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"People" and "minority" from theory to reality Leger, Sylvie N. 1999

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"PEOPLE" AND "MINORITY" FROM THEORY TO REALITY By Sylvie N. Leger LL.B. University of Ottawa (1990) LL.L. University of Ottawa (1991) A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (FACULTY OF LAW) We accept this thesis as conforming to the required standard. THE UNIVERSITY OF BRITISH COLUMBIA April 1999 © Sylvie N. Leger, 1999 tn presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of tfiis thesis for scholarly purposes nay be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of CLOCJ DE-6 (2/88) il T A B L E O F C O N T E N T S DEDICATION i v CHAPTER I 1 INTRODUCTION 1 CHAPTER II 9 MINORITIES 9 I N T R O D U C T O R Y R E M A R K S 9 T H E D E F I N I T I O N O F M I N O R I T Y 9 The Permanent Court of International Justice's Definition 10 The Sub-Commission's Attempts at a Definition 12 The Capotorti Definition 16 The Deschenes Definition 20 M I N O R I T Y R I G H T S 24 The Universal Declaration of Human Rights 24 The United Nations' Early Attitude Towards Minority Rights 25 Article 27 of the International Covenant on Civil and Political Rights 27 The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 31 C O N C L U S I O N 38 CHAPTER III 39 PEOPLES AND THE RIGHT TO SELF-DETERMINATION 39 I N T R O D U C T O R Y R E M A R K S 39 T H E H I S T O R I C A L D E V E L O P M E N T O F T H E P R I N C I P L E O F S E L F - D E T E R M I N A T I O N 40 Wilsonian Self-Deterrnination 40 The Wilsonian Self 41 The Minority Protection Scheme: A Necessary Corollary 44 Two Sets of Standards 45 S E L F - D E T E R M I N A T I O N A N D T H E U N I T E D N A T I O N S 46 External vs Internal Self-Deterrnination 46 The Principle of Self-Deterrnination and the UN Charter 47 The Draft Covenants 51 Resolution 1514 (XV) and Colonialism 54 Article 1 of the Covenants 55 Resolution 2625 (XXV) and the Representative Government Doctrine 57 i i i T H E S E L F 60 The State Definition of People 61 The Colonial Definition of People 62 The Representative Government Definition of People 64 The Ethnic Definition of People 65 C O N C L U S I O N 69 CHAPTER IV 71 MINORITY VS PEOPLE: A CASE STUDY - QUEBEC 71 I N T R O D U C T O R Y R E M A R K S 71 M I N O R I T Y V S P E O P L E 72 The UN's Position 72 The Position of Three International Law Scholars 74 T H E C A S E O F Q U E B E C 77 Historical Overview 77 The Reference before the Supreme Court of Canada 83 The Decision of the Supreme Court of Canada 90 Reaction to the Decision 93 CHAPTER V 97 CONCLUSION 97 S U M M A R Y O F C H A P T E R H - M I N O R I T I E S 97 S U M M A R Y O F C H A P T E R H I - P E O P L E 99 S U M M A R Y O F C H A P T E R TV - Q U E B E C 102 S U M M A R Y O F C O N C L U S I O N S 103 Je dedie cette these a la memoire de ma mere, Irma Pigeon, qui des ma premiere annee de droit savait que j'allais un jour terminer une maitrise. Je remercie Eric Perrier pour son appui incessant et sa conjiance en moi. Tous mes remerciements a Therese-Marie Perrier qui a rendu plus facile le parcours d'un long chemin. 1 C H A P T E R I I N T R O D U C T I O N Traditionally, international law has been viewed as a set of rules with States as its subjects. The expression "international law" which replaced the earlier expression "Law of Nations" first gained acceptance at the end of the 18 th century. It was used by Jeremy Bentham who also defined it as the law which pertains to "the mutual transactions between sovereigns as such".1 Municipal law, on the other hand, was said to deal with individuals who were subjects of a single State.2 Over the years much has been written about the place of individuals or groups of individuals in international law. In fact, this thesis will examine one aspect of the above question by focussing on minorities and peoples as well as their rights. The analysis will show that the above terms essentially refer to the same entities. Both terms refer to groups united by ethnic, religious or linguistic characteristics, who wish to keep their distinct identity, pass on their culture and most importantly determine their own affairs. However, it will also be shown that this reality is unacceptable to States who insist that objective, tangible differences exist between minorities and peoples. This thesis will also examine the rights of minorities as well as those of peples as they are currently being defined by the United Nations. Finally, a number of observations ensuing from the above analysis will be presented. Before embarking on the analysis, it will be shown that States can no longer be considered the only legitimate "subjects" of international law and that individuals can no longer be viewed as JEREMY BENTHAM, An Introduction to the Principles of Morals and Legislation, J. BURNS AND H . L . A . HART, eds., 1970 at 296. 2 KINDRED'S International Law: Chiefly as Interpreted and Applied in Canada defines the "subjects" of international law as those entities that have a legal personality which enables them "to enter into legal relations and to create the consequent rights and duties attached to that capacity.", 5TH ed. (Canada: Emond Montgomery Publications, 1993) at 11. 2 merely "objects" of the law. Major historical events of the 20 century support and confirm the above argument. The most significant expansion of the Family of Nations occurred after the First World War. The creation of the League of Nations "marked a major shift in assumptions as to the proper subjects of international law"3. The new trend was one of universality by which it was finally accepted that all States could be subjects of international law not only those belonging to the exclusive and essentially Christian European Family of Nations.4 However, as significant as this shift may be, one must look elsewhere within the League system to understand its impact upon the place of the individual in international law. In fact, one must look to the provisions for the protection of minorities to understand the League's impact upon the place of the individual or groups of individuals. The minorities treaties concluded after the First World War represented an early attempt to create international mechanisms to deal with fundamental human rights. As was highlighted by one author, "these treaties, looking to the protection of racial, religious and linguistic minorities, proclaimed that their provisions constituted "obligations of international concern" being placed under the guarantee of the League of Nations; and a special procedure was devised by the League for dealing with petitions presented by minority groups.5 Also of interest is the 1928 Advisory Opinion of the Permanent Court of Justice interpreting the Treaty between Poland and Danzig and concerning the jurisdiction of the courts of Danzig. The Court held that "the very object of an international agreement, according to the intention of the contracting parties, may be the adoption by the parties of some definite rules CHRISTINE GRAY, "International Law" ( 1 9 8 3 ) 3 Legal Studies 2 6 7 . Ibid, at 2 6 8 . C H A R L E S FENWICK, International Law, 3 R D ed. (New York: Appleton-Century-Crofts, 1 9 6 2 ) at 1 3 5 . 3 creating individual rights and obligations and enforceable by national courts".6 An international court thus recognized that individuals could be subjects of international law. The end of the Second World War and its subsequent events can only be described as a turning point as regards the principle that individuals are proper subjects of public international law. The trials of Nazi war criminals are a good example of the changes then operating. The Charter of the International Military Tribunal at Nuremberg7 explicitly recognized that individuals could be held responsible for crimes against peace, war crimes and crimes against humanity.8 As was stated by one author, "Nuremberg re-established plainly and forcefully that the rules of international law should and do apply to individuals"9 and that "there are individual international rights and obligations that transcend State boundaries".10 According to Professor Lauterpacht, To lay down that crimes against humanity are punishable is, therefore, to assert the existence of rights of man grounded in a law superior to the law of the State. Thus, upon analysis, the enactment of crimes against humanity in an international 6 (1928), P.C.IJ. Ser. B, No. 15 at 17. 7 The Charter provided the following: Article 6 The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: A) CRIMES AGAINST PEACE: ... B) WAR CRIMES: ... C) CRIMES AGAINST HUMANITY: ... Article 7 The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment. AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS, signed August 8, 1945, 59 Stat. 1544 at 1547-48. 8 In 1998, these statements are not nearly as revolutionary as they were in 1945. In fact, very recent events in the ex-Yugoslavia and Rwanda have confirmed the international community's role in the trials of persons accused of genocide and other crimes against humanity. The United Nations is presently engaged in die process of finalizing the details for the establishment of a Permanent Court of International Criminal Law. Much has been writing on the subject notably HANS-PETER KAUL, "Towards a Permanent International Criminal Court: Some Observations of a Negotiator" (1997) 18 HRLJ 169. 9 M.W. JAMS, "Individuals as Subjects of International Law" (1984) 17 Cornell Int'l L.J. 61 at 66. 10 Ibid, at 73. 4 instrument signifies the acknowledgment of fundamental rights of the individual recognized by international law.11 In fact, it is in the field of the protection and advancement of human rights that the individual has made the greatest strides. As was stated by Professor Gray, " a state's treatment of its own nationals, formerly a matter of exclusively domestic concern, has become subject to international law."12 It is in the Charter of the United Nations, a legal and binding document, that the individual clearly appears as entitled to fundamental human rights and freedoms. Also worth noting is the Charter's preamble which opens with the words: "We the people of the United Nations" - again a confirmation of the place of the individual in international affairs. Of course, what was once thought of as a mere trend towards human rights and their recognition by international instruments is now very much entrenched in not only the practice of the United Nations but also in that of regional organizations as well. As a final example of the shift away from States as the sole holders of rights under international law, one should discuss the principle of self-determination. This principle is recognized in the Charter of the United Nations and clearly attaches itself to "people" and their right to freely determine their future. Although, as will be seen in future chapters, much remains to be clarified with regards to this principle, it is widely recognized that the exercise of self-determination is not limited to sovereign States. One can certainly say that the 2 0 t h century has seen the subjects of international law extended. The individual is clearly recognized as a subject of international law. However, with regards to groups of individuals, such as national or ethnic, religious and linguistic minorities or H . LAUTERPACHT, International Law and Human Rights (New York: Frederick A. Praeger, 1950) at 3 6 . Supra note 3 at 272. 5 peoples, many grey areas remain. In fact, as will be shown throughout this thesis, the question of who is a "minority" with its corresponding rights and obligations and who is a "people" with its own corresponding rights and obligations remains a legally nebulous and politically charged question. Headlines from around the world are denouncing the plight of minority groups. Political leaders the globe over are grappling with ethnic issues and group claims for self-determination. Today's reality is that multiethnic, multiracial and multilingual States are the norm and no longer the exception. So how have States dealt with this reality? They have barely begun to explore the question of minority rights and as for peoples' right to self-determination, States are constantly trying to deny its application within their territorial limits. Given the potential for internal strife, civil war, acts of terrorism, international condemnation and even international conflict, why are States so reluctant to deal with these problems? In the words of one author, [...] states like to think of themselves as nation-states, that is, as mono-ethnic collectivities, and they have always been uneasy with minorities within their borders. In case of national minorities which may have majority kin in neighboring states, the threat of irredentist demands is always present, and the European experience between the two world wars is there to remind us of the dangers involved. Then there is the possibility that if minorities are given too much leeway, collective rights may lead to demands for autonomy, self-government, self-determination and even political secession or independence, and this may threaten the territorial sovereignty or even the survival of a state.14 As was mentionned, this thesis is primarily focused on minorities and peoples. I will not be discussing the status of indigenous groups under either heading. In my view, indigenous groups have their own history, philosophy, culture, spiritual and other traditions. They have their own political, economic and social structures which culminate in a unique world view and a strong sense of communalism tied to a distinctive and profound relationship with land and resources. This distinctiveness results in interests and aspirations which are particular to the "original populations". I do realize that the reality of minorities as well as that of peoples in the contemporary world is that of incredible diversity. In fact, each minority or people possesses its own history and aspirations. Nonetheless, I believe that the international promotion of the rights of First Nations and the international promotion of the rights of minorities and peoples can best be accomplished through their disassociation. 1 4 RODOLFO STAVENHAGEN, "Human Rights and People's Rights - The Question of Minorities" (1987) 3 Mennesker og Rettigheter 16 at 21. 6 With the above context in mind, the second chapter of this thesis will examine the numerous attempts made at defining the term "minority". It will be shown that despite a clear need to expound a well-understood definition of the term, the latter has never received a universally accepted definition on the international scene. This stands true despite various attempts by various United Nations bodies. This chapter will also analyze the rights which the international community has afforded this group of individuals most notably Article 27 of the International Covenant on Civil and Political Rights which it will be recalled is the foundation of the modern international system for the protection of minorities. Also to be studied is the United Nations' recent Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The Declaration cautiously incorporates some long awaited new ideas into the field of minority protection, most notably an increased role for minorities in the public affairs of a State. An interesting parallel can be drawn between this new role for minorities and that of internal self-determination for people. However, such comparisons can be dangerous since States, concerned with safeguarding their territorial integrity, are less than receptive to claims for self-determination. The third chapter will deal with the definition of "people" and look at their right to self-determination. The principle of self-determination has been described as anything from "hopelessly vague to explosively dangerous".15 It will be shown that U.S. President Woodrow Wilson's group oriented approach to human rights led to the principle of self-determination being introduced into international relations. It was he who sought to use self-determination as a guiding principle in the redefining of Europe's national borders following World War I. As we know, self-determination is now an entrenched principle, explicitly recognized in the United Nations' Charter. As will also be shown, the realization of self-determination since World War II has primarily meant the decolonization of territories known to be of the colonial type. This goal has largely been accomplished. Though many of the United Nations' pronouncements on the right to self-determination clearly emphasize its connection to decolonization, the International 15 LEEBUCHHEIT, Secession (New Haven: Yale University Press, 1 9 7 8 ) at 6 5 . 7 Covenants do not. In fact, the Covenants are drafted in universal terms and would appear to apply to all peoples. The ambiguity surrounding the intended scope of application of the right is further evidenced in the Declaration on the Principles of International Law Concerning Friendly Relations and Co-operation among States. Drafted on the occasion of the United Nations' twenty-fifth anniversary, this Declaration is regarded by many commentators as carrying significant weight when seeking to better understand the principles it deals with. The question can therefore be posed as to whether the near elimination of colonization has exhausted the principle of self-determination. The difficulties with finding the correct, or even an acceptable answer to the above question are multiple - noteworthy among them is the incredible lack of doctrinal clarity in relation to the "self entitled to the right of self-determination. In the words of one author, [...] who are the peoples who enjoy the human right of self-determination? This is precisely where we encounter serious theoretical and practical difficulties. There is no legal definition of a people. There is not even a generally accepted sociological or political definition of a people. The U N has carefully avoided to define "people" even as it has conceded all peoples the right to self-determination.16 The question of the definition of people will be the object of an entire section of the chapter. In order to facilitate our understanding of the various possible definitions, the approach used by Thomas D. Musgrave in his recent monograph will be followed. This will allow us to explore four possible definitions: people as the State; people as the population of a colony; the representative government definition of a people and the ever controversial ethnic definition. It will be seen that States clearly prefer the representative government definition given its two main characteristics - it applies to the entire population of a State and it recognizes the universal nature of the right to self-determination. Thus, according to this prefered definition, self-determination may apply in the case of sovereign States, but only according to the States territorial limits, therefore respecting its integrity. However, it will be shown that this definition, as well as the two previous ones, is not entirely satisfactory. Attention will therefore be focused on the ethnic definition despite its problematic nature, namely its inescapable ressemblance to the definition of minority groups. 16 RODOLFO STAVENHAGEN, supra note 14 at 23. 8 The fourth chapter will examine the practical side of the debate by looking at the situation now existing in Quebec. The analysis will begin by exploring the differences between minorities and peoples as defined by United Nations' bodies and practice. The chapter will also examine the position of leading law scholars on the subject. Attention will then be focused on the particular situation of Quebec - including a brief history of its claim to secession. In order to appreciate the arguments of both the federalist camp and the sovereignist camp, recourse will be had to the representations made before the Supreme Court of Canada in the context of the recent Reference concerning the right of unilateral secession by Quebec. The decision itself will then be analyzed as well as the reactions to the decision from both camps. The fifth and final chapter will summarize the previous chapters and reveal the findings or conclusions of this thesis. First, despite all attempts to differentiate between minorities and peoples, one must admit that the concepts are essentially the same. In fact, any differences seen in State practice are due to political objectives rather than any legal rules. Second, this reality is unacceptable to States who continue to insist upon the existence of two separate groups with separate rights. Third, minority claims and minority rights seem to approximate more and more the concept of internal self-determination. And fourth, the political and economic interests of States will always take center stage, when dealing with the above issues. 3 C H A P T E R I I M I N O R I T I E S INTRODUCTORY REMARKS The focus of this chapter will be the development after World War II and within the framework of the United Nations of international human rights concepts as they relate to the protection and promotion of minority rights. This chapter will therefore provide not only an overview of the work of the United Nations in the field of the protection of minorities but also discuss the very problematic issue of the definition of "minority". One cannot understand or analyze minority problems or the right to self-determination without first attempting to define its rights holders. The analysis will begin by ascertaining what is a "minority" under international law. THE DEFINITION OF MINORITY Although many different definitions of "minority" exist, the starting point is usually the same - that is the idea of distinction or opposition between what is termed the "minority" and what is known as the "majority". When dealing with the issue of power, that opposition can be placed within the confines of a power struggle or a quest for domination. This struggle or quest is usually played out to the advantage of the "majority". Almost inevitably, this relationship "majority-minority" is accompanied by discrimination based on differences of colour, ethnic background, religious beliefs, language, culture, traditions, etc. Thus, the concept of minority is frequently preceded by an epithet - racial, ethnic, religious, linguistic, cultural or national. This 10 epithet affirms the perceived traits which identify the minority and differentiate it from the majority. These traits make up what are known as the objective criteria in the definition of minority. However, when defining the term minority, objective criteria is not sufficient in and of itself. It must be completed by subjective criteria - self-awareness on the part of the minority and a collective sentiment of solidarity.1 Thus far, the task of defining minorities appears relatively simple - one must use both subjective and objective criteria - criteria, which, thanks to the various attempts at defining minority, has already been identified. However, that is a false assumption. The reality is that a universally accepted definition of the term minority can not be found in international caselaw, secondary materials or international instruments such as a declaration, convention, covenant or treaty. However, that is not to say that the international community - in its largest sense - has not attempted to define the term. The following paragraphs will explore these various definitions. The Permanent Court of International Justice's Definition One of the first "official" definitions was provided by the Permanent Court of International Justice (PCIJ) in its advisory opinion concerning the Greco-Bulgarian communities. The opinion 1 FRANCESCO CAPOTORTI explains the objective and subjective criteria of the definition of minority in the following terms: The first of the criteria described as objective to which general reference is made is the existence, within a State's population, of distinct groups possessing stable ethnic, religious or linguistic characteristics that differ sharply from those of the rest of the population. [...] A second objective criterion concerns the numerical size of such groups: they must in principle be numerically inferior to the rest of the population. [...] A third objective criterion consists in the non-dominant position of the groups in question in relation to the rest of the population: [...] The last objective criterion concerns the juridical status of members of the above-mentioned groups in relation to the State of residence. It is generally accepted that they must be nationals of the State. As to the subjective criterion, it has generally been defined as a will on the part of the members of the groups in question to preserve their own characteristics. FRANCESCO CAPOTORTI, "Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities" UN Doc. E/CN.4/Sub.2/384/Rev.l (1979) at para. 566-67. See also NATAN LERNER, Group Rights and Discrimination in International Law 03oston: Martinus Nijhoff, 1991) at 8; FELIX ERMACORA, "The Protection of Minorities Before the United Nations" (1983) 182 Collected Courses of the Hague Academy of International Law 251 at 299-300. 11 was requested by the Council of the League of Nations. It in turn had acted upon the request of the president of the Greco-Bulgarian Mixed Commission. The Commission had been created in order to facilitate the emigration of Bulgarians from Greece, and of Greeks from Bulgaria. Its work had been advancing very slowly due in part to questions arising about the meaning of the term "communities" as used in the convention signed by Greece and Bulgaria in 1919 following the Great War. It was felt that the Commission's work could not proceed without an authoritative definition of "communities". The opinion of the Court was delivered on July 31, 1930. First, it must be noted that the Court considered the Greco-Bulgarian Convention of 1919 as one of the "measures designed to secure peace by means of the protection of minorities." Therefore, the Convention could only apply to persons belonging to minorities. Thus, even though the Court does not expressly define the term "minority" - its definition of "community" is very relevant. The Court states that the existence of such communities is a question of fact and therefore was not left to the unilateral appreciation of States and that the criteria to be applied is: the existence of a group of persons living in a given country or locality, having a race, religion, language and traditions of their own, and united by the identity of such race, religion, language and traditions, in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, securing the instruction and upbringing of their children in accordance with the spirit and traditions of their race and mutually assisting one another.2 The reader will note that from the onset the criteria used in defining "minorities" is both subjective and objective. Objectively, the Court tells us that we need to identify a group of persons living in a given country or locality who share a race, religion, language and traditions of their own. Subjectively, the Court states that these people must be united by their identity, share a sentiment of solidarity and wish to preserve their distinctive traits as well as pass them on to their children. It will be seen that the concepts used by the PCIJ are carried forward in subsequent MANLEY O. HUDSON, The World Court - 1921-1938, 5 T H ed. Boston: World Peace Foundation, 1 9 3 8 ) at 2 0 6 ; Greco-Bulgarian Communities, Advisory Opinion ( 1 9 3 0 ) , P.C.I.J. Ser. B, No 1 7 . 12 attempts at defining "minority". However, the international community would have to wait over 20 years before the next official attempt was made to define the term "minority". The Sub-Commission's Attempts at a Definition It is the UN's Sub-Commission on the Prevention of Discrimination and the Protection of Minorities3 which undertakes the next round of reflection on the meaning of the term "minority". At its first session in 1947, the Sub-Commission discussed the meaning of the terms "prevention of discrimination" and "protection of minorities". These terms were of importance to the Sub-Commission since they are included in its mandate. In particular, the Sub-Commission grappled with the issue of what differences exist between the concept of "protection of minorities" and the concepts of "equality and non-discrimination". These questions were deemed important in light of the drafting of and inclusion of articles dealing with equality and minority issues in the proposed Universal Declaration of Human Rights and in the proposed International Covenant on Human Rights (as it was then called). Consequently, and for the benefit of the Commission on Human 3 The United Nation's Charter while containing relatively little in the way of international protection of human rights does provide for the creation of the infrastructure necessary for the international protection of human rights. Article 7 establishes the principal organs of the United Nations including its General Assembly and its Economic and Social Council. Article 68 mandates the Economic and Social Council to establish "commissions in the economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions." Thus, in early 1946, a Commission on Human Rights was established. Among its first undertakings, the Commission sought to determine which sub-commissions it should create. It is interesting to note that the Sub-Commission on Prevention of Discrimination and the Protection of Minorities owes its existence to a Soviet response to an American initiative. As was documented by JOHN HUMPHREY: On a motion of the United States, the Commission recommended die creation of a Sub-Commission on Freedom of Information and of the Press. When the matter came before the Council, the Russians said it was just as important to prevent discrimination and protect minorities as it was to promote freedom of information. "Even in the most highly developed countries," Mr. Federov, their representative, said "rights of minorities are not respected." In the result, the Council authorized the Commission to create three sub-commissions: one on freedom of information and of the press, one on the prevention of discrimination, and a third on the protection of minorities. However, only two sub-commissions were created: one on freedom of information and the media, and another concerned with minority rights and the prevention of discrimination. JOHN B . HUMPHREY, "The United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities" (1986) 62 AJ1L 869 at 870. 13 Rights, the Sub-Commission prepared the following report which included its first definition of minority: 1. Prevention of discrimination is the prevention of any action which denies to individuals or groups of people equality of treatment which they may wish. 2. Protection of minorities is the protection of non-dominant groups which wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics which they possess and which distinguish them from the majority of the population. The protection applies equally to individuals belonging to such groups and wishing the same protection. It follows that differential treatment of such groups or individuals belonging to such groups is justified when it is exercised in the interest of their contentment and the welfare of the community as a whole ... If a minority wishes for assimilation and is debarred, the question is one of discrimination and should be treated as such.4 The above text was submitted to the Commission which approved the portion of the text dealing with the prevention of discrimination and indefinitely deferred its study of the portion of the text concerning the protection of minorities.5 Thus, the United Nations' first "official" definition of minority remains lettre morte. Not to be discouraged, the Sub-Commission, in 1949, placed on its agenda the item: "Definition and Classification of Minorities". In order to facilitate the Sub-Commission's task, the Economic and Social Council in Resolution 303 F (XI) called for full and detailed information regarding the existence and status of recognized minorities in various States and the legislative measures taken by these States for their protection.6 During the same session, the Secretary General submitted to the Sub-Commission a detailed memorandum enumerating the different elements which should be taken into consideration when attempting to define or classify minorities. These included: "geographical contiguity, citizenship, national characteristics of the UN Doc. E / C N . 