Wright - Minority Groups, Autonomy and Self-Determination

Minority Groups, Autonomy, and Self-
Determination
JANE WRIGHT∗
Abstract—Although this decade has seen a growing focus on the issue of minority
rights at both political and legal levels, accompanied by states’ accession to a range
of international instruments, the collective dimension to minority rights continues
largely to elude both legal and academic treatment. This paper argues that autonomy
for minority groups is an appropriate mechanism through which a state’s obligation
to afford a right of self-determination to all its peoples may be fulfilled. Autonomy
is the counterweight to the ‘group rights’ already enjoyed by majority populations.
Moreover, an argument can be made that the concept of ‘self-determination’ as
propounded by the UN Declaration on Friendly Relations requires that positive
steps are taken to redress the imbalance between majority and minority populations
which is caused by the domination of national institutions by the majority culture.
The juridical status of the Declaration on Friendly Relations is considered, as well
as the steps which have been taken by states to address the minorities’ issue.
1. Introduction
Writing in 1990, Hurst Hannum remarked that, ‘there has been relatively little
substantive development of international law [relating] to minorities since 1945’.1
In contrast, the last eight years have witnessed a plethora of instruments at the
international, regional and bilateral levels,2 all dealing with minority issues, a
development which could not have been anticipated during the cold-war period.
The issue of minority rights, driven by a fresh political imperative,3 particularly
in what have been described as the ‘transitional’ democracies of Central and
Eastern Europe, is being addressed through a variety of methods. The aim of
∗ Department of Law and Human Rights Centre, University of Essex. Thanks are due to my colleague Geoff
Gilbert for his comments on an earlier draft.
1
H. Hannum, Autonomy, Sovereignty, and Self-Determination (1990) 69.
2
For example, The Document of the Copenhagen Meeting of the Conference on the Human Dimension of
the CSCE (1990), the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and
Linguistic Minorities (1992), the Framework Convention for the Protection of National Minorities (1995) and,
at the bilateral level, a number of treaties on Friendly Relations (see below).
3
The desire to become a member of the EU: see the Pact on Stability in Europe. The Stability Pact requires
aspirant members of the EU to confront and resolve the problems with their neighbours in all aspects, including
national minorities. Thus, para 6 of the Stability Pact provides:
In order to support better their progress towards accession [to the EU] and to guarantee better the strengthening
of peace, stability, democracy, cooperation, and prosperity in Europe, we have deemed it essential to overcome
the problems inherited from the past. In this spirit, work has focused on the intensification by participating
States of good-neighbourly relations in all their aspects, including those related to national minorities.
 1999 Oxford University Press
606 Oxford Journal of Legal Studies VOL. 19
this article is to consider what is, perhaps, the thorniest issue in this field,
autonomy.
Autonomy as a vehicle for the administration of minority rights is far from
being a new idea. History reveals a list of instances where minorities have enjoyed
different forms and varying degrees of autonomy, ranging from the millet system
of the Ottoman Empire4 to the 1925 Law of Cultural Autonomy in Estonia.5
More recent examples include the devolution of power to a Scottish Parliament
and the transfer of responsibilities to the Welsh Assembly. For the most part,
the tools employed to deal with the issue of minorities in the spectrum of
instruments promulgated in recent years are properly characterized as individual
human rights. Steps have been taken, however, in the non-justiciable sphere, to
address the situation of the minority group as a collective. Thus, for example,
Article 1 of the UN Declaration on the Rights of Persons Belonging to National
or Ethnic, Religious, and Linguistic Minorities provides that:
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 legislative and other measures to achieve those ends.
International law continues to fight shy of addressing, in terms, perhaps the

most difficult questions in relation to minorities: first, whether the minority
group as such, should be the beneficiary of justiciable minority rights; secondly,
whether a minority should have rights of autonomy; and, finally, the nature of
the relationship between autonomy and self-determination. This paper argues
that autonomy should be regarded as a constructive tool by which the proper
aspirations of minority groups may be realized. Moreover, autonomy reflects the
principle of ‘equality’ of peoples and is a vehicle through which the obligation
on states to respect the right of self-determination may be fulfilled. As the
Charter of the United Nations declares at Article 1(2), one of the purposes of
the UN is:
To develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, and to take other appropriate measures to
strengthen universal peace.
4
See F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious, and Linguistic Minorities (1977)
at para 6; P. Longworth, The Making of Eastern Europe (1997) at 253; H. Poulton, Who Are the Macedonians?
(1995) at 26–47; S. J. Shaw, History of the Ottoman Empire (1977) vol. I, esp. 151–3; B. Jelavich, History of the
Balkans ( 1983) at 48–62.
5
See A. Lijphart, ‘Self-Determination versus Pre-Determination of Ethnic Minorities in Power-Sharing Systems’
in W. Kymlicka (ed.), The Rights of Minority Cultures (1995) at 283. Under the 1925 Law of Cultural Autonomy
in Estonia, ethnic minorities with at least 3000 registered members had the right to establish autonomous
institutions headed by cultural councils. The councils received public funding for minority schools and other
cultural institutions such as libraries and theatres. Lijphart quotes Georg von Rauch who wrote, ‘these cultural
authorities soon proved their worth, and the Estonian government was able to claim, with every justification, that
it had found an exemplary solution to the problem of its minorities’, G. von Rauch, The Baltic States: Estonia,
Latvia, Lithuania–The Years of Independence 1917–1940 (1974) at 141–2 cited in A. Lijphart, ibid.
WINTER 1999 Minority Groups, Autonomy, and Self-Determination 607
Autonomy may take a number of forms, and it is the denial of appropriate forms
of autonomy which may lead to legitimate calls for secession. In the modern,
ethnically complex state, autonomy (which should not necessarily be linked to
notions of territorial autonomy) in some degree, is a prerequisite if the undisputed
obligation on states in international law to respect the right of all peoples to self-
determination is to be observed. The problem with autonomy is that the notion
in itself is inflammatory,6 and any movement in that direction is frequently
perceived as a threat to the territorial integrity of the state. Territorial autonomy
can readily be seen in this light, but there are other forms of autonomy,7 such
as power-sharing arrangements8 which on a proper view are no more than a
legitimate aspect of the democratic governance to which all human beings are
entitled today.9 It will be argued that, although international instruments are
largely silent on the subject of ‘autonomy’, much is said about the principle of
equality of peoples and the right of self-determination of peoples. In this context,
arguments about whether minorities are peoples may be used to obscure the
nature of the state’s obligation and indirectly support majoritarian forms of
government. Distinctions drawn between ‘minorities’ and ‘peoples’ are more
apparent than real and are self-evidently driven by political considerations rather
than functional reality.
Autonomy, in its ordinary meaning of ‘control’, over issues of concern to
minority groups affect the collective dimension of group existence. If a ‘right’
to autonomy is to exist, it must exist in favour of the group: it will be the group
which seeks to assert control over, for example, religious, linguistic or educational
institutions and budgets. Individuals may seek to enjoy the cultural dimension
brought to their lives by the flourishing of such institutions, but they do not seek
to control them: that is a group matter. However, whilst there are signs of change,
international law seems reluctant to confront the issue of collective rights for
minorities.
The purpose of this article is fourfold: to outline the protection currently
afforded by international law to members of minority groups and, moreover, to
consider the effect of such rights vis à vis the minority group qua group; secondly,
to argue in support of the notion of autonomy for minority groups, the nature
and scope of such autonomy to be variable according to the circumstances of
the relevant minority group; thirdly, to consider whether there is an emerging
trend towards collective rights for minorities; and, finally, to consider whether
autonomy, properly understood, should be regarded as an aspect of ‘internal’
6
See H. Klebes, ‘The Council of Europe’s Framework Convention for the Protection of National Minorities’,
16, no. 1–3 HRLJ, at 96 where he observes, ‘[T]here is a widespread fear of the spiral “cultural autonomy,
administrative autonomy, secession”’.
7
See, for example, H. J. Steiner and P. Alston, International Human Rights in Context (1996) at 991, the
provisions on self-government for national and ethnic minorities contained in the Hungarian Act LXXVII of 1993
on the Rights of National and Ethnic Minorities, and Article 11 of Recommendation 1201, which speaks of
‘appropriate local or autonomous authorities’.
8
For example, the consociational model of the Belgian constitution.
9
See T. Franck, ‘The Emerging Right to Democratic Governance’, 86 AJ IL 46 (1992).
self-determination. It will be argued that, first, a corollary of the right of self-

determination in accordance with the principle of equality of peoples is the
granting of autonomy to minority groups and, secondly, that autonomy may be
instrumental in securing democratic governance for minority groups within a
state.
2. Rights for Members of Minority Groups—

