
Genocide,
art.
II,
Dec. 9,
1948,
78
U.N.T.S.
277
[hereinafter
Genocide
Convention].
25.
See
Gregory
H.
Stanton,
The
8
Stages
of
Genocide,
GENOCIDE
WATCH,
1998,
available
at
http://genocidewatch.org/aboutgenocide/8stagesofgenocide.htmi.
[Vol.
24:201
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WITH
CLAIMS
OF
ETHNIC
MINORITIES
IN
INT'L
LAW
national groups,
and the
destruction
of
the
personal security,
liberty,
health, dignity,
and
even
the
lives
of
the
individuals
belonging
to
such
groups. Genocide
is
directed against
. . .
individuals,
not
in
their
individual
capacity,
but
as
members
of
the national
group.
6
Lemkin
identified
different
forms
of
genocide.
"Political"
genocide implies
the
complete
destruction
of
a
government
and
replacement
by
an
ethnically
homogenous,
despotic regime.
"Social"
genocide
involves
the weakening
of
the
spiritual
resources
of
the
state,
especially attacks
on
critical
intelligentsia.
"Cultural" genocide
comprises
prohibiting
the
use
of
minority
languages, education
in
the
majority
culture
and
language,
and the control
of
culture
in
general,
including
manifestations
of
this
policy
such
as
book
burnings.
"Economic"
genocide means
the
destruction
of
the
minority's
economic
resources, including
expropriation
of
land
and the
prohibition
of
traditional
economic
activities.
"Biological"
genocide involves measures to favor
lower
birthrates
in
ethnic
minorities,
such
as
the
forcible separation
and/or starvation
of
men
and
women,
and
measures
designed
to affect
the
survival capacity
of
children. "Physical"
genocide
is
what
is
commonly
referred
to
as
genocide,
namely
mass
killings.
"Religious"
genocide
is
the elimination
and
prohibition
of
a
minority's
religion. Finally,
"moral"
genocide
represents
an
attempt
to
debase
a
group
by,
for
example,
encouraging the consumption
of
alcohol.
7
Genocide entered
international
law
after
the
Second World
War
as
part
of
"crimes
against
humanity"
in
Part
I,
Article
6,
paragraph
(c)
of
the
Charter
of
the
International
Military
Tribunal for Germany,
namely
as
"murder,
extermination,
enslavement, deportation,
and
other inhumane
acts
committed
against
any
civilian
population,
before
or
during the
war,
or
persecutions
on
political,
racial
or
religious
grounds."
28
Under
the
auspices
of
the
United
Nations,
genocide emerged
later
as
a
separate
legal
concept.
UNGA
Resolution
96/1
(1946),
which
was
adopted
unanimously
and
without
debate,
defined genocide
as
"a
denial
of
the
right
to
existence
of
entire
human
groups," existence
referring
to
physical
existence
of
racial,
religious,
political,
and
other groups.
29
The
resolution adopted
genocide
as
"a
crime
under
international
law
which
the civilized
world
condemns"
and refers
to
the
punishability
of
the crime.
3
"
For
the
first
time,
genocide
was treated independently
from
other war
crimes. The
resolution
influenced
the
1948
Convention
on
the
Prevention
and
Punishment
of
the
Crime
of
Genocide
("Genocide
Convention").
26.
RAPHAPL
LEMKIN,
AXIS
RULE
IN
OCCUPIED EUROPE
79
(1944).
27.
See
id.
at
82-90;
see
also
PATRICK THORNBERRY,
INTERNATIONAL
LAW
AND
THE
RIGHTS
OF
MINORITIEs
61-62
(1991).
28.
Charter
of
the
International Military
Tribunal
art. 6,
Aug.
8,
1945,
82
U.N.T.S.
284.
Signed
by
the
United
States,
United Kingdom,
France,
and
the
Soviet
Union,
and
later
by
nineteen
other
states.
29.
The
Crime
of
Genocide,
G.A.
Res.
96
(1),
at
188,
U.N.
Doc.
A/Res/64/IC
(Dec.
11,
1946).
30.
Id.
at
189.
31.
See
Genocide Convention,
supra
note
24.
20091
207
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OF
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LA
W
The
Genocide Convention
defined
genocide
as
a
crime
under
international
law
(Article
1).32
Any
regime
that
commits genocide
forfeits
its
legitimacy
and
can
become
subject
to
international
intervention.
3
3
According
to
Article
2
of
the
Convention,
genocide
is
defined
as:
In
the present
Convention,
genocide
means any
of
the following
acts
committed
with
intent to destroy,
in
whole
or
in
part,
a
national,
ethnical,
racial
or
religious
group,
as
such:
a.
Killing
members
of
the
group,
b.
Causing
serious
bodily
or
mental
harm
to
members
of
the group,
c.
Deliberately
inflicting
on
the
group
conditions
of
life
calculated
to
bring
about
its
physical
destruction
in
whole
or
in
part,
d.
Imposing
measures
intended
to
prevent
births
within
the
group,
and
e.
Forcibly transferring
children
of
the group
to
another
group.
34
It
is
not
surprising
that
all
acts
under
Article
2
refer
to
either
"physical
genocide"
(a-c)
or
"biological
genocide"
(d),
or
both
(e)
as
defined
by
Lemkin.
The
question
of
"cultural
genocide"
was excluded
as
the
concept
was
too
Vague
and open
to abuse.
5
As
a
result,
the
term
"genocide"
was
narrowed
down
to
acts
targeting
the
physical
integrity
of
the
group and
lost
the
open
meaning
that
originally
adhered
to
the
expression.
The
focus
of
protection
was narrowed
to
"national,
ethnical,
racial
or
religious
groups;"
3
6
political
groups
were
excluded.
Besides
the
prohibition
to
intentionally
destroy
a
group (Article
2)
and
obligations
for
parties
to
prevent,
punish
and
prosecute
the
crime
of
genocide
(Articles
1
and 4), the
Genocide Convention
includes
a
provision
asserting
that
states
themselves
can
be
held
responsible
(Article
9).37
This
was confirmed
by
the
International
Court
of
Justice
("ICJ")
in
the
case
concerning
Application
of
the
Convention
on the
Prevention
and
Punishment
of
the
Crime
of
Genocide
(Preliminary
Objections),
8
in
which
the
ICJ
observed
that
state
responsibility
does
not
only
apply
if
a
state fails
to
prevent
genocide,
but
also
if
a
state
directly
commits
acts
of
genocide
(paragraph
32).
39
In
addition,
the
ICJ
has
noted
that
the
rights
and
obligations
enshrined
by the
Genocide
Convention
are
rights
and
obligations
erga
omnes,
which
means
that
a
party's
duty
to combat
genocide
is
not
32.
Id.
at
art.
1.
33.
Gregory
H.
Stanton,
Create
a
United
Nations
Genocide
Prevention
Focal
Point
and
Genocide
Prevention
Center,
GENOCIDE
WATCH,
2004,
available
at
http://www.genocidewatch.org/aboutus/stockholmproposal.htm.
34.
See
Genocide
Convention,
supra
note
24,
at
art.
2.
35.
WILLIAM
A.
SCHABAS,
GENOCIDE
IN
INTERNATIONAL
LAW
51-101
(2d
prtg.
2002)
(discussing
in
detail the
drafting
of
the
Genocide
Convention
and
the
reasons
for
dropping
"cultural"
genocide
from
the
final
text).
36.
Id.
37.
See
Genocide
Convention,
supra
note
24,
at
art 9.
38.
Application
of
the
Convention
on
the
Prevention
and
Punishment
of
the
Crime
of
Genocide
(Bosn.
&
Herz.
v.
Yugo.),
1996
I.C.J.
595
(July
11).
39.
Id.
at
616.
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DEALING
WITH
CLAIMS
OF
ETHNIC
MINORITIES
IN
INT'L
LAW
limited
to
the
party's
territory
(paragraph
31).'
This
was
later
confirmed
in
the
ICJ
judgment
in
the same
case.
4
The
prohibition
of
genocide
is
not
only
a
general
international
legal
norm
but
also
a
norm
ofjus
cogens
under
Articles
53
and
64
of
the Vienna
Convention
on
the
Law
of
Treaties,
which
means
that
"no
derogation
is
permitted
and which
can
be
modified
only
by
a
subsequent
norm
of
general international
law
having
the
same
character."
'42
Under
the
UN.
International
Law
Commission's
Draft
Articles
on
Responsibility
of
States
for
Internationally
Wrongful
Acts, genocide
can
entail
international
state
responsibility
which
is
attached
to
serious
breaches
ofjus
cogens
norms.
43
Other
documents
and
institutions
protect
the
right
to existence
of
ethnic
groups.
Protection
for
the
physical
existence
of
minorities
derives
from
the
jurisdiction
of
the
UN
international
tribunals
(the
International
Criminal
Tribunal
for
the
Former
Yugoslavia
["ICTY"],
the
International
Criminal
Tribunal
for
Rwanda
["ICTR"],
and
the
International
Criminal
Court
["ICC"]).
All
three
tribunals
prosecute
persons
for
serious
violations
under
international
law,
namely
the
crime
of
genocide,
crimes
against
humanity,
and war
crimes
("grave
breaches
of
the
Geneva
Conventions
of
1949")."
"Ethnic
cleansing,"
which
"entails
deportations
and
forcible
mass
removal
or
expulsion
of
persons
from
their
homes
in
flagrant
violation
of
their
human
rights,
and
which
is
aimed
at
the
dislocation
or
destruction
of
national,
ethnic,
racial
or
religious
groups,""
is
essentially
covered
by
the
Statute
of
the
ICC.
'
"
Protection
of
a
group's
existence
thus
includes
the
continued
residence
in
the area
where
the
ethnic group
lives
and the
right
to
freely
move
somewhere
else
inside
state
boundaries.
Expulsions
and
displacement
on
the
basis
of
ethnic
identity
are
human
rights
violations
and
are
part
of
the
strategy
of
ethnic
cleansing
which
is
prohibited
by
the
ICC
statute.
7
40.
Id,
The
ICJ
distinguishes
between
"the
obligations
of
a
State
towards
the
international
community
as
a
whole
and those
arising
vis-A-vis another
State."
Obligations
with
erga
omnes
character
are
the
concern
of
all
states
and
all
states
can
be
held to
have
a
legal
interest
in
their
protection.
See
Barcelona
Traction,
Light
and
Power
Company,
Limited
(Belg.
v.
Spain),
1970
I.C.J.
3,
32
(Feb.
5).
41.
Application
of
the
Convention
on
the
Prevention
and Punishment
of
the
Crime
of
Genocide
(Bosn.
&
Herz.
v.
Serb.
&
Mont.),
paras.
142-201
(Judgment
of
Feb.
26,
2007),
available
at
http://www.icj-cij.org/docket/files/91/13685.pdf
(last
visited
Mar.
25,
2009).
42.
Vienna Convention
on
the
Law
of
Treaties
art.
53,
May
23,
1969,
1155
U.N.T.S.
331.
43.
International
Law
Commission,
Draft
Articles
on
Responsibility
of
States
for
Internationally
Wrongful
Acts,
arts.
40,41,
U.N.
Doc.
A/CN.4/L.602/Rev.I
(July
26,
2001).
44.
See
the
Secretary-General,
Report
of
the
Secretary-General
Pursuant
to
Paragraph
2 of
Security
Council Resolution
808,
Annex,
delivered
to
the
Security
Council,
U.N.
Doc.
S/25704 (May
3,
1993)
and
the
Secretary-General,
Report
of
the
Secretary-General
Pursuant
to
Paragraph
2
of
Security
Council
Resolution
808,
delivered
to
the Security
Council,
U.N.
Doc.
S/25704/Add.
1
(May
19,
1993),
and
S.C.
Res.
827,
UN
Doc.
S/RES/827
(May
25,
1993)
[hereinafter
ICTY
Statute];
S.C.
Res.
955,
arts.
2-4,
U.N.
Doc.
S/RES/955
(Nov.
8,
1994)
[hereinafter
ICTR
Statute];
and
Rome
Statute
of
the
International
Criminal
Court art.
5,
July
17,
1998,
2187
U.N.T.S.
90
[hereinafter
ICC
Statute].
45.
U.N.
Econ.
&
Soc.
Council
[ECOSOC],
Comm'n
on
Human Rights,
Report
of
the
Commission
on
Human
Rights on
its
First
Special
Session,
at
2,
U.N.
Doc.
E/CN.4/1992/S-
1/8
(Aug.
14,
1992).
46.
See
ICC
Statute,
supra
note
44,
at art.
7.
47.
Id.
at art.
6-7.
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OF
INT'L
LAW
In
a
more general
way,
the
right
to
existence
is
addressed
in
human
rights
documents,
such
as Article
20
of
the
ICCPR
48
or
Article
4
of
the
International
Convention
on
the
Elimination
of
All
Forms
of
Racial
Discrimination
49
("ICERD")
concerning
the
prohibition
of
propaganda
for
war
and
incitement
to
discrimination,
hostility,
or
violence
based
on
advocacy
of
national,
racial,
or
religious
hatred.
The
1992
UN
Declaration
on the
Rights
of
Persons
Belonging
to
National
or
Ethnic,
Religious
and
Linguistic
Minorities
("Minority
Declaration")
provides
in
Article
1
that
states
"shall
protect
the
existence"
of
national
or
ethnic,
cultural,
religious,
and
linguistic
minorities."
This
refers
to
a
basic
right
to
be
protected
against
genocide."
The
Report
of
the
International
Commission
on
Intervention
and
State
Sovereignty,
named
"Responsibility
to
Protect,"
states:
"What
is
at
stake
here
is
not
making
the
world
safer for
big
powers,
or
trampling
over
the
sovereign
rights
of
small
ones,
but
delivering
practical
protection
for
ordinary
people,
at
risk
of
their
lives,
because
their
states
are
unwilling
or
unable
to
protect
them."
52
Besides
the
protection
against
physical
extinction,
the
prohibition
of
"cultural
genocide,"
which
is
understood
as
the
destruction
of
a
group's
specific
traits,
includes
the ban
of
discrimination
on
ethnic,
racial,
national,
linguistic,
or
religious
ground,
of
forced
assimilation,
ethnocide,
and
specific
measures
regarding
property
rights
and
participation
in
political
bodies.
3
These
are
only
some
examples
that
illustrate
the
internationally
recognized
preconditions
for
the
preservation
of
a
minority's
special
traits, tradition,
and
culture.
Regional
documents
confirm
and
streamline
these
obligations.'
B.
Equality
and
Non-Discrimination
Claims
to
not
be
discriminated
against
and
to
acquire
equal
rights
and
opportunities
are
among
the
most frequently
uttered
demands
of
ethnic
groups.
In
turn,
discrimination
is
among
the
most
common
offenses
against
members
of
minorities.
Comprehensive
equality
and
non-discrimination
provisions
contribute
to
the
prevention
of
ethnic
disputes
and
in
turn,
violations
of
equality
and
non-
48.
See
ICCPR,
supra
note
7,
at
art.
20.
49.
