|The Courier N° 140 - July - Aug 1993 - Dossier: National Minorities - Country Reports: Dominica, Mozambique (EC Courier, 1993, 96 p.)|
|Dossier: National minorities|
A brief survey of the sources and instruments of international law reveals very little in the way of specific protection for minority communities. However, there are various international norms of more general application which could be invoked in protecting minorities. There are also potentially conflicting rules which might be construed as unhelpful to their cause. In this short article, we describe some of the more important norms in this area.
The limited provision for minorities in international law is reflected in the absence of a widely agreed definition of the term 'minority' for legal purposes. One possible definition was advanced by Jules Deschenes, a Canadian member of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. He proposed the following:
'A group of citizens of a State, constituting a numerical minority and in a nondominant position in that State, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim is to achieve equality with the majority in fact and in law,'
The work of the Commission to which Mr Deschenes belonged did not lead to any legally binding international instrument but his proposal is useful in containing the defining elements of minority 'status" which most people would recognise and accept.
The UN Civil and Political Rights Covenant
Neither the UN Charter nor the Universal Declaration of Human Rights mentions minorities per se, despite attempts at the drafting stage to include a reference in the latter instrument. However, the United Nations Covenant on Civil and Political Rights does refer to minorities at Article 27, which says:
'In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. '
Most countries adhere to this Convention and are obliged, as a result, to guarantee the aforementioned rights in respect of the minorities in question. It is noteworthy that this provision does not place any positive obligations on states as regards the treatment of minorities (for example, guaranteeing state education in significant minority languages). It merely requires a policy of benign non-interference
UN General Assembly Declaration on Minorities
More recently, the UN General Assembly has made a notable addition to the international normative thinking on this subject. At its session in December 1992, the Assembly adoped a Declaration on Minorities which lays down, in much greater detail, the behaviour expected of governments in dealing with their minority communities (see the 'Meeting Point' interview with Alan Phillips of the Minority Rights Group).
Article 1 of the Declaration goes somewhat further than Article 27 of the Civil and Political Rights Covenant in 'requiring' states not only to protect the existence and identity of various minorities (ethnic, cultural, religious and linguistic) but to encourage conditions for the promotion of that identity. This implies a positive commitment to action on the part of states. Reference is also made in the Declaration to the full participation of minorities in the progress and development of their country, although this provision is couched in the l language of exhortation rather than l obligation ('States should consider appropriate measures'). For those engaged in the execution of development programmes, it is stated that due regard must be given to the interests of minorities.
In the context of UN General Assembly resolutions, the reference made above to 'normative thinking' is important. Such resolutions do not have the force of law and the 'obligations' which they contain are, in reality, little more than recommendations or appeals for action. Despite this, they are sometimes regarded as legally 'persuasive', particularly when they have been adopted unanimously or by an overwhelming majority. Custom is still one of the principal sources of international law and, while a UN resolution may not in itself be legally binding, it may contribute to the development of customary law in the longer term to the extent that it reflects the consensus view of the state actors in the international legal system.
Moving away from specific reference to minorities, the general corpus of international law contains some elements that are helpful to oppressed minorities and others that may hinder their efforts to achieve fair treatment.
On the positive side, human rights law, as reflected in the UN Declaration, the two international covenants (on civil and political rights and on economic, social and cultural rights) and in various regional human rights conventions, offer protection in a variety of ways. Basic rights such as those pertaining to liberty, free expression, family life and so on are extended to all people but they are likely to have a particular relevance for minority groups whose position in society may be vulnerable. Of the various international human rights instruments, those established on a regional basis have a particular significance because they normally include institutional arrangements designed, in one way or another, to ensure state compliance. The most powerful of these is the European Convention, which was the first major international treaty to allow individuals a right of legal challenge. Traditionally, only states (and nowadays, international organisations) enjoy legal personality under international law. The African Charter on Human and People's Rights, which came into force in October 1986, also allows a form of individual complaint but this is hedged with various restrictions. Uniquely, the African Charter also makes reference to 'peoples' rights'. These were included at the insistence of left-leaning governments when the text was being negotiated and they include the rights to equality, free disposal of wealth and natural resources, economic, social and cultural development, and a satisfactory environment. These essentially collective rights are to be found alongside the traditional individual ones and it is not difficult to understand why they were included, when one considers the continent's colonial past. It is difficult, nevertheless, to see how they could be meaningfully enforced. When a person is imprisoned without trial, it is normally possible to establish that a violation has occurred and that someone (usually in authority) was responsible. How does one decide when the collective right to a healthy environment has been breached and who does one blame when this can be established?
