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"...In all regions of the
world conflicts turn violent over the desire
for full control by state governments, on the
one hand, and claims to self-determination (in
a broad sense) by peoples, minorities or other
communities, on the other. Where governments
recognise and respect the right to
self-determination, a people can effectuate it
in a peaceful manner. Where governments
choose to use force to
crush or prevent the movement, or where they
attempt to impose assimilationist policies
against the wishes of a people, this polarises
demands and generally results in armed
conflict. The Tamils, for example, were not
seeking independence and were not using
violence in the 1970s. The government response to further deny
the Tamil people equal expression of
their distinct identity led to armed
confrontation and a war of
secession....
For peace, security and
stability to exist, any associations between
peoples and communities or between them and the
state must be based on genuine and continuing
consent, mutual respect and mutual benefit.
Peace cannot exist in states that lack legitimacy or whose
governments threaten the lives or
well being of a section
of the population. The international community,
its members and institutions have an obligation
to act where international law, including
human rights and especially the right to self
determination, is violated. ... Prevention of conflicts requires
proactive measures to persuade states to act in
compliance with international legal standards
towards their citizens, including distinct
peoples and communities that exist within their
borders, and to desist from actions, such as
population transfer or forced assimilation, which
impede the exercise of self-determination.
States must be made to realise that aspirations of peoples
and communities cannot be
ignored.""
Introduction
Self Determination is firmly
established in International Law
The title holders of the right
to self determination
Nations, Indigenous People and
Minorities
Content of the Right to Self
Determination: Internal and External Self
Determination
Consensus: Self Determination in
its Broadest Sense
Self Determination is a Process
with no pre determined outcome
Self Determination is a right of
choice, of participation, and of
control
Self Determination is an ongoing
process
Self determination is a process
for the satisfaction of human needs
Cultural
Identity
Control of Natural Resources
The Indigenous Peoples'
Conception of Self Determination
External Elements of Self
Determination
Secession or Separation from the
State
Self Determination is not an
Absolute Right
The Broad Concept of Self
Determination
Effects of increased
Interdependence, Regionalisation Globalisation
and supra National Structures
The Broad Concept of Self
Determination in International Law
Means of Attainment of Self
Determination
Armed
Conflict
Self Determination as a Means to
Prevent and Resolve Conflicts: Conclusions
Footnotes
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Introduction
The conclusions reached by the
Barcelona
Conference in the course of five days of intense
discussion and debate are very significant. They set
the ground for a constructive and proactive use of the
concept and right of self-determination as an integral
part of conflict prevention and resolution. The
Conference addressed self determination as a
process for the prevention and resolution of
conflicts as well as a core principle for the
substantive resolution and prevention of conflicts.
The Conference participants reached a clear consensus
that the principle and fundamental right of
self-determination is firmly established in
international law. They found that it can contribute
significantly to the prevention and resolution of
conflicts if the right is understood and used in its
broad sense and they agreed on the need to apply it
extensively.
But the participants also recognised the anxiety which
the notion of self determination causes among the
governments of states and intergovernmental
organisations. These institutions fear the application
of this principle because they believe it threatens the
sovereignty and territorial integrity of existing
states and, thereby, has the potential to cause
tensions, conflicts and instability rather than prevent
or resolve them.
The Conference further acknowledged the power of the
notion of self determination in creating often
unrealistic or unhelpful expectations among
communities, especially those that feel deprived or
oppressed.
Many of the armed conflicts that have raged in the
world this century, and the vast majority of those that
have taken place since the end of the Cold War and
continue today centre around peoples' drive to
self-determination, whether explicitly stated as such
or not. Precisely for this reason, the Conference felt
it imperative to explore ways to transform the
perception of self-determination as a contributing
factor or even cause of conflict into the notion of
self-determination as a foundation and instrument for
the effective prevention and resolution of
conflicts.
Of essence to this transformation is the development of
a clearer understanding of the meaning of
self-determination and its possible applications. As
long as self determination means everything to
everyone, the concept will continue to evoke passions,
expectations and fears that are, for the greatest part,
unnecessary, unhelpful and unjustified.
As important as the conclusions that were reached, is
the substance of the discussion that took place. The
participants, all of whom came to the table ready to
contribute their particular expertise, had diverse and
at times strongly held opposing views on issues.
Some participants were people who are directly involved
with struggles for self determination or with conflict
prevention and resolution. Others were officials of
international organisations and academics. No
participant was indifferent to the issues at stake.
Given this background, it is all the more significant
that this diverse expert group came, by means of
extensive and intensive discussion, to a common
understanding and a shared view of self-determination
in the context of conflict prevention and
resolution.
Self-determination is Firmly Established
in International Law
A thorough analysis of the evolution and present status
of self determination leaves no doubt that it is today,
and indeed has been for a long time, a core principle
and fundamental right in international law.
The principle of self-determination is prominently
embodied in Article I of the Charter of the United
Nations. Earlier it was explicitly embraced by US
President Woodrow Wilson, by Lenin and others, and became the
guiding principle for the reconstruction of Europe
following World War I. The principle was incorporated
into the 1941 Atlantic Charter and the
Dumbarton Oaks proposals which evolved into the
United Nations Charter. Its
inclusion in the UN Charter marks the universal
recognition of the principle as fundamental to the
maintenance of friendly relations and peace among
states. It is recognised as a right of all peoples in
the first article common to the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and
Cultural Rights which both entered into force in
19761. Paragraph 1 of this Article provides:
"All peoples have the right to self-determination. By
virtue of that right they freely determine their
political status and freely pursue their economic,
social and cultural development."
The right had already been recognised in 1960 in the
United Nations Declaration on the Granting of
Independence to Colonial Countries and Peoples,
GA Res. 1514 (XV).[1]
The right to self-determination of peoples is
recognised in many other international and regional
instruments, including the
Declaration of Principles of
International Law Concerning Friendly Relations and
Co-operation Among States [2] adopted by the UN General
Assembly in 1970,
the Helsinki Final Act adopted by the
Conference on Security and Co-operation in Europe
(CSCE) in 1975 [3],
the African Charter of Human and Peoples'
Rights of 1981 [4],
the CSCE Charter of Paris for a New Europe
adopted in 1990 [5],
and the Vienna Declaration and Programme of
Action of 1993 [6]
It has been affirmed by the International
Court of Justice in the Namibia case
[7], the Western Sahara case [8] and the
East Timor case [9], in which its erga omnes character was
confirmed.
Furthermore, the scope and content of the right to
self-determination has been elaborated upon by the UN Human Rights
Committee [10] and
the Committee on the Elimination of Racial
Discrimination [11] and numerous leading
international jurists.
That the right to self-determination is part
of so called hard law has been affirmed also by the
International Meeting of Experts for the
Elucidation of the Concepts of Rights of Peoples
brought together by UNESCO from 1985 to1991 [12]. It came to the conclusion
that
(1) peoples' rights are
recognised in international law;
(2) the list of such rights is not very clear, but
also that
(3) hard law does in any event include the right to
self determination and the right to existence, in the
sense of the Genocide Convention.