See
International
Convention
on
the
Elimination
of
All
Forms
of
Racial
Discrimination,
G.A.
Res.
2106
(XX),
at
48,
20th.
Sess.,
Supp.
No.
14,
U.N.
Doc.
A/6014
(Dec.
21,
1965)
[hereinafter
ICERD].
50.
Declaration
on
the
Rights
of
Persons
Belonging
to
National
or
Ethnic,
Religious
and
Linguistic
Minorities,
G.A.
Res.
47/135,
Annex,
47th.
Sess.,
U.N.
Doc.
A/Res/47/135/
(Dec.
18,
1992)
[hereinafter
Minority
Declaration].
51.
See
THORNBERRY,
supra
note
27,
at
44.
52.
Report
of
the
International
Commission
on
Intervention
and
State
Sovereignty,
The
Responsibility
to
Protect
2.1
(Dec.
2001)
[hereinafter
International
Commission].
53.
GAETANO
PENTASSUGLIA,
MINORITIES
IN
INTERNATIONAL
LAW:
AN
INTRODUCTORY
STUDY
84
(2002).
54.
See
Framework
Convention
for
the
Protection
of
National
Minorities,
E.T.S
No.
157
(1995)
[hereinafter
Framework
Convention];
Conference
on
Security
and
Cooperation
in
Europe
(CSCE),
Document
of
the
Copenhagen
Meeting
on the
Human
Dimension
of
the
CSCE,
Doc.
CSCE/CHDC.
43
(1990)
[hereinafter
Copenhagen
Document];
the
African
[Banjul]
Charter
on
Human
and Peoples'
Rights,
O.A.U.
Doc.
CAB/LEG/67/3
rev.
5,21
I.L.M.
58
(June
27,
1981)
[hereinafter
Banjul
Charter].
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DEALING
WITH
CLAIA
OF
ETHNIC
MINORITIES
IN
INTL
LAW
discrimination rights
of
minority
groups
are
important underlying causes
of
ethnic
conflict.
5
The
right
to equal
treatment
is
a
well-established
principle
of
international
human rights
law.
6
Equality
and
non-discrimination
provisions
are
part
of
the
UN
Charter,
57
the
UDHR,
8
and
particularly
the
international
human rights
covenants.
59
Specialized
and
regional
instruments
deal
additionally
with
various aspects
of
discrimination.'
Furthermore, principles
of
non-discrimination
and
the
right
to
equality
are
widely
acknowledged
as
customary international
law
binding
all
states,
at
least
in
racial matters.
6
'
"Whenever
'race'
is
used,
it
also
includes
'ethnic
group.'
6
2
The
non-discrimination
clauses
in
the
ICCPR not only
prohibit
discrimination,
but
oblige
states
to
ensure
that
individuals
are
protected
against
discrimination
by
private
actors.
3
The
UN
Committee
on
the Elimination
of
Racial
Discrimination
("CERD")
General
Recommendation
on
the
rights
of
indigenous
peoples,
adopted
in
1997,"
and
the
2001
Declaration
and
Programme
of
Action
adopted
by
the
UN
World
Conference
against Racism,
Racial
Discrimination, Xenophobia
and
Related
55.
TED
ROBERT
GuRR,
MINORITIES
AT
RISK:
A
GLOBAL
VIEW
OF
ETHNOPOLITICAL
CONFLICTS
137
(1993).
56.
See
PENTASSUGLIA,
supra
note
53,
at
84-85
(summary
of
the
history
of
equality
and
non-
discrimination
clauses
in
international
law)/
57.
UN
Charter,
art.
1,
para.
3
and art.
55.
58.
UDHR,
supra
note
18,
at art.
2.
59.
ICCPR,
supra
note
7,
at arts.
2,
3,
and
26;
International
Covenant
on
Economic
Social and
Cultural Rights,
G.A.
Res.
2200A
(XXI),
art.
2,
para.
2;
art.
10,
para.
3,
U.N.
Doc.
A/6316
(Dec.
16,
1966)
[hereinafter
ICESCR].
60.
See
ICERD,
supra
note
50;
UN
Declaration
on
the
Elimination
of
All
Forms
of
Intolerance
and
of
Discrimination
Based
on
Religion
or
Belief,
G.A.
Res.
36/55, U.N.
Doe.
A/RES/36/55
(Nov.
25,
1981);
the
CRC,
supra
note
23;
the
International Labour
Organization
[1LO]
Convention
Concerning
Discrimination
in
Respect
of
Employment
and
Occupation,
ILO Doe.
111
(June
25,
1958); the
UNESCO
Declaration
on
Race
and
Racial
Prejudice,
supra
note
22;
the
UNESCO
Convention
against
Discrimination
in
Education,
429 U.N.T.S.
93,
(Dec.
14,
1960);
and
the
Migrant
Workers Convention,
supra
note 22.
On
the
regional
level,
Article
14
of
the
Council
of
Europe
Convention
on
Human
Rights
and
Fundamental Freedoms [hereinafter
ECHR]
and
Protocol
No.
12
to
the
ECHR
include
prohibition
of
discrimination.
61.
Support for
this
argumentation comes
from
the
significant
international documents
cited,
international
legal
institutions
such
as
the
ICJ
(in
particular concerning
the
Barcelona
Traction,
supra
note 40,
and
the
International Law
Commission, pronouncements
by international human
rights
conferences and
distinguished
international
legal
scholars such
as
Ian
Brownlie.
See
PENTASSUGLIA,
supra
note
53,
at
85.
62.
UN
Commission
on
Human
Rights
[CHR],
Sub-Comm'n.
on
Prevention
&
Prot.
of
Minorities,
Possible
Ways
and
Means
of
Facilitating
the
Peaceful
and
Constructive
Solution
of
Problems
Involving
Minorities,
131,
U.N. Doc.
E/CN.4/Sub.2/1993/34
(July
16,
1993)
(prepared
by
Asbjorn
Eide) [hereinafter
Possible
Ways
and
Means].
63.
See
UN
Human
Rights
Comm.
[HRC],
Compilation
of
General
Comments
and
General
Recommendations
Adopted
by
Human
Rights
Treaty
Bodies,
General
Comment
No.
18
(July
29,
1994),
9,
U.N.
Doc.
HRI\GEN\I\Rev. 1
(July
29,
1994).
64. UN
Comm.
on
the
Elimination
of
Racial
Discrimination
[CERD],
Report
of
the
Committee
on
the
Elimination
of
Racial
Discrimination,
Annex
V,
U.N.
Doc.
A/52/18 (Aug.
18,
1997).
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JOURNAL
OF
INT'L
LAW
Intolerance
65
emphasize the
importance
of
equality
and
non-discrimination
for
minority
groups.
Most
states
have
adopted
legislation
covering many
of
the
anti-discriminatory
provisions
of
the
international
human
rights covenants
and the
ICERD.
66
Effective
implementation
of
these
provisions
is
one
of
the
first
steps
in
preventing
ethnic
violence
from
occurring.
The
ICERD
has
one
of
the
highest
rates
of
ratifications
among international human
rights
treaties,
67
which
underlines
the importance
and
the
level
of
agreement
on
the
matter
of
equality
and
non-discrimination.
Equality
provisions
in
national
legislation
include
the
right
of
individuals
to
be
treated
equally
before
the law, the
enjoyment
of
civil
and
political
rights,
the
right
to
property,
the
right
to personal security, freedom
from
discrimination
in
employment,
education,
or
housing,
access
to
public
service,
the
prohibition
of
associations
that promote
racial
discrimination,
and
the prohibition
of
incitement
speech."
A
number
of
policies
have
been undertaken
to
counteract
ethnic
discrimination.
States
have established institutions
monitoring
racial
equality,
including human
rights
commissions, Ombudsmen,
minority
councils,
etc.
69
The
effectiveness
of
legislation
prohibiting
discriminatory practices
depends
on
several
factors,
the most important
ones
being
the
general
acceptance
of
the
practice
by
the
public,
the
consistent
and impartial
implementation
by
the
courts, and
unbiased
enforcement
by
police
and security
forces.
7
"
Equality
and
non-discrimination
constitute
interdependent
and
mutually
reinforcing
concepts
that
are
composed
of
two elements:
(1)
"abstention
from
any
kind
of
differentiation based
on
arbitrary
or
unreasonable
grounds," and
(2)
differential
treatment
("positive"
discrimination)
with
the
intention
to
achieve
equality
in
situations
of
inequality
and
discrimination.
7
Regarding the
definition
of
discrimination,
the
HRC
stated
in
its
General
Comment
No.
18
on
non-discrimination
under
the
ICCPR:
[T]he
term
"discrimination"
as
used
in
the Covenant
should
be understood
to
imply
any distinction,
exclusion,
restriction
or
preference
which
is
based
on
any
ground
such
as
race,
colour,
sex,
language,
religion, political
or
other opinion, national
or
social
origin,
property,
birth
or
other
status,
and
which
has
the
purpose
or
effect
of
nullifying
or
impairing
the
65.
See,
e.g., World
Conference
against
Racism,
Racial
Discrimination,
Xenophobia and Related
Intolerance, Aug.
31-Sept.
8,
2001,
Report
of
the
World
Conference
against
Racism, Racial
Discrimination, Xenophobia
and Related
Intolerance,
Declaration,
paras.
39,
59,
60,
66,
67,
U.N.
Doe.
A/CONF.189/12
(Jan.
1,
2002).
66. International
Convention
on
the
Elimination
of
All
Forms
of
Racial Discrimination, G.A.
Res.
2106 (XX),
U.N.
Doe.
A/Res/2106/Annex
(Jan.
4,
1969).
67.
As
of
April 2008,
173
states
have ratified the
ICERD.
68.
See
Possible
Ways
and
Means,
supra
note
62,
at
paras.
136-49
(providing
a
detailed
analysis).
69.
Id.
at
para.
155.
70.
Id.
at
para.
150.
71.
PENTASSUGLIA,
supra
note
53,
at
89.
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OF
ETHNIC
MINORITIES
IN
INTL
LAW
recognition,
enjoyment
or
exercise
by
all
persons,
on
an
equal
footing,
of
all
rights
and freedoms.'
The goal
of
anti-discrimination
clauses
is
thus
to
place
members
of
minorities
on
equal
footing with other
nationals
of
the
state,
to
prevent
any
action
which
denies
individuals
or
groups
of
people
equality,
and
to
suppress
or
prevent
any
conduct which
denies
or
restricts
a
person's
right
to
equality."
The
protection
of
one
minority,
however,
can lead
to
the
discrimination
of
other
minorities.
In
Waldman
v.
Canada,
the
HRC
concluded
that
the
public
funding
of
schools
of
the
Roman
Catholic
minority
in
Canada,
but
of
no
schools
of
any
other
minority
religion,
constitutes
a
violation
of
Article
26
of
the
ICCPR.
74
Nevertheless,
"not
every
differentiation
of
treatment
[constitutes]
discrimination
if
the
criteria
for
such
differentiation
are
reasonable
and
objective
and
if
the
aim
is
to
achieve
a
purpose
which
is
legitimate
under
the
ICCPR," and
if
measures
employed
are
"proportionate"
to
the
goals
sought."
Article
1,
paragraph
4
of
the
ICERD
states:
Special
measures
taken
for
the
sole
purpose
of
securing
adequate
advancement
of
certain
racial
or
ethnic
groups or
individuals
requiring
such
protection
as
may be
necessary
in
order
to
ensure such
groups
or
individuals
equal
enjoyment
or
exercise
of
human
rights
and
fundamental
freedoms
shall
not
be
deemed
racial
discrimination,
provided,
however,
that
such
measures
do
not,
as
a
consequence,
lead
to
the
maintenance
of
separate rights
for
different
racial
groups and
that
they
shall
not
be
continued after
the
objectives for
which
they
were
taken
have
been
achieved.
76
This principle
can also
be
found
in
international
texts concerning
minorities."
Positive
discrimination,
in
the
last years
more
commonly
known
as
affirmative
action,
is
"preference for
certain groups
or
members
of
such
groups
(typically
defined
by
race, ethnic
identity
or
sex)
for
the
purpose
of
securing
adequate
advancement
of
such groups or
their
individual
members
in
order
to ensure
equal
enjoyment
of
human
rights and fundamental
freedoms.""
Affirmative
action
comes
in
two
forms:
a
"soft"
version and
a
"hard"
version.
79
The "soft" versions
are
basically
"extensions
of
the principle
of
non-
72.
HRC,
General
Comment No.
18,
supra
note
63,
at
para.
7.
73.
Gudmundur
Alfredsson,
Report
on
Equality
and
Non-discrimination:
Minority Rights,
5
COE
H/CoIl.
90/6
(1990).
74.
Arieh
Hollis
Waldman
v.
Canada,
UN
HRC Communication,
10.6,
No.
694/1996,
U.N.
Doc.
CCPR/C/671D/694/1996
(1999).
75.
HRC,
General
Comment
No.
18,
supra
note 44,
at
para.
13.
76.
ICERD,
supra
note
50,
at
para.
4.
77.
See,
e.g.,
Minority Declaration,
supra
note
50.
78.
Possible
Ways
and
Means,
supra
note
62,
at
para.
172.
79.
Id.
atpara.
178.
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LAW
discrimination."
80
Stronger
affirmative
action
measures
are
aimed
at
the
accelerated
creation
of
a
balanced and
equal society,
namely equality
in
participation
on all
levels,
including
political
life,
education,
economy,
and
many
other fields."'
Typical
means
of
accomplishing
these
goals
are
the
establishment
of
quotas
for
access to
higher
education,
civil
service,
employment,
etc.
Such
measures
suspend or
modify
the
traditional
criteria
of
merit
as
a
basis for
access,
but
can
be
justified
if
past
discriminatory
practices
blocked
members
of
those
groups from
gaining
the
merits
needed.
2
Another method
to
achieve
equality
is the
implementation
of
economic, social,
and
cultural
rights
on
the
basis
of
need,
not
taking
into account ethnic, racial,
or
gender
background.
This
would
not
qualify
as
affirmative action,
as
it
is
simply
the
realization
of
social and
economic
rights.
Furthermore,
the
redistribution
of
resources
such
as
land
and
capital
can
provide possibilities
for equality
of
opportunity.
This can take
many
forms,
including
direct and
indirect
taxation,
free
or
state-sponsored
education,
grants
etc.
3
An
important
distinction
has
to
be
made
between
the
anti-
discrimination/equality
clauses
and
rights
for
minorities.
The
Subcommission
on
the
Prevention
of
Discrimination
and
the
Protection
of
Minorities defined
the
difference
as
follows:
1.
Prevention
of
discrimination
is
the
prevention
of
any action which
denies
to
individuals or
groups
of
people
equality
of
treatment, which
they may
wish.
2.
Protection
of
minorities
is
the
protection
of
non-dominant
groups
which,
while
wishing
in
general for
equality
of
treatment
with
the
majority, wish
for
a
measure
of
differential
treatment
in
order
to
preserve
basic characteristics
which
they
possess
and
which
distinguish
them
from
the
majority
of
the
population.'
Anti-discrimination
clauses prohibit
unequal
treatment,
but
do
not
embrace
minority
rights.