4 / 5 2 , sect. V. Official Records of the Economic and Social Council, Sixth Session, Supplement No. 1, paras. 3 9 and 4 0 . FELIX ERMACORA, "The Protection of Minorities Before the United Nations" supra note 1 at 2 6 8 . The information supplied by thirty-seven States has been collected in UN Doc. E / C N . 4 / L . 4 5 . 14 State, origin of the group, the circumstances of its inclusion within the State, and the group's desires and aspirations as such."7 By 1950, the following definition had been elaborated by the Sub-Commission: I. the term minority includes only those non-dominant groups in a population which possesses and wishes to preserve stable ethnic, religious or linguistic traditions or characteristics markedly different from those of the rest of the population; II. such minorities should properly include a number of persons sufficient by themselves to preserve such traditions or characteristics; and III. such minorities must be loyal to the State of which they are nationals.8 In 1951, the definition was revised and somewhat refined. The definition now included: Recognizing, however, that among minority groups not requiring protection are such groups as: a) those numerically inferior to the rest of the population although the dominant groups therein; b) those seeking complete identity of treatment with the rest of the population, in which case their problems are covered by those articles of the Charter of the United Nations or the Universal Declaration and the draft international Covenant on Human Rights that are directed toward the prevention of discrimination.9 It is interesting to note that the revisions in question were intended to deal with apartheid situations and to pacify certain minority groups, including the African-American minority, who categorically rejected the whole concept of differential treatment.10 Because of various political manoeuvres within the United Nations11, it was only in 1953 that the Commission finally got around to considering the 1951 definition elaborated by the Sub-7 UN Doc. E/CN.4/Sub.2/85 (1949). 8 UN Doc. E/CN.4/641, annex 1, resolution II. 9 UN Doc. E/CN.4/Sub.2/L.2. 1 0 JOHN B . HUMPHREY, supra note 3 at 873. 1 1 These political manoeuvers will be discussed later in this chapter in the section dealing with the protection of minorities. 15 Commission. For all practical intents, it was rejected. In fact, the Commission simply chose not to express an opinion on the definition itself.12 The debate within the Commission involved Old World - New World divisions as well as the ever present East - West split. In fact, the delegates were unable to reconcile the concepts of "European ethnic groups" and "ethnic groups created by immigration." Furthermore, the Communist countries of Eastern Europe sought greater group rights whereas the western States favoured individual rights. Their philosophies differed widely.13 Despite what appeared to be irreconcilable differences, the Commission requested that the Sub-Commission, "enlightened" by the Commission's deliberations, continue with its work. The daunting task of defining "minority" thus continued. In 1954 the Sub-Commission endeavoured once more to deal with the problem of the protection and definition of minorities. It decided to initiate a study of the present position of minorities in the world and asked the Commission to request the Economic and Social Council to appoint an expert to carry out the study. However, the Commission turned down the proposal. Therefore, in 1955 following the Secretary General's decision to forego all collaboration in regards to the proposed study, the Sub-Commission finally decided to defer its work on minorities and to intensify its work on the prevention of discrimination.14 As was pointed out by Felix Ermacora, "[t]he definition of minorities has been the insurmountable task of the bodies of the United Nations."15 In fact, the difficulty lay in the need for the Sub-Commission to elaborate not only a scientifically correct but also a politically acceptable definition. This difficulty was coupled with the fact that during this time the delegates in the Commission pursued political aims. "Activities of the United Nations Relating to the Protection of Minorities", UN Doc. E /CN .4 /Sub .2/194 ( 1 9 5 8 ) at 1 1 . 1 3 FELIX ERMACORA, supra note 1 at 2 7 0 . 14 Ibid, at 2 6 5 . 15 Ibid, at 2 6 9 . 16 An example of the political interests being pursued by delegates can be found in the following paragraph which was included in an early report of the Sub-Commission: It is highly desirable that minorities should settle down happily as citizens of the country in which they live, and therefore in any measures that may be taken for the protection of their special traditions and characteristics... nothing should be done that is likely to stimulate their consciousness of difference from the rest of the population.16 The results could be anticipated; the advancement of minority rights was a low priority item for the United Nations and few concrete achievements were produced during the period of 1949 to 1965. The Capotorti Definition The minority issue finally makes a resurgence in 1965 when the Secretariat of the United Nations, in co-operation with the government of Yugoslavia organized a Human Rights Seminar in Ljubljana on multinational societies. This seminar incited the Sub-Commission to initiate a study on the implementation of the principles set out in Article 27 of the International Covenant on Civil and Political Rights. The Covenant had been adopted on December 16, 1966.17 Article 27 of the Covenant reads: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. At its twentieth session, in 1967, the Sub-Commission in Resolution 9(XX) decided: to include in the programme of its future work, and to initiate, as soon as possible, a study of the implementation of the principles set out in article 27 of the International Covenant on Civil and Political Rights, with special reference to VERNON VAN DYKE, "Self-Determination and Minority Rights" ( 1 9 6 9 ) 13 Int'l Studies Quarterly 2 2 3 at 2 4 7 . 1 7 NATANLERNER, "From Protection of Minorities to Group Rights" ( 1 9 8 8 ) 1 8 8 lYHR 1 0 1 at 1 1 3 . 17 analyzing the concept of minority taking into account the ethnic, religious and linguistic factors and considering the position of ethnic, religious or linguistic groups in multinational societies. In 1969, on the recommendation of the Commission, the Economic and Social Council, in Resolution 1418 (XLVI) approved the Sub-Commission's decision to conduct a study on the implementation of the principles set out in Article 27 and authorized it to designate a Special Rapporteur to carry out the study. In 1971, Francesco Capotorti, an Italian professor and member of the Sub-Commission was mandated. The final report was adopted by the Commission in 1977.18 Considering the age-old debate which had surrounded the definition of the term minority, one of the report's most remarkable features is its proposed definition: Minority means a group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members - being nationals of the State -possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.19 This somewhat tentative definition contains three main points: the numerical inferiority of the group; the non-dominant position of the group; and the sense of solidarity of the group. The first two points may be analyzed under the heading of objective criteria which involves the possession of distinct characteristics. As was pointed out by one author, "[i]t is commonly assumed that the group in question will constitute a numerical minority within the State."20 However, even this basic assumption raises some problems. First, it is possible to envisage the numerical structure of a State in which it is impossible to tell which of a number of 1 8 See the Commission's decision at its 34th Session in Resolution 14 (XXXIV). 1 9 FRANCESCO CAPOTORTI, supra note 1 at 40. 2 0 MALCOLM N. SHAW, "The Definition of Minorities in International Law" (1960) 20 IYHR 13 at 36. 1 8 roughly equal sized groups forms the majority and which are the minority elements. In such a case, Capotorti suggests that they all be considered "minorities" and that Article 27 be applicable to all of them.21 Second, the numerical factor poses the question of the minimum limit. It would appear from the government comments gathered in Capotorti's report that widely differing views exist: Finland referred to the need for a "noteworthy number of persons", while the Netherlands mentioned the assumption of a "bottom limit". Greece emphasized the requirement for "sizeable and a substantially compact element in the community", while Sweden suggested a minimum of one hundred persons. However, most governments appear not to have addressed this point. Accordingly, the issue will be determined on a practical level, and, as Capotorti suggests, "states should not be required to adopt special measures of protection beyond a reasonable proportionality between the effort involved and the benefit to be derived from it". In other words, Article 27 should not apply to groups numerically so small that it would be a disproportionate burden upon the resources of the State. This would, however, have to be interpreted with care in practice to prevent States avoiding their responsibilities by pleading a resources argument with regard to a numerically small community.22 The element of non-dominance is the second of the objective criteria. Its purpose is simply to avoid the situation characterized by the previous South African situation, where a minority dominates and persecutes a majority. There is little need to protect a minority that is in such a position of power that it dominates the State in question.23 The third point falls under the heading of subjective criteria which may be simply stated as a group's wish to preserve its distinct characteristics and its sense of solidarity. Ever since the first definition by the Permanent Court of International Justice, there appears to be little controversy over the fact that the members of the group should wish to exist as a group and not wish to be assimilated into the majority population. Debate, however, arises over the extent of the need for the group to proclaim this wish. Once again, it is interesting to note the comments made by certain governments: 21 22 23 FRANCESCO CAPOTORTI, supra note 1 at 9 6 . MALCOLM N . SHAW, supra note 2 0 at 3 7 . Ibid, at 3 8 . 19 The Yugoslav Government, for example, pointed out that "it would be inappropriate to ascribe too much importance to the need of a declaration of desire by the members of any minority in order to preserve their own national, ethnic, cultural and other features and to manifest their awareness of their affiliation to a particular minority, especially in the case of a minority which has for decades been subjected to the pressures of systematic assimilation and denationalization". Finland and Greece, however, called for overt expression of the subjective element. Capotorti preferred the view that this requirement could be implicit. He suggested that one could deduce the subjective factor or the "sense of solidarity", from the objective existence of a group possessing distinct ethnic, religious or linguistic characteristics.24 In this author's view, it is difficult to imagine a group which could have survived as a community with a distinct identity and characteristics without having "positively" so wished, given the modern reality of globalization and the usual attempts to assimilate minority groups. It is somewhat relieving to note that the Capotorti definition has gained fairly wide acceptance even though it is not part of any international legal instrument. In fact, though there is no "official" definition as such, this noteworthy effort does constitute a "central core" with regards to the definition of minorities. And furthermore, the definition by successfully combining objective criteria with subjective criteria highlights a variety of relevant and important defining characteristics. The Capotorti study, on the whole, is considered, by most authors, to have been a success. Its importance resides in the fact that the Commission not only discussed it but also approved it and adopted it. 2 5 In so doing, the Commission accepted the definition of minority presented by Capotorti and the recommendations contained in the report.26 2 4 Ibid, at 39-40. 2 5 Supra note 18. 2 6 Among the recommendations made by the Special Rapporteur were: (a) full use of the procedures of implementation contained in the International Covenant on Civil and Political Rights with regard to article 27; (b) provision of appropriate procedures on the national level to deal effectively with violations of the rights granted to members of minority groups under article 27; (c) preparation of a draft declaration on the rights of members of minority groups, within the framework of the principles set forth in article 27. The Special Rapporteur further expressed the strong belief that bilateral agreements dealing with minority rights concluded between States where 20 Also, the study was carried out with the participation of member States of the United Nations. In fact, [i]t was the first time in the history of the United Nations that member States had collaborated in a substantial way with a special rapporteur in regard to abstract problems of minorities. Forty-six States gave their information on minorities and the United Nations Secretariat elaborated 76 case studies as to the situation of minorities in different States. This was really a success as to the willingness of States to collaborate with the United Nations in a delicate field of problems.27 The Deschenes Definition In an effort to capitalize on the positive impact of the Capotorti study and with the intention of endorsing its conclusions and recommendations, the Sub-Commission on August 31, 1977 in Resolution 5 ( X X X ) recommended that the Commission consider drafting within the framework of Article 27 of the Covenant a declaration on minority rights. In 1978, the delegation of Yugoslavia28 submitted to the Commission the draft of a "Declaration as to the Protection of Minorities". The same year, the Commission established an informal working group open to all members. The working group met during the Commission's annual sessions. Its sole purpose was to examine the draft declaration. However, the Commission's working group was unable to proceed with its work due, once again, to a lack of consensus as to the definition of "minority". Consequently, in 1984, it requested that the Sub-Commission prepare a text defining the term "minority", taking into account a variety of studies, comments and views.2 9 minorities lived and States from which such minorities originated (especially between neighbouring countries) would be extremely useful, provided that co-operation with regard to the rights of members of minority groups was based on mutual respect for the principles of the sovereignty and territorial integrity of the States concerned and non-interference in their internal affairs. 2 7 FELIX ERMACORA, supra note 1 at 276. 2 8 The sadness and irony of this fact cannot be underscored enough by this writer. 2 9 HURST HANNUM, Autonomy, Sovereignty and Self-Deterrnination: The Accommodation of Conflicting Rights (Philadelphia: University of Pennsylvania Press, 1990) at 60. See also MALCOLM N. SHAW, supra note 20 at 24 and UN Doc. E/CN.4/Sub.2/1984/31 for a list of the studies, comments and views referred to. It is interesting to note that it was by Resolution 1984/62 that the Commission had requested that the Sub-Commission at its thirty-seventh session prepare a text defining the term minority. However, it would appear that the Sub-Commission was in no hurry to comply since by its decision 1984/101, the Sub-Commission decided to 21 In 1985, Sub-Commission member Jules Deschenes submitted the following definition: 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 As mentioned above and like Capotorti's definition, this proposal was drafted within the framework of Article 27. However, unlike Capotorti's definition which fared fairly well, Deschenes' proposal occasioned considerable debate within the Sub-Commission and was the object of several criticisms. First, disapproval was expressed regarding the requirement of citizenship. Several members felt that the definition could not be confined to citizens only. Attention was drawn, in this connection, to the judgement of the International Court of Justice which, it was felt, did not appear to support the criterion of citizenship in this context. Attention was drawn to the situation of many groups of non-citizens deserving of protection which, it was felt, would be excluded if the definition applied only to citizens.31 Second, comments were made as to the meaning of the term numerical minority. It was asked whether the group should be a numerical minority in relation to the population of the State as a whole or in relation to particular areas. In this connection, attention was drawn to the fact that in some areas of a country a group - although being a minority in relation to the population of the country as a whole -might be a majority within its particular region.32 postpone further consideration of the subject until its thirty-eighth session. The Commission responded to this move by adopting Resolution 1985/53 which urged the Sub-Commission to give the highest priority at its thirty-eight session to consideration of proposals for the definition of the term minority. 3 0 UN Doc. E/CN.4/Sub.2/1985/SR.13. 3 1 UN Doc. E/CN.4/Sub.2/1985/57 at 65. 3 2 Ibid, at 66. For a concrete example relating to the above comments, one has only to think of the province of Quebec within Canada. In the case of John Ballantyne, Elizabeth Davidson and Gordon Mclntyre heard by the Human Rights Committee, the authors (complainants), all members of the anglophone minority within Quebec, challenged the French only commercial sign law of their province. The Committee's final views were released on 22 Third, the use of the expression "collective will to survive" was questioned. It was felt that "survival" could have various possible meanings: physical survival or preservation of language, culture, and way of life. The view was expressed that there were possibly two types of groups: those who wished to be integrated and to be incorporated into the majority and those who wished to retain their identity. The expression "collective will to survive" could lead to the exclusion of the former category from the definition of minority, which would be unfortunate since the group was nevertheless in need of protection.33 Fourth, concerns were raised as to the meaning of the phrase "whose aim is to achieve equality with the majority in fact and in law". It was recognized that equality and non-discrimination were primary goals for all aspects of the protection of human rights including the protection of minorities. The question was raised, however, as to whether the formulation proposed would mean that once equality had been achieved a group would no longer qualify as a minority.34 Patrick Thornberry views the definition simply as a "refinement" of the Capotorti definition from which he believes it differs only in minor respects. In fact, Thornberry, though he March 31, 1993. The position of the Committee with regard to the status of the complainants under Article 27 as a member of a "minority" may appear shocking to Canadian sensibilities. In fact, [tjhe Committee concluded that the legal measure did not violate the complainants' rights as members of a "minority" (under article 27) because under the language of the Covenant - in which the term "State" applied to the entire country of Canada - English-speaking people were not a minority. Therefore, in the Committee's opinion, the definition of minority applies to groups within a State party but not within a province. As mentioned, this may be somewhat surprising to the average Canadian who has always believed that Canada was comprised of Francophone minorities outside Quebec and of an Anglophone minority within Quebec. However, one thing does appear clear, in the opinion of the Committee, the Francophone population of Quebec is a minority in the sense of Article 27. See Communications Nos. 359/1989 and 385/1989. MANFRED NOWAK, "The Activities of the UN Human Rights Committee: Developments from 1 August 1992 to 31 July 1995" (1995) 16 HRLJ 377. 3 3 UN Doc. E/CN.4/Sub.2/1985/57 at 66. See also MALCOLM N. SHAW, supra note 20 at 40-41. 34 Ibid, at 67. See also MALCOLM N. SHAW, supra note 20 at 41 for an opposing view. According to SHAW, the criticism is unfair since Deschenes is simply adopting the concept of equality as defined by the Permanent Court of Justice in Minority Schools in Albania. SHAW maintains that: [tjhere would thus be no true equality unless minorities were enabled to sustain those characteristics that defined them as minorities. It is this approach that was probably behind the Deschenes formulation, and despite the possibilities of confusion, it is worth preserving, although possibly rather less cryptically. 23 eventually adopts for the purposes of his writings the Capotorti definition for the reason that it is the longer established of the two, appears to prefer the Deschenes definition with regard to certain aspects. One improvement is the replacement of "numerically inferior to the rest of the population of a State" by "constituting a numerical minority". This is more than elegantia juris, the term "inferior" is avoided, even though in Capotorti it clearly refers to a number and is not a cultural value-judgment. Deschenes prefers "citizens" to "nationals" (of a State), dispelling potential criticism on the vagueness of the Capotorti term. "Equality in fact and in law" is explicit in Deschenes, but only implicit in Capotorti.35 Despite this fairly strong endorsement, Thornberry goes on to criticize both definitions for their simplistic approach to the notions of "minority" and "majority". Both formulae perhaps carry an incorrect implication through contrasting "the rest of the population" (Capotorti) and "the majority" (Deschenes) with minorities, as if the majority were a monolithic cultural block in opposition to the minority, which is not the case in many States. An earlier refinement of Capotorti proposed by Canada had contrasted "others of the population" with the minority, which can be reconciled with a general cultural heterogeneity in the State.36 In the end, the Deschenes proposal was forwarded unapproved, together with the comments of the members of the Sub-Commission to the Commission. And, as was stated by Hurst Hannum: Perhaps in recognition of the serious, if inconclusive, debate in the Sub-Commission (or its own lack of progress in preceding years), the Commission's working group decided in 1986 to postpone further consideration of definitional questions and to proceed to elaborate the substantive articles of the draft declaration.37 Accordingly, the issue of a definition was once again deferred and has not as yet resurfaced. Thus, for the purposes of this thesis, the Capotorti definition will be used as it is the only one to have received some formal recognition by the United Nations. PATRICK THORNBERRY, International Law and the Rights of Minorities (Oxford: Clarendon Press, 1991) at 7. 36 Ibid, at 32. 3 7 %>ranote29at6'l. 24 MINORITY RIGHTS Having reviewed the question of the definition of minority, we will now turn our attention to the substantive provisions adopted by the United Nations for the protection and promotion of minority rights. The Universal Declaration of Human Rights When the Commission on Human Rights was established in 1946, a high priority item was the preparation of a universal Declaration of Human Rights. This declaration was adopted without a dissenting vote (48 in favour, 8 abstentions and 2 absentees) by the General Assembly on December 10, 1948.38 This instrument does not contain any specific minority provisions. In fact, other than equality measures, the Declaration is void of any provisions relevant to our inquiry. This occurred despite the efforts of several interested parties.39 During the preparation of the final text of the Declaration in Paris in 1948, several delegations favoured the inclusion of provisions allowing for positive measures for the protection of minorities. This view was not shared by all participants: Some representatives argued that the problem of minorities was greatly complicated by the different structures of the various States: they felt that some countries might not be able to agree to the inclusion of minorities provisions in a declaration which was of universal scope because, should they try to apply them, they might find their national unity disrupted. Others took the view that it would not be possible in a single article to effect a compromise between the views of the New World, which in general wished to assimilate immigrants, and the Old World, in which racial and national minorities existed. In addition, one representative pointed out that the rights of all minorities were already fully protected in the proposed Declaration: thus, article 18 guaranteed them freedom of religion, article 19 freedom of opinion and expression, article 20 freedom of assembly, article 26 3 8 UN G.A. Res. 217 (III), 3 UN GAOR Supp. (No. 13) 71, U.N. Doc. A/810 (1948). 3 9 FELIX ERMACORA, supra note 1 at 264. This author notes the efforts made by socialist representatives and more particularly, those of the delegate of Denmark, the late Professor M. Sorensen. 25 the choice of education, and article 27 the right to participate in cultural life; in addition, article 2, on non-discrimination, expressly protected all minorities.40 The United Nations' Early Attitude Towards Minority Rights Faced with these conflicting views, the General Assembly simply opted out of the debate. In its Resolution 217 C (III) of December 10, 1948, it declared that the United Nations cannot be insensitive to the fate of minorities but that due to the difficulty in finding a universal solution to the "complex and delicate question" of minority rights, it would be preferable not to insert in the text of the Declaration any specific minority provisions. Instead, the General Assembly referred the matter to the Economic and Social Council requesting it to ask the Commission and the Sub-Commission to undertake a thorough study of minority issues.41 In order to better understand the United Nations' attitude towards minority rights, it may be useful to recall one author's interpretation: This cautious or rather indifferent attitude was due, [...] to the fear in the United Nations of undermining the stability of existing states by justifying foreign 4 0 "United Nations Action in the Field of Human Rights", UN Doc. ST/HR/2/Rev.2 (1983) at 210. As will be seen, the arguments presented by the delegates resurface every time a United Nations organization attempts to deal with either the issue of the definition of minority or with their rights. 4 1 The text of Resolutions 217 C (III) reads as follows: FATE OF MINORITIES "The General Assembly, "Considering that the United Nations cannot remain indifferent to the fate of minorities, " Considering that it is difficult to adopt a uniform solution for this complex and delicate question, which has special aspects in each State for which it arises, "Considering the universal character of the Declaration of Human Rights, "Decides not to deal in a specific provision with the question of minorities in the text of this Declaration; "Refers to the Economic and Social Council the texts submitted by the delegations of the Union of Soviet Socialist Republics, Yugoslavia and Denmark on this subject contained in document A/C.3/307/Rev.2, and requests the Council to ask the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities to make a thorough study of the problem of minorities, in order that the United Nations may be able to take effective measures for the protection of racial, national, religious or linguistic minorities." 26 intervention into domestic affairs which is contrary to the principle of Article 2 of the United Nations Charter (for which an enormous sensitivity developed after 1945). It was feared that states might have otherwise abused the protection of minorities on the basis of historical, national, racial, linguistic or religious ties. The emergence of the principle of self-determination for non-independent people, and the need to protect from the danger of secession the political independence and integrity of new nations, which inherited from the colonial period borders and populations not reflecting ethnic unity, made this an overwhelming concern.42 The year 1951 was devoted to the preliminary draft of an article on the protection of minorities for inclusion in the "International Covenant on Human Rights" (as it was then to be called). Due to obvious dissatisfaction on the part of the Commission, the Sub-Commission very nearly had to end its work permanently. In the words of one author: It was as if governments, having led the Sub-Commission down the perilous road of minorities, had also conspired to lay in wait for it and finally to liquidate it... Obviously the crime of the Sub-Commission was that it had taken its job too seriously. It was actually interested in legislation and, worse, in enforcement of legislation.43 The Economic and Social Council, at its twelfth session, decided that there would be no session of the Sub-Commission in 1951. This constituted "an ominous foreboding of the further decision it was to take later in that same year when the Council decided to abolish it". 4 4 Despite the severity of its sanction, the Council did allow the Sub-Commission to meet for one final session in October, 1951. The Sub-Commission thus prepared a "long political testament" and made several recommendations for amendments to the draft Covenants on Human Rights (as they now were known). However, reports of the Sub-Commission's demise were greatly exaggerated since the General Assembly, in Resolution 532 B (VI), expressed the view "that the prevention of discrimination and the protection of minorities are two of the most important branches of positive work undertaken by the United Nations" and invited the Council to reverse its decision to abolish G. SACERDOTTI, "New Developments in Group Consciousness and the International Protection of the Rights of Minorities" ( 1 9 8 3 ) 13 IYHR 1 1 6 at 1 2 2 . 4 3 JOHN B . HUMPHREY, supra note 3 at 8 7 4 - 7 5 . 