The Individualist Approach
In order to locate minority rights in international law, a convenient starting point
is the well-known Article 27 of the International Covenant on Civil and Political
Rights (ICCPR) which provides that:
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 practise their own religion,
or to use their own language.
Neither the ICCPR, nor international law generally, has provided a definition
of who, or what, constitutes a minority.10 How can the rights ascribed be claimed
and exercised in the absence of defined criteria which identify the beneficiary of
the right?11 What is clear, is that Article 27 is a right of individuals, and the
nature of the rights embraced is essentially cultural. The minority group, qua
group, is not within the purview of Article 27, the rights to enjoyment of culture,
religion, and language being expressly acknowledged in favour of the individual
members of the group.
10
In Europe, the term ‘national minority’ is used in international instruments. There is no definition of a
‘national minority’ either, an expression which is capable of bearing a number of meanings: see J. Wright, ‘The
OSCE and the Protection of Minority Rights’, 18 HRQ 190 (1996); and G. Gilbert, ‘The Council of Europe and
Minority Rights’, 18 HRQ 160 (1996). Space does not permit elucidation here. The OSCE commitments are
likewise framed with reference to national minorities and, similarly, no definition features anywhere in the OSCE
documentation. However, the High Commissioner on National Minorities, an instrument of early warning and
conflict prevention created by the OSCE, has stated that he knows a national minority when he sees one (keynote
address to the CSCE Human Dimension Seminar on Case Studies on National Minority Issues; see R. Brett and
E. Eddison, Papers in the Theory and Practice of Human Rights, No. 6). The only instrument which does contain a
definition of national minority is Recommendation 1201 of the Parliamentary Assembly of the Council of
Europe–according to Article 1, a ‘national minority’ is a group of persons in a state who:
a. reside on the territory of that state and are citizens thereof;
b. maintain long-standing, firm, and lasting ties with that state;
c. display distinctive ethnic, cultural, religious or linguistic characteristics;
d. are sufficiently representative, although smaller in number than the rest of the population of that state or of a
region of that state;
e. are motivated by a concern to preserve together that which constitutes their common identity, including their
culture, their traditions, their religion or their language.
Recommendation 1201 was rejected by the Committee of Ministers as being too far-reaching (it included in
Article 11a right of autonomy), but it is not without legal effect: see Klebes, above n 6, and the bilateral treaties
between the Slovak Republic and Hungary, and Hungary and Romania, discussed below.
11
On problems of definition see, generally, P. Thornberry, International Law and the Rights of Minorities (1991);
G. Gilbert, ‘The Legal Protection Accorded to Minority Groups in Europe’, 23 Neth YB Int’l L 67 (1992); J.
Packer, ‘On the Definition of Minorities’ in J. Packer and K. Mynttti (eds), The Protection of Ethnic and Linguistic
Minorities in Europe (1993).
Furthermore, it has been remarked that, ‘[c]onceptually, international law
struggles with definitions of actors beyond the “State” ‘.12 Historically, this is
true, but it is equally true that international human rights law has penetrated
the bastion of State sovereignty to such an extent that there has been a ‘progressive
erosion’13 of the concept of non-intervention as enshrined within Article 2(7) of
the UN Charter. The Vienna Declaration provides at para 4, inter alia, that ‘the
promotion and protection of all human rights is a legitimate concern of the
international community’. Moreover, there is nothing to prevent international
law from endowing ‘with some element of personality entities other than states’.14
Although conceptually difficult, and existing in that penumbra between the
individual and the state, it is possible to create rights in international law for
minorities qua minorities.
It is arguable that the type of rights which are enshrined within Article 27 of
the ICCPR are unlikely to become real without an enforceable right of autonomy
in favour of the minority group itself. That the minority group, as a collective,
has a separate identity from the individuals of which it is composed has been
recognized by the Human Rights Committee which has declared that: ‘a re-
striction upon the right of an individual member of a minority must be shown
to have a reasonable and objective justification and to be necessary for the
continued viability and welfare of the minority as a whole’.15
In order for the rights laid down by Article 27 to be real and effective, the
minority may need autonomy over its own affairs, including control over its own
budget.16 For many minority groups, the single most important issue as far as
their ethnic, religious or linguistic identity is concerned is the desire for their
children and young adults to enjoy mother tongue and/or religious education.
In view of the secessionist fears provoked by autonomy claims and the common
perception that claims for minority rights necessarily include claims to secede,
it is important not to confuse different types of autonomy: the opportunity to
establish schools on a self-governing basis may be described as cultural auto-
nomy17 and should not be confused with the notion of territorial autonomy,
which carries with it overtones of ethnic nationalism.
12
Packer, ibid.
13
See N. Rodley, ‘Opinion: The Evolution of United Nations’ Charter-based Machinery for the Protection of
Human Rights’, 1 EHRLR at 4 (1997).
14
N. Rodley, ‘Conceptual Problems in the Protection of Minorities: International Legal Developments’, 17
HRQ 48 at 59 (1995).
15
Kitok v Sweden (Communication no. 197/1985), following the view expressed by the Human Rights Committee
in Lovelace v Canada (Communication no. 24/1977), where it was acknowledged that measures taken in order to
protect the group might be upheld in the face of the conflicting claim of a group member: para 15. The collective
aspect is recognized and protected by a number of instruments (UN Declaration, Copenhagen Document,
Framework Convention), but these do not confer justiciable rights.
16
A minority group should also take part in the determination of the allocation of resources to it, but this right
is an issue of political participation and should be viewed as part of the process of internal self-determination.
17
See, for example, the 1925 Law of Cultural Autonomy in Estonia, above n 5. See also, The Hague
Recommendations Regarding Minority Education Rights (Annex E/CN.4/Sub.2/AC.5/1997/WP.3), drawn up by
FIER at the request of the High Commissioner on National Minorities of the OSCE.
The Human Rights Committee has stated that Article 27 implies positive
obligations on the part of States.18 However, the negative casting of Article 27
prevents the members of the minority from making a quasi-justiciable complaint
through the invocation of the Optional Protocol in relation to a failure on the
part of a state to take positive measures. It seems unlikely that particular forms
of treatment could be successfully demanded through a petition based upon
Article 27. Thus, whilst Article 27 prevents a state from restricting the provision
of schooling by a minority group, there does not appear to be any basis for a
claim to funds for such education.19 That is not to say that where a group claims
through its representative to have been denied its rights under Article 27, by
positive deprivation, as in the case of Ominayak, Chief of Lake Lubicon Band v
Canada,20 that a claim under Article 27 will not lie. The distinction between
acts and omissions seems relevant here: if a state acts in such a way to deprive
a minority of its opportunity to enjoy its culture a claim under Article 27 will
lie; if it is inactive and does nothing to either promote or negate the existence
of a minority’s culture, no claim will lie under Article 27. The Human Rights
Committee may ask states to report on practical measures taken to secure the
rights under Article 27,21 but that is not the same as enforcement by the group
or its members.
From one perspective, however, the very existence of Article 27 of the ICCPR
may be seen as a negative force for minority groups. Arguably, it allows states
to obfuscate the nature of their obligations under Article 1 ICCPR (self-
determination). States may argue that their obligations to minority groups are
limited to the ‘non-denial’ contained in Article 27 and that Article 1 cannot be
prayed in aid by minority groups because they are not peoples. This issue is
considered more fully below.
The debate as to whether the minority group as such, as opposed to individual
members of the group, should be accorded rights is ongoing, but the thrust of
Article 27 accords with the generally individualistic stance of the post-war world
approach to the protection of human rights. Thus, it is a commonplace to observe
that neither the Universal Declaration of Human Rights, nor the European
Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR) contain any provisions which are, in terms, directed to the protection
of the group.
The ECHR is silent on the treatment of minorities, apart from Article 14,
which prohibits discrimination in the enjoyment of ECHR rights ‘ . . . on any
18
See General Comment 23(50) at para 6. A practical example of the approach taken by the Human Rights
Committee is revealed in its consideration of the Fourth Periodic Report of the UK when the Committee asked
the government to ‘comment on practical measures taken to ensure effective enjoyment by persons belonging to
minorities of their rights under Article 27 of the Covenant, in particular in so far as the recognition of Celtic
languages in Northern Ireland and Scotland and the promotion of regional cultures are concerned’: CCPR/C/
SR.1432 at para 21 (emphasis added).
19
See discussion below, regarding economic, social, and cultural rights and the weakness of their normative
framework. Cf. Airey v Ireland, Series A, vol. 32 at paras 24–6 (1979) (Carl Hegmanns Verlag).
20
Communication to the Human Rights Committee No. 167/1984, UN Doc A/45/40.
21
Above n 18.
ground such as . . . association with a national minority’. This article has not
been interpreted expansively, so as to give effect to minority demands. In the
Belgian Linguistics22 case, the French-speaking applicants failed in their claim
that their rights under Article 2 of the First Protocol were being violated by the
failure of the state to provide mother tongue education for their children. There
was a difference in treatment, in that children of French speakers could only
obtain publicly funded education in Dutch. In the well-known formula, such
difference in treatment had an objective and reasonable justification: the allocation
of resources. The applicants also claimed that their right under Article 8 to
protection for their private and family life had been infringed, but the Court
said that the Article 8 right did not extend to the provision of mother tongue
education.
Under Article 14, a difference in treatment favourable to the minority may be
upheld as valid.23 In the Liberal Party24 case, the Commission considered that it
would be legitimate to draft voting laws to enhance the election prospects of a
religious or ethnic minority. The Liberal Party failed in its claim that it was a
victim of discrimination because the simple majority system, in fact, favoured
the Conservative and Labour Parties. Thus, equal voting influence per se is not
protected under the Convention.25 It would require a much more expansionist
interpretation for a minority successfully to assert a right to a particular type of
voting system.
In addition, in G & E v Norway,26 the Commission indicated that the Article
8 right to private life could extend to protection for a person’s way of life. The
right to respect for private life has generally been held to impose positive
obligations on states. However, restrictions on the Article 8 right are permitted
in the interests of the economic well-being of the country: so, again this is likely
to be of limited use to a minority community.27
Finally, following the break-up of the former Soviet Union, the Council of
Europe determined to address the minorities issue and the Framework Con-
vention was opened for signature on 1 February 1995. Whilst the Framework
Convention affords some protection to the minority group itself,28 unlike the
ECHR, the Framework Convention is not underpinned by an enforcement
22
Series A, Vol. 6 (1968) (Carl Hegmanns Verlag).
23
Lindsay v UK App. No. 8364/78 15 DR 247 (1979).
24
Liberal Party et al. v UK App. No. 8765/79 4 EHRR 106 at 120–1 (1982).
25
See discussion below regarding the question of whether there is an obligation on states, as a matter of
international law, to ensure representative government (United Nations General Assembly’s Declaration on
Principles of Law Concerning Friendly Relations). See also the discussion of Judge de Meyer, ‘Electoral Rights’
in R. St. J Macdonald, F. Matscher, and H. Petzold (eds), The European System for the Protection of Human Rights
(1993), ch 22, who has ‘hinted that more might be done by relying on the idea of (internal) self-determination to
strengthen Article 3 of the First Protocol’, discussed by D. Harris, C. Warbrick and M. O’Boyle, Law of the
European Convention on Human Rights (1995) at 557.
26
App. No. 9278/81 35 DR 30 (Council of Europe).
27
Buckley v UK App. No. 20348/92 Commission 2 March 1995 19 EHRR CD 20 (1995). The case failed in
the Court on other grounds (25 September 1996, 23/1995/529/615).
28
See Article 1: ‘The protection of national minorities and of the rights and freedoms of persons belonging to
those minorities forms an integral part of the international protection of human rights, and as such falls within
the scope of international cooperation’.
mechanism in the shape of an individual right of petition. Rather, Article 25

