Legal

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This Blog is written by Surbhi Pareek from NALSAR University of Law, Hyderabad. Edited by Ravikiran Shukre.

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INTRODUCTION:

The lawful right of people which enables them to determine their own political status and choose their own plans and policies for social, cultural and economic development in the international system is defined as self-determination. The relevance of the right comes from people’s ability to choose. Minorities groups or communities may either aim at and achieve political independence or rather complete inclusion into a state as a result of exercising the right of self-determination. Self-determination is accepted as a general principle of law, established in several international treaties and stems from customary international law.

Nearly every legal framework and instruments related to human rights law focuses upon the rights of persons belonging to minority groups. The United Nations Minorities Declaration, adopted in 1992, defines minorities as those who have a national or ethnic, cultural, religious, or linguistic identity, and stresses on the fact that the states must preserve their existence. Minority rights are important to safeguard individuals who want to retain and promote beliefs and traditions that they share with other community members, according to the United Nations and other international organizations. They also acknowledge that minorities contribute significantly to society’s richness and variety, and that states that take proper steps to recognize and protect minority rights are more likely to stay fair as well as secure. [1]

In this article, the author presents a logical analysis of the rights of communities or ‘peoples’ to self-determination and the international framework of human rights through which such rights are made applicable. An effort has also been made to highlight how a fair balance can be created between interests of minorities and the interests of majorities. [2]

SIGNIFICANCE: HOW SELF – DETERMINATION BENEFITS THE MINORITIES:

The promotion and protection of the rights of minorities require particular attention to be paid to issues such as the recognition of minorities’ existence; efforts to guarantee their rights to non-discrimination and equality; the promotion of multicultural and intercultural education, nationally and locally; the promotion of their participation in all aspects of public life; the inclusion of their concerns in development and poverty-reduction processes; disparities in social indicators such as employment, health and housing; the situation of women and the special concerns of children belonging to minorities.

Armed wars and internal turmoil are common casualties of minorities across the world. Refugees and internally displaced individuals from minority origins, particularly women and children, are highly vulnerable. People who belong to national or ethnic minorities, as well as religious and linguistic minorities, are frequently subjected to numerous forms of discrimination, and may lack access to a variety of resources, including suitable housing, land and property, and even citizenship. Minorities have long emphasized their interests to have their existence as a group safeguarded, their identity acknowledged, and their active participate in social life maintained, as well as respect for their cultural, religious, and linguistic plurality. [3]

International legal framework on the self-identification of minorities helps in the implementation of the rights of minorities and their right to self-determination in all the member states thereby protecting the interests of the minorities, curbing the conflicts which usually arise with the majority groups or with the state itself and promoting the harmonious and peaceful existence in the society for all.

IMPACTS:

Although the Universal Declaration of Human Rights is not a legally enforceable declaration, it is also not just idealistic. It has become a standard by which Member Countries’ obligations to human rights are measured, notably through the different human rights instruments that monitor Member States’ promotion and protection of human rights. Many of the UDHR’s rights have now been mirrored in other human rights instruments and treaties approved by Member States, thus most of the UDHR has now been incorporated into legally enforceable human rights responsibilities. [4]

It is difficult to believe that human rights are present in conditions like these, where nearly every human right is being infringed upon, rendering the UN’s task even more imperative in informing governments of their responsibilities to their citizens.

INTERNATIONAL LEGAL FRAMEWORK ON THE RIGHTS OF THE MINORITIES:

The right to self-determination was originally thought to belong to the population, or people, of a defined geographical area, especially peoples oppressed by a colonial authority. Separation from a colonial authority to create a new state is an “external” exercise of the right to self-determination. In international law, colonial peoples’ right to external self-determination is firmly established.

It has lately been asserted that the right to self-determination might also be exerted ‘internally.’ External self-determination has to do with the question of independence or sovereignty while internal self-determination has to do with control over domestic affairs. Internal self-determination gives a people more power over their political, economic, social, and cultural development than secession does. With the emergence of the concept of internal self-determination, a new concept of “peoples” has emerged. In this sense, the term “peoples” refers not just to the inhabitants of a definite geographical unit, but also to indigenous peoples and perhaps minorities. [5]

For development and protection of indigenous peoples and minorities, the United Nations has implemented the concept of self-determination in its efforts. The human rights and liberties for minorities are enshrined in various international frameworks such as Universal Declaration of Human Rights; the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities; the Convention on the Rights of the Child; the Convention on the Elimination of All Forms of Racial Discrimination, the other International Covenants and other acknowledged international treaties and declarations on human rights. The international law encompasses some major instruments protecting the rights of self-determination for the minority communities or groups which are as follows:

• Charter of The United Nations, Article 1(2): The concept of self-determination for all communities was initially incorporated in the United Nations Charter, explicitly in Article 1 of the Charter (2).

