906 PEOPLES' RIGHTS AND SELF-DETERMINATION UNESCO INTERNATIONAL MEETING OF EXPERTS BUDAPEST, HUNGARY 25-29 SEPTEMBER 1991
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906
PEOPLES' RIGHTS AND SELF-DETERMINATION
UNESCO INTERNATIONAL MEETING OF EXPERTS
BUDAPEST, HUNGARY
25-29 SEPTEMBER 1991
UNITED NATIONS EDUCATIONAL SCIENTIFIC & CULTURAL
ORGANIZATION
THE GOVERNMENT OF HUNGARY
INSTITUTE OF LEGAL SCIENCES OF THE
HUNGARIAN ACADEMY OF SCIENCE
International Meeting of Experts
Budapest, Hungary 25-29 September 1991
PEOPLES' RIGHTS AND SELF-DETERMINATION
The Hon Justice Michael Kirby AC CMG
Australia
AN IDEA WHOSE TIME HAS COME
It would be difficult to conceive of a more important,
topical and indeed urgent issue for consideration in the
present state of the world than the peoples' right to
self-determination. Far away, and close at hand, we see
about us evidence of the assertion of this right. . The long
plane journey which brought me to Budapest was virtually a
pilgrimage on the v.ia dolorosa of conflicts over
self-determination.
Australia, with the assertion of the rights of the
Aboriginal people. l Indonesia with the conflicts over
East Timor2 and now Aceh. Across Burma where three
groups wage war. Past the forbidden kingdom of Tibet now
- 1 -
, ;
Woodrow Wilson' 5 insistence upon national self-determination
as the governing principle of the new world order comes of
The
Past
Corsicans ahd
The Indian and Inuit
Over Armenia locked
To the south, the Balkans
Up the spine of the Soviet
New claims .emerging in tlhe
The indigenous people of the
The countries of, .Eastern and
- 2 -
The Polisario peoples undergoing
The Indian people in Fij 1.
Further north the Baltic States,
The people of Kuwait, their identity
Through India, where the Kashmiris
Hungarians in Romania.
The people of Quebec.
Everywhere in Europe the assertion of
Certainly, we are in the midst of ex·traordinary
over the forgotten Kurds. 5
locked in bloody conflict.
neW.
in conflict with Azerbaijan.
!uled by China. 4
claim independence and the Sikhs demand Kalistan.
Afghanistan which has resisted foreign intrusions, old and
f!eshly independent once again.
separate identities.
Tyrrol B .
revolutionary developments.
age. 7
minority rights.
Union, its border States rediscovering and reasserting their
"The ent.ire German people are called up toach.:ieve, .:in free self-determ.:inatJ.:on, the un.lt:yand freedom of Germany. B
Bretons in France. The problem of Northern Ireland.
It has been said that this is the decade in which
its assertion.
Central Europe have re-established their independence.
The idea is by no means confined to Europe. Everywhere we see
German Peop.le, in the Preamble to the Bas.:ic Law:
Germany has achieved the goal declared, in the name of the
referendum in Morocco.
Zulu people in South Africa.
peoples of North America.
restored. The people of Palestine hoping for anew era. The
rain forests of Brazil.f","1:
~. ,
!uled by China. 4 Through India, where the Kashmiris
Past claim independence and the Sikhs demand Kalistan.
Afghanistan which has resisted foreign intrusions, old and
neW. over the forgotten Kurds. 5 Over Armenia locked
in conflict with Azerbaijan. Up the spine of the Soviet
Union, its border States rediscovering and reasserting their
separate identities. Further north the Baltic States,
f!eshly independent once again. To the south, the Balkans
locked in bloody conflict. New claims .emerging in tihe
Tyrro1 6 . Everywhere in Europe the assertion of
minority rights. Hungarians in Romania. Corsicans ahd
Bretons in France. The problem of Northern Ireland.
It has been said that this is the decade in which
woodrow Wilson' 5 insistence upon national self-determination
as the governing principle of the new world order comes of
age. 7 Certainly, we are in the midst of ex-traordinary
revolutionary developments. The countries of, .Eastern and
Central Europe have re-established their independence.
Germany has achieved the goal declared, in the name of the
German Peop.le, in the Preamble to the Bas.:ic Law:
"The ent.ire German people are called up to ach.:ieve, .:in free self-determ.:inatJ.:on, the un.lt:y and freedom of Germany. B
The idea is by no means confined to Europe. Everywhere we see
its assertion. The people of Quebec. The Indian and Inuit
peoples of North America. The Polisario peoples undergoing
referendum in Morocco. The people of Kuwait, their identity
restored. The people of Palestine hoping for a new era. The
Zulu people in South Africa. The indigenous people of the
rain forests of Brazil. The Indian people in Fij i. The
- 2 -
- 3 -
'after Hiroshima,
anthropologist or an historian of ancient times to trace the
II
rI,.r
And
One of them is
It would take an
It is an idea in the
It is in the context of such urgent
It is a phenomenon of our world.
The pope, in his Easter message, calls on
It is not a disembodied idea to be found in law
of New Zealand.
Modern origins of Peoples' rights:
oppressed peoples".
considered.
books, although it is surely there.
"When J..'n t:he course of Human Event:s .it: becomesnecessary for one people to dJ.:sso.lve thejX]lLtLcal bonds wh1'ch have connected them w1'thanother ... 11
clearly a giant of an issue is stirring.
world journals put this issue on their covers, 9
They debate whether the tendency is fusion or
ORIGINS OF TIlE LAW
-fission .10
The modern expression to the right to
political, social and economic developments, that the concept
of the peoples' right to self-determination must be
humanity is one of reconciling the abiding force of group
identity (based on language, culture, history etc) with the
political, economic and technological realities of the world
minds of peoples in every part of the world. The problem for
origins in primitive and ancient peoples of the feeling of
self-determination has a nwnber of sources.
Clearly the DeclaratLon of Independence of the United
States of America which begins:
group identity and its manifestation throughout human
history.
'humanity to "lend an ear ... to the long ignored aspiration
Maori of New Zealand. It is a phenomenon of our world. And
~learlY a giant of an issue is stirring.
World journals put this issue on their covers. 9
They debate whether the tendency is fusion or
. , 10 fis5~on . The pope, in his Easter message, calls on
. humanity to "lend an ear ... to the long ignored aspiration
of oppressed peoples", It is -in the context of such urgent
political, social and economic developments, that the concept
of the peoples' right to self-determination must be
considered. It is not a disembodied idea to be found in law
books, although it is surely there. It is an idea in the
minds of peoples in every part of the world. The problem for
humanity is one of reconciling the abiding force of group
identity (based on language, culture, history etc) with the
political, economic and technological realities of the world
'after Hiroshima.
ORIGINS OF THE LAW
Modern origins of Peoples t rights: It would take an
anthropologist or an historian of ancient times to trace the
origins in primitive and ancient peoples of the feeling of
group identity and its manifestation throughout human
history,
The modern expression to the right to
self-determination has a nwnber of sources. One of them is
Clearly the Declarat.ion of Independence of the United
States of America which begins;
"When J.."n t:he course of Human Event:s .it: becomes necessary for one people to dJ.:sso.lve the p:71.it.ical bonds wh1'ch have connected them w1'th another ... 11
- 4 -
after the First World War, gave the impetus to the notion
international law at all:
The creation of the
This idea, partly implemented
Within the League of Nations r a
to have independence from another.