27 the Sub-Commission. In June, 1952, the Council complied with the General Assembly's directive and convened a session of the Sub-Commission for 1952. As was noted by John Humphrey: This outcome was a complete victory for the Sub-Commission. Stimulated by the effort which the Council had made to discontinue it and by the support which it had received from the General Assembly/the Sub-Commission settled down under a new lease of life to a work program which, after the draft Covenants became bogged down in the General Assembly, soon became one of the most dynamic parts of the human rights program.45 Article 27 of the International Covenant on Civil and Political Rights The Sub-Commission's rejuvenation in the area of minority rights occurred in 1967 when the Sub-Commission decided to initiate a study on the implementation of the principles set out in Article 27 of the International Covenant on Civil and Political Rights (CCPR). This Covenant had been adopted on December 16, 1966.46 Article 27 of the Covenant, it will be recalled reads as follows: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. To date and almost 55 years after the demise of the Minorities Protection Scheme of the League of Nations,4 7 this Article constitutes the only provision of a general character dealing with minority rights in a universal convention. Thus, it is important to stress that it constitutes hard, treaty law binding at least upon the parties. 45 Ibid, at 876. 4 6 NAT AN LERNER, supra note 17 at 113. It should be noted that Canada is Party to this Covenant. 4 7 Most scholars agree that the greatest experiment in the protection of minorities may be traced back to the system established under the auspices of the League of Nations. The system was based on a series of treaties and declarations including special minority treaties, clauses on minorities which were included in certain peace treaties, declarations concerning minority rights that were made on the occasion of admission to the League and finally protection of particular geographical areas. 28 To no one's surprise, much controversy and debate surrounded the adoption of Article 27. In fact, some delegations felt that it might promote secessionist trends.48 Yet others feared its implications for immigrant groups. In the words of one author, "[fjhe result was a compromise involving serious problems."49 As a preliminary remark, it is important to emphasize that the Article concerns only ethnic, religious or linguistic communities. Notably absent from the scope of the Article are "national minorities". Most authors agree that they constitute groups "which have become conscious of their own identity to such an extent that they seek to become masters of their own fate".50 A clear political element is attached to the notion. In fact, the problem with national minorities resides in their resemblance to "people" in the sense of Article 1 of the Covenant. Tomuschat writes that "[i]t is probably awareness of this danger which prompted the majority of states to omit any reference to national minorities".51 However, the concept of "national minority" does resurface some twenty years later in the United Nations' recent Declaration on Minority Rights. This document will be discussed in some detail later in this chapter. Article 27, was the object of a General Comment No. 23 (50) adopted in April 1994 by the Human Rights Committee under Article 40, paragraph 4 of the CCPR. 5 2 The importance of minority rights is captured in the Committee's following statement: The protection of these rights is directed to ensure the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.53 For example, the French government entered an important reservation when it ratified the CCPR in 1980 stating " Le Gouvernement francais declare, compte tenu de l'article 2 de la Constitution de la Republique francaise que l'article 27 n'a pas lieu de s'appliquer en ce qui concerne la Republique". See UN Doc. CCPR/C/2/Add.5 at 2 (1982). Article 2 of the French constitution of 1958 states: "La France est une Republique indivisible...". 4 9 NAT AN LERNER, supra note 17. 5 0 CHRISTIAN TOMUSCHAT, "Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights" in Vokerrecht als Rechisordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift fur Hermann Mosler (1983) at 12. See also JELENA PEJIC, "Minority Rights in International Law" (1997) 199 Hum. Rts. Q. 666 at 673. 51 Supra note 50. 5 2 General Comment No. 23(50), UN Doc. CCPR/C/21/Rev. l/Add.5. 5 3 Ibid, at para. 9. 29 Although the general comment is certainly useful in better understanding certain aspects of Article 27, notably its application to indigenous groups and the position of non-citizens, its usefulness as regards other more political matters is less obvious. For example, the Committee's attempt to differentiate minority rights as protected under Article 27 from those of a people's right to self-determination under Article 1 is, suffice it to say, less than convincing. This will be discussed in more detail in the case study (chapter IV) dealing with the status of the population of Quebec. Also, as will be seen, the comment adds little to one's understanding of a State's duties or obligations under Article 27. One often noted point of contention, with regards to Article 27 is the use of the words "persons belonging to such minorities". This phrase, well suited to the general individualistic pattern of the CCPR, would appear to indicate that only individual rights, which are however to be exercised collectively, are recognized. The individualistic orientation of post World War II human rights legislation as well as the United Nations' repeated reluctance to recognize group rights are reaffirmed. 5 4 Most authors agree that a shift in emphasis with regard to the international protection of human rights occured at the end of World War II. In fact, the new approach which emerged was one where group protection became almost obsolete since it was believed that "whenever someone's rights were violated or restricted because of a group characteristic - race, religion, ethnic or national origin, or culture - the matter could be taken care of by protecting the rights of the individual, on a purely individual basis, mainly by the principle of non-discrimination." (NATAN LERNER, "From Protection of Minorities to Group Rights" (1988) 18 IYHR 101 at 112.) This new approach arose for a number of reasons including Hitler's use of German-speaking minorities within Europe as an initial excuse for acts of aggression. However, other factors must also be recognized. These include a shift in political power and influence away from Europe as well as the emergence of new countries in Africa and Asia where the importance of nation-building by far superceded that of minority problems. In fact, in the words of PATRICK THORNBERRY: This change of mood cannot be completely explained by Nazi abuse of the minorities system and their use of the transfers remedy. Changes in the political climate were also influential - the United States was absent from the League but dominant in 1945, and its public proposals promoted its melting pot traditions over separate rights for minorities. The Western attitude in this respect was hardened by the prominorities views expounded by the Soviet Union. PATRICK THORNBERRY, "IS there a Phoenix in the Ashes? International and Minority Rights" (1980) 15 Texas Int'l L.J. 421 at 439. 30 Also of concern is the Article's discretionary element. The obligation imposed on States is limited to "states in which ... minorities exist". This phrase was first introduced during the debate on the draft article: Its purpose was seemingly to restrict the rights to those minorities long established in the territory of the state and to prevent the encouragement of new minorities or the reawakening of minority consciousness in previously assimilated groups. Furthermore, the expression could also mean that it is within the competence of a state to deny the existence of any minorities within its boundaries, including denial by refusal to recognise the groups in its own legal system either constitutionally or statutorily.55 However, the Human Rights Committee's comment does specify that "[t]he existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria". 5 6 Furthermore, the formulation of the Article is cast negatively. Instead of stating that persons belonging to minorities shall have the rights enumerated, it declares that they shall not be denied those rights. This would suggest that a State is under the duty simply "not to interfere with the minority in its enjoyment of rights - a minimal duty of tolerance of differences."57 Certainly, the article does not impose any duty to "promote" minority culture, religion or language. In fact, "[proposals for including in Article 27 a list of concrete rights, such as State supported schools of the minority or language rights, failed."58 Therefore, [i]n the same way in which general affirmations of a right to work, to culture or to education ring hollow without active and sustained state intervention toward achieving these objectives, so also the special rights of members of minorities to their own culture, language and religion are deprived of substantive content without a level of active support equivalent to that provided the majority of the population. This interpretation suggests that article 27 contains a programmatic element.59 5 5 Ibid, at 448. 5 6 General Comment No. 23(50), supra note 52 at par. 5.2. See also the P.C.I.J.'s advisory opinion concerning Greco-Bulgarian communities, supra note 2. 5 7 PATRICK THORNBERRY, supra note 54 at 449. 5 8 NATANLERNER, supra note 1 at 1 6 . 5 9 PATRICK THORNBERRY, supra note 54. 31 When the Human Rights Committee dealt with this aspect of Article 27 in its General Comment, it did so in an openly cautious manner. The Committee had the following to say: [...] positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with the other members of the group.60 In the end, the importance of Article 27 can not be overlooked. It's very existence confirms that ethnic, linguistic and religious minorities possess special rights in addition to other human rights and that special protective measures in favour of ethnic groups are legitimate. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities The most significant development in the area of the protection and promotion of minority rights since the International Covenant is without a doubt the adoption on December 12, 1991 by the Commission's working group of the final draft of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. Fourteen years in the making, this Declaration was eventually adopted by the General Assembly on December 12, 1992.61 The Declaration's importance is twofold. First, as the only human rights instrument devoted solely to minority rights, the importance of its substantive content cannot be overstated and second, its possible future use as the foundation for the drafting of a binding international instrument, namely an international convention containing positive duties for States reaffirms the General Comment No. 2 3 ( 5 0 ) , supra note 5 2 at para.6.2. 6 1 General Assembly Resolution 4 7 / 1 3 5 of Deccember 1 2 , 1 9 9 2 . For the complete text of the Declaration, see Appendix 1. It is important to state that the willingness to draft a Declaration constitutes on the part of the Commission, "a clear change of tendency" and [t]he reports of the working group and the discussions in the Commission on Human Rights on the item show that the hostility of the United Nations bodies against minority protection is not so virulent any more and obvious than it had been in the fifties and in the beginning of the sixties. FELIX ERMACORA, supra note 1 at 2 7 7 . 32 text's importance. The following pages will offer some analysis of the Declaration's substantive provisions. First, it must be noted that the Declaration is meant to better define the contours of Article 27. Thus it may be said to constitute the United Nations most recent statement as to the existing international standards for the protection of minorities. However, one surprising and quite notable difference exists from the outset namely the inclusion of "national" minorities within the scope of the Declaration. According to one author, this appears to be part of a larger trend towards a return to earlier terminology. However, the real issue is not the comeback of the term but rather its meaning in the Declaration. How are "national" minorities to be defined? What differences exist between "national minorities" and "ethnic, religious and linguistic minorities"? How does one reconcile the different terms? Though the inclusion of the term "national minorities" in the Declaration remains somewhat difficult to understand, the most plausible explanation is the one provided by Professor Natan Lerner. He writes: [...] it would appear that the term "national minorities" is strictly equivalent to "ethnic, religious and linguistic minorities". The use of the conjunction "or" confirms this interpretation. A different interpretation would imply that the Declaration intended to make a distinction between some particular minorities, with specific political aims, and other minorities that only aspire to satisfy specific interests that distinguish them from the majority or other sectors of the population. Such a distinction is not supported by the text.63 The Preamble recognizes that the promotion and protection of minority rights, as an integral part of the development of society as a whole, contribute to the political and social stability of States in which they live, as well as contribute to the strengthening of friendship and co-operation among peoples and States. Furthermore, the Preamble recognizes the need to ensure effective implementation of international instruments with regard to minority rights. However, the true spirit of the Preamble is not one of innovation but rather a reaffirmation of the principles To this author's knowledge, no such initiative has yet been undertaken. NATAN LERNER, "The 1992 U N Declaration on Minorities" (1993) IYHR 111 at 116-17. 33 already found in other international instruments as well as those found in the provisions of Article 27 of the Covenant. Article 1 is interesting in that it speaks not only of a State's duty to protect the existence and identity of minorities as already found in Article 27 of the CCPR but also speaks of a State's duty to encourage conditions for the promotion of the minority's identity. This duty is further clarified in paragraph 2 which specifies that States must adopt appropriate legislative and other measures to achieve those ends. For many minorities the simple protection of their existence and identity would be more than welcome. Article 1 is therefore bold and hopefully promising64 but as one author pointed out with reference to an earlier, similar draft of the Article: "[n]o prophetical gifts are needed to forecast that such a considerable extension of the obligations incumbent upon States will either be rejected - as exceeding by far the actual capabilities of Governments - or will simply be accepted with the mental reservation not to take too seriously those new commitments. For that reason alone, it must be feared that instead of strengthening article 27, the adoption of the draft declaration would on the contrary adversely affect its binding substance."65 Article 2 is an important provision in that it enumerates several rights. Paragraph 1 is a restatement of Article 27. Paragraph 2, by far the most interesting of the Declaration's provisions, stipulates that persons belonging to a minority have the right to participate in public life. This right is further defined in paragraph 3 which makes provision for the right of minorities to participate in the decision making process at both the national and regional levels when their interests are at play. It should be noted however, that this provision includes an overriding clause in that the right may only be effectively exercised "in a manner not incompatible with national legislation". Paragraph 4 by recognizing the right of minorities to establish and maintain their own associations The reader will surely recognize the similarity which exists between this Article of the Declaration and that of the interdiction of cultural genocide which failed to be included in the Genocide Convention. It would appear that the crime of cultural genocide has resurfaced in somewhat different terms some 4 5 years later. See also ISSE OMANGA BOKATOLA, "La declaration des Nations Unies sur les droits des personnes appartenant a des minorites nationales et ethniques, religieuses et linguistiques" ( 1 9 9 3 ) 9 7 Rev. D.I.P. 7 4 5 at 7 5 6 . 6 5 CHRISTIAN TOMUSCHAT, supra note 5 0 at 3 1 . 34 also recognizes the inevitable collective aspect of minority rights. The following paragraph's originality resides in its recognition of the rights of minorities to maintain free and peaceful contacts with kin States. Article 3 fulfils two important functions. First, it clearly reiterates the fact that the rights contained in this declaration are individual in nature. Paragraph 1 states that "persons belonging to minorities may exercise their rights [...] individually as well as in community with other members of their group, without any discrimination". It also, however, recognizes the communalism inherent in minority rights. The second function carried out by the Article is the protection of those members of a minority who may wish to be assimilated. Other key provisions are to be found in Article 4. Paragraph 1 recognizes that minorities must be allowed to exercise their rights "without any discrimination and in full equality before the law". This turn of phrase appears to be the latest attempt to recapture the Permanent Court of International Justice's principle of equality in law and in fact. Paragraph 2 further obliges States to actively promote a minority's identity and specifies that States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, tradition, and customs. The problem surrounding the non-specific nature of the term "favourable conditions" is complicated by the limitation found in the paragraph itself. The duty exists "except where specific practices are in violation of national law and contrary to international standards". The problem of the ambiguity of the duties is further evidenced in paragraph 3 which imposes upon States the obligation to ensure that minorities have "adequate opportunities" to learn their mother tongue or to have instruction in their mother tongue. However, one very positive aspect of this provision is its use of the term "instruction" which would seem to imply not only primary or even secondary education but also higher education. The significance and potential worth of paragraphs 4 and 5 cannot be overstressed. Both provisions attempt to deal with what are undoubtedly the leading causes of tension between members of a minority and the other members of society. First, paragraph 4 imposes upon States 35 the duty to "take measures in the field of education, in order to encourage the knowledge of the history, traditions, language and culture of the minorities existing within their territory". The destructive force of ignorance is finally being addressed. Unfortunately, the provision also specifies that this duty exists only "where appropriate". It is hoped that in any eventual interpretation, knowledge and enlightenment would be deemed "appropriate" in all circumstances. Paragraph 5, for its part, recognizes that minorities must be permitted to "participate fully in the economic progress and development of their country". Article 5 recognizes the need for national and international policies and programmes to be planned and implemented with due regard for the legitimate interests of persons belonging to minorities. Accordingly, in all their dealings, States must mind the interests of minority groups. Articles 6 and 7 encourage States to "co-operate on questions relating to persons belonging to minorities, including exchange of information and experiences" and calls for the co-operation of States in order to promote respect for the rights set forth in the Declaration. It is interesting to note that the aim of this article is "to promote mutual understanding and confidence". Article 8, for the most part, is a reaffirmation of the earlier international documents dealing with human rights. However, paragraph 1 by specifying that nothing in the Declaration should impede a State's performance of its international obligations towards minorities and that in particular a State should fulfil in good faith the obligations and commitments it has assumed under international treaties and agreements to which it is a party presents an interesting opportunity for dealing with the rights of States on the one hand and those of minorities on the other. According to Bokatola Isse Omanga: The purpose of this provision is to underline that respect for the principles of sovereignty and others must not prevent the States from honouring their international obligations to minorities. It can be reasoned then that should a State fail to perform its international obligations to minorities in good faith, it forfeits its 36 "higher" powers, and the minorities' rights are no longer restricted by respect for the aforementioned principles.66 Another interesting provision is found in paragraph 3 which endorses the concept of "special measures" or affirmative action. The text stipulates that "[mjeasures taken by States in order to ensure the effective enjoyment of the rights as set forth in this Declaration shall not prima facie be considered contrary to the principle of equality contained in the Universal Declaration of Human Rights". In the words of one author: [c]es mesures ne doivent done pas etre considerees comme des privileges, mais comme des mesures permettant aux minorites de beneficier d'un traitement preferentiel compensateur de l'inegalite dont elles sont les victimes vis-a-vis des majorites. La discrimination positive permet ainsi aux minorites d'acquerir l'egalite reelle avec les majorites, mais ne doit evidemment pas avoir pour consequence de defavoriser indument les majorites.67 Paragraph 4 is quite predictable in that it declares that the promotion of the rights of minorities should not affect the sovereignty, territorial integrity or political independence of the host State. One author had the following to say with regards to an earlier but very similar version of the same provision: This clause signifies that the protection and development of minority rights may be severely curtailed in the name of the sovereignty, territorial integrity and political independence of the State in which a minority group lives. Shielded by the grand principles of the United Nations, this provision reintroduces concretely the State's right to use at will diverse means to limit the scope of minorities' rights. [...] Thus, the act of reaffirming the States' sovereignty demonstrates that despite progress in the domain of "general international law for minorities", the fundamental rights of the States still take precedence over the rights of minorities.68 The final provision, Articled, provides for the co-operation and contribution of the organs and specialized agencies of the United Nations to the full realization of the rights and principles set fourth in the Declaration. Though fine in theory, the reality of the United Nations is one of ISSE OMANGA BOKATOLA, "The Draft Declaration of the United Nations on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities" (1991) 46 Int'l Comm. Jur. Rev. 33 at 37. 6 7 ISSE OMANGA BOKATOLA, supra note 64 at 755. 6 8 ISSE OMANGA BOKATOLA, supra note 66 at 37. 37 underfunding and under staffing. However, it should be noted that Article 9 may prove useful if it can be used to press for aid programmes specifically targeting minorities and minority regions.69 On the whole, the Declaration appears to be a cautious amplification of the rights set out in Article 27 of the Covenant. Nonetheless, a certain innovation and boldness can be found in the Declaration's use of the concept of "promotion" and in its recognition of the importance of a minority's involvement in decision making processes; the importance of good relations with kin States; the importance of a minority's full participation in the economic life of a State; and the value of knowledge of minority history, traditions and culture. This can be said to represent a significant change in the United Nations' approach to minority rights, since States are now faced not only with a negative duty not to interfere with a minority's limited rights (i.e.: enjoy their own culture, practice their own religion, use their own language) but rather States must now actively promote a minority's identity and welfare.70 However, many of the provisions, as we have seen, appear either to be open to various interpretations or include important exceptions or limitations. As was noted throughout the preceding paragraphs, the text of the Declaration is "littered with vague or negative phrases like 'encourage conditions', 'appropriate measures', 'adequate opportunities', 'where appropriate', 'whenever possible', 'where required' and 'in a manner not incompatible with national legislation'."71 In fact, according to Bokatola, the States' responsibility is severely limited: their sole duty is to do everything in their power to protect and develop minority rights, but they are not forced to succeed in this endeavour, nor are the exact steps to be taken specified. So, after having arrived at a narrow definition of minority rights, the States also allow themselves free rein in choosing which means to use, which goals to pursue and which results to achieve.72 & y See ISSE O M A N G A BOKATOLA, supra note 64 at 763 where the author in a somewhat less optimistic tone, concludes that "[c]et article essaie de compenser l'absence de moyens de controle specifiques de l'application de la Declaration par des moyens internationaux de controle exterieurs a celle-ci". 7 0 THOMAS D . MUSGRAVE, Self-Deterrnination and National Minorities (Oxford: Clarendon Press, 1997) at 144. 7 1 GUDMUNDUR ALFREDSSON and ALFRED D E ZAYAS, "Minority Rights: Protection by the United Nations" (1993) 14 HRLJ 1 at 3. 7 2 Supra note 66 at 38. See also JELENAPEJIC, supra note 50 at 673 where the author writes: 38 CONCLUSION In conclusion, one cannot help but acknowledge the United Nations' traditional reluctance to deal concretely with minority rights. This discomfort has been evident from the early years of the Sub-Commission through to the adoption of Article 27 of the Covenant. However, the recent Declaration on the Rights of Minorities reveals what can be termed a cautious new approach to minority issues. The focus placed on promoting the minority's identity, granting it a say in the political affairs of the State and encouraging minorities to participate in public life show a willingness on the part of States to grant minorities more internal influence. In fact, it appears that States are willing to permit minority groups to "influence the political system under which they live." Interestingly, internal self-determination seeks to grant the same right to peoples. However, this very parallel may also serve to explain States' excessively cautious behaviour when it comes to minority rights. Though many explanations exist as to why States adopt this guarded position, my own resides in the overlap of the notions of minority rights and a people's right to self-determination. As was recognized by one author, "[sjtates have frequently seen minority protection as a road to secessionism and a general undermining of sovereignty".73 What is interesting about the above comment is that one could easily substitute the terms "minority protection" for "self-determination" and in no way mislead the reader as to the United Nations' general attitude towards either minorities or peoples. This constitutes only one of the many analogies one may draw between the two concepts. [t]he main failing of the Declaration on Minorities is that its sweeping commitments lack adequate elaboration and so make it difficult to hold states accountable for enforcing these obligations. PHILIP VUCIRI R A M A G A "The Group Concept in Minority Protection" ( 1 9 9 3 ) 1 5 Hum. Rts. Q . 5 7 5 at 5 7 5 . 39 The following chapter will focus on the right to self-determination as it has evolved within the United Nations as well as the definition of "people" and thus allow us to further explore these themes. 4o CHAPTER III PEOPLES AND THE RIGHT TO SELF-DETERMINATION INTRODUCTORY REMARKS Yoram Dinstein writes that self-determination, a right prescribed by modern international law, "is loaded with political and psychological dynamite".1 Vernon Van Dyke, for his part, observes that "self-determination has become one of the emotion-laden slogans in the field of human rights, a shibboleth that all pronounce to identify themselves with the virtuous".2 In this chapter of the thesis, I will examine the historical development of the principle of self-determination, as well as its modern content and scope as they are defined in major United Nations documents. Special attention will be paid to the definition of "people" or the "self within the context of the right to self-determination. THE HISTORICAL DEVELOPMENT OF THE PRINCIPLE OF SELF-DETERMINATION Several authors trace the origins of the principle of self-determination back to the French and American Revolutions. In fact, the American Declaration of Independence of 1776 recognizes, in certain circumstances, a right of "the people" to engage in revolution. The French revolution, for its part, legitimized the doctrine of popular sovereignty: [...] "government should be based on the will of the people, not on that of the monarch, and people not content with the 1 Y O R A M DINSTEIN, "Self-Determination in the Middle East Conflict" in Y . ALEXANDER & R . A . FRIEDLANDER, eds., Self-Determination: National, Regional and Global Dimensions (Boulder, Colorado: Westview Press, 1980) 243 at 249. 41 government of the country to which they belong should be able to secede and organize themselves as they wish."3 The idea of a right to revolution and of government based on the will of the people remain central, 200 years later, to our understanding of self-determination. Wilsonian Self-Determination Of perhaps even greater importance to the evolution of the concept of self-determination, were the thoughts of an influential statesman and U.S. President: Woodrow Wilson. Wilson's vision of world order and lasting peace contributed greatly to both the advancement of minority rights and the recognition of the right to self-determination. Wilson was a product of his time and, as such, his own thoughts on the issues evolved as history unfolded and as the circumstances around him demanded it. Certain events connected with the First World War significantly impacted upon Wilson's thoughts. The first and foremost of these was the victory of Western Europe and the defeat of the absolutist States of Central and Eastern Europe. This victory rested in part on the ideal that national aspirations must be respected: "peoples may now be dominated and governed only by their consent. Self-determination is not a mere phrase. It is an imperative principle of action, which statesmen will henceforth ignore at their peril". By the termination of the war, expectations had been raised and many minority groups fully expected that national self-determination would be the guide for all future territorial readjustments.4 In its early form, the principle of self-determination led to the disintegration of the old Austro-Hungarian Empire and the shrinking of the territory of Germany. Various parts of the VERNON V A N D Y K E , "Self-Determination and Minorities Rights" (1969) 13 Int'l Studies Q. 223 at 223. 3 A . R i G O SUREDA, The Evolution of the Right of Self Determination: A Study of United Nations Practice (Leiden: A . W . Sifthoff, 1973) at 17. 4 ROUCEK, The Working of the Minorities System under the League of Nations (Prague: Orbis, 1929) at 17. 