• International Covenant on Civil And Political Rights, Articles 1 And 12: ‘All peoples have the right to self-determination,’ according to the International Covenant on Civil and Political Rights (ICCPR). They have the freedom to freely decide their political status and pursue their economic, social, and cultural growth as a result of that right.’[6] According to the right to self-determination, the peoples also have economic freedom to freely ‘dispose of their natural wealth and resources without prejudice to any responsibilities arising out of international economic cooperation, based on the principle of mutual benefit, and international law,’ [7]The word “all peoples” – rather than “everyone” – linked to the right to self-determination implies that it is a collective right, meaning that only a “people, or a group of individuals” not a single individual, may exercise it. [8]

• Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: The United Nations Declaration on the Rights of Persons Belonging to National or Ethnic Minorities, Religious and Linguistic Minorities, approved by the General Assembly in 1992, is the major point of reference for the international community when it comes to minorities’ rights. It contains a list of minorities’ rights, such as the ability to embrace their unique culture, use their own language, preach and exercise their own religion. It moreover comprises measures that States could execute to foster an environment favorable to the enjoyment of such rights for the minorities, such as encouraging public awareness of the origins, past, rituals, language, and culture of minorities living within their borders and allowing minorities to fully participate in their country’s economic progress and development. States are also urged to establish national policies and practices that take into account the needs of minorities. Nondiscrimination, active involvement, and the conservation and development of identity are the most important pillars of the Declaration. Article 27 of the International Covenant on Civil and Political Rights, which is the most commonly acknowledged legally enforceable clause on minorities, is the source of the Declaration.

• The International Convention on the Elimination All Forms Of Racial Discrimination (1965): It bans and condemns racial discrimination and urges nations to adopt all reasonable efforts to eliminate it, either through public authorities or other methods.

The 1992 United Nations Minorities Declaration, as well as the 1966 International Covenant on Civil and Political Rights acknowledge and safeguard the interests of the minorities. Some other conventions protecting the rights of the minorities in one or the other spheres are as follows:

• General Recommendation No.21 on Right to Self-Determination, Committee on the Elimination of Racial Discrimination

• Article 29, Convention on the Rights of the Child

• General Comment No.12 on Self-Determination, Convention on the Prevention and Punishment of the Crime of Genocide, Human Rights Committee

• Article II, Resolution 260A(III) on the Convention on the Prevention and Punishment of the Crime of Genocide, General Assembly

• ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries, No. 169

• Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States

• Declaration on the Granting of Independence to Colonial Countries and Peoples

• Resolution 1803 (XVII) of 14 December 1962, ‘Permanent Sovereignty over Natural Resources’, UN General Assembly.

Through public comments, engagement with governments, contact with the United Nations and other organizations, and ensuring that human rights, especially minority rights, remain an intrinsic component of the UN’s work, the High Commissioner serves a crucial part in advocating and defending human rights. It gives voice to those minority groups which are being discriminated or prejudiced upon and cannot stand for their rights on their own. The Office of the United Nations High Commissioner for Human Rights (OHCHR) provides support to the UN’s key human rights organizations and agencies, as well as makes sure that minorities are frequently addressed on the international human rights platforms. [9]

ESTABLISHING A BALANCE:

Majority rule, or the making of binding decisions by a vote of more than half of all voters in an election, is the core of democracy. However, in present era, constitutional democracy necessitates majority power with minority rights. In his first inaugural address in 1801, Thomas Jefferson, the third President of the United States, emphasized this democratic notion and said,

“All too will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect and to violate would be oppression.”

The supreme authority of the constitution, endorses and limits majority rule in today’s true democracies and thereby safeguards individual rights. Minority tyranny over the majority is prohibited, as is majority tyranny against minorities. Majority rule is restricted to preserve minority rights, since if it were uncontrolled, it would almost certainly be used to persecute those who hold opposing viewpoints. In a democracy, unlimited majority control has the same dictatorial potential as the unfettered authority of an autocrat or an elite minority political party.

There is a constant struggle in every constitutional democracy between the opposing forces of majority rule and minority rights. As a result, public officials in representative government institutions must make authoritative choices on two issues.

1) When and under what circumstances should the authority of the majority be limited in attempt to uphold minority rights?

2) Conversely, when and under what circumstances should the minority rights be curtailed so as to avoid the overthrow of majority rule?