"This pr2'nc2'ple is not, properly speaking, arule of int:ernationa1 law ... It: 1s a prJ..'ncJ..p1eof justice and of liberty ... To concede tominorities, either of language or religion, orto any faction of a population the right ofw2'thdrawing from the cOJl1Jllunity to wh.ich theybelong, .because .it .is the.ir wish or the.ir goodpleasure, would .be to dest:roy order andstability within States and to inaugurateanarchy J..'n J.'nt:ernatJ..'ona1 l.ife. 12
The Civil War of the United States had its origin in a number
of issues. Today, it is being reconsidered in the context of
the right of one section of the peoples of a political Union
"self-determination" of peoples was not a concept known to
However, the danger of the idea of "self-determination"
the defeated Central Powers.
in the settlement of European and Middle Eastern borders
united States as a modern and increasingly powerful nation,
with a constitutional Bill which inculcated notions of
individual rights led naturally to the insistence, in
president Wilson's Fourteen points for the Great War, upon
the idea of self-determination r at least for the peo.ple \of
that peoples r as such, having certain common characteristics r
same or similar people, to have determination of their own
enjoy a kind of natural law entitlement, in concert with the
de feated powers in 1919,
Notwithstanding this op'inion r the fascination of the
"self-determination II idea gathered force between the two
was readily apparent to the victorious as well as to the
committee of rapporteurs that year expressed the opinion that
. political government.
The Civil War of the United States had its origin in a number
of issues. Today, it is being reconsidered in the context of
the right of one section of the peoples of a political Union
to have independence from another. The creation of the
united States as a modern and increasingly powerful nation,
with a constitutional Bill which inculcated notions of
individual rights led naturally to the insistence, in
president Wilson's Fourteen points for the Great War r upon
the idea of self-determination r at least for the peo.ple \of
the defeated Central Powers. This idea, partly implemented
in the settlement of European and Middle Eastern borders
after the First World War, gave the impetus to the notion
that peoples, as such, having certain common characteristics r
enjoy a kind of natural law entitlement, in concert with the
same or similar people, to have determination of their own
. political government.
However, the danger of the idea of "self-determination"
was readily apparent to the victorious as well as to the
de fea ted powers in 1919. Within the League of Nations r a
committee of rapporteurs that year expressed the opinion that
"self-determination" of peoples was not a concept known to
international law at all:
"This pr2'nc2'ple is not, properly speaking, a rule of int:ernat:ional law It: 1s a prJ . .'ncJ.p1e of just:ice and of liberty ... To concede to minorities, eit:her of language or religion, or to any faction of a population the right of w2'thdrawing from the community to wh.ich they belong, .because .it .is the.ir wish or the.ir good pleasure, would .be to dest:roy order and stability within States and to inaugurate anarchy J."n J."nt:ernatJ.'ona1 l.ife. 12
Notwithstanding this op'inionr the fascination of the
"self-determination II idea gathered force between the two
- 4 -
- 5 -
Doubtless under the same influence, the Charter of
S_econd World War adopted, also under pressure from the
The Allied War aims during the
Its first Article states that the
those under colonial rule- or rule mandated
Some writers suggest that there was growingWars.
The UN Charter:
that it applied to all kinds of "peoples" without
distinction, including those occupied and oppressed by
"[It .is Jeg.itimate} first to ensure thatnationals be.long.ing to rac.ia.l, re.1.igious orlinquistic minorities shall be placed in everyrespect on a footinq of perfect equal.ity withthe other nat.iona1s of the State. The second isto ensure for the minority elements suitablemeans for the preservation of the.ir racialpecu.l.iar1t.ies, the.ir tradit.ions and theirna t i on"a1 chara c ter1 s tics. These tworequ.irements are indeed c.1ose.1y interlocked, forthere wou.ld be no true equal.ity between amajority and a m1nor1ty if the latter weredepr.ived of J..'ts own .instJ..'tutJ..'ons, and wereconsequently compelled to renounce that whichconstJ..'tutes the very essence of ..its beJ..'ng as aRlJ..'norJ..'ty.16
President of the United States, the aspiration of an
international order to ensure uself-determination for peoples
living under foreign rule" .17
by the League, but also peoples living entirely as minority
grOUpS within a State ruled by another "people".l4
In the Permanent Court of International Justice, in the
concerning minority schools in Albania in 1935," a
distinction was drawn between discriminatory laws and thdse
designed to safeguard the rights of indigenous minorities
living within a State. 1S The Court said:
the United Nations II •
the United Nations is declared in the name of the "Peoples of
purposes of the new organisation are:
-defeated powers;
:':-
;:!
Some writers suggest that there was growing
acceptance that it applied to all kinds of "peoples" without
distinction, including those occupied and oppressed by
-defeated powers; those under colonial rule' or rule mandated
by the League, but also peoples living entirely as minority
grOUpS within a State ruled by another "people".l4
In the Permanent Court of International Justice, in the
_,ca.se concerning minority schools in Albania in 1935," a
distinction was drawn between discriminatory laws and thctse
designed to safeguard the rights of indigenous minorities
living within a State. 1S The Court said:
"[It .is Jeg.itimate} first to ensure that nationaJs be.long.ing to rac.ia.l, re.l.ig.ious or linguistic minorities shall be placed in every respect on a footinq of perfect egual.ity with the other nat.ionaJs of the State. The second is to ensure for the minority eJements suitabJe means for the preservation of the.ir raciaJ pecu.l.iar.it.ies, the.ir tradit.ions and their na t i on"aJ chara c ter is tics. These two requ.irements are indeed c.lose.ly inter.locked, for there wou.ld be no true equa.l.ity between a majority and a m.inor.ity if the Jatter were depr.ived of J.'ts own .instJ."tutJ.'ons, and were conseguently compelled to renounce that wh.ich constJ."tutes the very essence of .its beJ."ng as a R1J."norJ.'ty.16
The UN Charter: The Allied War aims during the
S.econd World War adopted, also under pressure from the
President of the United States, the aspiration of an
international order to ensure uself-determination for peoples
living under foreign rule" .17
Doubtless under the same influence, the Charter of
the United Nations is declared in the name of the "Peoples of
the United Nations". Its first Article states that the
purposes of the new organisation are:
- 5 -
paid to incorporating the peoples' right to
a provision be inserted in the Internat.ional Covenant on
independence according to:
,is
the76 ,
peoples
They asserted
of
articleby
The Committee reporting
self-determination
example,
In 1949, the Soviet Union proposed that
In the development of the International
the
For
to
The United Kingdom, France, Belgium and
iSystem is established to promote the progressive
II [rjO ma.inra.in J."nt:ernat:.iona.l peace and secur.ityand
The ICCPR:
Trusteeship
organisation
repeated. 19
Bill of Rights in the two decades following the establishment
of the United Nations, 21 a great deal of attention was
advancement of Trust Territories towards self-government or,
[t:]0 develop fr.iendly relat:.ions amonq nat:.ionsbased on respect: for t:he pr.inc.iple of equa.lr1giJts and self-detem.inat.ion of peoples/ and totake other appropr.iate measures to strenqt:henun.iversa.l peace_ 1S
liThe freely expressed w.ishes of the peop.lesconcerned and as may be prov.ided for the termsof each trusteesh.ip agreement_ 20
In other provisions of the Charter the commitment of the
C.ivll and pol.it:lcal Rlqht:s (ICCPR), effectively to confine
self-determination.
