Ulrike Barten (Auth.) - Minorities, Minority Rights and Internal Self-Determination-Springer International Publishing (2015)

Ulrike
Barten
Minorities,
Minority
Rights and
Internal Self-
Determination
Minorities, Minority Rights and Internal
Self-Determination
ThiS is a FM Blank Page
Ulrike Barten
Minorities, Minority Rights

and Internal
Self-Determination
Ulrike Barten
Department of Law
University of Southern Denmark
Odense
Denmark
ISBN 978-3-319-08875-4 ISBN 978-3-319-08876-1 (eBook)

DOI 10.1007/978-3-319-08876-1
Springer Cham Heidelberg New York Dordrecht London
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Preface
Distinguished reader,
The book you are holding in your hand was originally written, submitted and
accepted as a Ph.D. thesis at the University of Southern Denmark. For 3 years I
could immerse myself into a topic which most scholars regard as two separate ones:
minority rights and the right to self-determination.
This book shows that they are two sides of the same coin. Minority rights
guaranteed by international hard and soft law overlap considerably with the concept
of internal self-determination. Thus, the conclusion is that minorities have a right to
internal self-determination; a conclusion that states should not fear but can embrace
in good faith.
Since the thesis was submitted, international law has developed further. This is
reflected in the updates that are incorporated. A few points have been explained or
strengthened. Chapter 10 has been reworked and the overlap of self-determination
and minority rights is spelt out more clearly.
My thanks go to many different people who were there for me during the process
of writing the Ph.D. thesis and who have now helped to make the thesis into a
publishable piece of work. I cannot name them all. However, I would like to thank
my Ph.D. supervisor Bugge Daniel, whose nagging questions and drawing abilities
I came to appreciate during the process of writing.
My thanks go also to my former colleagues at the Department of Border Region
Studies of the University of Southern Denmark as well as to all involved in this
book project at the Law Department of the University of Southern Denmark.
Furthermore, I thank the assessment committee composed of Prof. Dr. Michael
Steinicke of Aarhus University, Dr. Catriona Drew of SOAS and Dr. Sia
Spiliopoulou Åkermark of the Åland Islands Peace Institute for their valuable
comments.
v
vi Preface
Last but certainly not least I would like to thank Timo, whose simple words of
encouragement carry me through the rough parts of life.
Odense, Denmark Ulrike Barten

June 2014
Glossary
ACHPR African Charter on Human and Peoples Rights

art./arts. Article/s (of a treaty/declaration/agreement)
CERD Committee on the Elimination of Racial Discrimination
CFR Charter of Fundamental Rights
CIL customary international law
CoE Council of Europe
CSCE Conference on Security and Co-operation in Europe
EC European Communities
ECOSOC United Nations Economic and Social Council
ECHR European Convention of for the Protection of Human Rights and
Fundamental Freedoms
ECtHR European Court of Human Rights
EU European Union
FCNM Framework Convention
FRD Friendly Relations Declaration (also: GA Res. 2625)
GA United Nations General Assembly
GA Res. United Nations General Assembly Resolution
GATT General Agreement on Tariffs and Trade
GC Genocide Convention
HCNM OSCE High Commissioner on National Minorities
ICCPR International Covenant on Civil and Political Rights
ICERD International Convention on the Elimination of all Forms of Racial
Discrimination
ICESCR International Covenant on Economic, Social, and Cultural Rights
ICJ International Court of Justice
ICJ-S Statute of the International Court of Justice
ICTY International Criminal Tribunal for the Former Yugoslavia
ILO International Labour Organization
IMF International Monetary Fund
vii
viii Glossary
IR International relations
LoN League of Nations
LC Language Charter
NATO North Atlantic Treaty Organization
NGO Non-Governmental Organization
para./paras. Paragraph/s (of a treaty/declaration/agreement)
PCIJ Permanent Court of International Justice
ODIHR OSCE Office for Democratic Institutions and Human Rights
OSCE The Organization for Security and Co-operation in Europe
PACE Parliamentary Assembly of the Council of Europe
Res. Resolution
TEU Treaty on European Union
TFEU Treaty on the Functioning of the European Union
UDHR Universal Declaration of Human Rights
UN United Nations
UNC Charter of the United Nations
UNESCO United Nations Educational, Scientific, and Cultural Organization
US United States of America
VCLT Vienna Convention on the Law of Treaties
VDPA Vienna Declaration and Programme of Action
Contents
Part I The Framework
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.1 Research Question and Approach . . . . . . . . . . . . . . . . . . . . . . 4
1.2 Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.3 Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.4 Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2 The International Relations Framework . . . . . . . . . . . . . . . . . . . . 15
2.1 Liberalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.2 Regimes, Governance and Institutions . . . . . . . . . . . . . . . . . . 20
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3 Classic Sources on Minority Rights and Self-Determination . . . . . 27
3.1 Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.1.1 Minority Rights in Treaties . . . . . . . . . . . . . . . . . . . . 28
3.1.2 Self-Determination in Treaties . . . . . . . . . . . . . . . . . 34
3.1.3 Intermediate Conclusion . . . . . . . . . . . . . . . . . . . . . . 36
3.2 Customary International Law . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.2.1 Classic Customary International Law . . . . . . . . . . . . 37
3.2.2 Modern Customary International Law . . . . . . . . . . . . 41
3.3 Other Sources of International Law . . . . . . . . . . . . . . . . . . . . 43
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ix
x Contents
4 Non-State Actors and Non-Binding Instruments . . . . . . . . . . . . . . 49

4.1 International Governmental Organizations as Non-State
Actors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4.1.1 Taking International Governmental Organizations
Seriously . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
4.1.2 Criteria for International Organizations . . . . . . . . . . . 53
4.1.3 Overview of International Governmental
Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
4.2 Non-Binding Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
4.2.1 Non-Binding Instruments Under Classic
International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
4.2.2 Inefficient Treaty Law . . . . . . . . . . . . . . . . . . . . . . . 70
4.2.3 Criteria for Non-Binding Instruments . . . . . . . . . . . . 71
4.2.4 Overview of Non-Binding Instruments . . . . . . . . . . . 72
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
5 Legitimacy and Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
5.1 Legal Positivism and Sources Doctrine . . . . . . . . . . . . . . . . . 90
5.2 Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
5.3 Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
5.4 The Original Position, Minorities and Self-Determination . . . . 105
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
6 Legitimacy and Justice of Non-Binding Instruments . . . . . . . . . . . 115
6.1 Summary of the Criteria of Legitimacy and Justice . . . . . . . . . 116
6.2 The UN Minority Declaration . . . . . . . . . . . . . . . . . . . . . . . . 117
6.2.1 Legitimacy of the UN Minority Declaration . . . . . . . . 117
6.2.2 Justice of the UN Minority Declaration . . . . . . . . . . . 118
6.3 The Copenhagen Document . . . . . . . . . . . . . . . . . . . . . . . . . . 120
6.3.1 Legitimacy of the Copenhagen Document . . . . . . . . . 120
6.3.2 Justice of the Copenhagen Document . . . . . . . . . . . . 122
6.4 Resolution 1541 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
6.4.1 Legitimacy of Resolution 1541 . . . . . . . . . . . . . . . . . 123
6.4.2 Justice of Resolution 1541 . . . . . . . . . . . . . . . . . . . . 126
6.5 The Friendly Relations Declaration . . . . . . . . . . . . . . . . . . . . 127
6.5.1 Legitimacy of the Friendly Relations Declaration . . . . 127
6.5.2 Justice of the Friendly Relations Declaration . . . . . . . 129
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Contents xi
Part II Key Concepts
7 Minority Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

7.1 A History of Minority Rights . . . . . . . . . . . . . . . . . . . . . . . . . 138
7.1.1 The Beginnings of Minority Protection in Europe . . . 138
7.1.2 Post World War I: The Minority Treaties . . . . . . . . . 140
7.1.3 Minority Protection in the League of Nations . . . . . . . 142
7.2 The Concept of Minority Rights . . . . . . . . . . . . . . . . . . . . . . 147
7.2.1 The Collective Dimension . . . . . . . . . . . . . . . . . . . . 148
7.2.2 Equality and Non-Discrimination . . . . . . . . . . . . . . . 152
7.2.3 Minority Rights as Additional Rights . . . . . . . . . . . . 153
7.3 Further Characteristics and Challenges of Minority Rights . . . 154
7.4 On the Necessity of Minority Rights . . . . . . . . . . . . . . . . . . . 156
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
8 Minority, People, Nation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
8.1 Minority Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
8.1.1 National vs. Ethnic, Religious and Linguistic
Minorities? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
8.1.2 The Nationality Requirement . . . . . . . . . . . . . . . . . . 166
8.1.3 Characteristics and Recognition of Minorities . . . . . . 169
8.1.4 Subjective Factors . . . . . . . . . . . . . . . . . . . . . . . . . . 170
8.1.5 Detecting Minorities via Historical Threats . . . . . . . . 172
8.2 Minority, People, Nation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
8.2.1 Indigenous Peoples . . . . . . . . . . . . . . . . . . . . . . . . . . 175
8.2.2 Peoples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
8.2.3 Nations as a Link . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
9 Understanding Self-Determination . . . . . . . . . . . . . . . . . . . . . . . . 185
9.1 The Historical Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
9.1.1 The Nineteenth Century . . . . . . . . . . . . . . . . . . . . . . 186
9.1.2 World War I: Self-Government and
Self-Determination . . . . . . . . . . . . . . . . . . . . . . . . . . 188
9.1.3 Self-Determination During the Cold War . . . . . . . . . . 190
9.1.4 Self-Determination Today . . . . . . . . . . . . . . . . . . . . . 191
9.2 Conceptual Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
9.2.1 External and Internal Self-Determination . . . . . . . . . . 194
9.2.2 Underlying Thoughts on Self-Determination . . . . . . . 199
9.2.3 Self-Determination as Result or Process . . . . . . . . . . 201
xii Contents
9.2.4 The Nature of the Right to Self-Determination . . . . . . 202

9.2.5 Self-Determination for a Nation, a People
and for Whom Now? . . . . . . . . . . . . . . . . . . . . . . . . 205
9.3 The Content of Self-Determination . . . . . . . . . . . . . . . . . . . . 207
9.4 Self-Determination, Minorities and Minority Rights . . . . . . . . 211
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
Part III The Analysis
10 Minority Rights and Internal Self-Determination . . . . . . . . . . . . . 223

10.1 The Right to Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
10.1.1 Legitimacy of the Right to Identity . . . . . . . . . . . . . . 228
10.1.2 Justice of the Right to Identity . . . . . . . . . . . . . . . . . 229
10.1.3 The Right to Identity and Self-Determination . . . . . . 231
10.2 The Right to Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
10.2.1 Legitimacy of the Right to Language . . . . . . . . . . . . 233
10.2.2 Justice of the Right to Language . . . . . . . . . . . . . . . . 236
10.2.3 The Right to Language and Self-Determination . . . . . 237
10.3 The Right to Cross-Frontier Contacts . . . . . . . . . . . . . . . . . . . 238
10.3.1 Legitimacy of the Right to Cross-Frontier Contacts . . . 239
10.3.2 Justice of the Right to Cross-Frontier Contacts . . . . . . 241
10.3.3 The Right to Cross-Frontier Contacts and Self-
Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
10.4 The Right to Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
10.4.1 Legitimacy of the Right to Participation . . . . . . . . . . 246
10.4.2 Justice of the Right to Participation . . . . . . . . . . . . . . 249
10.4.3 The Right to Participation and Self-Determination . . . 251
10.5 Minority Rights and Internal Self-Determination . . . . . . . . . . 253
10.5.1 Internal Political Self-Determination . . . . . . . . . . . . . 254
10.5.2 Internal Economic Self-Determination . . . . . . . . . . . . 255
10.5.3 Internal Social Self-Determination . . . . . . . . . . . . . . 257
10.5.4 Internal Cultural Self-Determination . . . . . . . . . . . . . 258
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
11 Putting Together the Pieces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
11.1 Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
11.2 Tools and Preparations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
11.3 Results: Internal Self-Determination and Minority Rights . . . . 270
11.4 The Right to Internal Self-Determination of Minorities
in Larger Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
Contents xiii
Part IV Conclusion
12 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
12.1 Traditional and Alternative International Law . . . . . . . . . . . . . 281
12.2 The Right to Internal Self-Determination of Minorities . . . . . . 282
12.3 Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
13 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
13.1 Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
13.2 The Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
13.3 The Right to Internal Self-Determination of Minorities . . . . . . 291
Annex I: Overview of Minority Rights Provisions
in Minority Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
Part I
The Framework
Chapter 1
Introduction
Minorities and self-determination are two areas that each has triggered numerous
discussions. The United Nations (UN) estimates that 10–20 % or 600 million to 1.2
billion of the world population belong to minorities.1 With such an amount of
members of minorities, there are few states that do not encompass any minorities.
Minorities and their rights are global issues.
Self-determination is a global phenomenon and continues to be claimed by
groups around the world. This is so despite the indeterminacy of the concept. It is
not clear what amounts to self-determination, how it is achieved and who can claim
it under what circumstances. Yet, self-determination was responsible of the
restructuring of the world map during the era of decolonization and still today
conflicts are fought on the basis of self-determination.
Minorities, minority rights and self-determination continue to be discussed but
the link between them is usually denied. If self-determination is taken to the
extreme, it means secession, breaking up states or at least changing the status
quo.2 If this was to apply to minorities, based on the large number of minorities
worldwide, a map of thousands of states could become reality. International law,
which ultimately is made by states for states, is not interested in touching self-
determination which is often likened to the opening Pandora’s Box which contains
riots, upheavals, rebellions and even armed conflicts. To stay with this metaphor,
what is often forgotten is that Pandora’s Box not only contained evil but also
something positive. Conferring this thought to self-determination, once external
self-determination is left aside, internal self-determination has a possibility to
emerge and develop. Internal self-determination is no guarantee for avoiding
conflicts; however, its starting point is not as threatening as external self-
1
United Nations (2014) Minority Estimation. http://www2.ohchr.org/english/issues/minorities/
guide.htm. Accessed 06 May 2014. The UN does not provide information on the definition used
to determine these numbers.
2
See Seidl-Hohenveldern (1997), recital 1557.
© Springer International Publishing Switzerland 2015 3

U. Barten, Minorities, Minority Rights and Internal Self-Determination,
DOI 10.1007/978-3-319-08876-1_1
4 1 Introduction
determination. Most states do not recognize this difference. For most states, self-
determination as a whole is Pandora’s Box and should not be opened let alone
opened in connection with minorities.
Somewhat surprisingly, scholars have mostly taken the same stance. The very
easy explanation as to why self-determination and minorities are not connected is
that self-determination is a right of peoples. As minorities are not peoples, they
cannot claim self-determination. This is just one of the accepted truths in interna-
tional law that is questioned in this project.
Especially minority rights are relevant and a current issue for many states.
Minority rights are now ‘increasingly recognized as an integral part of the United
Nation’s [sic] work for the promotion and protection of human rights, sustainable
human development, peace and security.’3 If minority rights can contribute to the
solving of self-determination conflicts, this is an avenue worth exploring.
This project is a first step to something further. Here, the relationship between
minorities, minority rights and self-determination is explored. One could well asked
and then what? Why is this of any significance? Well, assuming minorities have a
right to internal self-determination, we could start discussing minority issues and
self-determination conflicts in new frameworks. If self-determination is no longer
the threat to a state’s existence, we might be able to improve the relationship
between minorities—and possibly other groups, but this goes beyond this pro-
ject—and the state in cases where minorities want more. More of what? More
participation, more decision-making, more influence or simply more of being left
alone. The “what” can be many things; however, what most “whats” have in
common is that the state is unwilling to give it to the group. A new framework, a
new understanding of what self-determination actually encompasses, a new under-
standing of how close a minority and a people is in terms of definitions, a new
understanding of how much overlap there really is when speaking of minority rights
and internal self-determination—all this could contribute to peaceful solutions of
conflicts involving minorities and/or self-determination claims.
One could argue that this project thus stops short of the really interesting
question. It closes with an answer to minorities and self-determination. It does
not go on further and tests the applicability of the conclusion in cases. This is a next
step that remains to be done; it is simply not within the scope of this project.
1.1 Research Question and Approach
The legal fields of minority rights and self-determination have a similar history with
many points of contact. For example, the Religious Peace of Augsburg of 1555 is
discussed in the chapter of minority rights. Yet, it may just as well be placed in the
3
United Nations (2014) Minority Main Page. http://www2.ohchr.org/english/issues/minorities/
index.htm. Accessed 06 May 2014.
1.1 Research Question and Approach 5
chapter on self-determination. After all, the treaty recognized religious minorities

but it also gave the rulers of the Holy Roman Empire the right to religious self-
determination within their own realms. A second example is seen when self-
determination and minorities were addressed within the same framework after
World War I. In recent years, the focus on process and democracy within self-
determination points at participatory rights of minorities. Considering this, the more
surprising it is that minorities and self-determination categorically are kept apart
today. This is called in question and leads to the research question.
Do minorities have a right to internal self-determination? This straight forward
question raises several issues which are discussed during the project. Directly
related to the research question, issues concerning the definition of minorities and
self-determination arise. Neither term is completely clear in its meaning. When
considering whether a group has a certain right, it is necessary to know exactly what
kind of group one is concerned with. The most pressing question regarding self-
determination is what self-determination entails. Another question in this context is
the nature of self-determination as principle or right.
The question on minorities and self-determination is not discussed much in
relation to the right holders but in terms of content of the rights. Most scholars
examine minorities and ask whether they qualify as peoples under international law,
as international law only recognizes the right to self-determination for peoples.4 I
do not try to mould minorities into the shape of peoples, but I argue that the content
of self-determination covers much of the same areas as minority rights.
Four minority rights—the right to identity, to language, to cross-frontier contacts
and to participation—are at the very centre of the discussion. For the selection of
these rights see Chap. 10. These rights are compared to the four dimensions of self-
determination. The four dimensions are determining the political status and decid-
ing on the economic, social and cultural development.
There are many actors in the field of minority rights. Most of the instruments
originating from these actors are not binding international law. There is no global
minority treaty. In Europe there is the Framework Convention in the Protection of
National Minorities, but on a global level, minorities continue to refer to art. 27 of
the International Covenant on Civil and Political Rights (ICCPR). Because there is
little binding minority law non-binding instruments are included in the project.
Their inclusion is not unproblematic from an international lawyer’s point of view.
As Rosalyn Higgins puts it: ‘To the international lawyer, the existence of the right is
tested by reference to the sources of international law.’5 The inclusion of four
specific non-binding instruments is justified by applying criteria under the headline
of legitimacy and justice. A special emphasis is put on the criterion of pedigree
which refers to the origin of the non-binding instruments. The four instruments are
4
Castellino and Gilbert (2003), p. 165.
5
Higgins (1994), p. 100.
6 1 Introduction
the UN Minority Declaration, the Copenhagen Document, General Assembly

Resolution 1541 (XV) and the Friendly Relations Declaration.
The approach of legitimacy is based on Thomas Franck’s theory of fairness.
Justice is inspired by John Rawls. To use Thomas Franck’s terminology, legitimacy
and justice are two dimensions of fairness. Franck develops fairness in relation to
rules. The idea is that a fair rule exhibits a strong compliance pull. In other words,
states are more likely to be pulled towards compliance when a rule is fair. Fairness
has two dimensions. The procedural aspect is covered by legitimacy. Only when the
procedure of the rule making is fair, a compliance pull worth mentioning is
possible. Procedure, however, is not alone in determining the compliance pull.
The rule must not only be the result of fair process but it must also be just in its
substance. When both dimensions are positively affirmed, a rule has a strong
compliance pull. Only a strong compliance pull justifies the legal status of a rule.
Compliance pull and non-binding instruments seemingly contradict each other.
This is not so. The classic way of international law is to demand compliance
because there exists a rule according the sources of art. 38 (1) ICJ-S. Here, the
argument is reversed. One cannot refer to art. 38 (1) ICJ-S. The Copenhagen
Document and the UN Minority Declaration are therefore non-binding under
international law. It is at this point that Franck’s compliance pull comes in. A
strong compliance pull signals that states are likely to follow the statement in
question. In other words, a strong compliance pull means states will most likely
treat the statement as a rule that has to be obeyed. The compliance pull is based on
the performance regarding legitimacy and justice.
The international community of legal scholars has been split in its acceptance of
legitimacy and justice as legal tools; some welcoming it, others rejecting
it. Nevertheless, both scholars and reality in the last 20 years have shown that
soft factors like fairness, justice and legitimacy play an ever larger role. This project
obviously takes these soft factors seriously and finds them of high relevance in the
field of human rights. Reinterpreting only slightly what Bruno Simma stated in
1999, legitimacy can sometimes be more important than legality.6 Legitimacy and
justice are clearly recognized as important factors that have to be taken into
consideration.
1.2 Framework
The project focuses on the European context. There are three main reasons for this.
Firstly, some of the most important instruments in the analysis originate in
European international governmental organizations. The instruments are thus
only applicable in Europe. Secondly, the approach used in the analysis calls for a
homogenous society. Differences in European states are recognized; however, in a
6
Simma (1999), esp. pp. 12 and 22.
1.2 Framework 7
global perspective Europe is regarded as a homogenous society when it comes to

valuing human rights and democracy. This very general view should not be taken to
disregard the differences that often appear between the judges at the European
Court of Human Rights.7 Also, in this context, one should not forget that similar
issues are treated in different ways. While issues concerning the Bretons and the
Corse are discussed—or in this case denied—in the framework of minority issues,
the Catalans are considered in relation to self-determination. Despite these differ-
ences, an underlying support of democracy and human rights is presupposed.
Thirdly, the approach of justice and specifically the idea of the original position
is set in a framework of liberal societies. States in Europe have been characterized
in many terms. Member states of the European Union along with states such as
Canada, the United States, Japan, New Zealand and Australia are considered ‘most
likely’ to fit this description.8
There are other reasons why Europe is an appropriate framework. Europe offers
unique possibilities for discussing developments in international law. Most impor-
tantly, Europe is a ‘prime mover’ when it comes to facing challenges of interna-
tional relations.9 The fact that most states in Europe are part of an even closer
system of minority protection—by being members of the European Union, the
Council of Europe, and the Organization for Security and Cooperation in Europe—
complicates the discussion at times. However, this is outweighed by the advantages.
These co-existing systems of human rights protection work both politically and
legally. They work for the further development of human rights protection—and
included in this are minority issues and self-determination. Also, as they are
important international organizations, even though they are regional in character,
they do influence the development of global international law in this field.10
This project focuses on international law which arguably leaves aside an impor-
tant aspect of both minority rights and self-determination: domestic law. Domestic
and also constitutional law fleshes out the somewhat hollow shell of many interna-
tional legal provisions. Before international courts, national law may act as evi-
dence as well as be subject to analysis of consistency with international obligations.
The importance of these laws is both recognized and accepted. Nevertheless, these
dimensions are excluded from the analysis. The aim here is to stay on the interna-
tional level and instead of accepting specific domestic laws, international politics
are accepted as the larger frame around the legal rights. Even here, several points
are being ignored. Nationalism plays a role in relation to self-determination,11 yet it
brings us far from the legal framework and therefore it is not part of the project.
The timeframe of the project covers the twentieth century until today. With the
patronage of US-president Wilson, self-determination as such became important
7
See Foighel (1997), pp. 3–4.
8
Slaughter (1995), p. 515.
9
Packer (1993), p. 23.
10
See Kahler (2000), p. 671. See also Checkel (2005), pp. 801–802.
11
Koskenniemi (1994) and Summers (2005).
8 1 Introduction
after World War I. The Cold War froze Europe’s borders, and ‘self-determination
was not a real issue between 1945 and 1989.’12 This changed profoundly and self-
determination was and remains a hot topic in international relations.
With minority rights, one has to start earlier. Nevertheless, also here the focus
will be on the twentieth century. The minority treaties under the auspices of the
League of Nations provide an adequate starting point. During the Cold War,
progress on minority rights was made in individual countries. It was only in the
1990s, that minorities again were placed high on the European multilateral agenda.
Regarding self-determination, one restriction is made here seemingly ad-hoc but
it is confirmed in Chap. 9. External self-determination is excluded as far as possible
from the project. Both political and scholarly discussions about self-determination
are in a vast majority centred on the issue of political self-determination and the
right to secession.13 Secession is one aspect of self-determination; however it is not
the only one.14 While I cannot and do not want to disregard this external aspect of
self-determination completely, I focus on the internal aspect which is not only
concerned with political participation issues but also with issues of language,
culture, social and economic nature. This is where I see the overlap between self-
determination and minority rights. It is important to stress that I do not argue in
favour of a right to external self-determination in relation to minorities. Self-
determination is much more than only secession. Chapter 9 shows that this restric-
tion is justified when examining the first conceptions of self-determination. Histor-
ical and modern concepts of self-determination up until the 1950s focused on the
internal aspects.
Discussing minority rights inescapably means discussing collective rights and at
this point, other groups and their rights impose themselves. Therefore, a clear cut is
necessary. Neither migrants nor refugees and their rights will be discussed. Indig-
enous people are only included in as far as they are defined differently from
minorities. This project focuses on what I call classic minorities.
1.3 Terminology
There are several important terms that recur throughout the project. The terms may
be either very wide, have several meanings or simply be unclear. Their usage is
explained here.
12
Valentine (2004), p. 453.
13
See for example Weller (2005). Weller gives the impression he speaks of self-determination as
such. His article, however, is overwhelmingly concerned only with the external aspect. See also
Tramboo (2001), p. 214; Kolodner (1994), pp. 159–160; Higgins (1994), pp. 118–119.
14
Discussions on a general right to secession and its link to common art. 1 of the ICCPR and
ICESCR exist plenty. See Franck (1995), pp. 154–162.
1.3 Terminology 9
Minorities Throughout this project, the term ‘minorities’ is mostly used without
any further qualification. There is a general understanding of the term under
international law. Sometimes the term ‘classic minorities’ is used. This excludes
groups that sometimes are termed minorities. These groups include immigrants,
refugees, homosexuals and political groups. They are not part of this project. It is
solely concerned with minorities that are covered by international instruments such
as the UN Minority Declaration and the Copenhagen Document. A clearer delin-
eation of the term is desirable but difficult in short words and therefore is addressed
in Chap. 8.
The use of the term ‘minority’ varies. When speaking of minorities in a general
sense, the above restriction applies which does not distinguish between further
categories of minorities. When addressing specific documents, ‘minority’ receives a
different meaning. The term then refers to the kind of minority the document is
concerned with. In the context of the UN Minority Declaration, the term ‘minority’
covers national or ethnic, linguistic and religious minorities. In the context of the
Copenhagen Document, ‘minority’ refers to a national minority. Referring simply
to minorities in both cases avoids confusion. It is impossible to clearly distinguish
between the different categories of minorities that seem to exist when one views
international documents. Sometimes different terms are used for the same group of
persons, yet there is agreement that we speak of a classic minority. The headline
‘minority’ in the sense of the classic minority fits all groups.
Non-Binding Instruments Classic international law recognizes only those rules as
legally binding that originate from one of the sources of art. 38 (1) ICJ-S. This
naturally leaves aside a lot of instruments originating in the international commu-
nity. In the field of human rights and especially in the field of minority rights, there
is a number of what I term non-binding instruments. This term clearly distinguishes
between those sources of international as are recognized by the sources doctrine and
those which are not. Thus, the meaning of the term ‘non-binding’ refers to ‘legally
non-binding under classic international law’. Other forms of bindingness are not
excluded.
The term ‘instruments’ covers mostly documents. These can be treaties, bilateral
or multilateral agreements, written political statements and agreements and unilat-
eral as well as multilateral declarations such as UN General Assembly resolutions.
‘Instruments’ also covers customary international law and oral legal or political
statements. ‘Instruments’ covers everything that influences, guides or in some other
way plays a role in the shaping of law and politics on the international level. The
legal distinction is to consider whether a specific instrument is binding. Here
non-binding instruments are introduced that are considered non-binding because
they are mere declarations, statements of principles, have no enforcement mecha-
nism or because they are solely political agreements. The point is that the pro-
visions in these documents do not provide the states with legal obligations.
This is an accepted and traditional way of evaluating the legal status of interna-
tional instruments. I have adopted this terminology although I regard traditional
10 1 Introduction
international law as unsatisfactory in its treatment of non-binding instruments. The

terminology thus does not reflect my own view on these instruments but is a
concession I make in order to gain clarity. This is the traditional way of approaching
international law and therefore serves as a common point of departure. I sometimes
use the term ‘classically non-binding instrument’ to stress that this is the classic
view shaped by positivism and the sources doctrine.
Some of the instruments I classify as non-binding in Chap. 5 are taken to reflect
customary international law. Amongst others, this is true for GA Resolution 1514
on the end of colonialism. While the content of this resolution may have been
accepted as custom, the resolution itself remains outside the sources of art.
38 (1) ICJ-S. Therefore, the resolution is found in the category of non-binding
instruments. It is no more than the point of departure; one the main points along the
way of this project is to argue that this strict categorization as I put forward in
Chap. 5 is not adequate and needs to be reconsidered.
Some of the instruments used in the analysis have been referred to as soft law.15
This is a term that has been used inflationary in recent years. As so much in this
project, it is yet another term that has not been defined properly. The choice against
using the term soft law and in favour of the term non-binding instruments is made
for the sake of clarification. Soft law implies a legal value that is far from clearly
established. ‘Non-binding’, on the other hand, states unequivocally that one does
not deal with anything originating in the legally binding sources of art. 38 (1) ICJ-S.
State The term ‘state’ is one of the most frequently used terms in this project. It is
used in two ways which may be distinguished as the international and the national
context. In the international context, the state is the primary subject of international
law. State refers to the independent and sovereign entity consisting of a territory, a
population and a government. In the national context, it is somewhat different.
Here, ‘state’ is mostly used as the ‘other party’ in relation to minorities. Minority
claims are made vis-à-vis another party. This is the state. In this context, the state
covers public and official decision-makers in political and administrative institu-
tions at all levels.
Non-State Actors Just as non-binding is a term adopted for the sake of clarity, so is
non-state actors a term that divides all actors into two categories: states and then
everybody else. This distinction makes no reference to competences of for example
international organisations. These are, of course, set up by states and their compe-
tences do not go beyond what states cede to them. At the same time, international
organisations have a tendency to carve their own portfolio. Also, even though set up
by states, organizations are not states. Therefore, international organizations fall
into the category of non-state actors.
Europe There are several ways of defining Europe such as according to geograph-
ical, cultural, political and possibly even economic factors. As the instruments
15
See Sect. 4.2 for more on soft law and non-binding instruments.
1.4 Structure 11
included in the analysis originate from European organizations, only those states
that are members of the Council of Europe and the Organization for Security and
Cooperation in Europe (OSCE) are included in the term ‘Europe’. This restriction
still leaves too broad a range of states. A second restriction to the term ‘Europe’ is a
geographical one. Only those states west of the Ural Mountains are considered
European. One more restriction is in place. It was stated above that European states
are considered to be liberal states. Thus, when considering ‘Europe’, the leading
role on many issues is played by Western European states. Their development since
World War II has coined the contemporary framework of Europe. At the same time,
it is not justifiable to exclude Central-Eastern European states. They contribute to
the existing European framework and the development of international law in
Europe.
International Community The term ‘international community’ or ‘international
society’ is used in this project. This term can have a global and a European
dimension. Koskenniemi has pointed out that the community is always represented
by some particular state, organization or movement. The global community must
always be defined further.16 The term is used as a community being made up of
sovereign states. The international community is characterized by its common stand
point on a given issue which often stands in contrast to a single or small group stand
point. The international community is no static entity. It can vary according to
issues and national interests. Therefore, it is useful to speak of the one and universal
international community. While like-minded states often find themselves together
in or outside the international community, states can do ‘community hopping’.
Using the term does not necessarily mean that I agree with the international
community on a given issue. I use the term to describe the viewpoints or approach
of a majority of states (either globally or in Europe) in a given context.
1.4 Structure
The project is divided into four parts. Part I provides background and framework for
the analysis. It introduces the relevant actors and proves the relevance of the
instruments that are used further on in the analysis.
Chapter 2 provides the adequate international relations framework. This chapter
establishes the possibility of inclusion of non-state actors and non-binding instru-
ment into the analysis. Chapter 3 takes a step back and provides an overview of
established international law on minority rights and self-determination. There is no
need to exclude undisputed international law. The overall evaluation of a minority’s
right to internal self-determination is only comprehensive when both undisputed
16
For an introduction to the matter and references for further reading see Kritsiotis (2002). For an
introduction to the matter and references for further reading. Koskenniemi (2004), p. 199.
12 1 Introduction
classic international law and the instruments included under the approach of
legitimacy and justice are included.
Chapter 4 introduces non-state actors and non-binding instruments relevant to
minorities and self-determination. Thus, a comprehensive picture of all actors and
instruments relevant to minority rights and self-determination emerges.
When international relations theory sees non-actors and non-binding instruments
as relevant, an international law theory is called for that accepts them as well. The
classic theory of legal positivism and sources doctrine does not provide much
support on this area. Therefore, the approach of legitimacy and justice is introduced
in Chap. 5.
Part I concludes with a first analytical chapter. Chapter 6 binds Chaps. 4 and 5
together. The criteria of legitimacy and justice of Chap. 5 are applied to four of the
non-binding instruments—two on minority rights and two on self-determination—
that are introduced in Chap. 4. Chapter 6 concludes that the examined non-binding
instruments are suitable for the subsequent analysis in Chap. 10. This is a precon-
dition for the subsequent discussion.
Part II deals with the vagueness and ambiguities of the terms used so far. It
addresses the terms ‘minority rights’, ‘minorities’ and ‘self-determination’. The
three terms are not entirely clear by themselves and even less clear when used in the
same context. Part II disentangles the many links, connections, overlaps between
terms and concepts. Apart from furthering the understanding of what we are
actually dealing with, conclusions of this part provide input for the final answer
in Chap. 11.
Chapter 7 addresses minority rights in relation to human rights. These two are
nonchalantly mentioned to be one and the same. Yet, there are fundamental
differences which distinguish minority rights from human rights and justify their
separate existence without losing the connection to human rights.
The term ‘minority’ is not bindingly defined internationally. There are uncer-
tainties regarding the different categories of minorities and their overlaps. Even
more uncertainties arise when the terms ‘peoples’ and ‘nations’ are included.
Confusing and overlapping terminology has been used.
Understanding self-determination is crucial to this project. There is a classic tale
of self-determination which focuses on the external dimension. Here, the tale is
different because it focuses on internal self-determination and self-determination as
process rather than result.
Part III opens with a detailed analysis in Chap. 10. Four specific minority
rights—the right to identity, the right to language, the right to contacts across
borders and the right to participation—are examined according to the criteria of
legitimacy and justice as introduced in Chap. 4. The analysis draws not only on the
instruments introduced in Chap. 6 on accepted sources but also on certain
non-binding instruments. These were shown to be relevant in Chap. 5. For each
minority right, a discussion is included on how far it overlaps with the right to self-
determination as proposed in Chap. 9.
Part III closes with the comprehensive Chap. 11 that draws on all previous
chapters. Legitimacy and justice work within a restricted framework. For an
References 13
informed and conclusive answer to the question on a right to internal self-

determination for minorities, it is necessary to leave the framework and take
other factors into consideration. Only when contemplating all chapters and
allowing their conclusions to be a part of the overall discussion, a comprehensive
answer regarding a right to internal self-determination for minorities is possible.
Part IV opens with the conclusion to the project. It provides an overview over the
whole project, the arguments and the final answer. Part IV also includes a summary.
References
Books and Articles
Castellino J, Gilbert J (2003) Self-determination, indigenous peoples and minorities. Macquarie

Law J 3:155–178
Checkel JT (2005) International institutions and socialization in Europe: introduction and frame-
work. Int Organ 59:801–826
Foighel I (1997) Gælder Menneskerettighederne. Ugeskrift for Retsvæsen, afd. B:1–5
Franck TM (1995) Fairness in international law and institutions. Oxford University Press, Oxford
Higgins R (1994) Problems & process – international law and how we use it. Oxford University
Press, Oxford
Kahler M (2000) Conclusion: the causes and consequences of legalization. Int Organ 54:661–683
Kolodner E (1994) The future of the right to self-determination. Conn J Int Law 10:153–167
Koskenniemi M (1994) National self-determination today: problems of legal theory and practice.
Int Comp Law Q 43:241–269
Koskenniemi M (2004) International law and hegemony: a reconfiguration. Camb Rev Int Aff
17:197–218
Kritsiotis D (2002) Imagining the international community. Eur J Int Law 13:961–992
Packer J (1993) On the definition of minorities. In: Packer J, Myntti K (eds) The protection of
ethnic and linguistic minorities in Europe. Åbo Akademi University, Akademi University,
Abo/Turku, pp 23–65
Seidl-Hohenveldern I (1997) Völkerrecht, 9th edn. Carl Heymanns Verlag, Köln
Simma B (1999) NATO, the UN and the use of force: legal aspects. Eur J Int Law 10:1–22
Slaughter A-M (1995) International law in a world of liberal states. Eur J Int Law 6:503–538
Summers JJ (2005) The right of self-determination and nationalism in international law. Int J
Minor Group Rights 12:325–354
Tramboo M (2001) The right to self-determination: towards mechanisms for its implementation.
In: Kly YN, Kly D (eds) In pursuit of the right to self-determination. Clarity Press, Atlanta, pp
214–216
Valentine JR (2004) Toward a definition of national minority. Denver J Int Law Policy
32:445–473
Weller M (2005) The self-determination trap. Ethnopolitics 4:3–28
14 1 Introduction
Online Sources
United Nations (2014) Minority Estimation. http://www2.ohchr.org/english/issues/minorities/

guide.htm. Accessed 06 May 2014
United Nations (2014) Minority Main Page. http://www2.ohchr.org/english/issues/minorities/
index.htm. Accessed 06 May 2014
Chapter 2
The International Relations Framework
International law neither exists nor is it made in a political vacuum. It would

probably often make life easier for those making and interpreting international
law if this were the case. However, circumstances have it that international relations
are important and as this project seeks to at least consider circumstances in the real
world, if not work with them, a word on the underlying international framework is
necessary. Allen Buchanan has given a short reason as to the necessity of an
underlying international relations framework. Paraphrasing, it is ‘an exercise in
futility’1 if the international relations theory one adheres to does not support the
approach one has to international law. By agreeing to international relations
realism, meaning that law is simply irrelevant to international politics,2 this project
would be reduced to a hypothetical exercise of the mind with no relevance. If one
accepts that international law has some sort of meaningful relationship with inter-
national relations, the starting point is very different. This is what is done in this
chapter. The background approach is explained that offers a larger framework for
the international legal discussion.
I adhere to the view that international law and international relations influence
each other and restrict each other. International law sets standards for international
relations; however, in the end it recognizes a de facto situation, even if the situation
came about by breaching (international) law. This is the principle of effectiveness.3
International law is thus curbed by reality. At the same time, states and their
representatives adhere to rules of international law; or they mostly do. Louis
Henkin’s often cited statement comes to mind: ‘It is probably the case that almost
all nations observe almost all principles of international law and almost all of their
obligations almost all of the time.’4 Another way of putting it is to say that
1
Buchanan (2004), p. 29.
2
3
Brownlie (2008), pp. 32–33.
4
Henkin (1968), p. 42.