The Barcelona Conference
concluded that the principle and fundamental right to
self determination of all peoples is firmly established
in international law.
The inclusion of the right to self-determination in the
International Covenants on Human Rights and
in the Vienna Declaration and Programme of
Action, referred to above, emphasises that
self-determination is an integral part of human rights
law which has a universal application. At the same
time, it is recognised that compliance with the right
of self-determination is a fundamental condition for
the enjoyment of other human rights and fundamental
freedoms, be they civil, political, economic, social or
cultural.
The concept of self-determination is a very powerful
one. As Wolfgang Danspeckgruber put it:
"No other concept is as
powerful, visceral, emotional, unruly, as steep in
creating aspirations and hopes as
self-determination."
It evokes emotions, expectations
and fears which often lead to conflict and bloodshed.
According to one participant to the conference, 50
conflicts in the world today are related to antagonism
between claims to self-determination and to state
sovereignty.
Conference participants were
convinced that in most cases it is not the assertion of
claims by oppressed communities but the denial of
self-determination by state authorities which cause
armed conflicts. In order to suggest ways to prevent
and resolve these and related conflicts, the conference
participants explored and discussed various and
sometimes conflicting approaches to the implementation
of self-determination.
Some experts argued that the
title holders should be or are limited in international
law. Others believed in the need to limit the possible
outcome for all or categories of title holders.
Ultimately, the conference agreed that the best
approach is to view the right to self-determination in
its broad sense, as a process providing a wide range of
possible outcomes dependent on the situations, needs,
interests and conditions of concerned
parties.
The Title Holders of the Right to
Self-determination
The international legal instruments on
self-determination refer to the right of self
determination as belonging to "all peoples." Some
participants to the conference argued that in
determining who are title holders to the right of
self-determination the plain meaning of the language
should be taken as the starting point. It is a well
established maxim of international law, contained in
the Vienna Convention on the Law of Treaties
and affirmed by the International
Court of Justice, that terms in international legal
instruments ordinarily are to be interpreted according
to their plain meaning.[13]
The English language Webster's dictionary defines a
people as "the entire body of persons who constitute a
community or other group by virtue of a common culture,
religion, or the like."[14]
A more detailed description was developed in 1989
specifically for the purpose of identifying the holders
of the right to self-determination by the
UNESCO International Meeting of
Experts for the Elucidation of the Concepts of Rights
of Peoples. This description
(sometimes referred to by participants as the "Kirby
definition" after its principal drafter, Justice Michael Kirby), identifies a
people as :
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.[15]
The UNESCO experts further stated
that "the group as a whole must have the will to be
identified as a people or the consciousness of being a
people," the key subjective element common to other
legal definitions of peoples. The people must be of a
certain number, which need not be large but must be
more than "a mere association of individuals within a
state," according to those experts, who also considered
the existence of "institutions or other means of
expressing its common characteristics and will for
identity to be of importance."
The plain meaning of the term
"all peoples" includes peoples under colonial or alien
subjugation or domination, those under occupation,
indigenous peoples and other communities who satisfy
the criteria generally accepted for determining the
existence of a people.
John Packer argued that under
existing international law self-determination extends
only to an entitlement held by peoples under
subjugation suffering colonial, racist and occupying
regimes (as a remedial entitlement) and to the whole
population of all states, in terms of the right to
determine their political status and their economic,
social and cultural development (primordial
entitlement).
This view was not widely shared,
as it was felt that the right to self-determination
under contemporary international law did extend beyond
these limited categories and included groups within the
population of states that are considered "peoples." It
was agreed that many peoples suffer under contemporary
forms of colonialism which do not fit into the
traditional and arbitrary concept of "salt water
colonialism." Indigenous peoples, for example, continue
to suffer from ongoing forms of colonialism or the
consequences of earlier colonialism.
Nations, Indigenous Peoples and
Minorities
It may be important to differentiate between peoples,
nations, indigenous peoples and minorities to the
extent that the entitlements of each group are
distinct.
Nations
The concepts 'nation' and 'people' are closely related
and difficult to distinguish. Thus, the criteria for a
nation can be regarded as similar to those for a
people. One participant described peoples as nations without
a state. Johan Galtung defines a nation as a group
of people that holds certain points in space and time
as sacred. In this analysis, space is the motherland
and time refers to points in history, often trauma.
That definition does not use criteria such as
commonality of language, ethnic identity or shared
religion to identify a nation but gives much importance
to territorial attachment.
Without abandoning the Kirby
criteria, participants agreed on the need to recognise
the importance of symbols and myths which bind and move
people in their identification with a nation or
people.
Michael Keating identified a nation
as a group that makes a claim to self-determination,
not necessarily an ethnic or homogenous group . Quebec,
he argued, is a nation with the right to
self-determination although here the concept of nation
is not an ethnic one. The United States is a
multi-ethnic and multi-cultural nation, but it could be
argued that it is still a nation in formation. Michael
Keating advanced various definitions but argued against
any one clear definition, because in different places
the concept of nation has different meanings, and a
uniform definition could even cause conflict. The
tendency to identify nations as monolithic units,
occupying mutually exclusive territories, is
particularly insensitive to nuances, and was found to
be incompatible with the indigenous perception of
nationhood.
The assumption by some people that states should be
formed on the basis of the distinctness of each nation,
the principle which led to the formation of
nation-states in Europe in the nineteenth century, is
today flawed and can be dangerous. The reality is the
existence of overlapping ethnicities and multiple
identities. Indeed there are very few true
nation-states. At the same time, the concept of the
nation is also a reality, and one with a tremendous
force. Whereas states are created, fall apart or
disappear, nations tend to survive.
This is not to say that some
nations have not been eradicated. A number of first
nations of the Americas, for example, no longer exist
as a result of genocide. The point is that whereas
states are but artificial and pragmatic constructs for
effective exercise of jurisdiction, and whereas many of
them have been imposed by outside colonial powers
without any regard to the geographic, ethnic or
historical realities, nations are an ancient and deeply
felt reality which binds people from generation to
generation and survives changes in boundaries and
rulers.
Many nations have survived
concerted efforts to eliminate their distinct
existence. Thus, for example, after centuries of
systematic efforts by the French state authorities to
absorb all national groups and eradicate their
distinctive identities in order to create a French
national identity, the Breton, Corsican, Alsacian and
Basque nations continue to exist.
Indigenous Peoples
From the indigenous perspective the term "indigenous
peoples" has no intrinsic meaning. It is just a
technical term which allows a number of peoples to
participate, albeit in a limited way, in international
discussions affecting their situation. Indigenous
people identify themselves by the name of their
distinct nation or people: Quechua, Saami, Maori,
Navajo, Naga, Maasai, Papuan etc.