the obligation to grant self-determination only to colonial
powers_ 22
others opposed the idea pointing to the generality of the
concept in Article 1 (2) of the Chart:er.
that it was essential to include the right to
self-determination in the International Bill of Rights_ But
the concept was not defined. 23
on it said, enigmatically:
- 6 -
.. : L
II [rjO ma.inra.in J."nt:ernat:.iona.l peace and secur.ity and
[t]O develop fr.iendly relat.ions amonq nat.ions based on respect for the pr.inc.iple of equa.l rights and self-determ.inat.ion of peoples/ and to take other approprJ."ate measures to strenqt:hen un.iversa.l peace_ 1B
In other provisions of the Charter the commitment of the
organisation to the self-determination of peoples ,is
d 19 repeate . For example, by article 76 , the i
Trusteeship System is established to promote the progressive
advancement of Trust Territories towards self-government or
independence according to:
liThe freely expressed w.ishes of the peop.les concerned and as may be prov.ided for the ter.ms of each trusteesh.ip agreement_20
The ICCPR: In the development of the International
Bill of Rights in the two decades following the establishment
of the United Nations, 21 a great deal of attention was
paid to incorporating the peoples' right to
self-determination. In 1949, the Soviet Union proposed that
a provision be inserted in the Internat.ional Covenant on
C.ivll and pol.itlcal Rlqhts (ICCPR), effectively to confine
the obligation to grant self-determination only to colonial
powers.22 The United Kingdom, France, Belgium and
others opposed the idea pointing to the generality of the
concept in Article 1 (2) of the Charter. They asserted
that it was essential to include the right to
self-determination in the International Bill of Rights. But
the concept was not defined. 23
on it said, enigmatically:
- 6 -
The Committee reporting
fundamental human rights""
Reflecting a by now common theme, however, the
encouragement of actions which impaired or threatened the
I' !
They
Throughout
to sel f-.r.ight theystatus and
soc..lal and
- 7 -
Dr Kwame Nkrumah (Ghana) urged a redrawn map
He pointed to the artificiality of colonially
Without dis senting voice, it was agreed to
"All people have the r.ightdet:erminat.lon, By v.lrt:ue of that:freely determ.ine the~'r pol.it.icalfreely pursue the.ir econom1c,cultural deve.lopnent:, ,,25
terms:
In 1960 the General Assembly adopted the Declaration
"The subJuqat10n of peoples t:o aliensubjuqat:.lon, dom.inat.ion and explo.it:at:.ion."
Peoples. 27
on the Grantinq of Independence to Colon-lal Caunt:ries and
A number of States opposed the Article in this form.
"Concern,inq the pr.lnciple of self-dete.r:m.inat.ion,.it was stronqly emphasised on the one s.ide t:hat:this principle corresponded closely to the willand desire of peoples everywhere and should beclearly enunciated in t:he chapt:er; on the otherside, it: was stated that the principle conformedto the purposes of the Charter, only insofar asit .implied the right of self-determination ofpeoples and not the r~'ght of secess~·on.24
In the end, the provision adopted was expressed in general
denounce, as contrary to the Chart:er and as a "denial of
for disaster.
Declarat.ion, at its close, cautioned against the
e~pressed fear that it would confer rights of secession on
minorities although many experts did not concede that
interpretation. 26
Africa in particular, but also in other newly independent
States, the idea of redrawing the map was seen as a recipe
territorial integrity or unity of States. 28
of Africa.
.'
"Concern,inq the pr.inciple of self-dete.nn.inat.ion, .it was stronqly emphasised on the one s.ide t:hat: this principle corresponded Closely to the will and desire of peoples everywhere and should be clearly enunciated in t:he chapt:er; on the other side, it: was stated that the principle conformed to the purposes of the Charter, only insofar as it .implied the right of self-determination of peoples and not the r~'ght of secess~·on.24
In the end, the provision adopted was expressed in general
terms:
"All people have the r.ight det:erminat.lon, By v.irt:ue of that: freely determ.ine the~'r pol.it.ical freely pursue the.ir econom.ic, cultural developnent:,1125
to sel f-. r.ight they status and
soc.lal and
A number of States opposed the Article in this form. They
e~pressed fear that it would confer rights of secession on
minorities although many experts did not concede that
interpretation. 26
In 1960 the General Assembly adopted the Declaration
on the Grantinq of Independence to Colon.ial Count:ries and
Peoples. 27 Wi thout dis senting voice, it was agreed to
I· denounce, as contrary to the Chart:er and as a "denial of
,
.'
fundamental human rights""
liThe subJuqat.ion of peoples t:o alien subfuqat:.lon, dom.inat.ion and explo.it:at:.ion."
Reflecting a by now common theme, however, the
Declarat.ion, at its close, cautioned against the
encouragement of actions which impaired or threatened the
territorial integrity or unity of States. 28 Throughout
Africa in particular I but also in other newly independent
States, the idea of redrawing the map was seen as a recipe
for disaster. Dr Kwame Nkrumah (Ghana) urged a redrawn map
of Africa. He pointed to the artificiality of colonially
- 8 -
t:he Chart:er of t:he Unit:ed Nat:ions.
This Charter sought to redefine the rights of all
This
The principle of the peopl~s'
However, whilst denouncing alien
However I the idea was never popular
Ghana itself had seventeen major ethnic
Resolutions of the General Assembly and the
The Organisation for African Unity opted, from the
Fears of secession:
determined borders.
tribes.
start, for the stability of the colonial boundaries.
current borders.
(1965-1980) .
and Biafara to be dealt with.
"The right: free1y t:o det:eI1l1ine wit:hout: ext:erna1.interference/, the.ir po1.it.ical status and topursue the.ir econom.ic/, soc.ial and culturaldevelopnent. n30
amongst the political representatives of developing countries
who drew their power and legitimacy from States based on
"illegal 1l, including upon the ground of their non-compliance
In 1970, the General Assembly adopted the Dec1arat:ion
left, however, irredentist claims in Morocco, the ethnic
demands of Somalia and the attempts of secession by Katanga
right to self-determination was used to deny recognition to
South Africa's Bantustan llStates" and recognition of Rhodestia
Security Council condemned these States as 1l invalid" and
on Pr1nc.iples of Internat.ional Law concern.ing Fr.iendly
Relat.ions and Cooperat.ion amongst States .in Accordance w.ith
with the obligation to accord their peoples the right to
self-determination. 29
peoples to self-determination as:
SUbjugation, domination and exploitation and calling for
independence for colonial peoples and countries, the
Declarat.ion contained the standard warning against
interpreting the right as:i1<
t
determined borders. However I the idea was never popular
amongst the political representatives of developing countries
who drew their power and legitimacy from States based on
current borders. Ghana itself had seventeen major ethnic
tribes. The Organisation for African Unity opted, from the
start, for the stability of the colonial boundaries. This
left, however, irredentist claims in Morocco, the ethnic
demands of Somalia and the attempts of secession by Katanga
and Biafara to be dealt with. The principle of the peopl~s'
right to self-determination was used to deny recognition to
) - South Africa's Bantustan 1IStates" and recognition of Rhodest{a
.1 I.·
I
I I r
1 f
I
(1965-1980) . Resolutions of the General Assembly and the
Security Council condemned these States as 11 invalid" and
"illega1 1l, including upon the ground of their non-compliance
with the obligation to accord their peoples the right to
self-determination. 29
In 1970, the General Assembly adopted the Dec.larat:ion
on Pr1nc.iples of Internat.ional Law concern.ing Fr.iendly
Relat.ions and Cooperat.ion amongst States .in Accordance w.ith
t:he Chart:er of t:he [fnit:ed Nat:.ions.