DOI 10.1007/978-3-319-08876-1_2
16 2 The International Relations Framework
international law influences state behaviour or in stronger language: rules structure

politics.5
Four reasons have been identified for why states comply with international law.
First, weak states are coerced into complying. Secondly, there is the assumption
that everyone benefits from cooperation. Thirdly, coordination is necessary on a
number of issues. Rules are useful tools in the coordination process. A fourth reason
for complying with international law is simply the coincidence of interests.6 This
explanation is based on the assumption that states are the principal actors and that
they only act in their own interest. It then happens that any of the four reasons apply
separately or in combination or community and thus explain why states comply
with international law. This has been called the ‘instrumentalist optic.’7 Interna-
tional law is simply a political instrument.
While I think one cannot dismiss that states act in their own interest, interna-
tional law is not superfluous. The contrary reasoning for compliance with interna-
tional law maintains that states comply for what has been called ‘non-instrumental
reasons’ using a ‘normative optic.’8 Basically, compliance is assured because it is
the right thing to do. This is not say that states do not act in their own interests. It
simply means that international law ‘puts a significant break on the pursuit of these
interests.’9 There are different strands in this reasoning. One of them is state
consent—if a state has consented to a rule it is the right thing to adhere to it. A
second one is proposed by Thomas Franck who maintains that a rule’s normativity
depends on the rule’s legitimacy. Another view is that international law over time
can become part of the national value-set of the state and thus it becomes natural for
the state to adhere to international law.10 These views all share the assumption that
international law has a restrictive influence on state actions.
I follow Thomas Franck’s Fairness approach on legitimacy and add John Rawls’
Justice approach. According to this outline, I thereby follow the non-instrumental
approach. This is true yet not for the whole story. I believe the two approaches of
instrumentalist and non-instrumentalist reasoning are complementary. A legitimate
rule of international law exerts a strong compliance pull and it is thus likely to be
followed. This is not the same as claiming that legitimate rules are never breached.
Even though a rule is considered legitimate, it may be in a state’s interest to breach
it. Breaching a rule often has both a short-term and a long-term dimension.
Breaching the prohibition on the use of force may lead to a short term advantage
but be costly in terms of reputation for the state breaching the rule. Furthermore,
erosion of the prohibition on the use of force may be the long term result. In short, it
may simply be in the state interest to adhere to a legitimate rule. Or vice versa, state
5
Keohane (1997), p. 488.
6
Goldsmith and Posner (2005), pp. 11–12.
7
Keohane (1997), p. 489.
8
See respectively Goldsmith and Posner (2005), p. 14; Keohane (1997), p. 488.
9
Goldsmith and Posner (2005), p. 15.
10
For this summary see Goldsmith and Posner (2005), pp. 14–15.
2 The International Relations Framework 17
interests may simply happen to be the right thing. It is then difficult to conclude
whether compliance is based on state interest or because it is the right thing to do.
A second example of complementarity of the two approaches is seen in the
attitude of states towards minorities as, for example, expressed in the Preamble of
the Framework Convention. Protection of minorities is considered to be essential to
stability and peace. Stability and peace are generally seen as some of the most
important aims of a state. From this it follows that it is a state interest to protect
minorities; states thereby secure their own peace and stability. Only two paragraphs
later, the Preamble speaks of cultural diversity being a source and factor of
enrichment of each society. Cultural diversity is endowed with a positive value
and minorities are not protected because of state interest but because it is the right
thing to do. When the Framework Convention is implemented, is it because it is in a
state’s interest or because good things come out of it? Could it not be that both
reasons apply?
I do not see that the two approaches necessarily exclude each other and the
proposed division between the approaches takes us only so far. My discussion is
based on legitimacy and justice but even when discussing justice, I include the
criterion of ‘state consideration’ which bridges the gap between the instrumentalist
and the normative optic. In a setting of non-instrumental compliance I include the
instrumentalist optic.11
I share the view of other international lawyers that norms have an impact. Nature
and strength of the impact are questions excluded here. Yet, I think Harold Koh has
a point when he argues that repetitive behaviour on the international level is likely
to be internalized and thus a rule is created which in turn guides future international
behaviour. This means that the international behaviour will restructure state inter-
ests or at least contribute to their restructuring.12 Again, a bridge between the
instrumentalist and the normative optic is found. It is conceivable that international
behaviour at least at times is based on being the right thing to do. According to
Koh’s model, this could translate into state interest over time.
International law constantly faces the challenge of not being too dependent on
and neither too restrictive on international relations. Martti Koskenniemi has called
this From Apology to Utopia. If international law is too dependent on international
relations, it will simply state as law what reality is. It will not have a normative
character but simply be apologetic. At the same time, international law is criticized
for being based on speculative utopias.13 In other words, if international law aims to
be too restrictive on international relations, it will result in utopian rules that will
never be adhered to. This is a field of constant tension and shifting poles. What was
utopian a hundred years ago may well be considered apologetic today. Bringing
11
See Sect. 5.3.
12
For a presentation of his theory of transnational legal process see Koh (1997), pp. 2645–2658.
Koh also suggests empowering more actors to participate (p. 2656). This is done by the careful
selection of non-state actors.
13
Koskenniemi (1990), p. 9.
self-determination and minorities together is likely to be regarded as utopian. I

argue that it is well within the field between the two poles of apology and utopia.
Based on this assumption of close relationship of international relations and
international law, a few basic words about the underlying understanding of inter-
national relations are called for. International relations realism, one of the main
approaches to international relations, for example only accepts states as actors. I do
not share this view. In this, I am much closer to institutionalists and regime theorists
that include international institutions and examine their role in international rela-
tions. Accepting institutions in international law as I do, the number of possible
sources from which international law can emanate grows considerably. The sources
doctrine ignores this.14 What I do is to link international institutions with legitimacy
and justice. As a consequence, many instruments that I call non-binding under
classic international law are included in the analysis.
An explanation of the term ‘liberal states’ is needed as it recurs time and again in
the analysis. Liberalists and institutionalists both have expressed views on the
international order. They are both concerned with international law. While they
are not expressly addressed in the later discussions, they describe the basis upon
which the discussions rest.
2.1 Liberalism
One of the basic statements of liberalism denies the state the central position in the
international arena. Liberalism opens the black-box of realism and looks at what
happens within the state. Realism and institutionalism place the state at the centre of
international relations. Liberalism maintains that individuals and groups operating
in domestic and transnational society are the primary actors in international rela-
tions and that they are represented in some manner by governments.15 I share the
overall view that states are not the only relevant international actors. I also agree
that it is generally necessary to examine the relations between the different actors.
Here, however, I do not follow this path but stay on the international level. There
are two reasons for this. For one, my analysis on justice is placed in the original
position. It is the very aim in that position to lay down basic principles of society
before it is known what society looks like. There are not yet factual relations
between the different actors to consider. In the original position, the basic rules
of behaviour are laid down. For another, coping with the international arena both at
a global and a regional (European) level already provides adequate complexity.
At the heart of the liberal idea stands the liberty of the individual. After the end
of the Cold War, liberalism and its values of individual rights, human rights,
14
See Sect. 4.1.
15
Slaughter et al. (1998), p. 378. See also Moravcsik (1997), pp. 516–520.
2.1 Liberalism 19
received a boost and virtually all states in Europe,—Belarus is considered a border

case—are now considered liberal states.
The liberal state is a recurring term in this project. The short explanation is that a
liberal state is a state with some form of representative democracy, a market
economy based on private property rights and constitutional protections of civil
and political rights.16 Other attributes have been added: There is a dense network of
transnational transactions by social and economic actors, multiple channels of
communication on all levels exist and the distinction between domestic and foreign
issues is blurred.17
These are important attributes in a minority setting. They cannot guarantee
minority rights but at least they provide an open framework. Liberal democracy
is important to minorities who want to participate in various fields, especially in the
political field. Market economies provide members of minorities with the possibil-
ity to participate on equal footing with members of the majority. If transnational
transactions are understood broadly, they can occur in political, economic and
cultural spheres. Minorities, especially those with kin-states, are likely to be
interested in transnational transactions. The approximation of domestic and foreign
issues has happened in the field of minorities as they are regarded to be of
international concern.
According to liberal theory, liberal states are culturally neutral which poses a
problem for minorities because their recognition is a precondition for their protec-
tion. Will Kymlicka has dispersed with this idea and I think he has a point. To take
but one example, most liberal states have at least one official language that
everyone needs to learn.18 They elevate this language to a higher level. The
Framework Convention and the Language Charter both point out that the right to
learn a minority language does not withstand the necessity to learn the official
language.19
Returning to the liberal focus on the individual, some observations are made
regarding minority rights and self-determination. At first sight, liberalism with its
focus on the individual is not a fitting framework for a discussion on group rights.
Regarding minority rights, most of the rights of the Framework Convention or of
international documents like the Copenhagen Document20 and the UN Minority
Declaration are primarily aimed at the individual member of the minority. The
group dimension is always present as the rights are only accorded to members of a
minority and not just to anybody, but the focus itself lies on the individual. The
most important individual right of a member of a minority is the choice to be treated
16
Michael Doyle is often cited for introducing these criteria. See Doyle (1983), pp. 207–208.
17
18
Kymlicka (2001), pp. 21–22.
19
CSCE (1990) Copenhagen Document http://www.osce.org/odihr/elections/14304 Accessed
06 May 2014.
20
The Copenhagen Document refers only to Part IV on minorities. Aspects of adoption are, of
course, meant to apply to the whole document.
as such or not. This individual freedom soothes liberalists who fear that the minority
as a group irreversibly takes over rights of the individual.
The right to self-determination is a collective right. Still, it fits the liberal
framework. Self-determination as described in Res. 1541 and especially internal
self-determination stress the importance of free and democratic processes. Self-
determination cannot be achieved through autocratic structures where a small group
implements self-determination. Everyone must have had the possibility to be
included in the process. No one can be forced to participate but the opportunity
has to exist. The opportunity for each and every individual to participate is at the
core of the liberal worldview. Even though self-determination may be a collective
right, it is dependent on individuals. Self-determination is, at the core, a very
personal right. Though the right to self-determination as used in this project is a
collective right, there is a direct link to the individual.21
2.2 Regimes, Governance and Institutions
The approach of neoliberal institutionalism and regime theory22 influences the

framework of this project without being its strict limits. As Anne-Marie Slaughter
has aptly shown, there are large overlaps between regime theorists and international
lawyers that seek explanations about the relevance of international law and state
compliance with its rules.
Regarding the term ‘regime’, Stephen Krasner’s definition is well accepted. He
defines regimes as ‘sets of implicit or explicit principles, norms, rules, and decision-
making procedures around which actors’ expectations converge in a given area of
international relations.’23 Principles, norms and rules all shape expectation albeit in
different ways. While principles are beliefs of fact, causation and rectitude, norms
are standards of behaviour defined in terms of rights and obligations. Rules then are
specific prescription or proscription for action.24 Looking at principles, norms and
rules with an international lawyer’s eyes, we see that they vary in the degree of
bindingness. It is precisely these different levels of bindingness that I am concerned
with. Treaty provisions may be said to be norms or rules. Provisions, in what I term
to be non-binding instruments, are principles and possibly norms. As regime theory
explains, all these levels are of importance. They are relevant. International lawyers
still have problems including these three levels in their approaches.
21
For more on the freedom of the individual and democratic majority decision see Freeman
(1999), p. 362.
22
Anne Marie Slaughter has pointed out that early regime theory is now generally referred to as
institutionalism. See Slaughter (1993), p. 206.
23
Krasner (1982), p. 186.
24
Krasner (1982), p. 186.
2.2 Regimes, Governance and Institutions 21
Yet, a relation can easily be established. According to Slaughter, regime theo-

rists maintain that regimes lower transaction costs, create conditions for multilateral
negotiations, legitimate or de-legitimate certain types of state actions, improve the
quality of information between states, have a monitoring role, enhance the value of
reputation and establish legitimate standards of behaviour. International law has
similar functions. It provides rules of the game and fosters stable expectations,
posits criteria by which state actions are judged, facilitates channels of information
between the national and international level, enhances compliance by establishing
political and bureaucratic processes and improving transparency.25 The overlap
between regime theory and international law is not complete but it is here where my
own starting point is mirrored.
Another approach that is very closely related is that of international governance.
This approach examines ‘the formal and informal bundles of rules, roles and
relationships that define and regulate the social practices of state and nonstate
actors in international affairs.’26 This is very close to Krasner’s regime definition.
I do not necessarily want to restrict this to social practices. I find myself well
embedded within this description. Non-state actors, formal and informal rules, the
roles and relationships between various actors—all these terms either form the
starting point or are argued for in the course of the project. International governance
is aware of soft law and international institutions are regarded as bricks in the
process of furthering changes at the national level through the use of
nongovernmental organizations.27 To make it short, the approach of international
governance does not let this project be an exercise in futility.
Neoliberal institutionalists look at the role and relevance of international insti-
tutions. They examine the principles, norms, rules and decision-making procedures
that influence state expectations and behaviour. ‘As international lawyers soon
realized, this was international law by another name.’28 In short, neoliberal insti-
tutionalists examine the effect of institutions in the international society. They
assert that institutions can shape identities, roles and interests of states as they
provide behavioural guidance, reduce uncertainty and facilitate cooperation.29
This is as far as I agree with institutionalism. I agree with the subjects and
objects that are examined. I agree less with the reasoning regarding the bindingness
of international law which uses the instrumentalist optic. It is made clear that the
bindingness of international law depends on the costs of non-compliance.30 Thus,
institutionalists do not regard international law as a constraint because of its nature
but because it strategically makes sense for a state to comply with rules laid down in
25
For this comparison see Slaughter (1993), p. 220.
26
Slaughter et al. (1998), p. 371.
27
28
29
Sandholtz and Sweet (2004), pp. 241–242.
30
Hathaway defines costs as sanctions or harm to reputation.
a treaty that the state has consented to.31 The basic reason for compliance with
international law is regarded to be state interest or rational choice. This is an
instrumentalist approach in comparison to the non-instrumentalist approach of
fairness and justice.
The term ‘institution’ has been taken to mean different things. I find the
definition of Sandholtz and Stone Sweet useful who define institutions as rule
structures. As rules vary, so do institutions; as is set forth by international gover-
nance. There are thus informal institutions with imprecise and non-binding rules. At
the other end of the spectrum are highly formal and authoritative institutions like
the European Union with legal rules and judicialized dispute resolution.32
I consider the OSCE to be in the middle of the spectrum. While the OSCE set-up
itself is precise and many of its rules are unequivocal, it receives its authority not
from legal sources and thus does not fit the definition proposed for the highly formal
institutions. Nevertheless, I see the OSCE as a serious actor in the field of minority
rights.
International organizations, as one type of institutions, play an important role in
the development of international law. Multilateral treaties are often negotiated
within the framework and under the auspices of an international organization.
International organizations are made up of states,33 and it is states that ultimately
sign and ratify treaties; however, international organizations can develop their own
interests and further an issue in negotiations. Bodies can be established within an
organization where states only play a secondary role. Not all activities of an
international organization and of its different bodies result in binding international
law but the various UN bodies, for example, slowly develop minority protection
and they are often involved in the formative stages of the development of binding
international law.
International organizations have their drawbacks; they are not the cure-all. A
common criticism regards the declarations of intent—nice words but no action. The
process from negotiation over declaration to action can be a very long one. This is
certainly a weak point, though in my opinion it is not strong enough to justify the
termination of the work of international organizations. A second criticism aims at
the transparency or rather the lack of it. Many processes are not open and therefore
decisions are open to suspicions and want for legitimacy. Again, it is matter of
balancing the outcome with the process and determining whether one considers the
gains in outcome to balance the losses in process.
International institutions—be they organizations, norms, principles or rules—
play a central role in this project. This is based on several reasons. For one, simply
31
Here, institutionalists use game theoretic reasoning. Hathaway (2002), p. 1951; Sandholtz and
Sweet (2004), p. 243. These institutionalists have also been called ‘modified structural realists’;
see Slaughter (1993), pp. 218–219.
32
Sandholtz and Sweet (2004), pp. 240–241.
33
There are exceptions such as the International Labour Organization that accepts non-state actors
as full members. Many international governmental organizations allow other organizations a
minor role.
2.2 Regimes, Governance and Institutions 23
put, Europe is full of extensive and well-developed institutions. I see states

undoubtedly as important international actors. However, they are not the only
ones. The overview of actors involved with minority issues and self-determination
shows that actors other than states have to be taken into account.34 International
organizations can be more than only the sum of the members. They can develop
their own agenda, institutions and power. What I do within the analysis is reshuffle
the institutions and accord them new weight or importance. I take norms and
principles of organizations—all three are institutions—and look at them through
the fairness filter.
The decision to focus on institutions cannot only be likened to reshuffling the
pieces of a puzzle. While puzzles can be challenging enough in themselves, history
has shown that institutions have been and still are in great demand with all the
possibilities of developing the different areas of international law. The period
between the two World Wars showed an important development in international
formalized and authoritative institutions35 and also since World War II, the number
of international organizations is increasing rather than decreasing.36
Today, minorities and their rights are international issues that have found their
way into the agenda of international organizations. Europe prides itself to be liberal
in the sense of protecting human rights and achieving and cherishing democratic
forms of states. However, a closer look reveals that minority rights remain prob-
lematic even for liberal states. France and Spain readily come to mind that have not
settled minority claims or claims of self-determination within their territories.
International institutions and regimes offer the possibility to close this gap.
Conclusion
Scholars from the two disciplines of international relations and international
law have moved closer together in the past two decades: they ‘seem increas-
ingly to see the same world outside their office windows.’37 In order for these
scholars to talk to each other, they must learn to understand each other if no
common language can be developed. Both disciplines have seen more and
more institutionalized international cooperation from the beginning of the
1990s onwards and much of that cooperation has been dressed in a legal
(continued)
34
See Chap. 4.
35
Koh (1997), pp. 2612–2613.
36
On a global level: the United Nations, the Bretton Woods institutions of the IMF, the World
Bank and GATT a few years later. On a regional level: NATO, the Council of Europe and the
organizations that were to become the European Union. For a nuanced discussion on the legali-
zation of politics see Kahler (2000). Kahler focuses on legalized international institutions such as
organizations and binding instruments. Robert Keohane has discussed a more general demand for
international regimes. See Keohane (1982), esp. pp. 336–345.
37
cloak. Non-state actors that have risen to importance, the so-called global
issues and threats as well as the (perceived) loss of sovereignty are all aspects
that fascinate and preoccupy scholars from international relations and inter-
national law alike.
The concepts of liberalism, liberal states, international regimes and inter-
national governance address issues that are important to international law in
general. These approaches do not always agree with each other but neither do
the points presented here exclude each other.38 They all describe aspects of
this project on minorities and self-determination. I only deal with liberal
states. I see international organizations as important actors in the field of
analysis. Aspects of international regimes are reshuffled by using a normative
optic on them.
References
Books and Articles
Brownlie I (2008) Principles of public international law, 7th edn. Oxford University Press, Oxford
Buchanan A (2004) Justice, legitimacy, and self-determination – moral foundations for interna-
tional law. Oxford University Press, Oxford
Doyle MW (1983) Kant, liberal legacies, and foreign affairs. Philos Public Aff 12:205–235
Freeman M (1999) The right to self-determination in international politics: six theories in search of
a policy. Rev Int Stud 25:355–370
Goldsmith JL, Posner EA (2005) The limits of international law. Oxford University Press,
New York
Hathaway O (2002) Do human rights treaties make a difference? Yale Law J 111:1935–2042
Henkin L (1968) How nations behave – law and foreign policy. Pall Mall Press, London
Kahler M (2000) Conclusion: the causes and consequences of legalization. Int Organ 54:661–683
Keohane RO (1982) The demand for international regimes. Int Organ 36:325–355
Keohane RO (1997) International relations and international law: two optics. Harv Int Law J
38:487–502
Koh H (1997) Why do nations obey international law? Yale Law J 106:2599–2659
Koskenniemi M (1990) The politics of international law. Eur J Int Law 1:4–32
Krasner SD (1982) Structural causes and regime consequences: regimes as intervening variables.
Int Organ 36:185–205
Kymlicka W (2001) The new debate over minority rights. In: Requejo Coll F (ed) Democracy &
national pluralism. Routledge, Florence, pp 15–39
Moravcsik A (1997) Taking preferences seriously: a liberal theory of international politics. Int
Organ 51:513–553
Sandholtz W, Sweet AS (2004) Law, politics, and international governance. In: Reus-Smit C
(ed) Politics of international law. Cambridge University Press, West Nyack, pp 238–271
Slaughter A-M (1993) International law and international relations theory: a dual agenda. Am J Int
Law 87:205–239
38
For disagreement and complementarity see Moravcsik (1997), pp. 536–538.
References 25
Slaughter A-M, Tulumello A, Wood S (1998) International law and international relations theory:
a new generation of interdisciplinary scholarship. Am J Int Law 92:367–397
Primary Source

06 May 2014
Chapter 3
Classic Sources on Minority Rights
and Self-Determination
After having provided the larger framework that allows for consideration of what I
call non-state actors and non-binding instruments, we need to step back into the
world of lawyers and take a look at the undisputed law on minority rights and self-
determination. Several points will become clear from this chapter. For one, it will
become clear that the hard law on minority rights and self-determination is very
limited in quantity. For another, its significance is difficult to determine as the
treatment of minority rights or self-determination sometimes remains extremely
superficial. Only together with Chap. 4, a comprehensive picture of the regimes on
minority rights and self-determination emerges.
International law includes a number of legally binding rules on minorities, the
rights of their members and self-determination. This chapter gives an overview over
existing international law in the fields relevant to this project. The structure of this
chapter is defined by the sources of art. 38 (1) ICJ-S. While some regard the article a
complete list,1 others point out that it is nowhere stated that the list of art.
38 (1) ICJ-S is an exhaustive list.2 Treaties are undisputed in their relevance for
the international community and a tool often used in international relations. This is
notwithstanding the view that treaties can be inefficient.3 Treaties still are the most
reliable source of international law. Even though widely accepted, customary
international law is a problematic source of international law which becomes
clear below. It is therefore not explored further in relation to minority rights and
self-determination.
1
Brownlie (2008), p. 5.
2
Menon (1989), p. 114.
3
See Sect. 4.2.1.

DOI 10.1007/978-3-319-08876-1_3
28 3 Classic Sources on Minority Rights and Self-Determination
3.1 Treaties
A treaty is defined as an agreement between states governed by international law.4

There are bilateral treaties between two states and multilateral treaties between
several states. In an Advisory Opinion, the International Court of Justice already in
1949 recognized the possibility for international organizations to enter into
treaties.5 Even though international organizations are thus recognized as limited
actors under international law, states take a cautious approach. An indicator of this
is that the 1986 Vienna Convention on the Law of Treaties between States and
International Organizations or between International Organizations has not yet
entered into force.
3.1.1 Minority Rights in Treaties
There does not exist a global treaty on minorities. Especially regarding minority
rights, there are a number of provisions only indirectly applicable. At the time of
drafting of the UN Charter, the minority regime of the League of Nations was
considered a failure. Consequently, minority rights did not receive separate atten-
tion; they were included in human rights.
Minorities and self-determination were once linked. It was Belgium that tested
whether minorities would be granted self-determination under the UN Charter.
The so-called Belgian Thesis points out that the UN Charter in art. 73 does not
single out colonialism but non-self-governing territories. The development of self-
government of non-self-governing territories could be applicable to minorities and
indigenous peoples. This thesis never gained any standing and Belgium later
admitted it was not meant seriously.6
Genocide Convention The Genocide Convention is directed at groups identified by
its shared characteristics, thus making it applicable to minorities. The Convention
protects national, ethnical, racial and religious groups7—note the group approach as
opposed to the individual approach of human rights treaties. The Convention pro-
tects the physical existence while cultural genocide, also termed ethnocide,
4
Art. 2 (1) VCLT.
5
The ICJ found the United Nations had international legal personality. This includes entering into
treaties and making claims for reparations. International Court of Justice (1949) Reparation for
Injuries Suffered in the Service of the United Nations Advisory Opinion of 11 April 1949:
I.C.J. Reports 1949, p. 174, esp. p. 179. International legal personality is not an automatic right
but must be conveyed on an international organization. Thus, the European Communities can enter
into treaties while the European Union could not until the Treaty of Lisbon explicitly changed this.
6
Thornberry (1989), p. 874.
7
Art. II Genocide Convention (1948) As published in Ghandi, P. R. (Ed.), Blackstone’s Interna-
tional Human Rights Documents, 3rd. ed., Clarendon Press, Oxford, 2002.
3.1 Treaties 29
eventually was left out.8 Four decades later the UN Minority Declaration reaffirms
the right to physical existence and adds the right to identity which is essential for the
survival of a minority.9 There are now voices calling for an amendment of the
Convention in order to widen the concept of genocide beyond the physical
existence.10
Art. 27 ICCPR Article 27 of the ICCPR advanced minority rights at the time of
drafting during the 1960s. Until then, minorities had looked towards art. 2 UDHR
and art. 14 ECHR on non-discrimination. Art. 27 divides minorities into the three
categories of religious, ethnic and linguistic minorities with corresponding rights.
The wording aims at the individual. Though the rights are to be enjoyed in
community with others, it is nevertheless the individual’s right to assert the rights.
Patrick Thornberry concludes that this limits the collective dimension of the right.11
In addition, minorities are not recognized as judicial entities. Nevertheless, I think
the collective is implicitly strong as art. 27 presupposes the group.
Art. 27 does not provide members of minorities with specific rights but rather the
general rights on religion, culture and language ‘shall not be denied’ to them. Still,
art. 27 clearly reaches farther than the principle of non-discrimination of the
Universal Declaration of Human Rights. Art. 27 is also more specific in the
addressees: it is only applicable in those states where the mentioned minorities
exist. One possible interpretation is that minorities exist on the recognition of the
state.12 Secondly, minority protection is not a universal right and it has been argued
that herein may lay one of the reasons why minority rights are not included in the
UDHR.13 Nevertheless, an argument is made in favour of the fundamentality of
art. 27.14 This is based on the preamble of the ICCPR in which the rights of the
Covenant are recognized as being part of the ‘foundation of freedom, justice and
peace in the world.’15 While some scholars interpret art. 27 in such a way that it
‘does no more than require the state to adopt a position of non-interference’16 the
Human Rights Committee finds positive obligations for the state in it.17
8
Lerner (2003), p. 151; see also B. Whitaker (1985) The Whitaker Report UN Doc. E/CN.4/Sub.2/
1985/6, p. 17.
9
Castellino (2000), p. 61.
10
UN Doc. E/CN.4/Sub.2/1984/SR.4 as quoted in Lerner (2003), p. 151.
11
12
Alfredsson (2005), p. 168. On the matter of recognition of minorities see Sect. 8.1.3.
13
14
15
Preamble ICCPR (1966) As published in Brownlie, Ian (Ed.), Basic Documents in International
Law, 5th ed., Oxford University Press, Oxford, 2002, pp. 205–221.
16
Anghie (2006), p. 457.
17
Para. 9 Human Rights Committee (1994) General Comment No. 23: The Rights of Minorities
(Art. 27) UN Doc. CCPR/C/21/Rev.1/Add.5.
ICCPR/ICESCR The two human rights covenants contain several articles that are
of particular importance to minorities. Language interpretation in criminal justice
proceedings (art. 14 ICCPR), the prohibition of advocacy of national or racial
hatred that constitute incitement to discrimination (art. 20 ICCPR), equality in the
workplace (art. 7 ICESCR) and the right to education including human rights
education (art. 13 ICESCR) are all general human rights; however, members of
minorities may be the ones to benefit most from them.
ICERD Art. 1 of the International Convention on the Elimination of all Forms of
Racial Discrimination is important to minorities. Not only is national or ethnic
origin part of the grounds upon which discrimination is prohibited, but positive
discrimination18 as is commonly done in minority protection is explicitly allowed.
A loft is introduced saying that the special measures have to cease once their
objective has been achieved. The missing definition of when the loft is reached
did not lead to reservations and declarations by state parties.
UNESCO The UNESCO Convention Against Discrimination in Education was the
first international treaty explicitly naming rights of members of minorities after
1945. Art. 5 guarantees members of national minorities the right to ‘carry on their
own educational activities’, including maintaining their own schools and possibly
also education in their own language. There are several restrictions attached to this
so as to avoid a disadvantaged position for those attending minority schools.
ECHR On the European level, the Council of Europe plays the most important role
regarding treaties. Already in 1949, the Parliamentary Assembly recommended
including a provision on the rights of national minorities in the Second Additional
Protocol to the European Convention on Human Rights.19 The Explanatory Report
to the Framework Convention summarizes the Council of Europe’s activities in the
area of national minorities, among them the Committee of Experts’ opinion from
1973 ‘that, from a legal point of view, there was no special need to make the rights
of minorities the subject of a further protocol to the ECHR.’20 In the 1990s, the
issue resurfaced21 and even though an Additional Protocol did not go further than
18
Provisions on positive discrimination recur in art. 4 (2) & (3) Phillips, A (2002): The Framework
Convention for the Protection of National Minorities: A Policy Analysis, Minority Rights Group
International, London.
19
Para. 1 Explanatory Report to the Framework Convention for the Protection of National
Minorities (1995) As published in Framework Convention for the Protection of National Minor-
ities – Collected Texts, 4th ed., Council of Europe, 2007, pp. 17–35, Strasbourg.
20
21
See Parliamentary Assembly of the Council of Europe (1990) Recommendation 1134 (1990) on
the Rights of Minorities CoE Doc. PACE Rec. 1134 (1990); Parliamentary Assembly of the
Council of Europe (1993) Recommendation 1201 (1993) on an Additional Protocol on the Rights
of Minorities to the European Convention on Human Rights CoE Doc. PACE Rec. 1201 (1993)
3.1 Treaties 31
the Parliamentary Assembly, the Framework Convention for the Protection