The
basic
aim
of
the
prevention
of
discrimination
is
to
secure
full
and
equal
enjoyment
of
human
rights
and fundamental
freedoms
5
and
to
eliminate
"barriers between
races."6
Minority
rights
are
a
wider
notion
as
they
specifically
80.
Id.
81.
Id.
atpara.
179.
82.
See
generally
Ruth
Bader
Ginsburg
&
Deborah
Jones
Merritt,
Affirmative Action:
An
International
Human Rights
Dialogue,
21
CARDOZO
L.
REV.
253
(1999-2000);
Majorie
Cohn,
Affirmative
Action
and
the
Equality
Principle
in
Human
Rights
Treaties:
United
States'
Violations
of
its
International
Obligations,
43
VA.
J.
INT'L.
L.
249
(2002-2003);
Celina
Romany
& Joon-Beom
Chu,
Affirmative Action
in
International
Human Rights
Law: A
Critical
Perspective
of
Its
Normative
Assumptions,
36
CONN.
L.
REV. 831
(2003-2004).
83.
See
Possible
Ways
and
Means,
supra
note
63,
at
paras.
185-93.
84.
UN
Econ.
&
Soc.
Council
[ECOSOC],
Subcommission
on
Prevention
of
Discrimination
&
Protection
of
Minorities,
Report
Submitted
to
the
Commission
on
Human Rights,
Sec.
V, U.N. Doc.
EICN.4/52
(Nov.
24-Dec.
6,
1947)
(prepared
by
Joseph
Nisof).
85.
ICERD,
supra
note
49, at art.
1,
para.
4.
86.
Id.
at
art.
2,
para.
1(e).
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WITH
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OF
ETHNIC
MINORITIES
IN
INT'L
LA
W
aim
at
preserving
the
characteristics
which
distinguish
the
minority from
the
majority.
87
Articles
2
and 26
of
the
ICCPR
are
available to
everyone
who
feels
discriminated
against,
including
persons belonging
to
minorities, women, political
groups, and
others.
By contrast,
Article
27,
the minority
provision
of
the ICCPR,
provides
guarantees
that
are
only
available
to
persons
belonging
to
national
or
ethnic,
religious,
or
linguistic
minorities."
C.
Identity
and
Culture
The
foundation
of
minority protection
lies
in
special,
permanent
measures
to
protect
the
identity
of
the
group.
The
focus
is
on
what distinguishes
these
groups
from
the
rest
of
the
population
and how
to
protect
these
differences,
while clearly
rejecting
any
discriminatory regimes
such
as
the policy
of
apartheid.
The
major demand
regarding
preservation
of
identity and
culture
is
the
formal
recognition
of
the
group
and
its
distinct
character
per
se.
The Badinter
Commission,
which
was
set
up
to
provide the
European
Economic
Community
with
legal
advice
regarding the dissolution
of
Yugoslavia,
maintained
that
in
states
where
one
or more groups
constitute
"ethnic,
religious
or
language
communities,
they
have
the
right
to
recognition
of
their
identity
under
international
law."
89
In
most
states
with
two
or
more
major
ethnic
communities,
there
is a
general
trend
to
include
some
reference
of
their
existence
in
the national
constitution."
However,
in
societies
in
which
minorities
are
less
established,
less
numerous,
or
not
politically
mobilized,
explicit
constitutional
recognition may
become
less
practicable.
An
often
practiced alternative approach
is
the
inclusion
of
a
general
reference
to the
multi-ethnic
character
of
the
population."
Both
forms
of
recognition provide
a
basis
for
more
detailed
legislative
protection
and
recognition
of
ethnic
groups,
non-
discrimination,
the promotion
of
their
identity,
and
their
participation
in
the
structures
of
the
government.
9
The most
important
international
provision
granting
protection
of
their
identity
and culture
to
minorities
is
Article
27
of
the
ICCPR,
which
states:
In
those
States in which
ethnic,
religious
or
linguistic
minorities
exist,
persons
belonging
to
such
minorities
shall
not
be
denied
the
right,
in
87.
See,
e.g.,
Minority
Schools,
supra
note
5,
at
17.
88.
ICCPR,
supra
note
7.
89.
Conference
on
Peace
in
Yugoslavia, Arbitration
Commission
[hereinafter
Badinter
Commission], Opinion
No.
2,
Jan.
11,
1991,
reprinted
in
31
I.L.M
1499
(1992).
90.
See
UN
Econ.
&
Soc.
Council
[ECOSOC],
Sub.-Comm'n.
on
Promotion
and
Protection
of
Human
Rights,
Working Group
on
Minorities,
Appendix
to
Working
Paper
(E/CN.4/Sub.2/AC.5/2001/WP.6)
Integrative
Approaches
to
the Accommodation
of
Minorities,
UN
Doc.
E/CN.4/Sub.2/AC.5/2001/CRP.9
(April
25,
2001)
(prepared
by
Tom
Hadden
&
Ciaran
6
Maoldin)
[hereinafter
Integrative
Approaches].
91.
See
UN
ECOSOC,
Sub.-Comm'n.
on
Promotion and Protection
of
Human
Rights, Working
Group
on
Minorities,
International
and
National
Action
for
the
Protection
of
Minorities:
The
Role
of
the
Working
Group
on
Minorities,
20,
UN
Doc.
E/CN.4/Sub.2/AC.5/2004/WP.3(Jan.
26,
2004)
(prepared
by
Tom
Hadden) [hereinafter
International
and
National
Action].
92.
Id.
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[
community
with
the
other
members
of
their
group, to
enjoy
their
own
culture,
to
profess
and practise
their
own
religion,
or
to
use
their
own
language.
93
Article
27
imposes
specific obligations
on
the
state
parties, namely
to
protect
members
of
minorities
against
violations
of
their
rights
by
public
and
private
parties,
to
fulfill
non-discrimination
provisions,
and
most
importantly,
to
take
positive
action
to
ensure
the survival
and continued
development
of
the cultural,
religious,
and
social
identity
of
minorities.
94
Thus,
Article
27
recognizes
a
"right
to
identity,"
even
if
it
is
not
explicitly
formulated.
The elements
of
identity
can
be
ethnic,
religious,
linguistic,
or
all
three.
The
most
important
contemporary,
yet
legally
non-binding
text
regarding
minorities
on
the
international
level
is
the
1992
UN
Minority
Declaration.
95
It
is
based
on
Article
27
of
the ICCPR but
goes further
in
concretizing the
rights and
is
not
bound
by the
limitations
of
the
ICCPR.
The
declaration
stresses the
continued
importance
of
minority
rights
against the
background
of
human
rights within
a
democratic framework based
on the
rule
of
law. In
addition,
other
international
and regional
documents
regulate
educational
aspects,
religious
and
linguistic
issues,
and
the
treatment
of
special
groups within
minorities,
particularly
children.'
As
mentioned
before,
it
is
now
generally
accepted
that
every
culture
has
dignity
and
value
in
itself
and, consequently, has
to
be
protected
and
preserved.
Article
I
of
the
1966
United Nations
Educational,
Scientific, and
Cultural
Organization
("UNESCO")
Declaration
of
the
Principles
of
International
Cultural
Co-operation
states
that
"each
culture has
a
dignity
and value
which
must
be
respected
and
preserved"
(paragraph
1)
and
that
"all
cultures
form
part
of
the
common heritage
belonging
to
all
mankind"
(paragraph
3).97
However,
no
internationally
recognized
definition
of
culture
exists,
98
which makes
the
implementation
of
rights
designed
to
preserve
culture
difficult.
The
main
elements
93.
CCPR,
General
Comment
No.
23,
supra
note
8,
at paras.
6.2,
9.
94.
Id.
95.
See
Minority Declaration,
supra
note
50.
96.
See
UNESCO
Convention
Against
Discrimination
in
Education,
supra
note
60,
at
art.
5,
para. 1
(c),
(which
entitles
members
of
national
minorities
to
carry
out
their
own
educational activities,
including
the
maintenance
of
schools,
and, depending
on
the
educational
policy
of
the
state,
the
teaching
of
their
own
language)
Art.
30
of
the
widely
ratified
CRC,
combines
the
rights
of
indigenous
and
minority
children
with
the
rights provided by
Article
27
of
the
ICCPR. CRC,
supra
note
22.
The
Vienna
Declaration
and
Programme
of
Action reaffirmed
the
rights
of
persons
belonging
to
ethnic
linguistic
or
religious
minorities
"to
enjoy
their
own
culture,
to
profess
and
practise
their
own
religion
and
to
use
their
own language
in
private
and
in
public,
freely and
without
interference
or
any
form
of
discrimination."
See
World
Conference
on
Human
Rights,
June
14-25,
1993,
Vienna
Declaration
and
Programme
ofAction,
19,
U.N.
Doc.
A/CONF.
157/23
(July
12,
1993).
Regional
documents
comprise
the
Copenhagen
Document,
supra
note
54,
art.
14
and Protocol
12
of
ECHR,
supra
note
60,
the
European
Charter
for
Regional
and
Minority
Languages,
Nov.
5,
1992,
ETS
No.
148,
and
the
Framework
Convention,
supra
note
54.
97.
See
UNESCO
Declaration
of
the
Principles
of
International
Cultural
Co-operation,
UNESCO Doc.
14C/8.1
(Nov
4, 1966),
available
at
http://www.unhchr.ch/html/menu3/b/ndecl.htm.
98.
See
THORNBERRY,
supra
note
27,
at
187.
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of
identity
are
language
and
culture;
the
latter
including
religious
practices.
UNESCO
identifies
culture
as:
[A]II
that
is
inherited
or
transmitted
through
society,
it
follows
that
its
individual
elements
are
proportionally
diverse. They
include
not
only
beliefs,
knowledge,
sentiments
and
literature...
but
the
language
or
other
systems
of
symbols
that
are
their
vehicles. Other
elements
are
the
rules
of
kinship,
methods
of
education,
forms
of
government,
and
all
the
fashions
followed
in
the social
relations..
.."
Lyndel
V.
Prott
distinguishes
two
meanings
of
culture:
(1)
culture
in
the
sense
of
the
highest
intellectual
achievements
such
as
literary,
artistic,
and
scientific
works
and
(2)
culture
in
the
broader
sense
of
the
totality
of
all
practices
and
knowledge
of
all
groups
in
a
given society."
Rodolfo Stavenhagen
introduces
the
ethnic
dimension
by
adding
to
the
two
former
concepts
the
meaning
of
culture
as
the
sum
of
the
material
and
spiritual
activities
of
a
group,
which
distinguishes
it
from
other groups in
the
society.
He
accentuates
the
changes
in
the
perception
of
culture
over
time
and
points
out
that
the
"emphasis
is
on
the
way
people
perceive
their
culture,
on the discourse
about culture,
rather
than
on culture
itself."'
' °
In
his
study about
the
rights
of
people belonging
to
minorities,
UN
Special
Rapporteur
Francesco
Capotorti
points
out
that
cultural
issues include
the
general
policy
regarding
minorities,
educational
policy
for
children
belonging
to
ethnic
groups,
development
of
arts
and
literature
of
a
minority,
diffusion
of
their
culture,
and
measures
adopted
for
the
preservation
of
their
customs
and
of
their
legal
traditions.
,02
The
recognition
of
culture
as
a
justification
for
the protection
of
ethnic
groups
does
not
imply
that
all
cultures or all
cultural
practices
should
be
protected
and
promoted
at
any
price.'
The
preservation
of
minority
cultures and
ethnic
identity
has
to
be
seen
against
the
background
of
international
law
recognizing
the
value
of
cultural
diversity,
the
equality
of
all cultures,
and
as
a
result,
the
fact
that
all
cultures deserve
protection
in
order
to
secure
their
survival.
This
value
is
conditioned
by
other
interests
such
that
certain
cultural
practices
may
be
limited
or
prohibited.'"
4
99.
MICHEL
LEtRIS, RACE
AND
CULTURE
21
(1951).
100.
Lyndel
V.
Prott,
Cultural
Rights
as
Peoples'
Rights
in
International
Law,
in
THE
RIGHTS
OF
PEOPLES
93,
94
(James
Crawford
ed.,
1988).
101.
Rodolfo
Stavenhagen,
Cultural
Rights
and
Universal
Human
Rights,
in
ECONOMIC,
SOCIAL
AND
CULTURAL
RIGHTS--A
TEXTBOOK
63,
67
(Asbjorn
Eide
ed.,
1995).
102.
Special
Rapporteur
of
the
Sub.-Comm'n
on Prevention
of
Discrimination
and
Protection
of
Minorities,
Study
on
the
Rights
of
Persons
Belonging
to
Ethnic,
Religious
and
Linguistic
Minorities,
M
327-385,
U.N.
Doc.
E/CN.4/Sub.2/384/Rev.I
(1979).
103.
Athanasia
Spiliopoulou
Akermark
speaks
of
a
process
similar to
"an
endangered species
theory."
SPILIOPOULOU AKERMARK,
supra
note
9,
at
83.
104.
For
instance,
ceremonial
female
genital
mutilation
is
an
unacceptable cultural
practice
as
it
violates basic
human
rights
of
the women
affected
(e.g.,
the
right
to
physical
integrity).
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Nevertheless, protection
and
promotion
of
a
minority's
identity
can
pose
challenging questions.
First,
members
of
minorities
should
not only
have
the
possibility
to
receive education
in
the
minority
language
and
practice
their
own
religion, but also
to receive
some
knowledge
of
their culture
in
general
as
well
as
about
cultures
of
other
groups
and
the
society
at
large. States
should
therefore
adopt
measures
in
the
field
of
education
that
encourage knowledge
of
the
history,
traditions,
language,
and
culture
of
their
minorities.
In
this
context,
the
right
to
use
one's
name
in
a
way
it
is
used
within
the
minority
group and the
right
to
have
street
names
and toponyms
in
the
language
of
the
minority
as
well
as
the
majority
constitute
significant
contributions
to
the
preservation
of
ethnic culture.'
5
Second,
the
question
of
who
belongs
to a
minority
is
usually difficult
to
determine
and
the
degree to which identity matters
are
protected
or
promoted
varies
substantially
between
different
countries.
In
the
HRC case
Sandra
Lovelace
v.
Canada,'
for
example,
the
complainant
was
a
Maliseet
Indian
woman
who
had
lost, under Canadian
legislation,
her
status
as
an
Indian as
a
result
of
marrying
a
non-Indian.
After her
divorce,
she
wanted
to
go
back
to
the
Topique
reservation
where
she
was born and grew
up.
07
Her
request
was
denied
by
Canadian
authorities
because
of
the
alleged
change
of
status.
The HRC
stated
that
restrictions
affecting
the
right
to
residence
on a
reservation
must
have
a
reasonable
and
objective
justification.'
8
Denying
Sandra Lovelace the
ability
to
live
on
the
reservation
was
not
seen
as
reasonable
or
necessary
to
preserve
the
identity
of
the
tribe,
and
as
a
result,
the
HRC
concluded
that
not
recognizing her
as
a
member
of
the
group
constitutes
a
violation
of
her rights
under
Article
27
of
the
ICCPR.