42 Austro-Hungarian territory were united into new national states. The same process was carried out in the Balkans. In addition to the new Austria, Hungary, and Bulgaria, the new States of Czechoslovakia, Yugoslavia, larger Romania, Albania, and greater Greece were created. A new Poland was formed from parts of Austria, Germany and Russia. The States of Lithuania, Latvia, Estonia, and Finland were carved out of pre-war Russia.5 The Wilsonian Self Despite a massive re-drawing of Europe's map, several authors have criticized the victors' implementation of the self-determination principle since one very crucial aspect of the Wilsonian approach remained vague and troublesome. Wilson never arrived at a true definition of the "self. Self-determination had been proclaimed an imperative principle of action but no one, including Wilson, seemed to know what constituted a unit fit for self-determination. Robert Lansing, Wilson's Secretary of State, in his personal notes, wrote during the Paris Peace Conference: "When the President talks of "self-determination" what unit has he in mind? Does he mean a race, a territorial area or a community? Without a definite unit which is practical, application of this principle is dangerous to peace and stability"... In fact, Lansing went as far as asserting that at the Peace Conference Wilson had indeed played with "loaded dynamite".6 A review of some of Wilson's public pronouncements on the question of the "self," shows the President's use of the terms "peoples", "provinces", "population concerned", "national elements", and "nations". In fact, the principle could potentially be applied to all kinds of "peoples". Karl Josef Partsch identified the following five cases: 5 Ibid, at 22-23. 6 H.M.V. TEMPERLY, A History of the Peace Conference of Paris (London: Oxford University Press, 1924) at 558. 43 "peoples" living entirely as minority (or even majority) groups inside a state ruled by another "people" (as the Irish before 1919); "peoples" living as minority groups in more than one state without their own statehood (as Poles in Russia, Austria and Germany before 1919); a "people" forming a minority group in a state but understanding itself as part of the people of a neighbouring state (Hungarians in Romania); "peoples" or "nations" forced by external influences. to live in separate states (as the German nation within several states); a "people" living as the majority (or as a minority group) inside a territory with a special status under foreign domination (as under colonial regimes).7 According to one author, the difficulty of identifying which "peoples" had a right to self-determination under the Wilsonian principle is not, in reality, a complex one of differentiating between groups on the basis of language, culture, race, religion, aspirations and so on, though this is necessary and will often be difficult and controversial; rather, it is a simple question of line-drawing. Depending on where the dividing line is drawn, an ethnic, religious or other community aspiring to nationhood can become either a "people", entitled to full self-government, or a minority, with only the minimal rights accorded to members of what was, in the Versailles scheme, a residual category.8 As to figuring out where to draw the line, Hannum, for his part, believed that at the Paris Peace Conference "the winners and losers were determined more by the political calculations and perceived needs of the Great Powers than on the basis of which peoples had the strongest claims to self-determination".9 K A R L JOSEF PARTSCH, "Fundamental Principles of Human Rights: Self-Determination, Equality and Non-Discrimination" in K A R E L VASAK, ed., The International Dimensions of Human Rights, vol.1 (Westport: Greenwood Press, 1982) 62 at 63. 8 ANTHONY W H E L A N , "Wilsonian Self-Determination and the Versailles Settlement" (1994) 43 I . C . L . Q . 99 at 102-03. 9 HURST HANNUM, Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia: University of Pennsylvania Press, 1990) at 28. 44 The Minority Protection Scheme: A Necessary Corollary Wilson himself acknowledged that not every oppressed people in the world whose cause is just could or would determine its own affairs. Wilson reluctantly recognized that absolute self-determination was impossible: historical claims, economic needs and military and strategic arguments had to prevail.10 The question therefore arose as to how to satisfy those "selves" who could not or did not enjoy a right to self-determination. The solution provided by Wilson was the League's Minorities Protection System. As Roucek pointed out, "[t]he regime for the protection of minorities was designed to provide a remedy in cases where a territorial settlement was inevitably imperfect from the point of view of nationality."11 Hurst Hannum had a slightly different understanding of the system. He felt that "the League of Nations scheme for minority protection was in part designed to provide what might be termed cultural self-determination to those groups whose demands for fuller political recognition were denied by the Great Powers."1 2 As mentioned in the previous chapter, it is estimated that, following the redrafting of the map of Central Europe, the total number of ethnic minorities in Europe was reduced from fifty million to twenty million. However, numerous new minority groups were formed.13 In fact, the process led to the "political separation of ethnic minorities", which according to one author, "struck the victors as a prudent method of dismembering the European territories of the vanquished." The author goes on to assert that "[e]ven Wilson himself may have seen Balkanization more as a means of making the world safe for democracy than as a conception of democracy."14 Whatever Wilson's views may have been, one thing remains certain: the A. RIGO SUREDA, supra note 3 at 96. According to Professor Sureda, the victors simply rewarded "faithful allies such as the Poles, Czechoslovaks and Yugoslavs", showed "severity to the conquered enemy such as the Turks and Germans" and tried "to establish a new balance of power by respecting Russian integrity". 1 1 ROUCEK, sw/?ranote4at23. 12 Supra note 9 at 31. 1 3 PATRICK THORNBERRY, "IS there a Phoenix in the Ashes? International Law and Minority Rights" (1980) 15 Texas Int'l L. J . 421 at 431. 1 4 GUYORABINDER, "The Case for Self-Determination" (1993) 29 Stanf. J . Int'l L. 223 at 228-29. 45 international protection of minorities was to his mind the logical corollary of the principle of self-determination of peoples and at times simply a necessary substitute.15 Two Sets of Standards As mentioned, an important obstacle faced by Wilson at the Paris Peace Conference was the impossibility of ensuring the universality of the principle of self-determination. It was never envisioned that the principle could be applied to Ireland or to the Allies' own dependent territories. Asked to explain this lacuna, Wilson simply stated: We were sitting there with the pieces of the Austro-Hungarian Empire in our hands... We were sitting there with various dispersed assets of the German Empire in our hands... but we did not have our own dispersed assets in our hands... and therefore we had often, with whatever regret, to turn away from questions that ought some day to be discussed and settled and upon which the opinion of the world ought to be brought to bear.16 Having examined the Wilsonian view of self-determination, it is interesting to note the absence of two modern strands of the principle. The first being the lack of attention afforded decolonization and the second, perhaps corollary strand, being the absence of economic self-determination. It would appear, in particular, that economic self-determination was not embraced within Wilson's understanding of the principle. For Wilson, as we have seen, self-determination was necessarily political and necessarily based on a democratic political ideal. As was concluded by Pomerance: "Wilsonian self-determination was a peculiar blend of several interconnected, but not necessarily harmonizable, strands of thought" and "[q]uite clearly, guidance for concretizing the abstract ideal of self-determination is not to be found within the four JOSEF L . - K U N Z , "The Present Status of International Law for the Protection of Minorities" ( 1 9 5 4 ) 4 8 AJTL 2 8 2 . 1 6 Wilson's answer is drawn from a Presidential Address of September 4 , 1 9 1 9 made in Indianapolis which is quoted in M I C H L A POMERANCE, "The United States and Self-Determination: Perspectives on the Wilsonian Conception" ( 1 9 7 6 ) 7 0 AJfL 1 at 9 . 46 corners of that formula itself but must be decided by reference to some outside criteria". As we shall explore in the upcoming pages, the United Nations adopted, at the outset, as its outside criteria, the rules of decolonization. SELF-DETERMINATION AND THE UNITED NATIONS External vs Internal Self-Determination Modern self-determination encompasses two integral features: external self-determination and internal self-determination. External self-determination is the right of the people to be independent and free from outside interference, whereas internal self-determination is thought to be satisfied when the people have a representative, democratic government.18 It will be noted that a shift in emphasis from external self-determination to internal self-determination has occurred over time. The early post World War II years marked a definite preoccupation with the external feature of self-determination whereas more recent developments tend to highlight the internal dimension of the right. More and more attention is focused on political pluralism, majority rule, economic and political options and a democratic decision-making process. As is explained by Patrick Thornberry: Self-determination has more than one dimension or aspect. The external dimension or aspect defines the status of a people in relation to another people, State or Empire, whereas the democratic or internal dimension should concern the relationship between a people and "its own" State or government. Proponents of democratic self-determination often describe it as a challenge to governments which oppress their peoples. [...] External self-determination has had an enormous impact on the development of international society since 1945. [...] The concept of 17 Ibid, at 26. 1 8 HALIM MORIS, "Self-Determination: An Affirmative Right or Mere Rhetoric?" (1997) 4 ILSA Journal of Int'l & Comparative Law 201 at 205ff. 47 external determination is more familiar than internal self-determination in virtue of its revolutionary effect on international relations.19 This latter idea is more fully developped by Allan Rosas who writes: The emphasis on external self-determination may fit better into the traditional inter-State system, with its principle of "sovereign equality". The idea of "internal" self-determination as a principle of public international law is a challenge to the traditional inter-State paradigm, as it may imply a collective human right enjoyed by the population of a State against the "sovereign" State.20 However, the author goes on to assert that despite those who still express doubts or outright opposition to the notion of internal self-determination, "the idea of internal self-determination has been gaining ground since the 1980's."21 In his words: [...] State practice, the practice of international human rights organs, and legal doctrine, seem to be moving towards the notion of internal self-determination. Such a development is in line with a general trend in today's world to downplay State sovereignty in favour of human rights, popular sovereignty and a democratic system of government.22 The Principle of Self-Determination and the U N Charter The two above-mentioned strands of the right to self-determination can be found in the various United Nations documents dealing with self-determination. The starting point of any analysis must be the United Nations' Charter. And, in fact, the "principle" of self-determination is enshrined in the United Nations' fundamental law. 2 3 As was noted by one author, "[o]n the PATRICK THORNBERRY, "The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism" in Christian Tomuschat, ed., Modern Law of Self-Determination (Boston: Martinus Nijhoff, 1993) at 101-02. 2 0 A L L A N ROSAS, "Internal Self-Determination", ibid, at 227. 21 Ibid, at 228. 2 2 Ibid, at 229. 2 3 As noted, the Charter speaks of the "principle of self-determination. In order to better understand why a right to self-determination was not enshrined in the Charter, it is interesting to note the views expressed in the United Nations by various Western European representatives. 48 initiative of the Soviet Union the principle of self-determination of nations received complete and unqualified confirmation in the Charter of the United Nations".24 Though the previous statement by Levin seems somewhat exaggerated, the Charter, which was adopted in the name of "We the People" does in fact make specific reference to the principle in Articles 1 and 55. These references are complemented by Chapters X I and XII on non-self-governing territories and the international trusteeships system.25 Despite its inclusion in the Charter, the principle of self-determination is not defined and although one cannot ignore its moral weight as a principle of international law, it was not, as we have seen, granted the status of a "right" in the Charter. In Article 1, on the Purposes of the United Nations, paragraph 2 refers to "friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples...".26 Article 55, on international economic and social co-operation, states: With a view to the creation of conditions of stability and well being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations [...] The British representative, opposing the idea that self-determination is a right, once declared that the concept "could not be whittled down to exclude minorities or groups wishing to secede" and he wondered whether the members of the United Nations "were indeed prepared to face the consequences of assuming a legal obligation to promote the right of self-determination within their borders". Similarly, the representative of Denmark took the view that a national group desiring self-determination "was just as likely to be found in the border province of an independent State as in a colonial territory". A Belgian representative considered that an endorsement of the right of self-determination "was tantamount to an incitement to insurrection and separatism." He found it a "startling internal conUadiction" to claim that the right was inapplicable to minorities. These comments formulated during various meetings during the 1950s are reported in VERNON V A N D Y K E , "Self-Determination and Minority Rights" (1969) 13 Int'l Studies Quarterly 223 at 224. 2 4 D B . LEVIN, "The Principle of Self-Determination of Nations in International Law" (1962) Soviet Y.B. Int'l L. 45. 2 5 The Trust territories are provided for in the United Nations Charter (Articles 75-91) and are modelled on the League's mandate system. Non-self-governing territories have been defined by the United Nations as every territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it. Essentially, these territories are what we commonly call colonies. (Article 73 of the Charter). Mandated territories consisted of Germany's colonies and certain Arabic-speaking areas of the Turkish Empire that were administered by one of the Allies, under the supervision of the League of Nations following World War 1. (Article 22 of the League of Nations Covenant). The above definitions and explanations are taken from PETER MALANCZUK, Akehurst's Modem Introduction to International Law, 7 th revised ed. (London and New York: Routledge, 1997) at 327-30. 2 6 United Nations Charter, art. 2, para. 2. 49 shall promote ... universal respect for and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.27 Article 55 sets out the relationship between the principle of equal rights and that of self-determination of peoples as well as the link which exists with human rights and fundamental freedoms. Also of interest are Articles 2 and 56 which create direct obligations for member States regarding the implementation of the provisions dealing with self-determination.28 As mentioned above, the notion of self-determination has also been incorporated in Chapters X I and XII of the Charter. Article 73, on Non-Self-Governing Territories describes the development of self-government in these territories as a "sacred trust" and obliges the States responsible for the administration of the territories "to develop self-government, to take due account of the political aspiration of the peoples, and to assist them in the progressive development of their free political institutions..."29 Article 76, on the International Trusteeship System, provides: The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter, shall be: (b) to promote the political, economic, social and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances United Nations Charter, art. 55. 2 8 Article 2, para. 2 states: "All members, in order to insure to all of them the rights and benefits resulting from membership shall fulfil in good faith the obligations assumed by them in accordance with the present charter." Article 56 reads: "All members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55." Other Charter provisions which merit mention are Article 59 which foresees the creation of specialized agencies required for the accomplishment of purposes set forth in Article 55; Article 13(l)(b) which empowers the General Assembly to initiate studies and make recommendations to assist in the realization of human rights and fundamental freedoms and Article 62 which essentially provides the Economic and Social Council with the same mandate to initiate studies and make recommendations. 2 9 United Nations Charter, art. 73. 50 of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement;...30 Article 73, previously discussed, became an important tool in the promotion of self-determination by the General Assembly. In fact, the General Assembly required reports on the progress made by States administering territories towards the achievement of the objectives set forth in Article 73. It quickly became obvious that the General Assembly, growing increasingly hostile to colonialism, was concentrating its efforts on the colonial empires. Given this reality, an interesting debate was initiated by the Belgian representatives who pointed out that, "the Charter does not single out "colonialism", but non-self-governing territories". Belgium claimed that: [...] a number of States were administering within their own frontiers territories which were not governed by the ordinary law; territories with well-defined limits, inhabited by homogeneous peoples differing from the rest of the population in race, language and culture. These populations were disenfranchised; they took no part in national life; they did not enjoy self-government in any sense of the word. [...] Similar problems [to colonialism] existed wherever there were under-developed groups.31 This position caused what can be termed the "colonial controversy" in the United Nations. According to one well-known author, "[t]he thesis radicalises self-determination by insisting that it can apply to indigenous groups and minorities."32 Not surprisingly given the United Nations' attitude towards minorities at the time, this thesis was hotly contested and soundly rejected. In fact, Latin American States and their allies strongly denied that their domestic situation could be compared to that of colonies. It was argued that "[t]he problems of the indigenous groups were economic rather than colonial..."3 3 However, given its rather categorical rejection, the Belgian United Nations Charter, art. 76. 3 1 PATRICK THORNBERRY, "Self-Determination, Minorities, Human Rights: A Review of International Instruments" (1989) 38 I.C.L.Q. 867 at 873. 32 Ibid. In fact, according to the Belgian thesis, some of the groups to which self-determination could have applied include Indian tribes in South America, Indigenous African tribes, tribes in the Philippines, Somalis in Ethiopia and other indigenous groups and minorities. 51 thesis did force the United Nations to find a consensus on self-determination within the context of decolonization.34 The Draft Covenants The General Assembly first recognized "the right of peoples and nations to self-determination" as a fundamental human right in Resolution 421 D(V) of December 4, 1950 in which it called upon the Economic and Social Council to request that the Commission on Human Rights study ways and means which would insure the enjoyment of this right. At this time the international United Nations machinery was primarily concerned with the drafting of a covenant on human rights".35 In 1950, the Commission had before it a proposal to include in the draft international covenant on human rights a text which provided that: Every people and every nation shall have the right to national self-determination. States which have responsibilities for the administration of Non-Self-Governing Territories shall promote the fulfilment of this right, guided by the aims and principles of the United Nations in relation to the peoples of such territories.36 It is interesting to note that it was the Belgian representatives that sought a more inclusive understanding of the principle of self-determination. However, it would appear that their motives were suspect: In the view of Irak, the Belgian argument was based on "anger at the criticism directed against conditions of non-self-governing territories by less advanced States." One of the authors of the thesis, Dr Van Langenhove, effectively admitted to that the thesis was a Belgian tactic. Ibid, at 874. As was pointed' out by A. RIGO SUREDA, supra note 3 at 105 "this debate led to the triumph of the so-called "salt water" theory of colonialism whereby colonies are only overseas possessions and do not include distinct but meUopolitan areas". 3 5 At this stage of the United Nations' work it had not been decided to draft two covenants each dealing with its own set of rights. 3 6 AURELIU CRISTESCU, "The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments" UN Doc. E/CN.4/Sub.2/404/Rev. 1 at 4. In 1974, Mr. Aureliu Cristescu was appointed Special Rapporteur by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities and asked to undertake a study of the historical and current development of the right to self-determination on the basis of the Charter of the United Nations and other instruments adopted by United Nations organs, with particular reference to the promotion and protection of human rights and fundamental freedoms. The above cited UN Doc. is that study. 52 The existence of this draft explains the General Assembly's motive in adopting Resolution 421 D(V). It wanted the Commission "to decide quite objectively whether or not the right of nations to self-determination was indeed a basic human right; if it was, an article dealing with that right should be included in the covenant, to the real benefit of all nations, especially those which had not yet gained independence".37 Several arguments were advanced by members of the General Assembly's Third Committee against the inclusion within the Covenants of the right to self-determination. Those who opposed its inclusion within the Covenants affirmed that the Charter referred to the "principle", not the "right" of self-determination. They argued that self-determination was too complex to be rendered in legal terms in a binding instrument. Also, it was said that such a "right" would raise sensitive issues with regards to minorities and indigenous populations as well as the right to secession. Finally, it was argued that self-determination was collective in nature whereas the Covenants sought to guarantee individual rights and freedoms.38 On the other side of the debate, arguments were advanced both by members of the Commission and of the General Assembly for the inclusion of self-determination in the Covenants. Included among those arguments were: that [the] right was the source of or an essential prerequisite for other human rights, since there could be no genuine exercise of individual rights without the realization of the right to self-determination; in the drafting of the covenant, the principles and purposes of the Charter should be applied and, protected; many provisions of the Universal Declaration of Human Rights had a direct bearing on the right to self-determination; unless the covenant embodied that right it would be incomplete and inoperative.39 37 Ibid. 38 Ibid, at 8. 39 Ibid. It should be noted that self-determination is not mentioned in the 1948 Universal Declaration of Human Rights, even though there is a reference to the development of friendly relations between nations in the preamble. 53 A few months later, in December 1952, the Assembly again adopted a resolution dealing with the right of peoples and nations to self-determination. Resolution 637(VII) reaffirmed that self-determination is a prerequisite to the full enjoyment of all fundamental human rights and that all States Members should respect the maintenance of that right and uphold the principle. But,-perhaps more importantly, the link with the struggle against colonialism continued to be forged. The Resolution called upon all States Members of the United Nations to "recognize and promote the realization of the right of self-determination of the peoples of Non-Self-Governing and Trust Territories who are under their administration..." and further to "facilitate the exercise of this right by the peoples of such Territories." The Resolution also spoke of "the freely expressed wishes of the people concerned" and its ascertainment through plebiscites and other recognized democratic means. The States Members were also urged to "take practical steps pending the realization of the right of self-determination and in preparation thereof, to ensure the direct participation of the indigenous populations in the legislative and executive organs of government of those Territories." In short, steps had to be taken to prepare the Territories for "complete self-government or independence."40 An issue related to those discussed above is the decision regarding which factors should be considered when deciding whether or not a Territory is one whose people have attained self-government. Several resolutions in the early 1950's dealt with this.41 It was decided that each case had to be considered in light of its particular circumstances but that the right of self-determination should always be taken into account. The economic aspect of the right to self-determination was recognized by the General Assembly as early as 1954 in a formal resolution. The resolution referred not only to the need for international respect for the right of peoples and nations to self-determination but also to "their permanent sovereignty over their natural wealth and resources" and "to the importance of 4 0 UN Doc. St/HR/2/Rev.3/1988 at 54. 4 1 General Assembly Resolutions 567 (VI) of January 18, 1952, 648 (VII) of December 10, 1952 and 742 (VIII) of November 27, 1953. 54 encouraging international co-operation in the economic development of under-developed countries."42 Today, this aspect of the right to self-determination is understood as meaning the full and effective control by the people over all economic activities. Resolution 1514 (XV) and Colonialism The inescapable link between colonialism and self-determination was cemented by the General Assembly on December 14, 1960 when it solemnly proclaimed the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations, and adopted Resolution 1514(XV), entitled "Declaration on the Granting of Independence to Colonial Countries and Peoples." The Declaration which does not have the legal force of a covenant does however expressly authorize colonial peoples' accession to independence. It can be said that the Declaration builds more on Chapters XI and XII of the Charter than on the more general and universal references to self-determination found in Articles 1(2) and 55 of the Charter. The ever increasing number of former colonies now member States of the United Nations explains, at least partly, the importance placed upon decolonialism by the General Assembly. Special Rapporteur Aureliu Cristescu states that: [t]his declaration, which is a document of historic importance, represents one of the most significant contributions the United Nations has made to developing the concept of the right of self-determination, to condemning colonialism and all forms of subjection of peoples to alien domination and exploitation as a denial of that right and of fundamental human rights and to action to promote decolonization.43 In the preamble of the Declaration, the General Assembly not only recognized the "passionate yearning for freedom in all dependent peoples" but also recognized how the denial of 42 General Assembly Resolution 8 3 7 ( I X ) of December 14, 1954. AURELIU CRISTESCU, supra note 3 6 at 5. 55 freedom constitutes "a serious threat to world peace." The General Assembly further stated its belief that "the peoples of the world ardently desire the end of colonialism in all its manifestations" and that the continued existence of colonialism prevents the development of international co-operation as well as the promotion of world peace. The Declaration, in Article 2 simply states that: "Al l 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." Once again, the holder of the right of self-determination is declared to be the "people." Of course, the term "people" is not defined. However, as was pointed out by Thornberry, "[t]he meaning of the term "people" is conditioned by repeated references to colonialism." 4 4 Therefore, the meaning of "people" must be understood as the population of a colony. Another key provision is Article 6 which proclaims that "[a]ny attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations." This provision clearly states that pre-existing colonial boundaries are to be the boundaries of the emerging states and that the "people" is the whole people of a territory. If today's definition of the self rested solely on the above Declaration, the exercise would be fairly simple. However, as we shall see, subsequent pronouncements on the subject by the United Nations have significantly complicated this matter. Article 1 of the Covenants Before embarking on a brief analysis of the Covenants, it is interesting to note that when the vote to include Article 1 in the Covenants was finally taken in 1955, most Western States 43 44 Supra note 36 at 6. Supra note 31 at 874. 56 voted against - including the United States, Britain and France. In fact, as was explained by one author: Respect for the principle of self-determination appeared on every hand, but so did reluctance to call the principle a right that entailed a legal obligation and that gave the "selves" (whoever they were) a strong basis for a claim.4 6 Article 1 of the International Covenant on Economic, Social and Cultural Rights and Article 1 of the International Covenant on Civil and Political Rights are identical. They read as follows: Article 1 1. All people have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. 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 co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity, with the provisions of the Charter of the United Nations.47 The Covenants as well as the Optional Protocol to the International Covenant on Civil and Political Rights were adopted and opened for signature and ratification by the General Assembly on December 16, 1966 4 8 Under the provisions of each of the Covenants, States Parties undertake to submit to the secretary-general of the United States, at regular intervals, reports on the measures they have adopted which give effect to the rights recognized in the Covenants, as well as on the progress made in the enjoyment of those rights. VERNON V A N D Y K E , supra note 2 at 2 2 3 . 