Professor Erica-Irene A. Daes, the
Chairperson-Rapporteur of the United Nations Working
Group on Indigenous Populations is not persuaded that
"there is any distinction between "indigenous" peoples
and "peoples" generally, other than the fact that the
group typically identified as "indigenous" have been
unable to exercise the right of
self-determination."[16]
A "working definition" of indigenous peoples, which
continues to serve as an important reference point in
United Nations debates, was formulated by the Special
Rapporteur of the UN Sub-Commission on Prevention of
Discrimination and on Protection of Minorities,
José Martinez Cobo, in his Study of the Problem of
Discrimination against Indigenous Populations. He
wrote:
" Indigenous communities, peoples
and nations are those which, having a historical
continuity with pre-invasion and pre-colonial societies
that developed on their territories, consider
themselves distinct from other sectors of the societies
now prevailing in those territories, or parts of them.
They form at present non-dominant sectors of society
and are determined to preserve, develop and transmit to
future generations their ancestral territories, and
their ethnic identity, as the basis of their continued
existence as peoples, in accordance with their own
cultural patterns, social institutions and legal
systems." [17]
Whether one uses this definition of indigenous peoples
or other similar ones, the foremost elements are those
of self-identification, and a special attachment to and
priority in time with respect to ancestral
territory.
Minorities
What constitutes a minority is also largely a question
of self-identification. However, the principal elements
in any definition include numerical inferiority,
ethnic, linguistic, cultural or religious
characteristics distinct from those of the rest of the
population of a state and the non-dominant position of
the minority. Many minorities are related to the
population of a kindred state, often a neighbouring
one, but this is not necessarily the case. The
consequence of identification as a minority can be
important, since it is generally understood that
whereas peoples have the right to self-determination
under international law, minorities do not posses such
a right.
The categories just discussed are not necessarily
mutually exclusive, and some groups may evolve from one
category to an other as circumstances change. Thus,
whereas a community may be entitled to the protection
afforded to minorities under the United Nations Declaration on Rights of
Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities, that same group may also
consider itself, and be recognised as, an indigenous
people possessing the rights contained in the ILO
Convention 109 and covered by the draft Declaration on
Rights of Indigenous Peoples.
It should also be noted that some
communities appear to fit none of the categories
precisely and yet contain elements of one or more of
the categories. Kosova, for example, is considered by
some to be an Albanian national minority region within
Serbia, but is not so defined by the Kosovars
themselves. The Albanians of Kosova are part of the
Albanian people and nation (which is greater than the
state of Albania). But Kosova is also a distinct
political entity in its own right with a credible claim
to self-determination.
Whereas there may be fluidity in the categorisation of
communities and population groups, and precise or
inflexible definitions may not do justice to the great
diversity of situations in which these groups find
themselves, it does remain important to define what the
entitlements of these groups are.
Content of the Right to
Self-determination: Internal and External Self
determination
The Conference saw much debate in favour of and in
opposition to making a distinction between the right to
internal and external self-determination. Opposition
was especially strong where such distinction leads to
discrimination in entitlements among categories of
peoples.
By internal self-determination is meant participatory
democracy: the right to decide the form of government
and the identity of rulers by the whole population of a
state and the right of a population group within the
state to participate in decision making at the state
level. Internal self-determination can also mean the
right to exercise cultural, linguistic, religious or
(territorial) political autonomy within the boundaries
of the existing state.
By external self-determination (described by some as
"full" self-determination) is meant the right to decide
on the political status of a people and its place in
the international community in relation to other
states, including the right to separate from the
existing state of which the group concerned is a part,
and to set up a new independent state.
Some participants argued that external
self-determination was an instrument of decolonisation,
which has little applicability under existing
international law beyond that situation and that of
occupied territories. Under this understanding, few
peoples, including indigenous peoples, are entitled to
claim the right to external self determination.
Indigenous peoples, most other peoples and minorities
may, however, claim rights under the rubric of internal
self-determination, according to this view.
In favour of this approach it was argued that the
opposition of states to the application of
self-determination would be reduced and that more
vulnerable groups could exercise a form of
self-determination than is possible under current
international law.
In opposition, it was argued that this approach is
tantamount to saying that there are different
categories of "peoples:" a first class that possesses
the full right to self determination, and a lesser
class which possesses only a limited right to internal
self determination.
The distinction is arbitrary, limits the right of
choice and runs counter to the plain meaning of all
instruments which state that "all peoples" have the
right to self determination, including the right to
"freely determine their political status." It was
pointed out that even using a positivist "hard law"
approach, one comes to the conclusion that there is no
valid international instrument in force today which
makes such a distinction or affirms a right to internal
self-determination.18
It is often pointed out that the International Covenants on Human Rights
affirm the right to internal self determination of the
entire population of states, whereas the Vienna Declaration and Programme of Action
repeats the traditional decolonisation approach. The
distinction, however, is not entirely evident from the
wording of the Covenants and the Vienna Declaration,
but could be derived from the context and legislative
history. The Helsinki Final Act is considered to be
broader in scope because it implies that all peoples
always have the right to internal and external
self-determination. This instrument is limited to
Europe, however.
Without fully resolving these
differences of approach, it was agreed that internal
and external aspects of the right to self-determination
could usefully be distinguished when discussing
particular forms of implementation of the right.
Moreover, it is important to
stress that claims of self-determination do not
necessarily imply claims to secession, indeed, they
generally are limited to demands for rights to be
exercised within boundaries of existing states.
Consensus was also strong on the need for the
recognition of remedial rights to vulnerable groups
such as indigenous peoples and minorities.
Consensus - Self-determination in its
Broad Sense
Self-determination should be understood
or re-cast in its broad sense. If so, it can truly and
profoundly contribute to the prevention and resolution
of conflict. Participants to the conference arrived at
this conclusion after extensive discussion on the
meaning and nature of self-determination. This is
consistent with understanding and placing
self-determination in the overall context of
international law, the principal purpose of which is to
preserve peace, friendly relations among states and
security. It is also the context in which Article 1 of the United Nations Charter
places self-determination.
Self determination is a Process with no
Predetermined Outcome
Self-determination is a process rather
than an outcome. There is, in fact, no one prescribed
outcome for the exercise of self-determination. The
United Nations General Assembly, in its Declaration on Principles of
International Law Concerning Friendly Relations and
Co-operation among States stipulated that [t]he
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 constitutes modes of
implementing the right of self-determination by that
people.
According to the International Court of
Justice, the essential requirement is that the outcome
corresponds to the free and voluntary choice of the
people concerned. [2]
Self-determination is a Right of Choice,
of Participation, and of Control
At its core, self-determination means
simply that human beings, individually and as groups
should be in control of their own destinies and that
institutions of government should be devised
accordingly. It is this idea that promoted the downfall
of classical colonial structures and the abolition of
apartheid and that today promotes democratic reform the
world over.
Self-determination has its roots in and
continues to be inseparably linked to the core concept
of democracy, understood to mean the right to choose
one's rulers and to participate in decision-making.
