Sunday, September 10, 2006

The Relevance of Jurisprudence

The study of jurisprudence not only gives a renewed sense of meaning to the term ‘law’, but it also guides the student in understanding the intricacies of life. To the learned reader, the word ‘Jurisprudence’ results in an explosion of thoughts…

What we can safely hope to learn:

• The Definition of Law


The understanding and application of law, as it will be observed, is not a simple process of learning and regurgitating legal norms and rules. “He who cannot draw on three thousand years is living from hand to mouth” said the Goethe, the philosopher. Similarly without knowing the history and present of evolution of law, one will never be able to claim to understand it and attempt to direct its course properly.

• Law and Morality

What are the origins of law? Should law be based on moral principles? If yes, where do these moral values emanate from? Is there a universal concept of morality/goodness that can form the basis of these laws? Is there a need for homogenization of morality in the world? The variety of cultures existing in this world make it very difficult to maintain a common standard of good and evil, moral and immoral. If law should not be made dependent on morality, does this legitimize for example, a rule that all blue eyed babies should be murdered? Should this law be followed and respected?

• The Scope of Law

What is Law’s social engineering potential? Does it guide people’s behaviour or do certain groups of persons get together at various points in time and mould the laws depending on other factors such as the economic situation? Karl Marx for example, explains in Das Capita how factory legislation was purposely tampered with to suit the needs of the bourgeois capitalists in order to further their economic aims.

• Law & Ideology

Is law based on ideologies such as equality, justice, freedom, fraternity etc? Are these ideologies important for the success of peace and order and respect for the law? Are these ideologies existent to suit the needs of certain people at any point in time?

• Natural law & Positivism

The popular Latin adage is “Lex injusta non est lex” ( an unjust law is not a law). Hence if law is not based on natural law, that is norms of a moral nature, then are we obliged to follow them? What about the army men under the tyrannical rule of the Nazis Reichstaag? Should they have obeyed the rule knowing it is unjust? (ref Nazi grudge informer cases)

• Teleological & Deontological approach to Law

Should law be directly influenced by the practical realities of life and the policies(teleological approach) of the government or should it be a ‘higher’ form of law by reflecting principles(deontological approach). Eg putting life of a person in a vegetative stage on life support systems to an end? Flood gates argument






References

1. Freeman, M D A., Lloyd’s Introduction to Jurisprudence, 7th ed. Sweet and Maxwell: UK
2. The dialogues of Plato
3. Sophie’s World by Jostein Gaarder

Tuesday, August 08, 2006

Collective Rights Vs Individual Rights

UNIVERSITY OF MALAYA
FACULTY OF LAW
ISSUES ON MINORITIES AND INDIGENOUS PEOPLES’ RIGHTS



Do you think that the concept of ‘collective rights’ is a realistic or workable basis for both minorities and indigenous peoples to claim their rights?


Humeirah F.
LGA050031
Semester 2
1st February 2006


Glossary

1. Introduction
2. Collective rights Vs Group rights
3. What are collective rights?
4. The existence of Collective Rights in the current International framework
(i) UN
(ii) ILO
(iii) UNESCO
(iv) Council of Europe
(v) OSCE
(vi) OAU
(vii) OAS
5. Advantages of being recognized through the concept of collective rights
a. Protection of Indigenous rights
b. The experience in the past
c. Cultural relativism
d. Legal Right Vs Moral Right to Collective Rights
e. Realization of systems such as ‘Consociationalism’
6. Disadvantages of recognizing those rights as collective rights
a. Why preserve cultural identity after all?
b. The lack of standing of minorities and indigenous groups
c. The problem of definition
d. The various strands of meaning of “Collective Rights”
e. The well-defined and all-encompassing nature of the principle of non-discrimination
f. The façade of Politics in Law
g. The classification of collective rights as “third generation rights”
7. Other possible solutions
a. Radical Reform
b. The marriage/partnership of individual rights and collective rights
c. Understanding that Collective Rights and Human Rights are distinct
8. Collective Rights in Practice
9. Conclusion






























Things Are Revealed By Their Opposites

Mathnawi I: 1121-1149

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

There isn't light (at) night, and (so) you don't see
colors; therefore (light) is made evident by the opposite of
light.

(First) is the seeing of light, then the sight of color.
And you know this instantly by (awareness of) the contrary
of light.

God created pain and (yearning) sorrow for this sake:
so that happiness may occur by (means of) this opposite.

Thus, hidden things are revealed by (their) opposites.
(And) since God has no opposite, He is hidden.

……












1. Introduction




White is revealed by black, goodness is revealed by evil, cold is revealed by warmth and vice versa. The above phrases extracted from Book 1 written by the great Sufi Master, Jallaludin Rumi, are not just mere elaborations that provide a better insight on philosophical issues and the Divine Truth. They also convey a better understanding of simple rules of international law.

The existence of minority and indigenous groups is an inevitable consequence of the collateral existence of majority groups under the “Majority rule” system ascribed generally by democratic governments. This is popularly acknowledged and has been endorsed in defining a “minority” by the Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1985 by Mr J. Deschenes,

“A group of citizens of a state, constituting a numerical minority and in a non-dominant 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 ubiquitous existence of minorities under the system would have posed no problem had it not resulted in the perpetual suppression of those voices among the loud, audible uproars from the pharynges of the majority population – a process succinctly described by John Stuart Mill in his “Essay on Liberty” as the “tyranny of the majority”.

The Majority rule is patently the main culprit in the realization of minority rights. Thus in the enumeration of the Millennium Development Goals (MDGs), in a paper presented by the Minority Rights group, it is highlighted that the objectives that must be achieved by 2015 will exert pressure on governments and other related authorities to cater for the needs of the majority who will influence aggregate results more perceptibly. Minority interests will further be neglected as a consequence .

Decades of experience with other systems of government, such as communism and imperialism have proved beyond any doubt that they are inherently fallacious- at least considerably more than the democratic form of governance. Thus we have had to make do with the latter system, while at the same time, setting up effective safeguards to counter its inevitable drawbacks.

One of these is of course, that in upholding the interests of the majority in a country, the remnant are often neglected or shunned as unimportant in the interests of politics. Often however, at the base of most outbreaks of war and internal conflicts have been the trials and tribulations of minority groups who, discontented with the policy orientations of the government in power, have responded furiously to disdain, discrimination, indifference, marginalization and neglect.

Thus in order to curb the deleterious effects of the “Majority rule” system, the United Nations emerged in 1945, after the Second World War, with a format that can be summarized into two main purposes:

(1) To restore the philosophical ingredients of natural law into man-made law, thus setting the normative foundation of all past, contemporary and future enactments of law
(2) To devise a concept of ‘rights’ that empowered marginal groups formed as result of the majority rule, through a focus on the right to equality and non-discrimination. This was also a means to curb the powers of the “State” by diminishing the existence of absolute autonomy and sovereignty, which was the basis of the rise of Hitler and his authoritarian government.

I will seek to explore the second limb of the above proposition in my exposé. At this point it must be noted that the focus of the International Bill of Human Rights was on purely liberalist principles that advocated a system of individual rights as opposed to collective rights.

Today however, collective rights seem to have infiltrated the legal foundation of rights again. Thus on one hand exist the new concept of ‘third generation rights’ that aims to empower minority groups and indigenous peoples. Proponents of this contention claim that the rights of these people are upheld more effectively since this formula focuses on their unique plight. On the other hand, advocates of individual human rights contend that the body of human rights known as first generation and second generation rights are sufficient to solve the problems of discrimination faced by these groups and therefore that the whole reliance on so-called third generation rights is superfluous. A third school of thought claims the symbiotic effectiveness of the two philosophies of rights that could restore the rights of marginalized groups to their merited position.

However before exploring the veracity of the above contentions, I will seek to differentiate between the concept of collective rights as against group rights concluding that the latter are better formulated to ensure protection of minority as well as indigenous groups.

2. Collective rights Vs Group rights

Getting into the semantic debates over conceptual differences between “collective” rights and “group” rights did not come about by pure chance. It is contended that the distinction was purposely made to confuse minority groups and indigenous peoples about whether or not they had a locus standi before the international community to vindicate their rights, especially their right to self-determination. Elevating the status of minorities within a State was, and is believed to incite further public disapprobation of political activities which could breed the desire of secession by such collectivities . Moreover the existence of a minority that is self-conscious of itself as a marginalized collectivity and has power through unity of its members is often seen as a threat to the sovereignty of a State. In the words of Richard Thompson “After all, how can one expect states to give explicit voice to a right that might result in their dissolution or fragmentation?”

One approach which can be adopted to understand the difference between group rights and collective rights is to evaluate the aim of the rights in question. Group rights, although of course ultimately aimed at the members making up the entity, are framed to protect the group primarily. Group rights can only exist if a group is identified first. Thus the protection against the crime of genocide can only make sense if members of the group are identified together and thus having the same ‘genos’ (greek for “race”). At the end of the day in terms of individual rights, the right to life of the individual is being protected. The Conventions on the Crime and Punishment of Genocide and the International Convention on the Suppression and Punishment of the Crime of Apartheid refer explicitly to racial groups, among others. On the other hand, collective rights are rights exercised by the individuals collectively and benefit individuals directly more than group rights do. Hence the right to form trade unions is possible only if people get together but it is more for the sake of individual benefit than group benefit. The formation of a collectivity only aids in the realization of the individual rights. Thus collectivities do not possess such characteristics as culture, language that define their entity and make them unique and special.

Group rights are sometimes confounded with peoples’ rights and the latter are subsumed in the definition of the former. But this distinction has been made and has been thus an instrument of denying the rights of peoples further. The main difference between the two set of rights can best be understood by analyzing the policy of the Chinese government, explained in detail below. The State Nationalities Commission set up to identify minorities and give them ‘special’ rights over the majority Han population of China was a positive attempt by the government to show its consideration for minorities. But while a set of homogenous policies were laid out to protect the rights of minorities, nothing was done to promote their unique identity, differentiable even from other minority groups they had been collectively identified with. Thus their rights as ‘peoples’ was not recognized. Similarly wherever group rights are mentioned, indigenous peoples themselves, fail to come under the category because of the further distinction made.

For the purpose of this paper, group rights and collective rights will henceforth be used inter-changeably.

3. What are collective rights?

The basis of individual rights espoused by the International Human Rights Bill is the result of stretching the imagination into the realms of assessing the needs of a ‘generic individual’. This exercise can be likened to ‘going behind the veil of ignorance’ of John Rawls in ‘A theory of Justice’ to evaluate the worth of that generic individual. Divorcing the normal individual from all other external influences as his religious, ethnic, cultural, economic affiliations among others thus enabled a formulation of basic human rights.

It remains however, that the above is an exercise feasible only in theory and convenient for the purpose of drafting an instrument applicable universally. In practice it is impossible to isolate the individual from all the external influences of his/her environment. This is where the concept of collective rights comes in handy.

Individuals all belong to at least one or more groups. These can be based either on their gender, ethnicity, religion, culture or economic class, among others. Some of these collectives are formed by choice while others by tradition. Where there is absolute freedom of religion, groups will be formed by choice whereas prejudices surrounding gender issues are established by tradition. The historical existence of such classification can be traced to the Ottoman and Roman Empires. In the former, society was defined by the millet system by which every group was distinguished by its religious affiliation. Thus members of that society had different rights depending on the rules dictated by the religion they followed. In the Roman Empire, the Jews had the status of religio licita and thus enjoyed specific rights such as holiday on Sabbath day and the freedom not to recognize the divinity of the then Emperor.

Under the Enlightenment era, there was a divergence from the practice of instituting the concept of collective rights in the political system. Instead in the millet system was discarded in 1856 and replaced by a constitution guaranteeing equal rights for all. Similarly in Europe the movement for “Jewish Emancipation” advocated a set of universal standards applicable to every citizen regardless of any differences in religion, among others.

The carnage of World War II led to a renewed interest in the concept of collective rights as jurists and philosophers mulled over the question of whether groups had a right to ensure continued existence with the collateral purpose of transmitting their values, norms and culture.

It was finally recognized then that these groups could never be protected from larger groups under the Majority rule system. These groups needed to be given special protection from being totally wiped out from the surface of the earth as the Jews nearly were during the Holocaust.