Every constitutional democracy responds to these concerns depending upon the situations and the nature of the instances, ensuring which neither minority rights nor majority authority bear chronic or irreversible harm. To maintain equity and fairness in a free society, both majority rule and minority rights must be preserved. [10] Though minorities’ rights are gradually being acknowledged as an important element of the international community’s anti-discrimination campaign, yet much efforts needs to be undertaken to realize the actual essence of living in dignity and fairness.

ANALYSIS:

Persons from national or ethnic, religious and linguistic minorities, live in every country on the planet, enhancing the variety and establishing multiculturalism. Minorities are subjected to a variety of types of discrimination, which leads to their exclusion and oppression. We need to embrace diversity by promoting and implementing international human rights norms in order to achieve effective involvement of minorities and to eliminate their marginalization. [11] The idea of self-determination is mentioned in the United Nations Charter, although it is not given much weight. It makes no mention of self-determination as a human right, and it makes no mention of minority rights. It’s gotten a little unclear if self-determination is a principle or a right. The Universal Declaration of Human Rights makes no mention of either of these issues. Rosalyn Higgins, after reviewing UN practice, concludes that self-determination “has grown into an international legal right”, albeit “the extent and scope of the right is still subject to some discussions”. [12]

When it comes to minorities—or, to put it another way, when it comes to the question of whether sections of the metropolitan state’s population have a right to self-determination—the situation is completely different. It’s one thing to believe that dependent regions have the right to secede from an empire; it’s quite another to believe that demographic groupings within the motherland have the same right. States strive to maintain their geographical integrity as a norm, and deviations are extremely uncommon.

Focus then always gets shifted to majority interests being prioritised over minority rights. This loss further clarifies how the international legal framework is unable to protect the rights and interests of the individual groups who aim at either seceding or joining the hands with the government in order to get more power and control over its administration.

CONCLUSION:

Self-determination is a fundamental component of international human rights legislation. At the very same time, it is acknowledged that adherence to the right to self-determination is a precondition for the enjoyment of all other human rights and basic freedoms, including civil, political, economic, social, and cultural rights. In the last two decades, the body of international law applicable to minorities has grown significantly. International agreements give appropriate coverage in the subject of non-discrimination, and special rights have gained more recognition in previous years. There is still a lot of work to be done. Many minorities face severe and ongoing breaches of their fundamental rights. Past experience has demonstrated that neither abuse, which is carried out in violation of international law, nor the disregard of minority issues create a stable foundation for interpersonal interactions. Minorities should be permitted to contribute to the multi-cultural enrichment of our society and be involved as development partners, rather than being viewed as enemies. Unsettled problems and disputes involving minorities suggest that additional steps are required to address minority concerns and new conflict resolution channels are also needed. Otherwise, the rights and interest of the minorities all over the world will go ignored, unheard and unattained.

REFERENCES:

(1) Promoting and Protecting Minority Rights a Guide for Advocates. https://www.ohchr.org/Documents/Publications/HR-PUB-12-07_en.pdf

(2) Raday, Frances, Self-Determination and Minority Rights (2003). 26 Fordham International Law Journal 453 (2003), Hebrew University of Jerusalem Legal Research Paper, Available at SSRN: https://ssrn.com/abstract=2606786

(3) Minority Rights: International Standards and Guidance for Implementation. https://www.ohchr.org/documents/publications/minorityrights_en.pdf

(4) 70 Years of Impact: Insights on the Universal Declaration of Human Rights. https://unfoundation.org/blog/post/70-years-of-impact-insights-on-the-universal-declaration-of-human-rights/

(5) Vernon Van Dyke, Self-Determination and Minority Rights, International Studies Quarterly, Vol. 13, No. 3 (Sep., 1969), pp. 223-253.

(6) The International Covenant on Civil and Political Rights, opened for signature December 16, 1966, Art. 1 (1), 999 UNTS 171.

(7) Art. 1 (2).

(8) Self-determination, Law and legal cases. https://minorityrights.org/law-and-legal-cases/self-determination/

(9) Promoting and Protecting Minority Rights a Guide for Advocates. https://www.ohchr.org/Documents/Publications/HR-PUB-12-07_en.pdf

(10) By John Patrick, Understanding Democracy, A Hip Pocket Guide (Oxford University Press), https://www.annenbergclassroom.org/glossary_term/majority-rule-and-minority-rights/

(11) Introduction, Minorities, Your Human Rights. https://www.ohchr.org/EN/Issues/Minorities/Pages/Introduction.aspx

(12) Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations. Volume 13, Number 3, September 1969. https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=9228&context=ylj