Rulers of a polity based on these principles govern by
consent of the governed. In this sense, the right to
self-determination is a right of choice and a right of
participation. But the exercise of self-determination
may also involve a choice by a people to be ruled by
the leaders of its own community, whether within the
framework of an existing state or outside that
framework.
Self-determination is an Ongoing
Process
Self-determination should not be viewed
as a one time choice, but as an ongoing process which
ensures the continuance of a people s participation in
decision making and control over its own destiny.
It is this approach, according to Paul
Arthur, which made it possible for Gerry Adams to argue
that although the Northern Ireland agreement concluded
in 1998 does not result in the immediate creation of a
united Ireland, it sets in motion a process of
self-determination in which the parties can work
towards a change of status through democratic political
means. Felix Martin also viewed the process in which
Catalonia is engaged as a dynamic process of
self-determination.
This view makes it possible for
incremental changes to be implemented rather than
forcing parties to agree on definitive changes which
can be too radical for some and insufficient for
others. In this sense, self-determination should not be
regarded as antagonistic to the state or to the
situation in which a people finds itself. Rather, it
should be seen as a process by which parties adjust and
re-adjust their relationship, ideally for mutual
benefit.
Self-determination is a Process for the
Satisfaction of Human Needs
The object of the exercise of the right
to self-determination was formulated in terms of human
needs by Joe Washington. Peoples and communities strive
to gain control over the means to satisfy the human
needs of their members. The most important of these are
the needs for human security and welfare. By security,
in this view, is included economic, health,
environmental, and food security as well as security of
the person from physical violence, communal security
(for example in terms of cultural integrity), and
political security, meaning respect for human rights
and freedoms. Thus, a variety of means, political
structures and arrangements can be conceived which
would satisfy the human needs of communities and their
members.
Johan Henriksen pointed out that such
security exists when the people and its individual
members have both verifiable legal and political
guarantees for the implementation of their fundamental
rights and freedoms, and have the feeling of security
as well. This subjective element is particularly
important at the collective level in the context of
self-determination. Especially for peoples who have
been disfranchised, oppressed or subjected to
deportations, forced assimilation, religious
persecutions etc. the need for security can be a prime
objective in the struggle for self-determination. Care
must, however be taken in the use of the term security
so that it does not serve as a pretext for the military
to take on unwanted roles in the provision of security.
Cultural Identity
Culture, being a core element of
distinctiveness of peoples and other communities, is
often at the centre of a claim for self-determination
when the cultural identity and expression of a
community is suppressed or threatened. Respect for
distinct cultural values and diversity is fundamental
to the notion of self-determination. For some
communities the recognition within the state of the
value and distinctiveness of a group can be an
expression of the implementation of their right to
self-determination. For others, the authority and
capability to exercise full cultural autonomy within a
set territory (or to exercise it in a non-territorial
manner) is an essential component of their exercise of
self-determination.
Control
of Natural Resources
Control, management and, in most cases,
possession of land and the other natural resources on
and in the land can be of crucial importance to a
people or community in its struggle to maintain its
identity, culture, way of life and autonomy. This has
special importance in regard to indigenous peoples
whose bond with the land and natural environment is
especially strong. But other peoples too may derive
their spiritual, cultural or economic strength and
vitality from the land and its natural resources. The
United Nations, in General Assembly Resolution 1803
(XVII), proclaimed the right of peoples and nations to
permanent sovereignty over their natural wealth and
resources, [3] and the International Covenants on Human
Rights affirm, in their common Article 1(2), the right
of peoples to freely dispose of their natural wealth
and resources.
The importance of this aspect becomes
particularly evident where a people is denied the right
to control its land and natural resources by the state.
This is typically the case where those resources have
great economic value. They are then exploited by the
dominant people or elite for their own benefit, for the
state as a whole or to benefit foreign (transnational)
corporations. This exploitation usually results in
major changes to the living environment of the people
whose territory is being used. Sometimes sacred places
are desecrated, pristine forests are destroyed, fertile
lands are ruined, entire villages or towns are
displaced, and communities are no longer able to
maintain their way of life. Stated differently, the
people s right to self-determination is violated in a
fundamental way and sometimes irreversibly.
The Indigenous Peoples Conception of
Self-determination
Indigenous peoples advance their claims
primarily in terms of self-determination. This is often
interpreted as a challenge to the territorial integrity
of existing states, because it is feared that
indigenous peoples want to form their own states.
Underlying this fear is the assumption that the state
is the basic but also the highest form of organisation
to which all communities, including indigenous peoples,
aspire.
But indigenous peoples articulate their
right to live freely and to determine their own destiny
without relating this to the idea of states with
mutually exclusive territories and sovereignties,
according to James Anaya and others. Instead, the
backdrop is interrelationships. Emphasis is not so much
on separation rather, the goal is relations and
connections. Separation in this context is only a
transition to break away the negative, to create new
bonds. [4]
Although the backdrop is different, the
aspirations of indigenous peoples relate to the core
concept of self-determination the need for governing
institutions to exist in such a way as to allow the
people to live freely and determine their own destiny.
The determination of indigenous peoples to change the
situation under which they live today derives from the
experience that the institutions under which they have
been forced to live since they were colonised were
established illegitimately and suppress their ability
to live freely and determine their own destiny.
A central part of the indigenous way of
life and spiritual belief is the maintenance of a
nurturing bond with nature, with Mother Earth which is
the very source of our sustenance. The destruction and
over exploitation of the earth and its resources not
only damages the living environment, but destroys the
ability of the earth to sustain future generations and
violates our duty to protect and care for Mother Earth
and her natural resources.
No one, in this view, owns nature nor
land. It does not exist for the personal benefit or
enrichment of any individual or group, but for the
collective benefit of this and future generations. At
the same time, the human security need of indigenous
peoples always includes proper guarantees concerning
ownership, possession or control over the land and
natural resources. This is because under present
realities the lack of such guarantees makes it
impossible for indigenous peoples to maintain their
fundamental relationship with the land and natural
resources which is at the core of their diverse
cultures.
External Elements of
Self-determination
The external aspect of the right to
self-determination is generally considered to be the
right to separate from the existing state. But there
are other external aspects which are of considerable
relevance to the exercise of a peoples right to
self-determination, but which do not necessarily entail
the creation of an independent state.
A good example is provided by the
importance given by indigenous peoples to the need to
protect and nurture Mother Earth and her natural
resources. This need transcends artificial
administrative and state boundaries. The earth and its
resources cannot be protected by one community if the
they are being subjected to large scale destruction
elsewhere. Indigenous peoples, therefore, consider it
important to participate in the decision making
processes at national and international levels relating
to the conservation of nature or its exploitation.
By the same token, any people or
community may consider it of importance to include in
its exercise of self-determination the authority to
participate in international discussions or be included
in international organisations where decisions are
taken that affect core aspects of their existence and
development.