This Charter sought to redefine the rights of all
peoples to self-determination as:
"The right: free.ly t:o det:eI1l1ine wit:hout: ext:erna.l .interference/, the.ir po1.it.ical status and to pursue the.ir econom.ic/, soc.ial and cultural developnent~ n30
Fears of secession: However, whilst denouncing alien
Subjugation, domination and exploitation and calling for
independence for colonial peoples and countries, the
Declarat.ion contained the standard warning against
interpreting the right as:
- 8 -
- 9 -
. right would continue as a notion for J.·nterna.l minorities
"peoples" formed "on the basis of political consciousness but
AS many wr i ters
The idea that that
The so-called II salt
Instead it rested the exercise of the
peoples' right to self-determination.
The idea of the peoples' right to self-determination is
peoples' right of self-determination .
water doctrine" gained much currency. Thus, some writers a'rid
many leaders considered that only non self-governing
territories, separated geographically from the administering
State (as by an ocean), were entitled to exercise the
living under foreign rule are entitled to
"Encouraq.inq any act.ion wh.ich wou.ld dismember orimpair/ totally or .in part/ the terr.itor.ialinteqrity or po1.itical un.ity of sovere.ign andindependent States conductJ.·ng themse.lves J.·ncompl.iance w.ith the pr.inc.iple of equal r2'qhtsand self-determ.inat.ion of p!!oples as descr.ibedabove. "
The "salt water" doctrine- abandoned the concept that
Notwithstanding the generality of the language of the
united Nations Charter, and the International Bill of
Rights, the fear about anarchy let loose upon t'h-e
international order produced valiant attempts to confine ~he
of such States, once independent, was dOUbted, criticised and
even denounced. 31
right upon his tor ical phenomena. 32
self-determination" .
have pointed out, it is difficult to justify such a
restrictive interpretation upon the basis of the language of
the Charter, the foundation of the Charter in the
not confined to the Charter, Treaties and Declarations
peoples of the United Nations, the purpose of the provision,
and the underlying conceptual basis upon which it rests.
"Encouraq.inq any act.ion wh.ich wou.ld dismember or impair/ totally or .in part/ the terr.itor.ial inteqrity or po1.itical unity of sovereign and independent States conductJ.'ng themse.lves J.'n compliance w.ith the pr.inc.iple of equal r2'qhts and self-determ.inat.ion of p!!oples as descr.ibed above. II
Notwithstanding the generality of the language of the
united Nations Charter, and the International Bill of
Rights, the fear about anarchy let loose upon t'h"e
international order produced valiant attempts to confine ~he
peoples' right to self-determination. The so-called II salt
water doctrine" gained much currency. Thus, some writers a'rid
many leaders considered that only non self-governing
territories, separated geographically from the administering
State (as by an ocean), were entitled to exercise the
peoples' right of self-determination. The idea that that
(' . right would continue as a notion for J.'nterna.l minorities
; .
of such States, once independent, was doubted, criticised and
even denounced. 31
The "salt water" doctrine abandoned the concept that
"peoples" formed "on the basis of political consciousness but
living under foreign rule are entitled to
self-determination" . Instead it rested the exercise of the
right upon his tor ical phenomena. 32 AS many wr i ters
have pointed out, it is difficult to justify such a
restrictive interpretation upon the basis of the language of
the Charter, the foundation of the Charter in the
peoples of the United Nations, the purpose of the provision,
and the underlying conceptual basis upon which it rests.
The idea of the peoples' right to self-determination is
not confined to the Charter, Treaties and Declarations
- 9 -
- 10 -
Cooperat.ion in Europe did so in these terms:
He.lsink.i F.ina.l Agreement of the Conference on Secur.ity and
, .
part ofAs
For example, the
Gradually it has been
Its violation is "a most serious
UNESCO has made a continuing and
It has done so by convening a series of
international crime".34
At the most recent meeting in Paris, in
an
In the opinion of the International Law
UNESCO' 5 role:
approved by the United Nations.
law. 33
regarded as .Jus cogens.
offence,
peoples' right to self-determination. 35
Outside the United Nations t important international
international customary law it is binding on all States. The
International Court of Justice has also reaffirmed, in a
number of decisions, the obligation of members of the, uni~ed
Nations to promote and support the realisation of the
"By v.irtue of the princ.iple of equal rights andself-determLnatLon of peoples, a.ll peoplesalways have that r.iqht, .in full freedom, todet:enn.ine when and as they w.ish, the.ir .int:ernaland external pol.it.ica.l status, without externa.linterference, and to pursue as they wish, theirpo.l.itLca.l, economic, social and cu.ltura1deve.lopnent,,36
statements of principle have accorded full recognition to the
commission, the right of self-determination must now be
accepted as a concept of customary international
peoples right to self-deterrninatioD.
notable contribution to the attempts to give greater cl~rity
and specificity to the concept. of the peoples' right to
self-determination.
latest.'7
meetings, of which this meeting in Hungary is but the
November 1989, experts endeavoured to provide a description
(not a definition) of who are a "people" for the purpose of
enjoying the peoples' right to self-determination accorded by
L
I
I I ,-f
f :
f: t' I
1" , I t , r ,
I
approved by the United Nations. Gradually it has been
accepted as a concept of customary international
In the opinion of the International Law
commission, the right of self-determination must now be
regarded as .Jus cogens. Its violation is "a most serious
offence, an international crime".34 As part of
international customary law it is binding on all States. The
International Court of Justice has also reaffirmed, in a
number of decisions, the obligation of members of the, uni~ed
Nations to promote and support the realisation of the
peoples' right to self-determination. 35 , .
Outside the United Nations, important international
statements of principle have accorded full recognition to the
peoples right to self-determination. For example, the
He.lsink.i Fina.l Agreement of the Conference on Security and
Cooperation in Europe did so in these terms:
"By virtue of the principle of equal rights and self-determ,inatJ,'on of peoples, a.ll peoples always have that r.iqht, .in full freedom, to det:ermine when and as they wish, their int:ernal and external politica.l status, without externa.l interference, and to pursue as they wish, their po.lJ,·tJ,·ca.l, economJ,'c, soc,ial and cu.ltura1 deve.lopnent,,36
UNESCO' 5 role: UNESCO has made a continuing and
notable contribution to the attempts to give greater cl~rity
and specificity to the concept. of the peoples' right to
self-determination. It has done so by convening a series of
meetings, of which this meeting in Hungary is but the
latest. 37 At the most recent meeting in PariS, in
November 1989, experts endeavoured to provide a description
(not a definition) of who are a "people" for the purpose of
enjoying the peoples' right to self-determination accorded by
- 10 -
- 11 -
land.
future, eg for the Kurds, the Palestinians, the Cambodians,
However,
So far as the claims
Suggestions are now being
Others may be needed in the
Th:e liberation idea can be readily
But from time to time, under the United
Claims of indigenous peoples:
sensitive topics.
determine their own group organisation and polity.
the Sudanese, the Ruandins etc.
political entities.