46 Ibid, at 2 2 5 . 4 7 Article 1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Canada became a party to these treaties in 1976. 57 Perhaps the first and certainly the most important comment with regards to the Covenants is the fact that the right to self-determination is presented as a universal right. In fact, as was succinctly pointed out by Patrick Thornberry: There is little reason to doubt the view that the Covenants mean what they say: that Article 1 applies to all peoples, and is not confined to colonial territories.49 However, given certain member States' well documented concerns regarding a "right" to self-determination, how can such an outcome be possible? According to John P. Humphrey the answer resides in the composition of the General Assembly during the 1960s as well as the objective being pursued with the Covenants. The anti-colonialists were not concerned with self-determination as a universal rule applicable to all situations. They had one very definite objective in mind and that was to obtain a vote in the General Assembly which would define self-determination as a right and not merely as a principle. [...] The success of the anti-colonial majority may therefore turn out to be a legal boomerang...50 Resolution 2625 (XXV) and the Representative Government Doctrine Also critical to our understanding of the United Nations' approach to self-determination is the Declaration on the Principles of International Law Concerning Friendly Relations and Co-operation Among States. The Declaration proclaims seven principles and was adopted by the General Assembly in resolution 2625(XXV) of October 24, 1970 on the occasion of the twenty-4 8 General Assembly Resolution 2200 (XXI) of December 16, 1966. 49 Supra note 31 at 879. A well known Canadian actor on the' United Nations scene, John Humphrey agrees with Patrick Thornberry. The following quote is taken from DEBORAH Z. CASS, "Re-Thinking Self-Determination: A Critical Analysis of Current International Law Theories" (1992) 18 Syracuse J. of Int'l Law & Commerce 21 at 32. [...] John Humphrey, argues that when self-determination was introduced into the U.N. Charter, at the behest of the former Soviet Union, ironically enough, it was clearly with colonial and mandated territories in mind. The 1960 Declaration is in accord with that interpretation, ... Humphrey then goes on, however, to acknowledge that the General Assembly has no such limitation is mind when it sanctioned the International Covenants in 1966. In his view, the General Assembly intended the word "peoples" to extend beyond the colonial context. 5 0 JOHN P. HUMPHREY, "The World Revolution and Human Rights" in A L L A N GOTLIEB, ed., Human Rights, Federalism and Minorities/ Les droits de Thomme, le federalisme et les minorites (Canadian Institute of International Affairs, 1970) at 162. 58 fifth anniversary of the United Nations. According to Aureliu Cristescu it "is of the greatest importance in the progressive development and codification of the principle of equal rights and self-determination of peoples."51 The text deals with the most important principles of international law as they are embodied in the United Nations' Charter. It clearly stipulates that each principle is to be construed in light of the others. The Declaration was drafted by a Special Committee established by the General Assembly in 1963. The principle of equal rights and self-determination of peoples was discussed by the Special Committee at all its sessions between 1966 and 1970. Important remarks concerning the nature as well as the content of the right were expressed. Included among these are the following: [...] As to the nature of the principle the view was expressed that it was a binding rule of international law [...] With regard to the scope of the principle, reference was made to the elimination of colonialism, the right of colonial peoples to independence and to decide freely their own economic, social and cultural systems and their right to dispose freely of their natural resources [...] It was considered that it would be difficult to define the "peoples" enjoying the right to self-determination. States, in the international sense, were clearly peoples, but further study was required to determine what other social groups should be included in the definition [...] It was pointed out that the principle of equal rights and self-determination of peoples was a cardinal element of the Charter, being the basis on which friendly relations between States should develop [...]Some representatives expressed preference for the term "principle", used in the Charter, since they considered that there was still some doubt as to how the term "right" should be interpreted in relation to the concept of self-determination [...] It was observed that the principle comprised two notions, that of equal rights and that of self-determination; they were complementary and inseparable. Equal rights meant that all peoples had equal and unalienable rights to complete freedom, the exercise of full sovereignty, the integrity of the national territory, peace and security, civilization and progress. Similarly, all peoples had the right to determine their political status and to pursue their economic, social and cultural development [...] The principle should not, moreover, be used as a prerequisite to justify dangerous secessionist movements.52 51 52 Supra note 36 at 1 0 . Ibid, at 1 1 - 1 2 . 59 In general, the Declaration itself conforms closely to the above comments. For example, we are told in the Preamble to the Declaration that the subjection of peoples to alien domination constitutes a bar to international peace and security; that the effective application of the principle is of vital importance for the promotion of friendly relations among States but that its application must respect the national unity and territorial integrity of all States. With regard to the principle itself, the Declaration proclaims once again that "all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development and every State has the duty to respect this right in accordance with the provisions of the Charter." The Declaration recognizes a full range of options for the implementation of the right of self-determination: "the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people." However, the Declaration also addresses the issues of national unity and territorial integrity by clearly stating that: Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States, conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.5 3 This last provision has given way to much doctrinal discussion. According to some authors "a state has to meet the requirement of possessing a government representing the whole 'people', before it is entitled to protection from any action which would dismember or impair... The 1970 Declaration on the Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations [hereinafter cited as Declaration Concerning Friendly Relations] General Assembly Resolution 2625, UN Doc. A 18028 (1971) at Principle (e). 60 [its] territorial integrity or political unity." As was pointed out by Patrick Thornberry, not only does this Declaration place less emphasis on colonialism than Resolution 1514 (XV) but "it appears, on one reading, to construct a link between self-determination and minorities."55 However, Thornberry goes on to express the view that even if we accept that peoples within existing States who are treated "in a grossly discriminatory fashion by an unrepresentative government" can claim a right to self-determination without it being defeated by arguments about territorial integrity, this right is limited to only a few peoples living under racist regimes.56 Others, including Hurst Hannum are less categorical. Hannum feels that the Declaration has raised two important issues: the definition of "peoples" and the larger issue of whether or not the right to self-determination exists outside the context of decolonization. The author tells us that: Returning to the two issues raised above (the definition of peoples and the application of self-determination to non-colonial situations), we find that the Declaration on Friendly Relations does nothing to clarify the first and may, in fact, further confuse the second.57 THE SELF This now brings us to the controversial question of who is the self. Almost thirty-five years ago, Rupert Emerson wrote in 1964 that: Far from being a universal and easily available right, the right of self-determination has in fact only on rare occasions been made available to certain people under special circumstances. [...] as a more generalized right it can be incorporated in an orderly international system only when the peoples to whom it applies are rigidly defined. Since there are no rational and objective criteria by which a "people" in the large and in the abstract can be identified, it introduces an incalculably V E D P . NANDA, "Self-Determination Under International Law: Validity of Claims to Secede" ( 1 9 8 1 ) 13 Case W. Reserve Journal of International Law 2 5 7 at 2 6 9 - 7 0 . 55 Supra note 3 1 at 8 7 5 . 56 Ibid, at 8 7 6 . Thornberry goes on to say that "only pariah States like South Africa which oppresses its majority on racial grounds, are likely to be affected." The article was written well before the recent changes in South Africa which make even this claim passe. 57 Supra note 9 at 3 5 . 61 explosive and disruptive element which is incompatible with the maintenance of a stable and organized society.58 Though pessimistic in its tone, the above quote is correct in asserting that perhaps the greatest difficulty with the right to self-determination resides in the absence of any accepted definition of the "self. Though it is recognized that "people" have a right to self-determination no definition which adequately defines "people" has been developed. Perhaps the most logical approach to the question of the definition of the self which this author has seen is found in a very recent monograph by Thomas D . Musgrave. The author approaches the issue in what can only be described as a very clear and methodical fashion. He identifies four possible definitions as they have evolved through time and United Nations practice. The same approach will be used for this chapter. The State Definition of People The first possible definition of people is to equate the term with that of State. States, as we know, are "political and legal entities which exercise sovereignty over a specific territory and weild power over the inhabitants of this territory".59 The argument used to equate the two terms resides in a restrictive reading of Article 1 of the United Nations Charter. It is suggested that since one of the United Nations' stated purposes in Article 1(2) is to "develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples" and that only States can benefit from equal rights in general international law then "the reference to peoples in the same clause meant states".60 This interpretation is contradicted by both the travaux preparatoires (or negotiating history of a convention) of the Charter and Resolution 2625 (XXV) . 5 8 RUPERT EMERSON, Self-Determination Revisited in the Era of Decolonization (Harvard: Centre for International Affairs, 1964) at 63. 5 9 RODOLFO STAVENHAGEN, "Human Rights and Peoples' Rights - The Question of Minorities" (1987) 3 Mennesker og Rettigheter 16 at 16. 62 In fact, the travaux preparatoires clearly indicate that the term people "was a separate and distinct concept from that of state".61 Also, it is to be recalled that Resolution 2625 ( X X V ) declares that "all people" have the right to self-determination and that "every state" has "the duty to respect this right". The rules of legislative interpretation tell us that "every feature of a legislative text has been deliberately chosen and has a particular role to play in the legislative design."62 Therefore, the U N would not use unnecessary language in its declaration or Charter or refer to the same entity twice (i.e. States) using different terms (i.e. Nations/States and Peoples). One must conclude that the term "people" is not synonymous with the term "State". The Colonial Definition of People The second possible definition of people is that which resolutely limits it to the context of decolonization. As we have seen, the principle of self-determination has been expanded since World War II to embrace the idea that non-self-governing territories and trust territories could evolve into independent States. It is in this context that several authors have suggested that a "people" refers to the population of a colony. For example, one author had the following to say: In the post-1945 context of decolonization, the primary definition of "peoples" came to be that of non-European inhabitants of former colonies, regardless of such colonized people's ethnicity, language, religion or other characteristics. In other words, the term referred exclusively to human beings in areas previously under colonial jurisdiction. 6 3 The justification for such a narrow interpretation may be found in various arguments advanced primarily by the newly independent ex-colonial powers. In fact, the "salt water" doctrine was consistently defended in the United Nations by the formerly colonized States who "were THOMAS D MUSGRAVE, Self-Determination and National Minorities (Oxford: Clarendon Press, 1 9 9 7 ) at Ibid. R U T H SULLIVAN, Statutory Interpretation (Concord: Irwin Law, 1 9 9 7 ) at 5 6 . B.N. Tzou, "Does the Principle of Self-Determination Apply to Taiwan?" ( 1 9 9 2 ) 2 8 Issues & Studies 7 0 See also RUPERT EMERSON, "Self-Determination" ( 1 9 7 1 ) 6 5 AJTL 4 5 9 at 4 6 2 . 60 1 4 9 . 61 62 63 at 7 2 . 63 themselves concerned to resist separatist threats - such as that of Katanga in the Congo and Biafra in Nigeria. The very artificiality of many of the colonial borders enlarged those threats of secession by dissident peoples".64 Also, the general lack of sympathy for minorities which was in any event still seen as a strictly domestic matter held by the vast majority of United Nations Member States contributed to the narrow view that was predominant during the decolonization decades. The following quote, though written in 1992, is typical of that attitude: There are numerous minority and dissident groups in various countries all over the world. If all these groups were entitled to seek independence, many countries would become politically unstable and many international disputes would arise to threaten world peace. This is neither the intent of the U N Charter, nor the desire of U N member states.65 Also, one cannot ignore the numerous United Nations Resolutions that clearly link a people's right to self-determination to the decolonization movement. However, a textual analysis of Article 1(2) of the Charter and Article 1 of the International Human Rights Covenants reveals no express or implied intention to limit the term people to the population of a colony. Also, Resolution 2625 ( X X V ) goes much further than previous United Nations Resolutions in that it speaks of a universal right to self-determination and adds a new element, namely a representative government. This element will be explored in the third proposed definition. However, before discarding this second possible definition, it should also be noted that United Nations practice mitigates against this narrow interpretation. As was noted by Musgrave: [...] the General Assembly has not limited its use of the term "people" to colonial situations but has also recognized a right to self-determination for many non-colonial peoples including "the people of South Africa" and "the people of Palestine".66 6 4 M . KIRBY, "The People's Right to Self-Determination - A new challenge for the ICJ" (1993) The New Zealand Law Journal 341 at 342. 6 5 B.N. Tzou, supra note 63 at 75. 66 Supra note 56 at 150. 64 The Representative Government Definition of People As alluded to above, the third definition emphasizes the representative government concept. This interpretation relies heavily on Resolution 2625 ( X X V ) and is in keeping with the new trend of self-determination focused on its internal aspect. The arguments raised in favour of this interpretation stress the right of all peoples to influence the political system under which they live. Also, it will be recalled that Paragraph 7 of Resolution 2625 ( X X V ) while stressing the importance of territorial integrity also explicitly refers to the link between self-determination and a representative government. This fact, coupled with a strict reading of Article 1 of the two International Human Rights Covenants, leads one to identify two features of the representative government definition of a people: ( 1 ) it is universal in scope, applying both to sovereign and independent states and to non-self-governing territories, and (2) the "people" in question comprise the entire population of the political entity, which means that the "people" is defined by the territorial limits of the state.67 However, as interesting as this third approach to the issue of defining the self may be, it blindly ignores the importance of linguistic, cultural and religious factors in the way in which populations define themselves. Also, by treating the entire population of a State as one people, this approach completely disregards a key characteristic of modern states namely its multi-ethnicity. As was pointed out by one author: [...] because ethnic groups consider themselves as distinct units and do not identify with the entire population of the territory, they may not accept that the principle of democracy applies to them simply as one part of a larger population... that dissatisfaction may in some cases be so extreme as to induce the group to secede and form a nation-state of its own in which it can control political events.68 The author goes on to cite the former Soviet Union and Yugoslavia as cases in point where the exercise of popular sovereignty within those States led to their political fragmentation. Ibid, at 152. Ibid, at 153-54. 65 The Ethnic Definition of People After having explored and rejected the above definitions of a "people", one cannot help but return to the starting point. How can one define a "people"? What are the criteria to be used? A brief review of the opinions of a few authors should reveal the characteristics common to most ethnic definitions of people. These consist of both objective and subjective criteria. After listing varying objective characteristics, all the experts agree that the group in question must have a sense of self-consciousness. Often what is referred to is the group's will to maintain its distinctiveness and to assert its identity. Hurst Hannum, for his part, writes that: ... it is necessary for members of the group concerned to think of themselves as a distinctive group, as well as for the group to have certain objectively determinable common characteristics, for example, ethnicity, language, history, or religion.69 Aureliu Cristescu, in his study prepared for the Sub-Commission on Prevention of Discrimination and Protection of Minorities identified the following elements of a definition: (a) the term "people" denotes a social entity possessing a clear identity and its own characteristics; (b) 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; (c) a people should not be confused with ethnic, religious or linguistic minorities, whose existence and rights are recognized in article 27 of the International Covenant on Civil and Political Rights.70 The Final Report and Recommendations of an International Meeting of Experts held in November 1989 under the auspices of UNESCO to examine the concept of peoples' rights identifies the following characteristics as being inherent in a description (though not an actual definition) of a people: Supra note 9 at 31. Supra note 36 at 279. 66 1. a group of individual human beings who enjoy some or all of the following common features: (a) a common historical tradition; (b) racial or ethnic identity; (c) cultural homogeneity; (d) linguistic unity; (e) religious or ideological affinity; (f) territorial connection; (g) common economic life; 2. the group must be of a certain number which need not be large (e.g. the people of micro States) but which must be more than a mere association of individuals within a State; 3. the group as a whole must have the will to be identified as a people or the consciousness of being a people - allowing that groups or some members of such groups, though sharing the foregoing characteristics, may not have that will or consciousness; and possibly 4. the group must have institutions or other means of expressing its common characteristics and will for identity.71 Another author refers to the criteria suggested by the International Commission of Jurists set up in 1972 to investigate the events in East Pakistan. He reiterates the following: (1) a common history, (2) racial and ethnic ties, (3) cultural and linguistic ties, (4) religious and ideological ties, (5) a common geographic location, (6) a common economic base, and (7) a sufficient number of people.72 And finally it is interesting to note the words of one scholar who believes that "self-determination outside the colonial context will always require a people linked by ethnic, religious "New Reflections on the Concept of Peoples' Rights: Final Report and Recommendations of an International Meeting of Experts ( 2 7 - 3 0 November 1 9 8 9 ) " , UNESCO, Paris, reproduced at ( 1 9 9 0 ) 2 HRLJ 4 4 1 at 4 4 6 - 4 7 . 7 2 ROBIN C. A. WHITE, "Self-Determination: Time for a Re-Assessment?" ( 1 9 8 1 ) 2 8 Netherl. Int'l L. Rev. 1 4 7 at 1 6 3 . 67 or national origins. This natural meaning of the concept "people" in fact signifies a return to the thinking of the Wilsonian period."73 From the above excerpts, it is obvious that the ethnic definition of people is firmly anchored in scholarly writings. However, of greater importance is the United Nations' use of the term people to describe an ethnic group. It would appear that in its early years, the General Assembly did in fact, at times implicitly or even explicitly, use the term people in relation to an ethnic group. As is explained in Musgrave: [t]his was because the General Assembly initially adopted a pragmatic approach to the question of territorial integrity with regard to non-self-governing entities. When ethnic differences in such territories seemed to portend future instability, the General Assembly was quite willing to divide those territories into separate political entities along ethnic lines.74 The author goes on to give several examples: the partition of the Palestine mandate into the Jewish and Arab States in 1947; the incorporation of the northern half of the trust Territory of the British Cameroons into Nigeria and the incorporation of the southern half into the Republic of the Cameroons; the partition (in 1962) along tribal lines of the trust territory of Rwanda-Urundi into two separate States: Rwanda and Burundi. This willingness on the part of the General Assembly to partition non-self-governing territories along ethnic lines amounts to an implicit recognition that some ethnic groups should be granted a right to self-determination. Since self-determination applies only to people, then the reasoning must be that these ethnic groups, in the opinion of the General Assembly, did constitute a people. The approach of the General Assembly (in 1960) changed drastically after the adoption of Resolution 1514 (XV). The key provision is paragraph 6 which, it will be recalled, declares that any attempt to disrupt "the national unity and the territorial integrity of a country is incompatible O . BRING , "Kurdistan and the Principle of Self-Determination" ( 1 9 9 2 ) 3 5 GYTL 1 5 7 . Supra note 6 0 at 1 5 7 . 6 8 with the purposes and principles of the Charter of the United Nations." Therefore, if more than one ethnic group can be found within the territory of a State then those groups together comprise a people but not each group separately. As noted by Musgrave: [w]ith the adoption of Resolution 1514(XV), the United Nations became increasingly unwilling to permit any partition of non-self-governing territories, no matter how different or incompatible their constituent ethnic or religious groups might be.75 The author gives the example of the Security Council's condemnation of the separation of Cyprus between Greek and Turkish Cypriots. As mentioned above, the General Assembly has not formally recognized ethnic groups as people since the adoption of Resolution 1514(XV). However, there have been instances of implicit recognition of ethnic groups as people. The obvious example concerns the admission of Bangladesh in the United Nations as a sovereign and independent State. The majority of the population of Bangladesh is Bengali, an ethnic group.76 This group succeeded in separating itself from Pakistan and in establishing its own State. Since only a people can freely determine its own political status, it stands to reason that in the opinion of the United Nations, the Bengalis were a people. 75 Ibid, at 159. 7 6 The meaning of the phrase "ethnic group" was discussed as follows by the House of Lords in Mandla v. Dowell Lee (1993), 1 All. E.R. 1062 at 1087: For a group to constitute an ethnic group... it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will comonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to be me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not . necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographic origin or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being oppressed or a dominant group within a larger community, for example a conquered people (say the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups. 69 Other indications that the ethnic definition of a people has not completely disappeared can be found in the General Assembly's Resolutions dealing with self-determination. As was explained by Musgrave: [b]oth Resolutions 1514(XV) and 2625(XXV) declare that 'people' have the right not only to determine their political status but also to 'pursue their economic, social and cultural development'. Resolution 1541 (XV), in Principle IV, describes the 'people' of a non-self-governing territory as being 'distinct ethnically and/or culturally' from those who administer the territory. A culture, however, can only develop amongst a group whose members share basic common cultural attributes, such as language, religion, historical antecedents, and customs; these attributes define groups. Therefore, 'cultural development' should logically refer only to ethnic groups. The tendency to associate the term people with ethnic groups is clearly present in the scholarly writings on the subject. Some authors have gone as far as asserting that with the almost universal elimination of colonialism, a people should now be understood to mean ethnic groups united by common characteristics who demand a higher measure of self-determination and the right to freely pursue their own economic, social and political development. It is argued that "the recognition of such groups would provide a new and appropriate role for self-determination in a world of sovereign and independent states, particularly in cases of political oppression." CONCLUSION The above comments lead to an interesting crossroads namely the intersection of the definitions of minority and people. As is well known, a minority is not entitled under Article 27 to any right to self-determination. A people, on the other hand, has such a right. The difficulties arise when one attempts to differentiate between the concepts and especially when one tries to allocate a particular status (i.e. minority or people) to a particular 70 ethnic group. As was correctly pointed out by Patrick Thornberry, minorities "appropriated the vocabulary of self-determination whether governments or scholars approve or not".77 The following chapter will examine the various efforts made to separate the concepts of people and minority and will explore their application in a concrete setting, namely that of the Quebecois population within Canada. 77 Supra no te 3 1 a t 8 6 8 . CHAPTER IV MINORITY VS PEOPLE: A CASE STUDY - QUEBEC INTRODUCTORY REMARKS In this chapter, the relationship that exists between minorities and their rights, and peoples and their right to self-determination will be examined. The objective will be to highlight the complex and difficult relationship that exists between self-determination and minority rights and claims. As will become evident, the United Nations, as well as most scholars, draw a distinction between the two concepts. However, as will also become evident during the case study of the Quebec population, the above-mentioned distinction is not always easy to apply in practice. In fact, it will be shown that the status of the population of the province of Quebec is at times referred to as a minority within the Canadian context; at times, a people with all the inherent rights it implies, and at times simply a multi-ethnic group that qualifies under neither heading. Obviously, much depends on how one defines the question: are we speaking of the entire population of Quebecois or the "Canadiens-francais de souche" majority of the province?1 As will be seen, that very difficulty is an excellent example of the problems associated with the definitions of minority and people. In order to fully examine the above issues, this chapter will look at the recent Reference to the Supreme Court of Canada of three questions relating to Quebec's unilateral secession The 1996 Census reveals the following data: . French is the mother tongue of 23.5% of Canadians; . 81.5% of the population of Quebec identify French as their mother tongue; . 8.8% of the population of Quebec are of anglophone origins whereas 9.7% have a mother tongue other than French or English. Source: Statistics Canada, The Daily, December 2nd 1997. 