This could include participation in
economic fora (examples are Tatarstan's separate
representation at international economic conferences
and Hong Kong s separate membership of international
economic organisations), in regional organisations
(examples include the Sami Council's membership in the
Nordic Council and the Circumpolar Conference), global
organisations (the establishment of a Permanent Forum
for Indigenous Peoples within the United Nations system
could be an example of such participation) or in
cultural or religious organisations (Catalonia's desire
to participate in UNESCO could be regarded as an
example).
Peoples may also wish to claim the
right to be included and not excluded from decision
making processes on such vital matters as war and
peace, issues typically reserved for the exclusive
authority of states. There are examples of regions or
communities declaring neutrality or nuclear free zones,
despite the fact that they are part of states with
contrary policies. Exercise of self-determination could
also entail the non-participation of an autonomous unit
in an international organisation of which the state is
a member (an example is provided by the withdrawal of
Greenland from the European Union, of which Denmark
remains an active member).
The perception that only fully
independent states can conduct international
relations and participate in decision making leads to
the interpretation that demands for international
participation by non-independent peoples threatens
the territorial integrity and sovereignty of states
and is even tantamount to separatism.
To be sure, the extent to which
non-independent entities can participate in decision
making at international levels is limited by the
concept of state responsibility in international law.
Under current international law only states are endowed
with legal responsibility and can be held responsible
for the implementation of international treaties.
Nevertheless, non-state entities can be
recognised as representing legitimate interests
internationally without threatening the continued
existence of the state of which they form a part. Thus,
under the constitution of Finland, the Sami not only
have regional autonomy, but their elected body, the
Sami Parliament, also possesses the authority to
represent the Sami community of Finland at the
international level. Similarly, Catalonia and Quebec
have their own representative offices in foreign
capitals for the promotion of tourism and trade.
Secession or Separation from the
State
In the broader context of
self-determination, separation or secession from the
state of which a people forms a part should be regarded
as a right of last resort. Thus, if the state and its
successive governments have repeatedly and for a long
period oppressed a people, violated the human rights
and fundamental freedoms of its members, excluded its
representatives from decision making especially on
matters affecting the well-being and security of the
people, suppressed their culture, religion, language
and other attributes of the identity valued by the
members, and if other means of achieving a sufficient
degree of self-government have been tried and have
clearly failed, then the question of secession can
arise as a means for the restoration of fundamental
rights and freedoms and the promotion of the well being
of the people.
This right could be regarded as
analogous to the right of last resort of rebellion
against tyranny and oppression referred to in the
Preamble to the Universal Declaration of Human Rights.
Peoples and communities may attempt to
secede because independent statehood appears to them to
form the only means of obtaining the level of freedom
and security which they aspire to. In part, this is
because the international legal and political system
does not provide adequate forms of protection and
guarantees to communities that are within the borders
of independent states, regardless of their status
within that state.
Concepts of minority rights, indigenous
peoples right, and human rights have many a time proved
insufficient to protect communities against collective
persecution, exploitation and suppression.
Even genocide, such as that in Rwanda,
and massive armed attacks, such as that in Chechenya,
have taken place without effective action being taken
by the international community.
But the desire for independent
statehood also exists because insufficient attention
has been drawn to the positive experiences resulting
from the implementation of other forms of
self-determination than secession. The more it can be
demonstrated that individual and collective human needs
of communities, especially those for survival and
development within a secure environment, but also for
dignity and international acceptance, can be adequately
guaranteed through arrangements that do not amount to
secession, the more attractive these other options will
become.
Self-determination is not an Absolute
Right
Hardly any right recognised by law is
absolute. This is true also of the right of
self-determination, which is not self-executing nor
unilaterally applicable.
When the right, in the manner in which
it is claimed, clashes with other international legal
principles and rights, all of these rights and
principles should be weighed and balanced, keeping in
mind the overall international law objective of
maintenance of peace and security.
Other rights and principles which may
have to be considered in this process include the
rights of minorities or indigenous peoples and other
peoples and population groups within the territory of
the people claiming the right to self-determination;
the territorial integrity of the state, where a people
s claim may entail separation from it; rights and
obligations to which the parties involved may be bound,
for example, by treaties; and provisions of human
rights law.
Most often, reference is made to
antagonism between the right to self-determination
and the principle of territorial integrity of states.
Participants in the conference remarked
that whereas the principle and right of
self-determination had a profound ethical and moral
basis, this was not the case with the principle of
territorial integrity, which is a legal, political and
pragmatic construct.
On the other hand, the principle of
territorial integrity serves a very important practical
purpose in the overall objective of maintenance of
peace and security, and is based on the principle of
non-interference in the internal affairs of states.
The principle of territorial integrity
is clearly invoked in connection with
self-determination in the Declaration on the Granting of Independence
to Colonial Countries and Peoples ( 1960), the
Declaration on Friendly Relations
(1970), and most recently in the Vienna Declaration and Programme of Action
(1993). The latter Declaration (which uses
virtually the same language as the Declaration on
Friendly Relations) recognises the right of all peoples
to self-determination but states that this shall not be
construed as authorising 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 and thus possessed of a
Government representing the whole people belonging to
the territory without distinction of any kind.
(Emphasis added).[5]
This paragraph imposes a requirement of
legitimacy on a state invoking the principle of
territorial integrity against a self-determination
claim which threatens that integrity. This means that a
state that oppresses, destroys or unduly exploits a
people or community instead of protecting it or
representing its interests has no legitimate right to
invoke the principle of territorial integrity against
that people or community. A state that gravely violates
its fundamental obligations to its citizens loses the
legitimacy to rule over them. This also applies with
respect to a state's obligations towards a distinct
people or community within its boundaries.
Jose Ramos-Horta concluded that the
maintenance of territorial integrity lies in the hands
of the governments in power. By accepting its
obligations, including full respect for the right to
self-determination with all its consequences, and
engaging in dialogue with all sectors of society, a
government can maintain the territorial integrity of
the state or ensure that peaceful change occurs in a
manner beneficial to the state.
Self -determination also imposes
responsibilities on the claimants to respect the human
rights, including the rights of minorities and
indigenous peoples and of other peoples and communities
within their jurisdiction, and to constructively
resolve problems that arise from the implementation of
the right.
The Broad Concept of
Self-determination
| "...All too
often self-determination is a right to be
defended in lofty terms when it is politically
advantageous and to be rejected when it is not...
whatever answer the statesman or the philosopher
may give to this question, the working answer is
presumably the same: if other peoples, no better
qualified for it than we, have been allowed to
clutter up the international stage, why should a
new set of rules now suddenly be invoked to deny
us our equal right?" - Rupert Emerson in From Empire to
Nation - The Rise of Self-Assertion of Asian and
African Peoples, 1964 |
The above analysis results in a concept
of self-determination which is much broader and more
flexible and complex than a definition which limits
self-determination to separation. Understood this way,
self-determination need not threaten the territorial
integrity of states and can be quite compatible with
its preservation. The major obstacles to an
understanding and acceptance of this concept of
self-determination are attachment to the dogmatic
concept of the nation state, the extreme notion of
sovereignty as an exclusive attribute of independent
statehood, and territorial fixation.