Another interesting approach in understanding the concept of collective rights is to refer to the UN employment application policy . In the form available online to all applicants, information on race and religion are excluded based of course on UN policy of non-discrimination. Other questions relating to gender (male/female) and social status (divorced/single/married) are however asked. Of course an obvious conclusion would be that the first question (on gender) is asked because it is pertinent in the allocation of jobs in the context of humanitarian work: a lady cannot possibly be sent to killing fields that reek with forlorn army men. Social status would of course be necessary when assessing the financial needs of the job applicant. It is therefore conclusive that gender and marital status therefore are characteristics that cannot be separated from the individual as they define his appurtenance to well-defined ‘groups’. The next question to be asked however is whether the question of race and religion is then irrelevant after all.

Religion of a job applicant would be important in the sense that it would denote quite a few of his/her preferences/dislikes that can be attributed in general to people from certain religious backgrounds. Thus a Muslim for example, would be better off in a place where ‘halal’ food would be available. On the other hand, a Hindu would be more inclined to pick a work place where he can easily practice vegetarianism. Similarly race would be important because a black man could not possibly be a Human rights officer and go to a country dominated by white people who need his services. Although it can be argued that avoiding these questions of race and religion is also an attempt to suppress the existing prejudices, the fact remains that these prejudices are to remain for a long time to come and the UN’s objective in dispatching say a black man to a predominantly white country would be defeated by not the incompetence of the person, but his race. Thus whether gender and marital status on one hand, or race and religion on the other, such characteristics will always remain the labels whether positive or negative of an individual. The concept of ‘Collective rights’ acknowledges this while the concept of non-discrimination is clearly limited in its spectrum of considerations.

Minorities and other collectivities carry with them these labels that require recognition for their identity to be upheld. Under the policy of non-discrimination, these ‘differences’/’labels’ are likely to be assimilated by the characteristics of the dominant groups.

4. The existence of Collective Rights in the current International framework

(i) UN

The debate over the advantages/disadvantages of having a framework of collective rights has not remained merely at a conceptual level. Various international instruments provide clear examples of how collective rights are openly acknowledged and accepted as possible methods of solving the human plight. Art 1(2) of the Charter of the United Nations states that one of the purposes of the United Nations is to “to develop friendly relations among nation states based on respect for the principle of equal rights and self-determination of peoples…” Art 55 states: “With a view to the creation of conditions of stability and well-being which are necessary for the principle of equal rights and self-determinations of peoples…”

The Convention on Prevention and Punishment of the Crime of Genocide, concluded one day before the adoption of the Universal Declaration of Human Rights, provides protection from genocide to all persons and groups living within a State, as defined by national, ethnic, racial and religious criteria. Genocide in Art 2(1) is defined as “consis(ting) of any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”

The Convention on the Elimination of All Forms of Racial Discrimination also refers to collective rights. Art 1(4) provides that ‘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 to 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.’ Art 2(2) provides that ‘State parties shall, when the circumstances so warrant, take in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.” These two articles provide for the possibility of preferential treatment of both racial and ethnic groups and of individual members of those groups.

The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights are also relevant. The first article of the two covenants is similar and reads: “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ Paragraph 2 reads: ‘All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based on the principle of mutual benefit, and international law..” Two other identical articles, art 25 and 47 are closely related to art 1(2). Of course art 27 of the ICCPR contains the obvious provision for the protection of minorities, although it has been agreed that it refers to members and not groups themselves, making it theoretically an individual right.

The UN Declaration on the Right to Development, the right is formulated as a right to which both individuals and peoples are entitled. For example, Art 1(1) provides that the ‘right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.”

The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities enunciates the essence of art 27 of ICCPR in that it refers to ‘persons belonging to national or ethnic, religious and linguistic minorities…”. A collective element may be found however in art 1(1) where mentions is made of the specific identity of minorities when it is stated: “ States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.”

The Vienna Declaration and Programme of Action, in 1993, reaffirms various rights of collectivities. Art 1(2) reaffirms the rights of peoples to self determination. Art 1(9) contains a minority provision in the spirit of art 27 ICCPR, Art 1(20) deals with the rights of indigenous people: “Considering the importance of the promotion and protection of the rights of indigenous people (…), States should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination and recognzize the value and diversity of their distinct identities, cultures and social organization.”

The final human rights instrument that may be mentioned in the present context is the Draft Declaration on Indigenous Rights in 1993 which lays down a wide variety of rights to which indigenous peoples as such are entitled: the right to self-determination and the right to autonomy and self government (Art 1); the collective right to exist in peace and security as distinct peoples (art 5); the collective and individual right to maintain and develop their distinct ethnic and cultural characteristics and identities (Art 6); the collective and individual right to be protected from cultural genocide (Art 7) the right to revive and practice their cultural identity and traditions (Art 8), etc

(ii) ILO

The International Labour Organisation, on its side, has also contributed to the legislation on collective rights. The two conventions, the first being Convention 107 which closed for ratification following the introduction of the second one (Convention 169) showed a remarkable, positive approach to the fate of such collectivities. The Convention 169 concerning Indigenous and Tribal Peoples in Independent countries, which entered into force in 1991, is not based on the notion that indigenous peoples should integrate. The Convention moreover, grants rights to indigenous peoples themselves. Among these provisions are art 2(1), art 2(2)(b), art 5, art 7(1), art 16(3) . Art 4(2) is particularly enlightening in revealing the new stand taken towards indigenous peoples in that this article provides that preferential treatment of indigenous peoples is desirable only if and in so far as this does not conflict with the wishes of the peoples themselves: ‘Such special measures shall not be contrary to the freely expressed wishes of the peoples concerned.”

(iii) UNESCO

The UNESCO has adopted two relevant declarations on the topic of collective rights. The UNESCO Declaration of the Principles of International Cultural Cooperation and the Declaration on Race and Racial Prejudice were adopted in 1966 and 1978 respectively. In the former Declaration, Art 1 and 5 are of key importance. Art 1 reads: Every people has the right and the duty to develop its culture.” Art 5 provides: ‘Cultural cooperation is a right and a duty for all peoples and all nations.” The 1978 Declaration revolves around the rights of groups to be different. The explanatory report to this Declaration interprets this right as ‘involving the possibility for individuals and groups to lead their lives without needing to abandon their essential identity.” Art 1(2) states that “All individuals and groups have the right to be different, to consider themselves as different and to be regarded as such” , among other provisions protecting group interests ( Art 5(1), art 6(1)).

(iv) Council of Europe

On a regional basis, the relevant instruments of the Council of Europe, OSCE, OAU and OAS shall be explored in turn. The Council of Europe in its European Convention for the Protection of Human Rights and Fundamental Freedoms exceptionally, does not refer to collective rights. Rather a general provision in art 14 has a non-discrimination tone to it as it mentions that ‘the enjoyment of the rights and freedoms set forth in this Convention shall be secured without any discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a minority, property, birth or other status.”

(v) OSCE

The Organisation on Security and Cooperation in Europe (OSCE) in the Concluding Document of the Vienna Meeting adopted in 1989 includes Principles 16 and 19 to describe the freedom of religion and the right to preserve the identity of minority groups: 16a: “ Participating States will take effective measures to prevent and eliminate discrimination against individuals or communities, on the grounds of religion or belief; 16d: ‘respect the right of religious communities to..’; 16i ‘ respect the right of individual believers and communities of believers to acquire, possess and use sacred…’: and 19: “they will protect and create the conditions for the promotion of ethnic, cultural, linguistic and religious identity of national minorities on their own territory. They will respect the free exercise of rights by persons belonging to such minorities and ensure their full equality with others.” It must however be pointed out that these provisions have been criticized to contain the same flaws as art 27 of ICCPR, being more individualistic in nature. This is because no mention is made of the OSCE States’ protection of the right to exist or the right to preserve group identity. This trend towards the protection of both minorities and individuals is also identifiable in the Document of the Copenhagen Meeting of the Conference on the Human Dimension, concluded in 1990. The protection of individual members of minority groups is enshrined in Principle 32: ‘Persons belonging to national minorities have the right to freely express, preserve and develop their ethnic, cultural, linguistic or religious identity and to maintain and develop their culture in all its aspects, free of any attempts at assimilation against their will.’ The protection of minorities as such is illustrated in by Principle 33: The Participating States will protect the ethnic, cultural, linguistic or religious identity of national minorities on their territory and create conditions for the promotion of that identity.”

This mixed approach is also perceptible in the Charter of Paris for a New Europe, concluded in 1990. A provision in the section on human rights contains the following passage: “We affirm that the ethnic, cultural, linguistic and religious identity of national minorities will be protected and that persons belonging to national minorities have the right to express, preserve and develop that identity without any discrimination and in full equality before the law.”

The final OSCE document is the Report on the CSCE Meeting of Experts on National Minorities drawn up in 1991. This also reflects the mixed approach: rights are granted to members of minority groups, and the OSCE States actively undertake to protect and promote the specific identity of minority groups.

(vi) OAU

The major Human Rights instrument created by the Organisation of African Unity (OAU) is the African Charter on Human and Peoples’ Rights. The special feature of this instrument is that it focuses much on third generation rights or solidarity rights. ( Art 21 to 24). Art 19 and 20 of the African Charter contain a provision on the equality of peoples and the rather broadly formulated right of peoples to self-determination.

(vii) OAS

The first instrument for the protection of human rights by the Organization of American States (OAS) is the Charter of the Organization of American States, and is fairly state-oriented. It tends to speak of rights of States rather than those of peoples. A second instrument is the American Convention on Human Rights, concluded in 1969 and is rather ‘person-oriented’. None of the provisions of the Convention refers to members of minority groups, let alone to the rights of minority groups as such. At most protection of such collectivities can be derived from the non-discrimination provision in art 24 which reads: “ All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.”

Having identified relevant international and regional instruments with overtones of collective rights, it is important to note that whether these are interpreted as such and therefore guide policy-making depends greatly on their construction by the Advisory Committees. Their existence therefore does not warrant the ‘collective rights’ approach in their implementation.

4. Advantages of being recognized through the concept of collective rights

Advocates of collective rights contend that an individual cannot be divorced from all his/her group affiliations. But other than this, other arguments are put forward to support a collective rights approach to interpreting laws. These will be expounded below.



a. Protection of Indigenous rights

The critical analysis of the limits of an individual human rights protection is applicable not only to the problems of ethnic minorities, but also to those indigenous peoples. In the report on indigenous peoples of the Advisory Committee , it has been stated that not all problems of indigenous peoples can be solved by means of existing human rights instruments, even if these instruments were to function optimally. It may even be argued that the granting of individual human rights may exacerbate rather than solve the problems of indigenous peoples. This is because integration of members of indigenous groups into the dominant society would deny them preservation of their unique identity. This is what explains the paradigm shift in approach in the ILO Conventions from 107 to 169, as explained earlier.

b. The experience in the past

It would be tantamount to painting an inchoate picture of our political and legal achievements in the past if we did not pinpoint the success of the minority system. Minority schools were established in many countries; neglected groups were rehabilitated; forced assimilation was resisted; and representatives of democratic minority groups could play a role in the political affairs of countries such as Czechoslovakia and Latvia. The PCIJ ocntibuted to some important decisions of importance even today. The authors of “Were the minorities treaties a failure?” concluded that “Despite all the faults and shortcomings, some inherent and others external, the experience of twenty years does not justify the condemnation of a most remarkable experiment; an experiment that could not but share the fate of the political organism in which it lived – the League of Nations itself .

c. Cultural relativism

The need to develop a concept of collective rights is important as against the mere reliance on non-discrimination when it is realized that the principle of discrimination operates against a certain universal standard. This universal standard is often the reason why cultures have been belittled, castigated, denigrated, excoriated, ostracized, shunned and labeled as ‘backward’, ‘traditional’, ‘barbaric’. One example would be the practice of circumcision which is central to many African tribes such as the Gikuyu and the Masai. This practice which is often considered as torturous by western standards is central and indispensable to the identity of the certain collectivities. The rule of non-discrimination is always understood if compared against a standard which is the generic West. Thus advocates of liberalist concepts object to group rights because these, while preserving the identity of the collectivity, blatantly deride fundamental rights such as the freedom from torture, inhuman and degrading treatment, among others. Infanticide, female circumcision, widow burning, although central in many communities across the world, would be encouraged by granting group rights. Granting group rights, conditional on the limitation of certain practices would of course encourage the assimilationist trend, thereby defeating the purpose of group rights in the first place. Recognition of group rights is however essential for the preservation of cultural diversity, however egregious the implications prove to be.