obliges states to report to the Secretary-General of the Council of Europe, ‘full
information on the legislative and other measures taken to give effect to [the
Framework Convention]’. The Committee of Ministers will, under Article 26,
with the assistance of a Committee of Experts, evaluate the adequacy of the
measures taken. Thus, the Framework Convention will, apparently, be of limited
assistance to minority groups.
3. Why Autonomy?
Of course, objections may quickly be raised to proposals to give rights to minority
groups to call for particular forms of treatment on the basis that such treatment
would run counter to the general principle of non-discrimination and equal
treatment of individuals. However, in response, it may be asserted that there is
no such thing as a neutral state: the state, whilst an inanimate legal construct,
is not impersonal. It exists cloaked with the personal characteristics of the
dominant group.29 Thus, Will Kymlicka castigates Michael Walzer’s description
of the USA as a neutral state:
But is the United States neutral with respect to language, for example, or history, or
the calendar? English is the language of public schools in the United States, and of
court proceedings, and of welfare agencies . . .
What Walzer calls the ‘neutral state’ can be seen, in effect, as a system of ‘group
rights’ that supports the majority’s language, history, culture, and calendar.30
Thus, an assimilationist tendency of the state must be acknowledged in the
absence of positive measures to bridge the gap between the dominant majority,
whose cultural norms dominate,31 and the potentially inferior minorities who,
whilst ‘formally’ equal, require that their difference be recognized. To argue
that positive measures in favour of a minority group constitute discriminatory
treatment of the members of the majority ignores the fact that the initial point
of comparison is asymmetric: the members of the dominant group already enjoy
‘group rights’.32
It has been remarked that one of the purposes of the UN is the development
of ‘friendly relations among nations, based on respect for the principle of equal
rights and self-determination of peoples’ (Article 1(2) of the UN Charter). This
notion of the equality of peoples, as opposed to the equality of individuals,
appears to have received little attention from academic opinion. As a principle
of international law it may be of assistance to minority groups who seek parity
29
See, for example, Ahmad v UK 4 EHRR 126 (1978).
30
Kymlicka, above n 5 at 10.
31
It is not unusual, for example, for a constitution to affirm the cultural superiority of the dominant group: see
the constitutions of Slovenia, Croatia, Serbia, and Macedonia where the language of the dominant group is
declared the official language.
32
Kymlicka, above n 5. See also, J. Marko, Equality And Difference: Political and Legal Aspects of Ethnic Group
Relations in F. Matscher (ed), Vienna International Encounter on Some Current Issues Regarding the Situation of National
Minorities (1997) at 84.
with their majority populations. Positive measures are required, not, as Joseph
Marko has asserted, because the members of the majority group benefit ‘from
all the opportunities derived from past de jure or de facto discrimination’.33 Rather,
it is in order to redress present de facto inequality that special measures for the
minority are required. Indeed, Article 1 of the International Convention on
Elimination of Racial Discrimination provides that special measures taken:
for the sole purpose of securing adequate advancement of certain racial or ethnic
groups or individuals requiring such protection as may be necessary in order to ensure
such groups or individuals equal enjoyment or exercise of human rights and fundamental
freedoms shall not be deemed racial discrimination, provided, however, that such
measures do not, as a consequence, lead to the maintenance of separate rights for
different racial groups and that they shall not be continued after the objectives for
which they were taken have been achieved.
Marko puts forward a model of society, according to which equality and difference
may be respected through the vehicles of autonomy and integration. The denial
of respect for difference leads to assimilation or segregation.34 He suggests that
there are:
various forms of individual and ‘collective’ or group rights between (sic) the opposite
ideal types of basic human rights, such as the freedom to use one’s language, on one
hand, and equal representation and participation of groups in the political process, on
the other.35
He argues that the issue of minorities should be addressed from the perspective
of individual legal rights and constitutional processes, including autonomy.
Marko’s argument implicitly demonstrates an appreciation of the resources
implications for the fulfilment of minority rights. This individual rights/con-
stitutional norms approach accords with the dichotomy which exists in the
normative framework of human rights: the divide between the more readily
justiciable36 category of civil and political rights on the one hand, and the more
aspirational economic, social, and cultural rights on the other. For minority
rights law to be effective, states must provide funding, but, as international
human rights law currently stands, minority groups face an uphill task in securing,
through the invocation of individual human rights, particular forms of treatment.
Ultimately, a minority group appears to be dependent upon the democratic
process in order to fulfil its cultural and other aspirations. A minority group
may exercise autonomy over the matters of particular concern to it through
participation in the democratic process, if machinery is in place which gives an
effective voice to the minority group. Funding for cultural institutions may also
be secured through participation in the democratic process. Thus, the degree to
33
Marko, ibid.
34
See also J. W. Berry, ‘Social and Cultural Change’, in H. C. Triandis and R. W. Brislin (eds), Handbook of
Cross Cultural Psychology (1980).
35
Marko, above n 32 at 85.
36
Depending whether the relevant jurisdiction is that of the Court and Commission of Human Rights (from
November 1998, a Court only) under the ECHR or the ICCPR with the quasi-judicial Human Rights Committee.
which a minority effectively secures control over its collective life is dependent
upon the machinery put in place to secure pluralistic democracy in the state.
Assuming minorities are to enjoy autonomy, how is the scope of that autonomy
to be determined? If autonomy is to be granted, should it be restricted to
autonomy over matters such as cultural affairs and education, or should autonomy
be extended on a territorial basis (where appropriate), so that the minority group
enjoys a degree of political autonomy through local/regional self-government?
There is no one answer applicable to all groups: some groups are located in
particular regions so that, as the Copenhagen Document of the CSCE (Con-
ference on Security and Co-operation in Europe) acknowledges, it may be
appropriate to link autonomy with territory,37 whilst others may not enjoy the
demography appropriate for autonomy to be linked to territory. There is a
widespread fear that demands for secession will almost inevitably follow auto-
nomy. History demonstrates that state formation has occurred where groups
within the state have been given political autonomy. However, the point is
that insistence upon majority culture and the assimilationist tendency thereby
produced as a result of efforts to build the ‘nation-state’ may well prove to be
the touchpaper for insurgent nationalism in the minority group. As Franck
observes: ‘. . . the international system, by reserving status, voice and rewards
only for those ethnie (sic) and tribes that have achieved statehood, further
conduces to virulent secessionist nationalism’.38
Thus, a pertinent question is whether a minority group has any locus to claim
a particular form of treatment, as international law currently stands. The domestic
constitution may grant autonomy over some issues, but, as the Liberal Party case
demonstrates, it is difficult to secure a particular form of democracy.39 Is there,
then, any basis for arguing that there is a ‘right’ to such treatment? What do
international instruments say in relation to the grant of autonomy, or the securing
of degrees of influence or control over matters affecting the minority group in
favour of the group itself?
4. International Instruments and Autonomy—An Emerging