Nations aeg is, re ferenda are held to permit people to
determine their political, economic and cultural future. One
such venture is current at the moment as a result of the
special problems are presented by the threat of secession by
peoples associated with particular territories and the
demands of indigenous people in a territory now containing
many other peoples, for the recognition of rights deriving
from their historical, indigenous or aboriginal links to elle
The hard issues, therefore, in the peoples' right to
self-determination concern secession and regrouping political
rights (on the one hand) and the rights of indigenous
populations to self-determination, on the other.
There is no agency in the United Nations system which
is established to assist in the lawful and peaceful procedure
of peoples' secession from States and regrouping in new
Polisario rebellion in Moroco.
international law. 38 As explained by the experts, the
definition of a "people" and the clarification of the right
to self-determination are inescapably controversial and
accepted and people in groups accorded the opportunity to
of indigenous populations are concerned, they run into the
advanced for a just procedure by which such claims could be
settled within the United Nations systern. 39
international law.38 As explained by the experts, the
definition of a "people" and the clarification of the right
to self-determination are inescapably controversial and
sensitive topics. Th:e liberation idea can be readily
accepted and people in. groups accorded the opportunity to
determine their own group organisation and polity. However,
special problems are presented by the threat of secession by
1 peoples associated with particular territories and the
demands of indigenous people in a territory now containing
many other peoples, for the recognition of rights deriving
from their historical, indigenous or aboriginal links to elle
land.
The hard issues, therefore, in the peoples' right to
self-determination concern secession and regrouping political
rights (on the one hand) and the rights of indigenous
populations to self-determination, on the other.
There is no agency in the United Nations system which
is established to assist in the lawful and peaceful procedure
of peoples' secession from States and regrouping in new
political entities. But from time to time, under the United
Nations aeg is, re ferenda are held to permit people to
determine their political, economic and cultural future. One
such venture is current at the moment as a result of the
Polisario rebellion in Moroco. Others may be needed in the
future, eg for the Kurds, the Palestinians, the Cambodians,
the Sudanese, the Ruandins etc. Suggestions are now being
advanced for a just procedure by which such claims could be
settled within the United Nations systern. 39
Claims of indigenous peoples: So far as the claims
of indigenous populations are concerned, they run into the
- 11 -
- 12 -
could focus, in particular, on this right as it refers to
Minorities should appoint a special rapporteur to "further
The proposal was
It suggested that he
increasing question by
view of international
Although that doctrine is
coming under
the dominant
A detailed report was prepared by Mr J R M
He concluded that the peoples right to
self-protective assertion of nation States that the peoples'
right to self-determination is to be viewed by reference to
the IIsalt water doctrine".
probably still
lawyers,40 it is
indigenous nations and peoples". 42
study the right to self-determination.
accepted.
Cobo. 43
representatives of minorities and indigenous
1 t · 41popu a J,.ons.
In 1981, an international non-governmental organisation
conference on indigenous people included in its, finial
declaration a request that the United Nations Subcommission
on the Prevention of Discrimination and Protection bf
only concept which would respond to" the needs of the
indigenous and tribal organisations present. 44
self-determination was the basic precondition for the
enjoyment by indigenous peoples of their fundamental rights.
At a meeting of experts on the revision of the
Ind.igenous and Tr.iha.l Popu.lat:.ions Convent:.ion in 1986, the
peoples' right to self-determination was declared to be "the
"Whereas a.l.l Nat:.ions and Peop.les possess t:be
In February 1991 at a Founding Assembly held at the
Peace Palace in the Hague, representatives of the
"unrepresented nations and peoples" joined in a
Covenant. Its first words are unsurprising:
self-protective assertion of nation States that the peoples'
right to self-determination is to be viewed by reference to
the IIsalt water doctrine". Although that doctrine is
probably still the dominant view of international
40 ';t lawyers, ..L. is coming under increasing question by
representatives of minorities and indigenous
1 t · 41 papu a J..ons.
In 1981, an international non-governmental organisation
conference on indigenous people included in its, finial
declaration a request that the United Nations Subcommission
on the Prevention of Discrimination and Protection bf
Minorities should appoint a special rapporteur to "further
study the right to self-determination. It suggested that he
t could focus, in particular, on this right as it refers to
1 l 1
~. i
I
c , !
I I
indigenous nations and peoples". 42 The proposal was
accepted.
Cobo. 43
A detailed report was prepared by Mr J R M
He concluded that the peoples right to
self-determination was the basic precondition for the
enjoyment by indigenous peoples of their fundamental rights.
At a meeting of experts on the revision of the
Ind.igenous and Tr.iha.l Popu.lat:.ions Convent:.ion in 1986, the
peoples' right to self-determination was declared to be "the
only concept which would respond to" the needs of the
indigenous and tribal organisations present. 44
In February 1991 at a Founding Assembly held at the
Peace Palace in the Hague, representatives of the
"unrepresented nations and peoples" joined in a
Covenant. Its first words are unsurprising:
"Whereas a.l.l Nat:.ions and Peop.les possess t:be
- 12 -
issues which need particular attention in contemporary
fiercest battles about "peoples' rights" have been waged
circumstances.
Most of the
It remains only to list the
- 13 -
international law;
r.ight to self-determ.inat.ion; by v.irtue of thatr.ight they freely determ.ine the.ir pol.it.icalstatus and freely pursue their economic/ soc.ialand cultural developnent;
beyond a very small class (such as the right to
self-determination); and
conceptions of rights as an excuse for derogating from
individual human rights;
Whether, if such peoples' rights exist they extend
Whether peoples' rights are antithetical to human
rights, providing a basis for authoritarian and statist
Whether such rights exist, separately from the
aggregation of individual rights recognised by
The peoples' rights controversy:
fihereas many Nat.ions and Peop1es suffer undera1.ien or cOolon.ial occupat.ion or dominat.ion orare otherwise denied t:he exercise of their rightto self-dete.z::mination;
FYhereas the r.ights of .ind.iv.iduals and thecollect.ive r.ights of Peoples are .inextr.icablyl.inked;
Hhereas the protect.ion of the naturalenv.ironment .is s.im.ilarly l.inked to the r.ights ofnat.£ons and peoples to determ.ine the.ir own,destiny . .. ,,45
self-detennination up to date.
ISSUES FOR ATTENTION
*
over:
*
This review brings the story of the international moves for
*
the legal recognition and definition of the peoples right to
r.ight to self-determ.inat.ion; by v.irtue of that r.ight they freely determ.ine the.ir pol.it.ical status and freely pursue their economic/ soc.ial and cultural development;
Plhereas many Nat.ions and Peoples suffer under a1.ien or co.lonial occupat.ion or dominat.ion or are otherwise denied the exercise of their right to self-deter.mination;
f(hereas the r.ights of .ind.iv.iduals and the collect.ive r.ights of Peoples are .inextr.icably l.inked;
Hhereas the protect.ion of the natural env.ironment .is s.im.ilarly l.inked to the r.ights of nat.ions and peoples to determ.ine the.ir own, destiny . ~ ~ ,,45
This review brings the story of the international moves for
the legal recognition and definition of the peoples right to
self-detennination up to date. It remains only to list the
issues which need particular attention in contemporary
circumstances.