In response to the above conflict between liberal and illiberal cultures, Kymlicka has this to say:

“ The aim of liberals should not be to dissolve non-liberal nations, but rather to seek to liberalize them. This may not always be possible… To assume that any culture is inherently illiberal, and incapable of reform, is ethnocentric and ahistorical. Moreover, the liberality of a culture is a matter of degree. All cultures have illiberal standards, just as few cultures are entirely repressive of individual liberty. Indeed, it is quite misleading to talk of “liberal” and “illiberal” cultures, as if the world was divided into completely liberal societies on the one hand, and completely illiberal ones on the other. The task of liberal reforms remains incomplete in every society, and it would be ludicrous to say that only purely liberal nations should be respected, while others should be assimilated.”

In other words, one way of interpreting Kymlicka’s approach is to balance the competing interests of group rightists and individual rightists whereby there is inevitably something to be gained and lost as well. Granting group rights may not necessarily imply the direct encouragement of violation of human rights. The benefit in preserving the group itself may outweigh the maleficence of subsequent violations of individual rights. This reasoning is motivated principally on utilitarian grounds.

On further thought, it is somewhat ironical that the above solution to solve the problems of “minorities” is created in fact by the application of the same philosophy (majority rule) originally.

d. Legal Right Vs Moral Right to Collective Rights

Another interesting way of dealing with the moral rightness/wrongness of recognizing collective rights of entities that could possibly violate basic human rights explained above is this: Liberal philosophers draw a distinction between moral and legal rights and argue that the former do not rest on the latter and vice versa . This positivist point of view then frames the basis for granting group rights to collectivities regardless of what use they will make of it. Thus a corporation for example has the right to invest in say, the shares of other companies other than its own. This is a legal right and it can be exercised regardless of what granting this power to it entails in moral terms. Thus whether it exercises the power in its interest or not is a matter that does not affect the legal right to do so. Similarly whether a collectivity is entitled to a legal group right must be demarcated from the consequences that follow in terms of its moral group right. This is why, as Richard Thompson explains, a tribal council may be instituted to cater for the needs of indigenous people under its control but whether it is corrupt or takes the wrong decisions by abusing the position as trustee of rights, does not justify not granting that group right to them in the first place.

Thus as concluded in the above section, the possibility of violation of individual rights does not give the legitimate right to deny collectivities of group rights no matter how they will use/abuse them.

e. Realization of systems such as ‘Consociationalism’

Consociationalism is a method of conflict resolution built on the idea that a democracy fractured by opposing political parties can stabilize itself by appointing a small group of intellectuals to govern the people. Another way to put it, according to Rupert Tylor, is that "consociationalism advances a system of consensual multi-ethnic power sharing as opposed to majority rule ."

Consociationalism is built on the construct of group rights whereby collectivities within a country are recognized and leaders representing the various entities are chosen by their members as trustees of their rights. These leaders then take up voting power in proportion to the population they represent, within the government. Community laws are thus properly made reflecting the needs of the individual collectivities. In its heyday consociationalism operated in the Netherlands thereby tending effectively to the needs of its 4 groups:namely the Calvinist, Socialist, Liberal and Catholics.

On the other hand this system of governance has also has devastating effects in countries like Cyprus which comprised Turks and Greeks represented 4:3 in the Governmental structure. Due to the characteristic of proportional representation, the Greeks were constantly outvoted by the Turks. The President who had to be Turkish and the Vice President who had to be a Greek were perpetually in conflict with each other over the policies they desired to implement and these internal conflicts inevitably led to the breakdown of the state .


5. Disadvantages of recognizing those rights as collective rights

Various arguments have been forwarded to contend that collective rights should be regarded with caution. A first criticism would be that if we define human rights as rights to which human beings are entitled, those rights can, by definition, never be ascribed to collectivities as such. A second criticism is that it is unclear who is entitled to exercise the right, who is to represent the collectivity and who is the corresponding duty-bearer. This could lead to an erosion of traditional human rights standards. Thirdly, there is the fear that the proclamation of collective rights may be politically abused in order to justify the violations of individual human rights. These propositions among others, will be explored below.


a. Why preserve cultural identity after all?

Many writers have criticized the romantic glorification of a particular group’s culture. Thus Galenkamp puts forward the question: “What to do, for example, with a group identity based on a fascist or racist ideology? It has been opined that the fact that a group has a specific cultural identity does not automatically imply that this identity is worth preserving. Moreover the recognition of the collective right to preserve one's cultural identity may mean that individuals become locked up within their culture. In other words, individual members of the group favouring change, become trapped in an immutable and static culture and their rights as individuals are likely to become violated. From this also springs the argument that collective rights may go in blatant opposition to individual human rights where for example a member of a group may be forced to practice a community rite (eg circumcision, wife burning etc) being thus deprived of his/her individual freedom to give it up. This argument will be further explained and refuted under the sub-heading of “Cultural relativism” below.


b. The lack of standing of indigenous and minority groups.

While majority groups have the State to act for them in their interests and even represent them in international law issues, peoples and minorities have no pillar to lean against. One way would be to make them subjects of international la but that would then lead to exclusion of other groups thus further encouraging segregation.

States have not relinquished authority in the field of human rights to international actors. This represents a big obstacle in securing collective rights. One example worth citing is the First Pptional Protocol to the ICCPR. As pointed out earlier, the strongest procedure available at the global level is extraordinarily weak. The most the Human Rights Committee can do is determine whether there has been any violation of the Covenant. That’s as far as its enforcement can go. Even European regional human rights regime is very weak as it can only stop trade or aid, next best being (sometimes self interested) charges of illegitimate intervention.
It has also be highlighted further above, the role that international organizations and NGO’s play in upholding the rights of these collectivities. But it can be argued that Public international law and international organizations are products of states, not of a cosmopolitan world community. They are instruments of, not alternatives to states. Multinational corporations and various transnational private and professional associations are not real challengers or alternatives to states, either in the hearts and minds of those who are directly involved with them or in the functions and services they provide’ hence no such international community.

There exists an important challenge in that there is already an atmosphere of distrust between minority group and the state government which, ironically is relied upon to endorse the collective rights and ensure their concretization.

c. No definition of minorities and peoples.

It must also be added that the definition of minorities is not settled. Thus how then is it possible to go to the next stage of giving them any legal status before the international community to vindicate their rights? Thus the famous saying “I know a minority when I see one” by Max Van der Stoel is of relevance here in the light of the following: if asked to name minorities a broad list can be drawn: thus we can have
Minorities based on religion (Jews/other), ethnicity (Albanians/other), Gender (male/female discrimination), Intellectual ability (elites/ Masses), social status ( Brahmins/Pariah), Economic class ( Bourgeois/the proletariat), age ( youth/elders), Physical ability (abled/disabled). At what point and in what categories are these forms of discrimination acceptable? What about women and gays? These collectivities that are defined by gender and sexual orientation cannot claim their “group” rights whether in a group right perspective. The concept of minority then should not be confined to just numerical inferiority but should extend to any group that is ‘nondominant’.

One argument forwarded to restrict the definition of minorities to ethnic, cultural and linguistic minorities is that gays and women for example are not ‘natural’ in the sense that they cannot form self-sustaining communities devoid of their counterparts being straights and men. McDonald defines ‘natural’ groups ‘peoples with a language, history, culture, or set of beliefs in common .” Despite this, the definition of minorities whether forwarded by Capotorti or other UN Special Rapporteurs fails to include other communities such as those ‘economic’ (falling in the category of the poor) or political minorities who may or may not be self-sustaining.


In the context of indigenous communities, Art 1(1) of the ICCPR states: “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Peoples” here has been restricted to native groups in Africa and Asia under European colonization and Art 1(1) was viewed as international support for postcolonial independence movements in these states . This definition was not in the least intended to encompass indigenous groups such as the native peoples of Australia, Canada, the United States, or Latin America, nor to ethnic minorities in ‘non colonial’ states such as China or India. Thus this right has been viewed as inapplicable in plural as opposed to colonial states .


The Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1977 appointed Francesco Capotorti to come up with an acceptable definition of “Minority”. After a careful and thorough study he came up with the following:

“ a group which is numerically inferior to the rest of the population of a State and in a non-dominant position, whose members possess ethnic, religious or linguistic characteristics which differ from those of the rest of the population and who, if only implicitly, maintain a sense of solidarity, directed towards preserving their culture, traditions religion or language.”

However acceptance of the above definition, although apparently clear and complete, was hard to obtain at the end. This was observable through the numerous protests and discussions over the definition. The Finnish Government for instance accepted that “ any ethnic, religious or linguistic group differed from the majority” of a given society constituted a minority. The Greek government emphasized on ‘distinctive qualities’ of the group for it to be categorized as a minority. It also stressed on the recognition of the group by the government or the international community as a minority. For the Dutch government, the differences had to be ‘sufficiently big’ and beyond ‘gradual transitions and minor gradations.’ Some governments rejected the numerical factor as important in classifying the group as a minority while others pointed out the necessity of the group being compact and that the relation between the majority and the minority should be a contributing factor in the assessment.

Due to the manifold arguments over the definition, settling on one was abandoned. One of the proposals to that effect was to use the expression “national, ethnic, religious, cultural, linguistic and tribal groups”. Once again, the inadequacy of even such as widely-drafted definition was made evident by pointing out that migrant workers and indigenous populations were still excluded from the category.

Another contentious issue that has cropped up over the years is the approach by courts to art 27, granting the right to identity of collectivities. In one case, the applicant who was formerly brought to the French Courts applied under art 27 to assert his right to speak Britan, his mother tongue in court instead of French. His petition was rejected based on the fact that art 27 had to be construed at two separate levels: one being the entitlement and the other being as the non-discrimination provision. This meant that the applicant necessarily fell in the category of a linguistic minority but as to whether he had a claim in court to uphold his right to speak his language depended on whether he was subjected to negative discrimination and thus prohibited from asserting that right. In this case, it was clear that the applicant could speak French as required by the French courts and thus he was not being negatively discriminated against in any way.

While there exists this entitlement versus discrimination restriction, there also exists the dichotomy of whether art 27 should be construed to impose a negative duty of mere protection of minorities by the state or impose on the latter a positive obligation to promote the culture, language and other unique aspects of the collectivity. Thus, in a case enunciated by Richard Thompson whereby a Chinese parents’ organization, representing children who attended two Toronto elementary schools were 95% of the students were Chinese, petitioned the Toronto City School Board to institute Chinese studies curriculum that would take half an hour every day. Their motivated sprung from the fact that their children would over time develop a negative attitude towards their Chinese consisting of its intricate values and principles. The parents argued that in the process of adapting to Anglo Canadian society, their children would benefit from the program and prevent them from facing the problem of feeling like marginal personalities later in life. Thus by instituting minimal instruction in Chinese culture, the Canadian community would benefit in the long run. This assessment of ‘harm risk’ analysis was rejected by the court as an insufficient ground to impose a positive obligation on the school to institute the Chinese program. Moreover it was stated that the Canada respected the rights of any ethnic group to conduct religious, cultural and linguistic education within the private sphere and that would make up for the ‘so called lacking in the school program. In other words group rights, although sometimes well-defined and recognized, unfortunately end with a big full stop at noninterference from the state rather than imposing a positive obligation on them to lead to the promotion and advancement of identity rights.

d. The various strands of meaning of “Collective Rights”

If the subjects of collective rights had to be identified, they would be as follows: the world community at large, Third World countries, nations, peoples and several kinds of minorities and indigenous peoples. The choice of subject is inextricably linked to the content of the right vindicated. Thus in the case of a healthy environment, the legatee is the world community at large. In the case of the right to development, it is the Third World States. And finally in the case of the right to preserve one’s cultural identity, it is a cluster of subjects consisting of nations, peoples, minorities and indigenous peoples. These three different lines of thinking may be referred to as, respectively, the ‘globalist’, ‘Third Worldist” and nationalist’ approach to collective rights.

What happens is that these rights sometimes are in conflict with one another. One good example would be that given by Stavenhagen who seen from an indigenous rights’ perspective, criticizes the predominant nationalist interpretation of collective rights from the perspective of the right to development. He notes that aboriginal peoples must be regarded as the victims of the so-called right to development, which States attach to themselves and with which they’re destroying any number of peoples within the borders of their own territory. Protecting the right to development and the right of indigenous peoples is in obvious conflict here. In other words, the third-worldist and the nationalist views are conflicting within the same sphere of understanding collective rights.