Even if the rules on peoples' rights could be enforced, it is doubtful whether they are of interest to minorities. The term 'peoples' almost certainly refers to the populations of existing states as a whole, and not to any particular ethnic or other group living within their borders.
On the other hand, it is worth pointing out that a number of countries have incorporated the individual rights set out in the various international conventions into their own domestic laws. Often these are constitutionally entrenched. As a result, the possibility of direct legal redress, using local courts, has been extended.
The principle of self-determination offers further scope for the protection of certain minorities. This principle, at least arguably, now forms part of customary international law but its limitations need to be recognised. In the first place, it is extremely difficult for minorities within existing state boundaries to invoke it. Few states are likely to support norms which might lead to their own dismemberment and 'self-determination' has tended, therefore, only to be applied to 'colonial' situations. The result, anomalous though it may seem, is that while the former colonies of Africa had a right to self-determination, on the basis of boundaries put in place by the colonial powers, individual ethnic groups or peoples within those boundaries have no such right. Nor, it would appear, do dispossessed 'nationalities' such as the Kurds, unless and until the central authorities of the states where they live decide otherwise.
This leads us to the Negative' aspects of international law, at least from the point of view of minorities who are unhappy with their current situation vis-a-vis the central state. Despite the development of international rules regarding human rights and the rights of peoples to determine their own future, the more long-standing principles of sovereignty and territorial integrity still tend to be given precedence in practice.
One of the effects of the sovereignty principle is that governments are extremely reluctant to become involved in events taking place entirely within the borders of another state. The rationale for inhibiting interference in the internal affairs of another country is difficult to criticise. Without it, the strong could impose their will on the weak, as states have notoriously done throughout history. The territorial integrity concept is clearly related to this, acting as a legal brake upon those who would seek territorial acquisition by conquest.
For minorities, the negative implications of these rules are clear. When oppressed, they will find it difficult to obtain international support. While foreign politicians may sympathise with their plight, they will hesitate to disturb the existing international order.
In fact, recent developments suggest that the 'absolute' nature of the sovereignty principle may be under threat. Various events, including the UN intervention in Somalia, Cambodia and Bosnia and the assistance rendered to the Kurds through 'safe' areas inside Iraq, point to a less rigid application of the rule. Indeed, there is a growing, though by no means unanimous, view that the international community now does have a right of 'humanitarian intervention', which may obviously be of help to certain minorities in extreme situations. However, the extent of the change should not be overstated. Bosnia perhaps illustrates best the continuing power of the territorial integrity reflex. With the disintegration of Yugoslavia, the old internal state boundaries suddenly seem to have acquired an immutable character in international law. It may be that boundary redrawing would not solve the intractable problems of Bosnia-Herzegovina but it is significant that no one in the international community is even suggesting it. Yet there must be few who seriously believe that this unfortunate country, even with highly autonomous Muslim, Serb and Croat cantons, can now be salvaged as a viable political entity.
A further concern is that the international community, in the shape of the United Nations, does not always appear to act consistently. In some countries, internal strife and the suppression of minorities pass almost without comment. In others, the UN is highly active. Given that 'equality before the law' is supposed to be a fundamental juridical principle, this type of inconsistency does little to enhance the reputation of the international legal order.
Problems in implementation
The sovereignty principle can also serve to undermine the efficacy of human rights rules. It is all very well for countries to subscribe to conventions on this subject, but the evidence suggests that many fall short when it comes to implementation. The various human rights instruments are full of grand ideals, but they are ideals which many ordinary people would have difficulty identifying in the behaviour of their governments.
In fact, the most serious weakness of the international system as a whole lies in the absence of mechanisms for ensuring implementation. Very few international instruments provide individuals with the opportunity to obtain judicial redress and very few states are willing to go beyond voicing disapproval when the rules are broken-as they frequently are. In these circumstances, minorities would be illadvised to place undue reliance on the international system when their 'rights' are threatened. Having said this, it is better to have a flawed system than no system at all. Most governments are sensitive to criticism in the same way that ordinary people are. With one or two notable exceptions, they take no pleasure in being ostracised and this helps to ensure a higher level of compliance than might otherwise be the case. It is obviously impossible to quantify, but it is almost certainly true that the human condition - and by extension, the condition of minority communities across the world-has benefited from the progressive development of an international legal framework. Flawed it may be, but it is the best that is on offer.