ISSUES FOR ATTENTION
The peoples' rights controversy: Most of the
fiercest battles about "peoples' rights" have been waged
over:
*
*
*
Whether such rights exist, separately from the
aggregation of individual rights recognised by
international law;
Whether peoples' rights are antithetical to human
rights, providing a basis for authoritarian and statist
conceptions of rights as an excuse for derogating from
individual human rights;
Whether, if such peoples' rights exist they extend
beyond a very small class (such as the right to
self-determination); and
- 13 -
self-determination extends to internal minorities
- 14 -
under foreign rule or domination?;
ini
and
This
now what they are
of peoples' rights
More useful t in the context of
existence
question is
If so who are a 11 people 11 entitled to
It is difficult to answer this question..
deny the
law. The
Issues for our time:
properly "rights" at all, ie whether it is helpful to
talk of a "right" to development or to cultural
identity. 46
Whether the suggested catalogue of peoples' rights are
within a State.
•
impossible to
international
for the concept is in a state of rapid development.
L Whether there is any legitimate basis to read down
only to colonial or Trusteeship peoples, or peoples
subject to the "salt water doctrine" or peoples living
Article 1(2) of the United Nations Charter to apply
In the face of the plain tenns of Article 1 of the United
Nations Charter, and the whole development of the
peoples' right to self-determination since 1945, it is now
such "self-determination"?;
what they require.
the peoples' right to self-determination is it to ask
experts. It is unprofitable to go over such questions.
questions which advance the debate beyond the point already
reached. These questions include:
much has been established in earlier meetings of UNESCO
2. Whether the concept of the peoples' right to
3. Particularly in the case of indigenous peoples (but
equally for peoples whose ancestors have long settled
in a particular geographical place) how is their right
whether the suggested catalogue of peoples' rights are
properly "rights" at all, ie whether it is helpful to
talk of a "right" to development or to cultural
identity. 46
In the face of the plain tenns of Article 1 of the United
Nations Charter, and the whole development of the
peoples' right to self-determination since 1945, it is now
deny the of peoples' rights existence in impossible to i
international law. The question is now what they are and
what they require. It is difficult to answer this question , . for the concept is in a state of rapid development. This
much has been established in earlier meetings of UNESCO
experts. It is unprofitable to go over such questions.
Issues for our time: More useful t in the context of
the peoples' right to self-determination is it to ask
questions which advance the debate beyond the point already
reached. These questions include:
L Whether there is any legitimate basis to read down
Article 1(2) of the United Nations Charter to apply
only to colonial or Trusteeship peoples, or peoples
subject to the "salt water doctrine" or peoples living
under foreign rule or domination?;
2. Whether the concept of the peoples' right to
self-determination extends to internal minorities
within a State. If so who are a "people" entitled to
such "self-determination"?;
3. Particularly in the case of indigenous peoples (but
equally for peoples whose ancestors have long settled
in a particular geographical place) how is their right
- 14 -
to "self-determination" to be reconciled with the
rights of others in the State in which they exist?
What does Itself-determination" require for, say, the
Inuit of Canada, the Aboriginals of Australia or the
Maoris of New Zealand? What does it require for people
of the Hungarian speaking minority .in Romania? Or for
the Afrikaners and Zulus in a future democratic South
Africa? ;
4. Is there a concept of .internal "self-determinatidn"
known to international law?47 If there is, how
can it be developed in a way respectful for the peoples
right of self-determination by avoiding the
re-emergence of territorial enclaves with features of
exclusiveness that marked the illegal apartheid regime
of South Africa?;
5. What implications does the peoples' right to
self-determination have for the development of new
political associations, beyond the unitary nation
State? Can new forms of federal or like political
association be developed to provide at once the
political framework for a nation State so familiar to
international law but at the same time respecting the
rights to self-determination of various peoples living
within that State? Is there such a new arrangement
which can be adapted for the challenges posed by the
assertions of the right to self-determination of the
peoples of Hong Kong, entering the Peoples' Republic of
China after 19977 The peoples of Tibet within China?
The peoples of the various Republics of the Soviet
Union? The peoples of Yugoslavia? Or the Zulu or Boer
- 15 -
to "self-determination"
rights of others in the
to be reconciled with the
State in which they exist?
What does "self-determination" require for, say, the
Inuit of Canada, the Aboriginals of Australia or the
Maoris of New Zealand? What does it require for people
of the Hungarian speaking minority .in Romania? Or for
the Afrikaners and Zulus in a future democratic South
Africa? ;
4. Is there a concept of .internal " sel f-determinatidn "
known to international law?47 If there is thaw
can it be developed in a way respectful for the peoples
right of self-determination by avoiding the
re-emergence of territorial enclaves with features of
exclusiveness that marked the illegal apartheid regime
of South Africa?;
5. What implications does the peoples' right to
self-determination have for the development of new
poli tical associations t beyond the unitary nation
State? Can new forms of federal or like political
association be developed to provide at once the
political framework for a nation State so familiar to
international law but at the same time respecting the
rights to self-determination of various peoples living
within that State? Is there such a new arrangement
which can be adapted for the challenges posed by the
assertions of the right to self-determination of the
peoples of Hong Kong, entering the Peoples' Republic of
China after 19971 The peoples of Tibet within China?
The peoples of the various Republics of the Soviet
Union? The peoples of Yugoslavia? Or the Zulu or Boer
other issues are truly questions for our time.
of the United Nations address these questions.
has played an indispensable r61e in the
of claims of derogation from the full attributes of
III
ItI;1I'·1l,
ji~'
I
1I,I ij
Ii:,
!I
L
IThe full
Fori
attainment
it is essential that the, .
of the concept of peoples' rights.
and peoples' rights I
and security of the world and the full
peoples of South Africa?; and
IS there a need for a new international agency and/or
procedure whereby peoples (colonial, occupied, minority
or indigenous) can secure the effective investigation
of UNESCO's work is only now realised as the world
enormous contemporary challenge of the assertion
self-determination and a peaceful means to a~sure their
achievement?
ESCO, despite initial resistance from a number of powerful
of the peoples' right to self-determination. It
be one of the most important issues to accompany
next millennium.
FOOTNOTES
1.
President of the New South Wales Court ofAppeal, Australia; Commissioner andChairman-elect of the Executive Committee of theInternational Commission of Jurists, Geneva.Personal views.
Australia, the Law Reform Commission, The Recogn.it.ion
of Abor.lq.lnal Customary Laws, ALRC 31; AGPS,
, II I
I
Canberra, 1986, vol i, l08f£. See also B Smith
- 16 -
peoples of South Africa?; and
IS there a need for a new international agency and/or
procedure whereby peoples (colonial, occupied, minority
or indigenous) can secure the effective investigation
of claims of derogation from the full attributes of
self-determination and a peaceful means to a~sure their
achievement?
and other issues are truly questions for our time. For i
and security of the world and the full attainment
human and peoples I rights I it is essential that the , . of the United Nations address these questions.
despite initial resistance from a number of powerful
has played an indispensable r61e in the
of the concept of peoples' rights ° The full
of UNESCO's work is only now realised as the world
the enormous contemporary challenge of the assertion
of the peoples' right to self-determination ° It
surely be one of the most important issues to accompany
into the next millennium.
FOOTNOTES
President of the New South Wales Court of Appeal, Australia; Commissioner and Chairman-elect of the Executive Committee of the International Commission of Jurists, Geneva. Personal views.