72 including the Court's August 20th, 1998 decision. The Reference dealt with Canadian constitutional law as well as international law. However, attention will be focused on the comments and opinions given with respect to the international law of self-determination as found in the various factums and replies. It should also be pointed out that although the Attorney General of Canada had carriage of the Reference, a number of applicants received intervener status and the Court did appoint an Amicus Curiae to present a viewpoint opposed to that of the Federal Government. The Quebec Government did not appear or make a written submission. However, as indicated above, the mandate of the Amicus Curiae was essentially to present the position of the Quebec government. Thus, all points of view were before the Court and therefore offer a wealth of legal analysis and opinions useful for this case study. MINORITY VS PEOPLE The UN's Position In order to begin the analysis, it is important to examine the United Nations' position with regards to the relationship between minorities and peoples. Various attempts at elucidating the relationship that exists between minority rights and peoples rights have been made by the United Nations' organs,. First, the United Nations Human Rights Committee, in its General Comment on Article 27 (minority rights), had the following to say: The Covenant draws a distinction between the right to self-determination and the rights protected under Article 27. The former is expressed to be a right belonging to peoples and is dealt within a separate part (Part I) of the Covenant. Self-determination is not a right cognizable under the Optional Protocol. Article 27, on the other hand, relates to rights conferred on individuals as such and is included, 73 like the articles relating to other personal rights conferred on individuals, in Part III of the Covenant and is cognizable under the Optional Protocol.2 Though this comment seeks to elucidate the scope of each Article within the meaning of the International Covenant on Civil and Political Rights, it offers a purely mechanical analysis. Being told that minority rights attach to individuals, whereas self-determination attaches itself to people, and that one right is found in Part III of the Covenant and is subject to the Optional Protocol whereas the other is found in Part I and is not subject to the Optional Protocol does little to further our understanding of either concept. Unfortunately however, this type of superficial analysis which simply asserts the dividing line without offering any substantive arguments reflects quite faithfully the United Nations' organs and Member States approach to the issue. A further example can be found in Special Rapporteur Aureliu Cristescu's study. As was mentioned in the previous chapter, Cristescu did identify what he termed the elements of a definition which had emerged from discussions of the subject in the United Nations. After having reiterated that a people is a social entity which possesses its own identity and particular characteristics and is found within a well defined territory, he convincingly asserts that "[a] people should not be confused with ethnic, religious or linguistic minorities, whose existence and rights are recognized in Article 27 of the International Covenant on Civil and Political Rights." One would then expect a convincing argument as to why. Unfortunately the only two paragraphs given in support of his position are of little help. He writes that "[wjith regard to minorities, there is one principle of special importance" namely the principle that prohibits the dismemberment or General Comment No. 23(50) on Article 27/Minority Rights adopted by the Human Rights Committee at its 1314th meeting (Fiftieth session) on 6 April 1994. UN Doc. CCPR/C/21/Rev.l/Add.5 reproduced in (1994) 15 HRLJ 234 at 234. Though die Human Rights Committee did adopt a General Comment on Article 1 of the Covenant, it unfortunately is of no help in clarifying the problematical relationship between the concepts of "minority" and "people". Two points were however made by the Committee: first, the right of self-determination must be understood in accordance with the purposes and principles of the Charter of the United Nations (namely the prospect for the territorial integrity of an existing State); and second, "[t]he right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights." General Comment No. 12(21) on Article 1/Self-Determination adopted by the Human Rights Committee as its twenty-first session. UN Doc. CCPR/C/21/Rev. 1 at 11. 74 amputation of sovereign States. Since it is known that only people who exercise a legitimate claim to self-determination can overcome the hurdle of this principle, the reader is simply brought back to the beginning: people have the right to self-determination, minorities do not. The important question of the difference between a minority and a people is left unanswered.3 The Position of Three International Law Scholars It would now be useful to review some of the scholarly writings on the subject. To this end, I have identified three internationally known authors. First, let us begin by examining Antonio Cassese's latest writings on self-determination. He asserts: The major international instruments adopted so far by States (the United Nations Covenant on Political and Civil Rights, the United Nations Declaration on Friendly Relations and the Helsinki Final Act) all hinge on a fundamental and sharp dichotomy between the self-determination of peoples on the one side and the protection of minorities on the other. States have been at pains to emphasize that the two issues are quite distinct in nature and also as far as their international regulation is concerned. No link between the two has been envisaged. On the contrary, any possible connection has been adamantly rejected as a dangerous muddling of two topics belonging to two different worlds.4 Cassese goes on to explain how minority rights have often been used as a consolation prize for those groups who do not "qualify" for self-determination. The author concludes that AURELIU CRISTESCU, "The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments" UN Doc. E/CN.4/Sub.2/404/Rev.l at 41. Ironically, the Special Rapporteur at paragraph 268 of his study also asserted the following: ... the application of the principle to all peoples should not be interpreted as an encouragement of secessionist or irredentist movements,... 4 ANTONIO CASSESE, Self-determination of Peoples: A Legal Reappraisal (New York: Cambridge University Press, 1996) at 348. Cassese is currently serving as President of the International Criminal Tribunal for the Former Yugoslavia. 75 "[i]n this way both the concept of minority protection and of self-determination have been upheld; both, however, in a neutralized or emasculated form".5 The author who offers the clearest explanation as to the differences between minority rights and self-determination is Patrick Thornberry. In an article written in 1989, he had the following to say: There is a qualitative difference between the two categories: the right of self-determination means full rights in the cultural, economic and political spheres. The essence is political control, accompanied by other forms of control. The right of minorities are enumerated and finite, and do not include political control. Article 27 does not even grant the minority an unequivocal collective right...6 Though clear as to the distinction between minority "rights" and the "right to self-determination", again one is left to wonder as to how to distinguish between the rights-holders. Taking his analysis one step further, Thornberry offers a somewhat limited explanation in a later monograph: In the light of the limitations of Article 27, it appears ambitious to argue for a connection between minorities and self-determination. There are however, at least two possibilities of 'positive' interpretation implying a connection: (a) minorities are peoples within the meaning of Article 1 - a view which is not supported by the travaux; or (b) attribution of rights to whole peoples benefits minorities indirectly. There is also a negative possibility; (c) self-determination is best understood as external, and internal self-determination is supererogatory.7 Once again, it is important to note that the above comments are made within the particular framework of the International Covenant on Civil and Political Rights. Thornberry's three possible interpretations cover, using a somewhat different language, the analysis we have seen thus far. His negative possibility refers to the right of a sovereign State to be free from external 5 Ibid, at 349. 6 PATRICK THORNBERRY, "Self-Determination, Minorities, Human Rights: A Review of International Instruments" (1989) 38 I.C.L.Q. 867 at 880. 7 PATRICK THORNBERRY, International Law and the Rights of Minorities (Oxford, Clarendon Press, 1991) at 216. 76 influence and thereby essentially defines a people as a State. The two positive interpretations once again bring us back to the starting point since either a minority is a people or we are in fact dealing with two separate entities. Though presenting us with a clear analytical framework and some interesting questions, Thornberry falls short of answering them. As will be seen in the conclusion, this alleged shortcoming may have more to do with political factors than a real lack of legal analysis. The last author that will be quoted before embarking on the case study is Christian Tomuschat. His analysis offers a perfect transition to our study of the status of the population of Quebec. After explaining that his comments must be placed within the framework of the Covenant on Civil and Political Rights, the author asserts that: There exists, however, a point of intersection of the two provisions. Minorities have been defined here, in consonance with the travaux preparatoires, as "separate or distinct groups, well-defined and long-established on the territory of a State". This definition greatly reduces the number of groups that qualify as beneficiaries of the rights provided for in article 27. At the same time, it brings them close to the characteristics possessed by a people under article 1. Since in any event it is highly controversial what distinctive criteria make a community a people in the sense of article 1, the status of a minority thus may easily become a kind of prelude to asserting rights of self-determination, all the more so since a people would doubtless be entitled to content itself with claiming the right under article 27.8 Tomuschat's analysis is particularly appealing because of its honesty. He recognizes that one is dealing with the given status of a group as bestowed by the international community. Further, he acknowledges the "fluidity" that exists between Articles 1 and 27 of the Covenant. His conclusion serves as a thought provoking introduction to our analysis of the international status of the population of Quebec. He writes: In fact, it is a historical experience that minorities, once they have attained a status of cultural autonomy, frequently attempt to proceed to realizing political independence.9 CHRISTIAN TOMUSCHAT, "Protection of Minorities under Article 2 7 of the International Covenant on Civil and Political Rights" in Vokerrecht als Rechisordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift fur Hermann Mosler ( 1 9 8 3 ) at 2 8 . 9 Ibid, at 2 9 . 77 THE CASE OF QUEBEC The remainder of the chapter will focus on the case study. This section will first briefly examine the history of the claim by the Quebecois of a right to self-determination (and therefore their status as a people under international law), followed by a review of some of the abundant scholarly writings on the question. The culminating point will be our review of the recent reference to the Supreme Court of Canada as well as the positions and legal arguments advanced by the various parties involved and the actual decision of the Court. Historical Overview The beginnings of the sovereignist movement within Quebec can be traced back to various starting points from the defeat of General Montcalm on the Plains of Abraham to the "revolution tranquille" of the 1960's. One well-known Canadian author has described the "revolution tranquille" as the period that saw Quebec move from " [...] une attitude passive de simple defense des pouvoirs acquis a une attitude active - voire agressive - de revendication de nouveaux pouvoirs. Apres 1960, les gouvernements quebecois successifs vont tous reclamer une modification de la Constitution pour obtenir les nouvelles competences legislatives considerees comme necessaires a l'epanouissement politique, social, economique et culturel de la societe quebecoise. lis exigeront done, soit une decentralisation generale des pouvoirs, valable pour toutes les provinces (dans la mesure ou les provinces anglaises le desireraient egalement), soit la creation d'un statut particulier pour le Quebec ou, si Ton veut, d'un federalisme "asymetrique" ou le Quebec se verrait reconnaitre davantage de pouvoirs que les autres provinces.10 JOSE WOEHRLING , "devolution et le reamenagement des rapports entre le Quebec et le Canada anglais" in J E A N - Y V A N MORIN & JOSE WOEHRLING , eds., Demain, le Quebec... choix politiques et constitutionnels d'un pays en devenir (Sillery: Editions du Septentrion, 1994) 15 at 3 2 - 3 3 . 78 In fact, the emerging French-Canadian middle class "demanded greater participation in the economic and commercial decisions of Quebec, challenging the dominance by Anglo-Saxon interests of Quebec commercial and economic life". 1 1 If one looks more closely at the 1960's, beginning with the liberal government of Jean Lesage, we observe a hardening of Quebec's position. Although the Lesage government was essentially federalist, their slogan was "Maltres chez nous". In 1966, Daniel Johnson's "Union nationale" government adopted the position of "egalite ou independance". For our purposes, the year 1967 is significant since it marks the birth of the "Parti quebecois". Born of a growing sense of frustration with the Liberals, the "Parti Quebecois" leaders, most notably Rene Levesque, sought independence for Quebec, which they perceived to be its destiny. As we know, [n]euf ans plus tard, en 1976, le Parti quebecois prenait le pouvoir et s'engageait a organiser un referendum sur un projet de souverainete politique du Quebec, combine avec une association economique et monetaire avec le Canada anglais.12 This first attempt at separation ended with a narrow defeat in 1980 (60% Against, 40% For). But later events during the 1980's served to cement the popular desire for some form of independence by the population of Quebec. As was noted in a recent article: [s]upport in Quebec for sovereignty - whether defined as separatism, independence, sovereignty, or sovereignty-association - has grown steadily from 1960 to the present. According to numerous polls taken in 1990, forty-four percent of the Quebec population support outright separation, fifty percent support independence, fifty-five percent support sovereignty, fifty-eight percent support sovereignty-association, and sixty-eight percent support the province having a mandate to negotiate sovereignty-association.13 Two significant events marked the 1980's: first the patriation of the Canadian Constitution and the defeat of the so-called Meech Lake Accord and the Charlottetown Accord. During the ANTONIO CASSESE, supra note 4 at 2 4 8 . 1 2 JOSE WOEHRLING, supra note 1 0 at 3 2 , 3 4 . 1 3 G. MARCHILDON & E. M A X W E L L , "Quebec's Right of Secession Under Canadian and International Law" ( 1 9 9 2 ) 3 2 Va. J . Int'l L. 5 8 3 at 5 8 4 . It should be emphasized that the polls were taken in 1 9 9 0 . 79 campaign of the 1980 referendum, the Federal Government promised the population of Quebec imminent constitutional reform. The Prime Minister at the time, the Honourable P.E. Trudeau, spoke of a "renewed federation". Significant change was in fact achieved in April 1982 with the patriation of the Canadian Constitution from Great Britain to Canada.14 This historical event also included the addition of the Canadian Charter of Rights and Freedoms within the Canadian constitutional framework. Unfortunately, the patriation was achieved without the unanimous support of the provinces. It will be recalled that Quebec, the lone province to do so, did not sign the 1982 Constitution Act. The following quote by Jose Woehrling captures Quebec's feeling of betrayal. En mettant a profit la situation de faiblesse ou cet echec avait place le Quebec, le gouvernement federal de M . Trudeau, avec l'appui des neuf provinces anglaises, allait modifier la Constitution d'une facon qui, non seulement ne satisfaisait aucune des revendications du Quebec, mais, tout au contraire, venait lui enlever certains de ses pouvoirs traditionnels.15 As we well know, this event served to fuel the separatist claim in Quebec and placed the federal government and the Quebec Government on opposing sides. In fact, "[n]ot until after 1985, with new governments in both Quebec City and Ottawa, could Quebec's recognition of the constitution even be discussed".16 Before pursuing our analysis, it would be useful to examine the reasons why Quebec chose not to adhere to the new constitutional framework. As explained by one author: As was explained by the Attorney General, "[t]he significance of Patriation was to vest Canadian institutions with full and exclusive authority to effect all changes to our country's Constitution, eliminating the role of the United Kingdom Parliament in the process." Factum of the Attorney General of Canada, No. 2 5 5 0 6 , 1 9 9 6 , vol. 1 at 3 0 . 1 5 JOSE WOERHLING, supra note 1 0 at 4 0 . 1 6 G. MARCHILDON & E. M A X W E L L , supra note 13. ... the new Quebec government which had come to power in 1 9 8 5 announced that it would adhere to the Constitution Act of 1 9 8 2 if five conditions were met: ( 1 ) explicit constitutional recognition of Quebec as a distinct society; ( 2 ) the constitutional guarantee of broader powers in the field of immigration; ( 3 ) the limitation of federal spending power with respect to programs falling under Quebec's exclusive jurisdiction; ( 4 ) changes in the constitutional amendment procedure enshrined in the 1 9 8 2 Act; ( 5 ) Quebec's participation in appointing judges from Quebec to sit in the Supreme Court of Canada. The above quote is taken from ANTONIO CASSESE, supra note 4 at 2 4 0 . 80 [1]'opposition du gouvernement du Quebec etait motivee notamment par certaines dispositions linguistiques contenues dans le projet de Charte des droits. Celle-ci comportait en effet un article ainsi redige qu'il entrait en conflit direct avec les dispositions de la loi 101 du Quebec relatives a la langue de l'enseignement dans les ecoles publiques. En outre, le gouvernement quebecois reprochait au projet federal de ne pas donner satisfaction aux demandes traditionnelles du Quebec qui, comme onT'a vue precedemment, portaient principalement sur un nouveau partage des pouvoirs legislatifs... ...C'etait la fin du vieux reve "dualiste" des Quebecois dans lequel la federation etait vue comme un pacte conclu entre les deux nations fondatrices et, par consequent, modifiable uniquement par leur accord mutuel.17 The subsequent negotiations between the federal and provincial governments led to the now infamous Meech Lake Accord. This proposed accommodation would have seen a number of federal powers devolved to the provinces while recognizing Quebec's special status as a "distinct society" within the Canadian federation. It will be remembered that a deadline of June 1990 had been set for the ratification of the constitutional amendment by all provincial legislatures. Again, unfortunately, unanimous consent was not to be had and Meech Lake failed.18 Not surprisingly, [f]or Quebec, this failure to ratify the Meech Lake Accord was interpreted as a rejection by the rest of Canada, arid injected new vigour into the separatist movement. For the rest of Canada, it meant that constitutional renewal was once again postponed.19 In 1990, the Quebec Liberal government along with the Official Opposition, le Parti Quebecois, established the Belanger-Campeau Commission.20 It will be recalled that its mandate was to study "les options disponibles et de proposer des solutions pour l'avenir politique et constitutionnel du Quebec" 2 1 JOSE WOEHRLING, supra note 10 at 52, 54. 1 8 Only nine provincial legislatures and the federal parliament ratified the Meech Lake Accord. One province, Manitoba, refused and Newfoundland rescinded its ratification. 1 9 G. MARCHILDON & E . MAXWELL, supra note 13 at 586. 2 0 The Belanger-Campeau Commission was comprised of independent members representing the Quebec Government Liberals, Opposition members of the Parti Quebecois and citizens. The Commission was named by Prime Minister Bourassa immediately after the Meech Lake Accord failed. It brought down a divided report. 2 1 JOSE WOEHRLING, supra note 10 at 84. 81 Its final report was tabled in March 1991 and identified two possible paths, either radical and thorough changes to the existing constitutional framework or the secession of Quebec from Canada. On June 21, 1991 the National Assembly of Quebec adopted "la Loi sur le processus de determination de l'avenir politique et constitutionnel du Quebec" (Bill 150) which allowed for the holding (by October 26, 1992) of a Referendum dealing once again with Quebec's future. The ball was now in English Canada's court. Brian Mulroney's Federal Conservative Government returned the volley by way of the also now infamous Charlottetown Accord, a political and constitutional deal struck with the ten provincial premiers and the territorial and native leaders.22 A national referendum was in fact held on October 26, 1992. It will be recalled that the four Western provinces, Quebec, Nova Scotia and the Yukon territory rejected the Accord. Overall, 55.07% of Canadians, Quebec's population included, voted against the Accord. As was explained by a prominent Quebec writer: [E]n fait, 1'Accord de Charlottetown etait en quelque sorte condamne d'avance, puisqu'il heurtait de front les revendications des deux principaux "demandeurs" en matiere de reforme constitutionnelle: le Quebec, qui n'obtenait aucunement les nouveaux pouvoirs qu'il reclame depuis 30 ans; les provinces de l'Ouest, qui se voyaient frustrees d'un veritable Senat "Triple E " qui constitue leur principale revendication depuis le milieu des annees 1970.23 Two years later in 1994 and with all the above-mentioned baggage, the Parti Quebecois that had been the official opposition party in Quebec City for the last nine years was elected to power. In December 1994, the then-Premier of Quebec, Jacques Parizeau, tabled a draft bill in the National Assembly on the future of Quebec. The Explanatory Notes accompanying the draft bill, "An Act Respecting the Sovereignty of Quebec" explain that it "sets out the political course of As was explained by CASSESE, the following changes were incorporated into the agreement: ... Quebec would be recognized as a 'distinct society' with enhanced powers, primarily because of its French language and culture; in addition, it would be guaranteed a quarter of seats in the House of Commons in perpetuity, even i f its population were to fall below a quarter of Canada's total; native Canadians would have their 'inherent' right to self-government recognized (it is claimed that this would have implied a third order of government along with the national and provincial governments); the appointed Senate (where now Quebec and Ontario possess nearly half the seats) would be replaced by an elected chamber, with equal representation for all provinces. ANTONIO CASSESE, supra note 4 at 2 5 0 . 2 3 JOSE WOEHRLING, supra note 1 0 at 9 4 . 82 action put forward by the Government of Quebec to settle definitely the constitutional problem that has been confronting Quebec for several generations", and "also defines the process proposed to achieve this purpose"2 4 It is further explained that the objective of the Draft Bill is that Quebec become a "sovereign country". One can read that: [t]he accession to full sovereignty has been defined by the National Assembly as 'the accession of Quebec to a position of exclusive jurisdiction, through its democratic institutions, to make laws and levy taxes in its territory and to act on the international scene for the making of agreements and treaties of any kind with other independent States and to participate in various international organizations'.25 Nine months later, in September 1995, Premier Parizeau introduced Bill 1, "An Act respecting the future of Quebec". The Preamble to Bill 1 also referred to as the Declaration of Sovereignty, reads as follows: "We, the people of Quebec, through our National Assembly, proclaim: Quebec is a sovereign country."26 Section 1 of the Bill is found under the heading "Self-Determination" whereas Section 2 is written under the heading "Sovereignty". On October 30, 1995, the Government of Quebec held a referendum in which the population of Quebec were asked whether they agreed "that Quebec should become sovereign, after having made a formal offer to Canada for a new Economic and Political Partnership, within the scope of the Bill respecting the future of Quebec and of the agreement signed on June 12, 1995".27 The referendum result was 50.58% for the No side and 49.42% for the Yes side. Despite this second defeat, the Government of Quebec has 2 4 Factum of the Attorney General of Canada, supra note 14. 2 5 Ibid, at 1-2. 26 Ibid, at 8. 27 Ibid, at 10. The agreement in question was signed by the then leaders of the Parti Quebecois, Bloc Quebecois and Action Democratique and sets out a common vision for the eventual sovereignty of Quebec. 83 continued to maintain that there will be another sovereignty referendum. It will be recalled that Mr. Bouchard in his speech on the night of defeat exclaimed: [g]ardons espoir, gardons l'espoir car la prochaine fois sera la bonne! Et elle pourrait venir, cette prochaine fois, elle pourrait venir plus rapidement qu'on le pense [...] 2 8 In fact, it is the actions and statements on the part of the Quebec Government regarding its eventual use of a unilateral declaration of independence to take Quebec out of Canada that led the Federal Government to initiate the Reference before the Supreme Court of Canada. The Government of Canada in its factum explains that it: submitted the Reference to the Supreme Court as a direct result of the position repeatedly taken by the current Quebec Government... Any attempt at unilateral secession by Quebec's governing institutions would have grave consequences for all Canadians, with particularly serious consequences for Quebecers... Given the seriousness of the questions, the Government of Canada has asked the Supreme Court to clarify the issue of unilateral secession so that Quebecers and other Canadians can understand clearly the legal framework that would govern any process that could possibly lead to secession. Should any such changes to our country ever occur, they would have to take place in a clear and orderly manner respecting the rule of law, and must be fair to all Quebecers and all other Canadians.29 The Reference before the Supreme Court of Canada Turning now to the Reference before the Supreme Court of Canada, the Attorney General of Canada's position with regards to the status of the population of Quebec will be analyzed. As previously mentioned, the Reference deals with the unilateral secession of Quebec from Canada. The questions submitted to the Court read as follows: Ibid, at 13. Ibid, at 1. 84 1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally? 2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? 3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally which would take precedence in Canada?30 For the limited purposes of this case study, the second question is of interest in as much as the analysis needed to determine whether or not Quebec has a right to self-determination implies a prior determination of the status under international law of the population of Quebec. However, as will become apparent, not all parties before the Court gave an unequivocal answer to this question. The Attorney General begins her analysis by recalling the internal and external aspects of self-determination. It is submitted that: [o]utside the context of colonies, and possibly peoples under alien domination or subject to gross oppression, the right of external self-determination can only be exercised by the entire people of a state. In independent states, the external aspect of the right of self-determination is the right of the people of the state to determine, without external interference, their form of government and international status. This right is exercised fully by all Canadians, including Quebecers, within Canada.31 Therefore, the definition of the "self adopted by the Federal Government is that of the entire population of a State, in the case at bar namely all Canadians.32 With regards to the internal aspect of self-determination, it is submitted that no violation exists within the Canadian context 30 . Ibid, at 20. 31 Ibid, at 40. 3 2 In fact, the definition of people adopted by the Federal Government is that of the "representative government doctrine." See supra chapter III at p. 64. 85 seeing that "Quebecers, along with all Canadians, participate fully in their governmental institutions, federal and provincial, on a basis of full equality and thereby exercise the right of self-determination in its internal aspect."33 According to the Attorney General, in a democratic, equality seeking State such as Canada, the international principle of respect for a sovereign State's territorial integrity must take precedence over any unilateral attempt at secession. After having reviewed the development of the law of self-determination from the Charter of the United Nations through to the travaux preparatoires of the 1966 Covenants, the Attorney General becomes tangled in a somewhat ambiguous line of arguments. After submitting that the right to self-determination as found in the Covenants must be understood in accordance with the principle of the Charter (which clearly emphasizes the territorial integrity of States), the factum's following paragraph refers to Article 27 of the International Covenant on Civil and Political Rights. In fact, the Federal Government appears to be attempting, with some difficulty, to establish a distinction between Article 1 and Article 27 of the Covenant. The Government submits that: [w]ith respect to the proposal to insert Article 1 in the draft Covenants, it was observed that the right of self-determination had been wrongly confused with the rights of minorities and it was confirmed furthermore that the right of self-determination did not imply a right to secession.34 The following paragraph rightly states that the practice of the United Nations Human Rights Committee "in relation to Article 1 and 27 is entirely consistent with the interpretation that the right of self-determination under Article 1 does not imply a right of secession". However, the complex relationship that exists between minority rights and a people's right to self-determination is brought to light in the following paragraph where the Attorney General feels the need to assert: [i]n particular, it (the right of self-determination) does not involve any right to unilateral secession on the part of ethnic, religious or linguistic groups within an independent State.35 This statement merits a closer look for several reasons. First, it is obvious that the ethnic, religious or linguistic groups to which the Attorney General is referring must be the minorities Ibid, at 41 Ibid, at 49. 86 recognized by international law (namely, Article 27 of the Covenant and the Declaration on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities). In fact, what is at issue is not the rights of some undefined "group" but in reality the rights of "minorities" and whether or not those rights include self-determination. Further, it is interesting to note that these paragraphs (para. 143-146) appear to be quite out of place since "Quebecers", the general, undefined term used throughout the Attorney General's factum to describe the population of the province of Quebec, is nowhere referred to as a mere "group" or more importantly as a "minority" under international law. In fact, the Attorney General very clearly avoids any such characterization. However, the very mention of Article 27 of the Covenant alongside the right to self-determination and the inclusion of legally significant terms such as "people" and "minority" along with consequence free terms such as "Quebecers" and "group" evidence a certain uneasiness in handling these concepts and terms by the Federal Government. It is true that somewhat further in the factum, under the heading "Lex Ferenda: Towards a Broader Interpretation of Internal Self-Determination", a new less confusing reference to Articles 1 and 27 of the International Covenant on Civil and Political Rights is made. The Attorney General submits that: [...] international law distinguishes between the whole "people" of a state or colony and other groups forming part of the population, even if such groups are identifiable on the basis of common history and shared culture, language or religion. As noted above, this is reflected in the distinction between "people" and "minorities" in Articles 1 and 27 of the International Covenant on Civil and Political Rights, the former entitled to "self-determination" and the latter to the protection of language, culture and religion.36 The arguments put forth by the Amicus Curiae will now be analyzed. First, it should be recalled that "le memoire de l'Amicus curiae, conformement au mandat qui lui est confie par la Ibid, at 50. Ibid, at 61. 