Application of the broad concept of
self-determination can lead to numerous arrangements in
relations between states and population groups within
those states tailored to the precise needs of the
parties concerned. These arrangements can have
territorial dimensions but also non-territorial
functional ones. They can have internal but also
external components.
In developing appropriate arrangements,
the most important attributes are creativity and
flexibility and a profound understanding of what the
people claiming self-determination seek to achieve in
concrete terms, and what the vital legitimate interests
of other parties concerned are.
It is helpful not to be limited by
traditional concepts of statehood in developing
solutions appropriate to each specific case. It is
also essential to develop forms of self-determination
which provide sufficient guarantees for the long term
effective implementation of agreements that are
arrived at.
John Packer explained how the OSCE High
Commissioner on National Minorities approached the
question of division of jurisdiction between the
Ukrainian state and the Crimean autonomous republic.
Instead of exploring what could fall within the
jurisdiction of the Crimean authorities, the High
Commissioner chose to work backwards from what would
reasonably not be within their jurisdiction.
He found only four subject-matters
national defence, monetary policy, maintenance of
national frontiers, and certain aspects (not all) of
international diplomacy (including notably the
capacity to be held responsible at international
law). [6]
Other creative examples include
the Philippines Indigenous Peoples
Rights Act (1997);
provisions of the Finnish Constitution relating to
the territorial and functional autonomy of the Sami
people;
Greenland home rule, which has far reaching internal
and external aspects;
the Nunavut arrangement in Canada with respect to the
Inuit people, who now have a separate government,
including a representative assembly, an executive
branch, a court and a civil service and a limited
capacity to engage in international diplomacy;
the territorially based autonomy of the Kuna Yala in
Panama, which recognises and incorporates indigenous
institutions of leadership and provides for
protection of the virgin forests which form the basis
for the Kuna way of life; and
the Chittagong Hill Tracts accords which, if
implemented properly, could provide a considerable
degree of self-government to the indigenous peoples
of this region of Bangladesh.
Johan Galtung suggested models of
confederation of autonomies of peoples of the same
nation (e.g. Kurds or Mayans) across the boundaries of
the different states in which they find themselves, in
ways that would not affect the territorial integrity of
the respective states.
Northern Ireland provides a recent very
creative example which allows for multiple identities
that have been de-linked from the limiting concept of
territory and exclusive jurisdiction.
Effects of Increased Interdependence,
Regionalisation, Globalisation and Supra-national
Structures
The increased interdependence in
economic, environmental and political spheres of all
states has resulted in a dilution of the traditional
notion of state sovereignty. State sovereignty is also
being eroded by the growth of free market economies and
the increasingly important role played by some 18,000
to 20,000 non-governmental organisations (NGOs) world
wide.
A factor in the development of
arrangements for autonomy and self-governance and other
expressions of self-determination may be the role of
supra-national institutions, such as the European
Union, the North American Free Trade Area and the
Commonwealth of Independent States. These kinds of
institutions and international agreements have the
effect of breaking the monopoly of the state.
Sovereignty is no longer exercised
exclusively by the state, but also by supra-state
bodies. Together with this, the progress of democracy
and increased relevance of human rights all strengthen
the potential for the expression and realisation of the
right of self-determination in its broader sense.
On the other hand, the current
domination of world affairs by the United States and
the growing globalisation, which increases the
concentration of power in very few hands, could have a
negative impact on a greater acceptance of
self-determination.
The Broad Concept of Self-determination
in International Law
Although, as stated above, the
Conference reached full agreement on the incorporation
of the right to self-determination in international
law, there was considerable discussion among
participants on whether the broad interpretation of the
right to self-determination is also recognised in
international law.
One view articulated was that
international law today only recognises the right to
self-determination of a narrow category of peoples,
namely those under colonial or alien domination and
subjugation or racist regimes. This form of
self-determination, it was argued, entails the right to
form a separate state. Other arrangements, such as
regional or functional autonomy do not fall within the
legal concept of self-determination and should
therefore be handled under other rubrics. Such
arrangements fall within the exclusive jurisdiction of
the state, and are therefore not a matter of
international law. It is for the authorities of the
state alone, without external interference, to define
the form of self-government or other arrangements.
The other view presented was that the
broad concept of self-determination is accepted under
international law and that its implementation does not
fall exclusively within the domestic jurisdiction of
the state but, on the contrary, is very much the
concern of the international community. In the first
place, it is argued, international instruments, in
particular the Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among
States, state that the modes of implementation of
the right to self-determination extend beyond the right
of secession. The Declaration states
"the establishment of a sovereign an
independent State, the free association or
integration with an independent State or emergence
into any other political status freely determined by
a people constitute modes of implementing the right
to self-determination by that people."
This language clearly covers autonomy,
self-government and any other arrangements whether
within the framework of the state or not. Since
self-determination is part of the human rights law, as
was stated earlier, it is by definition not a matter
that falls exclusively within the domestic jurisdiction
of states, but is very much a matter of international
responsibility and concern.
In the second place, international law
is constantly evolving, and state practice as well as
the opinion of international law publicists and
scholars (which are also considered valid sources of
international law) increasingly interpret
self-determination to include forms of self government,
autonomy and other arrangements within the framework of
the state.
The many self-government and autonomy
arrangements implemented within states, such as those
relating to Greenland, the Innuit, the Kuna Yala and
other cases described elsewhere in this publication,
attest to an evolving state practice which views
self-determination as including these arrangements.
This view is supported by the current
language of the draft Declaration of Rights of
Indigenous Peoples, which has been adopted by the
Working Group on Indigenous Populations and by the UN
Sub-commission on Prevention of Discrimination and
Protection of Minorities. Article 31 of this draft
declaration states that
"Indigenous peoples, as a specific
form of exercising their right to self-determination,
have the right to autonomy or self-government in
matters relating to their internal and local affairs,
including culture, religion, education, information,
media, health, housing, employment, social welfare,
economic activities, land and resource management,
environment and entry by non-members, as well as ways
and means for financing these autonomous
functions."
Article 31 is not regarded as a
qualification of the right to self-determination (as
recognised in Article 3 of the same draft Declaration)
but as a particular way of implementing it with regard
to indigenous peoples.[7]
In order to promote acceptance and
application of the broad concept of self-determination
--which all participants felt to be an important step
in preventing the outbreak of armed conflict-- it was
stressed by some that it is important to highlight the
emerging customary law in this regard.
Means of Attainment of
Self-determination
The exercise of self-determination
requires, by its very nature, the expression of the
will of the people. This can be conceived of in terms
of one or more well defined acts or by ongoing
processes of consultation, participation and inclusive
decision making.
The holding of a referendum in order to
establish the will of the people with respect to a
change of status and other matters is a widely accepted
act of self-determination.
Difficulty arises, especially in
referenda on issues related to territorially based
rights, in areas which the community wishing to
exercise self-determination shares with other peoples
and communities.