Thus the confusion often exists when we speak of collective rights: do we mean the rights of the world community at large, the rights of Third World States or the rights of communities within a State? This has indeed made the concept of collective rights vulnerable to justifiable criticisms.

e. The well-defined and all-encompassing nature of the principle of non-discrimination

The existence of well-defined meaning of the term non-discrimination in international law renders it superfluous to turn to any other solution such as the understanding of collective rights, to safeguard the interests of minority groups. Thus as Glazer once noted: ‘If Brown could not be segregated on the basis of race, neither could White, nor Wilkens, nor any black.’
The existence of several widely ratified instruments that forbid discrimination on grounds of group-membership reveal that this rule is well established in constitutional and international law. Racial discrimination is already considered as jus cogens, a peremptory rule of international law from which no derogation is possible. It also signifies that it can only be modified by a rule of equivalent character. To reinforce the notion of how deeply ingrained this notion is Brownlie includes racial discrimination as the least controversial type of jus cogens norm.


f. The façade of Politics in Law

State policies have played a peripheral role in denying collective rights to entities while asserting the contrary. Just as Turkey (what about the Kurds), France ( and the Algerians?) and Rwanda (of all countries…) have blatantly claimed in official statements that there are no minorities in their countries, thus avoiding the issue that their oppressed minorities require international recognition. Similarly politics can also manipulate the recognition and granting of status to minorities at various stages during the process. China is one example. The establishment of the State Nationalities Commission to identify ethnic groups within the Chinese State and give them special group rights attracted 400 applications, of which only 55 were officially selected. These groups are given benefits that include exemptions from one-child policy, sponsorship of traditional festivals and observances, the provisions of tax reductions and low interest loans, the writing of indigenous languages and histories, and the establishment of at least quasi-autonomous organs of administration ( counties, prefectures and provinces). However while all this has a soothing rhythmic resonance to it, it means nothing to deafened ears indifferent to unending deceptive promises. Behind the veil of ignorance is the crude reality that the leaders of these small organizations are actually politically motivated and the mere puppets of the government in power. By grouping these collectivities together and according them basic rights, nothing is really being furthered in terms of giving them the opportunity to assert their unique identities. In fact this is a cunning tactic to homogenize the minorities instead of encouraging diversity by standardizing the ‘special rights’ accorded to them. Grouping together the indigenous Va ( Ka’wa) with the Tibetan nationality and the Hui (Chinese Muslim) minority appears outrageously unreasonable.

g. The classification of collective rights as “third generation rights”

The categorization and hierarchisation of civil, political, social, economic and third generation rights relegates the importance of the severity of the problem in today’s world. Karel Vasak’s categorization is such that first generation rights are civil and political rights, second generation rights are economic, cultural and social rights while third generation rights are solidarity rights. For him, civil and political rights were based on the Western notion of rights characterized by a negative quality. Second generation rights on the other hand are based on the notion of equality rather than freedom and were introduced by socialist and communist countries. Pressure to formulate third generation rights came from Third World Countries. On this it should be noted that anyway there was no such logical distinction between what is known today as civil and political rights vis ā vis social and economic rights. As evidence, Locke’s second treatise of Government which is often treated as the first major statement of a fully developed natural rights approach to politics, recognizes three principal natural rights: life, liberty, and estates (property). Despite various suggestions to the contrary, the right to property is clearly an economic right. If control over wealth and the means of production is not an economic right, it is hard to imagine any economic rights at all. Going then on to American Declaration of Independence it lists ‘life, liberty and pursuit of happiness’. In actual practice the single most important and best protected right in the nineteenth century Europe and North America was the right to property.

As to second generation rights and their association with communism and socialism, this can also be rejected. For example in Anglo-American theory the demand for economic social and cultural rights for all can be traced back at least as far as Winstanley and the Diggers during the English Civil War to modern jurists such as Rawls and Dworkin.

The danger is that the metaphor of ‘third generation’ carries connotation of superiority and inferiority vis a vis other generations of rights. This is potentially dangerous as it undermines the importance of collective/solidarity rights.

Other than this, this illogical distinction by Vasak is blameworthy for the dichotomy existing today between collective and human rights. Such classification has led to the equation of ‘rights’ as ‘human rights’ per se, thereby excluding the acceptance of other rights (eg collective rights) in being beyond the scope of legitimate rights.


6. Other possible solutions

Proponents of either concepts are clearly divided on the benefit of the respective approaches. There exists however, certain ways of reconciling both schools of thought. These will be explored below.

a. Radical Reform

The whole practice of majority rule should be revised and replaced by something more just. Majoritarian rules will obviously lead to deprival of rights of minorities. Complaining about Minorities issues is tantamount to digging traps on the road wilfully and then later complaining that there aren’t sufficient doctors to deal with the growing number of cases at the hospital of people getting injured by falling into those traps. Very often the majority itself does not have say in many activities and decisions of the government so that the majority rule becomes just a political sham or façade disguising the true dictatorship of a government over its population. And furthermore, with respect to election and so called democratic practices of electing government by the will of the majority, the latter often do not know what is best for them as they are swayed easily by dogmatic ramblings of the eventually victorious political party.
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b. The marriage/partnership of individual rights and collective rights

Donnelly argues, for example that the ‘peoples’ right to self-determination is an unnecessary right on the grounds that in so far as societies respect individual rights, the right to self-determination is virtually guaranteed. Donnelly recognizes however, that this view is problematic with respect to certain cultures, particularly indigenous ones, which do not construct persons as autonomous individuals.

“It may be oversimplified caricature to say that in traditional societies individuals do not exist, but it is clear that in most if not all traditional societies persons are not defined principally as individuals. In a world in which persons are defined not as equal and autonomous individuals but rather as members of a group occupying particular social roles, individual human rights are of a dubious applicability. In fact, to introduce human rights – equal and inalienable rights of all individuals held against society as a whole – into most societies would be an act of violence’

However further on Donnelly contradicts himself when he says that “Human rights, however uncomfortably they fit with the traditional social structures of such communities, offer powerful protections for the rights and interests of aboriginal groups and traditional communities.”

One way of interpreting the above dichotomy is to reassert the need of individual rights as a means to an end rather than an end in itself. This means is to evoke international awareness of the need to uphold the rights of collectivities who may be assimilated, acculturated or even destroyed on the basis of inequality and discrimination. Once this is achieved, the focus should be then shifted onto acknowledging special rights of these collectivities that bear the features of “group rights” like promotion of culture, language, the right to be free from genocide, the right o form their own groups and associations; basically the right to uphold their identity as a group.

Prof Richard Thomson explains in his paper that a discussion of group rights and individual rights does not always have to lead to a conclusion that one ought to be relegated to the other. Thus he says:”…group rights, as they are conceived in both liberalism and international law are always and only rights relative to some other group, particularly the state.”

Group rights involve asserting the rights of one group against another which is usually the group of the majority. This can best be understood if note is taken of the fact that universal principles of law enshrined for example in the International Bill of Human Rights very often clash with municipal and state legislation whereby the latter are moulded to suit the needs of the domestic culture and practices. Similarly the domestic law of the state is framed to suit the needs of the majority over the minority and it is in this sense that group rights provide the necessary protection to marginalized entities. Thus, “ Collective rights neither trump nor supplant nor justify abuses of individual rights. They are rights in addition t individual rights that speak to certain group relationships.”

c. Understanding that Collective Rights and Human Rights are distinct

As explained above, under the subtitle “ Third generation rights”, it has been a popular belief that collective human rights are a contradiction in terminis because of their apparent conflict with human rights. However consideration of collective rights as a totally different set of rights with respect to human rights would solve many conceptual problems. Berting has convincingly argued that the concept of human rights is clad with modern connotations, mainly designed to protect individuals against the might of the State. Consequently, human rights are viewed to be individualistic, universalistic, unconditional and egalitarian. With respect to these four qualities, collective rights do not seem to fit will within the category f human rights.

First of all collective rights are not individualistic, but rights adapted to collectivities. Secondly, rather than universal integration, regardless of individual characteristics, collective rights focuses on the recognition of attachment to some community having specific, distinguishable characteristics. Thirdly the notion of collective rights can hardly be viewed to be as unconditional as human rights are generally considered to be due to the subjective nature of the former rights. They are thus conditional on certain characteristics that enable identification to particular collectivities. Last but not least, the egalitarian outlook of human rights is clearly different from that of collective rights which emphasizes on specific differences than abstract similarities .

A reconciliation of the polarized views on collective and individual rights is therefore possible is the former are viewed not as a sub-category of individual rights, as expounded by Karel Vasak’s classification, but as a separate category of rights existing specifically to alleviate the plight of indigenous groups and minorities, among others. It would seem to be unrealistic, with the present increasing number of laws spoken of on the subject of collective rights that have acquired de lege lata or at least de lege ferenda status.

7. Collective Rights in Practice

Now that the theoretical debate over the legitimacy of collective rights has been dealt with above, it is important to take note of the scope of these rights in practice. For the purpose of this exercise, this paper will limit itself to the discussion of right of petitions by organizations other than States themselves.

It must be noted that the groundwork on this question was already done in the Advisory Committee’s Report on Indigenous Peoples.

The First Optional Protocol of the ICCPR allows collective action to a very limited extent. As the Advisory Committee’s report on Indigenous Peoples already makes clear, the ICCPR is based on the right of individuals to submit petitions. It is therefore intended to deal with violations of individual rights. This means that the Human Rights Committee only considers individual petitions from victims. If a victim is physically incapable of personally submitting a petition, for instance in cases where an individual has disappeared, he or she can be represented by another natural persons, as long as that person has a ‘close family connection’. The Human Rights Committee has moreover ruled that organizations and associations are barred from submitting a petition. It has however been argued that this not mean that NGO’s cannot interpose for individuals as long as they can substantiate their representation .

However as noted in the Advisory Committee’s Report on Indigenous Peoples, recently there has been relaxation of the rules on the submission of communications by individuals under the Covenant, in the sense that in some cases groups of injured parties can also submit a communication. The Committee may even join some communications itself and this is particularly relevant in relation to the protection of the interests of minorities under art 27 for example. However it has also been noted that it is still necessary for that requirements of admissibility to be met by every individual petitioning together.

In sum, it still remains that only individual petitions or joint communications of victims are allowed under this provision. Collective action is still not legitimized whereby proceedings cannot be brought on behalf of anonymous individuals. Likewise, this procedural constraint applies to other UN Conventions such as the Convention of the Eliminations of All Forms of Racial Discrimination and the Convention against Torture and Other Cruel, Inhuman or Degrading Torture or Punishment. In these Conventions only ‘individuals or groups of individuals’ are entitled to submit petitions.

As to the famous ECOSOC resolution 1503 procedure, unlike the ICCPR, this procedure was not designed to make room for individual complaints, but to facilitate petitions regarding persistent gross violations of human rights. In this case a wide range of petitioners are qualified: ‘ Persons or groups of persons who are victims of the violations referred to, any person or group of persons who have direct and reliable knowledge of those violations, or NGOs acting in good faith (…) not resorting to politically motivated stands (…) and having direct and reliable knowledge of such violations.’ In short, under this procedure collective action is possible.

As to the ILO, it is obvious that collective action is possible as well as within the UNESCO. In the former case the Committee on Freedom of Association deals with petitions concerning violations of the rights of working people to organize and bargain collectively. In the case of UNESCO a number of petitionary procedures exist. For example, there is a confidential procedure for individual petitions against States. Such petitions can be submitted by various parties: ‘person or a group of persons who are victims of an alleged violation (…). It may also originate from any person, group of persons or non-governmental organization having reliable knowledge of those violations.’ Therefore collective action is possible here. Another largely public procedure can be applied in situations involving large scale, systematic or flagrant violations of human rights. Petitions can be submitted under this system by individuals or groups of individuals whose rights have been violated.

It must be noted that under regional instruments, only States are allowed to use petition procedures. But under the European Commission of Human Rights, petitions are accepted from ‘any person, non governmental organization or group of individuals claiming to be the victim of a violation.’ That is, the petition must be submitted by a victim. The definition of a victim is rather broad allowing indirect, future and potential victims to lodge petitions. It is important to note that a European Convention on the Recognition of the Legal Personality of NGOs was concluded in 1991. In this Convention, for the first time legal personality was granted to a limited number of NGOs at the international level.

As for the OAU, the African Commission on Human and Peoples’ Rights does not only deal with communications by States, but also with ‘other communications.’ The wording clearly suggests that this includes injured individuals as well as organizations.

Finally the petition procedure in the OAS refers to ‘ Any person or group of persons or any non-governmental entity legally recognized in one or more Member States of the Organisation’, which therefore includes collective action.