National Minorities resulted from this initiative.
As the UDHR was ‘only’ a declaration, it was the European Convention for the
Protection of Human Rights and Fundamental Freedoms which became the first
international agreement on human rights. It also established the first enforcement
mechanism. Similar to the UDHR, members of minorities are included in the ECHR
qua being human beings. The ECHR targets minorities through the principle
of non-discrimination.22 In comparison to art. 2 UDHR on non-discrimination,
art. 14 extends the list with association with a national minority. As religion,
language, race and national origin are mentioned separately, it could be argued
that the term national minority is not understood to encompass these types of
minorities. The question then is what the term ‘national minority’ covers.23
Even though the ECHR is no instrument for minorities, they may take advantage
of the convention. Several human rights like for example freedom of assembly and
freedom of association can only be meaningful if exercised in a collective. Thus,
although the provisions are termed in individual language, minorities can make use
of the inherent collective dimension.
The Additional Protocol would have added considerable legal weight to minor-
ity rights because of the direct link to the European Court of Human Rights which
the Framework Convention avoids. A second difference between the Protocol and
the Framework Convention is the lack of a definition of what constitutes a minority.
Lastly, the provision on ‘appropriate local or autonomous authorities’24 was not
transferred from the Protocol to the Convention. Otherwise, the Protocol and
the FCNM cover much of the same terrain. An Italian proposal that addresses the
missing link between the FCNM and the ECtHR25 has never been adopted by the
Committee of Ministers. Thus, the FCNM and the Language Charter remain
the only two treaties on minorities under the auspices of the Council of Europe.
Framework Convention The Framework Convention on National Minorities takes
the known approach of individual rights in a group setting. Art. 3 (2) addresses the
individual as recipient of the rights guaranteed in the Convention; art. 3 (1) has
direct applicability to individuals. The rights of the Framework Convention are
and Council of Europe Summit (1993) Vienna Declaration, 08 October 1993, https://wcd.coe.int/
ViewDoc.jsp?id¼621771. Accessed 06 May 2014.
22
Art. 14 ECHR.
23
For a definition of the term ‘minority’ and the distinctions between national or ethnic, religious
and linguistic minorities see Sect. 8.1.1.
24
Art. 11 Parliamentary Assembly of the Council of Europe (1993) Recommendation 1201 (1993)
on an Additional Protocol on the Rights of Minorities to the European Convention on Human
Rights CoE Doc. PACE Rec. 1201 (1993).
25
The ECtHR was to be given competence to give advisory opinions on the interpretation of the
FC. Committee of Ministers of the Council of Europe (2000) Draft Protocol to the Framework
Convention for the Protection of National Minorities (on the Interpretation of the Convention) CoE
Doc. CM Doc. CM(2000)133 rev.
mostly enjoyed collectively. Though the community herewith gains importance, the
Explanatory Report to the Convention makes it clear that ‘the possibility of joint
exercise of those rights and freedoms . . . is distinct from the notion of collective
rights.26
Also known is the requirement of states not only to refrain from oppressing
minorities or putting them at a disadvantage but of actually creating conditions to
allow minorities to express, preserve and develop their identity.27 Minorities, on the
other hand, are required to respect the national legislation and the rights of others,
particularly those of members of the majority or other national minorities.28 In a
further step, minorities have to respect the territorial integrity, the independence
and the sovereign equality of states.29 Any form of external solutions or external
self-determination is hereby prohibited.
The Convention foremost addresses the state and not the member of the national
minority. This language is known from the International Covenant on Economic,
Social and Cultural Rights which also provides for state duties. Considering that the
Convention describes a framework for the protection of national minorities, its
addressees must be the states that can guarantee the framework and the minorities
who can fill it with life.
The approach of setting down principles the states have to adhere to in relation to
members of national minorities has both advantages and drawbacks. The advantage
is that the obligations leave enough room for the states to interpret the provisions in
their own context and to decide how to implement the obligations. This, of course,
can also be a drawback as states may try to escape their obligations.30 While the
monitoring mechanism may not have worked satisfactorily at the beginning, I side
with the positive view. History has shown that whenever minorities and their rights
are described vaguely enough, states will support it. Ambiguity makes it possible to
apply one and the same provision to very different situations and that is an accepted
truth in minority discourse: each minority is different from the others. Thus, a tight
26
27
Preamble Explanatory Report to the Framework Convention for the Protection of National
28
Art. 20 Phillips, A (2002): The Framework Convention for the Protection of National Minor-
ities: A Policy Analysis, Minority Rights Group International, London.
29
30
In other words, the FC leaves a margin of appreciation to the states on how to implement the
convention. See Benvenisti (1999) for a particularly critical discussion of this approach when it
concerns minorities. Art. 14 (2) has been criticized for its extreme unclear and vague wording.
There are too many restrictions and conditions attached for effective language protection based on
this provision. On the other hand, the flexibility leaves room for negotiations in the monitoring
process and best practices can be established.
3.1 Treaties 33
convention, even with a justiciable system behind it, might never have been
adopted. In order to secure a functioning of the Framework Convention, the
monitoring mechanism has to work. Making adjustments here are preferable to
revising a convention that might not find back-up in the states in a new form. The
flexibility that is inherent in a framework was likely the price to pay to get a
convention at all.
The monitoring mechanism is characterized by soft jurisprudence in the form of
reports based on the hard law of a treaty. The mechanism provides for a cycle of
5 years with recommendations as the final result. As the word indicates, the
recommendations are not binding on the state though non-compliance is taken up
in the next review.31 The proposal for petition possibilities for individuals, groups,
NGOs and state was not included in the final treaty.32 The Council of Europe seems
to have chosen an approach of constant dripping wears away the stone, one of the
few possibilities a monitoring mechanism has when no judicial review is included.
Language Charter In its title, the Language Charter distinguishes between
regional and minority languages which could be a possible way to identify minor-
ities. However, it is not that easy. Regional languages are spoken in a territorially
limited area of the state and may be spoken by the majority of the people there.
Speakers of minority languages can also be settled in a concentrated territory.
Members of such a minority may speak the minority language, the official state
language and the regional language if such exists. Notable is the different object of
examination. Regional languages are identified independently of the people but by
territory. It is not important which segment of the population in the area speaks the
language. A regional language can be found in an area with a minority population.
A minority language, is found on the basis of people speaking it.
The Charter offers a menu of provisions and the states—though having to adhere
to certain specifications according to art. 2—are free to pick and choose which
provisions they accept as binding. While this has been criticized for leaving too
much up to the states, it does have the advantage of offering enough flexibility for
many states to ratify the Charter and apply it in the very different circumstances
each state may be in.
European Social Charter In 1961, the European Social Charter was adopted. It
was seen as complementing the ECHR with its focus on among others housing,
health, education and employment. A revised version of the Charter came into force
in 1999. As with the ECHR, members of minorities are protected qua being human
beings. Special protection is only expressed via the clause of prohibition of
31
For example the Danish restriction of the FC to the German minority in Southern Jutland. See
Advisory Committee on the Framework Convention for the Protection of National Minorities
(2000) Opinion on Denmark CoE Doc. ACFC/INF/OP/I(2001)005, p. 1 and Committee of
Ministers (2005) Resolution on the Implementation of the Framework Convention for the Protec-
tion of National Minorities by Denmark CoE Doc. Res CMN(2005)9, p. 2.
32
Pan & Pfeil (2006), p. 468.
discrimination because of association with a national minority in art. E of the

revised Charter.
3.1.2 Self-Determination in Treaties
UN Charter The UN Charter has placed self-determination among its purposes and
principles of article 1. This is evidence to its importance within the UN system.
However, self-determination is not a purpose as such but a means of achieving
friendly relations among nations that in turn is one measure taken to strengthen
universal peace.33 Rosalyn Higgins has pointed out that the context is the UN
Charter and the equal rights mentioned are those of states. There is thus little
leeway to argue for self-determination of others than the people of one state. It is
not an individual right to self-determination and it is not the self-determination of a
colonized people or a dependent territory.34 While the Charter’s primary aim
certainly was the provision of a stable international system, it has been pointed
out that self-determination, once it was incorporated into the Charter, became a
right for peoples everywhere.35
Self-determination is also mentioned in art. 55 UNC on international economic and
social co-operation. It is stated that stable conditions are a means of achieving
friendly relations based on respect for the right to self-determination. Important in
this relation is art. 56 which obligates the member states to implement art. 55.
Art. 73 UNC also relates to self-determination. Though the term used is self-
government, the wording ‘to take due account of the political aspirations of the
peoples, and to assist them in the progressive development of their free political
institutions,’ points towards a possible end to colonial arrangements. One more
article of interest in this regard is art. 76 (b) UNC. This article concerns the
trusteeship whose objective is to promote self-government or independence. This
little word or makes it clear that independence was never meant to be the only way
of exercising self-determination. Self-government is the word Woodrow Wilson
used for the solution that was supposed to stay within existing boundaries.36
ICCPR/ICESCR Both the ICCPR and the ICESCR speak of self-determination.
They have a common article 1:
All peoples have a right of self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural development.
These words echo those of Res. 1514 and are also found in the Friendly
Relations Declaration. The right to self-determination is the first human right as it
33
Art. 1 (2) UNC.
34
Higgins (1994), p. 112.
35
Sureda (1973), pp. 97–99.
36
See Chap. 9.
3.1 Treaties 35
is the prerequisite for all other rights to be enjoyed.37 The Covenants were meant to
have universal applicability.38 The wording of all peoples can therefore not be
restricted to the colonial context. The Covenants furthermore are understood as
being living instruments that need dynamic interpretation.39
Interestingly, the ICCPR does not speak directly of territorial integrity as a
safeguard against external self-determination. Art. 1 (3) only obliges the states to
act in conformity with the UN Charter. Regarding the pre-history of the Covenants,
a picture of deep disagreement and hostility towards self-determination is painted.40
Nevertheless, art. 1 was adopted with universal applicability. When India made a
reservation applying self-determination only to the colonial context, several
European states objected saying the right to self-determination was universally
applicable.41
Self-determination has shown itself to be a flexible concept. From Wilson’s
internal idea to decolonization it is argued it has turned back to political participa-
tion.42 If art. 1 is understood in this form there is much less reason to argue against a
universal applicability. The Human Rights Committee has continuously applied
self-determination to post-decolonization contexts ‘and the idea has undoubtedly
taken a general hold.’43
Local Self-Government Charter On the European level, several treaties have
touched on self-determination but have made sure that it is restricted to internal
self-determination. The European Charter of Local Self-Government that entered
into force in 1988 states commitments to minimum standards regarding local self-
government. This means at least co-determination if not self-determination in local
matters. This, of course, is especially relevant for territorially limited minorities. It
is important to keep in mind that self-determination in this context is limited to the
administration. Law making competences are not touched upon by the Charter. The
Additional Protocol on the Right to Participate in the Affairs of Local Authorities
spells out the rights of participation. It may be considered a drawback that states are
free to restrict the applicability of the Protocol to selected authorities and regions
within their territories.44 The protocol was opened for signature in late 2009 and is
not yet in force.
37
McGoldrick (1991), pp. 247–248.
38
Hannum (1993), p. 19. See also Humphrey (1985), p. 196.
39
See Thornberry (1989), pp. 878–879.
40
Hannum (1993), pp. 19–25. See also McGoldrick (1991), pp. 14–16.
41
Hannum (1993), p. 26.
42
Franck (1992), pp. 58–59. See also Chap. 9.
43
Higgins (1994), p. 116.
44
Arts. 3 & 4, Parliamentary Assembly of the Council of Europe (1993) Recommendation 1201
(1993) on an Additional Protocol on the Rights of Minorities to the European Convention on
Human Rights CoE Doc. PACE Rec. 1201 (1993).
Language Charter The Language Charter offers art. 7 (1) b which is included in
Part II of the Charter and therefore via art. 2 (1) automatically applicable to all
states party to the Charter. Art. 7 (1) b is relevant in case of administrative reforms
within states. It calls for the respect of the geographical area of minority and
regional languages. In this context, art. 16 FCNM is important. It prohibits mea-
sures which alter the population balance, which is something the establishment of
new administrative units most often do. Together with art. 5 of the Charter on Local
Self-Government, saying that changes in local boundaries shall not be made
without prior consultation of the local authorities, minorities with ambitions of
(geographically limited) political, internal self-determination have adequate legal
possibilities.
Framework Convention Art. 15 FCNM calls for the effective participation of
persons belonging to national minorities especially in affairs affecting them. Par-
ticipation is by no means autonomy, but it assures a minimum of determination.
Participation always opens for the possibility of influence which is a first step to
self-determination. It has been asserted that the Framework Convention in several
cases, though not explicitly referring to autonomy, is based on the ideas of local
self-government.45
Both the Framework Convention and the Language Charter often take a
territorial approach easily recognizable from the discussion on political self-
determination. Both treaties repeatedly refer to the geographical area where minor-
ities exist. Both the Venice Commission and the Congress of Local and Regional
Authorities have realized that territorial autonomy is one of several good ways to
ensure the protection of national minorities.46
3.1.3 Intermediate Conclusion
International law on minorities, their rights and self-determination can be found in

treaties. Minorities and self-determination are kept apart. However, taking a second
look, there are overlaps in the content of the rights. It is already now clear that a
right like participation so to speak has a foot in both camps. Participation is
discussed in the context of self-determination. Participation is also an explicit
minority right. Keeping minority rights and self-determination apart does not
seem so sensible anymore. This issue is addressed in Chap. 11.
45
Art. 10 (2), art. 11 (3), art. 14 (2) FC. See Albanese (1996), p. 309.
46
Commission on Human Rights (1947) Sub-Commission on the Prevention of Discrimination
and the Protection of Minorities – First Session UN Doc. E/CN.4/52, p. 310. The Standing
Conference of Local and Regional Authorities speaks of participation of minorities in public
administration. See para. II. 4 Res. 232 (1992).
3.2 Customary International Law 37
As accepted international law today stands it remains true that black letter treaty
law does not explicitly link minorities or minority rights to self-determination.
There seems to be reluctance among states to recognize a right to internal self-
determination for minorities. If this is all there is to be found in treaties, it is time to
turn to the second source of international law which is customary international law.
3.2 Customary International Law
‘Customary international law causes problems wherever it is referenced.’47 With

this dubious appraisal in mind, let us start a journey into the world of customary
international law. The discussion distinguishes between classic and modern cus-
tomary international law. Modern custom is offered as an alternative to classic
custom when classic custom is found problematic on a number of points. Also
modern customary international law is debatable. As a consequence, customary
international law is not a reliable source.
3.2.1 Classic Customary International Law
The classic teachings about customary international law48 are based on art. 38 (1) of
the ICJ Statute. Customary international law is therein shortly defined as ‘evidence
of a general practice accepted as law.’ Already here, the first issue is raised. It
makes little sense to speak of customary international law as evidence of state
practice accepted as law. It is rather the other way round: state practice accepted as
law is evidence of custom. The criticism leads to the conclusion that the definition
of custom in art. 38 (1) b is a badly drafted definition by drafters that did not seem to
understand it.49 In any case, the content of customary international law is made
clear: state practice and opinio iuris. The latter corresponds to the part ‘accepted as
law’. Thus, it is not enough that states act a certain way. Only if their actions are
based on the conviction that they legally ought to behave that way is there opinio
iuris.
State practice raises a number of issues. The first one starts with the most basic
question of what constitutes state practice. In 1950, the International Law Com-
mission reported on the scope of customary international law. The report lists a
number of materials as evidence of custom though making it clear that ‘perhaps the
differentiation between customary international law and conventional international
47
Fidler (1996), p. 198.
48
The terms ‘custom’ and ‘customary international law’ are used interchangeably in this chapter.
49
Fidler (1996), p. 200.
law ought not to be too rigidly insisted upon.’50 Evidence of customary interna-
tional law is found in texts of international instruments, decisions of international
courts, diplomatic correspondence, opinions of national legal advisers and practice
of international organizations.51 The International Court of Justice turns to policy
statements, diplomatic correspondence and national legislation as possible sources
for custom.52 Confusion ensues when some scholars see General Assembly reso-
lutions as state practice while others see it as opinio iuris.53 From my point of view
one can argue that the adoption of the resolution is an act of state practice. On the
other hand the content of the resolution can state opinio iuris. A number of
non-binding instruments include a legal belief as was argued above in relation to
the Copenhagen Document and the safeguard that the provisions cannot breach UN
and international law. While this view is not entirely new, it is only in later years
that it has resurfaced in the discussion on modern customary international law. The
distinction between state practice and opinio iuris remains difficult at all times.
States often act in the form words.
General Assembly and the examined OSCE documents are multilateral docu-
ments that seem to be the most problematic in regarding state practice as the state is
only one of many involved in the process. International organizations are not as
problematic as feared. While it may be difficult to follow all processes at interna-
tional organizations, certain structures and the principle of transparency allow for a
minimum of understanding of how an agreement came about.
Though not completely satisfactory, this is still preferable to relying on individ-
ual international lawyers who pick and choose the objects of their analyses on a
sometimes seemingly arbitrary basis. When looking for state practice at the indi-
vidual state level, international lawyers cannot examine all possible sources of state
practice for all countries. They have to be selective and thus their conclusions are
often based on a few sample states. Unquestioningly accepting these conclusion
means that the favourite states of analysis are the few states which develop
generally binding customary international law.
According to the popular idea that international law is made by consent,54
customary international law could only be made by universal practice of all states.
50
Para. 8 Manley O. Hudson (1950) Article 24 of the Statute of the International Law Commission
UN Doc. A/CN.4/16.
51
Paras. 16–62 Manley O. Hudson (1950) Article 24 of the Statute of the International Law
Commission UN Doc. A/CN.4/16.
52
See for example the International Court of Justice (1952) Rights of United States Nationals in
Morocco Judgement Case Concerning the Rights of United States Nationals in Morocco (France
v. United States of America), 27 August 1952: I.C.J. Reports 1952, pp. 176, at pp. 200, 209.
Akehurst (1977), p. 6.
53
Brownlie lists material sources of custom—though without classifying them as either practice or
opinio iuris. Brownlie (2008), p. 6. Resolutions as opinio iuris: Roberts (2001); D’Amato (1971),
p. 49. Bruno Simma and Andreas Paulus have—while defending legal positivism—recognized
that state practice and opinio iuris cannot always be clearly distinguished at the international level.
See Simma and Paulus (2004), p. 30.
54
For a critical approach towards consent see Guzman (2012).
In a world with over 190 states, it is wishful thinking to expect universal practice.
Another view, demanding general practice by a majority of states, is open to the
challenge that states then are bound by a law they did not consent to which in turn
challenges a state’s sovereignty and the principle of sovereign equality of states. It
is claimed that this majority-view ‘can be easily ruled out.’55
Looking for a solution, the issue becomes still more problematic. Universal
practice is impossible and majority practice challenges the doctrine of sovereignty.
In this relation, another problematic feature of customary international law is
introduced: CIL is relative. Customary international law has never been absolute
rules. While few instances of non-following may constitute a breach of a rule under
CIL, the rule itself can be overturned if the contradictory rule has more state support
in word and action.56 It is also important to notice the ICJ’s statement that the
practice of ‘those states interested’ is of special importance to the formation of a
rule of CIL.57 Because of geographic, economic, political and military might, some
states simply have more interests than others and contribute more to the formation
and hardening of customary international law.
A last point to address is the time aspect. It is accepted that custom can only be
made over time.58 Instant custom thus seems like a contradiction in terms. This is
not so. In order to keep up with the rapid changes in the world around us, CIL has to
adapt. Modern ways of communication enable states to make their views known
worldwide in a short time. Permanent representatives check back with their gov-
ernments in a matter of minutes or hours and not days or weeks. International
organizations give states the opportunity to develop CIL more quickly.59 When
greater weight is placed on opinio iuris instead of state practice, the time element
loses much of its importance, although I would not go as far as some writers
claiming it is irrelevant.60
Concluding on state practice, it faces many conceptual problems that are
addressed through ignorance and contradictions. Charney has pointed out that
scholars apparently have no problem disregarding the consent theory—because
55
Menon (1989), p. 121.
56
It is easier to make a new rule where no rule existed before. Much more support is needed in
order to overturn or radically expand an already existing rule of CIL. See Akehurst (1977), p. 19;
D’Amato (1971), pp. 60–61.
57
Paras. 73–74 International Court of Justice (1969) North Sea Continental Shelf Judgement North
Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands), 20 February 1969: I.C.J. Reports 1969, p. 3.
58
For more on the time aspect see Kadens and Young (2013), pp. 889–893.
59
In multilateral fora, state practice and opinio iuris are shown on a permanent basis. The drafting
history of treaties and declaration also need to be counted. See Akehurst (1977), p. 14; Sohn
(1995), p. 404.
60
Menon (1989), p. 120. The ICJ has held that ‘the passage of only a short period of time is not
necessarily, or of itself, a bar to the formation of a new rule of customary international law.’ See
para 74 International Court of Justice (1969) North Sea Continental Shelf Judgement North Sea
Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/
Netherlands), 20 February 1969: I.C.J. Reports 1969, p. 3.
the consent theory is too detached from reality—but at the same time advocating the
persistent objector rule.61 This contradiction holds only little relevance as the
persistent objector rule does not find much support in the international society.62
‘The supposed requirement of time, like the supposed requirement of repetition, can
usually be dispensed with if there are not precedents which can be cited against the
alleged rule of customary law.’63 State practice becomes an indistinct concept
which is flexible to all sides.
Opinio iuris is the so-called mental or subjective element and in its longer form
is called opinio iuris sive necessitatis—an opinion of law or of necessity. This
concept faces many of the same conceptual problems as state practice. In addition,
it is difficult to find and prove it. Opinio iuris is found in treaties, declarations
(especially their preambles) and their travaux préparatoires. Press releases, diplo-
matic correspondence, opinions of legal advisers, official manuals on legal ques-
tions, international and national judicial decisions, the practice of international
organs, a pattern of treaties in the same form and policy statements are mentioned64
but I would not like to include these per se. What certainly is true is that the ICJ has
no problem with looking for opinio iuris in documents without legal force. To this
end, it examined the travaux préparatoires of the Geneva Convention on the
Continental Shelf in the North Sea Continental Shelf Case and found that certain
rules were lex ferenda at most—what the law ought to be—as they were only
introduced into the treaty after great hesitation and thus could not be regarded rules
of CIL.65 In the Nicaragua Case the Court found that opinio iuris can be found in
General Assembly resolutions.66
One main problem associated with opinio iuris is the starting point that custom-
ary law is made by state practice that is accepted as law. If something already is
accepted as law, then it is law before it is made obligatory. This is a circle the
international community of scholars is aware of and has pointed out, however, is
largely unable to solve.67
A number of the same problems arise for opinio iuris as for state practice. These
are questions regarding the consistency of the same opinio iuris, the quantity of
states that support it and its relativity concerning the establishment of new rules.
There are simply too many open questions or unsatisfactory answers in order to use
classic customary international law in the exercise of finding a right to internal
61
Charney (1985), p. 1.
62
Charney (1985), p. 22.
63
Original italics, Akehurst (1977), p. 15.
64
Fidler (1996), p. 207; Brownlie (2008), p. 6.
65
Para. 62 International Court of Justice (1969) North Sea Continental Shelf Judgement North Sea
Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/
Netherlands), 20 February 1969: I.C.J. Reports 1969, p. 3.
66
Para. 188 International Court of Justice (1986) Nicaragua Case Judgement on the Merits Case
Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United
States of America), 27 June 1986: I.C.J. Reports 1986, p. 14.
67
See Tasioulas (2007), pp. 200–201; Menon (1989), p. 123.
self-determination for minorities. Classic CIL is too apologetic for a sound analysis.
One conclusion on customary international law has even been to denying it any
binding power at all.68
3.2.2 Modern Customary International Law
I believe customary international still has a role to play and due to its nature it is
capable of doing so. Being a flexible concept, custom is capable of developing and
thus contributing to the progressive development of international law. A modern
approach to customary international law69 solves some of the open issues and opens
for a different discussion on minority rights and self-determination. Modern custom
does not answer all the questions classic CIL raises; however, its different approach
to the matter moves them into the background. Two of the main differences
compared to classic customary international law are the acceptance of international
organizations and their instruments and the shift of focus from state practice to
opinio iuris.70
The modern approach is widely criticized for turning the CIL world upside down
when it focuses on opinio iuris instead of state practice as classic CIL does. While
the balance traditionally tilted towards state practice, modern custom tilts the
balance towards opinio iuris. This should not be problematic, for as long as there
is agreement about how law is made, new methods are acceptable.71
In a modern approach, declarations from international organizations become
important indicators of existing or developing CIL. Whether the texts become
custom depends on a variety of factors such as widespread support, adoption by a
representative body, confirmation of state practice—yes, modern custom does not
completely discard state practice—and the phrasing of the declarations.72
Documents such as General Assembly resolutions are not recognized as binding
by classic international law. They are, however, regarded as contributing to custom
and/or providing evidence of custom.73 Modern custom’s answer regarding the
relevance of instruments like General Assembly resolutions is quite simple: take
words seriously. This is the focus on opinio iuris. It means that the statement is the
important thing to focus on. It is often difficult if not impossible to discern whether
a state just asserts something, possibly in order to polish a state’s image, or actually
believes what it is saying. In order to avoid empty statements, one should focus on
68
Roberts (2001), pp. 759–760.
69
For the modern approach see Roberts (2001) and Fidler (1996).
70
Fidler (1996), pp. 220–224. For more on the different approaches to custom see pp. 216–220.
71
Sohn (1995), p. 406. In his article he points at the establishment of the ICTY, the adoption of GA
resolutions without vote, adopting by consensus without all actually agreeing.
72
Roberts (2001), p. 758.
73
Pomerance (1982), p. 64; Akehurst (1977), p. 7.
the said words. There are two approaches to statements. Either one tries to find out
if the statements of states are genuine beliefs, and that is nearly impossible, or one
simply accepts statements no matter whether they are meant truthfully or not. States
will have to think twice before making empty promises.
Accepting statements of belief (no matter if they are meant truthfully or not) has
been rightly restricted. Even though General Assembly resolutions and for that
matter documents like the CSCE Copenhagen Document should be taken seriously,
it would be too far reaching to regard every statement and other non-binding
instrument as containing opinio iuris. Similarly, once a statement is scrutinized
for containing opinio iuris one needs to apply a restrictive interpretation. Multilat-
eral declarations need to be examined closely. A conclusion on opinio iuris needs to
be made on a case by case basis.
I accept that General Assembly resolutions are not always followed by appro-
priate action. However, I refuse to accept the General Assembly as an empty body
but see it as a body of predominantly those who mean what they pass and adopt. The
goals of the United Nation in general and the General Assembly in particular in the
end always boil down to peace and security. I doubt there are liberal states that do
not seriously support these goals.
The idea of image polishing through General Assembly resolutions is not
accepted by me. The so-called image factor has been invoked to exclude resolutions
from contributing to customary international law. It is a rather curious argument
maintaining in short that General Assembly resolutions cannot be taken seriously as
law because states do not take them seriously and simply support them because of
image reasons.74 What is true for General Assembly resolutions is also true in the
OSCE context. OSCE agreements are adopted by states. A number of agreements
are adopted by consensus. States have the possibility for influence and they can
abstain. As with the United Nations, this project does not regard the OSCE as a tool
used by states to polish their image.
The approach of modern CIL itself is not undisputed and as shown contains
conceptual problems.75 Modern CIL takes us a step further than treaty law and
classic CIL with its inclusion of international organizations and classically
non-binding instruments. However, it is still subjected to the strict framework of
customary law and the sources of art. 38 (1) ICJ-S.
74
Pomerance (1982), pp. 65–66. Pomerance also presents the look that consensus is often a mere
procedural device by which ‘an unpleasant and perhaps useless discussion’ is brought to an end.
Also at p. 66.
75
For example the model of the sliding scale is widely rejected. See Simma and Alston
(1988–1989), pp. 88 and 96.
3.3 Other Sources of International Law 43
Customary international law is an accepted source of international law. Its impor-

tance has diminished over time as more and more rules are codified in treaties. As
shown above, there are many conceptual issues that customary international law has
to deal with. It is the strength of CIL that it is flexible and can adapt to changing
times. Its flexibility is also its weakness as it is prone to being misused.
Existing customary international law in both its classic and modern form is
vulnerable on many fronts. There are recognized CIL rules erga omnes. While erga
omnes appeals as it elevates important rules to a special status, questions arise
regarding the process; who makes the decision and how did the rule in question
become CIL. Another problematic concept under CIL is the persistent objector rule.
It strengthens the concept of sovereignty but weakens the general applicability of
customary rules. The persistent objector rule is connected to questions regarding the
relativity of customary rules—when is there a breach of an existing rule and when is
the rule overturned? Ius cogens is yet another problematic area for customary
international law. Is a hierarchy among customary rules desirable? Who elevates
the rules to the next level?76 Customary international law probably faces more
questions than it provides answers for. For these reasons, customary international
law is put aside for the further analysis. Modern customary international law could
be a useful approach for this project. It focuses on different aspects than treaties and
classic customary international law. Therefore, it is necessary to explore modern
custom. It is only when the conceptual problems are presented that it becomes clear
that it promises more than it can hold. Modern custom deserves consideration.
Nevertheless, a closer look reveals many new problems which leads to its exclusion
in the analysis. This project chooses a completely different approach outside of the
prevalent sources of international law.
3.3 Other Sources of International Law
Art. 38 (1) ICJ-S list more sources than only treaties and customary international
law, yet these two make up the main sources of international law. In addition,
general principles of law can be sources of international law while judicial deci-
sions and the teachings of the most qualified publicists are subsidiary means of
finding international law.
76
These concepts are related in many ways and especially discussed under the heading of relative
normativity. For more see Weil (1983); Tasioulas (1996); Aceves (2002); Roberts (2001); Kirgis
(1987); Beckett (2001); Fastenrath (1993); Charney (1993).
These sources are not examined in detail. Judicial decisions, mainly those of the
International Court of Justice, are included throughout where they are relevant.77
Judgements of the ICJ are only binding on the states party to the dispute; they do not
constitute a source of international law for other states. Judicial decisions never-
theless influence or develop international law by relying on each other and thus
manifesting international law.78 Scholarly contributions to the discussion are an
inherent part of this project and neither could nor should they be ignored.79 Both
judicial and scholarly input is only a subsidiary means for the determination of rules
of law. They cannot establish rules independently of the other sources.
Regarding general principles of law, they are usually mentioned more as an
afterthought than a serious source of international law. General principles are
principles from within states which make them susceptible if they can bind other
states under the name of general principles.80
Most opinions lie in between these two extremes. General principles are seen as
‘a reservoir of principles’81 from which a judge may borrow, whenever there is a
lacuna to fill and as far as the analogy from national law to the matter of relations
between states is applicable. This interpretation is backed up by the drafting
Committee in whose statements it becomes clear that the inclusion of general
principles of law was necessary to ‘meet the possibility of non liquet.’82 In other
words, they wanted to make sure that the International Court of Justice would never
be prevented from giving a judgment because no positive law was applicable.
Examples of general principles are certain principles of procedure, the principle
of good faith and the principle of pacta sunt servanda.83 General principles come
with practical problems. For a court to establish a general principle of law, it must
first assess whether there is such a national principle as is relevant in the specific
case. It has to make sure it has the same meaning in the main systems of law. In a
last step, the court has to make sure a possible application of the general principle
77
There is a debate if judicial decisions of other tribunals or other bodies are covered by art.
38 (1) c. Arbitral tribunals for example are not established by multilateral treaties and are not
permanent; however, they apply legal rules. Regarding national courts, positivists argue against
the inclusion of national decision into international law, though some scholars concede that
decisions of national courts can contribute to the development of customary international law.
Others see decisions of national courts as state consent of a certain practice. See Menon
(1989), p. 129.
78
For more on judicial decisions see van Hoof (1983), pp. 169–176.
79
Karol Wolfke makes an accurate point when he says that the writers’ influence on the formation
of international law is going on behind the scenes, ‘[t]o disregard it would [. . .] be to say the least,
unjustified.’ See Wolfke (1993), p. 77. For more see van Hoof (1983), pp. 176–178.
80
On this last point, there was already at the time of writing agreement across ideological
boundaries. See Tunkin (1978), p. 103.
81
Menon (1989), p. 125.
82
See Menon (1989), p. 125. See also see van Hoof (1983), pp. 136–137; Espersen et al. (2003),
pp. 34–35; Seidl-Hohenveldern (1997), pp. 108–110.
83
Pacta sunt servanda is a general principle of law, a rule under customary international law and
international treaty law (art. 26 VCLT).
References 45
would not violate any other general principle the law system may have. This is one
reason why they are not included here. The project stays on the international level
and does not delve deeply into national law.
Conclusion
Those phrasing and interpreting international law keep minorities and the
term self-determination far apart. There is no explicit link between minority
rights and self-determination. At second sight, this is not so clear. Autonomy
and participation are only two terms that have been used in both the context of
self-determination and in the context of minorities and their rights. We may
take this as an indication that there is more to the discussion than textbooks
and most scholarly articles make us believe.
The sources of art. 38 (1) ICJ-S are a starting point; however they do not
lead very far. We meet their limits and must therefore look beyond them. The
instruments originating from accepted sources provide valuable input in the
further analysis that takes a decidedly non-sources approach. Franck and
Rawls do not focus on sources in their criteria but neither do they discard
international law stemming from accepted sources. Undisputed minority
rights and provisions on self-determination keep their status and are impor-
tant when considering both documents and specific rights under the new
criteria.
References
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Akehurst M (1977) Custom as a source of international law. Br Year Book Int Law 1974–1975
(47):1–53
Albanese F (1996) Which international guarantees of local self-government? Council of Europe
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Europe, Strasbourg, pp 304–312
Alfredsson G (2005) Minorities, indigenous and tribal peoples: definitions of terms as a matter of
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Anghie A (2006) Representing culture, translating human rights symposium: panel II: sovereignty:
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Law 12:627–650
Benvenisti E (1999) Margin of Appreciation, consensus, and universal standards. N Y Univ J Int
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Brownlie I (2008) Principles of public international law, 7th edn. Oxford University Press, Oxford
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Charney JI (1985) The persistent objector rule and the development of customary international
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Charney JI (1993) Universal international law. Am J Int Law 87:529–551
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Franck T (1992) The emerging right to democratic governance. Am J Int Law 86:46–91
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Pfeil S (2006) Die Entwicklung des Minderheitenschutzes im Rahmen des Europarates und der
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Pomerance M (1982) Self-determination in law and practice. Martinus Nijhoff, The Hague
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law. American Society of International Law, Washington, DC, pp 23–46
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case. Oxford J Leg Stud 16:85–128
Tasioulas J (2007) Opinio Juris and the genesis of custom: a solution to the “Paradox”. Aust
Yearbook Int Law 26:199–205
Thornberry P (1989) Self-determination, minorities and human rights: a review of international
instruments. Int Comp Law Q 38:867–889
Thornberry P (1994) International and European standards on minority rights. In: Miall H
(ed) Minority rights in Europe: the scope for a transnational regime. Pinter, London, pp 14–21
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Noordhoff, Alphen aan den Rijn
32:445–473
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Phillips A (2002) The Framework Convention for the Protection of National Minorities: A Policy
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Primary Sources
(2000) Opinion on Denmark CoE Doc. ACFCNM/INF/OP/I(2001)005
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Committee of Ministers (2005) Resolution on the Implementation of the Framework Convention
for the Protection of National Minorities by Denmark CoE Doc. Res CMN(2005)9
Committee of Ministers of the Council of Europe (2000) Draft Protocol to the Framework
Convention for the Protection of National Minorities (on the Interpretation of the Convention)
CoE Doc. CM Doc. CM(2000)133 rev.
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ViewDoc.jsp?id¼621771. Accessed 06 May 2014
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A/CN.4/16
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Additional Protocol on the Rights of Minorities to the European Convention on Human Rights
CoE Doc. PACE Rec. 1201 (1993)
Chapter 4
Non-State Actors and Non-Binding
Instruments
This chapter provides a basis for the following analysis. It paints a picture of
relevant actors and instruments. Recognizing that states and the instruments orig-
inating from the sources of art. 38 (1) ICJ-S do not lead to a comprehensive picture,
there is a need for the view to be broadened. An overview over the actors will show
the complexity of the framework that stakes out the analysis. It is necessary to know
which role and position the different non-state actors have and what they have
contributed to the discussion so far. The part on non-binding instruments is of
similar character. Knowing which instruments exist and what their content is pro-
vides a common basis and the starting point for further discussions.
Each part includes reasons why non-state actors and non-binding instruments
should be considered. While I regard non-state actors and non-binding instruments
as important in the fields of minorities, minority rights and self-determination, I
believe a cautious approach is called for because of the large amount of potential
actors and instruments. Therefore, only those actors and instruments that meet the
criteria I introduce for both actors and instruments are included in the later analysis.
The criteria are restrictive in the sense that they narrow down the field of actors to
well-established and recognized actors. In the area of instruments, the criteria work
in the same way though not as restrictive. Some instruments are accepted as having
supporting character but not being able to set down standards by themselves.
Besides providing an overview over non-state actors and non-binding instru-
ments, this chapter also suggests that it is simply not reasonable to ignore the large
amount of actors and instruments that have an influence on the fields of this project.
Leaving them aside means disregarding a large portion of both actors and instru-
ments that contribute to the fields of minority issues and self-determination. It is
suggested that a more complete pictures emerges if non-state actors and
non-binding instrument are considered and that international law does well in
accepting changes both in law and in the international arena.
Once a common basis has been established, it is here suggested to apply Thomas
Franck’s Fairness and John Rawls’ Justice to selected non-binding instruments in
the fields of minority rights and self-determination. Thereby, an alternative