Third,
protection
of
minority cultures
in
international
law
challenges
other
concepts
such
as
the
right
of
states
to
territorial integrity, which
is
especially
contested
if
the
minority
concerned
has
kinfolk
in
neighboring
countries.
State
authorities
have
in
many cases
been
suspicious
of
these interactions
fearing
secessionist
movements
and
the
initiation
of
ethnic
turmoil.' However,
in
most
cases, minorities
have
fostered
economic,
cultural,
and
social
cooperation
across
borders
and
thus
supported
the
normalization
of
relations
between
states.
They
play
a
significant
role
in
creating
and
determining the
character
of
bilateral
relations
between
countries.
"
'
In
addition,
transborder
contacts
between
ethnic
groups
contribute
to
the
preservation
of
minority
cultures."'
It is
thus important
for
the
state
to
create
a
balance
between
its
right
to
preserve
its
territorial
integrity
and
the
right
of
ethnic groups
to
interact
with
their
kin
groups
across
the
border.
105.
Possible
Ways
and
Means,
supra
note
62,
at
paras.
202-205.
106.
Sandra Lovelace
v.
Can., H.R.C.,
Communication No.
24/1977,
U.N.
Doc.
CCPR/C/13/D/24/1977
(July
30,
1981).
107.
Jd. at
9.7.
108.
Id.
at
para.
16.
109.
See
generally
The
Role
of
Minorities
in
International
and
Transborder
Relations
in
Central
and
Eastern Europe,
WORKSHOp
REPORT
(Minority
Rights Group
Int'l,
London,
U.K.),
March
1999.
110.
Id.
111.
See
Ivanka
N.
Atanasova,
Transborder
Ethnic Minorities
and
Their
Impact
on
the
Security
of
Southeastern
Europe,
32.2
NATIONALITIES
PAPERS
355,
355
(2004).
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And
finally, the question
of
what the
state
should
protect
and
to
what
extent
it
should engage
in
the
promotion
of
culture
and
identity
of
minorities
is
difficult
to
answer,
politically
contested,
and depends
on
the context.
The
best
way
to
ensure
the survival
of
a
group's
culture
is
to
empower
the
group to determine
its
own
affairs
in
collaboration
with
the
state.
III.
EMPOWERMENT
The
second
major
set
of
claims
are
demands
to
empowering
ethnic
groups.
These claims
tend
to
be
politically
and
legally challenging, but
granting
these
demands
can
be
very
beneficial
to
both
the
minority
group
and to
the
society
at
large.
The
most difficult
claim to accommodate
is
the
demand
for
political
self-
determination,
which potentially
threatens
the
right
of
states
to
sovereignty
and
territorial
integrity."
2
The
concept
of
self-determination
originated from
the
French
and
American
revolutions
in
the
late
18th
century and
embraced
the notions
of
sovereignty
of
citizens,
individual
freedoms,
and
the
entitlement
of
all
citizens
to
a
representative
government."
3
This
also
included
the idea
of
the
"nation-state,"
namely
the
belief
that
the state
should
consist
of
one
homogenous
ethnic
community
governing
itself;
a
line
of
thought that
significantly influenced
state-building
in
Europe
during
the
19
th
century.
However,
the implementation
of
self-determination
has
proven
to be
quite
problematic
as
less
than
20%
of
all
states
are
ethnically
homogenous.
11
4
Self-determination
became
a
legal
right only
after
the
Second World
War.
In
the
context
of
universal
peace
requiring
friendly
relations between
states,
the
principle
of
self-determination
of
peoples became
an
integral
part
of
the
UN
Charter."
5
In
this
context,
"self-determination
of
peoples"
meant
that
the
rights
of
peoples
of
one
state
were
to
be
protected
from interference
by
other
states,
with
self-determination
being
a
right
of
states,
not individuals
or sub-state
groups.
However, nothing
in
the
UN
Charter prohibited the emergence
of
a
norm that
went
beyond
non-interference
and
that
included
the
right
for
peoples
to determine
their
own
destiny
even
on
the
sub-state
level."
6
The right
to
self-determination
gained
importance during
decolonization
struggles
in the
1950s
and
1960s.
In
this
context,
self-determination
did
not only refer
to
the
right
of
states
to determine
their
domestic
affairs
without
external
interference, but also
to
the
right
to
independence
112.
The
principle
of
state sovereignty
is stipulated
in
Article
2,
paragraph
I
of
the
UN
Charter.
Sovereignty
of
states
is
linked
with
independence
from
outside
interference
("domestic
jurisdiction"
principle),
and
the
possibility
to
determine
one's
destiny.
UN
Charter
art.
2,
para.
7.
International
law
has increasingly
imposed limitations
on
the sovereign
actions
of
states
both on
the
international and
domestic
level, for
example
by
prohibiting
the
use
of
force.
UN
Charter
art.
2,
para.
4.
113.
See
for
a history
of
the
concept
of
self-determination
THOMAS
D.
MUSGRAVE,
SELF-
DETERMINATION
AND
NATIONAL
MINORITIES
2-14
(1997).
114.
David
Welsh,
Domestic
Politics
and
Ethnic
Conflict,
in
ETHNIC CONFLICT
AND
INTERNATIONAL
SECURITY
43,45
(Michael
E.
Brown
ed.,
1993).
115.
UN
Charter
art.
1,
para.
2.
116.
ROSALYN
HIGGINS,
PROBLEMS
AND
PROCESS:
INTERNATIONAL
LAW
AND
How
WE
USE
IT
112-113
(1994).
2009]
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CONNECTICUT
JOURNAL
OF
INTL
LAW
for
colonial
peoples
and
the
possibility
for
formerly
colonized
groups
to integrate
or
associate
with
an
established
state.'
1
7
Over time,
the
right
of
peoples
to
self-determination
was recognized
also
outside
the
colonial
context.
The
UN
Friendly
Relations
Declaration
states
that
any
"subjection
of
peoples
to
alien
subjugation,
domination
and
exploitation
constitutes
a
violation
of
the
principle.""
'
The
declaration
does
thus
not
distinguish
between
colonial
peoples
and
peoples
in
other
situations.
Similarly,
Article
1,
paragraph
1
of
the
both
the
ICCPR
and
the ICESCR
states
that
"[aill
peoples
have
the
right
of
self-determination.
By
virtue
of
that
right
they
freely
determine
their
political
status
and freely
pursue
their
economic,
social
and cultural
development.""
9
In
addition,
the
1975
Helsinki
Final
Act
by
the
Conference
for
Security
and
Co-operation
in
Europe (CSCE)
and
the
1981
African
Charter
on
Human
and
Peoples'
Rights identify
the
right
of
peoples
to
self-determination
in
Principle
VIII
and
Article
20
respectively,
both
also
including
non-colonial
situations.'
At the
end
of
the
Cold
War,
new documents
acknowledged
the
importance
of
self-
determination
and
confirmed
its
standing
among fundamental
human
rights
instruments.'
The
Vienna
Declaration
and
Programme
for
Action,
the
final
statement
of
the
1993
World
Conference
on
Human
Rights,
states
in
Article
2:
All
peoples
have
the
right
of
self-determination.
By
virtue
of
that
right
they
freely
determine
their
political
status,
and
freely
pursue
their
economic,
social
and
cultural
development
....
The
World
Conference
on
Human
Rights
considers
the
denial
of
the
right
of
self-determination
as
117.
The
recognition
of
the right
to
self-determination
as
a
legal
right
in
the
context
of
decolonization
was
confirmed
by
important
UN
General
Assembly
(UNGA)
resolutions
as
well
as
by
the
International
Court
of
Justice
(ICJ)
advisory
opinions
on
Namibia
(1971),
Western
Sahara
(1975),
and
in
its
judgment
concerning
the
East
Timor
case
(1995).
See
generally
Declaration
on
the
Granting
of
Independence
to Colonial
Countries
and
Peoples,
G.A.
Res.
1514
(XV),
U.N.
Doc.
A/RES/1514
(XV)
(Dec.
14,
1960)
[hereinafter
UNGA];
Principles
Which
Should
Guide Members
in
Determining
Whether
or
Not
an
Obligation
Exists
to
Transmit
the
Information
Called for
Under
Article
73
of
the
Charter,
G.A.
Res.
1541
(XV), Prin.
VII, U.N.
Doc.
A/RES/1541
(XV)
(Dec.
15,
1960);
Western
Sahara,
Advisory
Opinion,
1975 I.C.J.
12,
31-33
(Oct.
16);
Legal
Consequences
for
States
of
the
Continued
Presence
of
South Africa
in
Namibia
(South
West
Africa)
Notwithstanding
Security
Council
Resolution
276
(1970),
Advisory
Opinion,
1971
I.C.J.
16,
31
(June
21); East
Timor
(Port.
v.
Austl.),
1995
I.C.J.
90,1
102
(June
30).
118.
Declaration
on
Principles
of
International
Law
Concerning
Friendly Relations
and
Co-
operation
Among
States
in
Accordance
with
the
Charter
of
the
United
Nations,
G.A.
Res. 2625
(XXV),
at
124,
U.N.
Doc.
A/2625
(Oct.
24,
1970)
[hereinafter
Friendly Relations
Declaration].
119.
ICCPR,
supra
note
7,
at
art.
1,
1;
ICESCR,
supra
note
59,
at
art.
1,
para.
1.
120.
The
Conference
on
Security
and
Co-operation
in
Europe,
Final
Act
of
Helsinki,
reprinted
in
THE
CONFERENCE
ON
SECURITY
AND
CO-OPERATION
IN
EUROPE:
ANALYSIS
AND
BASIC
DOCUMENTS,
1972-1993
141
(Arie
Bloed
ed.); African
Charter
on
Human
and
Peoples'
Rights
art.
20,
June
27,
1981,
1520
U.N.T.S.
217.
121.
See,
e.g.,
Vienna
Declaration
and
Programme
of
Action,
supra
note
96,
at
para.
2;
Conference
on Security
and
Co-operation
in
Europe,
Charter
of
Paris
for a New
Europe
and
Supplementary
Document
to
Give
Effect
to
Certain
Provisions
of
the
Charter,
Nov.
21,
1990,
30
I.L.M.
190;
Framework
Convention,
supra
note
54.
[Vol.
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DEALING
WITH
CLAIA
OF
ETHNIC
MINORITIES
IN
INT'L
LAW
a
violation
of
human
rights and
underlines the
importance
of
the
effective
realization
of
this
right.
2
2
The
World
Conference
additionally
affirmed
that
the
right
to
self-
determination:
[S]hall
not
be
construed
as
authorizing
or
encouraging
any action
which
would dismember
or
impair,
totally
or
in
part,
the
territorial
integrity
or
political unity
of
sovereign
and independent
States
conducting
themselves
in
compliance
with
the
principle
of
equal
rights
and
self-determination
of
peoples
and
thus possessed
of
a
Government
representing
the whole
people
belonging
to
the
territory
without
distinction
of
any
kind.
2
3
This statement
concurs
with other international
documents.'""
These
considerations
show
the
immanent
tension
between
the
claim
of
self-determination
and the
principles sovereignty
and
territorial integrity
of
the state.
These
tensions,
in
combination
with
other problems
such
as
the question
of
defining
a
"people"
entitled
to
the
right
of
self-determination,
25
led
to
the search
for new strategies,
in
which
self-determination
would
not
automatically
be
connected
to independence.
Linking
the
concept
of
ethnicity
to
such
a
potent ideology
as
that
of
self-
determination
increases
the
probability
of
great
disorder
and
violent
ethnic
conflict.'
26
It
constitutes
a
permanent
provocation
to
war.'
2
7
As
a
result,
the
post-colonial
interpretation
of
the
concept
of
self-
determination
has
changed
over
time
and
includes now
the
right
to
possessing
a
different
identity
and enjoying
a
significant
degree
of
control
over
the affairs
of
the
group.
Self-governance
today
can
be
distinguished
in
external
and internal
self-
determination. While
external
self-determination
embraces
the
traditional
notion
of
secession
and
independence,
internal
self-determination
has
a
more
domestic
focus
and
is
linked
to democratic principles
of
participation.
The CERD
states
on
this issue:
122.
Vienna
Declaration
and
Programme
ofAction,
supra
note
96, at
para.
2.
123.
Id.
124.
See,
e.g.,
Friendly
Relations
Declaration,
supra
note
118,
at
124.
The
declaration
states
"Nothing
in
the
foregoing
paragraphs shall
be
construed
as
authorizing
or encouraging
any
action
which
would
dismember or impair,
totally
or
in
part,
the
territorial
integrity
or
political
unity
of
sovereign
and
independent
States
conducting
themselves
in
compliance
with
the
principle
of
equal rights
and
self-
determination
of
peoples
as
described
above
and thus possessed
of
a
government
representing
the
whole
people
belonging
to
the
territory
without distinction
as
to
race,
creed
or
colour."
Id
125.
See
generally
Gaetano
Pentassuglia,
State
Sovereignty,
Minorities
and
Self-Determination:
A
Comprehensive
Legal
Review,
9
INT'L
J.
ON
MINORrrY
&
GROuP
RIGHTS
303
(2002)
(illuminating
a
debate
on the
definitions
of
"peoples").
126.
See
Mohammed
Ayoob,
State Making,
State Breaking,
and
State
Failure,
in
TURBULENT
PEACE:
THE
CHALLENGES
OF
MANAGING
INTERNATIONAL
CONFLICT
127,
135
(Chester
A.
Crocker
et
al.
eds.,
2001).
127.
William
Pfaff,
Invitation
to
War,
72.3
FOREIGN
AFF.
97,
99-100
(1993).
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OF
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LAW
In
respect
of
the
self-determination
of
peoples
two aspects
have
to
be
distinguished.
The
right
to
self-determination
of
peoples
has
an
internal
aspect,
i.e.
the
rights
of
all
peoples to
pursue
freely
their
economic,
social
and
cultural
development
without
outside
interference.
In
that
respect
there exists
a
link
with
the
right
of
every citizen
to
take
part
in
the
conduct
of
public
affairs
at any
level
as
referred
to
in
article
5
(c)
of
the
International
Convention
on
the
Elimination
of
All
Forms
of
Racial
Discrimination.
In
consequence,
governments
are
to
represent
the
whole
population
without
distinction
as
to
race,
colour,
decent
[sic],
national,
or
ethnic
origins.
The
external
aspect
of
self-determination
implies
that
all
peoples
have
the
right
to determine
freely
their
political
status
and their
place
in
the
international
community
based
upon
the
principle
of
equal
rights
and
exemplified
by
the
liberation
of
peoples
from
colonialism
and
by
the
prohibition
to
subject
peoples
to alien
subjugation,
domination,
and
exploitation.'
2
The
HRC
confirmed
the internal
aspect
of
self-determination
in
its
General
Comment
No.
12
on
Article
1
of
the
ICCPR.'
29
Self-determination
should
thus
be
viewed
as
a
means
to
an end,
which
is
a
democratic,
participatory
political
and
economic
system
in
which
the
rights
of
individuals
and
the
identity
of
ethnic
communities
are
protected
and
actively
promoted.