Collective action therefore has varied according to the convention in question. But it is trite that it has been recognized under the aegis of recognition of collective rights. Collective action, it must be said promotes the realization of collective rights in that individuals generally tend to be reluctant to engage in litigation and this reluctance can be overcome by means of collective action. Thus the benefit is symbiotic.

8. Conclusion

Up to now, most discussions have involved the plight of minorities on the national front. It is interesting to note that the international community is also made up of majority and minority groups, separable and distinguishable maybe not by cultural, ethnic and linguistic characteristics, but economic and political power. Thus we can succinctly distinguish the majestic power of the G-8 countries looming high above the G-20 developing nations of the world as well as the underdeveloped countries. These differences make the world a mosaic of incongruous patterns. The existence of minorities whatever their nature, I believe is the result of vast decision making powers that remain at the feet of the entities favoured by the majority. This comprises such entities as the State as well as any governing body in a country. Power qualified by the will of the majority has led to the oppression of minorities across the world. Thus if a bold step must be taken towards reform, it should be in the direction of abolishing the system of Majority Rule.

In the mean time, objections to either collectivist or individual rights approach can be summarized as one-sided perspectives of the actual coin. The argument raised above of the viable co-existence of both concepts by merely re-evaluating the definition of ‘rights’ can provide an effective compromise. It is thus important to understand that collective rights and individual rights are like man and woman: equal in status/value/importance but unique by virtue of the roles they have been created to assume – above all: capable of explosive symbiosis as partners.

















BIBLIOGRAPHY

• Lerner, N., “Group rights and discrimination in international law”(1991), Martinus Nijhoff Publishers: The Netherlands
• J. Robinson, O. Karbach, M.M Laserson, N. Robinson and M. Vichniak, ‘Were the Minorities Treaties a Failure?’ (1943)
• Richard H. Thompson, Ethnic Minorities and the Case for Collective Rights, American Anthropologist, New Series, Vol. 99, No 4 ( Dec., 1997), 786-798
• Donnelly, Jack, Human Rights, Individual Rights and Collective Rights. In Human Rights in a Pluralist world: individuals and collectivities. Jan Berting et al., eds (1990)Roosevelt Study Center Publications, 10. Wesport, CT: Meckler
• Richard B Bilder, Can Minorities Treaties Work?, Professor of law, Uni of Wisconsin-MadisonY Distein and M Tabory (eds) The protection of Minorities and Human rights, 59-82. 1992 Kluwer Academic Publishers: Netherlands
• Brolman, C., Lefeber, R., Zieck, M., Peoples and Minorities in International Law (ed), Martinus Nijhof Publishers: Netherlands
• R.N Kiwanuka, ‘the meaning of ‘People’ in the African Charter on Human and Peoples’ Rights’, 82 AJIL 1988, pp 80-101
• R. Blaupain, “A general Introduction: A comparative overview,” 14 Bulletin of Comparative Labor Relations (1985), devoted to Equality and Prohibition of Discrimination in Employment
• Kymlicka, Will, Liberalism, Community and Culture. (1991) Oxford, England: Clarendon
• Corlett, J. Angelo, The Problem of Collective Moral Rights, (1994) Canadian Journal of Law and Jurisprudence 7(2)
• www.minortyrights.org : “The Right to Development: Obligation of States and the Rights of Minorities and Indigenous Peoples” Margot E Salomon, Argjun Sengupta
• McDonald, M., Should Communities have Rights? Reflections on Liberal Individualism. IN Human Rights Cross- cultural Perspectives.(1992) Abdullah A. An- Naim, ed. Philadelphia: University of Pennsylvania Press
• Thornberry, P., International law and the Rights of Minorities (1991) New York: Oxford University Press
• Eide,A., The Universal Declaration in Time and Space in HUmean Rights in a Pluralist Wolrd: Individuals and Collectivities, Jan BErting et al., (1990) Roosevelt Study Center Publications, 10. Westport, CT: Meckler.
• Berting, J., (et al.), Human Rights in a Pluralist World. Individuals and Collectivities, Westport, London 1990
• Galenkamp, M., Individualism Versus Collectivism. The Concept of Collective Rights, Rotterdam 1993
• Stavenhagen, R., ‘ The Right to Cultural Identity,’ in J. Berting ( et al.) Human Rights in a Pluralist World. Individuals and Collectivities, Westport, London 1990
• Glazer, N., ‘Individual Rights Against Group Rights’, in E. Kamenka and A.Erh-Soon Tay (eds.), Human Rights, London 1978, Chapter 7
• Advisory Committee on Human Rights and Foreign Policy, Indigenous Peoples, Advisory Report No 16, The Hague 1993
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Indigenous Peopels and Minorities' Rights- definitional constraints

UNIVERSITY OF MALAYA
FACULTY OF LAW
ISSUES RELATING TO MINORITIES AND INDIGENOUS PEOPLES RIGHTS

To what extent has the development of international law on minorities and indigenous peoples suffered from the almost total absence of definition of key terms such as 'minority', 'people' and 'indigenous'? Why do so many indigenous groups resist the idea of a universal definition of indigenous and so many governments support it?

A "fraternity" is the antithesis of fraternity. The first... is predicated on the idea of exclusion; the second (that is, the abstract thing) is based on a feeling of total equality.
E.B. White, One Man's Meat, 1944





Humeirah F
LGA050031
Semester 1
26th October 2005

INTRODUCTION

June 28 1914 - A date of profound historical importance that culminated in the collapse of the Hapsburg Empire with the corresponding formation of new nation-states. The outbreak of the First World War was triggered by the assassination of Archduke Franz Ferdinand, whose tragic fate was the consequence of exposing his reformist ideas of ‘trialism’, recognizing equal rights of Slavs besides the Germans and Magyars in the Empire. Displeased, Serbian Nationalists then a small yet powerful group responded in fury .

Thirty years later, the aim to maintain international peace for which the League of Nations was founded, seemed to be clearly defeated as the world was struggling yet again to get back on its feet, weary and disillusioned after another bloody war which discriminated a specific class of individuals via what was termed the ‘T4’ filtration program.

At the root of these political upheavals that have scarred the world for life, was the undeniable fact that they sprung from obsessive notions of nationalism. The Serbs were offended because their interests were relegated to those of Slavs while Hitler, inspired by the ideology of ‘One nation one State’ launched his heartless project of ‘purging’ Germany and Poland of its ‘diseased populace’. This ideology insidiously infiltrated the substantive content of international law and became indirectly the mantra of the League of Nations.

The disintegration of this organization and the establishment of the United Nations after the Second World War did nothing much to weed out the roots of the previous causes of political and social turmoil. The insertion of Human Rights in the Universal Declaration of Human Rights 1948 exacerbated the problem. The issue of group rights which gained some importance after the First World War was clearly shelved and postponed indefinitely. The focus was on individualism and hence equal rights for all and this all-encompassing provision was deemed thoroughly adequate to treat issues raised by minorities and the like. The danger was imminent and yet unforeseeable: Nationalism and Human Rights were a lethal blend.


NATIONALISM + HUMAN RIGHTS = DEGENERATION OF LAWS ON MINORITIES AND INDIGENOUS PEOPLES’ RIGHTS

The principles enshrined in the concept of nationalism focus on the formation of states that represent particular nations as a whole. Unfortunately the feasibility of ‘pure’ states being separated by imaginary boundaries was, is and always will remain impracticable. The formation of Nation-states however has proved to be unstoppable with the interposition of ambitious leaders such as Adolf Hitler, Mohammad Ali Jinnah , Slobodan Milosevic and Saddam Hussein among others.

The best international instruments could do to suppress any reappearance of obsessive nationalism after the Second World War was to focus on democratic rights, advocating popular representation of governments in states. But with democracy comes the evil of the ‘tyranny of the majority’ . As the majority gets to decide who governs the State, minorities despite their right to equal citizenship and the enjoyment of rights, end up being under-represented in the government and are perpetually oppressed and left to themselves. John Packer states in this regard “…while the existence of human beings and states are ‘axiomatic’ in international law, the existence of human groups is problematic.” Thus in a system governed by the will of the majority there arises an immediate need to consider the collective groups as ‘special’ so that methods and ways are further devised to ensure their political participation as well.

Equally deplorable has been the fate of indigenous peoples. With the widespread application of western doctrines of nationhood, statehood, nationalism and human rights, indigenous groups have found themselves face-to-face with notions absurdly foreign to them. The American Indians for example were recognized as having rights by virtue of their essential humanity. They could however be denied their inherent rights through conquest if they lost a ‘just’ war, a term ironically left to the Europeans to be defined . To impose this upon a people already accustomed to its own political organization and social framework, has led to the effacement of generations of culturally rich and diverse indigenous groups.

Writers normally base their main objections on the impossibility of furthering Human Rights and protecting communal groups simultaneously upon one common and logical reasoning: the very fact of categorizing human beings into minority groups or as indigenous peoples goes against the essence of recognizing human beings as individuals worthy of equal recognition . As succinctly put by Prof S. James Anaya:

‘…the individual/state framework acknowledges the rights of the individual on the one hand and the sovereignty of the total social collective on the other. But it is not alive to the rich variety of intermediate or alternative associational groupings actually found in human cultures, nor is it prepared to ascribe to such groupings any rights not reducible either to the liberties of the citizen or to the prerogatives of the state.’

It is thus established that the principles governing international law are strewn with doctrinal fallacies that impede the development of law on minorities and indigenous peoples’ rights, simply because they do not recognize collective groups in the first place and have thus failed to define them.

DEFINITIONAL CONFLICTS – WHY ARE ‘PEOPLES’, ‘INDIGENOUS’, ‘MINORITIES’ NOT PROPERLY DEFINED AND WHAT HAVE BEEN THE EFFECTS OF THIS ON THE DEVELOPMENT OF INTERNATIONAL LAW?

The importance of identifying the natural legatees of rights is to empower them with the ability to enforce their rights in Courts of justice. If definitions are ambiguous and inchoate they would deny the affected group the relevant remedy. This is based on the premise of nulla crimen sine lege (no offence without a law). This is the importance of clarifying definitions. Professor Ermacora expounds this clearly when he says: ‘international law in a world of conflicts and tensions should give by its clarity a certain guidance to States” .

On the other hand it must also be understood that these definitions should not remain static as this would deprive the law of its important characteristic of mutability. Having exposed both sides of the coin it must be said that the fact that the terms ‘indigenous’, ‘minorities’, ‘people’ are in constant flux should not prevent the meeting of minds over at least a general, all-encompassing terminology that would enable communal groups to be pro-active in what they seek.

 The definition of ‘indigenous’

A brief overview of some problems regarding definition of indigenous people may serve to elicit certain common characteristics of these groups. The appropriate point of departure seems to be the definition proposed in 1983 by UN Special Rapporteur Martinez Cobo, as it is the one most generally referred to at present:

'Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system. … On an individual basis, an indigenous person is one who belongs to these indigenous populations through self identification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group)’

The definition contains four elements which cannot be found in most contemporary definitions: historical continuity, distinct cultural forms, non dominance and self identification. The second and third elements are included in the definitions of 'minorities' as well. The first one being ‘historical continuity’ is very particular to the understanding of ‘indigenous: historical continuity, it is specified may refer to 'one or more' of the following factors: occupation of ancestral lands, common ancestry with he original occupants of the land, a distinctive culture, language, or residence in certain regions of the country. It may be noted that according to wording of this specification, historical continuity may in theory also appear from a tradition relating to a non-geographic factor such as language or culture. As for a tradition with regard to land, the fact that historical continuity may be exemplified by occupational of ancestral lands does not however make occupation a core condition of definition.

The notion of self-identification adds a subjective element to the objective criteria. Indigenous people themselves have recurrently expressed wish to retain exclusive right to determining who belongs to their group. Group identification does not depend on heritage and ancestry as on the practice of customary and cultural rites within the indigenous group. This element of self identification figures most prominently in the definition of ‘indigenous’ than in the context of ‘minorities’.

The element of historical continuity is linked to an experience of conquest or colonization and excludes as a result European minorities such as Basques, Catalans, Romany (gypsies) and migrant workers. On the other hand isolated or marginal groups that may not have suffered such a fate have come to be included in the term indigenous on account of their historic presence on a particular territory, the preservation of ancestral customs and their incorporation into a state with different national, social and cultural characteristics. Population groups such as the Karen in Thailand and the Chittagong hill tract tribes of Bangladesh are thus considered indigenous peoples. The ILO (International Labour Organization) conventions on indigenous peoples use a definition of indigenous similar to the Cobo definition which deals with two groups: indigenous and certain non-indigenous groups. The attribution of tribal characteristics to indigenous people has been abandoned in Convention no 169 which applies to tribal and indigenous peoples respectively.