Trend towards Collective Rights?
Autonomy, as a vehicle for the enjoyment of minority rights, was first ac-
knowledged, explicitly, post-World War II, in the Document of the Copenhagen
37
The Copenhagen Document is discussed below. The Aland Islands example is at one end of the autonomy
‘spectrum’: Finland retained sovereignty, but change to the Autonomy Act can only be made with the agreement
of the Aland Legislative Assembly, see The Aland Experience–Autonomy Example Attracts Growing Attention, 5 OSCE
Review No. 3/97 at 3. Cf. The 1925 Law of Cultural Autonomy of Estonia which conferred limited rights of
autonomy, see above n 5. Consider also the Kosovar Albanians who, until the recent exodus of refugees, constituted
90 per cent of the indigenous population in Kosovo. Resolution 1160 (1998) of the UN Security Council called
for ‘an enhanced status for Kosovo which would include a substantially greater degree of autonomy and meaningful
self-administration’ (para 5).
38
T. Franck, ‘Clan and Superclan: Loyalty, Identity, and Community in Law and Practice’, 90 AJIL 359 at
382 (1996).
39
Above n 24.
Meeting of the Conference on the Human Dimension of the CSCE (1990). The
significance of the Copenhagen Document is that it constituted the first full
elaboration of minority standards in the post-cold war period and includes the
following paragraph:
(35) The participating States will respect the right of persons belonging to national
minorities to effective participation in public affairs, including participation in the
affairs relating to the protection and promotion of the identity of such minorities.
The participating States note the efforts undertaken to protect and create conditions
for the promotion of the ethnic, cultural, linguistic, and religious identity of certain
national minorities by establishing, as one of the possible means to achieve these aims,
appropriate local or autonomous administrations corresponding to the specific historical
and territorial circumstances of such minorities and in accordance with the policies of
the State concerned.
The commitments enshrined in the instruments which have emerged from the
OSCE (Organisation for Security and Co-operation in Europe) process are, for
the most part, not legally binding treaties.40 It is commonly said that the ‘Helsinki
Process’ gives rise to politically binding obligations, but it has been remarked
that the lack of legal, as opposed to political, binding force does not necessarily
detract from effectiveness.41 Notwithstanding the weak wording of para 35, nor
the lack of legal binding effect, the paragraph is significant on account of its
acknowledgement that autonomy has a legitimate place in the consideration of
minority rights. The Copenhagen Document has recently been incorporated in
a number of bilateral treaties, amongst them the Treaty on Good Neighbourliness
and Friendly Co-operation, signed and ratified by the Slovak Republic and
Hungary and a similar Treaty between Hungary and Romania. In these in-
struments, the state parties have undertaken to fulfill the commitments laid
down in the Copenhagen Document as legal obligations. However, it must be
observed that it is difficult to imagine these obligations as the subject of litigation
on account of their vague and weak wording.
The democratic process itself is a vehicle through which minority groups may
achieve control over their existence. In this regard, the recent documents of the
OSCE are replete with the language of pluralistic democracy: the importance of
pluralistic democracy as the foundation for respect for human rights was em-
phasized in the Copenhagen Document (para 3). At para (30) the participating
states recognized that the ‘questions relating to national minorities can only be
40
With the exception of the Treaty on Conventional Armed Forces in Europe, the Treaty on Open Skies, and
the Convention on Arbitration and Conciliation: see Thornberry, above n 11 at 248. However, the potential
contribution of the OSCE process to the development of customary international law is acknowledged: in the
opinion of the International Court of Justice in the Nicaragua case, discussed below, it can ‘with all due caution
be used as evidence of the practice and opinio juris of states’: see, generally, D. McGoldrick, ‘The Principle of
Non-Intervention: Human Rights’ in V. Lowe and C. Warbrick (eds), The United Nations and the Principles of
International Law (1994) at 105.
41
As Bloed observes: ‘The binding force of these documents is not seriously doubted. Van Dijk correctly states:
‘‘A commitment does not have to be legally binding in order to have binding force; the distinction between legal
and non-legal binding force resides in the legal consequences attached to the binding force’’ and not in the binding
force as such’. A. Bloed, ‘The CSCE Process from Helsinki to Vienna: An Introduction’ in A. Bloed (ed.), From
Helsinki to Vienna: Basic Documents of the Helsinki Process (1990) 1 at 11.
satisfactorily resolved in a democratic political framework [which] guarantees

. . . political pluralism’ and this sentiment was expressed in virtually identical
wording in the Charter of Paris for a New Europe. Franck has observed that
‘although the Charter is not a treaty, its language is weighted with the terminology
of opinio juris. It is deliberately norm creating’.42 The declaration of the CSCE
Helsinki Summit in 1992 stated that ‘[t]here is still much work to be done in
building democratic and pluralistic societies, where diversity is fully protected
and respected in practice’ (para 12). Further, at Part VI, paragraph (24) the
participating states:
will intensify their efforts to ensure the free exercise by persons belonging to national
minorities . . . [of] the right to participate fully, in accordance with the democratic
decision-making procedures of each State, in the political, economic, social and cultural
life of their countries including through democratic participation in decision-making
and consultative bodies at the national, regional, and local level, inter alia, through
political parties and associations.
There is also evidence of a growth in state practice towards greater participation