In
most
instances,
self-
determination
does
not
mean
statehood
or
independence,
but the
assignment
of
necessary
power
to
ethnic
groups
to
control
and
influence
matters
of
direct
relevance
to
them,
while
at
the
same
time
bearing
in
mind
the
legitimate
concerns
of
other
segments
of
the population
and
the
state
itself.
'3 °
S.
James
Anaya
writes
that
self-determination
is
increasingly
understood
as
a
"configurative
principle
or
framework
complemented
by
the
more
specific
human
rights
norms
that
in
their
totality
enjoin
the
governing
institutional
order."''
Thomas
Franck
goes
even
further
by
speaking
of
an
emerging
"right
to
democratic
governance."'
32
This
is
supported
by Asbjorn
Eide,
who
concludes
that
"[diemocracy
is
thus
clearly
a
part
of
the
right
to
self-determination.
What
is less
clear
is
whether
groups
have
a
right
to
some
local
self-government,
or
autonomy
within
the
state,
on the
basis
of
the
right
to
self-determination."'
33
It
has
to
be
noted,
however,
that
democracy
by
definition
is
majority
rule,
which
is
in
itself
counterproductive
to
empowering
128. UN
Committee
on
the
Elimination
of
Racial
Discrimination,
General
Recommendation
No.
21,
J4,
U.N. Doc.
CERD/48/Misc.7/Rev.3
(Mar.
15,1996).
129.
HRC,
General
Comment
No.
12,
1,
U.N.
Doc.
HRIIGEN/1/Rev.1
(July
29,
1994).
130.
Hurst
Hannum,
Rethinking
SeOf-Determination,
in
INTERNATIONAL
LAW
AND THE
RISE
OF
NATIONS:
THE
STATE
SYSTEM
AND
THE
CHALLENGE
OF
ETHNIC
GROUPS
214,
243
(Robert
J.
Beck
&
Thomas
Ambrosio
eds.,
2002).
131.
S.
JAMES
ANAYA,
INDIGENOUS
PEOPLES
IN
INTERNATIONAL
LAW
99,99
(2d
ed.
2004).
132.
Thomas
M.
Franck,
The
Emerging
Right
to
Democratic
Governance,
86
AM.
J.
INT'L
L.
46,
46(1992).
133.
Possible
Ways
and
Means,
supra
note
62,
at
para.
88.
[Vol.
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DEALING
WITH
CLAIMS
OF
ETHNIC
MINORITIES
IN
INT'L
LAW
minorities. Special measures
have
thus
to be
approved to reach
the
goal
of
internal
self-determination
for
ethnic
groups."
The
primary
understanding
of
the
right
to
self-determination
today
is
based
on
the
reconciliation
of
the
principles
of
state
sovereignty
with
the
promotion
of
peace
and
democracy
within
and
among
societies.
An
advanced
interpretation
of
self-
determination assumes
the
accommodation
of
individual and
group
interests
as
a
way
of
responding
to
international
and
sub-national
claims
of
peoples.
Internal
self-determination
rights
such
as
participation,
power-sharing
arrangements,
and
autonomy
play
an
important role
in
the
settlement
of
ethnic claims.
It
is
hoped
that
by
giving
the
members
of
ethnic
groups
the
possibility
to maintain
and express
their group
identity
there
is
no
need
to
give
them their
own
state."'
A.
Participation
One
of
the most
common demands
of
ethnic
minorities
linked to
self-
determination
is the
request
to
effectively participate
in
the internal affairs
of
a
state.
Human
Rights Council
general
comment number
23
on
Article
27
provides
for
"measures
to ensure
the
effective
participation
of
members
of
minority
communities
in
decisions
which
affect
them.'
36
Article
25
of
the
ICCPR,
which
does
not specifically refer
to
minorities,
reads:
Every
citizen
shall
have
the
right
and
the opportunity,
without
any
of
the
distinctions
mentioned
in
article
2
and
without
unreasonable
restrictions:
1.
To
take
part
in
the
conduct
of
public
affairs,
directly
or
through
freely
chosen
representatives,
2.
To
vote
and
to
be
elected at
genuine
periodic elections which
shall
be
by
universal
and equal
suffrage and
shall
be
held
by
secret
ballot,
guaranteeing
the
free
expression
of
the
will
of
the
electors,
3.
To
have
access,
on
general terms
of
equality,
to
public
service
in
his
country.
1
3
7
The
obligation
of
states
to
provide
full
participation
to
all
of
its
citizens
and
accordingly, to
all
ethnic
groups,
has
two aspects:
First, the
government
must
be
comprised
of
all
ethnic
groups,
and
not
just
one.
Second,
the
participation
of
the
different groups must be
effective.'
It
is
not enough
to incorporate
formal
participation,
such as
the
right to vote
for
all
citizens,
if
the
majority
always
outvotes
the
minority.
States
are
required
to
develop
appropriate
and
effective
methods
of
participation
for
persons belonging
to minority groups,
meaning
that
134.
See
infra
Part
3.1.
135.
See
STEFAN
WOLFF,
ETHNIC
CONFLICT:
A
GLOBAL
PERSPECTIVE
35
(2006).
136.
Office
of
UN
Human
Rights Council,
supra
note
8,
at
para.
7.
137.
ICCPR,
supra
note
7,
at art.
25.
138.
See,
e.g.,
Minority
Declaration,
supra
note
50,
at
art.
2,
para.
3;
Copenhagen
Document,
supra
note
54, at
para.
35; and
Framework
Convention,
supra
note
54,
at
art.
15.
2009]
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OF
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LAW
minorities
have
an
actual
voice
in
the
decision-making
process. This
includes,
for
example,
the
availability
of
informational materials
and
voting
sheets
in
minority
languages,
the
prohibition
of
gerrymandering,
and
the prevention
of
political
discrimination against
any group."
9
On
the other
side,
securing
a
balance
between
giving
minorities
a
vote
and avoiding
discrimination
against the majority
is
an
integral
element
of
building
a
healthy
minority-majority
relationship.'
40
If
a
minority
is
not
adequately
represented
or
consulted
in
the
political
affairs
or
in legal
proceedings
of
a
state,
the risk persists
that
unrepresented
bodies
will
seek
to
pursue objectives or
actions
that
are
not
supported
by or
in
the
interests
of
the
minority
or
the
community
as
a
whole.
It
is
therefore desirable
to
include
some
formal procedures
in
national
legislation
to
ensure
that
the
full
range
of
opinions
and claims
are
represented
in
the
implementation
of
minority
rights
and
duties.
Such
measures include
consultation, participation
in
elected
bodies,
and
involvement
in
the
preparation
of
national
and
regional
programs.
The
Human
Rights Committee
suggested
in
Ldnsman
v.
Finland"'
and
Mahuika
et
al.
v.
New
Zealand"
2
that
meaningful
forms
of
direct
consultation
provide
at
minimum
a
way
to enable
minority
groups
to
participate
in
the
decision-
making process.
However,
the
way
in
which
participation
is
granted must
be
determined by
the
state.
In
Marshall
v.
Canada,"
3
concerning
the
right to
directly
take part
in
the conduct
of
public affairs
under
Article
25,
paragraph
(a)
of
the
ICCPR,
the authors
represented
an
indigenous
group
that
complained about
the
violation
of
their right
to
participation
in
public
affairs.
They claimed that
the
Canadian
government
failed
to
consult
the
group
on
subjects
that
directly
affect
their
interests
and
those
of
the
group
as
a
whole
because
they
had
not been
invited
to
a
constitutional
conference
on
aboriginal
matters.'"
The
Committee
concluded
that
"it
cannot
be
the
meaning
of
article
25(a)
of
the
Covenant
that
every
citizen
may
determine
either
to take part
directly
in
the
conduct
of
public
affairs
or
to
leave
it
to
freely chosen representatives"
and that
"[i]t
is
for
the
legal
and
constitutional
system
of
the
State
party
to
provide
for
the
modalities
of
such
participation.""
'
Consequently,
the
HRC stated that
participation
at
the
conference
was
not
subjected
to unreasonable
restrictions
and
that
the complaint
does
not
reveal
a
violation
of
Article
25
of
the
ICCPR."
Article
25,
paragraph
(a)
can
thus
not
be
understood
as
a
right
of
ethnic
minorities
to choose
the
modalities
of
participation
in
the
conduct
of
public
affairs.
Most other minority
rights
139.
See
UN
Human Rights Commission,
General
Comment
No.
25,
1
12,
U.N.
Doc.
A/51/40
(1996).
140.
Possible
Ways
and
Means,
supra
note
62,
at
para.
67.
141.
UN
Human Rights Commission,
Communication No.
671/1995,
10.5,
U.N.
Doc.
CCPR/C/58/D/671/1995 (1996)
(addressing
complaint
of
LAnsman
v.
Finland).
142.
UN
Human
Rights
Commission,
Communication
No. 547/1993,
9.6,
U.N.
Doc.
CCPR/C/70/D/547/1993
(2000)
(addressing
complaint
of
Mahuika
v.
New Zealand).
143.
UN
Human Rights
Commission, Communication
No.
205/1986, 3.2,
U.N.
Doc.
CCPR/C/43/D/205/1986
(1991)
(addressing
complaint
of
Marshall
v.
Canada).
144.
Id.
at
paras.
3.1,
4.2,
6.
145.
Id.
at
para.
5.4.
146.
Id.
at
para.
6;
see
also
Pentassuglia,
supra
note
125,
at
318-19.
[Vol.
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DEALING
WITH
CLAIMS
OF
ETHNIC
MINORITIES
IN
INT'L
LAW
instruments
link
effective
participation
of
minorities
to
their
compatibility
with
"national
legislation,"'
47
the
"decision-making
procedures",
or
"policies.'
'4 8
In
societies
with
deep
ethnic
divisions, competition
for
political
power often
results
in
domination
by
the
majority
group.
Groups
that
fear
marginalization
mobilize
for
action
that
might
threaten
other groups.
In
order
to
avoid
ethnic
conflict,
some
countries
have
sought
to balance
power among different
groups
and
to
give
groups
the
right
to
participation
through
democratic
power-sharing.
The
most
prominent
power-sharing
model for
deeply
divided societies
is
Arend
Lijphart's
consociational
structure,
149
which
introduces
four
markers
of
ethnic
power-sharing.
These
include
(1)
a
grand
coalition,
namely
the
joint
exercise
of
governmental
power;
(2)
proportionality
in
representation
in
government;
(3)
segmental
autonomy,
for
example
for educational
or
cultural
matters;
and
(4)
mutual
veto
rights, which means
that
the minority
can
veto
on
issues
important
to
the
group.
5
It
is
important
to emphasize
the
potential
of
consociational
arrangements
for
democracy
and
human
rights.
Consociation
is
the
preferred
model
for
power-
sharing
when
the
international
community
is
involved
in
ethnic
conflict
resolution,
as
the examples
of
the
power-sharing
agreements
in
Afghanistan,
Macedonia,
Bosnia
and
Herzegovina,
and
Northern
Ireland
show.'
5
'
Consociational
agreements
in
these
cases
address
claims
to
self-determination
between
ethnic
communities
by
institutionally
recognizing
more than
one
group,
establishing
minority-friendly
democratic
institutions,
and
provide
minorities with the
right
to determine
their
own
affairs
and
to
participate
in
public
decision-making
on
the
state
level.
In
addition,
power-sharing
arrangements
are
often
combined with
territorial
autonomy,
which
is
one
of
the
most
important
ways
to
protect
and
empower
ethnic
minorities.'
52
Nevertheless,
from
an
international
legal
point
of
view,
power-sharing
practices
can
pose
difficult
questions
and
undermine essential
human rights
ideals.'
53
First
and
foremost,
the idea
of
power-sharing
"contrasts
sharply with the
static
absolutism
of
rights, the
processes
of
negotiation
and
compromise,
of
winning
some
and
losing
some."
'
"N
Second,
similar
to
other
minority protection
regimes
but
to a
greater
extent,
"they
explicitly
differentiate
among
the
members
of
groups
on
the
basis
of
characteristics
such
as race,
religion,
and
language"
instead
147.
See
Minority
Declaration,
supra
note
50, at
art.
2,
para.
3.
148.
See
Copenhagen
Document,
supra
note
54,
at
paras.
33, 35.
149.
See
generally
AREND
LIJPHART,
DEMOCRACY
IN
PLURAL
SOCIETIES:
A
COMPARATIVE
EXPLORATION
(1977).
150.
See
id.
Belgium,
Malaysia,
Canada, India,
and
Nigeria
are
seen
as
typical
examples.
More
recently,
consociational
structures
were
included
in
the
1998
Peace
Agreement
in
Northern Ireland.
151.
BRENDAN
O'LEARY,
Debating
Consociational
Politics:
Normative
and
Explanatory
Arguments,
in
FROM
POWER
SHARING
TO
DEMOCRACY:
POST-CONFLICT
INSTITUTIONS
IN
ETHNICALLY
DIVIDED
SOCIETIES
1,
2
(2005).
152.
Id.
at
39
(discussing
territorial
solutions
such
as
autonomy).
153.
Henry
J.
Steiner,
Ideals
and
Counter-Ideals
in
the
Struggle over
Autonomy
Regimes
for
Minorities,
66
NOTRE
DAME
L.
REv.
1539,
1545-46
(1991).
154.
Anne-Marie
Slaughter,
Pushing
the
Limits
of
Liberal
Peace:
Ethnic
Conflict
and
the
"Ideal
Polity",
in
INTERNATIONAL
LAW
AND
ETHNIC
CONFLICT
128,
133
(David
Wippman
ed.,
1998).
2009]
HeinOnline -- 24 Conn. J. Int'l L. 225 2008-2009
CONNECTICUT
JOURNAL
OF
INT'L
LAW
of
giving
all
individuals
equal rights.'
55
Power-sharing
models
"have
the effect
of
favoring
[one
share
of
the
population]
over
another
on the
basis
of
their
membership
in an
ethnic
group
or,
at
least,
on
the
basis
of
their
residence
in
an
ethnically
defined
subnational
political
unit."'
56
Third,
ethnic
power-sharing
models
restrict
the
participation
rights
of
members
of
the
majority.
Consociational
practices
are
acceptable
as
long
as the
differential
distribution
of
power
for
the
benefit
of
the ethnic
groups
does
not
infringe
too
much
on
the
rights
of
the
majority.
Consociational
arrangements
should
not
be
seen
as
discriminatory
rights
for
ethnic
minorities,
but
as
an
opportunity
for
empowerment
of
ethnic
groups
to
reach
a
so-called
"equality
in
fact".'
And
finally,
because
of
the
difficult
election
procedures
and
allocation
of
voting
districts,
consociational
settlements
violate
the
right
to free
movement
and
residency
within
a
state
as
laid
down
in
Article
12,
paragraph
I
of
the
ICCPR
56
Consociational
arrangements
require
some
measures
to
exclude
members
of
other
ethnicities
from
residing
in
the
minority
region
in
order
to
prevent
population
movements
from
undermining
proportions.