1. Australia, the Law Reform Commission, The Recogn1t.ion
of Abor.lrponal Cust:omary Laws, ALRC 31; AGPS,
Canberra, 1986, vol i, 108ff. See also B Smith
- 16 -
- 17 -
7. N MacCormick, "Of Self-Determination and Other Things",
in (1990) 15 Bullet:in Aust: Soc Leg Philos 1, 9.
8. Preamble to the Basic Law of the Federal Republic
of Germany. See discussion J Brunne e, "The
Reunification of Germany: comments on a Legal Maze",
(1990) 13 Dalhousie LJ 725.
9. See eg Time Hagazine, 24 June 1991, 16 ("The
Unwanted") .
10. See The Economist:, 6 october 1990, 15 ("Go Forth
and unify"). See also ibid, 23 June 1990, 9.
"self-Determination - Helping Aboriginal Families to
Realise the Ideal" (1991) 29 -Family Hat:t:ers (Aust
Fam Studies) 45.
2. portugal has commenced proceedings in the International
court of Justice against Australia arising out of the
Timor Gap Treaty sig!1ed between Australia and
Indonesia.
3. An Indonesian court has reportedly sentenced a member
of a separate organisation in the western province lof
Aceh to ten years imprisonment. sydney Horn.ing
Herald, 9 July 1991, 9. ,.
4. International committee of Lawyers for Tibet, The
Right: of t:he Tihet:an people to self-Det:erminat:ion,
preliminary Report, July 1990 (hereafter Tibet Report).
5. In the aftermath of the war following the occupation of
Kuwait, demands were made for a united Nations
protected enclave for Kurdish refugees.
6. A demand for an independent <;erman-speaking State of
Tyrrol was reported from North Italy on 17 september
1991.
"self-Determination - Helping Aboriginal Families to
Realise the Ideal" (1991) 29 -Family Hat:t:ers (Aust
Fam Studies) 45.
2. portugal has commenced proceedings in the International
court of Justice against Australia arising out of the
Timor Gap Treat:y si9!led between Australia and
Indonesia.
3. An Indonesian court has reportedly sentenced a member
of a separate organisation in the western province lof
Aceh to ten years imprisonment. sydney Horn.ing
Herald, 9 July 1991, 9. ,.
4. International committee of Lawyers for Tibet, The
Right: of t:he Tihet:an people t:o self-Det:erminat:ion,
preliminary Report, July 1990 (hereafter Tibet Report).
5. In the aftermath of the war following the occupation of
Kuwait, demands were made for a united Nations
protected enclave for Kurdish refugees.
6. A demand for an independent German-speaking State of
Tyrrol was reported from North Italy on 17 september
1991. 7. N MacCormick, "Of Self-Determination and Other Things",
in (1990) 15 Bullet:in Aust: Soc Leg Philos 1, 9.
8. Preamble to the Basic Law of the Federal Republic
of Germany. See discussion J Brunne e, "The
Comments on a Legal Maze", Reunification of Germany:
(1990) 13 Dalhousie LJ 725.
9. See eg Time Hagazine, 24 June 1991, 16 ("The
Unwanted") .
10. See The Economist:, 6 october 1990, 15 ("Go Forth
and unify"). See also ibid, 23 June 1990, 9.
- 17 -
4
63.
XII, XIII and cf Arts 73 and 76.
20. M I e1-Kayal, The Ro.1e of the Un.ited Nat.ions .in the
discussion M D Kirby ( "Report on the Study of the
concept of the Rights of Peoples" in P H Parekh (ed)
BllIl1an R.iqhts Year Book jgOg (India), 39, 43.
12. Report of the Comm.i t tee of Rapporteurs (Buyens,
Calonder, Elkens) L N Council Doc. B 7/21/68/106 [VII]
See
Note also chapters XI,
- 18 -
See discussion, p. Ditton,
See also .ib.id, 18 (Art 55).
27-28 (1919).
united States, Declarac.ion of Independence.
19.
14. Cf R L Barsch, "Indigenous North America and
Contemporary International Law" 62 Ore .£ Rev 73,
76ff (1982). See also Ditton (above) 5.
15. BCIJ, SER AlB No 64 (1935). Cited in AORC 31, 110.
16. Ib.id, 17.
17. A Cassese, "The Self-Determination of Peoples" in
L Henkin (ed) The Internat.iona.1 B.i.1.1 of R.iqhts: The
Covenant on C.iv.il and Pol.it.ical R.ights, New York,
Columbia, 1981, 92, 93.
18. United Nations Charter, Article 1 in I Brownlie,
Eas.ic Documents .in Internat.iona.l Law (3rd ed),
Clarendon, Oxford, 1983, 1, 3.
II I Self-Determination' or ' Self Management'" [1990]
Aus!: Int: L News 3,4. Much of this analysis lis
derived from Ditton.
13. K J partsch, "Self-Determination, Equality arid
Non-Discrimination" in K Vasak and P Alston (ads) Tile
Int:ernat:ional Dimens.ions of Human Rights, vol 1,
(1982), UNESCO, Connecticut, USA, Greenwood Press, 61,
11·united States, Declarac.ion of Independence. See
discussion M D Kirby, "Report on the Study of the
concept of the Rights of Peoples" in P H Parekh (ed)
Human R1qhts YearBook 1909 (India), 39,43.
12. Report of the Comm1 t tee of Rapporteurs (Buyens,
Calonder, Elkens) L N Council Doc. B 7/21/68/106 [VII]
27-28 (1919). See discussion, P Ditton,
", Self-Determination' or ' Self Management'" [1990]
Ausc Int L News 3,4.
derived from Ditton.
Much of this analysis ~s
13. K J partsch, "Self-Determination, Equality arid
Non-Discrimination" in K Vasak and P Alston (eds) Tile
International Dimensions of Human Rights, vol 1,
(1982), UNESCO, Connecticut, USA, Greenwood Press, 61,
63.
14. Cf R L Barsch, "Indigenous North America and
Contemporary International Law" 62 Ore L Rev 73,
76ff (1982). See also Ditton (above) 5.
15. BCIJ, SER A/B No 64 (1935). Cited in AORC 31, 110.
16. Ib1d, 17.
17. A Cassese, "The Self-Determination of Peoples" in
L Henkin (ed) The Internat1ona.l B1.l.l of R1qhts: The
Covenant on C.ivil and Polit.ical R.ights, New York,
Columbia, 1981, 92, 93.
18. Uni ted Nations Charter, Article 1 in I Brownlie,
Basic Documents .in Internat.ional Law (3rd ed),
Clarendon, Oxford, 1983, 1, 3.
19. See also 1b1d, 18 (Art 55). Note also chapters XI,
XII, XIII and cf Arts 73 and 76.
20. M I el-Kayal, The Ro.le of the Un1ted Nat10ns 1n the
- 18 -
(above) 276.
·27. General Assembly Resolut.ion 1514 (XV), 14 December
1960.
[1986] CLJ 515, 516.
30. General Assembly Resolut.ion 2625 (XXV) of 24
October 1970.
28. Id, Paris, 6.
29. J Ougard, Conunents in Book Review, M N Shaw, T.it.1ed
Territory in .Afr.ica~ Internat.iona.1 Lega.l Issues in
Its Role
See also
- 19 -
the Namibia Opinions", 82 Yale £,J 533 (1973); J W
Nichel, "Cultural Diversity and Human Rights" in J L
Nelson and V M Green (eds) Internat.ional Human
in the Developnent of the Internat.iona.l Covenant: on
C.iv.il and po.lit.ical Rights, Clarendon, Oxford, 1991,
254ff.
protect.ion of Human R.iqhts, 1975, 310.