One necessary element which unfortunately has been excluded in the interpretation of indigenous peoples is the particular relationship they share with the land they live on. This relationship referred to as ‘territorial basis’ has two aspects: a geographic and a spiritual one. In the Cobo report, territorial basis is recognized as crucial to the indigenous existence.

'All indigenous communities have and uphold a complete code of rules of various kinds which are applicable to the tenure and conservation of land as an important factor in the production process the foundation of family life and the territorial basis for the existence of their people as such. The whole range of emotional, cultural, spiritual and religious considerations is present where the relationship with the land is concerned... the lands form part of their existence.

A representative of the World Council of Indigenous Peoples once remarked: "Next to shooting indigenous people, the surest way to kill us is to separate us from our part of the earth.’ By thus denying them an important characteristic they consider unique to their identity, recognition of these rights where they have been violated has been denied consideration in international law.

 The definition of ‘minorities’

The United Nations Charter does not refer to minorities. Its provisions reflect the view that in order to ensure a stable society the means by which this should be done were to protect individual human rights and to adopt the principles of equality and non-discrimination. When the 1948 Universal Declaration of Human Rights was drafted, proposals for inclusion of an article on minorities were not accepted notwithstanding the General Assembly's affirmation of the need to deal with the fate of minorities. This constituted a major drawback in the recognition of those marginal groups by international law. Art 26 of declaration only calls for the promotion of ‘understanding, tolerance and friendship among...racial and religious groups.'

The establishment in 1946 of a sub commission of the United Nations Commission on Human Rights on the Prevention of Discrimination and the Protection of Minorities implied a certain concession in this respect. The Sub commission dealt with minority issues, produced several important documents on the subject, was instrumental in drafting art 27 of the ICCPR (International Covenant on the Protection of Civil and Political Rights) 1966 and appointed Special Rapporteur Franceso Capotorti to prepare his valuable study on minorities. The sub commission also worked on the definition of the term minority and transmitted to the commission on human rights the text prepared by J. Deschenes. However, the sub-commission placed more emphasis on discrimination in general than on minorities in the strict sense.

A major departure from the trend to replace minority rights by exclusively individual human rights was the 1948 Convention on Prevention and Punishment of the Crime of Genocide. Its individualist orientation is apparent from art 2(1) and 26 and 27.

The Travaux preparatoires of art 27 of ICCPR reflect reluctance of drafters to accept any reference to group or minority rights. Early texts referred to minorities and not to persons 'belonging to minorities'. The final text speaks only about rights of persons, individuals- although some concession to the idea of collective rights had to be introduced. Immigration states were against any text likely to recognize a special status for particular groups within the population. Multinational states feared the consequences of political fragmentation and secessionist trends. This may explain the absence of any reference to the classic term 'national minorities' - national groups are mentioned in the Prevention and Punishment of the Crime on Genocide 1948. It would have been more reasonable to refer to ‘shall enjoy’ than ‘shall not be denied the right’. This approach was criticized during the drafting process and by commentators as implying tolerance more than recognition of rights.

Art 27 contains elements of group protection and is understood as a group protection provision as well. Dinstein takes a stronger view, asserting that in his opinion the purpose of art 27 is to grant collective human rights to the members of a religious minority qua as a group. He points that art 27 is not to be rendered meaningless it must go beyond ambit of art 18 of the ICCPR which deals freedom of religion. Hailbronenr supports a liberal interpretation of art 27 by stating that its very existence indicates that 'ethnic linguistic or religious minorities posses special rights in addition to other Human Rights,' that ' cultural traditions and institutions can be maintained only on a collective basis' that ' it’s the community that maintains cultural institutions, schools and other establishments and therefore that states must not deny the right of the individuals to enjoy the values of their communities and in so doing, protect the every existence of these communities themselves. Thornberry suggests that art 27 contains a programmatic element, similar to those which exist in the Social Covenant and in the Universal Declaration, It is a "promotional requirement' with a 'framework character' which needs to be supplemented by a clearer statement of the rights and duties of minorities.

The variety of views expressed on this subject shows the shortcomings of the covenant's approach to minority rights and the denial of recognition of minority groups in international law.
 The definition of ‘Peoples’

In the post-war period international instruments and resolutions relating to self determination have invariably referred to the people as being entitled to the right of self -determination. The problem however was that the peoples cannot decide their own fate, according to this principle, until someone decides who are the ‘people’. Rupert Emerson pointed out in 1971 that the term people had never attained any generally accepted meaning which can be applied to the diverse world of political and social reality . In 1983 Sir Ian Sinclair the Legal Adviser to the British Foreign and Commonwealth office, declared that there is no internationally accepted definition of the term 'peoples'. This inability to determine a generally accepted definition of the term 'peoples' has denied affected groups a locus standi to claim rights in the international law framework.

Art 1(2) of UN charter declares that one of purposes of UN is to 'develop friendly relations among nations based on respect for the principle of equal rights and self-determination of ‘peoples'. In 1951 Kelsen made an early attempt to define 'people' by equating the word 'peoples' in art 1(2) with that of 'states'. As only states could possess equal rights in general international law, Kelsen concluded that the reference to peoples in the clause meant states. The travaux preparatoires to the charter however reveal that those who drafted art 1(2) did not intend the word 'peoples' to signify states. When art 1(2) was being drafted the Belgian delegate expressed concern over use of word ‘peoples’ and submitted that word ‘states’ would be more appropriate . The proposal was rejected by a drafting committee which explained that ‘people’ was a separate and distinct concept from ‘state’ and the terms were not interchangeable. Art 1 (2) meant to proclaim equal rights of peoples as such. Equality of rights, the committee said, was meant to extend in the charter to states, to nations and peoples. This was confirmed in resolution XXV which interpreted in the charter when it said that all peoples had right to self determination and that every state had duty to respect this right. Kelsen’s analysis was wrong.

In the post-war period self determination was identified with decolonization. This approach to self determination necessarily means that the term people must be defined solely within the context of decolonization. Within that context the term can only mean term can only mean population of non-self governing territory.

Those who assert that ‘people’ means only colonial or dependent people interpret art 1(2) of the united nations charter by reference to chapter XI, XII and XIII so that the word peoples in article 1(2) is understood to refer only to peoples in non self governing or trust territories. Art 1 of the HR covenant is interpreted in the same manner.

The decolonization definition is further circumscribed by paragraph 6 of resolution 1514(XV) which prohibits any impairment of the existing territorial boundaries of non self governing entities. This means the term ‘people’ is not only limited to colonial population but also limited to a given colonial population within pre-existing boundaries. In other words people are defined by the territory of the non self governing entity in which they find themselves. ‘The fact that those found within such territory may comprise the most diverse and disparate cultural, linguistics or religious groups does not exclude them from this definition. Such peoples are expected to overcome their differences through what is known as ‘nation-building’, whereby those differences which exist amongst various groups would be subsumed in an overriding loyalty to the state.’

The General Assembly however noted subsequently that the right of self-determination extend to Resolution 2625(XXV) include non-colonial peoples e.g. 'people of South Africa' and ‘people of Palestine’.

People are also defined broadly in the representative government theory of self-determination. The representative government post is that self determination is an ongoing and universal right whereby the population of given territorial unit exercises population sovereignty in the election of its government. People are defined as an entire territorial unit comprising non self governing territories and independent states. Adherents of the representative government theory assert that this understanding of peoples underlay drafting of art 1(2) of the charter. Moreover art 1 of both Covenants on International Human Rights (ICCPR and ICESCR) state that all peoples have the right to self-determination. The article does not limit the right to populations of non-self-governing territories but presupposes stable boundaries. Reference to the travaux preparatoires reveals support for the contention that "concerning principles of self-determination...it was stated that the principles conformed to the purposes of the charter only in so far that it implied the right of self-government of peoples and not the right of secession.' The representative government definition of people is characterized by two features (1) it is universal in scope applying to both sovereign and independent states and to non-self governing territories. And (2) the peoples in question comprise the entire population of political entity which means people defined by territorial limits of the state. These two features of people under representative government achieve the objective of periodic exercise of popular sovereignty within a given political unit in order to obtain a representative government.

This definition however fails to consider the enormous impact of linguistic, cultural and religious factors on the way in which populations identify themselves. Populations do not in general consider themselves as one people if they reside in same established territorial limits. The interposition of the majority rule prevents minorities from asserting their rights. As J S Mill states:

“Free institutions are next to impossible in a country made up of different nationalities. Among a people without fellow feeling, especially if they read and spell different languages, the united public opinion necessary to the working of representative government, cannot exist. The influences which form opinions and decide political acts are different in the different sections of the country. An altogether different set of leaders have the confidence of one part of the country and of another. The same books, newspapers, pamphlets, speeches do not reach them. One section does know what opinions or what instigations are circulating in another. The same incidents, the same acts, the same system of government affect them in different ways....’

‘Peoples’ can be interpreted along ethnic differences as well. This is what the General Assembly was willing to do when ethnic conflicts would arise and solve the problem by drawing ethnic boundaries: in 1946 for e.g. it sanctioned the partition of the Palestine mandate into Jewish and Arab states.

Moreover British Cameroon was divided in to Rep of Cameroon and Nigeria in 1958 due to the political wishes of regions explained in a report by the Special mission sent to British Cameroon by the GA. The mission found that 'on the whole the national affinities of these broad groups of peoples in terms of language, customs and social intercourse tend to be stronger with their immediate neighbor on one of the other depending on the locality to the adjoining territory of Nigeria and the Cameroon under the French administration than between one another.’

This pragmatic approach of GA was abandoned after UN resolution 1514(XV) in 1960. Para 6 declared that any attempt to disrupt 'the national unity and the territorial integrity in a country is incompatible with the purposes and principles of charter of UN.’ The focus was more on stabilizing boundaries rather than creating new ones. Paragraph 2 declared that all people had a right to self determination and that by virtue of that right they freely determine their political status. Ethnic groups within non self governing states could not now be considered peoples because they were prohibited by paragraph 6 from establishing their own Nation-states and therefore unable to freely determine their political status as 'peoples' were entitled to do so under paragraph 2. From then on the GA was reluctant to grant secession to ethnic groups. The case of the Cyprus Greeks and the Turkish Cypriots arose therefore only from external use of force which was of course a result of the loss of many human lives. The active measures adopted to ‘reunite’ ethnic communities was proven a failure when Netherlands transferred West Indies to Indonesia in 1962, without a plebiscite. The GA surprisingly approved the transfer even if there were no similarities in ethnicity, language, race and culture.

Although the GA has not generally recognized ethnic groups as peoples in the context of non-self-governing territories since the adoption of resolution 1514(XV), it has continued to recognize some ethnic groups as peoples in other contexts. This occurred both explicitly and implicitly. For example, resolution 2672c(XXV) of 8 December 1970 the GA explicitly recognized that people of Palestine are entitled to equal right and self determination and recognized the ethnic group as a people. The GA implicitly recognized an ethnic group as people when Bangladesh was admitted to the UN on 17 September 1974 by GA resolution 3203 (XXIX).

Defining peoples as ethnic groups can be a problem because of the case of the Jews, for example. Language and culture in the case of Jews are not common characteristics. While religion is commonly attributed this too is rejected because some Jews convert yet are still given ‘jewishness’ characteristic. If Jews convert to Christianity, Chief Rabbi of Palestine during UN special committee on Palestine replied that even a Jew who abandoned Judaism for another faith continues to be a Jew ‘although not a good Jew’. Moreover the Law of Return of Israel in 1950 which declares that every Jew has the right to come to this country as an immigrant has made it necessary to establish who is a Jew. This contentious issue provoked a constitutional crisis in Israel in 1969 case of Shalit v Minister of Interior where the petitioner sought leave to register his minor children as Jews in registry although born from non-Jewish mother. The High court held by a majority of 5 to 4 that the registration officer in the ministry of interior could not question the declaration of a person as to the affiliation with a certain nation, as distinct from the affiliation with a certain religion. The courts' decision caused a furore throughout Israel and resulted in the 1970 amendment to the Law of Return and the population registry law which defined a Jew as a person who was born of a Jewish mother or who has converted to Judaism, despite Jewish Religious law which prohibits such recognition to children. Israeli law therefore now defines ‘jewishness’ in terms of affiliation with the Jewish religion even though such affiliation has declined in importance with many Jews. The important conclusion to be made from this case is that definitional difficulties can give rise to complex situations as above which could deny protection to affected groups through international remedies.