by citizens in decisions affecting their lives. In Western and Central Europe there
are discernible trends towards devolution of decision- making43 and much of the
work of the High Commissioner on National Minorities (HCNM) of the OSCE
has been geared to increased participation of national minorities in the processes
of government. In 1995, following a visit to the former Yugoslav Republic of
Macedonia, the HCNM advised that a draft law on elections which had failed
to obtain sufficient support from the previous Parliament should be submitted
again to the newly elected body: this law provided for the partial introduction
of a system of proportional representation which would enhance the rep-
resentation of the substantial Albanian minority. He also advised that the borders
of electoral districts should be redrawn in order to ensure that they comprised
roughly equal numbers of voters.44
The Framework Convention, whilst making no reference to autonomy, does
impose an obligation on states to ‘create the conditions necessary for the effective
participation of persons belonging to national minorities in cultural, social, and
economic life and in public affairs, in particular those affecting them’ (Article
15). It is possible that an electoral system based upon simple majoritarianism
could not be said to secure effective participation of national minorities in public
affairs: clearly, the breadth of obligation depends upon the conditions which are
required for participation to be effective, but presumably it connotes the idea of
being part of an ongoing democratic process, rather than merely taking part in
42
Above n 9 at 52.
43
See the constitutional changes wrought by the New Labour Government in the UK and the Hungarian Act
LXXVII of 1993 on the Rights of National and Ethnic Minorities and the Dayton Agreement for Bosnia-
Herzegovina.
44
Recommendations of the HCNM to the Macedonian Government, letter of 16 November 1994, Ref. No.
3016/94/L.
periodic elections.45 However, the ECHR, in Article 3 of Protocol 1, merely
obliges Contracting Parties ‘to hold free elections at reasonable intervals by
secret ballot, under conditions which will ensure the free expression of the will
of the people in the choice of legislature’.
Article 3, taken alone, does not impose any particular form of democracy;
systems of proportional representation, as well as the ‘first past the post’ system
appear to conform to the requirements laid down. It seems that a wide margin
of appreciation is allowed to states in the selection of their electoral systems.46
As has been seen, the effect of Article 14 of the ECHR (non-discrimination),
taken in conjunction with other articles, is that a difference in treatment of a
minority group, which is freely undertaken by a state, may be upheld: however,
Article 14 cannot be used to demand a difference in treatment.
Pursuant to the Stability Pact,47 the ‘transitional’ democracies of Central and
Eastern Europe have sought to resolve minority issues. The Hungarian and
Slovak Governments responded to this call in 1995 by entering into the Treaty
on Good Neighbourliness and Friendly Co-operation. Ratification by the Slovak
Republic was slow, particularly on account of the issue of autonomy and collective
rights. Article 15 of the Treaty incorporates Recommendation 1201,48 which
provides, at Article 11 that:
In the regions where they are in a majority the persons belonging to a national minority
shall have the right to have at their disposal appropriate local or autonomous authorities
or to have a special status matching the specific historical and territorial situation and
in accordance with the domestic legislation of the state.
This provision is more specific than the weak ‘noting’ formula of para 35 of the
Copenhagen Document: it clearly grants a right to autonomous administrations,
although the precise nature (i.e. whether cultural, educational or political, for
example) of the contemplated autonomy is not spelled out. Not only that, Article
9 of Recommendation 1201 provides that an effective remedy is assured not
only to an individual victim, but also to ‘any representative organization’, which,
coupled with Article 11, leads to the conclusion that group rights are conferred
by Recommendation 1201.
The Hungarian and Slovak Governments disagreed at the outset, regarding
the issue of collective rights and autonomy, and, at the time of ratification, the
Slovak Government entered a reservation stating that it ‘never accepted . . . in
the treaty formulations . . . a recognition of principle of collective rights for
minorities and those . . . rights, which would allow establishment of any auto-
nomous structures or special statute based on ethnicity’.
The autonomy issue proved a sticking point also in negotiations between
45
For an interesting discussion of self-determination as process, rather than periodic participation, see R.
Stavenhagen, ‘Self-Determination: Right or Demon’ in D. Clark and R. Williamson (eds), Self-determination:
International Perspectives (1996).
46
Harris, O’Boyle, and Warbrick, above n 25 at 551.
47
Above n 3.
48
Above n 10.
Hungary and Romania, which eventually resulted in the signing of a Treaty on

Understanding, Cooperation, and Good Neighbourhood. Ultimately, the parties
agreed to incorporate, inter alia, Recommendation 1201, but the following
limiting clause was inserted into the Treaty: ‘The Contracting Parties agree that
Recommendation 1201 does not refer to collective rights, nor does it impose
upon them the obligation to grant to the concerned persons any right to a special
status of territorial autonomy based on ethnic criteria’. The lessons from the
Slovak experience were evidently well learned by the Romanian Government.
Whilst the Hungarian and Slovak Governments have disagreed regarding the
interpretation of their bilateral treaty in relation to the issue of autonomy, it may
be that, according to general principles of international law, the respective
minorities ultimately, depending on their situation, would have a right to claim
autonomy, albeit a right which can only be invoked indirectly. This argument is
based upon the relationship between autonomy and self-determination, both
concepts veritable minefields in international human rights law.
A. Self-determination and autonomy

There is an argument that, in the case of minority groups, autonomy is a
necessary constituent of representative government as required by the Declaration
on Principles of International Law Concerning Friendly Relations and Co-
operation Among States in accordance with the Charter of the United Nations49
(‘Declaration on Friendly Relations’). The argument is that self-determination,
as described by the Declaration, requires that peoples should enjoy representative
government and this is a government that governs ‘without distinction’ in a state
that conducts itself in accordance with the principle of equal rights and self-
determination of peoples. Measures in favour of the minority group, such as
autonomy, rather than being regarded as discriminatory in favour of the minority,
are necessary to ensure a level playing field: i.e. in order to ensure government
without distinction. Autonomy for minority groups is the counterweight to the
‘group rights’ of the majority, and will ensure that the principle of equality of
peoples is respected. A representative government as described by the Declaration
on Friendly Relations is not simply the voice of the majority.
The literature on self-determination and its function as a principle of inter-
national law is immense, and it is beyond the scope of this paper to trace more
than the briefest sketch of that history, beginning with the view espoused by
Woodrow Wilson in the aftermath of World War I that:
National aspirations must be respected; peoples may now be dominated and governed
only by their own consent. Self-determination is not a mere phrase. It is an imperative
principle of action, which statesmen henceforth ignore at their peril.50
49
G.A. Res 2625, UN GAOR, 25th Sess., Supp. No. 28 at 121, UN Doc. A/8028, ILM 1292 (1970).
50
W. Wilson, ‘War Aims of Germany and Austria’ in R. Stannard Baker and W. E. Dodd (eds), 3 The Public
Papers of Woodrow Wilson: War and Peace 177 (1927) quoted in V. Epps, ‘The New Dynamics of Self-Determination’,
3 ILSA Journal of International and Comparative Law 433 at 434 (1997).
The concept of self-determination has evolved from a principle enshrined in
Articles 1(2) and 55 of the UN Charter, which many regarded as hortatory,51 to
a general right of peoples in international law. This evolution took place in the
context of the movement to bring an end to colonialism, the General Assembly