Where those other inhabitants are
settlers, it was felt by many of the participants to
the conference that they should not be entitled to take
part in such referenda. This is particularly true where
settlers have been moved to indigenous regions or
encouraged to do so under a government program aimed at
changing the demographic composition of the region in
question.
Such practices, whether overt or
covert, have caused many peoples to be reduced to a
numerical minority in their own homelands. Western
Sahara, New Caledonia, but also West Papua, Hawaii,
Zanzibar and Tibet were mentioned as examples of
regions where large numbers of settlers have changed
and continue to change the demographic balance.
In these cases, a referendum in which
all inhabitants have equal voice can not be deemed to
be an act of self-determination by the aggrieved
people. A case in point is the referendum in the
Western Sahara which is now scheduled to take place in
December of 1999. The United Nations has decided that
persons transferred to the region or encouraged to move
there by the Moroccan government, since 1975, do not
have the right to vote in the referendum.
Implementation of self-determination
does not necessarily require a one time act. The will
of the people can be effected within a democratic
system by use of the existing institutions of the
state. This assumes a truly democratic fully
participatory system, not one that limits the concept
of democracy to decision by the numerical majority.
Where only votes count, a people or community which is
numerically inferior, has no control over its
destiny.
Self-determination can also be realised
through one or more processes of negotiation, dialogue,
and the conclusion of agreements between the state
authorities and representatives of the people
concerned. Sometimes the assistance of third parties
can be useful in such processes.
The good offices of the United Nations
Secretary General and others have been used, most
recently in advancing the peace process in
Bougainville. Dialogue at the community level is just
as important in a self-determination process. This was
undoubtedly an important factor in making the Northern
Ireland peace accords possible. Both in Bougainville
and in the Basque country, major initiatives are also
under way to build consensus among the people through a
very inclusive processes of dialogue and consultation
among all sectors of society as primary instruments of
self-determination. The act of self-determination is
not reduced to a referendum, but is seen as an
integrated process of which the referendum is but one
element.
There are few well defined procedures
for adjudication of claims for self-determination or
for their implementation. This is part of the reason
why so many disagreements over self-determination lead
to armed conflicts.
The International Court of Justice has
rendered judgements and advisory opinions on issues
involving self-determination, notably in the case of
the right of Sahrauis to self-determination, but it has
no ability to enforce its decisions. Other
international judicial avenues include the
Inter-American Court of Human Rights and the European
Court of Human Rights.
To the extent that self-determination
claims involve demands for the respect of human rights
or rights of minorities, the procedures of the United
Nations Human Rights Committee, the Committee on
Economic, Social and Cultural Rights and the Committee
on the Elimination of Racial Discrimination can provide
avenues for addressing them. The UNESCO procedure on
cultural rights can also provide a useful avenue. But
these bodies also lack the means to enforce any
decision.
What is lacking is an effective
international body, for example within the United
Nations system, which adjudicates claims to
self-determination and is mandated to actively assist
in ensuring its peaceful implementation. The state of
Liechtenstein, at the initiative of its Head of State,
H.S.H. Prince Hans Adam II, presented a draft
convention on self-determination through
self-administration for consideration by the United
Nations General Assembly in 1993. That proposal does
contain provisions for procedures and structures to
assist in the peaceful implementation of
self-determination. Unfortunately it has thus far
received no meaningful support from UN member
states.
Armed Conflict
In all regions of the world conflicts
turn violent over the desire for full control by state
governments, on the one hand, and claims to
self-determination (in a broad sense) by peoples,
minorities or other communities, on the other. Where
governments recognise and respect the right to
self-determination, a people can effectuate it in a
peaceful manner. Where governments choose to use force
to crush or prevent the movement, or where they attempt
to impose assimilationist policies against the wishes
of a people, this polarises demands and generally
results in armed conflict.
The Tamils, for example, were not
seeking independence and were not using violence in
the 1970s. The government response to further deny the
Tamil people equal expression of their distinct
identity led to armed confrontation and a war of
secession.
The tendency of the international
community to accept self-determination primarily when
presented with a fait accompli, and to give attention
to conflicts only when they turn violent, encourages
violence and penalises those who attempt to use
peaceful and democratic means.
In many cases self-determination
struggles turn into armed conflicts.
A case in point is the thirty year
struggle of Eritrea. The inaction of the United Nations
and its members left Eritreans no choice. The Albanians
of Kosova, under the inspired leadership of Ibrahim
Rugova, have tried for a decade to obtain the necessary
international support in keeping their movement
non-violent. The issue was taken seriously abroad only
once armed conflict finally did brake out. The
conflicts in Abkhazia (which was not triggered, as
often assumed, by a claim to secession) and in
Chechenia (initiated by a massive Russian military
attack) received serious attention only when the
horrors of war were displayed on television screens
world wide.
Despite the attention, however, the
issues at the base of these conflicts remain
unresolved. At the same time, it should be recognised
that some armed struggles, such as that of the Gagauz
of Moldova and of the Jummas in the Chittagong Hill
Tracts, have led to agreements for a considerable
measure of autonomy.
Even if self-determination is achieved
after an armed struggle, the armed conflict does not
itself secure its realisation. Armed confrontation is
often perceived as a necessary element of struggle and
can force an unwilling party to the negotiating table,
but a lasting solution rarely comes from it, even from
victory. Here too, for a lasting solution a mutually
satisfactory agreement must be reached through
dialogue.
Many industrialised and other countries
support corrupt dictators and other repressive regimes
to safeguard their own economic or political interests.
This, together with the unscrupulous sale of arms to
them and to equally repressive non-state actors,
reinforce the conditions for armed conflict within
states.
Self-determination as a Means to Prevent
and Resolve Conflicts: Conclusions
Conference participants were convinced that the
increased acceptance of self determination in the broad
sense, as a right which can be exercised by democratic
means and through dialogue and which does not in most
cases necessitate the break up of a state, would be a
major contribution to the prevention and resolution of
conflicts.
Real prevention should not be aimed at the
maintenance of the status quo, but at ways to allow for
change to occur peacefully. This requires the
development of a culture of self-determination, as it
were, where self determination is seen as a necessary
and positive process of human emancipation and a
corollary to democracy, in which people take greater
responsibility for their community.
At the same time, the traditional notion of the
nation state needs transformation.
Sovereignty must no longer be understood to be the
exclusive prerogative of the central authorities of the
state, but, rather, a collection of functions that can
best be exercised at different levels of society,
depending on the nature of decisions that need to be
made and the manner of their most appropriate
implementation.
Prevention requires the promotion of dialogue,
consultation and other processes to ensure that peoples
exercise their right to self-determination, in the
broad sense developed at this conference, by peaceful
and democratic means. In this context, the present
inadequacy of institutions and processes that permit
dialogue and promote the resolution of demands for
change urgently needs to be addressed.
Non-state actors, including transnational or
national corporations, international organisations,
organised communities, political movements and
individuals must be made accountable for their actions
which too can ignite conflict, oppress people, or
result in the denial of the right to
self-determination.