5 9
However,
similar
to
minority
provisions,
state
practice
accepts
schemes
that
are
designed
to
protect
the
ethnic
identity
of
minorities."
6
The
claim
by
ethnic
groups
to
participate
in
the
state's
decision-making
processes
is
often
connected
with
demands
to
determine
their
own
affairs.
This
implies
the
devolution
of
power
to
various
degrees
to
the
benefit
of
one or more
minority
groups,
ranging
from
regimes
of
segmental
or
"cultural"
autonomy
to
territorial
autonomy
with
expanded
mandates.
Autonomy
can
be
viewed
as
a
way
of
enhancing
protection
for
minorities.
The
CSCE
Copenhagen
Document
states
that
autonomy
is
one
of
the
appropriate
means
to
protect
the
identity
of
minorities
and
to
secure
effective
participation.
6
'
Depending
on
the
structure
of
the state
and
the
size
and
situation
of
the
minority,
different
models
of
autonomy
can
be used.'
62
In
cases
in
which minorities
are
widely
dispersed
or
not
numerous
enough
to
justify
the
creation
of
an
autonomous
region,
functional
or
segmental
autonomy
may
constitute
an
appropriate
alternative.
This
may
involve
the
delegation
of
administrative
powers
155.
David
Wippman,
Practical
and
Legal
Constraints
on
Internal
Power
Sharing,
in
INTERNATIONAL
LAW
AND
ETHNIC
CONFLICT
211,231
(David
Wippman
ed.,
1998).
156.
Id.
at 232.
157.
Id
158.
ICCPR,
supra
note
7,
at
art.
12,
para.
1.
("Everyone
lawfully
within
the
territory
of
a
State
shall,
within
that
territory,
have
the
right
to
liberty
of
movement
and
freedom
to
choose
his
residence.")
159.
YAEL
TAMIR,
LIBERAL
NATIONALISM
158
(1993).
160.
See
KAREN
KNOP,
DIVERSITY
AND
SELF-DETERMINATION
IN
INTERNATIONAL
LAW
187
(2002);
see
also
Alain
Pellet,
The
Opinions
of
the
Badinter
Arbitration
Committee:
A
Second
Breath
for
the
Self-Determination
of
Peoples,
3
EuR.
J.
OF
INT'L
L.
178,
180
(1992).
161.
Copenhagen
Document,
supra
note
54,
at
para.
35.
162.
For
a
more
detailed
discussion
see
UN
Comm'n
on
Human
Rights,
Sub.-Comm'n
on
Promotion
and
Protection
of
Human
Rights,
Working
Group
on
Minorities,
Autonomy
and
Minority
Groups-A
Legal
Right
in
International
Law?,
UN
Doc.
E/CN.4/Sub.2/AC.5/2001/CRP.5
(March
5,
2001)
(prepared
by
Geoff
Gilbert);
see
also
UN
CHR,
Sub.-Comm'n
on
Promotion
and
Protection
of
Human
Rights,
Working
Group
on Minorities,
Cultural
Autonomy
and
Territorial
Democracy:
A
Recipe
for
Harmonious
Group
Accommodation,
U.N.
Doc.
E/CN.4/Sub.2/AC.5/2001/WP.4
(April
25,
2001)
(prepared
by
Asbjorn
Eide).
[Vol.
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DEALING
WITH
CLAIMS
OF
ETHNIC
MINORITIES
IN
INTL
LAW
to minorities
in
respect
to
issues
of
particular concern,
such
as
education,
language,
traditional
social
and economic
systems,
or
cultural
institutions
like
churches.
To
avoid
the
development
of
two
completely
separate cultures
within
a
state,
it
is
important
to
complement
autonomy
by
integrating
minorities
into
the
society
as
a
whole
and
by
granting
them
access
and
participation
rights
on
the
state
level.
6
3
Territorial autonomy
on
a
local
or
regional
basis
is
likely
to
be
the
most
appropriate
and
most
demanded
form
of
self-determination
for
regionally
concentrated
minorities living
in a
well-defined
area.
The
precise
degree
of
autonomy
and
the
extent
to
which
it
may
be
different
from
that
enjoyed
by
other
groups
or
political entities
within
the state
is
a
matter
of
political negotiation.'"
Several
issues
have to be
taken
into
account
when
examining
the
possibilities
for
territorial autonomy.
First,
the
autonomy
given
should be entrenched
in the
constitution
or
an
international
agreement
so
that
it
cannot
easily
be
altered.
This
provides minorities with
a
certain
degree
of
security about
their
status
even
if
the
political
context changes."
Second,
the scope
of
autonomy
has
to
be
clearly
defined,
whether it
is
territorial
or
segmental
autonomy.'"
Third,
the
autonomy
arrangement has to ensure
that
all
citizens
of
the
country
enjoy
equal
human
rights
in
all
parts
of
the
state. In
almost
every
case
there
will
be
other communities
with
a
different
ethnic
identity
within
the
autonomous
territory.
It
is
thus
vital
to
ensure
that
the
rights
of
these
sub-minorities
are
granted
and
that
they
are
protected
against
discrimination,
suppression,
or
exclusion.'
67
And
finally,
in
order
to dispel
the
aforementioned
fears
of
states
regarding
secessionist
tendencies
and
ethnic
turmoil,
autonomy
agreements
have
to
ensure that
the
freedoms
and
powers given
to
the
group
are
to
the
benefit
of
both
the
minority
and
the
state.'"
States fear
that
cultural
autonomy
may lead to administrative
autonomy
that
could
be
followed
by
more
extensive
claims,
especially
if
the
ethnic
group
is
territorially
concentrated.
These
fears are
not
always unsubstantiated;
studies
have
shown
that
multiethnic
federations make
it easier
for
groups
to
secede,
as
federalism
provides
the
minority
with
institutional
and
administrative resources
that
can be
used
for
the
struggle
for
independence.
69
Multiethnic federations
are
prone
to
break
down, as the
cases
of
163.
Hans-Joachim
Heintze,
On
the
Legal
Understanding
of
Autonomy,
in
AUTONOMY:
APPLICATIONS
AND
IMPLICATIONS
7,
21
(Markku
Suksi
ed.,
1998).
164.
See
WOLFF,
supra
note
135,
at
144.
165.
If,
for
example,
a
less
"minority-friendly"
government
is
elected.
166.
See
Andrew Reynolds,
Majoritarian
or
Power-Sharing
Government,
in
DEMOCRACY
AND
INSTITUTIONS:
THE
LIFE
WORK
OF
AREND
LUPHART
155,
169-70
(Markus
M.
L.
Crepaz et
al.
eds.,
2000).
167.
See
QUESTIONNAIRE
ON
THE
RIGHTS
OF
MINORITIES
(1993),
reprinted
in
THE
PROTECTION
OF
MINORITIES: COLLECTED TEXTS
OF THE
EUROPEAN COMMISSION
FOR
DEMOCRACY
THROUGH
LAW
81(1994).
168.
See
RUTH
LAPIDOTH,
AUTONOMY: FLEXIBLE SOLUTIONS
TO
ETHNIC CONFLICTS
169-205
(1996).
169.
See
John
McGarry
&
Brendan
O'Leary,
Federation
as
a
Method
of
Ethnic
Conflict
Regulation,
in
FROM
POWER
SHARING
TO
DEMOCRACY:
POST
CONFLICT
INSTITUTIONS IN
ETHNICALLY
DIvIDED
SOCIETIES
263,
274-75
(2005).
2009]
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CONNECTICUT
JOURNAL
OF
INTL
LA
W
Yugoslavia,
the
Soviet Union, Czechoslovakia,
and
examples
in
Africa
and
Asia
(with the exception
of
India)
illustrate.
7
'
Despite
these discussed
weaknesses,
power-sharing
arrangements
and
autonomy
should
be
evaluated
against
the
available alternatives.
Autonomy
and
power-sharing
may
make some
compromises
on
human
rights ideals,
but
they
help
to avoid
greater injustices
and,
in
many cases, violent
ethnic
conflict
and gross
human
rights
violations.
7
'
Many
scholars have argued
that
solutions
involving
regional
autonomy
and
power-sharing
are
effective
in
dealing
with
ethnic
conflict.
Ted
Gurr,
for instance,
argues
that
"[n]egotiated regional
autonomy
has
proved
to
be
an
effective antidote
for
ethnonational
wars
of
secession.""
'
Likewise,
Kjell-
Ake
Nordquist
observes
that
creating
autonomy
"as
a
conflict-solving
mechanism
in an
internal
armed
conflict
is
both
a
theoretical
and-very
often-a
practical
option for
the
parties
in
such conflicts.""
'
For
Gudmundur Alfredsson,
autonomy
and
power-sharing
are
the most
effective
means
of
protecting
a
minority's
dignity
and
cultural
identity."
4
Relatively stable, peaceful political
circumstances
are
the
best
conditions
for effective empowerment and
protection
of
ethnic
minorities."
5
As
a
result,
power-sharing
and
autonomy constitute
a
compromise balancing
the
conflicting
claims
of
ethnic
groups
for
self-determination
and the state's
responsibility
to
uphold
its
territorial integrity. Furthermore, because
autonomy
and
power-sharing
are
flexible
concepts
ranging
from
de
facto
independence
to
cultural
autonomy
and
from
regional
political arrangements
to federations,
it
may
be
tailored
to specific
situations
in
which ethnic
conflicts evolve.
According
to
Gaetano
Pentassuglia,
autonomy
and
power-sharing
schemes stand for
"an
inclusive human
rights-based,
democratic
and
pluralistic
process,
which
ultimately
provides
the
materially
disaggregated individuals
and
groups
comprising
'the
whole' with
meaningful
choices on
an
occasional
and
permanent
basis.""
' 6
Autonomy
and
power-sharing
structures
should
never have
the
aim
of
building
170.
However,
other
factors have
to
be
taken
into
account
when
explaining
the breakup
of
federations. First,
some
failed
multiethnic federations
were
pseudo-federations
in
which
the units
had
no
defacto
power.
Second,
in
some
cases the
units
were
forced
together
(Soviet
Union)
or
arbitrarily
consolidated
(former
colonies). And
third,
both
in
the
communist
and
post-colonial
cases,
the
federations
had
economic
problems
(either
regarding the
system
or regarding
the
functioning).
Id.
at
276-78;
see
also
Brendan
O'Leary,
An
Iron
Law
of
Nationalism
and
Federation?
A
(neo-Diceyian)
Theory
of
the
Necessity
of
a
Federal
Staatsvolk,
and
of
Consociational
Rescue,
7
NATIONS
AND
NATIONALISM
273
(2001).
171.
See
Steiner,
supra
note
153,
at 1547-48.
172.
Ted Robert
Gurr,
Peoples
Against
States:
Ethnopolitical
Conflict
and
the
Changing
World
System:
1994
Presidential
Address,
38
INT'L
STUD.
Q.
347,
366
(1994).
173.
Kjell-Ake
Nordquist,
Autonomy
as
a
Conflict-Solving
Mechanism-An
Overview,
in
AUTONOMY:
APPLICATIONS
AND
IMPLICATIONS
59,59
(Markku
Suksi
ed.,
1998);
see
also
FEDERALISM
AGAINST
ETHNICmTy?
INSTITUTIONAL,
LEGAL
AND
DEMOCRATIC
INSTRUMENTS
TO
PREVENT
VIOLENT
MINORITY
CONFLICTS
(Gtlnther Bachler
ed., 1997).
174.
Gudmundur
Alfredsson,
Minority Rights
and
a
New
World
Order,
in
BROADENING
THE
FRONTIERS
OF
HUMAN
RIGHTS,
ESSAYS
IN
HONOUR
OF
ASBJORN
EIDE,
55,
60
(Donna
Gomien ed.,
1993).
175.
See
id.
at
72.
176.
Pentassuglia,
supra
note
125,
at
323.
[Vol.
24:201
HeinOnline -- 24 Conn. J. Int'l L. 228 2008-2009
DEALING
WITH
CLAIIS
OF
ETHNIC
MINORITIES
IN
INT'L
LAW
ethnic
states,
but
"to
live
together
with
mutual consideration
and
respect
for their
diversity,""'
thus
bringing
the
institutions
of
the
state
closer
to
ethnic
groups.
In sum, no general
right
to
autonomy
or
power-sharing
has
been established
in
international
law,
whether
or
not
in
connection
with
internal
self-determination.'
There
is
no
entitlement
to
autonomy
for
a
minority
group,
regardless
of
whether
it
is
in
the
context
of
self-determination
claims.'
79
Similarly,
there
is
no
international
legal
right
to
power-sharing
beyond
the participation
rights
of
Article
25
ICCPR
as
described
above.
However,
the recognition
of
a
right for
minorities
to
some
form
of
autonomy
or
power-sharing
under international
law
would
be
desirable.
International
institutions,
in
particular
in
Europe,
see
autonomy
and
power-sharing
as
policy options
for
states
within
the
broader
framework
of
participation
rights.
Within
these
limits,
autonomy
and
power-sharing
regimes
can be
seen
as
compatible
with the aforementioned
emerging view
of
internal
self-determination
of
all
people
living
within
state
boundaries
(as
opposed
to
the
defacto
majority).'
0
Recent
practice
relies
on
special
treaties
that
recognize
autonomy
and
power-
sharing
for
minorities.''
B.
Secession
and
Independence
The
most
difficult
claims
to
deal with
not
only
politically
but
also
legally
are
demands
of
secession
and
independence. Attachment
to
territory
is
particularly
powerful;
compromise
is
often looked
upon
as
an
act
of
treason:
8 2
As
Stefan
Wolff
points
out:
"[T]he
significance
of
territory
lies
primarily
in
its
symbolic
and
historical
importance
for
the
relevant
groups' ethnic
identities,
regardless
of
the
extent
to which claims
match
up
with
the
historical
record."'
83
Surrendering
territories
tend
to be
among the
most
disputed
actions
for
states
as
it
violates
their
right
to
territorial
integrity
and
potentially
weakens
their
power
and
role
in
the
international
order.
As
a
result,
secessionist
conflicts
tend
to
be
very violent
and
involve gross
human
rights
violations
such
as ethnic
cleansing
and
genocide.
Secession has
been
treated
favorably
by
international legal
institutions
only
in
a
limited
number
of
cases,
which
can
be
broken
down into
five
major
categories:'
84
177.
Bundesverfassung
der
Schweizerischen
Eidgenossenschaft
[BV],
Constitution
f~ederale
de
la
Confidrration
Suisse
[Cst]
[Constitution]
April
18,
1999,
SR
101,
RO
101,
Praambel
(Switz.),
available
at
http://www.admin.ch/ch/d/sr/101/index.html.
178.
See
generally
Patrick Thornberry,
Images
of
Autonomy
and
Individual
and
Collective Rights
in
International
Instruments
on
the
Rights
of
Minorities,
in
AUTONOMY:
APPLICATIONS
AND
IMPLICATIONS
97, 97
(Markku
Suksi
ed.,
1998).
179.
See
Douglas
Sanders,
Is
Autonomy
a
Principle
of
International
Law?,
55
NORD.