declaring in 1960 that: ‘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’.52 At that time, the focus was
undoubtedly on what is commonly descibed as external self-determination: the
idea that the peoples in one state should be permitted to determine their collective
political destiny without outside interference from other states. That the concept
of self-determination has developed beyond the colonial context is demonstrated
by the Declaration on Friendly Relations.53 The Declaration on Friendly Relations
reiterates the principle of self-determination of all peoples and elaborates upon
the means by which the principle may be put into practice:
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 constitute modes of implementing the right of self-
determination by that people.
Thus, there is a non-exhaustive list of methods by which the principle may be
realized.
The argument that self-determination applies as a right of all peoples, not
confined to the colonial context, is further supported by common Article 1 of
the UN Covenants. The Human Rights Committee has issued a General
Comment on Article 1 of the ICCPR which confirms that the right of self-
determination is an ongoing right and, by implication, one which is not restricted
to the colonial context. However, whilst the General Comment emphasizes the
importance of this right, it does little to flesh out the substantive content,
restricting itself to the rather cryptic observation that:
3. . . . [T]he Committee has noted that many [States] completely ignore Article 1,
provide inadequate information in regard to it or confine themselves to a reference
to election laws . . .
4. With regard to paragraph 1 of article 1, States parties should describe the con-
stitutional and political processes which in practice allow the exercise of this right.54
Hannum has observed in his recent ‘Rethinking’ of self-determination that:
[t]he covenants’ description of the right of self-determination as a right of ‘all peoples’
51
I. Brownlie, Principles of Public International Law (1990) 596.
52
G. A. Res. 1514, UN GAOR, 15th Sess., Supp. No. 16 at 67, UN Doc. A/L 323 and Add. 1—6 (1960).
53
Above n 49. See also Bosnia Herzegovina v Yugoslavia (Case concerning application of the Convention on the
Prevention and Punishment of the Crime of Genocide) where Yugoslavia contested, inter alia, that by its acts relating
to accession to independence, the Republic of Bosnia-Herzegovina had violated the duties stemming from the
‘principle of equal rights and self-determination of peoples’. Had the International Court of Justice been of the
opinion that this right is confined to the colonial context, it might reasonably have been anticipated that such a
view would have been made explicit. In fact, the Court was silent on this point.
54
Human Rights Committee, General Comment 12, UN Doc. HRI\GEN\1\Rev.1 at 12 (1994).
cannot be ignored. Both the right of a people organized as a state to freedom from
external domination and the right of the people of a state to a government that reflects
their wishes are essential components of the right of self-determination.55
In his earlier work, Hannum appeared to take a more restrictive view, acknow-
ledging the references in General Assembly Resolutions 1514 and 2625 and the
Covenants to ‘all’ peoples, but stating that in practice the right had been limited
to colonial situations. He cited Pomerance, who in 1982, argued that ‘[n]o state
has accepted the right of all peoples to self-determination . . . ‘. Hannum has
since re-appraised the internal aspect of self-determination and, alluding to the
Pomerance view, has observed that ‘ “the statement that [n]o state has accepted
the right of all peoples to self-determination” is correct only if one equates self-
determination exclusively with secession or independence’.56 Emphatically, this
essay seeks to argue that autonomy may constitute a legitimate means for the
implementation of self-determination. Secession may arguably be a legitimate
option only in very narrowly defined circumstances which are discussed below.
The Declaration on Friendly Relations proceeds to make a link between the
principle of self-determination and the existence of representative government.
In common with the 1960 Declaration on the Granting of Independence to
Colonial Countries and Peoples,57 the Declaration on Friendly Relations limits
the scope of the right by declaring that the Declaration is not to be construed
as authorizing ‘any action which would dismember or impair . . . the territorial
integrity or political unity of sovereign and independent states’. However, this
brake on the implementation of the right of self-determination is linked to the
idea of internal self-determination, applying to:
[s]overeign 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.58
What implications does the Declaration on Friendly Relations carry for minority
groups? Participation in the electoral system, depending upon the constitutional
arrangements in place, will not necessarily guarantee that minority groups are
‘represented’, nor that the principle of equality of peoples is respected. As was
stated above, the ‘neutral state’ is a creature of myth and, therefore, in the
absence of special arrangements, a minority group may find itself effectively
disenfranchized. It may be that the Declaration on Friendly Relations supports
the argument that a system of democratic elections to a legislature is not sufficient
for the right to self-determination to be fulfilled: the elected government must
55
H. Hannum, ‘Rethinking Self-Determination’, 34 Va J Int’l L 1 (1993), in Steiner and Alston, above n 7 at
977.
56
Ibid.
57
Above n 52.
58
Above n 49 and see F. L. Kirgis, Jr, ‘Editorial Comment: The Degrees of Self-Determination in the United
Nations Era’, 88 AJIL 304, 306 (1994) and Epps, above n 50.
be properly representative of all the constituent ethnie in order for the principle
of territorial integrity to remain pre-eminent.
In order for the whole people to be represented in government without
‘distinction as to race, creed or colour’, minority groups should have some
measure of autonomy over the matters of particular relevance to their ethnic,
cultural, religious or linguistic identity, thus achieving de facto parity with the
dominant group who, by the fact of numerical domination, control those matters
(relating to ethnic, cultural, religious, and linguistic identity) affecting them.
The justification for this control lies in the notion of ‘equality of peoples’. In
the absence of participation/representation in government, the minority group
may simply be oppressed by the majority in relation to the cultural aspect of
their lives. Government, on the other hand, may accede to the wishes of the
national minority, on an ad hoc basis, but it is unlikely that anything other than
institutionalized protection will lead to the protection and promotion of national
minority identity, as required by international law. A right to mother-tongue
education, for example, requires funding which can only be secured through
having a voice in relation to the disposal of national income. If government is
to govern ‘without distinction as to race, creed or colour’, the imbalance between
majority and minority groups in respect of the domination of the cultural
institutions of the majority must be redressed.
Autonomy is, perhaps, perceived as separation: if a group has autonomy then
it will be segregated from the majority. This is a misunderstanding. Autonomy
simply means control, and the methods of achieving control, and the degrees of
control, will vary from group to group. Territorial autonomy is an inappropriate
tool for very many groups: those groups which are dispersed geographically may
be ill-suited for ‘local self-government’. Autonomy may be achieved through
participation in central government: the consociational model of government
embodied by the Belgian Constitution affords an example or, alternatively,
through devolved decision-making to autonomous bodies.59 In 1991, the CSCE
Meeting in Geneva of Experts on National Minorities produced a Report which
listed the range of ‘special measures [taken to ensure full equality with other
citizens in the exercise and enjoyment of human rights and fundamental free-
doms]’ considered to have yielded positive results. The report acknowledged the
diversity of constitutional systems amongst the participating states and included
the following approaches:
• 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;
59
See, for example, Lijphart, above n 5 and the Hungarian Act LXXVII of 1993 On The Rights of National
and Ethnic Minorities.
• self-administration by a national minority of aspects concerning its identity

