Self-determination as a universal human right

Human Rights Review

Volumn 7, Issue 4, 2006, Pages 5-18

  Holder, Cindy ^a  

^a NONE

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EID: 43249179798     PISSN: 15248879     EISSN: 18746306     Source Type: Journal    
DOI: 10.1007/s12142-006-1000-0     Document Type: Article

References (50)

1. Declaration on the Rights of Persons Belonging to National, Ethnic and Linguistic Minorities, Article 1.1, G.A. Resolution 47ll 35 of 18 December 1992; African [Banju] Charteron Human and Peoples'Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L,M. 58 (1982), entered into force 21 October 1986; Drafi United Nations Declaration on the Rights of Indigenous Peoples, U.N. Doc. EICN.4ISub.2/1194/56; Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna, 14-25 June 1993, U.N. Doc A/CONE 157l 24 (Part I); Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht Conference on the tenth anniversary of the Limburg Principles, Maastricht, The Netherlands, 22-26 January 1997.
2. For detailed discussion of what can be gained by avoiding prior definition of terms such as "peoples".
3. Jeff Corntassel, "Who Is Indigenous? 'Peoplehood' and Ethnonationalist Approaches to Rearticulating Indigenous Identity," Nationalism and Ethnic Politics 9:1 (Spring 2003), 75-100.
4. In this, the notion of a universal right is similar to Joseph Raz's concept of a core right: a right that can ground duties and is not itself grounded in another right.
5. Joseph Raz, The Morality of Freedom (Oxford: 1989), 168-169.
6. This distinction can be seen in practice in the differing positions adopted by the justices of the European Court of Human Rights in the case of Buckley v. United Kingdom. The complainant in that case was a Gypsy woman who had been denied permission to park her caravan on a piece of property which she owned on the grounds that using her land in this way "would detract from the rural and open quality of the landscape, contrary to the aim of the local development plan." The complainant argued that her rights to respect for private life, family, and home, and the fight to enjoy all Covenant rights without discrimination under the European Convention for the Protection of Human Rights and Fundamental Freedoms, had been violated.
7. The European Court's assessment of the complaint was divided. The majority opinion (six of nine) found that there had been no violation on the grounds that the decision as to whether the complainant's interests in parking her caravan on her property could be traded off against the municipality's interests in controlling local development lay within the authority of the national government. Each of the dissenting opinions rejected this. They took the complainant's Covenant rights to be fundamental or basic constraints on the kinds of trade-off between interests that state parties may make, and so argued that reviewing the appropriateness of the trade-offs that states decide to permit is precisely what the Court in its supervisory capacity is supposed to do. A difference in various judges' understanding of what kind of constraint the rights set out in the Covenant represent-universal or derivative--led to different conclusions regarding the scope of freedom in their decision-making that states should be allowed. Case of Buckley v. United Kingdom, European Court of Human Rights Reference Number 00000664, Reports of the European Court of Human Rights 1996(IV), 23/199515291615, 25 September 1996.
8. James Anaya, "A Contemporary Definition of the International Norm of Self-Determination," Transnational Law and Contemporary Problems 3 (1993): 131-164 and Indigenous Peoples in International Law (Oxford University Press: New York, 1996), Chapter 3;
9. Natan Lerner, Group Rights and Discrimination in International Law (M. Nijhoff Publishers: Dordrecht, The Netherlands, 1991), especially Chapter 1.
10. It is true that most of the international fora in which violations of human rights may be pursued as a breach of legal obligation only accept complaints on behalf of individual persons, either severally or in groups. However, this does not arise from the nature of the rights such fora consider, but rather from the specific mechanisms for processing complaints that the various human rights treaties have set up. For example, the HRC (the monitoring body for the International Covenant on Civil and Political Rights) and the CERD (the monitoring body for the International Convention on the Elimination of All Forms of Racial Discrimination) only accept complaints on behalf of individual persons, either sever ally or in groups.
11. However, the amendment of the European Convention on the Protection of Human Rights and Fundamental Freedoms to allow individuals and groups to bring complaints before the Court, and the Additional Protocol to the European Charter Providing for a System of Collective Complaints show that, as a pragmatic matter, complaints from groups can be brought within the mandate of instruments for the oversight and enforcement of human rights treaties if there is a will to do so.
12. Peter Jones, "Human Rights, Group Rights, and Peoples' Rights." Human Rights Quarterly (1999) 21: 80-107.
13. Malcolm Shaw, International Law, 4th ed., (Cambridge University Press: Cambridge, UK, 1997), 209-224.
14. Natan Lerner, Group Rights and Discrimination in International Law (M. Nijhoff Publishers: Dordrecht, The Netherlands, 1991);
15. Hurst Hannum, Autonomy, Sovereignty, and Self-Determination (University of Pennsylvania Press: Philadelphia, PA, 1990), especially Chapters 3 and 4;