DOI 10.1007/978-3-319-08876-1_4
50 4 Non-State Actors and Non-Binding Instruments
understanding of international law on these issues is offered. This approach lets us

consider how much weight the non-binding instruments should have in the follow-
ing discussion on minorities and a right to internal self-determination. By applying
Franck and Rawls, we may understand why non-binding instruments originating
from non-state actors have a relevant role in the issues of minorities and self-
determination. Franck and Rawls are used in two steps. In Chap. 6, they are applied
to argue for the relevance of non-binding instruments. Here, four documents are
chosen for their perceived impact they had or still have on the development in their
respective field of either minority rights or self-determination. In a second step, in
Chap. 10, their criteria are used in the analysis of specific minority rights that
originate from binding and non-binding instruments alike.
Non-binding instruments play an important role in the overall analysis and are
introduced in this chapter. Self-determination and minority rights are examined
separately. This leads to the result that the Universal Declaration of Human Rights
is examined in two different places. While this does not do justice to a holistic
approach to one single document, I judge it more important to collect all self-
determination aspects and all minority rights aspects thematically.
As far as categorization of the different documents and thus the structure of the
following discussion are concerned, I have chosen to follow a strict sources oriented
approach; again a concession to clarity. Because the very point of discussion is the
relevance and bindingness of instruments that are non-binding under classic inter-
national law, the starting point should be clear and free of doubt. Thus, even
declarations such as the Universal Declaration of Human Rights and the Friendly
Relations Declaration that are considered to have legal effect are regarded as
non-binding instrument in reference to a strict art. 38 ICJ-S sources approach.
4.1 International Governmental Organizations

as Non-State Actors
The question about actors included in the analysis does not lead to as straight
forward an answer as might be expected. Traditionally, international law is made by
states. However, there is a number of other actors in the international arena who can
contribute or influence the development of international law. Looking at minority
issues, states are by far the only actors.
The term covering all actors besides state is the term non-state actors. Generally,
this includes not only international governmental and non-governmental organiza-
tions but also many more actors such as transnational corporations, trade unions,
associations of churches or even individuals.1 The last mentioned entities are not
part of the analysis and non-governmental organizations are also not included. Even
though non-governmental organizations are often involved in human rights
1
The terms ‘non-state actors’ and ‘NGO’ are not clearly defined. See Alston (2005), pp. 14–19.
4.1 International Governmental Organizations as Non-State Actors 51
activities of the international community they do not play a large role in this
analysis. They contribute to the developments in the field of minority rights, for
example, by putting issues on the agenda, to develop the law or even draft
international instruments; however, they themselves cannot establish rules that
are legally binding on states.2 Dealing with NGOs must be done carefully. While
some contribute in the ways described, NGOs can also be ‘unelected and unac-
countable special-interest groups’.3 Because of the inherent problems with NGOs, I
have chosen to focus on international governmental organizations. Their strength is
the close relationship with states.
I use the term non-state actors primarily for international governmental organi-
zations.4 They have become powerful, if not always successful, actors. While none
of the non-state actors are full subjects of international law as states are with all
rights and duties, they can become subjects of international law in their field or
regarding their functions.
4.1.1 Taking International Governmental Organizations

Seriously
It is not disputed that international organizations play an important role in interna-

tional politics. International organizations offer states several important possibili-
ties. For one, collective activities are more efficiently organized through them. The
secretariat can bundle and organize information flows. International organizations
can facilitate negotiations and implementation of agreements, resolve disputes,
manage conflicts, shape international discourse and offer technical and administra-
tive support.5 International organizations, being stable fora, can allow for fast and
decisive responses. International organizations are not only at the service of states;
some can act independently such as various EU agencies or the World Bank which
are engaged in operational activities.6 A number of substantive and supportive
activities require a certain degree of independence. International organizations
cannot only support state activities but also initiate activities. Furthermore, in the
various monitoring mechanisms, the independence of the bodies can lead to higher
2
Gardeniers et al. (1982), p. 368; Kamminga (2005), p. 101; Preamble CSCE (1991) Moscow
Document http://www.osce.org/de/odihr/elections/14310. Accessed 06 May 2014. The OSCE has
explicitly stated that is welcomes NGO involvement. See para. (43) Moscow Document.
3
Kamminga (2005), p. 94.
4
In this chapter the term ‘international governmental organizations’ is used to stress the close
relationship to states. In the other chapters, the term ‘international organizations’ is used covering
the same type of international organizations, namely international governmental organizations.
5
Abbott and Snidal (1998), pp. 4–5.
6
See Abbott and Snidal (1998), pp. 12–16.
compliance.7 International organizations can act independently in a number of

functions: as mediators, neutral information provider and as trustees.
Not all international organizations live up to these positive expectations at all
times. Nevertheless, the growth in the number of international organizations in the
last decades shows that there is a steady interest by states in international organi-
zations. International organizations can disappoint as the Security Council has done
on numerous occasions when the veto powers cannot agree. There have been efforts
of restructuring the United Nations; but the aim is not to abolish the organization
completely.
In international human rights law, non-state actors have gained a strong foothold
and cannot be reasonably ignored. On the contrary, non-state actors may be among
the most important actors when it comes to the development of international human
rights law.8 However, non-state actors should never be accepted unquestioned.
They are not equal players with states but have their own strengths and weaknesses
under international law. From among all non-state actors, governmental organiza-
tions are the least problematic in this respect. Their close relationship with states
makes them more acceptable as actors under international law.
Philip Alston has pointed out that the term non-state actors falsely suggests that
states are the only relevant actors and marginalizes a significant part of the human
rights regime.9 I nevertheless adopt the term as a collective term but without
attaching to it the negative connotation of lesser value or unimportance.
Observing non-state actors in the field of human rights offers an interesting
picture. Human rights are values, morals and ethics. As a result, it does not matter
so much whether a certain standard is legally binding or not.10 Non-state actors in
general, those included and those I have excluded all depend on their reputation for
making business, attracting funding or other support. Thus, human rights standards
do not always have to be legally binding in order to have binding force. Organiza-
tions taking a non-legal approach can have decisive influence in the field of human
rights. This is particularly true for the OSCE. The International Court of Justice has
stated that an international authority may act in ways not specifically forbidden, so
as to ensure the attainment of its purposes.11 I think this is a good opening for
international organizations to become active in fields where three things come
together: there is a need for action, the activity in mind furthers the organization’s
7
I recognize that monitoring mechanisms can be influenced by individual states. However, the
framework of an international body as opposed to bilateral critique lends the monitoring more
credibility. For more on independence of international organizations see Abbott and Snidal (1998),
pp. 16–23.
8
See Reinisch (2005), pp. 37–89; especially p. 75 for non-state actors as human rights guarantors.
The Vienna Declaration and Programme of Action explicitly recognizes the importance of
non-governmental organizations in the promotion of human rights. See para. 38 VDPA.
9
Alston (2005), p. 3.
10
Reinisch (2005), p. 69.
11
International Court of Justice (1962) Certain Expenses of the United Nations Advisory Opinion
of 20 July 1962: I.C.J. Reports 1962, p. 151, p. 168.
purposes and it is not specifically forbidden. Going down this road and allowing
international instances to act in this way opens for the possibility of abuse. There-
fore, this should be applied restrictively and only to governmental organizations.
4.1.2 Criteria for International Organizations
The international governmental organizations chosen for the analysis are selected
by applying the criteria introduced below. Overall there are two levels and two
areas where non-state actors can be active. The two levels are determined for one,
by the field of international law meaning that global international organizations are
involved and second, the level is determined by the overall framework for the
analysis which is Europe. There are thus the international and European levels.
Furthermore, there are two areas where actors can be active: minority rights and
self-determination.
Having narrowed the number of non-state actors already, other criteria come into
play. Firstly, only organizations that have a close connection to states are directly
included in the discussion. Discussing new legal standards in international law that
stem from completely non-state related sources seems to me to transform interna-
tional law into something it is not. Thus, I focus on international governmental
organizations because of their close relationship with states.
A different criterion is the general membership. Only organizations that show
general membership either on a global scale or within Europe are considered. Here,
the idea of legitimacy shows its face. Only universal organizations (within their
respective frameworks) have the legitimacy to develop or contribute to the devel-
opment of new international law.
I differentiate further between those instruments adopted by the plenary or
governmental bodies and those adopted by what I call organization bodies. The
UN General Assembly is a plenary body. The Summits or Ministerial Councils of
the OSCE are governmental bodies where the highest ranking decisions are taken.
Organization bodies include the OSCE High Commissioner on National Minorities
or non-permanent bodies like the Geneva Experts on National Minorities that
published their findings. Organization bodies are often characterized by their
distance to states. I do not disregard state distant organization bodies completely,
but I treat them as support—never as standard setters in their own right.
When considering the impact international organizations have on the formation
of new rules, it is important to look at the decision-making process. The highest
decision-making body within most international organizations is the one comprised
of the heads of state of the member states. The last decision can thus be said to be
taken by states and not by ‘the organization’. This adds weight to the final result.
Sub-bodies of international organizations can also take decisions. Here, one has
to examine each individual case and determine what role it can play in the
development of international law. If independent bodies enjoy wide state support,
this strengthens their position.
Table 4.1 Non-state actors in the field of minority rights and self-determination
Level/area Minority Rights Self-determination
International United Nations Bodies United Nations Bodies
European Council of Europe Council of Europe
OSCE OSCE
European Union
Table 4.1 summarizes the non-state actors introduced in this chapter. Not all
actors are equally important in all areas and therefore the analysis relies more on
some of these non-state actors than on others.
Applying the above introduced criteria, the United Nations, including the bodies
and sub-bodies, serve as the global non-state, governmental player wherefrom a lot
of international law in the fields of human rights and especially self-determination
originates. The various bodies enjoy different degrees of independence and it is
important to be aware of the status of the different bodies. Each body has its own
rules of procedures and thus a decision-making procedure. The General Assembly
is a body of special importance as some of the key documents that I base my
argument on are adopted here. The General Assembly votes by simple or two-thirds
majority. Important questions such as those on the maintenance of international
peace and security are decided by a two-thirds majority.12 Normally, the voting is
done by show of hands or standing but anyone may request a roll-call which is
officially recorded.13 Each member has one vote. This means that every member of
the United Nations has the possibility to show its viewpoints within the decision-
making process.
Regarding the European framework the OSCE and the Council of Europe need
to be considered. The OSCE takes the most prominent place in the field of
classically non-binding instruments and the Council of Europe does the same
vis-à-vis treaties. Regarding minority issues, it has been said that the OSCE’s
‘achievements [. . .] are unparalleled in comparison to other international
instruments.’14
With its vast membership of 56 member states, the OSCE could be regarded the
equivalent for Europe what the United Nations are on a global scale. Most impor-
tantly, decisions are taken by equals in the OSCE. Decisions are taken by consensus
either at meetings or through silent procedures.15 It is essentially the same proce-
dure—if no objections are heard, the decision is adopted. It is important to note that
the adopted texts ‘shall have a politically binding character for all the participating
12
For voting procedures see United Nations (2007) Rules of Procedure of the General Assembly
UN Doc. A/520/Rev.17 or alternatively rules 83 and 85 of the GA Rules of Procedure.
13
United Nations (2007) Rules of Procedure of the General Assembly UN Doc. A/520/Rev.17.
14
Bloed (1993a), p. 48.
15
II. (A) 2. and annex 1 respectively OSCE (2006) Rules of Procedure of the Organization For
Security and Cooperation in Europe OSCE Doc. MC.DOC/1/06.
States or reflect the agreed views of all the participating States’.16 It is clear that the
states cannot opt out at a later point. States have the possibility to make formal
reservations or interpretative statements. If reservations actually lead to not being
bound by the agreement in question is unclear. It is, however, clear the interpreta-
tive statements do ‘not affect the binding force of CSCE provisions concerned.’17
There are exceptions to the rules of consensus and silent procedure. Consensus
minus one and consensus minus two are used in the field of dispute settlement. The
Parliamentary Assembly adopts texts by majority voting. The OSCE deals with
minority issues on several levels. Institutionally, this is most visible in the High
Commissioner on National Minorities. Activities in the field of self-determination
are limited.
The Council of Europe is the second European organization that fulfils the
criteria. It is a European organization made up of states. Though having fewer
members than the OSCE, a membership of 49 states may still be regarded as general
membership within the European framework. The decision-making procedures are
not discussed in detail. The reason is clear: treaties are signed and ratified by states.
Thus, there is no doubt about state involvement. Equally, there is no doubt that a
state can refuse to be bound by a treaty. There are three treaties which make the
Council of Europe especially important to this project. These are the Framework
Convention on National Minorities, the Language Charter and the Charter on Local
Self-Government. The most basic treaty, of course, is the European Convention on
Human Rights. While serving as a basic human rights document, it is not directly
addressed at minorities.
The European Union also fulfils the criteria and must therefore be scrutinized
closer. The European Union Agency for Fundamental Rights is important to
minorities. It is no minority agency; however, minorities are included on the list
of issues in the Multiannual Framework that prescribes the working areas for a few
years at a time.18 The Agency provides assistance in its fields of expertise with the
implementation of community law.19 Its conclusions are not binding, though the
fact that independent experts are called in and close cooperation with the Council of
Europe and the OSCE are envisaged,20 should add to the political weight of its
reports and recommendations.
16
II. (A) OSCE (2006) Rules of Procedure of the Organization for Security and Cooperation in
Europe OSCE Doc. MC.DOC/1/06.
17
Bloed (1993b), p. 19.
18
Art. 2 (b) Council of the European Union (2008) Council Decision Implementing Regulation
(EC) No 168/2007 as Regards the Adoption of the Multi-Annual Framework for the European
Union Agency for Fundamental Rights for 2007–2012 EU Doc. 2008/203/EC as published in OJ L
63, p. 14.
19
Art. 2 Council of the European Union (2008) Council Decision Implementing Regulation
63, p. 14.
20
Chapter II Council of the European Union (2008) Council Decision Implementing Regulation
The European Parliament several times faced initiatives in the field of minority
rights. Already in the first legislative period of the European Parliament, the
Committee of Legal Affairs started to draft a Charter of Minority Rights. The
draft was never voted upon. A proposed Charter of Group Rights a few years
later faced a similar fate and minority rights disappeared from the standard setting
agenda of the European Union.21
Due to the international law nature of this project, only primary law would be
considered and that has been suspiciously quiet on the issues of minority rights and
self-determination. Several articles of the Treaty on the Functioning of the
European Union are interpreted in the light of minority protection; however, they
are not targeted at minorities.22 The never adopted Constitutional Treaty explicitly
mentioned respect for the rights of persons belonging to minorities as being one of
the values the union is based upon.23
The Lisbon Treaty inserted minorities into the Treaty on European Union in art.
2; however, it is yet too early to evaluate the consequences of this.24 The provision
does not further describe or restrict the term ‘minorities’. It is not clear whether the
‘classic’ minorities, being national, ethnic, linguistic or religious in nature, are the
only ones covered. The article as it stands now will open the door for the so-called
new minorities, for example immigrants, to claim protection under this article.
With the Lisbon Treaty the Charter of Fundamental Rights has been elevated to
binding primary law. Art. 22 CFR has been taken to incorporate minority rights.25
The provision on non-discrimination in art. 21 CFR mentions membership of a
national minority along with its main characteristics race, ethnicity, language,
religion and colour. The Lisbon Treaty may lead to a stronger role of the
63, p. 14.
21
The Committee on Culture continued to work on soft law regarding minorities in the field of
culture and language. Several resolutions were passed over the years. They do not constitute
legally binding EU law. See Toggenburg, G N (2008): The EU’s Evolving Policies vis-á-vis
Minorities: A Play in Four Parts and an Open End, EUR.AC Research, Bozen-Bolzano, pp. 3–5.
22
Art. 167 (4) TFEU speaks of the respect and promotion of cultural diversity. Art. 19 TFEU, the
core norm on minorities in primary law, takes up non-discrimination and includes racial or ethnic
origin and religion or belief which can be characteristics of national minorities.
23
Art. I-2 European Union (2004) Constitutional Treaty EU Doc. CIG 87/2/94 rev. 2.
24
Contemporary development shows that the EU Commission has rejected the citizens’ initiative
Minority Safepack on the basis of parts of the proposal being outside of the competences of the
Commission. See European Commission, ‘Subject: Your request for registration of a proposed
citizens’ initiative’, 13/09/2013, EU Doc. C (2013) 5969 final.
25
Henrard, K (2007): Minority Protection in Europe: What About Effective Participation?,
Minority Rights Group International, London, p. 42. She also refers to the EU Network of
Independent Experts on Fundamental Rights which was set up by the Commission to monitor
the situation of fundamental rights. It has taken art. 22 CFR as the basis to look into issues of
ethnic, religious and linguistic minorities. See: EU Network, ‘Report on the Situation of Funda-
mental Rights in the European Union and its Member States in 2005: Conclusions and Recom-
mendations’, CFR-CDF/Conclusions 2005.
European Union in the legal protection of minorities in the future. Self-

determination remains outside of its legal scope.
Legal initiatives within the European Union have been unsuccessful in the past.
The latest inclusion of minorities into primary law is relevant; however, it is still too
early for a meaningful evaluation. Other primary law on minorities or self-
determination is lacking. Activities in the field of minority rights are still few.26
Self-determination is not among thematic topics of the European Union. The EU
does not provide a substantial basis for further discussion in the context of this
project.
4.1.3 Overview of International Governmental Organizations
On a global level, the United Nations display a list of bodies and sub-bodies
concerned with minorities, minority rights and self-determination. The majority
of the bodies presented below consist of representatives appointed by states. If a
body is completely independent of state influence, this is indicated. The UN human
rights regime, where minority issues and self-determination are placed, has devel-
oped over decades. Some bodies were renamed, received new mandates or were
simply discontinued. There is thus an array of bodies that has to be presented here.
It is important to note that none of these bodies include a full judicial process by
which minority rights can be protected.
The Sub-Commission on the Promotion and Protection of Human Rights The
Sub-Commission was established in 1947 under the name Sub-Commission on
the Prevention of Discrimination and the Protection of Minorities27—a hint at the
recognition of the necessity to protect minorities even if minority protection under
the League of Nations was deemed unsuccessful. In the wake of the restructuring of
the UN human rights regime, the Sub-Commission terminated its work in 2006. Its
follow up is the Advisory Committee.28 Neither of the two bodies had or has any
independent decision-making power. Both the Sub-Commission and Advisory
Committee are conceived as think-tanks.29 The Advisory Committee seems to
follow the Sub-Commission’s path regarding the mandate. The Sub-Commission
26
For an introduction to minority protection in the European Union see Weber (2007), esp.
pp. 374–382.
27
Commission on Human Rights (1947) First Session Summary Record of the Sixth Committee
UN Doc. E/CN.4/SR.6, p. 3.
28
Human Rights Council (2007) Institution-Building of the United Nations Human Rights Council
UN Doc. A/HRC/Res/5/1.
29
See Commission on Human Rights (1947) First Session Summary Record of the Sixth Com-
mittee UN Doc. E/CN.4/SR.6, p. 5. The Advisory Committee works at the request of the Human
Rights Council; mainly through studies and research-based advice. See paragraphs 75–78 of
UN Doc. A/HRC/Res/5/1.
was repeatedly criticized for acting too independently and overstepping its man-
date.30 It has covered more issues than its original name suggested. Similarly, the
Committee’s third report touched on a number of different issues—among them the
right of peoples to peace—and includes recommendations and requests.31
Human Rights Council The Human Rights Council is the follow up body of the
Commission on Human Rights.32 The Commission had become a mere talking
forum.33 In 2006, positive reactions and high expectations followed the establish-
ment of the Human Rights Council.34 The Council has received mixed to negative
comments.35
Institutionally, human rights are taken to a different level, as the Council was
established directly under the General Assembly while the Human Rights Com-
mission had reported to ECOSOC. The Council’s main purpose is the promotion
and protection of human rights and the addressing of human rights violations.36
Universal Periodic Review The Universal Periodic Review (UPR) has received
positive critique. The review is similar to treaty monitoring; however it is different
on a very important aspect. In this review, it is the Human Rights Council who
inquires about a state’s general human rights record. Treaty bodies have a limited
mandate. The final report of the UPR contains recommendations on the identified
unsatisfactory situations. As the review takes place every 4 years, the state has this
time to implement the recommendations. The next report will use the former report
as a starting point and will address cases of persistent non-cooperation. As of today,
the review process is still in its first cycle, so no follow up reports have been
done yet.
Forum on Minority Issues Minority issues were depreciated when the Working
Group on Minority Issues was laid down. In September 2007, the Human Rights
Council decided to establish the Forum on Minority Issues.37 The Forum’s mandate
is limited to ‘provide thematic contributions and expertise to the work of the
independent expert on minority issues.’38 Furthermore, its work lies within the
30
Gardeniers et al. (1982), p. 356.
31
Advisory Committee (2009) Report of the Advisory Committee on its Third Session UN Doc.
A/HRC/AC/3/2.
32
Established in 1946: Economic and Social Council (1946) Commission on Human Rights UN
Doc. ECOSOC Res. E/56/Rev.2.
33
Para. 182 Kofi Annan (2005) In Larger Freedom: Towards Development, Security and Human
Rights for All UN Doc. A/59/2005. See also Nanda (2007), p. 358.
34
Nanda (2007), p. 359.
35
For expectations and sober evaluations on the Human Rights Council see among others Nanda
(2007), pp. 359–364.
36
Nos. 2–3 General Assembly (2006) Human Rights Council UN Doc. A/Res/60/251.
37
Human Rights Council (2007) Forum on Minority Issues UN Doc. A/HRC/Res/6/15.
38
No. 1 Human Rights Council (2007) Forum on Minority Issues UN Doc. A/HRC/Res/6/15.
framework of the Minorities Declaration. The Forum is open to the participation of

states, NGOs and UN mechanisms and others.39
The Forum is sometimes seen as continuing the work of the Working Group on
Minorities that worked from 1995 to 2006. A comparison shows some important
differences. The Working Group40 was set up to explicitly promote the rights of
persons belonging to national or ethnic, religious and linguistic minorities. This was
to be understood in reference to the UN Minority Declaration. The Forum shall only
promote dialogue and cooperation on issues pertaining to persons belonging to
these minorities. The wording is clearly weaker in the resolution on the Forum. The
Forum reports to the Independent Expert on Minority Issues. The Working Group
had a wider audience as it was tied to the Sub-Commission. The list of possible
activities was wider for the Working Group and should one still be in doubt, the fact
that the Working Group met for 5 days a year but the Forum only 2 days a year leads
to the conclusion that the new institution is far weaker than its predecessor.
Independent Expert of Minority Issues The Independent Expert on Minority Issues
survived the human rights reforms as did most other Special Procedures. The
position was established by the Commission on Human Rights in 200541 and is
part of the Special Procedures under the Human Rights Council. The Expert does
not represent a specific state. The mandate includes the promotion of the imple-
mentation of the UN Minority Declaration. The Independent Expert may also make
recommendations for the better implementation of the rights of persons belonging
to minorities. This mandate is not restricted to the minorities of the UN Declaration
and thus seems broader and more general than the Declaration. The Expert works
along the lines of international treaties and documents,42 thus putting emphasis on
existing law and practice. The Independent Expert has no judicial powers.
The Independent Expert has been quiet on territorial issues or anything that
could be understood as approaching external self-determination. Only in her first
report did she state that autonomy is a possible but not a required and sometimes not
even most effective solution to minority issues.43 The opinions of the Independent
Expert are no source of international law.
Human Rights Committee The Human Rights Committee is the monitoring body of
the International Covenant on Civil and Political Rights. The Committee is not a
prominent actor in the fields of minority rights or self-determination but its General
39
No. 2 Human Rights Council (2007) Forum on Minority Issues UN Doc. A/HRC/Res/6/15.
40
Economic and Social Council (1995) Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities UN Doc. ECOSOC Res. E/1995/31.
41
Economic and Social Council (2005) Res. 2005/79: Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities UN Doc. E/CN.4/2005/L.11/Add.8, pp. 3–7.
42
See paras. 19–21 Independent Expert on Minority Issues (2006) Specific Groups and Individ-
uals: Minorities UN Doc. E/CN.4/2006/74.
43
Para. 26 Independent Expert on Minority Issues (2006) Specific Groups and Individuals:
Minorities UN Doc. E/CN.4/2006/74.
Comments are accorded much attention and the Committee is regarded to be one of
the main UN actors in relation to human rights. It has issued General Comments on
minority rights and self-determination as included in the ICCPR. The Committee
also receives individual communications under the Optional Protocol to the ICCPR
which is a complaint procedure for individuals who feel their rights under the
ICCPR have been breached by their state that is party to the ICCPR and the
Optional Protocol.44 Interesting for the purposes of non-binding instruments is an
attempt the Committee made in 1993.
In 1993 the Committee proposed that its decisions on individual communica-
tions should be binding on the parties involved in the communication. According to
the Committee, its decisions known as ‘Views under article 5, paragraph 4, of the
Optional Protocol’45 muster an only unsatisfactory degree of compliance. There is
no enforcement mechanism attached to the procedure. In 1990, the Committee had
established the position of a Special Rapporteur who was to follow up on the
compliance of parties after a View and therewith recommendations on how to
resolve the conflict in question were given. Based on his findings, the Committee
wished for a stronger content of its mandate to consider the communications
brought before it. The Committee was not successful in extending art. 5 of the
Optional Protocol.
It is important to notice that the Committee did not propose to make its General
Comments binding. It was solely concerned with individual communications. As it
has a quasi-judicial function in arbitrating between the conflicting parties and
establishes whether a breach of the ICCPR has taken place, it is not surprising it
wants to upgrade its activities in order to fulfil its mandate. As of today, the Human
Rights Committee has not developed into a court or court-like adjudicator. Its
decisions still have no legally binding power. Perhaps the Committee has to wait
until the regional human rights systems are judicially developed to such a degree
that state will be willing to go from the regional to the global level. Considering that
most regional systems are still at the very beginning of establishing a system, the
Committee will have to show patience.
UNESCO The United Nations Educational, Scientific and Cultural Organization
has repeatedly touched upon the issue of defining a people and peoples’ rights.
Though clearly aware of the problems related to the definition of ‘peoples’ and the
content of ‘peoples’ rights’, a group of experts recommended that continuing debate
about these points take place within UNESCO. However, UNESCO was not
regarded as the proper institution to think of standard-setting measures.46 This
recommendation from 1989 is still followed today. UNESCO has not attempted
44
Not all articles can be complained about. See below.
45
Human Rights Committee (1993) Report of the Human Rights Committee UN Doc. A/48/40
Annex X, 222–225, p. 222.
46
Para. 26 United Nations Educational, S. a. C. O. (1990) International Meeting of Experts on
Further Study of the Concept of the Rights of Peoples UNESDOC SHS-89/CONF.602/7.
to set any legal standards in the area of defining peoples and the content of peoples’
rights. It is, however, aware of minorities and their rights. Especially in the field of
culture, a number of declarations and recommendations have special significance
for minorities.47 Apart from the noteworthy group characteristics approach regard-
ing the description of a people that was done at a UNESCO meeting48 the organi-
zation is not separately examined.
European Level At the European level, the OSCE and the Council of Europe are
considered and they take two different approaches. The Council of Europe is very
much involved in the making and implementation of international treaties on a
European level. There is no OSCE treaty regime. Its main instrument is political
negotiation and moral obligations. The OSCE does not even have a founding treaty.
It has its roots in the CSCE Helsinki Final Act from 1975 which is not a legally
binding international treaty.49
OSCE While there was always a human dimension in the CSCE, it layed down a
profound basis for further work in the Copenhagen Document from 1990. The
raison d’être of the CSCE/OSCE, however, were not and are not human rights as
such. The OSCE is a security and cooperation organization. If human and minority
rights are one of the pillars of the organization it is evidence of the important role
that the observation of both human and minority rights has on the stability and
security of a state or region.
Throughout the 1990s, the CSCE/OSCE repeatedly put minorities on the agenda.
Both state and expert conferences were held within the framework of the so-called
human dimension. Furthermore, the position of the High Commissioner on
National Minorities was established as a conflict prevention tool.50 The High
Commissioner is thus a security instrument and not a mechanism for the promotion
of minority rights. He is no ombudsman. The recommendations of the High
Commissioner are not legally binding. However, it has been observed that they
possess considerable ‘de facto political authority.’51 This is important when con-
sidering that he is independent of national governments. Though working politi-
cally, he may influence the development or strengthening of international law.
47
UNESCO has summarized its efforts up until the mid 1990s in a report on cultural rights of
persons belonging to minorities that fall under the scope of UNESCO United Nations Educational,
S. a. C. O. E. B. (1994) Protection and Promotion of the Cultural Rights of Persons Belonging to
Minorities, Within UNESCO’s Fields of Competence UNESDOC 144 EX/15. See also Girona
Conference 05-08/02/1992 (1991) Cultural Rights of Peoples in Europe Centre UNESCO de
Catalunya.
48
See Sect. 8.2.2 on the group characteristics approach.
49
For a thorough examination about the legal status of the Final Act see van Dijk (1980).
50
The HCNM’s objectives include advising, mediating and facilitating. His toolbox includes
country recommendations, thematic recommendations, statements, projects and cooperation
with third parties, states and NGOs. See Kemp (2001), p. 24.
51
Original italics. Henrard, K (2007): Minority Protection in Europe: What About Effective
Participation?, Minority Rights Group International, London, p. 40.
Similarly to the UN Independent Expert on Minority Issues, he works along the

lines of norms that are accepted by states. Apart from the High Commissioner on
National Minorities, the Office for Democratic Institutions and Human Rights is
one of the possible institutions minorities can focus on. ODIHR is the main
institution within the OSCE’s Human Dimension. ODIHR does not, however,
have a focus area on minority rights. Minorities are mainly included in the context
of ODIHR’s Tolerance and Non-Discrimination Programme.
Council of Europe The Committee of Experts on Issues Relating to the Protection
of National Minorities is the only forum on a governmental level in Europe that is
solely concerned with minorities. It is a forum for the exchange of information and
it collects examples of good practice but it is not a monitoring body. This is done by
the Advisory Committee of the Framework Convention. The Committee of Experts
draws on the results of the Advisory Committee on the FCNM and also on bodies
like the High Commissioner on National Minorities of the OSCE. It works closely
with non-governmental organizations and representatives of national minorities.
With the exception of the Committee of Experts on Minorities, the Council of
Europe considers minority rights under the headline of human rights. The post of
the Commissioner of Human Rights was established in 1999.52 The main task is ‘to
promote education in and awareness of and respect for human rights.’53 The
Commissioner issues opinions, recommendations and reports, which are not bind-
ing. The so-called Venice Commission54 has gained a strong international standing
despite that it has only an advisory function. The European Commission on Racism
and Intolerance is interesting to minorities from the non-discrimination viewpoint.
It is not treaty related and is made up of independent experts.
The Parliamentary Assembly of the Council of Europe is one of the most active
actors in the field of minorities. It was the main institution pushing for an additional
protocol to the European Convention on Human Rights on minority rights. In
addition to the treaty monitoring bodies, the Parliamentary Assembly set up its
own monitoring body in 1997.55 The Committee on the Honouring of Obligations
and Commitments by Member States of the Council of Europe monitors the
member states in connection with their fulfilment of their obligations. This, of
course, includes the Framework Convention and the Language Charter.
UN General Assembly Considering self-determination, UN institutions are diffi-
cult to find. The General Assembly is certainly one of the main actors having
52
Committee of Ministers of the Council of Europe (1999) On the Council Europe Commissioner
for Human Rights CoE Doc. CM Res. (99) 50.
53
Art. 1 (1) Committee of Ministers of the Council of Europe (1999) On the Council Europe
Commissioner for Human Rights CoE Doc. CM Res. (99) 50.
54
Official title: The European Commission for Democracy Through Law.
55
Parliamentary Assembly of the Council of Europe (1997) Setting up of an Assembly Committee
on the Honouring of Obligations and Commitments by Member States of the Council of Europe
(Monitoring Committee) CoE Doc. PACE Res. 1115 (1997).
adopted the resolutions on decolonization. Over time, self-determination issues

relating to such territories such as Palestine, Western Sahara, East Timor and
Kosovo have meant that the General Assembly has constantly been involved in
self-determination issues.
Human Rights Committee Self-determination is not the main issue of the Human
Rights Committee. It has, however, issued a General Comment on self-
determination. It has also faced individual communications regarding self-
determination.
Committee on Economic, Social and Cultural Rights This Committee was only
established several years after the International Covenant on Economic, Social and
Cultural Rights (ICESCR) entered into force.56 It is the monitoring body for the
ICESCR. Its mandate does not include furthering or discussing self-determination.
Yet, the areas with which the ICESCR is concerned—economic, social and cultural
issues—overlaps with three of the dimensions of self-determination. The General
Assembly has adopted an Optional Protocol to the ICESCR which provides for
communications on behalf of individuals or groups of individuals.57 The Protocol
has received enough signatures but now awaits ratification in at least ten states in
order to enter into force.
Special Procedures There is no regular UN body on the subject of self-
determination. Also under the headline of special procedures next to nothing
comes up. The Working Group on the use of Mercenaries as a Means of Violating
Human Rights and Impeding the Exercise of the Right of Peoples to Self-
Determination obviously touches on self-determination but its focus is on activities
of mercenaries.58
OSCE Even though the Final Act of Helsinki includes the right to self-
determination, the OSCE has not developed institutions or bodies mandated to
deal with issues of self-determination.
Council of Europe Self-determination is also neglected at the Council of Europe.
As will be seen below, the European Charter on Local Self-Government is relevant
for the discussion on self-determination. There is no institutional body that is
responsible for the issue of self-determination.
56
Economic and Social Council (1985) Review of the Composition, Organization and Adminis-
trative Arrangements of the Sessional Working Group of Governmental Experts on the Imple-
mentation of the International Covenant on Economic, Social and Cultural Rights UN Doc.
ECOSOC Res. 1985/17. The committee is the successor of the Working Group on the ICESCR.
57
Art. 2 General Assembly (2008) Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights UN Doc. A/RES/63/117.
58
Commission on Human Rights (2005) The Use of Mercenaries as a Means of Violating Human
Rights and Impeding the Exercise of the Right of Peoples to Self-Determination UN Doc. Human
Rights Res. 2005/2.
After introducing the different actors, a striking observation can be made. There
is a pronounced institutional imbalance between the number of actors concerned
with minority rights and those concerned with self-determination. While the
Human Rights Committee has issued a General Comment on self-determination,
it is not a body on self-determination like there is a Forum on Minority Issues. There
have been calls for institutions on self-determination.59 However, as of today they
have yet to be heard. This is not the place to speculate about why this is the case or
discuss whether it is wishful to establish an international body solely concerned
with self-determination issues. Here, the observation is simply made.
4.2 Non-Binding Instruments
International law describes and prescribes the legal framework of the international
community.60 This is mostly done with the help of instruments originating in one of
the recognized sources of hard law.
Non-binding instruments are common in international relations. International
lawyers seem to have an uneasy relationship with them—quite explicably so
because some non-binding instrument inhabit a strange grey area of law and
non-law. A recent example of such a document is the Copenhagen Accord on
Climate Change from 2009. It was continuously stressed that the Accord is a legally
non-binding document; the document is only a political agreement. It seemed like
this conclusion meant international lawyers exited the stage. At the same time,
international lawyers are trying to come to terms with what they call soft law.
Classic international law cannot really explain the relevance and explanations for
why non-binding instruments are relied upon and adhered to must be sought outside
the teachings of classic international law.
Classically non-binding instruments of relevance here originate directly from
states. Examples are unilateral, bilateral or multilateral declarations. They can also
originate from multilateral fora like the United Nations, the OSCE or the Council of
Europe. Examples of these are the CSCE Copenhagen Document and certain
General Assembly resolutions. Especially in the field of human rights, documents
do not always need to be legally binding in order to prescribe certain behaviour.
In comparison to hard treaty law, non-binding instruments differ from them on a
number of points. For one, treaties usually require the consent of the legislative
which is done in the ratification process. Treaties often have an enforcement
mechanism attached and third, treaties simply seem to be of a more serious nature
59
Suggestions have included a permanent UN commission on self-determination, an expert group
on self-determination and a high commissioner on self-determination. See Frankovits (2001),
pp. 31–34.
60
On the terminology and categorization of non-state actors and nonbinding instruments see Sect.
1.3 and Chap. 4.
4.2 Non-Binding Instruments 65
with serious commitments.61 Treaties use stronger language of obligations while

non-binding instrument tend to speak of responsibilities.62 Non-binding instru-
ments typically do not meet treaty criteria. However, exceptions exist and show
that non-binding instruments can meet treaty criteria. For example, The UN Minor-
ity Declaration has an implied monitoring mechanism attached. Also, The Copen-
hagen Document and the Oslo Recommendations on Effective Participation use
treaty language. It can be argued that the Copenhagen Document includes serious
commitments. The dividing line between binding and non-binding instruments is
not always clear and straightforward.
In the area of minority rights, there are several reasons for the relevance of
non-binding instruments. Most importantly, as is shown in Chap. 5 they assert a
compliance pull in their own right. Their relevance, though, is also furthered by the
fact that customary international law is often eyed sceptically because of disputable
content and applicability. Treaty law, the favourite source of international law, has
shown itself to be rather weak in the field of human rights. Also, there are only very
few treaty provisions addressed to minorities. With relatively little ‘to go on’ in
terms of strong international law, the perspective should be broadened. Besides,
without prejudging the importance of non-binding instruments, the amount of them
simply begs for closer attention.
Before providing the overview of the relevant non-binding instruments, it will be
established what these instrument actually are that are termed non-binding under
classic international law.
4.2.1 Non-Binding Instruments Under Classic