87 Cour supreme du Canada a ce titre, presente le point de vue oppose a celui du Procureur general du Canada."37 Therefore, to no one's surprise, we can read at paragraph 105: Le peuple quebecois est. Concise and straight to the point, this statement leaves little doubt as to the Amicus' position. In fact, the following paragraph adds: Le peuple quebecois jouit du droit a l'autodetermination. En ce faisant, il peut disposer lui-meme, determiner librement son statut politique et poursuivre librement son developpement politique, economique, social et culturel.38 However the actual legal arguments given in support of this position are few. We are told that: [t]ous les juristes sachant que le droit a l'autodetermination ne peut appartenir qu'a un peuple, nous tenons pour acquis qu'en posant cette question, le pouvoir executif federal reconnaissait par decret l'existence du peuple quebecois.39 Also referred to is the Attorney General's statement that "[d]e toute evidence, il existe un peuple quebecois au sens sociologique, historique et politique...". The Amicus goes on to cite Professor Pellet who writes: "[lj'aveu est incomplet ou, plutot, il est contourne; car, si la Procureure generate reconnait expressement l'existence d'un peuple quebecois "aux sens sociologique, historique et politique", elle le reconnait aussi, mais indirectement, au point de vue juridique puisqu'elle admet que les "quebecois exercent le droit a l'autodetermination dans son aspect interne au sein de la federation canadienne" : si ce peuple a droit a l'autodetermination, c'est qu'il a une existence juridique..." 4 0 Also referred to in support of the position that the population of Quebec constitutes a people is the definition of the Quebec people given by PAssemblee des eveques du Quebec: [...] les francophones du-Quebec constituent surement un peuple par leur langue, leur personnalite, leurs traditions, leur genie propre, leur sentiment de solidarity et leur "vouloir-vivre collectif'. A l'interieur de la population canadienne, leur histoire et leur culture se distinguent non seulement des Canadiens de langue anglaise, mais Memoire de VAmicus curiae, No. 25506, 1996, vol. 16 at 1. Ibid, at 30. Ibid, at 27. Duplique de VAmicus curiae, No. 25506, 1996, vol. 17 at 22. 88 meme de celles d'autres concentrations francophones importantes, raeme les Acadiens, par exemple. Les francophones du Quebec sont, avec raison, tiers du peuple qu'ils forment. Mais, ils n'epuisent pas la realite quebecoise. II faut tenir compte de la presence, dans la province de Quebec, d'une importante communaute anglophone, de plusieurs collectivites autochtones et d'autres groupes ethno-culturels. [...] Ce n'est done pas seulement la majorite francophone qui decidera de l'avenir du Quebec. Ce sont tous ceux qui, a titre de citoyens, vivent sur le territoire quebecois, developpent son economie, forment une importante communaute humaine, enrichissent la culture et partagent les memes institutions juridiques et politiques, heritees d'une histoire vecue ensemble. Dans ce sens et en tenant compte de toutes les nuances necessaires, on peut parler de "peuple quebecois"41 Turning now to a review of the positions adopted by certain interveners, one finds a variety of answers to the question: does the population of Quebec constitute a people under international law? First, the position taken by the Grand Council of the Crees and the Makivik Corporation will be examined. Both interveners submit that First Nations are "peoples" within the meaning of the right to self-determination. The Grand Council of the Crees pushes their argument one step further by submitting that : [pjresently, the province of Quebec is made up of numerous peoples, including distinct Aboriginal peoples. It cannot be said by the National Assembly or government of Quebec that there is a single "people" within the province that is synonymous with the province or government of Quebec. Nor can it be suggested as does the A.G. Factum (p. 56, para. 160) that there is a single "people" in Canada under international law which can exercise rights of self-determination.42 Ibid, at 29. It should be noted that the argument advanced by 1'Amicus in support of Quebec's unilateral secession was not based on international law per se but rather on "le principe d'effectivite' by which it is submitted that "le droit international reflete ainsi une situation concrete et institutionalise un etat de fait afin de remplir l'une des missions premieres, qui est de civiliser les rapports sociaux" (para. 88). 4 2 Factum of the Intervener Grand Council of the Crees, No. 25506, 1996, vol. 13 at 29. 89 The Government of the Yukon Territory for its part recognizes the existence of a French-Canadian people of Quebec but submits that Canada's federal system satisfies all claims to autonomy and self-government.43 An argument somewhat similar to the above-mentioned one is presented by Vincent Pouliot who believes that all provinces are made up of a distinct people. However, contrary to the Government of Yukon, Pouliot believes that this very status gives each people the right to determine their own future through a right to self-determination.44 An entirely different position is adopted by the Minority Advocacy and Rights Council (MARC). They submit that: [... ] French Canadians have the same status under international law as other racial or linguistic minorities in Canada. Specifically, each group constitutes a "minority" under international law...4 5 In support of this argument they cite the Capotorti definition of minority. Taking the argument one step further, M A R C recognizes that the right to self-determination belongs only to people and they therefore ask the question - whether minorities are the same as peoples for this purpose? Their answer is no. In support of this position, they quote various authors namely R. Higgins, T.M. Frank, A. Cassesse and J. Salmon. Essentially, these authors are of the opinion that a people is made up of the entire population of a State and not just the members of distinct minority groups. M A R C does aknowledge however that the protection of minorities is presently evolving towards greater group rights such as autonomy, cultural development and freedom from discrimination. In the Council's opinion, this is evident in Article 1 of the Declaration on the Rights of Persons Belonging to National, or Ethnic, Religious and Linguistic Minorities. In fact, M A R C believes that the trend is "to the same effect as the concept of self-determination. Both concepts express the requirement that members of minority groups as a whole have a right to 4 3 Factum of the Minister of Justice for the Government of the Yukon Territory, No. 25506, 1996, vol. 5 at 18. 4 4 Factum of Vincent Pouliot, No. 25506, 1996, vol. 8 at 1. 90 political participation, and to freedom from discrimination within a. state, and further that the group as a whole must be free to pursue its own cultural development, including the use and practice of its language and religion."46 However, internal self-determination and minority rights are constrained by the principle of territorial integrity. The Council also submits that in order for the population of Quebec to exercise a right to external self-determination, exceptional circumstances must exist namely domination from an external force or denial of democracy or human rights. These, it is argued, do not exist in the case of the French Canadians of Quebec. M A R C concludes by asserting that if the Court "finds the conditions of French Canadians in Quebec to be such as to permit secession, M A R C submit that the same would hold true for other minorities within Canada and within Quebec upon secession."47 The Decision of the Supreme Court of Canada Having thoroughly reviewed the different arguments presented to the Supreme Court of Canada, let us now turn our attention to the unanimous decision rendered August 20, 1998 by "The Court" 4 8 Though certainly an historic decision, it unfortunately does little to clarify the status of the population of the province of Quebec or the status of the French Canadians of Quebec (whomever that may encompass). It will be useful to first summarize the entire decision before embarking on an analysis of our particular point of interest. With regards to the first question as to whether the National Assembly, legislature or government of Quebec could effect the secession of Quebec from Canada unilaterally, the Court answered in the negative. In order to arrive at its answer, the Court reviewed what it termed "four fundamental and organizing principles of the Constitution" namely federalism, democracy, Factum of the Intervenor Minority Advocacy and Rights Council, No. 25506, 1996, vol. 15 at 10. 46 Ibid, at 15. 47 Ibid, at 17. 4 8 As was noted, the decision was signed by "The Court" instead of an individual judge. This occurs only on rare occasions and is meant to give the ruling more legal weight and authority. 91 constitutionalism and the rule of law and respect for minorities. A f te r a review of the context in which the Canadian union has evolved, the nature of the above principles is explored. Though the Court clearly states that each principle must be understood by reference to the others, our focus will be the protection of minority rights since it is of a particular interest to us. The importance of this minorities principle remains whole even though it is discussed within the context of the Canadian constitution and not international law. The Court begins by recalling the specific constitutional provisions that protect minority language, religion, education rights and aboriginal and treaty rights including those found in the Canadian Charter of Rights and Freedoms. The importance of these rights as well as the value that Canadians attach to them is emphasized by the Court. According to the Court, Canada's track record with regards to minority rights may not be spotless, but Canada's commitment is steadfast. This commitment clearly plays a role in the Court's answer to question 1: "[t]he Constitution vouchsafes order and stability, and accordingly secession of a province "under the Constitution" could not be achieved unilaterally, that is, without principled negotiation with other participants in Confederation within the existing constitutional framework."49 The Court is firm in insisting that principled negotiations would have to be conducted in accordance with the underlying constitutional principles discussed above including as we have seen the protection of minorities. Though at times the Court seem to be implying that the Quebecois and Quebecoises are a minority group within Canada, the status of other groups within Quebec (i.e.: the Anglophone community, First Nations) would also appear to fall under the heading of minorities at least in the event of the secession of Quebec from Canada. The second question, it will be recalled, sought to clarify Quebec's right to secede unilaterally according to the principles of international law including the right to self-determination. The Court confirms that [...] a right to secession only arises under the principle of self-determination of peoples at international law where "a people" is governed as part of a colonial empire; where "a people" is subject to alien subjugation, domination or 4 9 Decision of the Supreme Court of Canada, August 20th 1998, No. 25506, para. 149. 92 exploitation; and possibly when "a people" is denied any meaningful exercise of its rights to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state. A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states. Quebec does not meet the threshold of a colonial people or an oppressed people nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development. In the circumstances, the National Assembly, the legislature or the government of Quebec do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.50 t Although the Court does not provide us with a definite answer as to whether or not the population of Quebec may be termed a people, it does however reject the definition of a "people" as the entire population of a State. It will be recalled that this was the definition proposed by the Attorney General. Paragraph 124 of the decision reads as follows: It is clear that "a people" may include only a portion of the population of an existing state. [...] the reference to "people" does not necessarily mean the entirety of a state's population. To restrict the definition of the term to the population of existing states would render the granting of a right to self-determination largely duplicative, given the parallel emphasis within the majority of the source documents on the need to protect the territorial integrity of existing states, and would frustrate its remedial purpose.51 The following paragraph deals specifically with the Quebec context: While much of the Quebec population certainly shares many of the characteristics (such as a common language and culture) that would be considered in determining whether a specific group is a "people", as do other groups within Quebec and/or Canada, it is not necessary to explore this legal characterization to resolve Question 2 appropriately. Similarly, it is not necessary for the Court to determine whether, should a Quebec people exist within the definition of public international law, such a people encompasses the entirety of the provincial population or just a portion Ibid, at para. 154. Ibid, at para. 124. 93 thereof. Nor is it necessary to examine the position of the aboriginal population within Quebec.52 In fact, as already mentioned, the Court does not provide us with a specific definition of a people within the Quebec context since it is of the opinion that the principle of territorial integrity protects the existing State of Canada. In the final analysis, as politically adept and legally sound as the decision may be, the debate over the status of the population or even of the francophone population of Quebec rages on. Reaction to the Decision This section will deal with the reaction of the Parti Quebecois Government to the Supreme Court of Canada's decision. As mentioned above, the Provincial Government did not present written or oral pleadings before the Court. It will be recalled that this was in protest of the Reference which they believed was simply a political manoeuvre on the part of the Federal Government. The Government of Quebec refused to submit to the Court's jurisdiction arguing, by means of the media, that the Court was comprised of nine federally nominated judges, thus implying bias on their part, and that moreover no Court had the authority to dictate to the Quebec people what their future should be. In order to appreciate the provincial reaction to the judgment, recourse will be had to the print media's coverage of the said event. First, we will review some of the headlines which immediately followed the release of the decision: La Presse (Friday, August 21, 1998) - "Un jugement a la Solomon" Ottawa Citizen (Friday, August 21, 1998) - "Federalist, separatist camps can both claim victory" Ibid, at para. 125. 94 Le Soleil (Friday, August 21, 1998) - "Non, mais..." As we can see from the above headlines, both the Provincial and Federal Governments were able to find comfort in the Court's decision. Among the first of Quebec's provincial leaders to react to the decision were Intergovernmental Affairs Minister Jacques Brossard and Gilles Duceppe, leader of the Bloc Quebecois - a federal party dedicated to Quebec's separation from Canada. As was reported in the Ottawa Citizen, Brossard "even pointed out some positive aspects of the decision, saying the high court had recognized the legitimacy of the sovereign movement in the province."53 Gilles Duceppe, for his part, is quoted as saying "[i]t's not changing our point of view. It is up to the people of Quebec to decide their own future, not nine judges of the Supreme Court. We've said it's not their business, period."54 Turning now to the reactions of Premier Bouchard and Prime Minister Chretien, the first point to be made is that both appear quite satisfied with the decision. Lucien Bouchard, for his part, was described by journalists as "enthousiaste, ironique". We are told that he welcomed the decision "sans l'ombre d'une critique" since it gives Quebec the right to secede from Canada following negotiations.55 Bouchard's comments touched mostly on the new found legitimacy of the sovereignist movement and the obligation imposed on the rest of Canada to negotiate in good faith. In his own words: La realite c'est que les federalistes ont appris hier de la Cour supreme que la demarche claire, raisonnable et logique proposee aux Quebecoises et aux Quebecois par les souverainistes est legitime et qu'ils devront en negocier la realisation au lendemain d'un referendum gagnant. La Cour ebranle ainsi les 53 54 55 The [Ottawa] Citizen (21 August 1998) A l . Ibid. atCl. Le [Quebec] Soleil (22 August 1998) A l . 95 fondements de la strategic federaliste, sape les arguments de la peur et du refus de negocier. 5 6 Jean Chretien, in his official reaction to the decision started by summarizing the key points of the ruling. With regards to Quebec's right to unilaterally secede under international law, he had the following to say: Une telle declaration unilaterale d'independance ne peut s'appuyer sur le droit international. Voila qui enterre l'un des principaux mythes que les partisans de la separation ont tente de creer au fil des ans.57 The above comment obviously refers not only to Quebec's "legal" right to secede under international law but also to the right of a people to external self-determination. In Chretien's opinion, Quebec cannot rely on the legal principles of public international law to exercice either right. Also of interest in Chretien's speech is his reference to minority rights. After explaining that the Federal Government now wants to focus on nation-building and not on secession issues, Chretien adds that: Notre objectif est de continuer a batir un pays fort et uni dans le respect des droits et obligations, des espoirs et des reves de tous ses citoyens. [•••] Un pays qui respecte les minorites. Un pays ayant deux langues officielles. Et dont la culture francaise, dynamique s'exprime particulierement au Quebec. The above comment would suggest that in the opinion of the Federal Government minority groups must be protected in Canada - notably the official language minorities (i.e. the francophone communities of Canada including the French population of Quebec and the Anglophone community in Quebec). Does this signify on the part of the Federal Government a denial of Quebec's status as a "people" and consequently a confirmation of the francophone population of Quebec as a "minority" within the Canadian Federation? The questions raised by international law versus the questions raised under the Canadian Constitution are at times difficult La [Montreal] Presse (22 August 1998) B4. Le [Quebec] Soleil (22 August 1998) A19. 96 to separate. It is therefore not possible to be certain of Chretien's intent when he speaks of Canada's minority groups. Another group whose opinion is of interest is the Aboriginal peoples of Canada. National Chief of the Assembly of First Nations Phil Fontaine had the following to say: Although the provinces, including Quebec may not have the right of self-determination as people, the decision highlights that aboriginal people clearly have that right. In the opinion of First Nations Quebec Chief Ghislain Picard the ruling by recognizing that "oppressed peoples" or those "denied meaningful access to government" have the right to determine their own destiny implicitly admits that self-determination applies to First Nations.58 Before turning the page on this section of the chapter, it is interesting to note the reaction of Quebec's ultra-sovereignist Saint Jean-Baptiste Society. Lawyer, John Philpot, speaking on behalf of the Society declared: This is a judgment by judges named by the federal government, defining rules under a constitution which Quebec has never signed. It's an example of Quebec's being dominated or subjected by a foreign power.59 These comments, coupled with those of president Guy Bouthillier who speaks of the "people" of Quebec, clearly show an appropriation of the vocabulary of self-determination and a resolve on the part of the Society not to abandon its position with regards to the right of the Quebec people to freely determine their own future both from an internal and external perspective. The [Ottawa] Citizen (21 August 1998) C5. The [Ottawa] Citizen (21 August 1998) C2. 97 CHAPTER V CONCLUSION SUMMARY OF CHAPTER II - MINORITIES Chapter II concerned itself with the question of minorities. Given the complex and highly difficult issues surrounding the rights of minorities, the chapter began by a review of the various attempts made at defining the term "minority" by the Permanent Court of International Justice, the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, two Special Rapporteurs and various leading international scholars. What emerged from the above review was the absence of a universally accepted definition. Various reasons were put forth to explain this fact, notably the shift in emphasis that occurred following World War II from group rights to individual rights. It will be recalled that this change in attitude is obvious from the absence of any provision dealing with minority rights in the Charter of the United Nations as well as in the Universal Declaration of Human Rights. It can safely be said that the question of minority rights was, during the early years of the United Nations, a low priority item and lacked support from both the Commission on Human Rights and the General Assembly. The confirmation as well as the possible exception to this statement occurred in 1952 when the Sub-Commission was very nearly eliminated. It will be recalled that the General Assembly came to its rescue. However, it will also be recalled that at about the same time the Sub-Commission decided to abandon its work in the area of minority rights and rather focus on ways and means to prevent discrimination. With regards to the definition of minority, the least controversial of the proposed definitions is that of Special Rapporteur Capotorti. His definition combines both subjective and 98 objective criteria. The objective criteria include the need for the group to be numerically inferior to the rest of the population of the State, it must be in a non-dominant position and its members must possess ethnic, religious or linguistic characteristics different from the rest of the population. Furthermore, the group must show a sense of solidarity and the will to preserve its culture, traditions, religion or language. This constitutes the subjective criteria. The above definition was prepared within the context of a much larger study that sought to expand on the question of the rights of minorities notably within the framework of Article 27 of the International Covenant on Civil and Political Rights. To this day Article 27 constitutes the only legally binding provision dealing with minority rights adopted by the United Nations. This Article is disappointing in many ways - it will be recalled that it protects only individual rights, that it introduces a discretionary element as to the very existence of a minority within a State and most importantly, that it is cast in negative terms. In fact, it is the only Article to be so drafted in the Covenant; it does not state that "persons belonging to minorities" have certain rights but rather that they must not be denied certain rights. Absent from Article 27 are any concrete rights as well as any State duty to promote minority culture, religion or language. The United Nations' latest offering in the field of minority rights is the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The Declaration's key positive features include the recognition of a State's duty to promote minority culture, religion or language and the importance of a minority's full participation in all decision making processes as well as in the economic life of the State. On the negative side, the Declaration was drafted in very cautious and at times vague terms and includes important exceptions or limitations. However, the most interesting aspect of the Declaration is its comparison with internal self-determination. The recognition that minorities (a term, as was seen, not unlike the term people) should participate in the decision making process at both the national and regional levels when their interests are at play, is both wise and dangerous. It is wise since 99 most minority groups claim exactly that - the right to decide matters that impact upon their culture, traditions, religion or language. However, it is also dangerous for States since the dividing line between minorities and peoples is becoming obscured. summary o f c h a p t e r III - peop le The third chapter, it will be recalled was an in-depth study of the right to self-determination. Because of the important historical development that the principle of self-determination has undergone, the chapter began with a brief overview of the origins of the principle. Special attention was paid to the views of Woodrow Wilson. It will be recalled that he is the person credited with bringing the principle of self-determination to the forefront of international relations. After examining the post World War I application of the principle, it was explained how the League of Nations viewed the minorities protection system as a necessary corollary. One of the major difficulties with the Versailles scheme was first and foremost the non-universality of the principle of self-determination. Self-determination was used as a reward for national groups loyal to the Allies and a punishment for the vanquished. And where a national group could not be given self-determination, the minority protection system was used as a consolation prize. These decisions were politically motivated and had more to do with the political, economic and strategic interests of the Allies than with the legitimacy of the group's claim. Not surprisingly, no definition of people was ever arrived at. In fact, Wilson described the self in numerous ways including "peoples", "provinces" and "nations". The post World War II application of self-determination brought about a marked change in our understanding of the principle. Whereas the League's Covenant was silent as to its place, the United Nations' Charter enshrined the "principle". It will be recalled that at this early stage we were dealing with the "principle" of self-determination of people and not a right. 1 0 0 The United Nations quickly set about using the principle in the particular context of decolonization. Very early on, consensus was reached that the people of a colony had the right to self-determination. This link is evidenced by numerous Declarations dealing with decolonization. However, the universal nature of the "right" to self-determination was only established in the International Covenants. It will be recalled that Article 1 of both Covenants recognizes the right of "all people" to self-determination. This fact is of and by itself fairly surprising. Just as States have traditionally been weary of minority rights, so have they been of peoples' rights. The most often heard explanation for this weariness is the fear that claims for minority rights or peoples' right can lead to the disintegration of the territorial unity of a State. However, given the emergence of an important number of new States (mostly former colonies) and their membership in the United Nations, the universality of the right to self-determination was secured. On the occasion of the United Nations' twenty-fifth anniversary an important Resolution dealing with the principles of international law was adopted by the General Assembly. This Resolution deals with the right to self-determination and introduces a new dimension namely the representative government clause. Whereas prior to this Resolution one could have argued that the right to self-determination was limited to the colonial context and that Articles 1 of the Covenants had to be read along those lines, a new more liberal interpretation of the right to self-determination is now gaining ground. According to this more "generous" interpretation, all people can exercise the right to self-determination and thus compromise the territorial integrity of the State to which they belong if the State does not possess a representative government. A more narrow understanding of the above leads to racist regimes and States who act in a grossly discriminatory fashion being targeted - it is obvious that in both instances there is a denial of basic human rights. However, a less narrow interpretation leads one dangerously close to minority claims - especially those concerning their role in the decision making processes of the State to which they belong. The parallel with the representative government clause is unmistakable. Once again we see a certain blurring of the dividing line between minorities and their claims and people and their right to self-determination. 101 The last section of this chapter dealt with the beneficiaries of the right to self-determination. Once again we were forced to admit that the United Nations has been unable and perhaps unwilling to come up with a universally accepted definition of people. Therefore, recourse was had to scholarly writings in order to explore the various possible definitions. Four possible definitions were identified - namely the people as a State definition, the people as the population of a colony definition, the representative government definition and the ethnic definition. Although it is fairly easy to dismiss the first two definitions given the state of international law (both United Nations' practice and pronouncements on the issue), the last two deserved closer attention. The representative government definition is obviously based on the Declaration on the Principles of International Law Concerning Friendly Relations and Co-operation among States. By far the favoured definition by States, it rests on two ideas - first, that the right to self-determination is universal, and second, that it applies to the entire population of a State, thus preserving the latter's territorial integrity. As was mentioned in the chapter, this definition places much importance on the internal aspect of self-determination namely the right of all people to influence the political system under which they live. However, the major shortcoming of the definition is its lack of recognition of the importance that ethnic, religious and linguistic factors play in a people's claim to self-determination. As was stated in the introduction to this thesis, multiethnic States are now the norm and to deny that people define themselves and their claims according to their particular characteristics is naive. Consequently, this brings us to the final definition of people based on ethnic criteria. Though perhaps closer to modern reality, this approach is also fraught with difficulties. First, just as defining the term minority based on ethnic criteria has proven impossible, the same may be said of the term people. Also, even when one uses subjective and objective criteria to define people, one is undeniably close to the definition of a minority. In many regards the two definitions are the same. Though certainly not surprising, this result is unacceptable to States who seek to protect their sovereignty and their territorial integrity against all possible attacks. 