in situations where autonomy on a territorial basis does not apply;
• decentralized or local forms of government.
What is important is not the mechanism used, but the fulfillment of the legitimate
aspirations of the minority group.
If we can support the argument that self-determination necessitates rep-
resentative government in the sense suggested by the Friendly Relations De-
claration, a minority group may be able to assert that a state has failed to fulfill
its obligations in international law. There are jurisdictional difficulties in bringing
a claim before the Human Rights Committee in relation to Article 1 of the
ICCPR. However, the potential, or otherwise, for the minority group to bring
suit does not affect the obligation of a state in international law to afford the
right of self-determination to all peoples. An assertion that a state has failed to
observe its obligations under Article 1 might be made indirectly, and lend weight
to a complaint brought under the ECHR.60 What is not clear, however, is the
juridical status of the Declaration on Friendly Relations.
Hannum has asserted that the Declaration, which was adopted by the General
Assembly without a vote ‘after years of negotiation . . . may be considered to
state existing international law’. That is, perhaps, rather too sweeping a statement,
at least in relation to the Declaration in its entirety. As far as the right of self-
determination is concerned, it is difficult to quarrel with Hannum’s general
assessment that:
[w]hile General Assembly resolutions do not of themselves make law, the unanimous
adoption of Resolutions 1514, 2625, and numerous others reiterating the ‘right’ to
self-determination is significant, as is the fact that more than half of the world’s states
have formally accepted the right of self-determination through their adherence to one
or both covenants.61
However, there are considerable doctrinal differences regarding the effect of
resolutions of the General Assembly.62 In this connection Kryzysztof Skubisweski
has reported to the Institut de Droit International on ‘Resolutions of the General
Assembly’ having normative effect.63 Of particular relevance to the present
analysis of the Friendly Relations Declaration is his observation that:
The nature of the rules embodied in a declaration should be distinguished from the
nature of the act itself. The inclusion of rules into a recommendatory resolution
(whether termed “declaration” or not) does not automatically signify that they are
equally recommendatory . . . [referring, inter alia, to the Friendly Relations Declaration],
. . . there are resolutions in which elements of law are mixed with declarations of
intention or recommendations.64
60
Discussed below.
61
Hannum, above n 1 at 45.
62
See, generally, the comprehensive account by Sir Ian Sinclair, ‘The Significance of the Friendly Relations
Declaration’ in Lowe and Warbrick, above n 40 at 21.
63
Ibid.
64
Ibid.
As Sir Ian Sinclair has observed, ‘[a]ll this points to the importance of analysing
carefully the content of any resolution before determining whether any of the
rules embodied in it are truly of a law-declaring character’.65 Paragraph 3 of the
General Part of the Declaration on Friendly Relations states that ‘The principles
of the Charter which are embodied in this Declaration constitute basic principles
of international law . . . ‘: the principle of self-determination is a Charter principle,
but the principle of ‘representative government’ which governs without distinction
is not mentioned and its status as a corollary of the right of self-determination,
and therefore a ‘right’ in international law is open to serious doubt.66
The legal effect of the Declaration on Friendly Relations was considered by
the ICJ in its judgment in the merits phase of Nicaragua v United States,67 where
Nicaragua alleged that the USA had violated norms of customary international
law regarding the non-use of force and non-intervention. Nicaragua could not
pray in aid Article 2(4) of the UN Charter or Articles 18, 20, and 21 of the
Organization of American States (OAS) Charter because of the US reservation
excluding disputes arising under multilateral treaties, save under specified cir-
cumstances which were not applicable. The jurisprudential excursus followed
by the ICJ provoked criticism: ‘for the court was thus obliged to determine the
content of the customary law rules relating to the non-use of force and non-
intervention without reference to the primary sources of law binding the parties
to the dispute [the UN Charter and the OAS Charter]’. What the Court in fact
did was to say that whilst the Court could not determine that there had been a
breach by the US of either of those conventions, nevertheless ‘it can and must
take them into account in ascertaining the content of the customary international
law which the United States is alleged to have infringed’. In the Nicaragua case,
the Court focused on the element of opinio juris in its ascertainment of customary
norms and found such evidence in the Declaration on Friendly Relations,
effectively reducing the state practice requirement for the formation of customary
international law. There is a difficulty in extrapolating from the Nicaragua
decision a rule of customary international law to the effect that the exercise of
the right to self-determination should yield a representative government in the
sense dictated by the Declaration on Friendly Relations. The provisions relating
to non-intervention and the non-use of force are broadly similar whichever
instrument is under consideration. The same cannot be said of the principle
(UN Charter) or right (Declaration on Friendly Relations, Common Article 1
of the UN Covenants) of self-determination. Thus, it is submitted that it is by
no means certain that existence of representative government, as suggested by
the Declaration on Friendly Relations (and latterly by the Vienna Declara-
tion),68 is a requirement of international law. Support for the development of
customary international law in this field is, however, afforded by the developing
65
Ibid.
66
Cf. Kirgis, above n 58.
67
[1986] ICJ Rep 94.
68
Vienna Declaration and Programme of Action, Pt 1, para 2, UN Doc. /A/CONF.157/24 (Pt 1) (1993), 32
ILM 1661 (1993).
practice of the participating states of the OSCE, in parallel with the developing
opinio juris evidenced by the wide range and effect of the OSCE standards.69
What, then, is the nature of the activity which is embodied by the concept of
self-determination? Is the concept one which embodies process or does it have
a result-oriented aspect to it? In other words, are there other indications, as a
matter of international law, as to whether it is sufficient to have an electoral
system based upon the principle of universal suffrage, or should the electoral
system incorporate elements to take account of diverse ethnicity or culture in
the population?
The ICJ in its advisory opinion in the Western Sahara case 70 considered the
principle of self-determination enshrined in the UN Charter, invoked in General
Assembly Resolution 1514 (XV), and declared that these provisions confirm
and emphasize that ‘the application of the right of self-determination requires a
free and genuine expression of the will of the peoples concerned’,71 and confirm
‘[t]he validity of the principle of self-determination, defined as the need to pay
regard to the freely expressed will of peoples . . . ‘.72 The emphasis in this analysis
is on process rather than outcomes, but the decision is of limited assistance to
the present discussion owing to the decolonization context. The Court noted
that the General Assembly retained ‘a measure of discretion with respect to the
forms and procedures by which [the] right is to be realized’.73
The focus in the Human Rights Committee’s General Comment on Article 1
of the ICCPR is unclear, but the right clearly goes beyond electoral laws, and
reference is made in passing to the Declaration on Friendly Relations.74 The
general thrust of the Comment seems to be limited to a wish to make clear that
whilst no individual petition lies under Article 1, nevertheless the reporting
obligation laid down in Article 40 applies in full measure to Article 1. Judge
Higgins of the ICJ, in describing the work of the Human Rights Committee,
observed that the Committee:
[h]as consistently told states appearing before it for examination of their periodic
reports that the right of self-determination requires that a free choice be afforded to
the peoples, on a continuing basis, as to their system of government, in order that they
can determine their economic, social, and cultural development.75
This statement appears to refer to elections and choice of government, rather than
the process of governance, although determining ‘economic . . . development’ may
implicitly include the process of government.
69
Text to n 42 above.
70
1975 ICJ Rep 12.
71
Ibid at para 55.
72
Ibid at para 59.
73
Hannum, above n 1 at 38.
74
Above n 54 at para 7.
75
R. Higgins, Problems and Process (1994) at 120. See also, Human Rights Committee, General Comment No.
12(21), above n 54, on Article 1 at para 6: ‘. . . all States parties to the Covenant should take positive action to
facilitate realization of and respect for the right of peoples to self-determination. Such positive action must be
consistent with the States’ obligations under the Charter of the United Nations and under international law . . .’.
See G. Gilbert, ‘Minority Rights under the Council of Europe’, forthcoming in S. Wheatley and P. Cumper (eds),
Minority Rights (1999) at fn 45.
The problem for a minority is that a process which may be considered
democratic, in the sense that each citizen has the opportunity to express his/her
wish with regard to government, will not necessarily yield a representative
government, as that may be envisaged by the Declaration on Friendly Relations.
Unless the constitutional framework takes account of diverse minority cultures,
such cultures may not be effectively represented. In the words of Van Dyke:
The assumption [that the consent of the governed means the consent of individuals]
is understandable if the population of the State is homogeneous, sharing a common
culture. But if the population is divided into different communities, each cherishing
and wanting to preserve its distinctive identity, why should it be assumed that the
consent that counts comes from individuals? Cannot entire communities give or
withhold consent as collective units?76
This takes us back to Hannum and his assertion that the Declaration on Friendly
Relations states international law. Certainly, self-determination is a right of
peoples in international law, but is that the same thing as a right of peoples to
representative government which governs without distinction. Kirgis has argued,
in relation to its provisions on self-determination, that the Declaration on Friendly
Relations and the Vienna Declaration (in similar terms)77 probably reflect an
opinio juris on the basis that ‘in the human rights field a strong showing of opinio
juris may overcome a weak demonstration of state practice to establish a customary
rule’.78 He extrapolates from this the possibility that there may be a right of
‘peoples’ to secede from a state which does not have a fully representative
government. He also lists what he describes as the numerous faces of self-
determination and includes ‘the right of limited autonomy, short of secession,
for groups defined territorially or by common ethnic, religious, and linguistic
bonds—as in autonomous areas within confederations’. Kirgis declares that the
status of the many faces is juridically uncertain. But, surely, if there is a right of
peoples to secede from the unrepresentative state, there must be a right to
representative government which, logically, would encompass autonomy for
some purposes. It is much more radical to postulate a right of secession, albeit
one conditioned by the factors Kirgis describes. It is evident that Kirgis proceeds
upon the assumption that the peoples of a state have a legal right to representative
government, the existence of which negates [putative] rights of secession.
5. Peoples and Self-Determination