International Law
UN General Assembly Resolutions Most discussed in the context of issues on

bindingness and status as law are UN General Assembly resolutions. In 1945 at
the San Francisco Conference efforts to give the General Assembly legislative
authority were not successful.63 Therefore, a good starting point is that GA resolu-
tions are not legally binding. There is wide consensus, though, that GA resolutions
are at least morally binding and that they carry moral weight as they represent the
will of the majority of states.64 The General Assembly only makes binding deci-
sions in matters such as the budget, admission and expulsion of members, election
of ICJ judges and the non-permanent members of the Security Council.65
61
62
63
See Schachter (1981).
64
Menon (1989), p. 134.
65
See art. 18 UNC on the voting of the General Assembly and respectively articles 17, 4 (2), 5, 6
UNC, art. 8 ICJ-S, art. 23 UNC.
Even though GA resolutions are categorized as non-binding, their legal status is

not ultimately settled. For example, the GA resolution on torture was passed
unanimously while the Convention Against Torture was ratified by far fewer
states.66 States obviously saw a difference between the two documents and it
seems as if states were reluctant to bind themselves. At the same time, it is
sometimes claimed that certain GA resolutions have binding force in the sense
that because a declaration takes up issues of grave concern and expresses great and
lasting principles there is a greater expectation that states will abide by the rules laid
down in declarations than in ordinary resolutions.67 Examples of such declarations
are the Universal Declaration of Human Rights, the 1960 Declaration on the End of
Colonialism and the Friendly Relations Declaration of 1970. What seems to be the
determining factor of legal force is the fact that there was virtually no dissent
against these declarations. Also, the content of these declarations is of concern to
the whole international community.
In hindsight, one finds it was mainly the newly independent developing states
who began to invest GA resolutions with a legal dimension.68 They wanted to
change older rules and contribute to the making of new rules.
Further arguments in favour of binding GA resolutions come to mind. For one,
the members of the General Assembly have official mandates from states. These
persons are competent to act officially on behalf of their states when approving a
resolution in the General Assembly. As they represent the opinion of their state, it is
difficult for the state to act contrary to the approved resolution. For another, in the
case of the 1960 Declaration to end colonialism, a committee was established to
monitor the decolonization process and act against states not complying with the
resolution. There was obviously an expectation of certain behaviour and if this
behaviour was not found, states could face consequences. This points towards the
binding force of the resolution.
In South West Africa Voting Procedure, Judge Lauterpacht argued—in the
decolonization context—that members of the UN have an undefined yet present
legal obligation to consider GA resolutions in good faith lest they after persistent
disregard are considered to be disloyal toward the purposes and principles of the
UN Charter.69
In its judgment on the merits in the Nicaragua case, the International Court of
Justice stated that state consent to the text of resolutions such as Res. 2625 “may be
understood as an acceptance of the validity of the rule or set of rules declared by the
resolution by themselves.”70 In other words, at least some General Assembly
66
Roberts (2001), p. 769.
67
Pomerance (1982), p. 65. Regarding the FRD, already at the time of adoption, its legal status was
controversial. See Rosenstock (1971), pp. 714–715.
68
Ida (1996), p. 34.
69
Hersch Lauterpacht (1955) South-West Africa – Voting Procedure – Separate Opinion Advisory
Opinion of 07-06-1955: I.C.J. Reports 1955, p. 90, pp. 118–120.
70
International Court of Justice (1986) Case Concerning Military and Para-Military Activities in
and against Nicaragua (Nicaragua v. United States of America), Judgment on the Merits, 27-06-
1986, ICJ Reports 1986, p. 14, para. 188.
resolutions can be considered to emanate legally binding law. While these resolu-
tions—the ICJ speaks of “certain resolutions”71 without making a definitive list of
which resolutions besides res. 2625 it refers to—have passed the threshold from
non-binding or soft law to classic and accepted law, the ICJ judgment does not
support the usage of soft law, as we are just as wise as to the legal status of General
Assembly resolutions in general. We know now that some resolutions are legally
binding, some carry legal weight and some are purely political statements. The ICJ
does not provide us with a set of criteria which we can use for determining the legal
status of a given resolution.
The question of bindingness of GA resolutions is still ongoing. A look at the
writings of the highest qualified publicists such as Ian Brownlie, Hersch
Lauterpacht and Rosalyn Higgins reveals a predominant view that GA resolutions
should not merely be considered political decisions. However, they are not, as such,
binding international law.
GA resolutions can be seen as important and influential to international law. The
resolutions are mostly connected to customary international law.72 This was inter
alia discussed in the Advisory Opinion of the ICJ on the Legality of the Threat and
the Use of Nuclear Weapons.73 GA resolutions can contribute to customary inter-
national law and they can also state what customary international law is. Similarly,
GA resolutions can also be connected to the other sources listed under art.
38 (1) ICJ-S where they strengthen or restate existing or emerging law.74
There is another way of recognizing the importance and influence of GA
resolutions. A large number of resolutions refer to existing resolutions. Bleicher
argues that a resolution that is constantly referred to over a long time indicates the
international community’s permanent view on an issue.75 In his argument, Bleicher
does not only base his conclusions solely on referrals but he also takes a look at
factors such as normative language.76
Overall, there is a strong indication that UN General Assembly resolutions are
not without value. They do exert an influence. I believe that the support of a large
number of states and also the other factors discussed above such as language,
number of referrals and general importance play a role in the process where some
resolution receive a higher status than other resolutions.
71
Ibid.
72
See Harris (1998), pp. 61–64 including the views of various states and scholars.
73
International Court of Justice (1996) Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, 08-07-1996, ICJ Reports 1996, p. 226, paras. 70–73.
74
See Bleicher (1969), pp. 448–452. See also Harris (1998), p. 60.
75
Bleicher (1969), p. 453.
76
The form and language used can influence how a declaration is perceived: ‘A form of pseudo-
treaty imports some legal value to the text.’ Ida uses these words in relation to Final Act of
Helsinki (1975) http://www.osce.org/documents/mcs/1975/08/4044_en.pdf. Accessed 29 May
2010, but they are true in other circumstances as well. Ida (1996), p. 35. See Bleicher (1969),
pp. 471–472 and 477–478.
Soft Law In short, not all GA resolutions are soft law and soft law is not only made
up of GA resolutions. There is no authoritative list of instruments that are consid-
ered soft law. Some General Assembly declarations fit under the description of soft
law as proposed below. One can even imagine a scale of softness. Some resolutions
are passed and forgotten while others—often termed declarations—have strong
expectations attached to them. In other words, some resolutions are so soft they do
not fit the description of law and some resolutions like Res. 1514 and the FRD are
hardened so such a degree that they have passed the stage of soft law and entered the
sphere of hard law.
From my point of view, the term ‘soft law’ covers more than only General
Assembly resolutions. It covers the documents and agreements adopted by the
heads of state that are members of the OSCE as well. The documents included in
the analysis are adopted by representatives of the state, acting in their official
capacity. They are passed in fora where every state is represented and has one vote.
Rules of soft law occupy the grey area between law and non-law. According to
the sources doctrine, soft law does not meet its criteria and thus there is no binding
law. Other definitions of hard law have included precision and the delegation of
authority and implementation of the law.77 Soft law is found where the documents
are weak in obliging states, lack in precision and there is no further delegation.78
Pending further discussion, rules of soft law are of importance for international law.
This may be because they ‘fulfil at least some, if not a great number of the criteria
required for rules to be considered rules of international law.’79 Soft law cannot be
enforced in court and it is not subject to the law of treaties. Yet, principles such as
good faith that belong to customary international law are applicable. In other words,
when entering a political agreement, the states have an obligation to fulfil this
agreement in good faith. The analysis also shows that non-binding instruments can
be precise. Implicit monitoring activities by independent bodies are ways of
ensuring implementation.
Blurring the lines of non-law and law can be dangerous. International law,
however, exists in a context of blurred lines everywhere. It may be wishful that
international law were clearly established and implemented. However, as long as
there are international instruments that are non-binding under the sources doctrine
but assert a sometimes considerable influence on states, these instruments warrant a
further analysis which is done below when non-binding instruments are examined
through the filter of legitimacy and justice.
Unilateral Declarations Another but different source of non-binding instruments
that can create legal obligations are unilateral declarations. In the Eastern Green-
land Case Denmark and Norway were in dispute about the legal status of Eastern
Greenland. After some negotiations, the Norwegian foreign minister, on behalf of
77
Abbott and Snidal (2000), p. 421.
78
Abbott and Snidal (2000), p. 422.
79
van Hoof (1983), pp. 187–188.
the government, made a declaration explicitly stating that Norway ‘would not make
any difficulty in the settlement of this question.’80 The Permanent Court of Inter-
national Justice judged that this kind of direct, official reply to a request by a foreign
diplomat within the minister’s portfolio was binding upon the country the minister
belongs to.81
The International Court of Justice affirmed this view in the Nuclear Test Case in
1974. The Court regarded it to be well recognized that unilateral declarations
concerning legal or factual situations may create legal obligations. When this is
the case, the state is hereafter required to conduct itself consistent with the decla-
ration.82 The legal obligation stems for one from the intention of the declaration
being binding, regardless if this is made known verbally or written. Secondly the
principle of good faith is applicable. Other states may place confidence in the
unilateral declaration and expect that the issuing state respects the obligations it
has put on itself.83 The intention of the declarations being binding and also the
intention to apply them in good faith are described as becoming clearer over the
years.
The International Law Commission adopted guidelines applicable to unilateral
declarations in 2006.84 These Guidelines are not binding. The principles are based
on decisions of the International Court of Justice and other examples at the UN
level. Principles 1 and 3 identify the factors that determine the legal effects of a
unilateral declaration: intent, content, circumstances and reaction. The intent of the
state to be bound is of utmost importance and essential. No state can be bound by its
own unilateral declaration against its will. In order to determine the effect of such
declaration, the content together with the circumstances under which the declara-
tion was made and the reaction to the declaration are important to consider. The
International Law Commission does not establish a ranking among these three
factors. They all need to be taken into consideration. Overall, the Guidelines restate
the capability of unilateral declarations as sources of legal obligations.
80
Permanent Court of International Justice (1933) Legal Status of Eastern Greenland Judgement
Legal Status of Eastern Greenland of 05-04-1933, p. 71.
81
Legal Status of Eastern Greenland of 05-04-1933, p. 71.
82
International Court of Justice (1974) Nuclear Tests Case Judgement Nuclear Tests Case
(Australia v. France), 20 December 1974: I.C.J. Reports 1974, p. 253, para. 43.
83
International Court of Justice (1974) Nuclear Tests Case Judgement Nuclear Tests Case
(Australia v. France), 20 December 1974: I.C.J. Reports 1974, p. 253, paras. 46–49.
84
Paras. 173–177 International Law Commission (2006) Guiding Principles Applicable to Uni-
lateral Declarations of States Capable of Creating Legal Obligations, With Commentaries Thereto
UN Doc. A/61/10.
4.2.2 Inefficient Treaty Law
The need for a new approach can be argued from different starting points. One is
that there is a need of an approach that accepts non-binding instruments because the
sheer amount of them hints at relevance. Another way is to start from the existing
instruments. Customary international law was discussed in Chap. 3 where it became
clear that while it is firmly recognized as a source of international law, it has also a
number of conceptual problems. The other important source of international law are
treaties. Now, if treaties do not accomplish what they set out to do, does that not
point at the necessity to broaden the perspective?
Treaties are regarded as the most reliable source of international law. After all,
the words are written down and negotiated and states party to the treaty have
consented. Thus, the question of bindingness is also answered. On the other hand,
treaties are static. They can be amended but that is often a tedious process. Surveys
on treaty law in the field of human rights take away illusions one might have had on
an automatic strengthening of human rights through treaty law.
Oona Hathaway has conducted one of the very few quantitative surveys in and
on international human rights law.85 She examines two questions. Firstly she asks
whether human rights treaties are complied with. Secondly she asks whether they
change state behaviour to the better. The interesting result is a ‘not necessarily’ to
both questions. While she stops short of establishing a direct, automatic link
between the signing of a human rights treaty and a poorer human rights record in
practice, she maintains that this connection—of whatever nature it may be—cannot
be reasonably ignored.86 Hathaway looks at her results with different eyes spanning
from classic realism to fairness. Whether or not one agrees with her, the results are
difficult to dismiss entirely. Even should her later arguments not be accepted, the
article still paints a picture of treaties not having as large of an effect as is
commonly assumed.
Goldsmith and Posner provide a good overview over existing studies on the
compliance of treaties or, more general, the relationship between human rights
commitments and actual human rights records of states. The conclusion is in line
with Hathaway’s: human rights commitments do not necessarily lead to a better
human rights record. Despite commitments, human rights violations occur.87 Their
theoretical approach for explaining why there is low compliance with human rights
treaties is based on the instrumental approach which maintains that compliance
depends on the rational self-interest of states to do so.88 While one need not agree
with the theoretical explanations Goldsmith and Posner propose about
non-compliance, there is little to argue about the fact that often human rights
treaties are not complied with. The apparent weakness of treaty law in the field of
85
Hathaway (2002). For similar results on the effect of the ICCPR see Keith (1999).
86
Hathaway (2002), p. 1940.
87
Goldsmith and Posner (2005), pp. 119–126.
88
Goldsmith and Posner (2005), pp. 3–10 and 100.
human rights calls for a new approach: the recognition of relevance of classically
non-binding instruments.
4.2.3 Criteria for Non-Binding Instruments
The instruments examined in the following chapters are those originating from
governmental organizations and particularly the non-binding instruments originat-
ing from the United Nations and the OSCE. Instruments that are non-binding under
classic international law compile a large number of documents. They are adopted,
written or stated for a reason. While non-binding instruments may not have the
binding force that positivists seek in law, they do play a role and can contribute to
the development of the law.
Apart from the criterion to have originated from an international governmental
organization, the adoption process is important. When looking at the material,
‘factors such as circumstances of adoption, result of voting (unanimity, consensus,
or majority), explanation of votes reservations to the resolutions, etc., should be
taken into account.’89 Those resolutions, statements and agreements adopted with
near unanimity have a stronger standing than those only supported by a little
number of states. Non-binding instruments are often adopted without a vote.
Therefore, it is important that states must have had the opportunity to object or
abstain from the instrument. In case of abstention, it must be clear to the state that a
certain expectation of behaviour in conformity with the instruments is applicable
even though the state did not explicitly agree to it. If a state chooses not to interfere
with an agreement or resolution knowing this, one has to assume that it does so
voluntarily and because it at some level agrees with the content of the agreement or
resolution.90
A last point is made in selecting two documents each from the fields of minority
rights and self-determination. The chosen documents are introduced in more detail
below. They are key documents in their fields and provide substantive input to their
issues. In the field of minority rights the chosen instruments that meet the above
criteria are the 1992 UN Minority Declaration and the 1990 CSCE Copenhagen
Document. In the field of self-determination, two UN documents are chosen. One is
Res. 1541 on decolonization which delves into the content of self-determination
and illuminates in what way self-determination can be achieved. Furthermore, Res.
1541 establishes the salt water rule that is still invoked for denying self-
determination outside the colonial context. It is for these reasons that Res. 1541
is regarded as more important as Res. 1514 which was the most cited GA resolution
in the context of decolonization.91 The second instrument is Res. 2625 which is
89
Ida (1996), p. 35.
90
An informal conversation with an OSCE employee confirmed this to be the case at the OSCE.
91
Bleicher (1969), p. 470.
better known as the Friendly Relations Declaration.92 It is noteworthy that no

European instrument is chosen. This is not possible as the OSCE and the Council
of Europe remain suspiciously quiet on the issue.93
4.2.4 Overview of Non-Binding Instruments
There is a large number of non-binding instruments in the fields of minorities,

minority rights and self-determination. The instruments are grouped by level with
the global instrument being presented first before the regional instruments are
introduced. They are presented in chronological order. First, the instruments on
minorities and minority rights are introduced.
Universal Declaration of Human Rights The Universal Declaration on Human
Rights deserves the first mentioning even if it does not include specific provisions
for minorities. A provision was actually proposed but no agreement was found and
it was subsequently dropped from the UDHR.94 Art. 21 on participation in public
political life and art. 27 on participation in the cultural sphere have been quoted in
relation to minorities. Art. 22 UDHR should not be forgotten in this context. The
provision aims at the realization of the economic, social and cultural rights which
are indispensable for a person’s dignity and free development. Again, the three
dimensions of self-determination recur here. The provision is not specifically
directed at minorities or their members but the provision is still applicable to them.
The principle of non-discrimination in art. 2 UDHR is highly relevant for
minorities. Although it protects on the individual level, it also means that the
majority cannot have more rights than the minority. Non-discrimination was
deemed sufficient to protect minorities, but as Patrick Thornberry has argued ‘the
principle of non-discrimination is only a first step in the protection of minorities, but
is not sufficient in itself to deal with the question.’95 History has proven him right.
Since the UDHR was adopted in 1948, minority rights have been articulated and
specified in declarations and treaties.
UN Minority Declaration It took over 40 years for a minority instrument to be
agreed upon. The 1992 UN Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities is the only global
92
The Friendly Relations Declaration refers only to the Principle of Equal Rights and Self-
Determination of Peoples. Aspects such as adoption and bindingness refer to the whole document.
93
See below for the exception in principle VIII on equal rights and self-determination of peoples in
the Helsinki Final Act.
94
Schechtmann (1951), p. 4.
95
instrument solely concerned with minority issues. It is a General Assembly resolu-

tion and thus not binding under classic international law. The Declaration speaks of
several categories: national or ethnic, religious and linguistic minorities. It is one of
the rare occasions where the UN uses the term ‘national minority’. The title can be
understood in two ways. Either ‘national’ and ‘ethnic’ minorities are equated or
‘national’ equates all the terms ‘ethnic, religious and linguistic’ minorities. The last
one is argued on the basis that in case of only equating national and ethnic
minorities, several categories (religious and linguistic minorities) would be opened
up and the text of the Declaration does not support any such distinction.96 The UN
Working Group on Minorities makes it clear in the Commentary on the Declaration
that no overall distinction between different categories of minorities is made. At the
same time, it is made clear that while a minority may not be a national minority it
can still be an ethnic minority and thus be covered by the Declaration.97
In comparison to art. 27 ICCPR, the Declaration in art. 2 takes a positive
approach by using the words ‘have the right to’ while the ICCPR uses ‘shall not
be denied the right to’. This points to a requirement of action to ensure the
implementation of the rights set forth. The Declaration takes an individual approach
within the group rights idea. This was not predetermined but the conclusion of
prolonged discussions.98 The rights enumerated in the declaration must be asserted
by the individual; see for example art. 2 (1). At the same time the states are obliged
to protect the existence of the target minorities as well as their identity.99 Herewith,
the Declaration complements the Genocide Convention that protects the physical
existence of groups. The explicit recognition of their identity as worthy of protec-
tion is an important step forward for minorities.
Two things are notably absent from the document. There is no definition of what
constitutes a minority. Secondly, there is no word about any form of self-
government or autonomy. This was rejected during the drafting process.100 Auton-
omy is claimed to be hinted at in art 1. The provision on territorial integrity in art.
8 makes sure no external solution is sought.
Vienna Declaration and Programme of Action The VDPA from 1993 strongly
reaffirms the rights laid down in the Universal Declaration of Human Rights. The
Declaration was adopted by consensus; it is thus endowed with moral and political
authority that should not be underestimated. The VDPA finds that minority rights
are lacking in implementation. The substantive rights the VDPA sets down for
96
Lerner (2003), p. 19.
97
Paras. 6–8 Working Group on Minorities (2005) Commentary of the Working Group on
Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities UN Doc. E/CN.4/Sub.2/AC.5/2005/2.
98
Hannum (1996), pp. 62–63.
99
Art. 1 General Assembly (93 A.D.) UN Minority Declaration UN Doc. A/Res/47/135.
100
minorities are those of culture, religion and language.101 Some minorities may find
a paragraph on non-discrimination applicable to their situation. The paragraph
speaks of ‘groups which have been rendered vulnerable’.102 Part II also includes
provisions on minorities. They call on the protection and promotion of minority
rights as laid down in the UN Minority Declaration.103 The VDPA is written in very
general terms. This can be argued to be necessary in order to reach agreement. It can
also be argued to lead to a watering down of provision.
General Comments In 1994, the Human Rights Committee adopted General Com-
ment No. 23 which deals with art. 27 of the ICCPR on minorities.104 Most
importantly, there is a line drawn between art. 27 on minorities and the right to
self-determination which is laid down in art. 1. The important difference is the
difference of individual minority rights and self-determination as a group right. As
a consequence, self-determination is not cognizable under the Optional Protocol
that allows for individual communications.105 The Committee makes it clear that
even though there might be a negative wording in the use of the words ‘shall not be
denied’, there are nevertheless obligations and possibly actions to be taken to
ensure the rights of art. 27.106 In academic discussion, it has been suggested that
self-determination is not viewed as a static right and therefore the door to self-
determination for minorities is not closed completely.107
OSCE On the European level, the CSCE early on addressed minority protection.
The Final Act of Helsinki addresses minority rights in Principle VII, para. 4. The
provision provides for equality before the law, the full opportunity to actual
enjoyment of their human rights and the protection of legitimate interests of
minority members. The provision is general in nature and lacks on a number of
points. There is no definition of the term minority, nothing on the discussion what
constitutes a ‘national’ minority, the possible requirement of nationality or the
individual approach.108 The Charter of Paris for a New Europe from 1990 reaffirms
the principles of the Final Act.
101
Para. 19, Part I World Conference on Human Rights (1993) Vienna Declaration and
Programme of Action UN Doc. A/CONF.157/23.
102
Para. 24, Part I World Conference on Human Rights (1993) Vienna Declaration and
103
Paras. 25–28, Part II World Conference on Human Rights (1993) Vienna Declaration and
104
UN Doc. CCPR/C/21/Rev.1/Add.5.
105
Paras. 2 & 3.1 Human Rights Committee (1994) General Comment No. 23: The Rights of
Minorities (Art. 27) UN Doc. CCPR/C/21/Rev.1/Add.5.
106
Para. 9 Human Rights Committee (1994) General Comment No. 23: The Rights of Minorities
(Art. 27) UN Doc. CCPR/C/21/Rev.1/Add.5.
107
Cass (1992), p. 37.
108
See Sect. 8.1.
Copenhagen Document It is within the human dimension that one of the focus
instruments was adopted. This is the 1990 Copenhagen Document which is a
significant advance in the area of defining minority rights. Again, it is not a legally
binding treaty. The Framework Convention109 refers to the Copenhagen Document
which should be a good indicator as to the document’s acceptance and importance.
Most notable in Part IV on minorities is the language used which is akin to treaty
language. The part can be divided into two main parts. Firstly, members of
minorities ‘have the right to’ a number of things listed in art. 31–32; mostly rights
in the fields of education, language and religion. Most of the rights specified recur in
the Framework Convention and the UN Minority Declaration. The next section of
Part IV is devoted to the duties of states. Art. 33–39 prescribe state actions; some
held in general terms and some more specific.
The last few articles in this section are well-known from the final clauses of
treaties. Art. 37 declares that the UN Charter and other obligations under interna-
tional law have primacy over the principles laid down in this part of the document.
This only makes sense if the rights laid down in this document are regarded as
binding and potentially having the force of contradicting existing international law.
Principles without any binding power would not constitute such a threat that this
safeguard must be included.
Part IV repeatedly speaks of rights and commitments. The word ‘shall’ is
suspiciously absent which is usually associated with the soft version of a principle.
Part IV on minorities is only one segment of OSCE activities in the human
dimension. The Document calls for the improvement of the implementation of
the commitments and considers several possibilities to further develop the moni-
toring mechanism. Again, this only makes sense if the commitments are meant
seriously. While this does not automatically mean the commitments are legally
binding there is a clear element of bindingness within the document.
Moscow Document The Moscow Document is the result of one the conference on
the human dimension within the CSCE in the early 1990s. It is important as an
indicator for new developments within the OSCE. The possibility of establishing
rapporteur missions without the state’s consent is a step away from the government
OSCE set-up. The mechanism has not been used often. Secondly, the OSCE pre-
sents itself open towards non-state actors and offers them both a written and an oral
voice in OSCE processes in addition to calling upon the states to cooperate with
NGOs.110 The Copenhagen Commitments are reaffirmed and even the Geneva
Report of Experts on National Minorities is supported.111
109
Preamble Phillips, A (2002): The Framework Convention for the Protection of National
Minorities: A Policy Analysis, Minority Rights Group International, London.
110
No. 43 CSCE (1991) Moscow Document http://www.osce.org/de/odihr/elections/14310.
Accessed 06 May 2014.
111
No. 37 CSCE (1991) Moscow Document http://www.osce.org/de/odhir/elections/1410.
Geneva Report of Experts The Geneva Report is characterized by a positive

approach to minorities even though Part II concludes with the observation that
‘not all ethnic, cultural, linguistic or religious differences necessarily lead to the
creation of national minorities.’ The report strengthens the collective dimension of
minority rights in the areas of political participation and self-government. While
parts of the recommendations are clearly recommendations, such as the list of best
practices, other parts bear treaty resemblance in the wording. The Geneva Recom-
mendations are not in any way conceived to function as a treaty. Nevertheless, it
should not be neglected that this report was adopted by representatives appointed by
governments. Even if a representative may not have been part of the government, it
is unlikely that a representative was present that has diametrically opposed opinions
to his or her government.
HCNM The most relevant recommendations of the High Commissioner on
National Minorities are the 1996 Hague Recommendations on Education Rights,
the 1998 Oslo Recommendations on Linguistic Rights and the 1999 Lund Recom-
mendations on Effective Participation. As the recommendations originate from an
independent body they can only contribute to map the legal situation. As it is put in
the Lund Recommendations, their purpose is ‘to encourage and facilitate the
adoption by states of specific measures’112 that support conflict prevention. The
recommendations also have an explanatory aspect. In the Hague Recommendations
it is said that they are an ‘attempt to clarify in relatively straight-forward language
the content of minority education rights.’113 The recommendations can show
tendencies and new developments. They also expressly refer to relevant accepted
international standards.114 Interesting to note for later discussion is the observation
that no or only little difference is made between binding treaties such as the
Framework Convention and legally non-binding agreements such as the UN
Minority Declaration and CSCE/OSCE-agreements. They are treated on equal
footing.
Notable about the recommendations is the misleading wording in the titles as
minorities are rarely addressed as groups. The recommendations differ in style as
the Hague Recommendations are clearly discernable as recommendations (no. 3: it
112
High Commissioner on National Minorities (1999) Lund Recommendations on the Effective
Participation of National Minorities in Public Life & Explanatory Note http://www.osce.org/
hcnm/30325. Accessed 06 May 2014.
113
High Commissioner on National Minorities (1996) Hague Recommendations Regarding the
Education Rights of National Minorities & Explanatory Note http://www.osce.org/hcnm/32180.
114
Education Rights of National Minorities & Explanatory Note http://www.osce.org/hcnm/32180.
Accessed 06 May 2014 speaks of the UN Minority Declaration, the Framework Convention and
the ICCPR. High Commissioner on National Minorities (1998) Oslo Recommendations Regarding
the Linguistic Rights of National Minorities & Explanatory Note http://www.osce.org/hcnm/
67531. Accessed 29 May 2010 speaks of the ICCPR, ECHR and OSCE documents.
should be borne in mind; no. 14: states should provide adequate facilities) while the
Oslo Recommendations outwardly are set up as a treaty might be and use treaty
language.
UDHR In the field of self-determination, several instruments must be considered.
The Universal Declaration of Human Rights does not speak of self-determination.
Nevertheless there is an argument that several provisions describe self-
determination in different terms. Art. 21 UDHR concerns the right to take part in
government which we meet both in form of ‘freely expressed will’ in the decolo-
nization context and the right to democratic governance. Art. 22 UDHR is argued to
describe economic self-determination. The article provides for the realization of
economic, social and cultural rights that are indispensable for individual dignity.
Res. 1514 The Declaration on the Granting of Independence to Colonial Territories
and Peoples is one the key documents on self-determination. It was adopted
unanimously by the General Assembly. Like the Friendly Relations Declaration,
it is argued that the unanimity gives it the power of customary law if not even ius
cogens.115
Res. 1514 refers to ‘alien subjugation’.116 In more recent cases of self-
determination it has been argued that domination has to be foreign as it was during
colonialism. Domination of one part of a country over another would not warrant a
right to self-determination for the oppressed part. I believe this restricts self-
determination too much. Stating that any kind of oppression and ‘colonialism in
all its manifestations’ and ‘all its practices of segregation and discrimination
associated with it’117 clearly aims for a wide interpretation.
The resolution contains references to many of the pillars of the international
community. It speaks of friendly relations, universal peace and free disposal of
natural resources. Importantly, it also refers to the universal respect of human rights
without distinction as to race, sex, language or religion.118 Self-determination’s
companion territorial integrity is also found here. It is phrased differently from later
documents. Here, it is the ‘inalienable right [of all peoples] to complete freedom,
the exercise of their sovereignty and the integrity of their national territory.’119
Read together with paragraph 4, this reference should be understood as
safeguarding a colonial entity from outside threats. Its territory is to be respected.
At paragraph 6 the familiar words are used: The partial or total disruption of the
115
116
No. 1, General Assembly (1960) Declaration on the Granting of Independence to Colonial
Countries and Peoples UN Doc. A/RES/1514 (XV).
117
Preamble General Assembly (1960) Declaration on the Granting of Independence to Colonial
118
119
national unity and territorial integrity is incompatible with the UN Charter. Res.
1514 is the basis for decolonization and therefore is important in a discussion on
self-determination. Yet, its focus is decolonization and not self-determination. This
project focuses on self-determination outside the decolonization context. This
resolution only offers limited substantive input to the discussion.
Res. 1541 Also in December 1960 Res. 1541 (XV) was adopted. It addressed the
issue of states not recognizing dependent territories as such.120 The important
points in the resolution touch on the possibilities of self-determination; the resolu-
tion speaks in its preamble of the ‘full measure of self-government.’121 Principle VI
speaks of three possibilities: emergence as a sovereign, independent state, free
association with an independent state and lastly integration with an independent
state. The subsequent principles spell out the meaning of association and
integration.
Both association and integration come about by democratic processes. The free
will as expressed in universal adult suffrage is deemed to be the right way to ensure
that self-determination can happen. This is indeed the most important aspect. The
full measure of self-government is achieved through democratic values such as free
political institutions, equal rights of citizens, non-discrimination, equal opportuni-
ties for representation and participation at all level of government and public life,
impartially conducted elections and no interference from the outside. Self-
determination is inextricably linked to democracy as the former cannot come
about without the latter.
A second but very important point is the applicability. Principle IV defines a
colony and establishes the so-called salt-water rule. A colonial power must report
on a territory that is geographically separate from the administering country. The
territory must also be ethnically and/or culturally distinct. This rule is taken to
establish that giving away an overseas territory does not threaten the territorial
integrity of the colonial power. This is important in relation to minorities. If they
were given any kind of external self-determination, most cases would threaten the
territorial integrity which in turn would be against the spirit of the UN Charter.
120
Portugal maintained its overseas territories were an integral part of Portugal. It was therefore
not required to report on its colonies according to art. 73 e UNC. The full title of the resolution is
‘Principles Which Should Guide Members in Determining Whether or not an Obligation Exists to
Transmit Information Called for under Article 73 e of the Charter’. The resolution is only referred
to as General Assembly (1960) Principles Which Should Guide Members in Determining Whether
or not an Obligation Exists to Transmit Information Called for under Article 73 e of the Charter
UN Doc. A/RES/1541 (XV).
121
The General Assembly had long before this been concerned with the issue of self-government.
A list of factors indicative of the attainment of the different forms of self-government was adopted
in ‘Factors which should be taken into Account’, General Assembly (1953) Factors Which Should
be Taken Into Account in Deciding Whether a Territory is or is not a Territory Whose People have
not yet Attained a Full Measure of Self-Government UN Doc. A/RES/742 (VIII).
Friendly Relations Declaration Resolution 2625 from 1970, also called the
Friendly Relations Declaration, was passed without a vote in the UN General
Assembly. It clarifies the purposes and principles of the United Nations. While
General Assembly resolutions are not binding and only an indicator of the political
discussion, based on the circumstances of its passing, it has been convincingly
argued to reflect international custom, state practice or possibly ius cogens.122
In principle 5, the declaration itself repeats the key words all peoples, freely
determine and political status and economic, social and cultural development. It
also includes the duty of the state to promote the realization of the principle123 of
self-determination. Self-determination is a means for a greater goal: friendly
relations among states and to bring an end to colonialism. The FRD also adds a
fourth category of what can constitute self-determination. Secession, association
and integration with another state are known from Res. 1541. The FRD adds ‘any
other political status freely determined’124 to the possibilities. It is an open category
not further defined and can serve as one of the linkages between minorities and self-
determination.
Another well-known issue is raised: the tension between self-determination and
territorial integrity. The FRD concludes the principle on self-determination with
securing the territorial integrity of the state. Compared to other documents, how-
ever, it adds a sentence that has caused much discussion. The territorial integrity
may not be threatened of states
conducting themselves in compliance with the principle of equal rights and self-
determination of peoples as described above thus possessed of a government representing
the whole people belonging to the territory without distinction as to race, creed or colour.
Apparently, a self-determined people possesses a representative government that