16. Antonio Casesse, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press: Cambridge, UK, 1995), especially Chapter 5.
17. S. James Anaya, Indigenous Peoples in lnternationaI Law (Oxford University Press: New York, 1996), especially Chapters 3 and 4.
18. Will Kymlicka, Liberalism, Community and Culture (Clarendon Press: Oxford, UK, 1989).
19. Allen Buchanan "The RC Rights in the The Indigen Pe Rights" Transnational Law & Contemporary Problems 89: 3(1993), 104.
20. Justice, Legitimacy and Self-Determination: Moral Foundations for International Law. (Oxford University Press: Oxford, UK, 2003).
21. For example, in Lansmann v. Finland a group of Saami reindeer breeders argued that the Finnish government violated the fight to culture outlined in Article 27 of the International Covenant on Civil and Political Obligations (the ICCPR) by granting logging concessions in areas that reindeer normally use for winter grazing. The decision went against the complainants because the Committee found that the evidence did not permit them to conclude that the logging concessions constituted a pressing threat to the Saami's ability to herd reindeer.
22. The Finnish government has taken this to indicate that it need not change its policies with respect to logging in the area. Had the Saami been able to appeal to a right of self-determination, their claim to a say in the distribution of logging concessions would have been easier to establish empirically. Lansman v. Finland, Communication No. 511/1992 and Lansman et al v. Finland, Communication No. 671/1995, U.N. Doc. CCPR/C/58/D/67111995 (1996).
23. It is worth noting here that the core cases for a human fight to self-determination are ones in which states and substate groups disagree over which is the appropriate level for decisionmaking. Insofar as individuals have complaints in cases where the states and substate groups agree about the appropriate level for decision-making, the issue is likely to be not so much whether the level at which a decision is made is appropriate but rather whether the decision is one that is permitted to a governing agency, regardless of the level at which they operate. For example, this was the case in Ballantyne v. Canada and Maclntyre v. Canada, in which complainants argued that language laws in Quebec restricting their ability to display commercial signs in English violated their rights to freedom of expression under Article 19 of the ICCPR.
24. The complainants did not argue that the province did not have the fight to legislate restrictions because it was not the proper level at which such decisions should be made; they argued that governments ought not to be permitted to make such decisions. See Maclntyre v. Canada, HRC, Communication No. 385/1989: Canada, 5 May 1993 U.N. Doe CCPR/C/471D/38511989; Ballantyne v Canada, HRC, Communication No. 359/1989: Canada, 5 May 1993 U.N. Doc CCPR/C/47/D/35911989.
25. Historically there seems to be some evidence that the creation of strong, centralized power is a catalyst to vilification and repression of minorities.
26. In Buckley v. United Kingdom, for example, the state party successfully argued that the decision to interfere with a Gypsy complainant's right to culture (by forbidding her to park a caravan on her land) ought to be left to the state's discretion because it involved a trade-off between comparable interests (the complainant's interest in culture and the interest of local residents in an unobstructed countryside). See Case of Buckley v. United Kingdom, European Court of Human Rights Reference Number 00000664, Reports of the European Court of Human Rights 1996(IV), 23/1995/529/615, 25 September 1996, especially at B.14 (1), E.2 (74-84).
27. For an interesting discussion of indigenous peoples' claims as a challenge to this kind of statistic conception of rights see Richard Falk, "The Rights of Peoples (In Particular Indigenous Peoples)" in The Rights of Peoples, James Crawford, ed (Clarendon Press: Oxford, UK, 1992), 17-37.
28. This is the interpretation of self-determination endorsed by Malcolm Shaw (see Malcolm Shaw, International Law, 4ed (Cambridge University Press: Cambridge, UK, 1997) at 181-182: the right of self-determination is a right of nation-states to maintain the independence of their state, and a right of populations within colonially governed territories to independence.
29. In fact, this reflects both a very conservative view of the international legal conventions governing the terms "peoples" and "self-determination" and a very generous view of the political and legal regimes governing indigenous communities in most parts of the world. For example, it is not at all clear, given the legal and administrative regimes that govern indigenous peoples in Canada, the United States, New Zealand, and Australia, that restricting the term "peoples" to populations within a colonized or occupied territory would rule out treating indigenous groups as peoples.
30. Using the term "peoples" to refer to minority communities generally and "self-determination" to include claims short of full statehood is not a big departure from existing international practice. For example, the increasing importance of international human rights law has established individual persons as subjects of international law in addition to states. And regardless of whether they count as colonized populations, there is a widespread international legal practice of describing indigenous groupings as "peoples.".
31. Ian Brownlie, Principles of Public International Law, 5ed. (Oxford University Press: Oxford, UK, 1998), Chapter XXV; Malcolm Shaw, op cit at 182-184.