J.
INT'L.
L.
17,
17-21(1986).
180.
KRISTIN
HENRARD, DEVISING
AN
ADEQUATE
SYSTEM
OF
MINORITY
PROTECTION,
INDIVIDUAL
HUMAN RIGHTS, MINORITY
RIGHTS
AND
THE
RIGHT
TO
SELF-DETERMINATION
135
(2000).
181.
PENTASSUGLIA,
supra
note
53,
at
181-95.
182.
Lea
Brilmayer,
The
Institutional
and
Instrumental
Value
of
Nationalism,
in
INTERNATIONAL
LAW
AND
ETHNIC
CONFLICT,
supra
note
154,
at
58, 75.
183.
WOLFF,
supra
note
135,
at
47-8.
184.
Benedict
Kingsbury,
Claims
by
Non-State
Groups
in
International
Law,
in
INTERNATIONAL
LAW
AND
THE
RISE
OF
NATIONS,
supra
note
127,
at
161.
2009]
HeinOnline -- 24 Conn. J. Int'l L. 229 2008-2009
CONNECTICUT
JOURNAL
OF
INTL
LAW
1.
Mandated territories,
trust
territories,
and
territories treated
as
non
self-governing
under
Chapter
XI
of
the
UN
Charter;
2.
Distinct
political-geographical
entities
subject
to
carence
de
souverainetd'
s5
(the only
case
claimed
is
Bangladesh, although
this
case
is
not
easy
to interpret);
3.
Other territories
to
which
self-determination
is
applied
by
the
parties,
such
as
holding
a
referendum
to determine
the faith
of
the territory;
4. Highest
level
constituent
units
of
a
federal state
which
are
in the
process
of
being dissolved
by
agreement
among
all
or
the
majority
of
the units
(as
was
the
case
in
the
former
Yugoslavia);
5.
Formerly
independent
entities
reasserting
their
independence with
the
consent
of
the
state
where
its
incorporation
was
illegal
or
of
dubious
legality
(as
it
would
be
the
case
in
Tibet).
6
Most
secessionist
entities
have
received
minimal
international recognition,'
7
as
it
is
illustrated
by
the
case
of
the
Turkish
Republic
of
Northern Cyprus
or
the
separatist region
of
Transnistria within
Moldova.
The
recent
recognition
of
Kosovo's
independence
by
many
members
of
the
international
community,
however, will
lead
to
a
revived
debate
about
the
rules
and
procedures
of
international
acceptance
of
secessionist
units.'
8
The
issue
of
when secession
should
be
treated
favorably
by
international
law
leads
to
two
major
questions:
(1)
How
should
borders
be drawn when
allocating
territory?
and
(2)
Are there
any
special
circumstances
in
which
ethnic
groups
have
the
right
to
secede?
First,
at
the core
of
the
legal
debate
over territory
of
new states
or
autonomous
regions
lies
the concept
of
utipossidetis.
Originating
in
Roman law,
"utipossidetis
was
an
edict
that
the
praetor
would
issue
to
two
parties
claiming
ownership
of
[the
same]
property, granting
provisional
legal
possession
to
the
possessor
during
the
litigation."'
9
In
modern
international
law,
the
principle
of
uti
possidetis
provides
that
states
emerging
from decolonization
inherit
the colonial administrative borders
that
they
held at
the
time
of
independence.
0
'
Utipossidetis
determined
the shape
and
size of
185.
The
idea
of
a
carence
de souverainet9
was
mentioned
by
India
in
debates within
the
UN.
It
stated
that
as
a
matter
of
international
law
conditions
are
suitable for independence when
the
"mother
State
has
irrevocably
lost
the allegiance
of
such
a
large
section
of
its
people
... and
cannot bring
them
under
its
sway."
LEE
C.
BUCHHEIT,
SECESSION:
THE
LEGITIMACY OF
SELF-DETERMINATION
210
(1978).
186.
Kingsbury,
supra
note
184,
at
161.
187,
See
generally
ALLEN BUCHANAN, SECESSION:
THE
MORALITY
OF
POLITICAL
DIVORCE
FROM
FORT
SUMTER
TO
LITHUANIA
AND
QUEBEC
(1991).
188.
Posting
of
Chris
Borgen,
Kosovo
's
Declaration:
Analyzing the
Legal
Issues
of
Secession
and
Recognition,
to Opinio Juris, http://lists.powerblogs.com/pipermail/opiniojuris/2008-
February/002127.html
(Feb. 20,
2008,
11:39:17
EST).
189.
Steven
R.
Ratner,
Ethnic
Conflict
and
Territorial
Claims:
Where
Do
We
Draw
a
Line?,
in
INTERNATIONAL
LAW
AND
ETHNIC
CONFLICT,
supra
note
151,
at
112.
190.
UNGA
RES.
1514
(XV),
supra
note
117.
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DEALING
WITH CLAIMS
OF
ETHNIC
MiNORITIES
IN INT
LA
W
former
colonial territories
in
Latin America,
Africa,
and
Southeast
Asia.'
9
'
The
ICJ
has
stated
in
the case
regarding
the
Frontier
Dispute (Burkina
Faso
v.
Mali)
that
uti
possidetis
is
not
a
special
rule but
a
"general
principle"
and
a
"rule
of
general
scope"
in
the
case
of
decolonization.
2
There
are
three reasons to rely
upon
the
principle
of
uti
possidetis.
93
First,
the
risk
of
armed
conflict
decreases
because
uti
possidentis
provides
a
clear
result.
If
there
is
not
a
clear
rule
on
how
to
draw
borders,
all
borders
would
be
open
to
dispute.
Second,
the
conversion
of
internal,
administrative
borders to international
borders
is
as sensible as any
other approach
and
far
simpler."',
Borders
will
never
fit
the
structure
and
ethnic
divisions
of
society
perfectly
and
some
minorities
will
always
be
left
out.
Third,
uti
possidetis
is
a
well established
rule
of
international
law
that
still applies
to
the
disintegration
of
states
today,
which
was
confirmed
by
the
findings
of
the
Commission
in
the case
of
former
Yugoslavia.'
5
The
Commission
rejected
the
separatist
claims
of
groups
within Bosnia
and
Herzegovina
and
for
Kosovo
by
stating,
"whatever the circumstances,
the
right
to
self-determination
must not
involve
changes to
existing
frontiers
at the
time
of
independence
(uti
possidetis
juris)
except
where
the
States concerned
agree
otherwise.""
On the other
hand, there
are
many risks involved
if
the principle
of
uti
possidetis
is
viewed
as static and
absolute.
First,
a
rule
on
how to
break
up
states
can
create
a
hazard
regarding
territorial
integrity and finality
of
states.
Ethnic
separatists
might
argue
that
the
world
could
be divided
further
along more
administrative
lines.
97
Second,
dissolution
of
states
along
the
borders
defined
by
the
uti
possidetis
principle
may
bring
second
best
solutions,
leaving minorities
in
unsatisfying
conditions
"on
the
'wrong'
side
of
the
border"'
'
8
with
the
impossibility
of
making
even
small
adjustments
for
the benefit
of
minorities.
The principle
of
uti
possidetis
should
thus
form
only
a
starting
point
for
the
disposition
of
territories
and the
process
of
state-building,
not
as
a
fixed marker. The
international
community
and
the
countries
involved
must
see
if
there
is
a
significantly better
option
to
determine
the
borders
and
withhold
recognition
of
new entities
until
agreement
is
reached.'
9
In
fact, new
states
did
not
in all
cases
assume
their
former administrative
borders.
2
'
191.
See
Ratner,
supra
note
189,
at
113.
192.
Case Concerning
the
Frontier
Dispute
(Burk.
Faso
v.
Mali),
1986
I.C.J. Rep.
565
(Dec.
22).
193.
Steven
R.
Ratner,
Drawing
a
Better
Line:
Uti
Possidetis
and
the
Borders
of
New
States,
in
INTERNATIONAL
LAW
AND
THE
RISE
OF
NATIONS,
supra
note
127,
at
25
1.
194.
Id.
195.
Badinter
Commission,
Opinion
No.
2,
supra
note
89.
196.
Id.
197.
See
Hurst
Hannum,
Self-Determination,
Yugoslavia,
and
Europe:
Old
Wine
in
New
Bottles,
3
TRANSNAT'L
L.
&
CONTEMP.
PROBS.
57,
69
(1993).
This
is
the argument
made
by
the Abkhazians
in
Georgia
and
the Kosovo Albanians
in
Serbia.
198.
Ratner,
supra
note
189,
at
114.
199.
Id.
at
124-27.
200.
As
it
was
for
example
the case
for
Northern Cameroons
that decided
to
become
part
of
the
Republic
of
Nigeria
through
a
plebiscite
held
in
1961.
See
Northern
Cameroons (Cameroon
v.
U.K.),
1963
I.C.J.
21-25
(Dec.
2).
20091
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CONNECTICUT
JOURNAL
OF
INTL
LA
W
Some
colonies,
such
as
Rwanda and Burundi,
split
when gaining independence.
Other
states
accepted compromises departing
from
a
strict
application
of
the
principle,
1
which
was
most
recently
confirmed
by
the
partial
international
recognition
of
Kosovo's
independence.
Uti
possidetis
is
not
applied
as
a
uniform
practice,
even
though
the
UN
General
Assembly
and
the ICJ
tried
to
limit
the
scope
of
colonial
countries
allowed
to
determine
their
own
borders.
Third
is
the
acknowledgement
that
internal and
international borders
serve
totally
different purposes.
While
international
borders
serve
to
determine
the
limits
of
territorial
jurisdiction
of
a
state,
internal borders
are
drawn
to
govern
a
territory
as
a
whole and to
more
easily administer
a
country.
As
such,
the
drawing
of
borders internally
and
internationally
"seek
efficiency
and
simplicity"
in
both
cases,
"but
for
opposing purposes."
2
"
Fourth,
it
is
important
that
border provisions
are
implemented
by
peaceful
means.
The
prohibition
of
the
use
of
force
as
laid
down
in
Article
2,
paragraph
4
of
the
UN
Charter
does
not apply
to
internal
conflicts;
23
but
a
dispute
over
a
border
can
become
international
when
the
entities concerned
are
recognized
internationally.
This
is
confirmed
by
the
European
Community Declaration
on
the
Guidelines
on
the
Recognition
of
New
States
in
Eastern
Europe
and the
Soviet
Union,
which
recognizes
the
inviolability
of
all
frontiers
that
can
only be changed
by
peaceful
means and
by
common
agreement.
2 °
And
finally,
it
is
important
that
the people
concerned
have
a
voice
in
the whole
process.
There
needs
to
-be a form
of
consultation
such
as
a
referendum
or
conference
in
which
all
sub-state
groups
state
their
view.
Any
vote
taken
does not
have
to
be
binding,
but
can
be
viewed
as
a
legitimization
of
potential actions
by
state
and
non-state
actors.
20
5
In
sum, the
application
of
the
uti
possidetis
principle
is
the
easiest
short-term
method
for determining
the
borders
of
a
state.
In
the
long
run
however,
a
legal
approach
to
separatist
claims
of
ethnic groups should
also
include
justice,
legitimacy,
and
stability
considerations.
Any alternative
will
clearly
be
more
difficult
to
implement
than
the
status
quo,
which
may
lead
to
the
conclusion
that
borders
drawn
according
to
the
uti
possidetis
principle might mark
the
final
201.
Regarding
the
determination
of
the border
between
Honduras
and
Nicaragua
the
case
concerning Arbitral
Award made
by
the
King
of
Spain
on
23
December
1906
see
Arbitral
Award
Made
by
the
King
of
Spain on
23
December
1906
(Hond.
v.
Nicar.),
1960
I.C.J.
199-200
(Nov.
18).
The
ICJ
refused
to
regard
utipossidetis
as
overriding
compromise
given the
fact
that
the
court
can
consider other
factors.
Id.
at
215.
202.
Ratner,
supra
note
189,
at
116-17.
203.
UN
Charter
art.
2,
para.
4
("All
Members
shall
refrain
in
their international
relations
from the
threat
or
use
of
force
against
the
territorial integrity
or political
independence
of
any
state,
or
in
any
other
manner inconsistent
with
the
Purposes
of
the
United
Nations.").
204.
Declaration
on
the Guidelines
on
the
Recognition
of
New States
in
Eastern
Europe
and the
Soviet Union,
31
I.L.M.
1486-87
(1992);
see
also
Danilo
Tdirk,
Recognition
of
States:
A
Comment,
4
EUR.
J.
INT'L.
L.
66-71
(1993).
205.
See
ANTONIO
CASSESE, SELF-DETERMINATION
OF
PEOPLES:
A
LEGAL
REAPPRAISAL
190
(1995).
It
is
also
very common to
include
such
provisions
in
peace
agreements-both
the
destiny
of
Northern
Ireland
as
part
of
the
UK
or the
Republic
of
Ireland
and
the future
of
the
South Sudanese
are
dependent
on
a democratic
vote.
[Vol.
24:201
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DEALING
WITH
CLAIMS
OF
ETHNIC
MINORITIES
IN
INTL
LAW
outlines
of
the
state.
However,
neglecting
the
context
of
a
certain
situation
may
lead
to
greater dissatisfaction
of
people
concerned
and
as
a
result,
to
more conflict
and
separatism.
As
Steven Ratner
states:
"Only
a
direct
engagement
of
the
territorial
question,
with
all
its
complexities,
is
likely
to
control
the
breakup
of
states
in
a
manner consistent with human
dignity."
2
"
It
is
thus important
to
find
a
balance
between
international
legal
rule
and
common sense
in
order
to prevent
conflict
from
emerging.
The second question
of
whether
there
are
any special
circumstances
in
which
ethnic
groups
would
have
the
right
to
secede
must
again
be
answered
in
a
contextual way.
A
priori,
minorities
have
no
international right to secession.
Article
8,
paragraph
4,
of
the
Minority
Declaration
states
that:
"Nothing
in the
present Declaration
may
be
construed
as
permitting
any
activity
contrary
to
the
purposes
and
principles
of
the
United Nations, including
sovereign
equality,
territorial integrity
and
political
independence
of
States.
2
.
7
However,
there
are
two
cases
in
which
this
denial
of
a
right to
secession
for ethnic groups
can
be
contested:
first,
if
the
group
is
subject
to
serious suppression
and/or
human
rights violations
and second,
if
secession
is
an
expression
of
the
free
will
of
all
people
concerned.
First,
a
right for
ethnic
groups
to
secession
is
subject
to
discussion
if
gross
human
rights
violations
are
committed
against
them.
The
core
commitment
to the
protection
of
human
rights and democratic
principles
leads
to
the
assumption
of
the
right
to
secession
as
a
last
resort
when
these
rights
are
denied to members
of
ethnic
groups
in a
systematic
and
discriminatory manner.
28
This argument
is
not
entirely
new.
In
the Aland
Islands
case,
the
League
of
Nations
Commission
of
Jurists
denied that
minorities
have
the
right
to
secession
except
if
the
state
is
unable
or
unwilling
to
apply
and
enforce
guarantees
to fundamental
protection.