 Is ‘indigenous’ a neutral term between ‘minorities’ and ‘peoples’?

The truism that only ‘peoples’ and not ‘minorities’ posses a right to self determination could be the main reason that state parties have showed reluctance to employ that term ‘peoples’ in the context of indigenous communities. At present however indigenous groups are commonly addressed as peoples due to a gradual change in the general opinion brought about first and foremost by the indigenes themselves and a process by both ILO and the United Nations.

The separate understanding of Indigenous people next to minorities and peoples can be questioned. Capotorti's definition on ‘minorities’ cited above may equally apply to indigenous groups. But opinions differ as to whether a distinction between these two categories is justified. Indigenous peoples themselves however have always strongly objected to being regarded as minorities as the term is considered as denying their separate and unique identity. The plight of minorities is more towards the recognition of their equal rights while that of indigenous groups is to their distinct rights as people who have a cultural, social and political make-up that is altogether different from that of the dominant group. Moreover indigenous people refuse to be labeled as ‘minorities’ because this would deny them the right to self-determination which extends to peoples and not minorities.

Should indigenous peoples then be subsumed under the general category of 'peoples’? Though some ambiguity exists with regards to this term as well, it is clear that it fits them more appropriately than any other. In his 1978 study on the right to self determination the UN special Rapporteur Cristescy proposed the following definition:

‘The term ‘people’ denotes a social entity possessing a clear identity and its own characteristic. It implies a relationship with a territory, even if the people in question has been wrongfully expelled from it and artificially replaced by another population.

Not infrequently, the right of self determination becomes involve in the definition, thus leading to a somewhat circular reasoning which qualifies a group as a people on the basis of its perceived right to self determination, while this right is on the other hand attributed to the group on the basis of its definition as people. Indigenous peoples seem to fit the definition of minorities as well as peoples and this is often a subject of great contention whenever it arises. States are thus reluctant to further efforts in establishing a clear definition for fear that self-determination may lead to political fragmentation.

Whatever definitional difficulties encountered through time, the United Nations alongside the ILO and other interested organizations have not been discouraged to further their programs to recognize the crisis surrounding issues concerning indigenous peoples and minorities. A synopsis of laws affecting the fate of these communal groups will be made below starting from the inter-war period to the current date. It will be found that on the whole, the plight of these groups has not been left unattended despite definitional constraints.

HISTORY AND EVOLUTION OF LAWS IN THE INTER-WAR PERIOD

(i) Minorities

The acknowledgement, albeit limited of existing minority and indigenous groups needing protection in the inter-war period can be evidenced in Europe at least, by the Paris Peace Settlement- For example the Treaty Concerning Recognition of Poland. Art 4 of this treaty corresponded to Art 93 of the Versailles Peace Treaty which also guaranteed the protection of minorities. The latter could address complaints to the League of Nations which received hundreds of complaints from Hungarian authorities in Romania and German authorities in Poland and Czechoslovakia. Sovereign states could and did take up their complaints. It must however be noted that minorities had no locus standi to be before the Committee of the Council which investigated the issue in dispute.

In an Advisory opinion by the Permanent Court of International Justice (PCIJ) in schools set up specially for minorities in the Albania Case the Court referred to art 5 of the Albanian declaration of 1921, which provided for the equal treatment of Albanian minorities. Thus an amendment in 1937 to close down private schools blatantly penalized Albanian minorities it would affect them more although the new provision did not show any outright discrimination. The court stated that whether the provision had the effect of affecting minorities was a question of fact and not just law.

Meanwhile the atmosphere of growing recognition for sovereignty of states rose due to the gradual appreciation of positivism that recognized international law as being between and not above the states . Hence international intercession on behalf of minorities was deemed incompatible with that. The withdrawal of Poland from the League of Nation’s system of minority protection, followed by Germany’s complete break up with the League of Nations remained unchallenged. This explains why the protection of Minority Rights failed to become a norm of customary international law.

On the whole, the international judicial protection of Minority Rights was far more common in the years between the two World Wars and the Permanent Court of International Justice issued many judgments and advisory opinions in this field. The identification of minority groups depended however solely on a factual evaluation by the courts in question, based on abstract criteria. Minority groups were had limited powers to claim unjust treatment and there was no effective mechanism to identify them.

(ii) Indigenous peoples

In the context of indigenous peoples, several cases reveal how courts of ‘civilized’ nations failed to recognize the rights of these groups. In 1928 an international arbitration involved competing claims to the Island of Palmas between the United States and the Netherlands .The United States claim was based primarily on Spain which based its title on discovery. The tribunal ruled in favour of the Netherlands because of its authority over the island, excluding considerations of former treaty agreements between the chief of the indigenous tribes, reducing their importance to being mere ‘facts’. The tribunal stated that such ‘contracts between a State… and native princes of chiefs of peoples not recognized as members of the community of nations…are not, in the international law sense, treaties, or conventions capable of creating rights and obligations.’ Once again the absence of definition and recognition of these groups proved to be a handicap in the development of international law on the rights of indigenous groups.

HISTORY AND EVOLUTION OF LAWS IN THE POST-WAR PERIOD

The omni-presence of Nationalism could be felt even after the ravages of the two Wars. It seems that the lesson had not been learnt. Thus after the Second World War, victorious allies chose to uproot minorities or even whole populations instead of guaranteeing Human Rights in their homelands. Art XIII of 1945 of Postdam Protocol had the effect of transferring some 14 million Germans from Poland including Czechs, and Hungarians – 2 million Germans perished in the process. This policy formulated by the Allies was in stark defiance to the tacit agreement that such forced migration practices would no longer occur.

On December 10 1948 the United Nations General Assembly (UNGA) adopted the UDHR. It made no mention of Minorities’ Rights. At most the only remedy sought could be through the provisions on Equality and Non-discrimination . However Peoples’ Rights were recognized limitedly through the political process of decolonization by granting them the right to self-determination.

Individuals including members of minorities and indigenous groups had no standing to appear before the ICJ (International Court of Justice). According to the ICJ Statute, only Sovereign states or UN organs can seize the ICJ of a case. Individual members had locus standi but only limitedly in the UNHR (United Nations Human Rights) Committee. The European Committee and the Court of Human Rights and the Inter American commission and Court of Human Rights were barely used for redress. The European and American Conventions lacked specific provisions on the protection of Minority Rights and contained only articles on Non-discrimination.

In 1970 ECOSOC Committee adopted Resolution 1503 pursuant to the Sub Commission on Prevention of Discrimination and Protection of Minorities and subsequently the Commission on Human Rights could investigate in confidential procedures complaints received from individuals or groups concerning ‘a consistent pattern of gross and reliably attested violations of human rights.’ They had access to general proceedings where they could submit pleas but under 1503 there was no guarantee of international judicial protection. The initiators of the proceedings had to show that they had exhausted all possible domestic remedies. Individuals could appear although not collective members and their pleas could only be based on Non-discrimination (art 26) an Identity rights (art 27) under the International Covenant of the Protection on Civil and Political Rights 1966 (hereafter ICCPR). It is clear that the Covenant did not offer a term for people and minorities. For example, the disabled are factually a minority but do not constitute a minority for the purposes of art 27and migrants who are ‘new minorities’ are not covered by art 27.

The Optional Protocol to the ICCPR entered into force on 23 March 1976 giving locus standi to individuals who claim to be victims of violations of their Covenant rights by a State party to the Protocol may submit complaints to the Committee who will first ascertain their legitimacy. These decisions are quasi-judicial in nature and are read like judgments but are however not legally binding. The main difference between resolution 1503 and the Optional Protocol is that the former is about the internal procedure to be followed for the violation to be remedied. However the same matter cannot be pursued by any other international body at the same time.

In the case of Singh Bhinder v Canada in a claim of a religious and ethnic minority who was being prevented to wear his turban during the course of his employment. Art 26 on non-discrimination was raised by the claimant together with the provision on freedom of religion enshrined in art 18. While it was admittedly held that there was no discrimination in this case, what was clearly failed to be observed was that the claimant in question was a member of a minority group. Failure thus to identify these minorities denies them the special status they deserve.

The advent of the Convention on prevention on Genocide did little to provide a satisfactory definition of ‘minorities’ per se. Hence Art 11 of the Convention speaks of genocide victimizing ‘national, ethnic, racial or religious groups’-. This is referred only in terms of total effacement of the group in question and does not include any other means of suppressing them, as for example undermining or destroying their cultural or linguistic attributes. Moreover it could also refer to majority groups.

The European Convention on the Protection of Human Rights and Fundamental Freedoms also contained no explicit protection of Minority Rights. But art 14 stated ‘association with national minority is prohibited ground for discrimination’. In Belgium Linguistics case French speaking parents in Belgium required the State to provide French linguistic schools. The Right to education and Right to family was invoked jointly. The court held that art 14 could not operate independently and the violations of those rights could not be established. The claim thus failed.

Art 27 of the ICCPR does not place the government under any positive duties to promote minority culture or religion. Art 27 consists simply of a duty not to interfere with minorities in its enjoyment of rights. ‘In those states in which minorities’ exist can be taken to mean that states determine whether or not they exist. Capotorti says this evaluation is based on objective/factual criteria. Lovelace v Canada cleared this ambiguous provision by denying States the prerogative to decide which groups it could classify as minorities and confer rights upon accordingly, since it was often an instrument of abuse. On this matter subsequent enactment such as art 2(1) of the Declaration on the Rights of Persons in Developing National or Ethnic Religious and Linguistic Minorities refrained from giving such discretion to States.

Another instrument phrased to protect minorities is the Convention on the Elimination of All Forms of Racial Discrimination if they claim to be victims of discrimination based on their national, ethnic or racial origin. The procedure of complaint and conditions attached are similar to those under the Optional Protocol of the ICCPR and is dealt with by an expert committee called the Committee on the Elimination of Racial Discrimination (CERD). The committee has not dealt with any issues relating to minorities directly but on discrimination. However a blatant limitation to this Convention was apparent in the case of Demba Talibe Diop v France concerning a Senegalese lawyer who was denied a license to practice by the Nice Bar. The committee did not find a violation and referred to art 1 para 2 which provides that the Convention ‘shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.’

Two other important provisions in this instrument provide for the protection of minorities: art 4 and art 2 para 2 which provides for special measures. To a certain extent State Parties members to the Convention have taken active steps to incorporate the policies in their own subsequent domestic legislation. For example, The Race Relations Act was passed in 1976 to protect people against discrimination or abuse on the grounds of race, colour, nationality or ethnic background. It does not outlaw racial prejudice as such - only education and contact will achieve that - but it does offer considerable protection against most problems encountered at work, at school, in banks, pubs, clubs or restaurants.

The definition of racial harassment in the law does not specifically include religious groups, but some of these, including Jews and Sikhs, are almost certainly covered because of the way the courts have interpreted the act. The House of Lords for example decided that Sikhs did constitute an "ethnic" group because they had a long shared history and a cultural tradition of its own, along with a common geographical origin, a common language and literature or common religion different from neighbouring groups. In fact, the government takes this kind of behaviour so seriously that it included a series of new laws in the Crime and Disorder Act in 1998. It even defined what made an offence racially aggravated. The prosecution has to prove that there was "racial hostility at the time of committing the offence, or immediately before or after doing so" or "that the offence was motivated wholly or partly by racial hostility". If it does so, that will lead to longer sentences and steeper fines.

In Hungary, the radio and television board recently awarded a license for an FM radio frequency to radio C in Budapest, Central Europe's first independent station run by Roma. Regarding housing for Roma, there have been initiatives in Romania and Slovakia that have brought together Roma and non-Roma to build houses, which has worked to stem negative stereotypes of Roma as passive recipients of social benefits. In addition, the Roma themselves have founded several political parties and movements in many societies and have grouped into several dozen civic associations. The fact that Governments have simply admitted that the Roma are the victims of intolerance and discrimination has been a major step forward in some countries.

One of the main hurdles faced while trying to incorporate rights of minorities in international instruments was the unwillingness of governments to accept and recognize such rights for fear that these groups might be empowered to cause more political trouble and demand right to secede. Provisions on non-discrimination and equality contradict the grant of ‘special rights’ to minorities by virtue of the need to preserve minority characteristics as explained above. But with time the rules on non-discrimination and equality have been interpreted widely to include special treatment to minorities by virtue of their vulnerable position. This has been seen as the best means to ensure their ‘equality’. Thus the Human Rights committee commented on the non-discrimination provision under the ICCPR.