102 SUMMARY OF CHAPTER IV - QUEBEC The fourth chapter dealt in its first section with the above issue - namely what are the differences between minorities and their rights and peoples and their right to self-determination. The Human Rights Committee's General Comments on Articles 1 and 27 of the CCPR were reviewed. Also examined was Special Rapporteur's Cristescu study on the right to self-determination. Though consistent with the United Nations' position regarding the difference between minority rights and self-determination, the arguments given in support of this position are quite simply not adequate. Beyond stating that the beneficiaries and their rights are not the same, the documents do little to further our understanding. The writings of three internationally renowned authors were also studied, namely Antonio Cassese, Patrick Thornberry and Christian Tomuschat. Although each confirmed that differences were said to exist, each also conceded that a certain overlapping exists. Tomuschat went as far as asserting that the status of "minority" is in many cases simply a prelude to future claims for self-determination. With the above analytical framework in mind, the chapter proceeded with an analysis of the particular case of the Quebecois and Quebecoises within Canada. In order to better understand the nature of the claims as they exist today, a brief history of the sovereignist movement in Quebec was presented. In the area of constitutional reform, the past twenty years have seen numerous failed attempts at both renewed federalism and outright secession and independence for Quebec. The last major crisis culminated with the victory of the "NO" side following the Referendum of October 30, 1995. However, the sovereignist movement continues to work towards another referendum and to speak of Quebec's future in terms of independence even at the cost of a unilateral secession from Canada. In response to the above position adopted by the provincial leaders of Quebec, the Federal Government decided two years ago to submit three questions to the Supreme Court of Canada for an advisory opinion. The first question, 103 though framed solely within the context of Canadian constitutional law, did lead to some interesting pronouncements by the court, on the rights of minorities within Canada. The second question of this referendum was of particular interest to us since it dealt with international law and the status of the population of Quebec. In order to appreciate the positions of the Federal Government, the Amicus Curiae as well as the various interveners, their factums were analysed and the salient points presented. It was then possible to draw several conclusions. The first obviously being a complete lack of consensus as to the status of the population of Quebec. The Federal Government cautiously avoided taking a firm position whereas the Amicus firmly asserted that the Quebecois and Quebecoises were a people but offered few supporting arguments. The interveners, for their part, presented arguments for just about every conceivable position on the subject, ranging from simple minority to a people with the inherent right to self-determination. Given this wide range of positions, it was hoped that the Supreme Court of Canada's ruling would finally put the debate to rest. That was not to be. It will be recalled that the judges simply side-stepped the question given their position on the other issues raised. Therefore, Canada's constitutional future is again back to square one namely the political arena. In order to judge the "political" reaction to the Reference, especially with regard to the status of the population of Quebec under international law, recourse was had to the print media. This revealed that the Sovereignists, after having reiterated the Court's lack of jurisdiction over the question, chose not to address the question of the status of Quebec's population in their public reaction to the decision whereas the Federal Government claimed that a sovereignist myth had finally been buried. Also interesting was the continued use of the term "people" by the Quebec leaders whereas the Federal leaders went out of their way to insist upon the importance of minority rights in Canada. SUMMARY OF CONCLUSIONS After such an exhaustive exercise, what can one conclude? 104 First, the terms "minority" and "people" essentially refer to the same entities. Both terms refer to groups united by ethnic, religious or linguistic characteristics, who wish to keep their distinct identity, pass on their culture and traditions to their children and most importantly determine their own future. The one variable among these groups resides in the degree of autonomy sought. We have seen that as the law stands, the classification issue is crucial. Yet we have also seen that the above "obstacle" is impossible to overcome since the terms "minority" and "people" essentially refer to the same entities, what may be termed more generically minority groups. Second, this reality is unacceptable to States. In fact, as we have seen, States continue and will continue to insist that objective, tangible differences exist between minorities and peoples and more importantly that they exist with regard to the rights to which these distinct groups are entitled. Throughout the preceding chapters, various reasons have been advanced to explain this position most notably the States' zealous and obsessive protection of their sovereignty and territorial integrity. Professor Cassese's explanation, to which I subscribe, is comprised of three elements: First, most members of the international community, both old States and newly independent countries, are multinational or multiracial agglomerates; [...] In a world in which the main actors are domestically so heterogeneous, it is difficult to expect that these actors - which are at the same time the world legislators - should pass legal rules empowering domestic disruption, secession or at any rate norms that could fuel or exacerbate ethnic or racial conflict. [...] Second, a sizeable group of member States of the international community are made up of authoritarian entities, which pay scarce regard to the aspirations and wishes of their populations. Given these characteristics of the domestic structure of many international subjects, it would be naive or disingenuous to think that these same subjects should accept strict, clear, and detailed legal rules imposing full respect for the free choice of their people. Third, the distribution of economic, political, and military power in the world community clearly shows that power increasingly tends to concentrate in the hands of few international actors and the remaining States must of necessity side with 105 one of them, or even become their policy 'tributaries'. This state of affairs makes it increasingly impractical for relatively small nations or groups to be viable, if they attain political independence. [...] If one bears in mind the above remarks, the limited and selective way international law has incorporated self-determination can easily be accounted for.1 Third, and despite the above conclusion with regard to State practice, minority claims and minority rights as they are currently being defined by the United Nations are getting closer and closer to the concept of internal self-determination. Though this third point may appear contradictory at first glance, it is not. States are forced to acknowledge the presence of ethnic groups within their territory and out of a sheer will to survive, they must address the claims of these groups. By granting these groups greater participation in the public affairs of the States, the latter are in fact protecting their territorial integrity. As was mentioned above, international law tells us that States in which one finds a representative government are entitled to their territorial integrity. Therefore, by focusing on the ideal of internal self-determination, States are ensuring their continued survival. However, it should be noted that, as cynical as the above comments may appear to be, ethnic groups must be given a greater role in the decision making processes of the State in which they live. In fact, the future of multiethnic States as we know them resides in the finding of new, innovative means recognizing the needs of these groups namely to play an active and effective role in the political affairs of the State. It is only in such cases that the groups will cease to feel threatened. However, having witnessed numerous attempts at finding such a new and innovative accommodation with regards to the province of Quebec within the Canadian federation gives one a better appreciation of the difficulties involved in such an exercise. Fourth, the determination by States of the status of a particular group whether as a minority with its corresponding, limited rights or as a people with its right to self-determination depends not on the validity of the claim or on the application of any rules of general international 1 A N T O N I O C A S S E S E , Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1996) at 317-18. 106 law but rather on the imperatives of politics, economic advantage or strategic interests. This fact is what allows academics like Jose Woehrling to write: [d]eux facteurs politiques l'emporteraient sur toute consideration juridique: la volonte du peuple quebecois qui, si elle etait incontestable et democratiquement exprimee, aurait pour effet de conferer a la secession unilaterale du Quebec une legitimite populaire essentielle aux yeux de l'opinion publique canadienne et internationale; I'efflcacite et I'effectivite de la secession, c'est-a-dire la capacite des autorites quebecoise d'exercer le monopole de l'autorite publique sur le territoire du Quebec; en effet, une telle situation attesterait de la reussite de la secession du Quebec sur le plan interne. Sur le plan international, elle amenerait inevitablement les autres Etats, ou du moins un certain nombre d'entre eux, a reconnaTtre apres un certain temps l'existence du Quebec comme Etat souverain.2 Although the question of what the future holds for States and minority groups is certainly topical, it also has the distinction of being almost impossible to answer with any degree of certainty. This is true for many reasons, most notably the fact that we are dealing with the variables of human nature. States are not just abstract political entities - they are lead by men and women who have interests to promote. And ethnic groups, despite all "official" attempts at defining and classifying them, are essentially composed of men, women and children with their own interests to protect. Though the following observations are in no way meant to predict the future, they are offered by way of concluding remarks. Much work remains to be done at the State level. First, States must be made to understand that self-determination can and does mean much more than only accession to political independence. The many facets of self-determination must be explored by States and ethnic groups together. Until now, the United Nations has preferred not to explore the finer complexities of the right to self-determination but the time for such a laissez-faire attitude is over. International law must not be permitted to become a cause of political, social and legal unrest and turmoil. It is well known and accepted that international law asks for loyalty towards a J O S E W O E H R L I N G E T J A C Q U E S - Y V A N M O R T N , eds., Demain, le Quebec... choix politiques et constitutionnels d'un pays en devenir (Sillery: Les Editions du Septentrion, 1994) at 1 3 0 . 107 State which conducts itself in accordance with the standards set by the international community including those relating to a group's right to existence and identity. In fact, the simple truth is that the adequate observance of group rights by States can prevent their territorial disruption. As was stated by one author, "trouble will come only for those multi-ethnic states that suppress ethnic groups."3 The 20 t h century has been witness to contradictory trends in international relations. On the one hand, we have seen the internationalization and globalization of our world as well as the emergence, recognition and endorsement of the human rights movement. On the other hand, we have also seen the "emergence within and between States of virulent forms of ethnocentrism, hatred of diversity, the exhumation of buried antagonisms and the obscenity of ethnic cleansing " 4 The upsurge of what some authors refer to as "ethno-nationalism" most often takes aim at minority groups - those who can be differentiated from the majority on the bases of distinctive traits. Their crime? Their wish to keep their distinct identity, pass on their culture and traditions to their children and most importantly their desire to determine their own affairs. However, as was eloquently stated by Patrick Thornberry, "children of today's victims become tomorrow's agents of revenge ". 5 In fact, what we see in many parts of the world is the tragic effects of years of mutual recriminations between groups. As was stated at the outset of this thesis, the issue of minority and group rights and claims can and often does lead to such a climate of violence that international peace and security are endangered. As has been suggested in this thesis, what is needed is fresh thinking about group rights: a modern, minority-friendly reading of self-determination would be an excellent starting point. Self-determination has since its inception been a curious mixture of legal and political considerations. 3 O T T O K I M M I N I C H , " A 'Federal' Right of Self-Determination" in C H R I S T I A N T O M U S C H A T , ed., Modern Law of Self-Determination 03oston: Martinus Nijhoff, 1 9 9 3 ) at 1 0 0 . 4 P A T R I C K T H O R N B E R R Y , "The U N Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observations, and an Update", in A L A N P H I L L I P S and A L L A N R O S A S , eds., Universal Minority Rights (London: Abo Akademi University, 1 9 9 5 ) at 1 3 . 5 Ibid, at 1 4 . 108 It is time to dwelve much deeper. In fact, to speak in academic terms of a broad and flexible approach to self-determination is one thing but to translate that into clear legal terminology enjoying a shared meaning by both States and members of minority groups is quite another. However, as difficult, daunting and impossible as the task may be, certain truths must be faced: first, "no matter how many exercises in secession take place, we continue to live in multi-national societies"; second, minority groups - be they labelled as minorities or peoples - cannot be wished away; and third, there is every reason to believe that the just and equitable treatment of minority groups will contribute to the stability and longevity of States as well as promote peace throughout many troubled regions of the world. Although it would be nice to simply speak of the inherent value of every culture and group to the cultural heritage of mankind, a more pragmatic approach must be adopted. At a minimum, the right to group existence and to group identity must be recognized and strictly upheld by the international community. Any violation of the above right should entail swift and severe consequences. States must be held accountable for such violations. They are no longer sacrosanct and their existence is not exempt from challenge. States must protect the life and the physical integrity of their citizens. Without this minimum of respect for human life States loose their raison d'etre. If this sine qua non condition can be achieved and maintained, then the next step involves confidence-building between groups and States. Until a satisfactory solution can be arrived at in any given situation, all threats to the group's existence must cease as well as all attempts by the group to disrupt the internal stability and territorial integrity of the State. Only in an atmosphere of mutual trust will it be possible to obtain concessions and eventually arrive at a satisfactory compromise. However, it is important to reiterate that a State's obligation to protect the existence and the identity of groups is mandatory. Also, special protective measures for such groups must not be viewed as discriminatory. In fact, the concept of active protection must be accepted by States. It is only through the encouragement of constructive attitudes that long-term solution can be envisaged. And, such attitudes can only be achieved through the elimination of ignorance and stereotypes. What is needed first and foremost is knowledge of the "other's " history, culture, 109 language, traditions and values. Only through education focused on a better understanding of the other as well as on the substance and spirit of human rights (including the fundamental right of every individual and group to existence and identity) can tragedy be avoided. In fact, States must adopt measures to combat racism, xenophobia and intolerance. Many authors argue that the "age of standard-setting in human rights is over and attention should be directed to making the standards effective through international and domestic mechanisms".6 One may question what this entails in the case of ethnic groups. In the, words of Christian Tomuschat, The aim should be to accommodate the legitimate claims of peoples or even of minorities by creating adequate political structures giving them a say over what are essentially their own matters without destroying the overarching institution of government.7 A discussion of "effective participation and involvement" for minority groups often centres on the idea of decentralized, multi-levels of government. A meeting of CSCE Experts on National Minorities held in 1991 in Geneva produced a list of possible ways to achieve the effective participation and involvement of minority groups in public life. The following were offered as possibilities: Advisory and decision-making bodies in which minorities are represented, in particular with regard to education, culture and religion; Elected bodies and assemblies of national minority affairs; Local and autonomous administration, as well as autonomy on a territorial basis, including the existence of consultative, legislative and executive bodies chosen through free and periodic elections; Self-determination by a national minority of aspects concerning its identity in situations where autonomy on a territorial basis does not apply; Ibid, at 56. C H R I S T I A N T O M U S C H A T , "Self-Detennination in a Post-Colonial World", supra note 3 at 17. 110 Decentralized or local forms of government. In conclusion, it is hoped that the entire debate surrounding the status and rights of ethnic groups will one day be placed within a more human context and that the hopes, fears and aspirations of numerous people throughout the world will be taken into consideration. The following words by Rodolfo Stavenhagen are appropriate: [t]he traditional concept of human rights (both the civil and political ones as well as the social, cultural and economic ones) applies predominantly to individuals. On the other hand, collective rights apply primarily to states, and in some exceptional cases to peoples struggling for national liberation and recognised as such by the international community. But between individual rights and states' rights there are millions of human beings in dozens of countries in every part of the world who claim their own identity, their own right to an existence according to their own values and forms of social organization and in many cases, their right to self determination.8 R O D O L F O S T A V E N H A G E N , "Ethnic Conflicts and Minority Rights" ( 1 9 8 7 ) 3 Nordic Journal on Human Right 16 at 25. m APPENDIX I Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities Adopted by General Assembly resolution 47/135 of 18 December 1992 The General Assembly, Reaffirming that one of the basic aims of the United Nations, as proclaimed in the Charter, is to promote and encourage respect for human rights and for fundamental freedoms for all, without distinction as to race, sex, language or religion, Reaffirming faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, Desiring to promote the realization of the principles contained in the Charter, the Universal Declaration of Human Rights, the Convention on the Prevention and Punishment of the Crime of Genocide, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and the Convention on the Rights of the Child, as well as other relevant international instruments that have been adopted at the universal or regional level and those concluded between individual States Members of the United Nations, Inspired by the provisions of article 27 of the International Covenant on Civil and Political Rights concerning the rights of persons belonging to ethnic, religious or linguistic minorities, Emphasizing that the constant promotion and realization of the rights of persons belonging to national or ethnic, religious and linguistic minorities, as an integral part of the 112 development of society as a whole and within a democratic framework based on the rule of law, would contribute to the strengthening of friendship and cooperation among peoples and States. Considering that the United Nations has an important role to play regarding the protection of minorities, Bearing in mind that the work done so far within the United Nations system, in particular by the Commission on Human Rights, the Subcommission on Prevention of Discrimination and Protection of Minorities and the bodies established pursuant to the International Covenants on Human Rights and other relevant international human rights instruments in promoting and protecting the rights of persons belonging to national or ethnic, religious and linguistic minorities, Taking into account the important work which is done by intergovernmental and non-governmental organizations in protecting minorities and in promoting and protecting the rights of persons belonging to national or ethnic, religious and linguistic minorities, Proclaims this Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Article 1 1. 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. 2. States shall adopt appropriate legislative and other measures to achieve those ends. Article 2 1. Persons belonging to national or ethnic, religious and linguistic minorities (hereinafter referred to as persons belonging to minorities) have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination. 2. Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life. 113 3. Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation. 4. Persons belonging to minorities have the right to establish and maintain their own associations. 5. Persons belonging to minorities have the right to establish and maintain, without any discrimination, free and peaceful contact with other members of their group and with persons belonging to other minorities, as well as contacts across frontiers with citizens of other States to whom they are related by national or ethnic, religious or linguistic ties. Article 3 1. Persons belonging to minorities may exercise their rights, including those set forth in the present Declaration , individually as well as in community with other members of their groups, without any discrimination. 2. No disadvantage shall result for any person belonging to a minority as the consequence of the exercise or non-exercise of the rights set forth in the present Declaration. Article 4 1. States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law. 2. States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards. 3. States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instructions in their mother tongue. 114 4. States should, where appropriate, take measures in the field of education, in order to encourage knowledge of the history, traditions, language and culture of the minorities existing within their territory. Persons belonging to minorities should have adequate opportunities to gain knowledge of the society as a whole. 5. States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country. Article 5 1. National policies and programmes shall be planned and implemented with due regard for the legitimate interests of persons belonging to minorities. 2. Programmes of cooperation and assistance among States should be planned and implemented with due regard for the legitimate interests of persons belonging to minorities. Article 6 States should cooperate on questions relating to persons belonging to minorities, inter alia, exchanging information and experiences, in order to promote mutual understanding and confidence. Article 7 States should cooperate in order to promote respect for the rights set forth in the present Declaration. Article 8 1. Nothing in the present Declaration shall prevent the fulfilment of international obligations of States in relation to persons belonging to minorities. In particular, States shall fulfil in good faith the obligations and commitments they have assumed under international treaties and agreements to which they are parties. 115 2. The exercise of the rights set forth in the present Declaration shall not prejudice the enjoyment by all persons of universally recognized human rights and fundamental freedoms. 3. 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THORNBERRY, PATRICK, "The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism" in CHRISTIAN TOMUSCHAT, ed., Modern Law of Self-Determination (Boston: Martinus Nijhoff, 1993). THORNBERRY, PATRICK, "The U N Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observations, and an Update", A L A N PHILLIPS and ALLAN ROSAS, eds., Universal Minority Rights (London: Abo Akademi University, 1995). 118 TOMUSCHAT, CHRISTIAN, "Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights" in Vokerrecht als Rechisordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift fur Hermann Mosler (1983). WOEHRLING, JOSE, "L'evolution et le reamenagement des rapports entre le Quebec et le Canada anglais" in JEAN -YvANMORIN & JOSE WOEHRLING, eds., Demain, le Quebec... choixpolitiques et constitutionnels d'un pays en devenir (Sillery: Editions du Septentrion, 1994) 15. Articles in Journals ALFFREDSSON, GUDMUNDUR AND D E ZAYAS, ALFRED, "Minority Rights: Protection by the United Nations" (1993) 14 H R L J 1. BINDER, GUYORA , "The Case for Self-Determination" (1993) 29 Stanf. J. Int'l L . 223. BOKATOLA, ISSE OMANGA , "La declaration des Nations Unies sur les droits des personnes appartenant a des minorites nationales et ethniques, religieuses et linguistiques" (1993) 97 Rev. D I P . 745. BOGATOLA, ISSE OMANGA, "The Draft Declaration of the United Nations on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities" (1991) 46 Int'l Comm. Jur. Rev. 33. BRING, O., "Kurdistan and the Principle of Self-Determination" (1992) 35 GYTL 157. 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N O W A K , M A N F R E D , "The Activities of the U N Human Rights Committee: Developments from 1 August 1992 to 31 July 1995" (1995) 16 HRLJ 377. PEJIC, J E L E N A , "Minority Rights in International Law" (1997) 199 Hum. Rts. Q. 666. P O M E R A N C E , M l C H L A , "The United States and Self-Determination: Perspectives on the Wilsonian Conception" (1976) 7 0 AJIL 1. R A M A G A , PHILIP V U C I R I , "The Group Concept in Minority Protection" (1993) 15 Hum. Rts. Q. 575. SACERDOTTI, G.,"New Developments in Group Consciousness and the International Protection of the Rights of Minorities" (1983) 13 IYHR 116. S H A W , M A L C O L M N . , "The Definition of Minorities in International Law" (1960) 2 0 IYHR 13. S T A V E N H A G E N , R O D O L F O , "Ethnic Conflicts and Minority Rights" (1987) 3 Nordic Journal on Human Right 16. 120 STAVENHAGEN RODOLPHO, "Human Rights and Peoples' Rights - The Question of Minorities" (1987) 3 Mennesker og Rettigheter 16. THORNBERRY, PATRICK, "Is there a Phoenix in the Ashes? International and Minority Rights" (1980) 15 Texas Int'l L J . 421. THORNBERRY, PATRICK, "Self-Determination, Minorities, Human Rights: A Review of International Instruments" (1989) 38 I.C.L.Q. 867. TZOU, B .N. , "Does the Principle of Self-Determination Apply to Taiwan?" (1992) 28 Issues & Studies 70. V A N D Y K E , VERNON, "Self-Determination and Minority Rights" (1969) 13 Int'l Studies Quarterly 223. WHELAN, ANTHONY, "Wilsonian Self-Determination and the Versailles Settlement" (1994) 43 I.C.L.Q. 99. WHITE, ROBIN C.A., "Self-Determination: Time for a Re-Assessment?" (1981) 28 Netherl. Int'l L. Rev. 147. Newspaper Articles The [Ottawa] Citizen (21 August 1998). Le [Quebec] Soleil (22 August 1998). La [Montreal] Presse (22 August 1998). B. INTERNATIONAL MATERIALS Treaties United Nations Charter, 26 June 1945, Can. T.S. 1945 No. 7, 59 Stat. 1031. International Covenant on Civil and Political Rights, 19 December 1966, Canada T.S. 1976 No. 47, 999U.N.T.S. 171. International Covenant on Economic, Social and Cultural Rights, (1976) 993 U.N.T.S. 3. 121 Permanent Court of International Justice Jurisdiction of the Courts of Danzig, Advisory Opinion (1928), P.C.I.J. Ser. B, No. 15. Greco-Bulgarian Communities, Advisory Opinion (1930), P.C.I.J. Ser. B, No. 17. United Nations Documents CAPOTORTI, FRANCESCO, "Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities" U N Doc. E/CN.4/Sub.2/384/Rev.l (1979). CRISTESCU, AURELIU, "The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments" U N Doc. E/CN.4/Sub.2/404/Rev. 1. General Comment No. 23(50) on Article 27/Minority Rights adopted by the Human Rights Committee at its 1314th meeting (Fiftieth session) on 6 April 1994. U N Doc. CCPR/C/21/Rev.l/Add.5. General Comment No. 12(21) on Article 1/Self-Determination adopted by the Human Rights Committee as its twenty-first session. U N Doc. CCPR/C/21/Rev. 1. General Assembly Resolution 217 (III), 3 U N GAOR Supp. (No. 13) 71, U N Doc. A/810 (1948). General Assembly Resolution 567 (VI) of January 18, 1952. General Assembly Resolution 648 (VII) of December 10, 1952. General Assembly Resolution 742 (VIII) of November 27, 1953. General Assembly Resolutions 837(IX) of December 14, 1954. General Assembly Resolution 2200 (XXI) of December 16, 1966. General Assembly Resolution 2625, U N Doc. A 18028 (1971). General Assembly Resolution 47/135 of December 12, 1992. Official Records of the Economic and Social Council, Sixth Session, Supplement No. 1, paras. 39 and 40. U N Doc. CCPR/C/2/Add.5 (1982). 122 U N Doc. CCPR/C/2/Add.5 (1982). U N Doc. CCPR/C/21/Rev.l/Add.5. U N Doc. E/CN.4/52 (1949). U N Doc. E/CN.4/L.45. U N Doc. E/CN.4/Sub.2/85 (1949). U N Doc. E/CN.4/641, annex 1, resolution II (1950). UNDoc . E/CN.4/Sub.2/L.2 (1951). "Activities of the United Nations Relating to the Protection of Minorities", U N Doc. E/CN.4/Sub.2/194 (1958). U N Doc. E/CN.4/Sub.2/1984/31. UNDoc . E/CN.4/Sub.2/1985/SR13. UNDoc . E/CN.4/Sub.2/1985/57. UNDoc . ST/HR/2/Rev.2 (1983). UNDoc . ST/HR/2/Rev.3/1988. "New Reflections on the Concept of Peoples' Rights: Final Report and Recommendations of an International Meeting of Experts (27-30 November 1989)", UNESCO, Paris, reproduced at (1990)2HRLJ441. C. CANADIAN AND BRITISH CASELAW Factums Duplique de {'Amicus curiae, No. 25506, 1996, vol. 17. Factum of the Attorney General of Canada, No. 25506, 1996, vol. 1. Factum of the Intervener Grand Council of the Crees, No. 25506, 1996, vol. 13. 123 Factum of Vincent Pouliot, No. 25506, 1996, vol. 8. Factum of the Intervenor Minority Advocacy and Rights Council, No. 25506, 1996, vol. 15. Memoire de 1'Amicus curiae, No. 25506, 1996, vol. 16. Decisions Decision of the Supreme Court of Canada, August 20 t h 1998, No. 25506. In the Supreme Court of Canada - In the Matter of Section 53 of the Supreme Court Act. R.S.C. 1985, Chap. S-26 and In the Matter of a Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada, as set out in Order in Council P.C 1996-1997, dated the 30th day of September, 1996. Mandlav. DowellLee (1993), 1 AIL E R . 1062. 

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