does not discriminate. From this has been deduced that any government not
complying with this text cannot invoke its territorial integrity against a self-
determination movement.125 This undertaking is questionable. For one, there is
the negative wording of precluding self-determination where there is a representa-
tive government. A restrictive interpretation is called for. It is quite a jump to turn
the statement completely around and deduce a right to secession from it.126
Several drafts support the view that the entity in question is ‘the whole people’
and not smaller groups. A fragmentation of ‘the whole people’ was not envis-
aged.127 I question the concentration on ‘the whole people’ as not making sense.
According to the view, only in those cases where the whole people is discriminated
122
Castellino (2000), pp. 34–35.
123
The FRD is not constant in its labelling. It sometimes refers to the principle of self-
determination and at other times to the right to self-determination.
124
Principle 5 FRD.
125
See e.g. Kirgis (1994), p. 306.
126
See Summers (2005), pp. 335–336.
127
Thornberry (1989), pp. 876–877.
against because of race, creed or colour, territorial integrity as a last safeguard is

waived by the state. In a homogenous state, how can there be a government
discriminating the whole population? If indeed a whole people is discriminated, it
must be by outside forces. In that case, we are back at colonial or quasi-colonial
circumstances. Interference with the political independence of any state, however,
is a breach of the first principle of the FRD. In a heterogeneous state, history has
shown time and again that one group may discriminate the others. If the FRD does
not address this issue, then what does the above quoted provision address? While I
think one has to apply a restrictive reading to the above quoted provision, it is also
false to deny that several groups or peoples can exist within one state.
Principle 5 on equal rights and self-determination repeatedly refers to the
colonial context which is one reason that it has been argued that the FRD cannot
be understood outside of the decolonization framework.128 At the same time, others
state that ‘the General Assembly in 1970 expanded the concept beyond anti
colonialism.’129 Thinking of Res. 1541 and the salt-water principle, the FRD
would be obsolete today, as colonialism of separate territories has been over-
come.130 Already at the time of drafting, much discussion about the extension of
the right to self-determination ensued.131
The paragraph on the ‘subjection of peoples to alien subjugation, domination
and exploitation’ that constitutes a violation of the principle of self-determination
has to be understood in a wider context than the colonial context. Understanding the
FRD to be a concretization of the UN Charter, a document that was formed by the
experiences of World War II and its miseries, would be contrary to its very aims to
leave internally subjugated, dominated and exploited peoples completely
defenceless towards their state.
In 1984, the Human Rights Committee referred to the right to self-determination
as laid down in the FRD.132 In 1992, the Vienna Declaration and Programme of
Action also referred to self-determination as laid down in the FRD. If self-
determination is to be understood only within the colonial context of the 1950s
and 1960s, these references are only historical in nature. The contrary is the case.
Self-determination as contemplated in the FRD still has validity.
Overall, I agree with the wider reading of the FRD. I do not think a right to
secession can be deduced from the text. On the other hand, I believe there is an
inherent threat to the state to be on good behaviour, meaning to represent the whole
people; otherwise the FRD will not guarantee territorial integrity. There is a thin
128
Higgins presents the viewpoints against and in favour of ongoing applicability. See Higgins
(1994), pp. 116–117; Hannum (1993), p. 16.
129
Kirgis (1994), p. 305.
130
131
Rosenstock (1971), pp. 730 and 732. Rosenstock argues convincingly for an extra-colonial
application of the right to self-determination.
132
No. 7 Human Rights Committee (1984) General Comment No. 12: The Right to Self-
Determination (Art. 1) UN Doc. CCPR General Comment No. 12.
line between these two interpretations. In the first one, a non-represented group can
rightly secede from the state without that state’s consent. In the second scenario,
secession is only one of the possible outcomes. Here, the state risks losing the
protection of territorial integrity, but before it is absolutely abandoned, it is a
big step.
Human Rights Committee General Comment Another UN instrument is General
Comment No. 12 on the right to self-determination of peoples. Self-determination
is regarded the basic precondition for the implementation and observance of other
human rights. The Human Rights Committee notes that states frequently do not
report at all or unsatisfactorily on art. 1 ICCPR.133 The Committee stresses that
states have a positive obligation to all peoples regarding self-determination. The
Committee hurries to restrict this by adding the UN Charter as a framework and in
particular the principle of non-intervention.134
The Committee shows a surprisingly open approach to self-determination. While
states often seem to equate self-determination with secession and the break-up of
the international community, the Human Rights Committee is of the opinion that
self-determination contributes to friendly relations, international peace and under-
standing.135 This should be a sign to states that self-determination is not all that
threatening as it appears.
Vienna Declaration and Programme of Action The Declaration reaffirms a peo-
ple’s right to self-determination.136 Denial of that right is a violation of human
rights. The wording of the Friendly Relations Declaration is used and thus strength-
ened. The subparagraphs address colonial peoples in particular; however, the
general wording of the first paragraph is not restricted to colonial peoples. If one
was in doubt whether the Friendly Declaration can be applied outside the colonial
context, this doubt should be erased.
CERD General Comment The Committee on the Elimination of Racial Discrim-
ination has adopted a General Comment on self-determination even though the
Convention does not mention self-determination. The Committee points out that
self-determination has an internal and an external aspect. Internal self-
determination concerns the economic, social and cultural development while exter-
nal self-determination means freely determining the political status.137
133
Para. 3 Human Rights Committee (1984) General Comment No. 12: The Right to Self-
134
135
136
Para. 2 World Conference on Human Rights (1993) Vienna Declaration and Programme of
Action UN Doc. A/CONF.157/23.
137
European Organizations European organizations are mostly quiet on the issue of

self-determination. The Final Act of Helsinki includes the principle of self-
determination; however, this is one of the very few times self-determination is
mentioned in non-binding instruments of the OSCE and the Council of Europe.
Principle VIII of the Final Act stresses that ‘all peoples always have the right . . . to
determine their internal and external political status.’138 A couple of things need to
be noted. This principle clearly takes self-determination out of the colonial context.
Secondly, self-determination is limited to the political sphere. There is no reference
to economic, social and cultural development.
Principle IV of the Final Act balances the principle on self-determination.
Principle IV refers to the territorial integrity of states. There is no hierarchy
between the principles. This is affirmed in the Charter of Paris for a New Europe:
‘All the Principles apply equally and unreservedly, each of them being interpreted
taking into account the others.’139 It is thus not possible to conclude that territorial
integrity trumps self-determination just like self-determination cannot trump terri-
torial integrity. The Charter of Paris explicitly reaffirms the right to self-
determination of peoples in conformity with territorial integrity.140
Conclusion
This chapter has introduced the instruments that later appear in the detailed
discussion. It may thus serve as a reference chapter. At the same time, this
chapter shows that there is a mass of actors and instruments in the areas of
minority issues and self-determination. The United Nations and the OSCE
are the main non-state actors regarding minorities, their rights and self-
determination. International lawyers are well advised to take notice of their
activities. UN resolutions can have legally binding effect and OSCE docu-
ments mix treaty language with political statements. European organizations
refer to each other’s documents, across the boundaries of binding or
non-binding sources. A clear delineation according to sources is no longer
feasible.
The instruments of the UN bodies and their sub-bodies provide both
framework and context for the resolutions that are analyzed in detail. It is
only with the knowledge about these actors and their instruments that a
meaningful analysis can take place. For example, resolutions 1541 and
2625 cannot be understood in isolation.
(continued)
138
My italics. Principle VIII Heintze (2004), pp. 289–299.
139
CSCE (1990) Charter of Paris for a New Europe http://www.osce.org/de/mc/39518. Accessed
06 May 2014, p. 5.
140
06 May 2014, p. 5.
OSCE documents display a wide array of formulations. The large margin

left for states to interpret the documents and diffuse wording can make it
difficult to find a clear intention for obligations. Yet, many documents clearly
state that the states are determined to act in accordance with the commitments
made. This is regarded as evidence that there is a firm expectation to comply
with the commitments.141
At the OSCE, confrontational voting is usually avoided. As has been
noted, ‘“peer pressure” through consensus can be more useful than a voting
system.’142 On the other hand, states are bound by their commitments, not
legally but morally or politically. There are authors who, while recognizing
the political nature of OSCE decisions, maintain that these political commit-
ments are recognized by the states as binding and as having legal
consequences.143
In my view it is very much true that it is not of primary importance if a
provision is part of legal treaty or a political agreement. It is often just as
unacceptable to breach a political agreement as it is to breach a legal treaty.144
Therefore, the effect is the same—states are bound. The distinction between
legal and political or moral bindingness is important as the consequences
differ in nature. When a legal obligation is broken, a set of rules determining
reparations or other consequences comes into play. When a moral or political
obligation is broken, the state may be reprimanded by the Security Council,
sanctions may even be applied or in repeated situations the state’s reputation
will suffer. However, there is no legal procedure following the breach of a
political obligation. On the other hand, political consequences can be just as
hard for a state as paying reparations.
Regional arrangements play an important role in promoting and protecting
universal human rights.145 The European and Inter-American regimes of
human rights are well developed. The African system has established insti-
tutions and the underlying treaty law while the Arab, Asian and Oceanic
regions are still in the phase of drawing up mandates, establishing structures
and applicable international law. A global body on self-determination has
been proposed in different forms. There is no Special Procedure on self-
determination and the International Civil Tribunal on the Right to Self-
Determination is far from reality.146
(continued)
141
Pentikäinen and M S (1993), p. 96.
142
Dalton (1994).
143
Symonides (2007), p. 156.
144
See van Dijk (1980), p. 110.
145
See para. 37 World Conference on Human Rights (1993) Vienna Declaration and Programme
of Action UN Doc. A/CONF.157/23.
146
The Tribunal was proposed at high-profile NGO conferences on self-determination and the
United Nations in 2000 and 2004. See Kly and Kly (2001, 2006).
Possibly apart from the Universal Declaration on Human Rights and the
Friendly Relations Declaration, the introduced instruments are not counted
among sources of binding international law. Sources doctrine only leads us to
treaties and customary international law. Yet, the instruments introduced here
have left their impressions along the way; some more some less. Classically
non-binding instruments have a role to play in international law. A new
approach is needed that includes the actors and instruments introduced in
this chapter. It is the ideas of Thomas Franck and John Rawls on Legitimacy
and Justice that the further analysis is based upon. Using their approach, the
role of the instruments of this chapter is examined.
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Chapter 5
Legitimacy and Justice
International law can be considered from many viewpoints. The diverse literature
on theoretical approaches bears witness to that. Legal positivism is deemed to be
too restrictive as it does not take into account the vast amount of actors and
instruments introduced in the preceding chapter. Nevertheless, it is still one of the
leading theories in international law and even though it has its shortcomings, it
wields much influence. I do not seek to disregard legal positivism completely but I
consider a complementary approach, which I have found in legitimacy and justice.
I regard treaties and customary international law as important sources of inter-
national law and they are therefore included in this project. This is one reason for
including some thoughts on positivism. A second and more important reason is
found elsewhere. The preceding chapter calls for a new approach by reasoning that
an approach is necessary that takes into account the introduced actors and instru-
ments. This chapter reverses the argument. The starting point for this chapter is the
theory itself. Positivism proves inadequate on a number of points; therefore a
different approach is needed. Also, the traditional, well-established and accepted
theory of international law is presented because only then is it possible to under-
stand the novelty of legitimacy and justice.
Legal positivism looks at the sources of art. 38 (1) ICJ-S to determine the law.1
Under this approach, the preceding chapter might as well be superfluous. These
classically non-binding instruments simply cannot be considered within the sources
doctrine. Yet, they are important and assert influence. If a right to internal self-
determination is found in non-binding instruments but these instruments have a
binding effect, it is sensible to speak of a right to internal self-determination for
minorities under international law. Yet, positivism does not allow for this approach.
1
Koskenniemi (1990), p. 10. This section considers what could be termed classic positivism.
Modern positivism is—to a certain degree—open towards non-state actors under international law.
See Ratner and Slaughter (2004), pp. 29–30.

DOI 10.1007/978-3-319-08876-1_5
90 5 Legitimacy and Justice
Leaving the classic sources, I continue along the lines of legitimacy and justice.
Thomas Franck asks about the compliance pull of a rule which will point to the
chances of a non-binding instrument being followed. John Rawls’ theory of justice
contributes with the original position behind the veil of ignorance. In this hypo-
thetical situation, information is withheld so the parties are ignorant of their own
circumstances. The original position is the starting point for making decisions about
the structuring of society.
The question is whether a right to internal self-determination is fair. Franck
provides procedural fairness under the heading legitimacy and Rawls provides
substantive fairness under the name of justice. The theories are introduced below.
Later on, they are applied in different ways and at different stages. In this chapter,
the fairness approach is used on those documents that the sources doctrine considers
as non-binding. In Chap. 10, I return to the fairness approach. Here, four specific
minority rights are discussed regarding their procedural and substantive fairness.
Franck is followed closely while Rawls serves as a framework and inspiration but I
do take more liberties with him.
5.1 Legal Positivism and Sources Doctrine
It is not the aim here to lay out the entire theory of legal positivism with its many
strands. Over the centuries, a number of renowned scholars have added their—
sometimes contradicting—views to the idea of legal positivism. All positivists have
been subjected to severe critique. It suffices here to discuss some of the main points
that stem from this school that lay the basic foundation upon which the further
discussion rests. My main interests in positivism are based on the sources doctrine,
the sharp differentiation between law and moral and the command theory.
As one of the key points, positivists agree that international law is only binding
when it is based on state consent. As states are sovereign they can only be bound by
rules they themselves consent to. John Austin denied in 1832 that international law
is law, because he took the view that law is a command that can only be made by a
sovereign who is superior to the subjects of the law and backs up the command with
a sanction.2 Clearly, this collides with the nature of international law. Rules of
international law are not made by a sovereign who is above the subjects. On the
contrary, states make rules for themselves3; they are not above the law. Depending
on the treaty, a sanction regime may be envisaged or not; however, the enforcement
mechanism is never as strong as is possible within a state. While I see Austin’s point
2
Austin (1971), pp. 13–26.
3
Regarding customary international law, this point can be disputed. For more on this discussion
see Sect. 3.2.
5.1 Legal Positivism and Sources Doctrine 91
on the command theory, I do not agree with his conclusion; mostly so because I do
not think it is feasible to measure the domestic and the international systems with
the same yard stick. I do not wish to enter the discussion on the nature of
international law and whether it is law at all.4 If law is what we find in domestic
systems, then from my point of view international law is law sui generis.
H. L. A. Hart rejects Austin’s idea that law is an order backed by threats. He does
not believe that obligations are created by an underlying threat of sanctions; at least
not on the international level.5 Agreeing with Hart, I see the need for a different
school of thought that plausibly explains the formation of obligations under inter-
national law. Legal sanctions are not alone in creating obligations. Sovereign states
can be bound by rules; they are not above the law and there is no reason why they
necessarily should be. On the other hand, while Hart acknowledges the existence of
a moral obligation to follow a certain rule, he also rightly points out that this is not
necessarily the case with every rule.6 In other words, obligations under international
law can be created by morality or even a threat of sanctions, but they are not
essential parts of every obligation.
With this argument Hart takes up another core positivist issue: morals and the
law. Positivism and Hans Kelsen in particular7 insist on the separation of law and
morals. Positivists aim to find out what the law is rather than what the law ought to
be. While positivists usually oppose natural law in general, Hart acknowledges that
the division itself into the spheres of morals and law presuppose a moral choice and
thus allows for a minimal existence of natural law. There are an abundant number of
rules under international law that have nothing to do with morality such as for
example the overflight rights of civil aircrafts. Other rules—especially found in the
field of human rights—are closely connected to our values, morality and ethics.8
Even Kelsen acknowledges that morality cannot be ignored completely in the
legal field:
[I]nternational morality is the soil which fosters the growth of international law. It is
international morality which determines the general direction of the development of
international law. Whatever is considered ‘just’ in the sense of international morality has
at least a tendency of becoming international law.9
This quote may seem atypical for Kelsen who takes the distinction between law
and morals to the extreme in his pure theory of law. The pure theory is devoid of
4
In this I agree with Thomas Franck who speaks of the post-ontological era of international law,
where international lawyers no longer need to defend the existence of international law. See
Franck (1995), p. 6.
5
Hart (1994), pp. 217–219.
6
Hart (1994), pp. 231–232.
7
See Kelsen (2000), p. 196.
8
Sloss (2005), p. 170.
9
Kelsen (1996), p. 65.
any political ideologies and all other scientific elements safe those from the legal
sciences.10 Morals do not have a place in his system. Nevertheless, even Kelsen
confesses that its basis, the Grundnorm, lies outside the system and is based on
rational choice.11 The Grundnorm is thus an assertion and shows us that law is not
self-sufficient. Whatever is ‘rational’ is partly determined by morals and values.
Rationality is dependent on one’s aim or purpose.
Kelsen still wields influence today. The question is whether international law
really can be reduced to one single Grundnorm. On the other hand, it is precisely the
idea of sources doctrine to determine the legal status of a provision by following its
connections back to the Grundnorm that is prevalent in art. 38 (1) ICJ-S. Kelsen’s
idea—and Hart agrees with him on this point—of the state not being above the law
is an accepted truth among international lawyers today.
The distinction of what the law is and what the law ought to be it is a very
difficult distinction to make in the formation of new law. Positivists say a rule is
only a rule when it describes what the law is. On the other hand, a rule is only made
when there is someone deciding that there ought to be this specific rule. The line
between ought and is becomes blurred when new law is made. This is especially the
case in the area of customary international law and maybe even more so in the field
of soft law. Soft law represents what the law ought to be but for different reasons is
not law or not law yet. Combining this with the field of human rights makes it much
more complicated. Human rights are not only soaked with morals, values and views
on what the law ought to be, but the fact that so many non-state actors are involved
makes it doubly complex.
As positivists are preoccupied with the idea of sovereignty and consent, codifi-
cation plays a big role. When states agree to treaties the issue of bindingness is
straight forward. All other sources of law and whatever might be found in the area
of human rights are not to the liking of positivists. That, however, cannot lead to the
exclusion of all other instruments in the analysis.
Legal positivism has many more strands or sub-theories than are possible to
include in this introduction to the theory. Only a few points ascribed to positivism
were presented here. The command theory essentially takes the legal system to be
made up of rules backed by sanctions. The idea of the sovereign state for one leads
to the focus on state consent regarding issues of bindingness and secondly to the
idea that the sovereign state is above the law. Though Hart allows for a minimum
content of natural law and morals, positivism as such is highly sceptical and keeps
law and morals far apart. The distinction between is and ought is also a main theme
in positivism.
Despite the criticism positivism has attracted, it ‘remains the lingua franca of
most international lawyers, especially in continental Europe.’12 The question of
bindingness of rules of customary international law is an example of the split
10
Kelsen (2000), p. 1.
11
Evald and Schaumburg-Müller (2004), p. 18.
12
Ratner and Slaughter (2004), p. 5.
5.2 Legitimacy 93
relationship. When customary international law is made by a group of states but is

binding on all, state consent is overridden. A number of international lawyers
advocate the positivist state consent theory meaning that they maintain that states
are only bound by what they consent to. Although at the same time they argue for
bindingness of customary international law; the contradiction is rarely addressed.13
Whether sanctions are essential for creating obligations is also still relevant for
international lawyers. Can a proposition be legally binding if it is coated in political
or moral terms? Most international lawyers deny this. I tend to disagree with them.
The fairness approach points at a positive answer. It is important to note that
positivism cannot deal with a number of aspects natural to human rights. It is
thus important to look to other schools of thought.
5.2 Legitimacy
Prior to decolonization, the international community of states was relatively

small.14 The legality of action and inaction was of foremost concern. When new
states entered the international society during decolonization, law making became
much more difficult. The new states brought diversity to the international commu-
nity. New rules had to meet a new requirement in addition to legality: they had to be
legitimate.
The ideas of legitimacy, fairness and justice are closely related and different
authors use different and sometimes conflicting and overlapping terminology. It is
only clear that there are two dimensions: the procedural dimension and the sub-
stantive dimension. I will use Thomas Franck’s terminology as the procedural
dimension is based on his theory of fairness. The substantive dimension is primarily
based on some of John Rawls’ ideas of distributive justice. At first, Franck rejected
justice at the international level.15 Later, he offered his own account of it.16
Applying legitimacy and justice together covers both the procedural and substan-
tive dimensions.
Franck uses the term fairness as the framework for managing the tense relation-
ship between status-quo oriented legitimacy (procedure) and change oriented
justice (substance).17 Both substantive and procedural fairness are open to
13
One of the exceptions is Judge Fouad Ammoun who addresses this in the North Sea Continental
Shelf case. His way of getting out of consent and bindingness is simply to distinguish between
general CIL and particular CIL; the former not needing special consent while the latter does. See
Separate Opinion, 20/02/1969, at para. 31.
14
In 1950, the United Nations had 60 members. By 1970 the number had more than doubled to
127. See United Nations (2010) United Nations Membership. http://www.un.org/en/members/
growth.shtml. Accessed 06 May 2014.
15
Franck (1990), pp. 208–246.
16
Franck (1995), ch. 3.
17
Franck (1995), p. 7.
politicization. Opening the law towards values makes it vulnerable—values can