In such a culture of self-determination, states and
other actors should gain prestige by being in
compliance with the principle of self-determination and
other human rights. There are already today some
examples of states that use their compliance (or
alleged compliance) with the principle of
self-determination as a source of prestige for their
own political gain. Thus, the Prime Minister of Belize
spent an inordinate amount of time at the most recent
UN General Assembly to explain his government's
policies towards the indigenous Mayan people in his
country. Spain boasts about its enlightened policy with
regard to the autonomy of Catalonia, and Panama loses
no opportunity to gain praise for its conduct of
relations with the Kuna Yala. This trend should be
encouraged while at the same time states should be held
to task for what they say.
For peace, security and stability to exist, any
associations between peoples and communities or between
them and the state must be based on genuine and
continuing consent, mutual respect and mutual benefit.
Peace cannot exist in states that lack legitimacy or
whose governments threaten the lives or well being of a
section of the population. The international community,
its members and institutions have an obligation to act
where international law, including human rights and
especially the right to self determination, is
violated.
The time to act is always now, not when a conflict
is "ripe" for resolution, as some would have it.
Prevention of conflicts requires proactive
measures to persuade states to act in compliance with
international legal standards towards their citizens,
including distinct peoples and communities that exist
within their borders, and to desist from actions, such
as population transfer or forced assimilation, which
impede the exercise of self-determination. States must
be made to realise that aspirations of peoples and
communities cannot be ignored.
Footnotes
1
United Nations Declaration on the Granting of
Independence to Colonial Countries and Peoples,
GA Res. 1514 (XV)
2
Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation Among
States in Accordance with the Charter of the United
Nations, GA Res. 2625 (XXV).
3
International Legal Materials Vol. 14, p. 1292
(1975).
4
Adopted 27 June 1981, International Legal Materials
Vol. 21, p. 59 (1982).
5
International Legal Materials Vol. 30, p.193
(1991).
6
Adopted by the World Conference on Human Rights, UN
Department of Public Information (New
York,1995.)
7
1971 ICJ 16
8
1975 ICJ 12
9
1995 ICJ 102
10 1984. UN doc.
HRI/GEN/1/Rev. 3.
11 1996 UN doc.
CERD/C/49/CRP.2/Add.7.
12
See above, under
section "Context of the Conference," for
details.
13 See Vienna Convention on the Law of Treaties,
Art. 31, para. 1, 1155 U.N.T.S. 331. Competence of the
General Assembly for the Admission of a State to the
United Nations, Advisory Opinion, 1950 ICJ 4, 8 ("If
the words in their natural and ordinary meaning make
sense in their context, that is the end of the
matter").
14 Webster's Collegiate
Dictionary (Random House ed., 1955), p.1000.
15 UNESCO,
International Meeting of Experts on Further Study of
the Concept of the Rights of Peoples: Final Report and
Recommendations UNESCO doc. SHS-89/CONF.602/7, pp.
7-8.
16
Quoted in John Henriksen, Implementation of the
Right to Self-determination of Indigenous Peoples
Within the Framework of Human Security, p. 8,
prepared for this Conference and included in this
publication.
17 José Martinez Cobo, Study of the
Problem of Discrimination Against Indigenous
Populations, E/CN.4/Sub.2/1986/7/Add.4,para
379.
UNESCO International Conference of Experts
Organised by the UNESCO Division of Human
Rights, Democracy and Peace and the UNESCO Centre of
Catalonia - Barcelona, 21-27 November 1998 The email
copy of this report corresponds to pp. 13-37 of the
volume of conference proceedings published as: M. van
Walt & O. Seroo (Ed.) The Implementation of the
Right to Self-Determination as a Contribution to
Conflict Prevention. Report of the International
Conference of Experts held in Barcelona from 21 to 27
November 1998, UNESCO Division of Human Rights,
Democracy and Peace & Centre UNESCO de Catalunya.
Centre UNESCO de Catalunya, 1999. ISBN 84-920375-9-8.
288 pp ( http://www.unescocat.org/pubang.html
) © 1999 Centre UNESCO de Catalunya
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Participants
- AMORIM DIAS, Jose Antonio
(UNPO)
- ANAYA, James (Indian Law
Ressource Centre)
- ARGEMÍ, Aureli
(CIEMEN)
- ARTHUR, Paul (Magee
College, Northern Ireland)
- CARDÚS, Salvador
(Autonomous University of
Barcelona)
- CASARES, Francesc
(President of the Catalan Commission for the
50th Anniversary of the Universal
Declaration of Human Rights)
- CASTRO, Estebancio (UN
Office of the HCHR, Geneva)
- CLAVORA, Ferruccio
(Director of "Ente Friuli nel
Mondo")
- DANSPECKGRUBER, Wolfgang
(Liechtenstein Research Programme on
Selfdetermination, Princeton
University)
- FERNÁNDEZ, Jonan
(Elkarri)
- FISAS, Vicenç (UNESCO Chair
on Peace & Human Rights)
- FOSSAS, Enric
(Autonomous University of
Barcelona)
- GALTUNG, Johan (Director
TRANSCEND)
- HAMID, Seif Sharif (CUF
Party, Tanzania; Chairman General Assembly of
the UNPO)
- HENRIKSEN, John
(Indigenous Team, UN Geneva)
- JAUREGUI, Gurutz
(University of the Basque
Country)
- KAY-TRASK, Haunani
(KaLahui Hawai'i; University of
Hawaii)
- KEATING, Michael
(University of Western Ontario)
- LARA, Sebastian
(INKARRI)
- MARTÍ, Fèlix
(Director, UNESCO Centre of
Catalonia)
- MIRIORI, Martin
(Secretary, Bougainville Interim
Government)
- ORTEGA, Paul (UNESCO
Centre of the Basque Country)
- PACKER, John (Legal
Advisor to the OSCE High Commissioner on
National Minorities)
- PUIG I SCOTONI, Pau (PhD
in History Lund University)
- RAMOS HORTA, José (Nobel
Peace Prize Laureat 96)
- RENYER, Jaume (Rovira i
Virgili University)
- RUPESINGHE, Kumar
(Director, State of the World-Forum -
London)
- SHUKRIU, Edi (Dr. and
Professor in History, University of
Pristina)
- SIDATI, Mohamed
(Minister-Adviser of the Presidence of the
RASD)
- SPOTTORNO, Carlos
(Secretary General, Spanish Commission for
UNESCO)
- SYMONIDES, Janusz
(UNESCO Division of Human Rights, Democracy
& Peace)
- TAHIRI, Edita (Foreign
Relations Advisor to President Ibrahim
Rugova, Kosova)
- TANGGAHMA, Leonie (West
Papua Peoples' Front)
- TE AROHA WHARE, Tracey
(UN Office of the HCHR, Geneva)
- VAN WALT, Michael (Peace
Action Council)
- WASHINGTON, Joe L.
(SIM-Utrecht University)
- WIN, Myo (V-Pres, Shan
Democratic Union)
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