Tibet Report (above) 5.
D McGoldrick, The Human R.iqhts Comm.ittee:
31. P Thornberry, "Minority Rights, Human Rights and
International Law" (1980) 3 Ethn.ic and Rac.ial
Stud.ies 248, 259.
32. B Gross, "The United Nations, Self-Determination and
22. Cassese, above, n 17, 92.
23. UN Doc A/C 3/SR 309, para 59 (1950).
24. UN Doc 343 1/1/16, 6 UN Conf International Ord Docs ~96
(1945).
25. ICCPR, Art 1(1). According to McGoldrick, the practibe
of the Human Rights Committee under Article 1 has been
"somewhat disappointing". See ib.id, 256.
26. L B Sohn, "The Rights of Minorities It I in L Henkin
21.
, i
protect.ion of Human R.iqhts, 1975, 310.
Tibet Report (above) 5.
D McGoldrick, The Human R.iqhts Comm.ittee:
See also
Its Role
in the Deve1op11ent of the Internationa1 Covenant: on
C.ivi1 and PoLit:.ica1 Rights, Clarendon, Oxford, 1991,
254ff.
22. Cassese, above, n 17, 92.
23. UN Doc A/C 3/SR 309, para 59 (1950).
24. UN Doc 343 1/1/16, 6 UN Conf International Ord Docs 2i96
(1945).
25. ICCPR, Art 1 (1) • According to McGoldrick, the practic·e
of the Human Rights Committee under Article 1 has been
"somewhat disappointing". See .ibid, 256.
26. L B Sohn, liThe Rights of Minorities II, in L Henkin
(above) 276.
·27. General Assembly Resolut.ion 1514 (XV), 14 December
1960.
28. Id, Paris, 6.
29. J Dugard, Conunents in Book Review, M N Shaw, T.it.led
Terr.itory in Afr.ica~ Internat.iona.l Lega.l Issues in
[1986] CLJ 515, 516.
30. General Assembly Resolut.ion 2625 (XXV) of 24
October 1970.
31. P Thornberry, "Minority Rights, Human Rights and
International Law" (1980) 3 Ethn.ic and Rac.ial
Stud.ies 248, 259.
32. B Gross, "The United Nations, Self-Determination and
the Namibia Opinions", 82 Yale £,J 533 (1973); J W
Nichel, "Cultural Diversity and Human Rights" in J L
Nelson and V M Green (eds) Internat.ional Human
- 19 -
Q
Right:s: Cant:emporary Issues, New York, 1980, 45.
During the General Assembly's Sixth Committee Meeting
to discuss the Draft Law of Treaties, the International
Law Commission and various speakers expressed support
for this view. See Gros Espiell, Right to
self-Det:erminat:ion: Implement:at:ion of Unit:ed Nat:ions
Resalut:ions, UN Doc E/CN.4/sub.2/405/Rev/1 (1980),
Paris, 70 ff. See also Tibet Report, 11.
R T Coulter, The Evolution of International. HuIitan
Right:s St:andards: Imp.1icat:ions for IndigenouS
populations of the Americas, Indian Law Resear'tih
Centre, Washington, 1984, 46.
Advisory opinion on Plest:ern Sahara [1975) ICJ;
Advisory opinion on Lega.1 Consequences for St:at:es of
the continued presence of South Africa in Namib.ia
(saut:h Plest: Africa) Not:wit:hst:anding Securit:y Caunci.1
Reso.1ut:ian 271i (.1970) [1971) ICJ 16.
A Cassese, "The Helsinki Declaration and
Self-Determination" in T Buergenthal, ed, Human
RJ.'ghts, Internat.iona.1 Law and the Helsinki Accord,
1977, 99f.
37. J Crawford (ed), The Right:s of peap.1es, Clarendon,
Oxford, 1988. See esp I Brownlie "The Rights of
Peoples in Modern International Law" at pp lff.
38. UNESCO, "International Meeting of Experts on Further
Study of the Concept of the Rights of Peoples",
November 1989, Fina.1 Report and Recommendations,
SHS/89/CONF.602/7 p 7.
39. Within Australia, such proposals have been made. See
eg H Feith and A Smith, "The Kurds and
- 20 -
Righ~s: Con~emporar)' Issues, New York, 1980, 45.
During the General Assembly's Sixth Committee Meeting
to discuss the Draft Law of Treaties, the International
Law Commission and various speakers expressed support
for this view. See Gros Espiell, Right to
self-De~ermina~ion: Implementation of [lnited Nations
Resolu~ions, UN Doc E/CN.4/sub.2/40S/Rev/1 (1980),
Paris, 70 ff. See also Tibet Report, 11.
R T Coulter, The Evolution of International, HuIftan
Imp.lications for IndigenouS Rights Standards:
populations of the Americas, Indian Law Researltih
Centre, Washington, 1984, 46.
Advisor), opinion on western Sahara [1975) ICJ;
Advisor), opinion on Legal Consequences for S~a~es of
the continued presence of South Africa in Namib.ia
(south West Africa) Notwithstanding Securit)' council
Resolu~ion 271i (1970) [1971) ICJ 16.
A Cassese, "The Helsinki Declaration and
Self-Determination" in T Buergenthal, ed, Human
RJ.'ghts, Internat.iona.1 Law and the Helsinki Accord,
1977, 99f.
37. J Crawford (ed), The Rights of peoples, Clarendon,
Oxford, 1988. See esp I Brownlie "The Rights of
Peoples in Modern International Law" at pp lff.
38. UNESCO, "International Meeting of Experts on Further
Study of the Concept of the Rights of Peoples",
November 1989, Fina.1 Report and Recommendat.ions,
SHS/89/CONF.602/7 p 7.
39. Within Australia, such proposals have been made. See
eg H Feith and A Smith, "The Kurds and
- 20 -
self-Determination: The UN Must Act Now for a New
process", 1991 (MOnash University).
ALRC 31, 128. See also K M'baye, "Human Rights in
Africa" in K Vasak and P Alston (eds) The
Ditton International Dimension of Human R.ights, 283;
(above) Bf.
G Bennett, Abor.i.ginal R.ights .in Internat.lona.l .Law,
London, RAI, 1978, 50. See alsO General Assembly
Resolution 1514 (XV), 14 December 1990.
42. B/CN4/SUB2/1983/21/ADD 6 para 152.
·43. J R M Cobo, spec.ial Rapporteur of the sub-comm.iss.lon
on prevention of Discrimination and protection of
H.inor.it.ies: Study of the Problem of D.iscrimination
Aqainst IndiqenouS populations, E/CN 4/SUB 2/1986/7
ADD 1-3 (1983).
Meeting of Experts on the Revision of the Indigenous
and Tribal populations Convention, 1957 (No 107),
Geneva 1-10 september 1986 Appl/MER/107 /1986/0. 7, Para
50.
45. Covenant of the unrepresented Nations and Peoples
Organisation, Founding Assembly, 11 February 1991, The
Hague, Netherlands.
46. L V Prott, "Cultural Rights as peoples' Rights in
International Law" in Crawford (ed) above n 37, 93.
Partsch (above) 67.
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