2
"
In
a
more
recent scholarly
debate,
Thomas Franck
pointed
out
that
if
a
minority
is
denied
the
preservation
of
its cultural
identity
and the
state
fails
to
promote
measures
for
political
and
social equality,
then repression
can
be viewed
as
a
form
of
colonialism
and the
group concerned has
the
right
to
external
self-determination."
'
Most
advocates
of
such
a
secessionist claim
base
their arguments
on
the
UN
Friendly
Relations
Declaration,
which
suggests
a
link
between territorial
integrity
and the
existence
of
a
government representing
all
people
living
within
the boundaries
of
the
state
in
compliance
with
the
principle
of
equal
rights and
the
self-determination
of
peoples.
1
'
The
1993
World
Conference
on
Human
Rights
in
Vienna
reaffirmed
this clause.
It
stated
that
an
ethnic
minority
group
that
is
subject
to
severe
discrimination
and denied
access
to
participation
in
the
government
has
the
right
to
206.
Ratner,
supra
note
189,
at
127.
207.
Minority
Declaration,
supra
note 50, at
art.
8,
para.
4.
208.
See
Diane
F.
Orentlicher,
International
Responses
to
Separatist
Claims:
Are
Democratic
Principles
Relevant?
in
SECESSION
AND
SELF-DETERMINATION
19,
25
(Stephen Macedo
&
Allen
Buchanan eds.,
2003).
209.
1
LEAGUE
OF
NATIONS
OFF.
J.,
Spec. Supp.
No.
3,
6
(1920).
210.
See
Thomas
M.
Franck,
Postmodern
Tribalism
and
the
Right
to
Secession,
in
PEOPLES
AND
MINORITIES
IN
INTERNATIONAL
LAw
3-27
(Catherine
Brlmann
et
al.
eds.,
1993);
see
also
Pentassuglia,
supra
note
125,
at
310-11.
211.
See
Friendly
Relations Declaration,
supra
note
118,
at
124.
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"correctional
secession",
meaning
that
the
state loses
its
entitlement
to
the
protection
of
its
territorial integrity."
'
However, other scholars
and
jurisprudence
contest
this view.
Donald
Horowitz
argues
that
the purpose
of
secession,
namely
to
create
an
ethnically
homogenous
state,
is
undermined
as
secession
does
not
reduce conflict,
violence,
or
minority
oppression
because
there will
be
minorities
within
the
new entity
as
well.
2 3
And
Antonio
Cassese
adds
that
the claim
of
ethnic
groups
to
secession
is
incompatible
with the
idea
of
the state
as
a
territorial
and
political
unity;
it
would
destroy
order
and
stability
within
states
and
lead
to
anarchy
in
the
international
order."
1
4
A
more
differentiated view
is
taken
by
the
Canadian
Supreme
Court
in
its
opinion
concerning
Reference
re
Secession
of
Quebec.
21
"
The
Court
referred
to
"exceptional
circumstances"
such
as
attacks
on
the
physical
existence
or
integrity
of
the
group
or
massive
violation
of
fundamental
rights
in
which
a
right
to
secession might
arise
under
the
international
right
of
peoples
to
self-
determination".
2
"
However,
the
Supreme
Court stated
"it remains unclear
whether
this
proposition
actually reflects
an
established international
law
standard."1
2
"
Even
if
there
were
circumstances sufficient enough
to
create
a
right
to
unilateral
secession
under
international
law,
the
Quebec
people
were
not considered
to be
subject
to
such
circumstances.
The
argument that
massive
human
rights
violations
should
be
a
reason
to
justify
secession
was
confirmed
by
the African
Commission
on
Human
and
Peoples' Rights
in
the case
Katangese
Peoples
Congress
v.
Zaire.
2
'
The
"oppression"
argument
was
used
by
the
Katangese
peoples
to
support
their
claim
for
independent
statehood
within
the
context
of
Article
20,
paragraph
1
of
the
Banjul Charter,
which
is
concerned with
the
right
to
self-determination."o
However,
the
Commission
found
that
"in
the
absence
of
concrete evidence
of
violations
of
human rights
to
the
point
that
the
territorial
integrity
of
Zaire
should
be called to
question..,
the
Commission
holds
the
view
that
Katanga
is
obliged
to
exercise
a
variant
of
self-determination
that
is
compatible
with
the
sovereignty
and
territorial
integrity
of
Zaire.
'22
'
Accordingly,
if
there
was
evidence for
gross human
212.
Vienna
Declaration
and
Programme
of
Action,
supra
note
96,
at
para.
2.
213.
See
Horowitz's
argument
in
Donald
L.
Horowitz,
A
Right
to
Secede?
in
SECESSION
AND
SELF-DETERMNATION,
supra
note
210,
at
50-76.
214.
See,
e.g.,
CASSESE,
supra
note
207,
at
123.
Cassese goes
so
far
as
to
"rule
out
any
right of
secession."
Id
215.
Reference
re
Secession
of
Quebec,
[
1998]
2
S.C.R.
217
(Can.),
paras.
112,
132-35.
216.
Id.
at
paras.
112,
132-35.
217.
Id.
at
para.
135.
218.
Id.
"The Quebec
people
is
not
the
victim
of
attacks
on
its
physical
existence
or
integrity, or
of
a
massive
violation
of
its
fundamental
rights.
The
Quebec
people
is
manifestly
not,
in
the
opinion
of
the
amicus
curiae,
an
oppressed
people."
Id
219.
Katangese
Peoples'
Congress
v.
Zaire,
African
Commission
on
Human
and
Peoples'
Rights,
Communication
No.
75/92
(1995),
ACHPR/LR/A/!
(1997).
220.
Banjul
Charter,
supra
note
54.
221.
See
Katangese
Peoples'
Congress
v.
Zaire,
supra
note
221,
at
para.
6.
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rights
violations,
the Commission
would
consider
calling
Zaire's
territorial
integrity into
question.
As
to
the
second
question
of
whether
the
right
to
secession
exists
if
it
expresses
the
free
will
of
the peoples
concerned, international
and national
law
provide
a
more
explicit
answer.
The
Canadian
Supreme
Court
stated
in
its
advisory
opinion in
Reference
re
Secession
of
Quebec
regarding
the
question
of
whether
Quebec
had
a
unilateral
right
to
secede
that
a
clear expression
of
the
democratic
will
of
Quebecers
to
secede,
for
example
through
a
referendum,
would
confer
legitimacy
to
their
request.2
However,
the
constitutional
commitment
to
federalism
and
democracy
of
Canada affects
unilateral
secessionist
claims:
The
federalism
principle,
in
conjunction
with
the
democratic principle,
dictates
that
the clear
repudiation
of
the existing constitutional
order
and
the
clear expression
of
the
desire
to
pursue
secession
by
the
population
of
a
province
would
give
rise
to
a
reciprocal
obligation
on all
parties
to
Confederation
to negotiate
constitutional
changes to
respond
to
that
desire.
223
And
the
Court
went
on:
The
corollary
of
a
legitimate
attempt
by
one
participant
in
Confederation
to
seek
an
amendment
to
the
Constitution
is
an
obligation
on
all
parties
to
come
to
the negotiating table.
The
clear repudiation
by
the
people
of
Quebec
of
the
existing
constitutional
order
would
confer legitimacy
on
demands
for
secession,
and
place
an
obligation
on
the
other provinces
and
the
federal
government
to
acknowledge
and
respect
that
expression
of
democratic will
by
entering into
negotiations
and
conducting
them
in
accordance
with
the
underlying
constitutional
principles
already
discussed.
24
Consequently,
the
Court denied
that
Quebec
could
unilaterally
secede
and
thereby dictate
the terms
of
secession
to
the
other parties
without
negotiations."
2
Such
negotiations
ideally
include three
goals:
incentives for
mutual
accommodation,
a
minimal
risk
of
deadlock,
and
constitutional
guarantees
to
protecting
and
empowering
minorities.
26
In
sum, the predominant
international
legal
view
of
the
right
of
any
group
within
a
state
to
secede,
regardless
of
the
claimed reasons
for secession,
is
that
secession
is
neither
authorized
nor
prohibited
by
international
law.
However,
the
222. Reference
re
Secession
of
Quebec,
supra
note
217,
at
para.
87.
223.
Id.
at
para.
88.
224.
Id.
225.
Id.
at
para.
91.
("We
hold
that
Quebec
could
not purport
to
invoke a
right
of
self-
determination
such
as to
dictate the terms
of
a
proposed
secession
to the
other
parties:
that
would
not
be
a
negotiation
at
all.").
226.
See
Orentlicher,
supra
note
210,
at
33.
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[.
lack
of
a
specific
prohibition
does
not
mean
that
secessionist
claims
are
generally
viewed
as
legitimate, given
the
emphasis
that
is
put
on
the territorial integrity
of
states
and
the
concept
of
the right
of
external
self-determination
attributed
to the
all
peoples
living
within
state
boundaries.
For
that reason,
the
matter
of
secession
is seen
as
part
of
the domestic
jurisdiction
of
the affected state.
The
decision
of
the
Canadian Supreme
Court
in
its
advisory
opinion
concerning
Reference
re
Secession
of
Quebec
will
be
trend-setting
for
the
interpretation
of
secessionist
claims
in
national
and
international
law.
If
however,
an
ethnic group
is
able
to
create
its
own
state
out
of
political
reasons
rather
than
a
legal
right
to secession,
the
international
community
is
open
to recognizing
the new
state
within
the
limitations
of
certain
conditions
such
as
uti
possidetis
and
the
promotion
and
protection
of
human and
minority
rights.
Kosovo's
declaration
of
independence
and
other
recent
developments
will
contribute
to
a
continuing
debate
over
the
right
of
ethnic groups
to
secession.
IV.
CONCLUSION
From
an
international
legal
point
of
view,
claims
by
ethnic
groups
pose serious
questions
touching upon
fundamental
principles
of
international
law.
The right
to
existence,
equality
and
non-discrimination
measures,
and
the
question
of
the
relationship
between
self-determination,
autonomy
and
power-sharing
arrangements,
and
secession
are
only
the
most
important
issues that arise.
The
conclusions
about
the
nature
of
international legal interpretation
of
claims
of
ethnic
groups
can
be
summarized
as
follows.
First,
the main international
legal
instruments
do
not
prescribe
any
particular
approach
when
dealing with
claims
of
ethnic
groups.
Different
approaches have
been
chosen
by
international
actors
and states
depending
on
the
size,
history,
and
location
(territorially
concentrated
v.
dispersed,
location
near
borders)
of
the ethnic
group
concerned.
It
is
important
to
note
that
minority
protection
is
a
human
rights
concern regardless
of
its
conflict potential.
There
is
a
lack
of
focus
regarding
the
standards and
guidelines
for implementation
of
minority
rights
at
the
state
level,
especially regarding
the development
of
procedures
and
capacity
of
national
courts."
7
The
international community
has
yet
to develop
a
coherent
political
and
legal
approach
to ethnic
conflict
and
claims
of
ethnic
groups.
Second,
active
protection
and
favorable
treatment
of
minorities raises
a
set
of
problematic
questions.
It remains
unclear
how
to
define
the
acceptable
level
of
difference
in
treatment
granted
to
group
members
in
comparison
to
the
rest
of
the
population or other
minorities,
especially
regarding
participation
rights
and
minority-benefiting
power-sharing
arrangements.
228
Furthermore,
certain
participation
regimes
(notably
autonomy)
set
obstacles to integrating
the
group
into
the larger
context
of
the
state,
thereby working against the
inclusive
aims pursued
227.
International
and
National
Action,
supra
note
91,
at
para.
14.
228.
See,
e.g., ICCPR,
supra
note
7,
at art.
25.
Note the
clause
on
access
to
public service
"on
general terms
of
equality."
Id.
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IN
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W
by
participation
rights.
International institutions, including
the UN
human rights
treaty-monitoring
bodies,
usually
concentrate
on
the
right
of
minorities
to
separate
institutions
or
treatment
as
opposed
to
policies
to
promote inclusion
and
integration.
The emphasis
on
empowerment
of
ethnic groups should
be
on
fostering
interethnic
accommodation
within
states
rather
than
partition
and
secession.
Internal
self-determination
should
be
understood
as
a
right
of
peoples
to
access
political
and economic
power.
It
should
be
used
as
a
synonym
of
democratization
and
power-sharing
rather
than
the
break-up
of
existing states.
2
29
This
is
not
to
say
that
secessionist
claims
should
not
be
considered
at all
-
the
international
community
has
to be
open
to
special
cases
such
as
decolonization,
the
disintegration
of
multicultural
federations,
the
break-up
of
oppressive
states,
or
partition
desired
by
the
population.
Ethnic
and
national
calls
for-de
facto
or
de
jure-independence
have
been
satisfied
in
numerous
cases
since
in
the
past
decades.
23
Therefore,
the
most
important task
is
to
identify issues
and scenarios
in
which
either
separatist
or
integrationist
approaches may
be
most
effective.
3
'
Third,
claims
involving
territory
(territorial autonomy
and
secession)
are
especially delicate
to
handle
in
international
law
and
prone
to
violent
ethnic
conflict. Territorial
claims
are
usually
all-or-nothing
matters
and
predominantly
difficult
to
resolve.
Ethnic
separation
as
policy
resolving
ethnic
conflict
can
encourage
the
break-up
of
states,
may
transform civil
war
to
an
international
war,
and
in
the
end,
might
do
nothing
to
resolve
ethnic
antagonism.
232
Furthermore,
international
law
does
generally not
recognize
a
right
to
secession
for
ethnic
groups.
Only
in
"exceptional
circumstances"
as
described
above
secession
might
be
a
feasible
option
under
international
law.
And
finally
and
most
importantly,
by
implementing minority
rights including
opportunities
for
ethnic
minorities
to
participate
in
national
decision-making
processes and
extensive protection
guarantees,
states and
societies
will
become
more stable and less
prone to
violent
conflict,
to the
benefit
of
both
majorities
and
minorities.
Peace
and
stability
are
the
necessary preconditions
for
an
effective
implementation
of
international
legal
provisions concerning
ethnic
minorities.
On
the
other
hand,
the
protection
and
empowerment
of
ethnic
groups
can
contribute
to
peace
and
stability. As
a
consequence,
political
and
legal
approaches
have
to
be
combined,
following
a
pragmatic
approach
of
mixing
law
and
politics
that
focuses
on
solving
the
problem
at
hand.
229.
Ayoob,
supra
note
126,
at
140.
230.
UN
practice illustrates
this
argument;
where
three
states
in
Eastern
Europe
stood
in
1989,
twenty-two
states
are
now members
of
the
UN.
In
addition,
the
international
community
has
recognized
the
independence
of
Eritrea
and
East
Timor
and
is
in
the
process
of
recognizing
the
independence
of
Kosovo.
231.
See
Integrative
Approaches,
supra
note
90.
232.
Chaim
Kaufmann,
Possible
and
Impossible Solutions
to
Ethnic Civil
Wars, 20
INT'L.
SEC.
136,
169-70(1996).
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