That the 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 recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.’

The Committee went on to say that a purposive approach to interpreting the provision would do it best justice since identical treatment did not mean equal treatment per se. Discrimination in treatment is legitimate if its purpose is to fulfill the spirit of the Covenant.

LOCUS STANDI OF INDIGENOUS PEOPLES’ AND MINORITIES IN THE LAST TWENTY YEARS

(i) Indigenous Peoples

Two initiatives, within the UN Working Group on Indigenous Peoples and the International Labour Organization (ILO) were of great importance in the recognition of Indigenous peoples’ rights. Firstly the draft Universal Declaration on Indigenous Rights (hereinafter Draft Declaration) enabled many indigenous groups to get together and address their issues directly together with non-governmental support groups and academics . During the 1993 session, indigenous groups valiantly showed their conviction and increasing power to further their interests in what was known as the ‘battle of the ‘s’’ which although lost, remained imprinted in the minds of member state representatives who recognized their political hegemony in the issue at stake. Although the present convention is considered merely aspirational and does not have the force of a Convention, it has exerted positive influence over state practice in the context of indigenous rights.

Secondly the Indigenous and Tribal Peoples Convention (no 169) was adopted by 152 member states of the ILO in order to review the Indigenous and Tribal Populations Convention (No 107) which was regarded as assimilationist and inadequate. This jolted other organizations such as the World Bank and the Organization of American States into action as concern grew over the fate of indigenous peoples. Writers have expressed the positive change noticed during these activities since there has been direct participation of indigenous groups, which was lacking in previous fori regarding such issues. It must also be noted that the Working Group Draft Declaration contains languages requiring consent of indigenous peoples in any direct or indirect interferences by state authorities into their social, cultural or environmental affairs. The draft of the Inter-American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights emanates from the experience gained in drafting the declaration on the Rights of Indigenous Peoples.

In 2000, the UN department of Economic and Social Affairs (ECOSOC), one of the six main organs of the United Nations, set up a Permanent Forum treating issues relating to indigenous communities . This has been, by far the greatest laudable achievement by active groups working for the right of indigenous groups. After a first international decade being decreed for indigenous peoples, a resolution was passed on 22 December 2004 for a second one by the General Assembly.

Pursuant to this, Rodolfo Stavenhagen was appointed as the first Special Rapporteur on Indigenous Peoples on 24 April 2001 to formulate recommendations to prevent and remedy violations of indigenous peoples’ rights and work with other experts of the UN Commission on Human Rights and of the Sub-Commission on the Promotion and Protection of Human Rights.

(ii) Minorities

In the context of minorities, on 18 December 1992 the UNGA adopted the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities. It was high time that minorities, as special collective groups, were recognized by international instruments. Thus the June 1992 Report by the UN Secretary General on the role of human rights and minority rights in preventing conflict and in making and keeping peace stated:

‘One requirement for solutions to these problems lies in commitment to human rights with a special sensitivity to those of minorities, whether ethnic, religious, social or linguistic. The League of Nations provided a machinery for the international protection of minorities. The General Assembly will soon have before it a declaration on the rights of minorities. That instrument together with the increasingly efficient machinery of the United Nations dealing with human rights, should enhance the situation of minorities as well as the stability of the States.’

This was the first international human rights instrument devoted solely to minority rights. It must however be noted that disappointingly, minority representatives did not have a role in the drafting process and this should be considered a major drawback in recognizing the plight of minorities and trusting their abilities to identify their own problems. It must be also pointed out that proposals to attach a serious monitoring mechanism to the Declaration have not yet been accepted, undermining the importance of the issue.

Gudmundur Alfredsson and Alfred de Zayas opine that a precise definition of ‘minorities’ is not necessary because the answer ‘is known in 90 percent or more of the possible cases, and that governmental and intergovernmental practice, including the jurisprudence of judicial organs, will eventually bring clarity to any remaining problems.’ They hope that eventually even immigrants workers would gain the status of minorities.

It must be noted that art 41 if the ICCPR allows governments to bring up issues relating to the performance of fellow governments in pertinent issues including issues relating to minorities but by far, Governments have shown reluctance to take such a step.

The OSCE (Organization for Security and Cooperation in Europe) High Commissioner on National Minorities was established in 1992 to ensure peace and stability with respect to ethnic differences between OSCE participating States. In his keynote address at the opening of the OSCE Minorities Seminar in Warsaw in 1994, High Commissioner van der Stoel stated the following:

"(...) I won't offer you [a definition] of my own. I would note, however, that the existence of a minority is a question of fact and not of definition. In this connection, I would like to quote the Copenhagen Document of 1990 which (...) states that 'To belong to a national minority is a matter of a person's individual choice.' (...) I would dare to say that I know a minority when I see one. First of all, a minority is a group with linguistic, ethnic or cultural characteristics, which distinguish it from the majority. Secondly, a minority is a group which usually not only seeks to maintain its identity but also tries to give stronger expression to that identity."

Definitional constraints have not been the main instruments in obstructing the development of law on Indigenous groups and Minorities’ rights in International law. This is evidenced by the growing recognition and political presence of such communities in the activities of the United Nations and the ILO, despite the continued absence of settled definitions. But it is to be noted that the problem needs to be resolved soon because of its bearings on other pertinent issues. One of these is the reinforced disagreement on the categorization of indigenous groups as such by governments and the corresponding retaliation by them

THE PROBLEM OF A UNIVERSAL DEFINITION

Although the importance of clarifying definitions in international law has already been established, many indigenous groups still resist the idea of having one universal definition of the term 'indigenous'. For instance, during the many years of debate at the United Nations Working Group on Indigenous Populations (WGIP), observers from indigenous organizations developed a common position and rejected the idea of a formal definition of indigenous peoples. An example of their position can be seen in the 1996 report of the Working Group :

“We, the Indigenous Peoples present at the Indigenous Peoples Preparatory Meeting on Saturday, 27 July 1996, at the World Council of Churches, have reached a consensus on the issue of defining Indigenous Peoples and have unanimously endorsed Sub-Commission resolution 1995/32. We categorically reject any attempts that Governments define Indigenous Peoples. We further endorse the Martinez Cobo report in regard to the concept of “indigenous”. Also, we acknowledge the conclusions and recommendations by Chairperson-Rapporteur Madame Erica Daes in her working paper on the concept of indigenous peoples .”

There are various reasons as to why indigenous peoples adopt such a stance towards the idea of having a universal definition of the term 'indigenous':


 The right to self determination

The unqualified right to self determination, set out in Articles 1 and 55 of the UN charter, article 1 of both the ICESCR and the ICCPR, and the Vienna Declaration, is a basic principle of international law and the foundation of the international human rights system. It must be noted that the Charter does not expressly confer a right of self-determination but it obligates member states to adhere to the principle of self-determination so long as it promotes the purposes of the United Nations. The right to self determination is one of the most sensitive issues concerning indigenous peoples. Article 3 of the UN Draft Declaration on the Rights of Indigenous Peoples states:

"Indigenous peoples have the right to self determination. By virtue of this right, they freely determine their political status and freely pursue their economic, social and cultural development".

According to the indigenous delegates at the working group, the right to self determination is the 'fundamental provision in the declaration' . It is for them an essential part of indigenous peoples’ rights and a prerequisite for the exercise of their spiritual, social cultural, economic and political rights, as well as their practical survival. Therefore it is felt that the Draft Declaration will be meaningless without unless the right to self determination is accepted.

The right to self determination precludes having a universal definition to the term 'indigenous', and the importance of self determination to indigenous peoples is one of the reasons why they resist so much the idea of a universal definition. Having a universal definition will take away that right. Indigenous people endorse the Cobo report and want to be able to determine their status as indigenous, independently of any external consent by governments.


 The lack of definition of terms like 'peoples' and 'minorities': 'Definition' vs. 'Identification'

Many indigenous representatives pointed out that central concepts in international human rights instruments are often not defined , and therefore there should be no reason as to why it would be essential to have an all-inclusive international definition of the term ‘indigenous peoples’. In the sixty- year history of developing International Law within the United Nations system, there have been many terms which were never formally defined e.g. the notions of peoples and minorities. However, this lack of definition has not hindered the UN in recognizing the right of peoples to self determination and adopting the Declaration on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities . The lack of a formal definition of the terms "minorities" and "peoples" in international law has not been crucial to the promotion, protection or monitoring of the rights of these entities. It was argued that indigenous rights therefore also could be implemented without a definition of "indigenous peoples". Moreover, it has been argued that a definition of 'indigenous peoples' is not a prerequisite for adoption of the Draft Declaration on the Rights on Indigenous Peoples. Some have gone even further, claiming that a universal definition of indigenous peoples is neither desirable nor necessary for the advancement of work on the Draft Declaration ; it is only essential to acknowledge that such people exist, and that they have a right to be recognized as such and to freely exercise their culture, language or religion. The need for a universal definition would greatly slow down the process of ratification of any declaration or international treaty by UN member states, due to the difficulty that would arise in reaching a consensus on a proper definition. It is argued that for practical purposes, the understanding of the term provided in the Matinez Cobo report or the ILO Convention 169 should suffice.


 Lack of good will from governments

Certain UN member states have insisted on a formal definition of the term 'indigenous peoples' with a view to excluding indigenous peoples rather than achieving clarity about the meaning of the term. States have used the categorization and labeling of different groups to exclude them from influence and participation. Some governments may wish to underestimate the percentage of the population who are indigenous in order to minimize indigenous peoples' political role or deny them access to land, and could use the creation of a universal definition as a tool to achieve that. An example of this occurred in 2002 when the Government of Botswana expelled all the Kalahari Bushmen from the lands they had lived off for at least twenty thousand years. Government ministers described the Bushmen as "stone age creatures" and likened their forced eviction to a cull of elephants. These events passed almost without comment in the world's media, at a time when the eviction of a number of white people from land in nearby Zimbabwe was headline news

Some indigenous representatives also expressed the view that if an explicit definition were included in the draft declaration, it could be used to prevent some indigenous peoples from benefiting from the moral, political and legal impact of the declaration.

The concept of self-determination as opposed to a universal definition is however a double-edge sword. Some governments endorse the idea of having a universal definition of the term, and resist the idea of the right to self determination. They fear that recognition of the right to self determination for indigenous peoples could endorse secession. However self determination could also simple mean full autonomy for a people over its political, economic and cultural affairs; greater participation in national and local political affairs; enhanced respect for a people’s choice of government; or greater respect for individual civil and political rights . Michla Pomerance views self-determination ‘as a continuum of rights, as a plethora of possible solutions, rather than a rigid absolute right to full external self-determination in the form of independence.’ Thus the fear of government that the principle of self determination would necessarily lead to the dismemberment of the country is unfounded. This however explains their reluctance to leave the definition open-ended as opposed to it being universal.

It is also interesting to note how the position of member states with respect to the issue of self determination can change drastically with change in internal government. For instance, Australia was at the forefront of the international community in recognising the right of self determination of its indigenous population. However, with the election of the Howard Liberal government in 1996, Australia's position drastically changed to opposing the inclusion of the article on the right to self determination in the Draft Declaration. This illustrates how consensus building among member states to find a universal definition can seriously be hindered by changes in national policy and reinforces the argument that the endeavour to find a universal definition of the term ‘indigenous’ will greatly inhibit advancement of work on indigenous peoples’ rights.

 State to State differences

Any watertight definition of the term would limit the flexibility of Governments and peoples in applying relevant instruments to their own national circumstances. Various States have used their own domestic definitions for indigenous groups, referring to them by their own distinctive names or tribes. Having one rigid definition of the term indigenous would greatly hinder the ability of States to identify their own indigenous groups, thereby excluding some groups from the rights which they would otherwise have enjoyed.


CONCLUSION

Understanding why minorities require more protection than majority groups is similar to understanding why a baby needs more protection than an adult. While human rights thus acknowledge equal rights for all, they fail to recognize the fact that the feeling of being ‘more equal than others’ held by the majority already exists.

In 1923 Haudenosaunee Chief Deskaheh traveled to Geneva to speak to the League of Nations and defend the right of his people from any external interference. He returned home, disappointed at not having been given the right to speak. Today leaders of indigenous tribes are actively engaged in drafting of resolutions within the United Nations and their participation in other committees such as the CEDAW (Convention on the Elimination of All forms of Discrimination Against Women), CITES (Convention on International Trade of Endangered Species of Wild Fauna and Flora) and the CRC (Convention on the Rights of the Child) are important revelations of the importance accorded to them on the international front.

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