The right of self-determination in international law is a right of ‘peoples’. Who
or what, then, constitutes a people? As in the case of the minority group,
international law offers no definition. This lack of clarity prompted Sir Gerald
Fitzmaurice in commenting upon the Declaration on Friendly Relations to
76
Van Dyke, The Individual, The State, and Ethnic Communities in Political Theory, in Kymlicka, above n 5 at
45.
77
Above n 58.
78
Ibid. See also F. L. Kirgis, ‘Custom on a Sliding Scale’, 81 AJIL 146 (1987).
castigate the notion of a legal right of self-determination as a nonsense: how can

a juridical non-existent entity be the possessor of a legal right?79 It seems, though,
that international law copes fairly well with the juridically undefined: as witness
the work of the Human Rights Committee in relation to Article 27 of the ICCPR
and that of the High Commissioner on National Minorities of the OSCE.
The question which arises is: can a minority claim also to be a people with a
right of self-determination (in the internal sense of securing truly representative
government, as described above) in accordance with Article 1 of the ICCPR? If
the answer is yes, is there any legal mechanism by which such a right might be
enforced? Until recently, there seems to have been an assumption that ‘peoples’,
as referred to in Article 1, and minorities are fundamentally different species of
entity. If a group is a minority under Article 27 of the ICCPR, then it seemed
likely that it would not be able to assert a right of self-determination under
Article 1. This writer has encountered no satisfactory explanation as to why a
minority (which is not also an indigenous people, see Ominayak, Chief of Lake
Lubicon Band v Canada80) cannot claim to be a people, endowed with a right of
self-determination, albeit a right which is non-justiciable before the Human
Rights Committee.81 An indigenous people is a minority for the purposes of
Article 27.82 There seems to be an assumption that an ethnic minority is limited
to asserting rights under Article 27. Indeed, an indigenous people, whilst
a people, cannot seek determination of claims respecting the right of self-
determination under Article 1, but for jurisdictional , rather than jurisprudential
reasons.83 Stavenhagen puts the question simply: ‘[I]f “minorities” are not
“peoples”, according to international law, then why not?’ 84 And in similar vein,
Gudmundur Alfredsson:
The absence of internationally accepted definitions of the terms ‘peoples’ and ‘mi-
norities’ is a constant source of difficulties for the further elaboration of the self-
determination concept. Why are the populations of Andorra and Monaco accepted as
peoples, while the Basques and the Bretons are considered to be minorities?85
Likewise, Ian Brownlie takes the view that ‘the heterogeneous terminology which
has been used over the years—the references to “nationalities”, “peoples”,
“minorities”, and “indigenous populations”—involves essentially the same idea’
and in relation to what constitutes a people:
79
See, generally, the comprehensive account by Sir Ian Sinclair, ‘The Significance of the Friendly Relations
Declaration’ in Lowe and Warbrick, above n 40 at 8.
80
Above n 20.
81
Ibid.
82
Ibid and see Gilbert, above n 10 at 167 and 178–9.
83
In Ominayak, ibid, the Human Rights Committee confined the claim to Article 27, on the basis that
jurisdiction under the Optional Protocol is confined to communications by individuals who claim violations of the
rights set forth (Optional Protocol, Article 1): ‘the author, as an individual, could not claim under the Optional
Protocol to be a victim of a violation of the right of self-determination . . . which deals with rights conferred upon
peoples, as such’ (para 13.3).
84
Stavenhagen, above n 45.
85
G. Alfredsson, ‘Different Forms of and Claims to the Right of Self-Determination’ in Clark and Williamson,
above n 45 at 71.
The principle appears to have a core of reasonable certainty. This core consists in the
right of a community which has a distinct character to have this character reflected in
the institutions of government under which it lives . . . distinct character depends on
a number of criteria . . . race is one of the more important . . . but the concept of race
can only be expressed scientifically in terms of more specific features, in which matters
of culture, language, religion, and group psychology predominate.86
A United Nations Educational, Scientific, and Cultural Organization (UNESCO)
meeting of experts on international law defined a people as a group enjoying
some or all of the following features: ‘1(a) A common historical tradition; (b)
Ethnic group identity; (c) Cultural homogeneity; (d) Linguistic unity; (e) Re-
ligious or ideological affinity; (f) Territorial connection; (g) Common economic
life’. Taking this approach, it is difficult to think of a minority which does not
fulfill most of the criteria, save that (f) and (g) may be more problematic. The
requirement of territorial connection is capable of bearing a number of meanings:
for example, the necessity of adjacency to a kin-state, historical occupation of a
defined geographic area, or the enjoyment of a special relationship with the land,
as is often the case with indigenous peoples. The writer’s provisional view is that
there seems to be no reason, in law, why a minority cannot constitute a people.
There may be strong political objections to this position, but those objections
stem from fears regarding the concept of self-determination, particularly the
equating of a right of self-determination with a right to secede.
Higgins takes the view that ‘peoples’ in common Article 1 means ‘all the
peoples of a given territory’ and that ‘minorities as such do not have a right of
self-determination. This means, in effect, that they have no right to secession,
to independence, or to join with comparable groups in other states’.87 However,
Higgins is not as categorical in her approach as appears at first sight. She qualifies
her statement by acknowledging that there is nothing in international law which
prohibits secession and that international law places no obligation ‘upon minority
groups to stay a part of a unit that maltreats them’.88 In her earlier discussion
of self-determination in the post-colonial era, she observed that ‘there is no legal
right to secession where there is representative government’.89 Her analysis would
suggest that, in her view, a minority has a putative right of self-determination,
which might extend to secession, such a right being contingent upon the existence
of unrepresentative government. It has been suggested by Doehring, in his
commentary upon the UN Charter that secession, through the use of force,
might be justified in the face of oppression and brutality by the state. In the
General Assembly’s Declaration on the definition of aggression, the ‘use of force
is not generally prohibited if it appears to support self-determination’.90
86
I. Brownlie, ‘The Rights of Peoples in Modern International Law’ in J. Crawford (ed.), The Rights of Peoples
(1992) at 5.
87
Higgins, above n 75 at 124.
88
Ibid at 125.
89
Ibid at 117.
90
K. Doehring, ‘Self-Determination’ in B. Simma (ed.), The Charter of the United Nations: A Commentary
(1994) 56 at 66, discussing UN G.A. Res. 3314 (XXIX) (1974), Article 7.
To proceed upon the assumption that if a minority group is not a people then
it can have no right of self-determination is itself perhaps fallacious. Even if the
view is taken that a minority is not a people, a minority is clearly part of a people
in the Higgins sense: to the extent that the minority is not effectively represented
in government,91 then the obligation upon the state to respect the right to self-
determination of all its peoples will not have been fulfilled.92
A. Towards enforcement of a right to self-determination

This discussion has addressed the theoretical question of whether a minority
can claim to be a people with a consequent right of self-determination. Even if
the argument that a minority is a people93 is accepted, and the view taken that
internal self-determination is a right in international law, these facts in themselves
do not afford a vehicle whereby such a right could be adjudicated and enforced.
As has been seen, Article 1 of the ICCPR itself cannot form the basis of a claim
before the Human Rights Committee. However, obligations which a state has
undertaken under the ICCPR are required to be taken into account under the
ECHR, by virtue of Article 58, which provides that: ‘Nothing in this Convention
shall be construed as limiting or derogating from any of the human rights and
fundamental freedoms which may be ensured under the laws of any High
Contracting Party or under any other agreement to which it is a party’. Thus,
were a state to prevent a minority/people from taking part in the self-determination
process, possibly through the application of citizenship laws, but also via gerry-
mandering or the proscription of certain types of political party,94 then reverting
to Article 3, Protocol 1 of the ECHR, a minority group95 could argue that the
obligation to hold free elections ‘under conditions which will ensure the will of
the people’, should be construed in the light of its right of self-determination in
Article 1 of the ICCPR. Whether the ECHR would be interpreted so as to
question a mere system of holding elections (proportional representation versus
first past the post) is doubtful, even though the effect can be de facto to
91
See text accompanying nn 36–7 and nn 57–9.
92
The distinction between rights asserted by members of minority groups, and the obligation upon states to
afford members of minority groups all human rights recognized in international law, including Article 1 of ICCPR,
was drawn by the Badinter Committee in its consideration of a question put by the Republic of Serbia: does the
Serbian population in Croatia and Bosnia-Herzegovina, as one of the constituent peoples of Yugoslavia, have the
right of self-determination? The Committee opined that:
3. . . . one possible consequence of [Article 1 ICCPR] might be for members of the Serbian population . . . to
be recognized . . . as having the nationality of their choice . . .
(i) . . . the Serbian population . . . is entitled to all the rights concerned . . . to minorities and ethnic groups
under international law . . . and
(ii) . . . the republics must afford the members of those minorities and ethnic groups all the human rights and
fundamental freedoms recognized in international law, including, where appropriate, the right to choose their
nationality. 3 EJIL 183–4 (1992).
93
Or part of the ‘peoples’ with a right of self-determination such that denial of part equals denial of all.
94
Viz the Constitution of Bulgaria and see also KPD v FRG App. No. 250/57, 1 Yb ECHR 222 (1957) which,
by analogy, must imply the right to political participation in normal circumstances. See also Gilbert, above n 75.
95
Article 34 of the ECHR permits petitions from ‘any person, non-governmental organization or group of
individuals’.
disenfranchize a proportion of the population.96 Likewise, it would be possible
to make the same argument in relation to those articles of the ECHR which are
directed towards maintaining and underpinning a pluralistic democracy, for
example, Articles 10 (freedom of speech) and 11 (freedom of association). This
approach shifts the focus from disputes regarding the autonomy issue to a
recognition that self-determination should be made meaningful for all peoples.
In the words of Thomas Franck, ‘Self-determination postulates the right of a
people organized in an established territory to determine its collective political
destiny in a democratic fashion and is therefore at the core of the democratic
entitlement’.97 To his words should be added the refinement that democracy as
understood today requires a truly pluralistic democracy: the Vienna Declaration
states:
Special assistance should be given to measures to assist in the strengthening and
building of institutions relating to human rights, strengthening of pluralistic democracy
and the protection of groups which have been rendered vulnerable . . . Equally important
is the assistance to be given to the strengthening of the rule of law, the promotion of
freedom of expression and the administration of justice, and to the real and effective
participation of the people in the decision-making processes. (Part C, para 67)
6. Conclusion
This article has sought to establish that autonomy should be regarded as an
appropriate vehicle for the enjoyment of human rights by minority groups.
Clearly it is a mechanism which relates to the existence of the group qua group,
and its shape and content will be variable according to the circumstances of the
group. A more constructive dialogue between majority and minority may be
achieved if attention is focused upon the nature of pluralistic democracy and
the measures required to achieve it, rather than pursuing the recognition of
collective minority rights as part of international human rights law. Sometimes
there is no alternative to hard law, but the soft approach exemplified by the
OSCE with its emphasis on partnership, dialogue, and cooperation may be the
better way forward in what is an extremely troublesome issue in the realm of
minority rights. To focus on the state’s obligation, rather than the individual’s
rights, may be the political expedient demanded here; whichever perspective is
adopted, the result achieved should, in fact, be the same.
96
See G & E v Norway, above n 26.
97
Above n 9 at 52.

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Minority Groups, Autonomy, and Self-

International law continues to fight shy of addressing, in terms, perhaps the

self-determination. It will be argued that, first, a corollary of the right of self-

2. Rights for Members of Minority Groups—

mechanism in the shape of an individual right of petition. Rather, Article 25

4. International Instruments and Autonomy—An Emerging

satisfactorily resolved in a democratic political framework [which] guarantees

There is also evidence of a growth in state practice towards greater participation

Hungary and Romania, which eventually resulted in the signing of a Treaty on

A. Self-determination and autonomy

• self-administration by a national minority of aspects concerning its identity

5. Peoples and Self-Determination

castigate the notion of a legal right of self-determination as a nonsense: how can

A. Towards enforcement of a right to self-determination

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