change and values can be debated endlessly. The result is soft law which ‘does not
enable us to clearly know what degree of normativity we are dealing with . . . and
what will be the responsibility of a soft illegal act.’18 While some international
lawyers may criticize me for opening Pandora’s Box, for becoming apologetic and
only seeking the right answers, I am certain that ignoring the issue of legitimacy in
this discussion will lead to a utopian result. I do not think that law evaporates from
international law in my approach.19
The issue of legitimacy may also provoke dismissive reactions because it shows
streaks of natural law which has equally many critics as legal positivism.20 Very
plainly stated, natural law is the law that human beings perceive through reason. In
other words, it is law that exists independently of human beings in all places and at
all times but is brought into the realm of human existence through human reason.
Besides its claim to be universal and inalterable, natural law is best described by
being a higher law which determines whether ordinary laws are morally binding.
This is one of the main points often criticized: law is always in agreement with
nature and is thus morally good. David Hume criticized this correlation that is often
taken for granted: whatever comes naturally is good. He rearranged the wording of
it, addressing it in the terms of is and ought. In his view this correlation does not
always exist and he maintains that natural law confuses is and ought. Just because
something is a certain way does not mean it ought to be that way.21
Until the seventeenth century, nature meant God and divine law. Man made
positive law cannot change natural law and any rules going against the morally
good nature cannot be valid rules. Hugo Grotius makes a point on the idea of
command and effect of rules. He maintains that even without a sanction behind a
rule, the rule in question will have an effect as only justice brings peace of
conscience while injustice causes torment and anguish; it is condemned and
above all finds an enemy in God.22
Classic natural law was predominant for several centuries before legal positiv-
ism seriously challenged it in its position as the leading way to look at international
law. Nevertheless, natural law has remained an existing stream and a number of
new approaches to international law take up the core points of natural law again.
The idea of law being what is morally good appeals especially to human rights
lawyers. Those advocating just war, the New Haven approach and justice, legiti-
macy and fairness likewise draw on natural law.
18
Ida (1996), p. 45.
19
Soft-law, bargaining, equity etc. have been challenged to let law evaporate from international
law. See Korhonen (1996), p. 482.
20
For the following see Harris (1997), pp. 6–20; Grotius (1996), pp. 34–37; Canning (2003),
pp. 108–123.
21
Harris (1997), p. 12; Kelly (2003), pp. 201–202.
22
Grotius (1996), p. 43.
5.2 Legitimacy 95
One of the most prominent scholars on legitimacy and fairness was Thomas
Franck.23 He is not so much concerned with the direct question of whether states
obey international law but he instead asks if a rule is fair, because fair rules have a
high chance of being complied with. Franck tries to answer the question of why
international rules are obeyed. Franck, so to speak, takes a look behind the scenes of
obligating rules under international law and examines the rules’ backgrounds. I use
Franck’s approach with a different question in mind. I do not ask about the
compliance pull of the rule of internal self-determination of classic minorities in
Europe. This question does not make any sense as this rule is generally denied to
exist. I argue the other way round. If there is a strong compliance pull of a right to
internal self-determination for classic minorities then there must be an underlying
rule of international law.
Franck identifies four main factors that determine the legitimacy of a given
rule.24 First, a rule has to be determinate. Only if a rule conveys a clear message is
there a good chance for it to being followed. Indeterminate rules that are easy to
avoid are rarely followed. This factor is problematic in the area of minority issues.
While some rights are relatively clear and understandable, provisions like art. 14 of
the Framework Convention are quite unclear.
Nevertheless, the vagueness of provisions in the Framework Convention has
been argued to be an advantage rather than a drawback. It may have increased the
number of states party to the Convention. Similarly, the right to self-determination
is one of the most unclear and most discussed concepts in international law. Franck
himself recognizes indeterminacy as being unavoidable and sometimes even having
its advantages.25 Indeed, it has been argued that within our pluralist world with
sometimes colliding values, it is difficult to reach agreement between the many
actors and therefore ‘norms are bound to remain open-ended.’26 In other words,
there will always be a certain degree of indeterminacy in international legal pro-
visions. This is accepted but minimized by limiting the framework to liberal
European state where fundamental values are shared.
The second factor is symbolic validation. Franck uses the terms ‘ritual,’ ‘sym-
bolic validation’ and ‘pedigree’ in this context. I focus on pedigree as the clearest
term and as a concession to those international lawyers relying only or mostly on
sources to determine what constitutes international law.27 Pedigree is about how a
rule came about and where it comes from. Treaties are not problematic because of
state consent. The OSCE regime, on the other hand, can be questioned in this
23
Franck (1988, 1990, 1992, 1995).
24
For the introduction of the four factors determinacy, pedigree, coherence and adherence see
Franck (1995), pp. 30–46.
25
Franck (1990), pp. 53–54.
26
Klabbers (2006), p. 199.
27
Franck (1988), p. 725. Franck points out that the three concepts of symbolic validation, pedigree
and ritual are related though not the same. I do not regard state symbols or rituals to play such an
important role in the making of minority rights. Pedigree is of great importance, as the rules must
come about in a way acceptable to states as they will ultimately have to implement the rules.
regard. Many documents adopted by the OSCE are only politically binding, but
expectations about certain behaviour nevertheless originate from here. The answer
is that those documents are adopted by the heads of states or governments. Also,
states are not the only actors in international law. Even though states still have by
far the most prominent role in the international arena, rules having a pedigree of
organizational institutions as supporters do not necessarily have to be discarded.
Regarding General Assembly resolution, states remain the primary actors as it is
states that adopt them. Resolutions do not always originate from states but from UN
bodies. The pedigree is strengthened when this is the case. On its way to the General
Assembly the resolution has passed so many levels and bodies with state represen-
tatives where it has been either modified or supported that this process shows a good
pedigree. At the end of the process is the adoption in the General Assembly which is
done by state representatives.
Coherence is the third factor. It addresses the issue that a single standing rule that
contradicts other rules is not likely to be followed. The rule in question has to fit into
the larger context and treat like cases alike. If a rule can be generalized it has a
higher chance of being coherent. Minority rights all seek protection and promotion
of minorities. In one way or another they seek minorities’ empowerment. Thinking
along the lines of political participation, a rule of self-determination for minorities
fits in the context and is coherent.
The last of the four factors is adherence. It is closely related to coherence. If the
provision of primary school education in the minority language of the Language
Charter is connected to underlying secondary rules governing its creation, inter-
pretation and application, the chances are higher the original provision will be
followed. An example of rules governing the application of the provision on
primary school education in the minority language would be the rules about the
monitoring process of the Language Charter. Without those rules, it would be easy
for states to avoid setting up minority language education in primary schools. In a
setting of liberal states, adherence to any kind of agreement is more likely than in
non-liberal states. Agreements are more likely to be negotiated and concluded
between mutually trusting states. The states in turn, being liberal, are committed
to the rule of law and ideally a network of individuals and groups participated at
some stage in the process. A vertical connection is presupposed in liberal states.28
The stronger these four factors are present the stronger is the compliance pull of
a rule. In other words, a rule that exhibits determinacy, pedigree, coherence and
adherence will most likely be followed. According to Franck, the likelihood of
compliance is the index of the rule’s legitimacy.29
Franck introduces two gatekeepers in his theory. They serve as the two main
pillars which limit the discourse or negotiations in a specific case. The first one is
28
For this argument see Slaughter (1995), p. 532. Slaughter speaks of agreements which could or
could not be restricted to treaties. I see no reason why this should be the case as the same
conditions apply to political agreements.
29
Franck (1988), p. 712.
5.2 Legitimacy 97
the so-called no trumping principle.30 None of the parties is allowed to exclude any
possible solution. In other words, if the minority and the state negotiate about
political participation, there will be no hope of a compromise acceptable to both if
for example autonomy is excluded from the very beginning from the negotiations.
This principle is sometimes difficult to carry over to minorities. The state is usually
the stronger party and excludes external solutions per se. This is not problematic in
situations where minorities do not strive for external solutions. However, the case
of Kosovo shows that trying to introduce the trumping principle of no independence
for Kosovo by the Serbian state is possibly being trumped after all.
The second gatekeeper is the maximin principle.31 It is a principle borrowed and
expanded to work on a global level from John Rawls who uses it under the name of
difference principle in a limited framework.32 According to the maximin principle,
unequal treatment of different groups is justifiable if the gap between the two
groups is narrowed by this unequal treatment. This fits the idea of minority in
two ways. For one, the very idea of treating the minority favourably is supposed to
narrow the gap. Secondly, and this addresses Franck’s comment that also those not
receiving the favourable treatment gain something from it, the positive discrimina-
tion of minorities ideally lets them unfold their capabilities. Franck puts it nicely:
Inequalities which enlarge the pie are permitted.33
Franck bases his later theory on the community. In short, obligations of common
governance do not originate from the consent of states but by virtue of the states
belonging to the international community.34 Even though the term ‘community’ is
quite vague, it is an interesting thought that state consent is not needed for
obligations to come about. It is not easy to transfer this idea to the sphere of
minority rights and self-determination as Franck speaks only of ‘common gover-
nance, as an implied condition of membership of the community.’35 The question
here then is, whether either self-determination or certain minority rights have
entered the sphere of common governance, meaning being rules that a state has to
accept as being part of the international community. Self-determination is argued to
be ius cogens.36 Whether it is a right or a principle, I think it is safe to assume that
self-determination is part of common governance. As far as minority protection is
concerned, in a European framework minority protection is also part of common
governance.
Thomas Franck’s theory is, despite its many critics,37 chosen because most of its
components—not all are discussed in depth here—work well in the field of human
30
Franck (1995), pp. 16–17.
31
Franck (1995), pp. 18–22.
32
Rawls (1999a), pp. 65–70.
33
Franck (1995), p. 21.
34
Franck (1995), p. 27.
35
Franck (1995), p. 29.
36
Pomerance (1982), pp. 63–115; Moris (1997), p. 204.
37
See Scobbie (2002), Simpson (1996), Tasioulas (2002), and Cullen (2002).
rights. Both minorities and majorities are prone to think in terms of fair and unfair
treatment and in terms of just solutions. Whether the solution to a minority issue is
found based on legally binding documents, political commitments or a third option
is only of secondary importance. Therefore, Thomas Franck’s approach is both
valuable, relevant and discussed in detail here. His approach is taken up in this
chapter and Chap. 10.
While Franck’s idea of a strong compliance pull of fair and legitimate rules is
appealing, I do not think it holds up by itself in the international relations world. I
see the use of his theory in explaining why certain rules are more respected than
others or why some statements or declarations have received the status of law.
However, I also believe that states make choices that reflect their own interests. As
long as the cost38 of complying with a rule is lower than breaching it, states will
oblige with the rule in question. A fair rule is harder to breach than an unfair rule
which explains the importance of the fairness factor of a provision. I see this as part
of what Franck calls the compliance pull. Accepting then that liberal states receive
pressure from within to comply with international rules, and especially with fair and
legitimate international rules, a picture of the liberal state between law and society
emerges with international law being both a tool and a goal to be achieved.
Franck’s fairness has been criticized on a number of points; one of them is being
ethnocentric.39 Fairness is never objective and differs for those involved. One will
always try to promote one’s own sense of fairness. As this project limits itself to the
European context, it focuses on a relatively homogeneous group. Also within
Europe there is a great variety of approaches and traditions. However, in compar-
ison to a global perspective, Europe is regarded as an area of similar ideas and
values.
A second critique is aimed at the no trumping principle as it can be seen as
rendering itself obsolete. It faces the same challenge as Kelsen’s Grundnorm. For
Kelsen, only rules within the system and ultimately leading back to the Grundnorm
are acceptable legal rules. The Grundnorm itself is found outside of this system.
The no trumping principle faces a similar problem. It trumps every other principle.
Only if the no trumping principle is accepted as trumping everything the system
works. As Kelsen accepted this incoherence I will do the same. He simply speaks of
a presupposition of the Grundnorm as it cannot be created by an authority. One
could argue that Franck’s gatekeepers are two Grundnorms. Kelsen does not
foresee this to happen, but in the sense that either gatekeeper can rebuff a certain
rule, they play the role of the outer limit just like the Grundnorm ultimately is the
limit of Kelsen’s system.
38
These can be defined in terms of loss of image, reputation, economic, confidence or other costs.
These costs are different for each state and subject-matter. Some states may be willing to breach a
rule where it loses part of its good reputation but gains a large economic advantage while other
states would not do this.
39
Tasioulas (2002), p. 995.
5.3 Justice 99
Legitimacy and justice have received their share of criticism. Yet, I believe they
contribute with a new filter on an old issue. Regarding my specific research question
of whether minorities have a right to internal self-determination I think it is quite
fitting to put the question to the test.
5.3 Justice
John Rawls’ theory of justice is a political theory and international lawyers may be
reluctant to accept this approach in their field. Considering the context surrounding
international law, I think one must accept the influence non-legal approaches have
on international law. International law is both made and applied in political context
and I think it only enhances the understanding of international law if we include
non-legal yet related and relevant approaches. Furthermore, international law and
this project in particular meet the limits of international law. Repeatedly, interna-
tional law cannot give satisfactory answers to questions that are important to
international law. The lack of definitions cannot be answered conclusively by
international law. The role and status of non-binding instruments cannot be deter-
mined convincingly by international law alone. We need to look further and one of
the related approaches is Rawls’ theory of justice. Being a political theory, I do not
want to discuss the theory itself and the criticism it has attracted in detail.40 Neither
do I want to apply the whole theory. I pick out two central parts of the theory of
justice: the original position and the idea of the difference principle.
First, a basic observation is made about competing interests. A precondition for
justice to come into play is that there are at least two parties competing for the same
thing or rights as is the case in this project. If there were only one party involved,
this party could do whatever it wished. If there are two or even more parties
involved, their liberties or rights are never unlimited. They are always limited by
the others’ rights. This is clearly the case when it comes to both minorities and self-
determination. Where there is a minority there is, per definition, also a majority.
Minority rights are not always implemented at the price of majority rights. If the
state allows for the establishment of minority schools, this is not necessarily to the
disadvantage of the majority. When the state sponsors the minority schools, the
minority suddenly competes with the majority on the funding. The right to self-
determination also has two parties involved. When one group claims self-
determination, no matter in which form, it is always the self as opposed to another
party that wants to determine its own issues in question. The self and the other
compete for control over a certain field like culture or politics and a territory as in
autonomous arrangements. Justice is then ‘the proper balance between competing
40
For a variety of different critiques see Kukathas and Pettit (1990); especially chs. 5 ‘The
Libertarian Critique’ and 6 ‘The Communitarian Critique’; Tasioulas (2002); Schwarzenbach
(1991); Esheté (1974).
claims.’41 These claims should not be regarded in a zero-sum game. The precon-
dition of two parties is fulfilled in a minority and self-determination setting.
The interesting twist is that the two parties think alike in the original position.
Thus, they do not compete anymore. The original position behind the veil of
ignorance is a purely hypothetical scenario as we never actually are in such a
position. The veil of ignorance hides a lot of information relevant to each party
present: the place in society, social status, natural assets and abilities, intelligence,
strength or even the plan of life or liabilities to optimism or pessimism.42 In short,
everything that could influence a person’s outlook on general issues or could lead to
predisposition, predetermined viewpoints in favour of one approach over the other
is not known. This is not to say that the persons behind the veil of ignorance are
ignorant of everything. There is no limitation to knowledge about politics, human
nature, social organization or the like.43 Only when this knowledge relates partic-
ularly to the persons behind the veil are they are ignorant.
This assures that nobody has more or less knowledge than any other person or
party behind the veil. Rawls presupposes something else about the parties: they are
rational actors. All parties behind the veil of ignorance are equally ignorant and
rational. As a consequence, they are convinced by the same arguments: ‘Therefore,
we can view the agreement in the original position from the standpoint of one
person selected at random.’44 The task at hand now is clear. There are at least two
competing parties: the minority and the majority. An internal right to self-
determination for minorities is just if it were chosen by a member of either group
in the original position.
The task of the parties behind the veil of ignorance is to find principles which
will structure their society; a society they have no knowledge about whatsoever.
Principles are of general nature, universal in application and potentially applicable
to everyone. The basic structures of society are not found through particular
examples but through principles.45
This is one point where I take a flexible approach to Rawls. The true original
position is only the first of four stages.46 In the subsequent stages the veil is
gradually lifted and more knowledge is allowed. When considering the stages,
one needs to be aware that Rawls developed this model for one state. In the first
stage, the basic principles are agreed upon. Secondly, a constitution is chosen. Third
is the legislative stage. Lastly, agreed rules must be applied and followed. This is a
consecutive development of society. Each stage is restricted by the former stage or
stages as they define the framework for subsequent stages. In other words, a piece of
41
Rawls (1999a), p. 9.
42
Rawls (1999a), p. 118.
43
Rawls (1999a), p. 119.
44
Rawls (1999a), p. 120.
45
Rawls introduces conditions for principles: generality, universality, publicity, ordering effect on
conflicts and finality. See Rawls (1999a), pp. 113–118.
46
For a detailed discussion of the four stages see Rawls (1999a), pp. 171–176.
5.3 Justice 101
legislation adopted in stage three cannot be contrary to the constitution or the basic
principles.
When considering the original position, the question must be at what stage we
are. Using Rawls’ stages, we would be in stage three which is the legislative stage.
Basic principles and the constitutions have been agreed upon the two foregoing
stages. This also means that the veil of ignorance is lifted quite far. In my
adaptation, the veil is lifted more restrictively than Rawls proposes. I consider the
non-binding instruments examined closer and the four specific minority rights
chosen to be part of the second stage and with a veil of ignorance that is still firmly
in place. Thus, while applying Rawls’ framework I place my objects of discussion
at different stages than Rawls himself would. Knowledge influences the decisions
to be taken to a high degree and this is precisely what is sought to be avoided.
Therefore, the veil remains in place. At the same time, the rights in question here
have to be put to the test of the more basic principles that have already been
agreed upon.
My analysis rests on several reasoned assumptions. Firstly, I assume that minor-
ity protection contributes to peace and stability. I regard this not as a principle that
is agreed upon in the original position but as part of the general information the
decision-makers already have in the original position. This is in line with Rawls’
initial restriction of his theory to what he calls well-ordered societies.47 Placing the
analysis in a European context has the same effect; only well-ordered or a bit more
restricted liberal states are included.48 Secondly, that self-determination is a pre-
condition for the enjoyment of human rights is a preset assumption based on
statements of the Human Rights Committee and other international bodies. Parties
in my original position know this already.
Limiting the analysis to the European framework effectively jumps over Rawls’
stage two where a constitution is chosen. At this stage, information about society is
known. Rawls lists, among others, knowledge about resources, the level of eco-
nomic advance and political culture.49 I withhold this information from the parties
in the original position because it would be information about themselves and
would influence and bias their viewpoints. Taking Rawls to the international level
a few adjustments are necessary; a second point of departure from Rawls. In the
Law of Peoples, Rawls rejects a global original position.50 In my adaptation of
Rawls, I take a hybrid approach. While I use his idea on an international level and
seek just international principles, these principles must still be applied at the
national level. They are national principles originating from international sources.
In my adaption, the state becomes the actor or the party in the original position. It
is no longer the object of discussion. In Rawls’ theory, more information is
47
Rawls (1999a), pp. 7–9.
48
Rawls uses the term well-ordered societies for liberal peoples and so-called decent non-liberal
peoples. I do not delve into this distinction and keep only to first category.
49
Rawls (1999a), pp. 172–173.
50
Rawls (1999b), pp. 82–83.
gradually given about the object—being the structure of society or the state—in
every stage. Thus, the more specific tasks are done with more knowledge and can be
better adapted to the situation. The parties making these decisions remain ignorant
of their own position in society or the state. For my analysis this means that the state
remains ignorant of its own position in the international society. It does not know
whether it has one or several minorities within its territory or maybe even none;
whether the minorities have kin-states or whether they make up one or perhaps
20 % of the population. What is known, on the other hand, is that the background is
geographically limited to Europe which tells us something of the object: the basic
principles of the European society.
Justice is a lofty term. In order to allow for a meaningful discussion, criteria are
laid down that serve as minimum standards that have to be met in order to speak of a
just instrument or a just right. These criteria are based on Rawls’ theory of justice
but Rawls himself has not set up a catalogue of specific criteria in the way it is done
here. His theory of justice is an inspiration but I do not follow him closely on every
point. Thus, these criteria are termed Rawlsian rather than Rawls’ criteria. Further-
more, the catalogue includes one or possibly two criteria that do not fit Rawls’
framework so it would be wrong to attribute them directly to him.
I have deduced five plus one criteria from Rawls’ framework that I regard as
determinants for whether the non-binding instruments or the rights in question are
eligible for adoption in the original position. The first criterion is introduced under
the headline of pre-set values. They originate from the set-up of a community of
liberal states. The very definition of liberal states includes democracy and the rule
of law.51 The states in Europe are considered to be liberal states.52 They all stress
the importance of human rights. Only instruments and rights that affirm these
values are considered further in the original position.
The second criterion is individual freedom. This is already implied in the context
of liberal states and a liberal approach that places the individual at the centre of
attention. Individual freedom is foremost secured through civil and political
rights—again attributes of a liberal state. One aspect of individual freedom means
freedom from interference by the state. It is also the freedom to behave in certain
ways. Individual freedom is not unlimited. It is restricted by the freedom of other
individuals who enjoy the same rights.
The third Rawlsian criterion speaks of general aims. An instrument or right
should be in accordance with the general aims of laws that aim at ensuring peace,
stability and welfare. These could be regarded as pre-set values, yet they do not
describe what the state is or values as being but they describe what the state wants to
obtain or preserve. If the instruments or specific rights further peace, stability and
welfare, they contribute to the general aims that underlie the principles and rules
51
See Sect. 2.1.
52
5.3 Justice 103
that are agreed upon behind the veil of ignorance. Rawls speaks of satisfied peoples
in liberal states. When satisfied, ‘liberal peoples have nothing to go to war about.’53
They live in a stable society where equality, the rule of law and individual freedom
ensure that this stability is permanent. In other words, instruments and rights that
threaten peace, stability and welfare are contrary to the very aims of a liberal
society and liberal state.
The fourth criterion is that of state considerations. States have interests and these
may or may not coincide with rules of international law. Without being able to
answer whether all states at all times would support the instruments or rights in
question, it is possible to contemplate whether states in general have a positive
attitude. This is done on the background that states are liberal, on their values and
the most important interest of a state: its survival. Thus, issues like sovereignty and
territorial integrity are addressed under this headline. This criterion allows for an
opening towards politics and, so to speak, reality. On one hand it is a concession to
those that regard a justice approach as too hypothetical. On the other hand, I believe
this criterion strengthens the analysis as it is undeniably true that states have their
own interests and that these play a role in international affairs. I therefore see it as
strength that it can be shown that an instrument or a specific right is likely not to be
contrary to state interests.
The fifth Rawlsian criterion and the second that arguably falls outside the
Rawlsian concept is simply called ‘individual best interest.’ It discusses the ques-
tion whether the individual would like this instrument or this right in question to be
adopted. It does not fit Rawls as this question is not asked directly. On the other
hand, Rawls himself says he is concerned with ‘free and rational persons concerned
to further their own interests.’54 The criterion is not among the most important
criteria but it gives us an idea of its practicality. It shows what deliberations could
follow from an instrument or a specific minority right.
These are five criteria leaving the ‘plus one’ to be considered. It is ‘plus one’
because it directly refers to one of the two principles that Rawls propagates are
agreed upon in the original position. It is the difference principle which is of utmost
importance to minorities.55 The difference principle is the last standard to be met. It
is quite thinkable that all other criteria are met; however, if an instrument or right
does not meet the difference principle, it will be rejected in the original position.
The difference principle is the last safeguard before an instrument or right is
allowed into the area of justice. While it is difficult to establish a hierarchy
among the other criteria, the difference principle can trump them.
The actual application of the justice criteria is done consistently; the motivation
varies. The examinations of pre-set values and the difference principle are done in
order to seek confirmation of the values and the difference principle. If the pre-set
values are confirmed we are sure to be dealing with liberal states. It is thus a
53
Rawls (1999b), pp. 46–47.
54
Rawls (1999a), p. 10.
55
See below.
safeguard question. The criteria of individual freedom and general aims must be
supported as well but they allow for stronger or weaker positive answers. The
criteria of state considerations and personal interests are somewhat atypical for a
Rawlsian approach. Nevertheless I find them fitting as considerations that have to
be taken into account when concluding on the justice of a minority right.
Rawls’ original position is used in two ways. In Chap. 10, the original position is
used as a test of justice in relation to four specific rights originating from both
binding and non-binding instruments. This is part of answering the overall question
whether minorities have a right to internal self-determination. Before this, in
Chap. 4, the status of non-binding instruments is tested according to Franck’s
legitimacy and Rawlsian criteria of justice. The specific question at hand is whether
the four core documents would be agreed upon behind the veil of ignorance.
Before looking into this question, however, the difference principle has to be
discussed because it contributes to the relevance of Rawls for this project and the
minority context. Rawls’ first principle guarantees individual liberties which we
might regard as basic human rights such as freedom of speech and of association.56
The second speaks of social and economic inequalities as being arranged to the
benefit of the least advantaged while respecting equality of opportunities.57 This is
called the difference principle.
The importance of the difference principle lies in its capability to explain the
existence of minority rights. In Rawls’ universe, society as a whole does not gain
anything from a certain distribution if the least advantaged group does not also
profit from it. For example if the freedom of association were only valid for
members of the majority and members of minority did not enjoy this right, there
would be no overall gain according to the difference principle.
As per the difference principle, inequality in rights is only acceptable if it is to
the advantage of the least advantaged. Of the two groups considered here—the
majority and the minority—the least advantaged group is the minority. At least this
is the very rationale of minority rights: they lift members of minorities up to the
same level of opportunities as the majority because they as members of a minority
have a disadvantaged starting point. Capotorti’s definition of a minority includes
the aspect of a ‘non-dominant position.’58 Compared to the majority, this puts the
minority at a disadvantage. One could argue, of course, that dividing a society into
two categories only is too crude a division. In reality, a society is composed of many
different groups, be they social, political, sexual, ethnic or of any other character-
istic. These groups easily overlap and an inextricable web of relations between
people is weaved. While it would lead to a more faithful image of society to include
several groups, this would go far beyond the scope of this project on minorities and
56
Rawls (1999a), p. 266; Kukathas and Pettit (1990), p. 36.
57
Initially, Rawls proposes the term ‘everyone’s advantage’ instead of ‘least advantaged’. For
more on his discussion and how he arrives at the term ‘least advantaged’ see Rawls (1999a),
pp. 57–73.
58
For more on the definition of a minority see Chap. 8.
5.4 The Original Position, Minorities and Self-Determination 105
their rights. What could be considered is the case of several minorities living in the
same state. Who is the least advantaged group of those? It is a question that does not
need to be answered in this context. Minority rights are implemented vis-à-vis a
majority society. Minority rights of several minorities in the same state should not
be regarded as a zero-sum-game in which only one minority will benefit from a
certain right. If two minorities were to be guaranteed the right to cross-frontier
contacts, both would benefit from that right. One could nevertheless imagine a
situation where minorities enjoy different degrees of protection because implemen-
tation of the international obligations is referred to regional or local levels. In that
case, one would, indeed, have to discuss who the least advantaged group
is. However, all of these minorities will still be in a disadvantaged position in
comparison with the majority. Thus, a competition of misery is not necessary.
Two applications of the difference principle come up. One use of it shows why
minority rights are needed. Starting from the assumption that minorities are less
advantaged than majorities, it is clear that they do not enjoy equal opportunities. In
order to reach the point of equal opportunities, minorities need support—on a legal
level in the form of minority rights. Once the point of equal opportunities is
reached, special treatment for minorities would discriminate the majority.
Secondly, the difference principles shows minority rights are not only needed
but also allowed. Differential treatment or in this case positive discrimination of
minorities is acceptable under the difference principle. The principle allows for
unequal treatment as long as it is to the advantage of the minority and clearly
minority rights are meant to be to the advantage of minorities.
Rawls theory takes us through the exercise of building a state and society.
Decisions have to be made at various stages about the structure of the state and
society. The original position behind the veil of ignorance ensures a just result.
Because each stage is restricted by its previous stages, there is a coherent develop-
ment of state and society. Thus, even when the veil is lifted and the parties become
less and less ignorant the basic framework will remain just. As minority rights and
especially self-determination are prone to self-interest and political considerations,
the veil of ignorance is a useful tool to exclude these factors from the analysis.
5.4 The Original Position, Minorities

There are a few common perceptions that play a vital role in determining the
original position. For one, the original position is placed in a liberal, European
environment. This means that democracy, respect for the rule of law and respect for
human rights are given values.59 Secondly, there is a belief in non-state actors.
Democracy is about participation and this can take the form of political
59
See for example art. 2 Treaty on European Union, EU Doc. OJ C 83/13.
participation but also of participation in society as a whole. Which role non-state

actors play is not predetermined. Thereby it is not known how much influence they
have on standard setting in the field of minority rights. A predetermined value is
peace, stability and welfare of society and the state. This is something society,
people and the state strive for.
In the original position there are presumptions which Rawls stresses must be
widely accepted.60 This is not necessarily a given when it comes to minority issues
and self-determination; even though I argue that in Europe there is common ground.
A widely accepted assumption is that minorities are enrichments to society. This
assumption stems from several international treaties and documents that, if not all,
at least the majority of European states has agreed to. I therefore assume that this
value exists. Some states avoid minority protection in other ways and at other
stages, but there is a general agreement on the positive approach towards minorities.
In an original position where minority protection is accepted, choices on laws for
protecting minorities will be different from an original position where minorities
are considered a nuisance.
A few other points are important in relation to minorities and the original
position. Fairness is likely to be achieved when taking into account a number of
personal concerns. Everybody wants to survive both physically and mentally.
Everybody wants to live according to one’s own values. One accepts limitations
to one’s own life as it means that others are limited by the same rules.61 Nobody
wants to be oppressed. Nobody wants to be left out; especially when it concerns
issues that one is directly affected by. In continuation of this lie the wishes of
participation and of being heard.
Several principles in relation to a minority-majority society can be deduced from
this. They are highly influenced by the two extremes of having to protect both the
minority and the majority from the dangers the one poses to the other. As to the
physical dimension, both murder and genocide are outlawed. The wish to survive
mentally is translated into the discussion about the right to identity which is
important for groups like minorities and their survival.
No right is ever unlimited; however, the liberal framework of this project makes
sure that individual freedom is high on the agenda. The freedom of choice for the
individual has several consequences. The veil of ignorance obscures the member-
ship of the group; however, it is possible to change groups. Members of minorities
have the possibility not to be treated as members of minorities. In the Danish-
German border region, the minorities focus on the sindelag—the state of the mind.
60
Rawls (1999a), p. 12.
61
Rawls (1999b), p. 29.
It quite simply means that anyone who wants to belong to the minority can belong
to it.62 In other minorities, membership can be tied to ethnicity and even fixed in
passports by the authorities.63
The freedom of choice also applies to the way of living as a group. Behind the
veil of ignorance, freedom of choice means that members of minorities may live
according to their own traditions and values; again limited by the rights of others
outside the group or limited by rights of other individuals within the group.
Freedom of oppression or domination is relevant for minorities. Foreign domi-
nation is the exact thing that decolonization addressed. Today, oppression, foreign
domination and gross human rights violation by ‘the others’ are reason enough for
claiming extreme protection in the form of independence. Whether or not these
atrocities justify a right to secession is a different issue. It is sure, however, that they
give rise to some sort of redress.
Self-determination is a different matter. Here, ambivalent viewpoints can be
seen and it explains the importance of the original position. Cassesse has put it
aptly:
Self-determination is attractive so long as it has not been attained; alternatively, it is
attractive so long as it is applied to others. Once realized, enthusiasm dies fast, since
henceforth, it can only be used to undermine perceived internal and external stability.64
As long as self-determination is left on the abstract and general level, it is easy to

agree with it and to support it. It is in specific cases when a state’s own interests are
concerned that states are more reticent about supporting self-determination. Spain
has not recognized Kosovo even though the Declaration of Independence does not
once refer to self-determination. Achieving independence is a way of exercising
self-determination and Spain can fear for its own stability. Similarly, China’s
reluctance to recognize claims to external self-determination is not surprising
considering that China consists of 56 nations. It is here that the original position
is most valuable as it eradicates national interests. Self-determination can be
defined free from factual constraints.
The concept of self-determination is a value accepted by liberal states and
human beings. The resolve to being able to determine one’s own fate has for
centuries grown in strength in Europe and beyond and has led to changes on the
62
For example the German minority has adopted general principles (Leitbild) that the minority
institutions observe. Only those persons who can identify with the underlying values and the
principles should be associated with the minority. While it is neither possible nor wishful to control
each person, the official institutions of the minority portray a certain approach.
63
Passports in Uzbekistan include the rubric ‘ethnicity’. Soviet passports included the ‘fifth line’;
information on nationality which identified members of minorities. This has been dropped in
Russian passports as the Russian Constitution form 1993 states that everyone has the right to
indicate one’s own nationality but one cannot be forced to indicate it. See art. 26 (1) Constitution
of the Russian Federation (1993) http://www.constitution.ru/en/10003000-01.htm. Accessed
06 May 2014.
64
Cassese (1995), pp. 5–6.
world map and in the forms of government. There is thus assumed to be a positive
attitude towards self-determination.65
Taking self-determination from the personal to the state level, one needs to
differentiate. While self-determination as such remains a positive idea, other
aspects have to be taken into account. The person in the original position will
want to have a right to self-determination for himself. The same person will not
want to live in a society or state that is constantly broken up when a group calls for
independence. Therefore, external self-determination will not be among the prin-
ciples of society.66 As equality among people is one of the main principles, self-
determination is limited by the rights of other people. There is always a balance
between two competing claims. A possible balance can be seen in the Friendly
Relations Declaration. Those seeking external self-determination are limited in
their ambition; however, at the same time, those against whom self-determination
is sought have the obligation of representing the whole people. In other words, this
second group is limited in its treatment of the group seeking self-determination. If it
does not meet a minimum standard, the limitation is gradually given up and external
self-determination might be the result in the end.
Rawls works within the framework that there is a contract between those
governing and those governed. There is a parallel to minorities. They receive rights
and protection in return for their loyalty to and respect of the state they live in. This
idea of a contract between a superior and an inferior party is not new. Neither is it
new to argue that a party is no longer bound by the contract if the other party breaks
it. Stephanus Junius Brutus was one of the first to use this argument. His Vindiciae,
Contra Tyrannos was published during the French wars of religion in the second
half of the sixteenth century and discusses uprisings against legitimate political
powers. The structure of his argument fits the minority situation and can help us
understand self-determination.
Brutus speaks of a twofold covenant. For one, there is a contract between the
king and the people. This corresponds to state authorities and the minority. Sec-
ondly, there is a tripartite covenant between the king, the people and God. The king
is bound by a contract to God who retains the ultimate power and nothing can be
done against God’s will. State authorities today are bound by international obliga-
tions, the state’s constitution or simply their own values, morals and ethics. The
people, being the minority in this case, are subjects of God meaning that minorities
also are subject to international law. Analogously, minorities are not completely
free to do as they please.67 While international law does not equal God, it never-
theless poses limits to minorities and state authorities alike.
65
Margalit and Raz (1990).
66
Note that external self-determination cannot necessarily be seen as being contrary to the
predetermined values of peace and stability. Prolonged conflicts about external self-determination
could be a bigger threat to peace and stability of a state than an act of secession.
67
Brutus (1994), pp. xxv-xxvi. See more details on pp. 18–34 and 129–137.
The analogy with minorities has a flaw. Brutus regards the people being above
the king. This is still in line with modern democracies where the people elect their
government. In Brutus’ argument, the king promises absolutely to obey the higher
laws. The people on the other hand promise only to abide by the contract with the
king on the condition that the king fulfils his obligations. If the king fails on this, the
people are absolved of all obligations they had under the contract.68 Minorities are
part of society and the people; however, they are per definition not in a dominating
position to determine the government.
Regarding self-determination, this tripartite covenant is tested. The exercise of
self-determination is not dependent on the breach of obligations by the state.
Self-determination can be exercised under any circumstance. It is the form self-
determination takes that can be dependent on the state behaviour. Internal
self-determination—in a narrow or a wide understanding—can be (and this
will be agreed upon in the original position) part of the covenant. Internal
self-determination structures society. External self-determination is only a possible
remedy when the covenant is broken by the state.
This is essentially the content of the Friendly Relations Declarations. There is a
covenant between international law as an abstract entity, the state and the people. If
the state breaches the contract with either international law or the people, there is an
opening for the third party—the people—to seek solutions outside of the existing
covenant.
The understanding of internal and external self-determination becomes
extremely important. The term ‘self-determination’ is simply too broad and too
general. While internal self-determination lies within the contract, external self-
determination does not. The contract is negotiated in the original position.
The contract on self-determination is a compromise. While peoples do not seek
external self-determination, the states obligate themselves to treat peoples well.
Internal self-determination does not pose a threat to a liberal state. If there is
agreement on the right to possibility of participation, equality and the right to
existence, then internal self-determination can be used as the term covering all
this.69 Internal self-determination needs then to be defined more closely and the
self-determination of the minority may clash with that of the majority, but in a
liberal state there is an underlying agreement that internal self-determination is
valuable.
For the powerful, it is easy to ignore the weak. However, the weak do not wish to
be ignored. Consequently, the principle of participation is developed in the original
position. It has been argued that the right to be taken seriously is what self-
determination is all about.70 Participation should always be understood as the
possibility to participate. Not every group wishes to participate in any given
process. The important thing is the possibility.
68
Brutus (1994), pp. 130–131.
69
For this argument see Chap. 10.
70
Klabbers (2006).
While the principles introduced so far could be categorized as friendly towards

both minorities and self-determination, there are other considerations that the
majority would like to see assured. One should not forget that the majority also
has rights and sometimes competing rights to minorities. An original position solely
concerned with the least advantaged will lead to utopian results. The majority also
has to be satisfied. The original position lays down fair principles for society as a
whole and not only part of it.
Everyone, minority or majority, will want a peaceful and stable state. While
changes in a state need not always be dangerous and destabilizing, there is a certain
danger to that. These issues need to be taken into consideration in the original
position.
Territorial integrity is always thought of as the opposite pole to self-
determination. The argument that territorial integrity can be curbed by the right
to self-determination is discussed in connection with the Friendly Relations Dec-
laration. The discussion is not finished and states may recognize an external claim
to self-determination in certain cases. When international instruments declare a
right to self-determination while at the same time insisting on territorial integrity,
territorial integrity does not render self-determination obsolete. Territorial integrity
rules out external self-determination; however, there is still the internal dimension.
In a liberal state, in an original position that has agreed on the above discussed
principles, there is no need to view territorial integrity as a necessary
protective tool.
A similar argument can be made for sovereignty. In a liberal and fair society
there is no need for an outside intervention that overrides the sovereignty of the
state. Moreover, sovereignty is a corner stone of the liberal state. It is therefore not
necessary to proclaim sovereignty as a basic principle as it is one of the pre-
conditions that need to be fulfilled for the model of the original position to be
applied. In Franck’s terminology, both territorial integrity and sovereignty are
gatekeepers.
A just society composed of a majority and at least one minority finds its set-up in
accordance with the principles of equality, advantage of the least-advantaged (the
minority), the right to existence both physically and mentally, the right to one’s own
traditions and culture, the right not to be oppressed, and the rights to be heard and to
the possibility to participate. These principles and rights are applicable to all
persons in society, no matter whether they belong to the majority or the minority.
After the veil of ignorance is lifted, these rights and principles are managed
within certain limits. Some of these limits may be sovereignty, territorial integrity
and possibly nationalism. Not every society will consciously face these limits. The
minorities in the Danish-German border region today do not go to these limits. The
Copenhagen-Bonn Declarations make it clear that the sovereignty of each state will
be respected. There were calls for a border revision both after the plebiscite in 1920
and after World War II, but these have quietened down and the occasional call now
is never taken up by enough politicians to constitute a serious issue. Members of the
German minority have faced difficult situations because of belonging to the minor-
ity. Most issues have been resolved in one way or another. Other minorities face
References 111
different situations and there, the limits of sovereignty, territorial integrity and
nationalism may be both visible and tangible.
The original position is a hypothetical exercise of the mind. A just society is
envisaged and principles are agreed upon that lead to a just society. However,
reality rarely mirrors or fulfils our ambitions, goals and ideals. While I argue within
a fair and just framework, the ultimate question of whether minorities have a right
to internal self-determination cannot be answered without taking reality into
account.
Conclusion
Positivism serves as a good starting point as this is well accepted terrain.
However, the question positivism cannot answer is why a just rule can be
refused to be a binding rule. Everyone would objectively agree to a rule, but
once the framework is set, these rules should have no value any longer? This
is untenable in the areas of minority rights and self-determination where there
is a high danger of the strong making the law unilaterally.
In the field of human rights, issues of bindingness remain. Positivism
cannot explain why principles of the CSCE Copenhagen Document are
treated as rules. It is therefore necessary to go further and seek alternative
explanations. The question to be answered is whether minorities have a right
to internal self-determination. The answer is proposed in two steps. First, as
many minority rights and also issues of self-determination appear in so-called
non-binding instruments, it is important to show their relevance. Once this is
done, the second step is taken.
Thomas Franck’s procedural fairness termed legitimacy and aspects of
John Rawls’ distributive justice have been introduced as the tools chosen for
the analysis. As has been shown, the basis of the discussion is contractarian in
the sense that the different actors are related by contracts. Minorities and their
rights are considered with a positive attitude without letting minorities have
unlimited rights. Self-determination needs to be divided into internal and
external self-determination. Internal self-determination is a positive value for
individuals. It is still valuable for the group; however, the group’s needs have
to be balanced with those of the majority. This is the content of the contract:
the restriction to internal self-determination balanced by the well treatment
by the state.
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Chapter 6
Legitimacy and Justice of Non-Binding
Instruments
Legitimacy and Justice allow for a more inclusive view on the international field
compared to legal positivism and the sources doctrine. While the sources doctrine
only lets us see certain aspects of international relations and international law,
legitimacy and justice let us see more. They let us see, if not all, at least more of the
actors and instruments that exist in the field of minority rights and self-
determination. International law treats these two categories of actors and instru-
ments differently. While international law has come to accept that states are not the
only actors in international law, it has much more difficulty accepting classically
non-binding instruments.
As set forth in Chap. 5, I do not believe that only sanctions create obligations
under international law. This chapter takes this thought one step further. If sanctions
are not the only source of obligation then it must be possible to find obligations by
other means. To this end, the approaches of legitimacy and justice are now applied
to non-binding instruments. If classically non-binding instruments create obliga-
tions under international law because they are legitimate and just, then the status of
these instruments must be re-evaluated.
The following argument is confined to non-binding documents on minorities,
their rights and self-determination. While non-binding instruments in this field
generally are thought to be highly relevant, this analysis focuses on a few particular
instruments in order to exemplify the discussion. In the field of minority rights, the
focus will be on the UN Minority Declaration and the CSCE Copenhagen Docu-
ment.1 In the field of self-determination, UN General Assembly Resolution 1541
(XV) and the Friendly Relations Declaration2 have been chosen. According to the
1
In this context, the CSCE (1990) Copenhagen Document http://www.osce.org/odihr/elections/
14304, accessed on 06 May 2014 refers only to part IV on minorities if not otherwise indicated.
2
In this context, the General Assembly (1970) Friendly Relations Declaration UN Doc. A/RES/
2625 (XXV) refers only to the Principle of Equal Rights and Self-Determination of Peoples if not
otherwise indicated.