32. The issue is not whether treating self-determination as a human right is a proper use of the terms "peoples" and "self-determination" (a use that players within the system can recognize), it's whether it is a good use of those terms (a use that players within the system should recognize).
33. Of course, to say that a right to self-determination need not imply a right to set up an independent state does not mean that self-determination does not imply such a right in many cases. It might turn out that the realities of negotiating with a modern state are such that it must be in principle possible for a group to claim a state of its own for that group to successfully negotiate any measure of autonomy. If this is true, then the (basic) right of self-determination will imply a (derivative) right to set up an independent state. Or it might turn out that the specific circumstances and history of many groups is such that having the option of establishing an independent state is necessary for them to successfully negotiate any measure of autonomy. In this case the universal right of self-determination will often imply a particular claim to an independent state. There is also a third possibility: that the right to an independent state is implied by something apart from or in addition to the right to self-determination, such as the right to equality before the law.
34. S. James Anaya, Indigenous Peoples in International Law (Oxford University Press: 1998), pp 80-82.
35. For example, the United Nations 1970 Declaration on Friendly Relations seems to rule out an unconditional fight to unilateral secession. See United Nations, Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, General Assembly resolution 2625, 24 October 1970. For a good general discussion of international norms governing unilateral secession.
36. Supreme Court of Canada, Reference re secession of Quebec [ 1998] 184 R.C.S. 217. For a good discussion of international norms governing unilateral secession in relation to indigenous self determination.
37. S.James Anaya, Indigenous Peoples in International Law, Chapter 3.
38. This was the case in the early days of the Russia-Chechnya conflict, where it was not clear whether the Chechens were after secession tout court or rather the fight to negotiate their relationship with the USSR successor state on terms similar to those enjoyed by autonomous republics such as Georgia. For a good discussion of the Chechen case.
39. Gail Lapidus "Contested Sovereignty," International Security 23:1 (Summer 1998): 5-49.
40. Hurst Hannum, Autonomy, sovereignty and self-determination: the accommodation of conflicting rights (University of Pennsylvania Press: Philadelphia, PA 1996), Chapters 1-2.
41. Van Brownoie, "Rights of Peoples in International Law in The Rights of Peoples", James Crawford, ed. (Clarendon Press: Oxford, UK, 1992) at 6.
42. For a discussion of the difficulties faced by non-state groups in international law.
43. Benedict Kingsbury, "Claims by Non-State Groups in International Law," Cornell International Law Journal 25 (1992) 482-513.
44. This is particularly apparent in the way rights-based approaches are often characterized by contrasting them with utilitarian or communitarian views.
45. Jack Donnelly, The Concept of Human Rights (New York: St. Martin's Press, 1985), especially Chapter 4; Rhoda Howard, Human Rights and the Search for Community (Westview: 1995).
46. For a detailed discussion of the South African and Southern Rhodesia cases as milestones in the elaboration of international norms regarding internal self-determination see Antonio Cassesse, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press: Cambridge, UK, 1995), Chapter 5.
47. Inter-American Commission, Report on the Situation of Human Rights in Brazil (1996), Chapter VI; Report on the Situation of Human Rights in Ecuador (1996), Chapter IX, especially "The Impact of Development Activities"; Report on the Situation of Human Rights in Colombia (1999), Chapter X, especially section F "Megaprojects and their Impact on Indigenous Lands and Cultures".
48. Uma Narayan, "Minds of Their Own: Choices, Autonomy, Cultural Practices, and Other Women" in A Mind of One's Own: Feminist Essays on Reason and Objective, 2 "a ed., L. Antony and C. Witt, eds. (Westview Press: Boulder, CO, 2002), 418-432.
49. For example, in Canada and the United States, policies regarding the removal of indigenous children to residential schools and non-indigenous adoptive families (which in themselves constituted violations of a number of human rights) were driven by a desire to end the existence of independently functioning indigenous communities. Similarly, the motivation for attempts by many state legislatures in the United States to eliminate Indian gaming by re-writing state gambling laws is a desire to curb the independent political and economic power that some of communities which operate gaming facilities have been able to develop, and to divert some of the economic revenue that such communities generate into state coffers for the benefit of nonindigenous citizens.
50. This is in large part why treaty-monitoring bodies such as the CERD, the HRC and the Inter- American Commission regularly demand that state parties include information on the status and treatment of communities as well as individuals in their periodic reports on the implementation of their treaty obligations and why organizations such as the ILO, UNESCO, and the OAS in the Protocol of San Salvador include collectivities as well as individual persons as potential victims of human rights violations.