DOI 10.1007/978-3-319-08876-1_6
116 6 Legitimacy and Justice of Non-Binding Instruments
sources doctrine, these documents are non-binding. Nevertheless, they enjoy wide-
spread support and it is now argued that they do exert a strong compliance pull.
6.1 Summary of the Criteria of Legitimacy and Justice
Legitimacy and justice make up the two dimensions of the analysis in this chapter.
While legitimacy covers the procedural aspect of the documents, criteria of justice
are used to examine the justice of the documents. The stronger the legitimacy and
the justice of a document, the stronger is the compliance pull. A strong compliance
pull means a high chance of being complied with.
Legitimacy is found via four characteristics. Determinacy is concerned with the
clarity of the message of a given text. The easier it is to get to the essential meaning,
the more determinate a text is. Only when it is clear what the obligation or the right
is, is it likely that it will be respected. Even before examining any documents it is
worth noting that both minorities and self-determination have an inherent determi-
nacy problem as there are no legally binding definitions. Having to cope with
indeterminate concepts, determinate rules are all the more important.
Pedigree is about authority. It looks at who had a say in the formation of a
certain document. Most of the non-binding instruments that were introduced in
Chap. 4 have something important in common: they are state-made. Even though
they are only declarations or political agreements they must have the support of the
states adopting them. Adoption procedures vary; sometimes adoption happens by
consensus, with a vote or without a vote. Important is the possibility for the state to
deny support to the document.
Coherence touches on the generality of principles or provisions of the
non-binding instruments and whether they treat like cases alike. If a rule is only
applicable in one single case, the rule lacks coherence. If there are other documents
with the same approach, coherence is found.
Adherence takes a vertical approach and examines whether a provision is backed
up by subsidiary rules. If a non-binding instrument is left hanging in the air without
any form of implementation at the national level, this instrument lacks adherence.
Being connected to other instruments shows that the instrument in question is not
merely an ad hoc rule. Connecting adherence to international treaties has to be done
carefully as it could overstep the line towards coherence. Franck introduces four
criteria that are closely followed. If the criteria are met, they prove the legitimacy of
documents.
Justice has its own set of criteria that has to be met. The criteria are termed
‘Rawlsian criteria’ because while they do fit his framework of analysis, some
criteria expand his framework. The first criterion asks for affirmation of the
pre-set values of democracy, the rule of law and human rights. Secondly, the
instruments may not impede individual freedom. Thirdly, instruments have to
support the underlying general aims of peace, stability and welfare in order to be
considered just. Criteria four and five are those somewhat atypical for an original
6.2 The UN Minority Declaration 117
position behind the veil of ignorance. Number four asks to take state considerations
into account. This sheds light on the overall likelihood of being accepted by states.
The fifth criterion is directed at the individual level: Is the instrument in an
individual’s best interest. The last Rawlsian criterion is the trumping criterion of
the difference principle. Instruments that are not the benefit of the least-advantaged
can under no circumstances be considered just. Instruments that meet these criteria
are considered just. Even though the questions do concern the structure of society in
general, they are specifically directed at a minority context.
To begin with, the two minority instruments are discussed starting with the
global level. In other words, the UN Minority Declaration is examined followed by
the Copenhagen Document. Next, the two instruments on self-determination are
examined regarding their legitimacy and justice. They both originate from the
United Nations and are presented in chronological order beginning with Res.
1541 followed by the examination of the Friendly Relations Declaration.3
6.2 The UN Minority Declaration
6.2.1 Legitimacy of the UN Minority Declaration
Determinacy The UN Minority Declaration shows a determinate and an indeter-

minate part. The rights of members of minorities are clear-cut rights and easy to
understand. The state obligations of articles 4–7 leave a large margin of discretion
to states. While the meaning of the provisions remains clear, the second aspect of
determinacy—the how-easy-is-it-to-avoid-the-provision-test—is not mastered.
Terms such as ‘appropriate measures’, ‘due regard’ and ‘legitimate interests’4 are
used. They are open to discussion and lead to indeterminacy.
Pedigree The Declaration is a UN General Assembly resolution. It was adopted
without a vote. The rules of procedure of the General Assembly do not include the
procedure of adoption without a vote. Yet, this is possible taking a detour. The
President of the General Assembly can propose that a resolution is adopted without
a vote. This proposal is then voted on. He does this when he thinks there is a
consensus on the resolution. A consensus and thus adoption without a vote
strengthens the resolution.5
Coherence The UN Minority Declaration uses treaty language and sets down
certain rights for minorities. It clearly states that ‘persons belonging to national or
ethnic, religious and linguistic minorities have the right’ to language, participation
3
For an introduction to the document see Sect. 4.2.3.
4
Arts. 4 (3), 5 (1), 5 (2) respectively UN Minority Declaration, UN Doc. A/Res/47/135.
5
United Nations (2014) Functions and Powers of the General Assembly. http://www.un.org/ga/
about/background.shtml. Accessed 06 May 2014.
etc. There is no arbitrary restriction limiting the applicability to a geographical area

or the like. All national or ethnic, religious and linguistic minorities are meant to be
included. In other words, the Declaration has general applicability.
The Minority Declaration covers areas that either the Framework Convention or
the Language Charter or both treaties encompass also. There is also an overlap with
the Copenhagen Document. For example, there are the right to effective participa-
tion,6 the right to existence,7 the right to enjoy minority rights individually or in
community with others,8 the right to association and assembly9 and the obligation
of states to cooperate on minority issues.10 The declaration fits nicely into the larger
framework of minority documents that were adopted in the 1990s. It adopts the
general line that is found in these documents so also in this context coherence is
found.
Adherence Just like the Copenhagen Document, the UN Minority Declaration does
not have subsidiary rules that back it up—it cannot have such rules because of its
very nature as a General Assembly resolution. However, there is something similar
to subsidiary rules. The Independent Expert on Minority Issues and the Forum on
Minority Issues both refer to the Declaration in their scope of work.11 There thus are
bodies continuously concerned with the implementation of the Declaration even
though neither is an explicit monitoring body or has judicial power.
6.2.2 Justice of the UN Minority Declaration
Pre-Set Values The rule of law is mentioned as part of the framework within which
the rights for members of minorities contribute to the higher goals of strong
6
Participation can be in public, political, cultural, religious, social or economic affairs. See para.
(35) CSCE (1990) Copenhagen Document http://www.osce.org/odihr/elections/14304, accessed
on 06 May 2014; UN Minority Declaration UN Doc. A/Res/47/135, art. 15 FC. In addition, art.
13 LC in relation to language.
7
Existence covers physical and/or mental existence. See para. (33) CSCE (1990) Copenhagen
Document http://www.osce.org/odihr/elections/14304, accessed on 06 May 2014; art. 1 UN
Minority Declaration, UN Doc. A/Res/47/135, art. 5 (1) FC. In addition, see art. 27 ICCPR
which speaks of the existence of minorities.
8
There is a slight difference in wording regarding ‘in community with others’ or ‘in community
with other members of their group.’ Para. (32.6) CSCE (1990) Copenhagen Document http://www.
osce.org/odihr/elections/14304, accessed on 06 May 2014; art. 3 (1) UN Minority Declaration, UN
Doc. A/Res/47/135, art. 3 (2) FC.
9
Para. (32.6) CSCE (1990) Copenhagen Document http://www.osce.org/odihr/elections/14304,
accessed on 06 May 2014, art. 2 (4) UN Minority Declaration, UN Doc. A/Res/47/135, art. 7 FC.
10
Para. (36) CSCE (1990) Copenhagen Document http://www.osce.org/odihr/elections/14304,
accessed on 06 May 2014, art. 6 UN Minority Declaration, UN Doc. A/Res/47/135, art. 18 FC.
In addition, art. 14 LC.
11
See Sect. 4.1.3.
6.2 The UN Minority Declaration 119
friendship and cooperation among peoples and states.12 The General Assembly
clearly believes it is promoting and encouraging the respect for human rights
through this Declaration thereby supporting pre-set values.13
Individual Freedom In contrast to the Framework Convention,14 the UN Minority
Declaration does not explicitly state that members of minorities have the right to be
treated or not to be treated as members of a minority. However, reading art. 3 (2), it
makes only sense if individual freedom is involved. It states that no disadvantage
may arise from the exercise or non-exercise of the rights of the Declaration.
Apparently, there are two possibilities and neither may lead to a disadvantage.
Who, if not the member itself, determines whether to exercise the rights stipulated
in the Declaration? The other provisions targeted directly at members of minorities
also speak of rights and not obligations. There is no obligation to make use of
minority rights. Individual freedom is assured.15
General Aims The preamble of the Declaration refers to the contribution minority
protection and promotion has on the political and social stability of the states in
which the minorities live. Welfare is targeted indirectly. Art. 4 (5) states that
members of minorities should participate fully in the economic progress and
development. The Declaration, while addressing the issue of minorities, is in line
with higher goals and values.
State Considerations One does not find the strong wording of the Framework
Convention that explicitly states that members of minorities respect national legis-
lation and the rights of others.16 Through art. 8 of the Declaration, though, the
interests of the majority are safeguarded. It limits the minority rights included in the
Declaration and assures the majority that the Declaration cannot serve as a basis for
the threat of peace and stability of the state.
Individual Best Interest The rights layed down in the Declaration seem reasonable.
Compared to other international documents a criticism could be the few substantive
rights. There is a higher number of state obligations than rights for members of
minorities. This may lead to a weaker instrument but does not necessarily mean it is
unjust.
The Difference Principle Art. 8 (1) underlines that states can have other obliga-
tions towards minorities that cannot be ignored. Thus, states cannot use the Decla-
ration to step back on other measures of protection and promotion of minority
12
Preamble UN Minority Declaration, UN Doc. A/Res/47/135.
13
Preamble UN Minority Declaration, UN Doc. A/Res/47/135.
14
Art. 3 (1) Phillips, A (2002): The Framework Convention for the Protection of National
Minorities: A Policy Analysis, Minority Rights Group International, London.
15
The issue of the majority or society imposing membership in a minority is discussed in Sect.
8.1.4.
16
rights. Art. 8 (3) also supports the difference principle when it explicitly states that
measures under the Declaration cannot prima facie be considered contrary to
equality. With this, it is made sure that states can take measures of positive
discrimination that benefit the weaker part of society—the minority.
6.3 The Copenhagen Document
6.3.1 Legitimacy of the Copenhagen Document
Determinacy Similar to the UN Minority Declaration, the Copenhagen Document

is an example of a non-binding instrument that is determinate in one part but
indeterminate in another. Apart from the vagueness surrounding the terms ‘minor-
ity’ and ‘national minority’ which are not clarified further, the Copenhagen Doc-
ument is easy enough to understand and the message is clear. There is, however, a
certain graduation of determinacy. While the rights of members of minorities are
clear, the state obligations are less determinate. This difference was already
observed with the UN Minority Declaration.
The words ‘necessary’, ‘endeavour to ensure’ and ‘effective’17 are terms that can
be interpreted differently and where the parties can have different understandings.
In some instances, as for example ‘necessary measures’ of para. (33), these mea-
sures are further elaborated on. ‘Effective measures’ are taken after ‘due consulta-
tions, including contacts with organizations or associations of such minorities’.
While ‘effective’ remains elusive the rest of the provision points in a specific
direction.
There are other provisions on state obligations that lack determinacy. Paragraph
(40) starts with the term ‘firm intention’. While the words are clear, it is quite easy
to avoid implementation, the other aspect of determinacy. Paragraphs (40.6) and
(40.7) speak of states ‘considering’ different actions. Again, it is easy to avoid
implementation. Considering is not the same as doing, so it is possible to consider
certain action but in the end to decide on a different kind of action.
Pedigree The Copenhagen Document is an agreement adopted by states. Decision
making at the OSCE is always done by consensus which is defined as the absence of
objection.18 States have the possibility to make reservations or interpretative
statements.19 In other words, while the OSCE as a whole remains capable of acting,
17
Paras. (33), (34), (40.3) respectively, CSCE (1990) Copenhagen Document http://www.osce.
org/odihr/elections/14304, accessed on 06 May 2014.
18
Rec. 69, Final Recommendations of the Helsinki Consultations 1973 (1973). http://www.osce.
org/mc/40213. Accessed on 06 May 2014.
19
A definition of ‘reservation’ is found in art. 2 (1) VCLT. I understand interpretative statements
to be similar to declarations that can be made to Council of Europe treaties.
6.3 The Copenhagen Document 121
states can—as in most treaties—restrict the document’s applicability. In this con-

text, one finds references to the consequences that reservations and interpretative
statements have on the binding force of the documents. No further argument is
made here, but one should still notice that OSCE documents do have some sort of
force.20
The Copenhagen Document has only three interpretative statements and no
reservations attached.21 All three statements concern the minority part of the
document and affirm the state’s strong position in relation to minorities. It is
important to note that a state knows that an adopted document, even if it abstains,
will create expectations from it. The only way to soften the expectations is through
interpretative statements or even reservations. As no reservations were filed and
only three interpretative statements were issued, one can assume strong support for
the Copenhagen Document among states.
Coherence The Copenhagen Document uses treaty language. The provisions on
minority rights and state obligations are not directed at one single state or one single
minority. Like cases are treated alike. They are generally applicable to states with
minorities. The four important documents on minority rights—the Framework
Convention, the Language Charter, the UN Minority Declaration and the Copen-
hagen Document—address many of the same issues.22 They use the same or similar
terminology. The Document is one of several documents in a larger context.
Adherence There are no subsidiary rules for the implementation of the Copenha-
gen Document. However, there are cross-references. Similar to the UN Minority
Declaration, the Copenhagen Document covers some of the same rights of the
Framework Convention and the Language Charter. The Framework Convention
explicitly refers to the Copenhagen Document23 which was agreed upon at the
OSCE during the drafting time of the Framework Convention at the Council of
Europe.
The Copenhagen Document also receives adherence from a very different
source. The Copenhagen Document’s provision (32) on the free choice of belong-
ing to a minority is already found in the Copenhagen-Bonn Declarations from 1955,
where the concept of the so-called sindelagsmindretal is established. This means
that everyone who has the mind to be a member of a minority can be so; in other
words, it is a national affiliation minority. The Copenhagen Document speaks about
minority members being able to seek public financial assistance. A sharper form is
20
Bloed (1993), pp. 18–25.
21
CSCE (1990) Copenhagen Document http://www.osce.org/odihr/elections/14304, accessed on
06 May 2014.
22
See above on the coherence of the UN Minority Declaration, UN Doc. A/Res/47/135.
23
Preamble Framework Convention for the Protection of National Minorities (1998) As published
in Framework Convention for the Protection of National Minorities, Collected Texts, 4th ed.,
Council of Europe Publishing, Strasbourg, 2007.
found in the 1955 Copenhagen Declaration, where Point 6 provides for

non-discrimination between financial assistance for members of the majority and
the minority. Political participation is ensured both in the Declaration (Point 4) and
the Document in paragraph (35).
The value of unilateral declarations is discussed above in this chapter. The
Copenhagen-Bonn Declarations have a role to play in the establishment of adher-
ence of the focus documents as they predate a number of rights that resurface in the
documents of the 1990s. Regarding the Framework Convention for example Den-
mark states in its First Monitoring Report that it has not taken any special steps to
implement the Convention as the Copenhagen Declaration from 1955 meets the
requirements for minority protection.24 The Declaration is clearly endowed with
more force than an arbitrary statement would be.
6.3.2 Justice of the Copenhagen Document
Pre-Set Values The section on minority rights starts with para. (30) that serves as a
preamble to the section. All three terms of the pre-set values are included here.
Respect for minority rights is an essential factor for democracy. Questions relating
to minorities can only be resolved in a framework based on the rule of law. Minority
rights are covered by human rights. Human rights are guaranteed in a framework of
the rule of law. All pre-set values are interlinked and support each other.
Individual Freedom Individual freedom is guaranteed by para. (32), which makes
it the choice of the individual to belong to a minority. As the UN Minority
Declaration, the Copenhagen Document provides possibilities. It provides rights
to act in certain ways but one is not obliged to take advantage of the rights. Neither
is there an obligation to accept all rights in case a member of a minority chooses to
take advantage of one specific right. A member of a minority always remains free to
choose.
General Aims Similar to the pre-set values, the general aims of the Copenhagen
Document are mentioned in para. (30). Respect for minority rights contributes to
peace and stability. Thus, the document is understood to aim at obtaining or
preserving peace and stability.
State Considerations State interests are addressed in several places. There are
several restrictions in connection with specific rights. Para. (32.2) refers to national
legislation in connection with financial and other contributions to institutions set up
by minorities. Para. (33) refers to the decision-making procedures of each state.
24
Denmark (1999) Report Submitted by Denmark Pursuant to Article 25, Paragraph 1 of the
Framework Convention on the Protection of National Minorities CoE Doc. ACFC/SR(1999)
009, p. 6.
6.4 Resolution 1541 123
Possibilities for minorities are thus never unlimited but have to observe certain
restrictions. This makes the document more acceptable to states.
Para. (35) continues with more safeguards for states so that it is rather conceiv-
able that minorities would object to the paragraph. Taking into account historical
and territorial circumstances as well as policies of the state concerned potentially
narrows the applicability of the provision. Again, we need to remind ourselves that
we are in the original position and that certain basic principles already are in place.
The ‘policies of the state concerned’ will be open towards minorities as we are
dealing with liberal states that regard minorities as enrichments to society and view
minority protection as furthering peace and stability. States committed to democ-
racy and equality will not be threatened when smaller groups seek influence on
issues that concern them directly.
Overall, the provision is a balance which would seem to be acceptable to all
parties. While states could resist the word autonomous, they are appeased through
the qualifications attached. Minorities could resist the qualifications but are assured
of a positive approach by the state as we are dealing with liberal states.
Apart from these specific restrictions, the common safeguard is found that
nothing in the document can be used contrary to the UN Charter. Fitting for an
OSCE document, the Copenhagen Document also refers to the Final Act and
especially to the provision on territorial integrity.
Individual Best Interest The rights laid down in the Copenhagen Document are
more comprehensive than those of the UN Minority Declaration. They touch on all
relevant aspects starting from identity over participation, cross frontier contacts and
language rights to education, religion and media. These rights are not unlimited but
frequently restricted by national policies or procedures. Here, the state has a margin
of discretion in its approach to minorities. Both members of a minority and the
majority would feel considered from the outset. Implementation then is a different
issue.
The Difference Principle The Copenhagen Document aims at the improvement of
the situation of minorities. Minority protection serves a higher goal of peace,
justice, stability and democracy. Being a tool for other goals does not preclude
the difference principle. The minority rights of the Copenhagen Document are
meant to be for the benefit of the minority. The state obligations strengthen the
rights of the members of minorities.
6.4 Resolution 1541
6.4.1 Legitimacy of Resolution 1541
Determinacy Res. 1541 is determinate to the degree that it can be. In other words,
while Res. 1541 uses some wide terms, it uses them in such a way that the resolution
itself becomes determinate. For example, Principle VI lists the three possibilities to
achieve self-government. Two of them, free association and integration, are wide
terms that can be interpreted and implemented in many ways. These two terms are
defined further and it is explained in what way they can be achieved. They are made
more determinate.
At the same time, the resolution uses cautious words. For example ‘free associ-
ation should be the result.’25 Non-binding instruments need not be so cautious. The
Copenhagen Document shows in parts that treaty language can be used. Here, the
treaty language states that belonging to a national minority is a matter of individual
choice. It does not say should be a matter of choice. Nevertheless, the meaning of
Res. 1541 is easily understood and there is no lack in determinacy.
Pedigree The General Assembly adopted Res. 1541 by a vote of 69 out of 99 states
voting in favour of the resolution, 21 abstentions, two votes of no and seven states
not voting at all.26 It is argued that ‘abstention can be treated, without any injustice,
as an acquiescence in the obligations specified, on that basis that any real objection
could have been expressed by a negative vote, which was equally available to the
abstaining state.’27 According to this line of reasoning the resolutions was viewed
positively by 90 states. This is a strong pedigree.
Coherence Res. 1541 establishes the salt water rule; only territories geographically
separate from the colonizing state could claim self-determination. The door was
thus opened for differential treatment in essentially the same situations. Decoloni-
zation happened for several reasons, but one of them is stated in Res. 1514 as being
‘convinced that all peoples have an inalienable right to complete freedom, the
exercise of their sovereignty and the integrity of their national territory.’28 It
appears now that some peoples have an even more inalienable right than others to
complete freedom; meaning those that fall under the salt water rule.
Decolonization did not have the aim to protect colonizing states. Its goal was
freedom and self-determination. The salt water rule thus makes Res. 1541 incoher-
ent with other rules that speak of self-determination for all peoples. This incoher-
ence can however be explained. The salt water rule reassured colonizing states that
their territorial integrity would not be threatened as self-determination could not be
applied to their core territory. The colonizing state as such was not broken up. It lost
25
My italics; Principle General Assembly (1960) Principles Which Should Guide Members in
Determining Whether or not an Obligation Exists to Transmit Information Called for under Article
73 e of the Charter UN Doc. A/RES/1541 (XV).
26
See United Nations (2014) UN Voting Record Res. 1541 (XV). http://unbisnet.un.org:8080/
ipac20/ipac.jsp?profile¼voting&index¼.VM&term¼ares1541. Accessed 06 May 2014.
27
See Bleicher (1969), p. 449. For the same view see Harris (1998), p. 59. Several colonial powers
did not vote in favour of the resolution.
28
not an Obligation Exists to Transmit Information Called for under Article 73 e of the Charter UN
Doc. A/RES/1541 (XV).
6.4 Resolution 1541 125
part of its territory but that was the colonies. Self-determination during decoloni-
zation did not break up the colonizing state.
Res. 1541 receives part of its ‘context-coherence’ only in hindsight as it was one
of the first documents to take up the issue of self-determination. Since its adoption,
numerous instruments including self-determination or the more specific content of
self-determination have been adopted. The important part of Res. 1541 is the
definitions of self-determination it includes. It lists three possibilities of reaching
self-determination which are independence, association or integration with another
state. In the subsequent principles VII–IX, association and integration are further
explained and defined. In both alternatives it is underlined that the decision making
process has to be free and democratic. The past decades have granted coherence to
this as democracy has become ever more important and undemocratic processes are
not only condemned on paper anymore.
Adherence The two resolutions containing self-determination face a similar situ-
ation. Being UN General Assembly declarations, there are no subsidiary rules that
could establish a system of adherence. The relationship between Res. 1541 and the
FRD is unclear in the context of adherence. While the Friendly Relations Declara-
tion could be regarded as an instrument backing up and clarifying some issues in
relation to self-determination, the FRD is on the same level as Res. 1541. They are
both General Assembly resolutions. The FRD is thus not a subsidiary rule.
There are references to self-determination in other international and national
instruments. Resolutions 1514 and 1541 are closely connected. An indirect link
using this close connection can be established enhancing adherence of Res. 1541.
General Assembly Resolution 1654 was adopted in 1961 and focuses on the
implementation of the Declaration on the Granting of Independence to Colonial
Countries and Peoples which is Res. 1514. A committee was established whose
purpose it was to implement the objectives and principles of Res. 1514. Again this
can be seen as an instrument backing up the original resolution that is not a
subsidiary rule but is on the same level as the original resolution. The link between
the resolutions 1654 and 1541 is only indirect but it would not make much sense for
the supervising committee to ignore Res. 1541.
The Human Rights Committee has adopted a General Comment on art. 1 ICCPR
on self-determination. The Comment is not a secondary rule as Franck propagates;
however, I believe it serves the same purpose.29 Several states refer to self-
determination in their constitutions. The Preamble of the German Constitutions
uses the words of ‘free self-determination’ as having led to the unification and
freedom of Germany. The French Constitution refers to self-determination in
relation to overseas territories in its Preamble. While the provisions do not
enlighten much on the content, they are rules that back up Res. 1541.
29
For more on Human Rights Committee (1984) General Comment No. 12: The Right to Self-
Determination (Art. 1) UN Doc. CCPR General Comment No. 12 on self-determination and the
continuous application of self-determination see Sect. 3.2.3.
6.4.2 Justice of Resolution 1541
Pre-Set Values The very purpose of the minority documents examined so far is the
declaration of minority rights and state obligations regarding minorities. Res. 1541
is of different character. It is not a document whose purpose is the declaration of the
principle of self-determination to the world. It is a tool clarifying measures to be
taken under art. 73 (e) UNC. Res. 1541 clarifies the principles that should be taken
into consideration when reflecting on the status of non-self governing territories.
Res. 1541 thus lacks a pompous preamble outlining the overall aims and outlining
the framework for the declaration.
It is in the principles that the pre-set values are supported. Principles VII–IX
stress free will, responsible choice and democratic processes. The UN is willing to
supervise processes of self-determination. In case of integration, the peoples should
have equal status and equal guarantees of fundamental rights and freedoms.
Non-discrimination is a basic principle. Due constitutional processes and the
presupposition of separation of powers also support the pre-set values.
Individual Freedom Res. 1541 is about freedom of choice of the collective.
Democratic processes and universal adult suffrage stress the role of the individual.
Determining a political status of a territory, though, is by its very nature something
that is valid for the whole population and not only for those being in favour of the
outcome. This is the reason why democratic processes are stressed. They offer
individuals the possibilities to become engaged and make choices. It is the freedom
of all individuals to make their own choices. The choice of the majority, though,
will in the end override any divergent choices of a numerical minority.
General Aims The Resolution does not refer explicitly to the furthering of peace,
stability and welfare. One might even ask if the very idea of granting independence,
integration or association to territories furthers instability and threatens the peace in
a region. In the 1960s, this concern was addressed by the principle of uti possidetis.
The boundaries of colonial entities could not be changed by claiming self-
determination. In the original position, Res. 1541 is judged critically. The principle
on free association includes the possibility to modify the status of territory by
democratic means and constitutional processes. At first reading, this leaves much to
be desired in terms of stability. Modifying the status need not be full integration but
can also mean independence. This would be contrary to state stability. There is a
restriction, though. ‘Constitutional processes’ is an indeterminate term, but it
conveys the view that the new political status cannot be simply declared by a
group. The constitution plays a role and a democratic process has to have taken
place. In case of integration, equal access to all levels of government is called for.
This should ensure internal peace and stability. Considering the purpose of the
Resolution, laying down guidelines for the transmission of information, the Reso-
lution is not contrary to the general aims; it is indifferent. The content of the
principles makes it questionable to the original position.
6.5 The Friendly Relations Declaration 127
State Considerations State considerations are addressed within Res. 1541. The
resolution is on the transmission of information on non-self-governing territories.
The information transmitted can be limited by security and constitutional consid-
erations.30 Arbitrary and ad hoc actions are prevented by stressing the democratic
processes that have to give the peoples the possibility to make a responsible choice.
The peoples must be informed and they must have full knowledge of the conse-
quences of their choice. Even though the state runs the risk of being split up,
associated or integrated with another state, this will be a choice of the majority of
the population.
Individual Best Interest Having the possibility to participate is in the interests of
individuals. It is a different matter whether they take advantage of this possibility.
The question whether individuals would be interested in having three different
choices regarding self-determination is not posed in the original position. In this
position, the general principles of society are agreed upon. There is no knowledge
about other states. There are no external considerations. In the original position,
internal questions are discussed. Transmission of information only indirectly con-
cerns personal interests.
The Difference Principle The Resolution supports the difference principle through
the reference to art. 73 (e) UNC. The transmission of information about non-self-
governing territories makes sure that there is an international awareness of the
situation in these territories. They are not placed at the mercy of the colonizing
state. The other paragraphs in art. 73 UNC place obligations on the colonizing state
to further the political, economic, social and educational advancement of the
population in non-self-governing territories. Even though the information transmit-
ted to the Secretary General is for information purposes only, it puts some sort of
pressure on the colonizing state to fulfil its obligations under art. 73 and enhance the
standards for the population in non-self-governing territories.
6.5 The Friendly Relations Declaration
6.5.1 Legitimacy of the Friendly Relations Declaration
Determinacy The Friendly Relations Declaration’s principle on self-determination

lacks determinacy. There must literally be tons of material on the meaning and the
content of the right to self-determination as proposed by the Friendly Relations
Declaration. The principle can be and has been interpreted in many different ways
and there is no final conclusion on the content. The main reason for the provision’s
30
indeterminacy is found in the ‘tortured phraseology.’31 The prime example of this is

the statement about those states not conducting themselves in compliance with the
principle of equal rights and self-determination. It has simply not been finally
determined whether this leads to a conditional right of self-determination or not.
Pedigree The Friendly Relations Declaration is a General Assembly resolution. It
was adopted without a vote. This strengthens the pedigree. The process started in
the General Assembly that decided to establish a Special Committee on Principles
of International Law Concerning Friendly Relations and Cooperation Among
States.32 The Special Committee worked for several years. The General Assembly’s
Sixth Committee—the Legal Committee—also provided input. Every member state
of the United Nations is entitled to sit on the Sixth Committee33 and could thus
influence the process.
Coherence The Friendly Relations Declaration differs from Res. 1541 in a very
important point. It does not take up the salt water rule. It is of general applicability.
If there is a right to an external solution in case of equal rights and the right to self-
determination being breached it is applicable to all states. The Declaration has the
claim to be universally applicable as it states existing international law. The
Declaration fits into the larger context of international instruments on the issue.
For one, self-determination is one of the basic principles of the United Nations. For
another, it is the first common article of the Covenants. Third, decolonization was
achieved through the concept of self-determination. Despite its many ambiguities,
self-determination is an ever present and repeated concept.
Adherence There are no subsidiary rules forcing states to implement the Friendly
Relations Declaration. Equally, there is no monitoring body. Despite this lack, the
document is regarded as binding.34 It has a special status among the General
Assembly resolutions.
Several UN documents refer to the Friendly Relations Declaration and thus
strengthen its status. The Human Rights Committee’s General Comment on Self-
Determination explicitly refers to the Declaration. The Comment is only of
supporting character and has no judicial value. The Vienna Declaration and
Programme of Action uses the exact same words regarding territorial integrity
and the representation of the whole people as the Friendly Relations Declaration.35
31
Rosenstock (1971), p. 733.
32
General Assembly (1963) Considerations of Principles of International Law Concerning the
Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United
Nations UN Doc. A/RES/1966 (XVIII).
33
United Nations (2007) Rules of Procedure of the General Assembly UN Doc. A/520/Rev.17.
34
See Sect. 4.2.3.
35
Para. 2 (3) Part I World Conference on Human Rights (1993) Vienna Declaration and
Formally, the VDPA and the Friendly Relations Declaration are on the same level,
both being adopted by the General Assembly; yet, they reinforce each other.
6.5.2 Justice of the Friendly Relations Declaration
Pre-Set Values In the principle on self-determination of peoples, self-

determination is linked to human rights. Other pre-set values are supported in the
preamble of the Declaration. The Declaration is a restatement and explanation of
fundamental principles of the UN Charter. If the Charter is then paramount to the
rule of law among nations, as is stated in the preamble, self-determination contrib-
utes to this.
Individual Freedom As with Res. 1541, self-determination in the Friendly Rela-
tions Declaration is a collective right. The Declaration is far less detailed than Res.
1541. Only once the principle refers to the freely expressed will of the peoples
concerned. Individuals are not addressed. In analogy to Res. 1541, it is again a
matter of making decisions for the whole of society. Thus, an individual opinion
can be overridden. At the same time, freedom is stressed.
General Aims As the title indicates, the Friendly Relations Declaration is a tool for
establishing and maintaining peace, security and stability. The realization of the
principle on equal rights and self-determination of peoples in accordance with the
UN Charter is a way of furthering friendly relations.
State Considerations State sovereignty is a key concept in the Friendly Relations
Declaration. It is stressed in the preamble. Furthermore, principles three and six on
non-intervention and the sovereign equality of states emphasize the importance of
sovereignty. In the principle on self-determination special safeguards for states are
included. For example, the territorial integrity is protected. The protection is
qualified, yet keeping in mind that common art. 1 ICCPR/ICESCR does not include
provisions on territorial integrity at all this is an advancement for states. A further
safeguard for state interests is found in the last paragraph of the principle which
prohibits supporting the disruption of another state.
Individual Best Interest The principle on self-determination takes a balanced
approach. Everyone being dominated, exploited or facing alien subjugation would
agree to these principles. Of course, in the original position, since we are dealing
with liberal states, this would not happen. A society where this happens is not just.
Yet, staying within the principle on self-determination, the fact that territorial
integrity is conditional on a government representing the whole people leaves an
opening for those seeking an external solution. Those in power may not be
interested in a right to external self-determination but external solutions are not
an automatic result.36
36
See Sect. 4.2.3.
The Difference Principle The Friendly Relations Declaration states that self-
determination is a way of bringing a speedy end to colonialism. This is clearly in
favour of the peoples of the colonial entity that receives a free choice regarding its
political status and its economic, social and cultural development. It is also explic-
itly stated in the preamble and the principle on self-determination that alien
subjugation, domination and exploitation are violations of self-determination, fun-
damental human rights and contrary to the UN Charter. Without offering uncondi-
tional unlimited rights, the Friendly Relations Declaration is concerned with the
benefit of the least advantaged.
Conclusion
Four documents have been examined according to ten criteria. It is now the
place to summarize the results and comment on them. The documents show
different results for different criteria. They do not all exert the same compli-
ance pull. It is therefore necessary to compare their results.
Before doing this it is necessary to recall that self-determination and
minorities are not conclusively defined. As a consequence, the documents
are not always clear in their statements or context. One could argue that the
documents should then define the concepts in order to pass Franck’s test;
however, regarding definitions as essential renders the analysis superfluous.
Both concepts have been discussed for decades and there have been numerous
unsuccessful attempts to be more concrete.
Looking specifically at the four documents starting with the UN Minority
Declaration, we see that it is only indeterminate on state obligations and it has
a good pedigree. Considering coherence and adherence, it is necessary to take
a look at both the European and the global level. On the European level, the
Minority Declaration is coherent with European treaties. The treaties also
support the adherence of the Declaration. Looking at the global level, binding
provisions on minority rights are extremely limited and thus it is more
difficult to find coherence and adherence. As this project is concerned with
the relevance of the UN Minority Declaration in a European context, the
global context of coherence and adherence is left aside.
Because the UN Minority Declaration is a global document it is thus not
surprising that it is not as specific as a regional instrument could be. The UN
Minority Declaration suffers from omissions. Issues like democracy and
peace are insufficiently addressed; however, other factors describing the
Rawlsian criteria, such as the rule of law, stability and welfare, are men-
tioned. Individual freedom is present throughout the document but not
explicitly stated. State considerations are taken into account equally, though
in less words than can be found in other documents. The difference principle
is supported. Overall, it is a balanced document. The minority rights are not as
(continued)
strong as in other documents but neither are the restrictions as strong as

known from other documents.
Turning to the Copenhagen Document, we see that it uses legal language.
In this language lie certain expectations of behaviour of states. The language
endows the Document with what could be described as a legal aura. Owing to
the language used in the document and the political expectation to comply
with the document, it is not difficult to see a compliance pull of statements
that do not reflect existing law. The continuous references to it strengthen its
position. It is only partly indeterminate, the pedigree is good, it is coherent
and adherence is found via treaties.
Compared to the UN Minority Declaration, the Copenhagen Document
has more substance and has thus stronger impact. The pre-set values as well
as the general aims are addressed in the very beginning of the section on
minority rights. Individual freedom is explicitly affirmed. State consider-
ations are addressed. Here, it is important to remind ourselves that we are
in a liberal state in the original position. The state considerations will not lead
to minority oppression. Overall, there is a balance between minority and
majority interests. The difference principle is affirmed.
The documents on self-determination also meet most of Franck’s criteria
but show weaknesses on others. Res. 1541 is strong on determinacy and
pedigree. The so-called salt-water rule would not be approved of in the
original position and it lacks in coherence with other documents on self-
determination. According to the principle of equality, self-determination is
applicable to everyone and not limited by non-substantive criteria such as
geographical separateness. It lacks coherence on the salt-water rule and even
though adherence can be found, the supporting rules are often indeterminate.
Res. 1541 speaks of external self-determination37 which is not endorsed in
the original position. It does not balance the different interests of segments of
society. Neither does it meet all of the other Rawlsian criteria. The underlying
principles of self-determination such as free and voluntary choice, informed
and democratic processes and equality and fundamental rights and freedoms
are in accordance with the principles of the original position. Overall, though,
the content of the declaration would not be agreed upon in the original
position.
The Friendly Relations Declaration faces the same dilemma in relation to
adherence as Res. 1541. Supporting provisions are often at the same level and
indeterminate. The Declaration is coherent and has a good pedigree. It lacks
in determinacy.
(continued)
37
The Friendly Relations Declaration speaks of equal rights, freely expressed

will, determination without external interference, universal respect for human
rights and other liberal principles. The FRD repeats the forms of external self-
determination that are mentioned in Res. 1541 and that would not be agreed
upon in the original position. The different context of the FRD leads to a
different understanding which is acceptable in the original position. The
limitation of self-determination in the forms of territorial integrity and polit-
ical unity makes self-determination acceptable in the original position. The
fact that a group is not completely at the mercy of the state can be agreed upon
in the original position. The state has to conduct itself with the principles of
equal rights and self-determination of peoples, otherwise self-determination
could possibly be extended to cover the external dimension as well. Without
any knowledge of the position in society and the international community, this
qualified limitation will be supported in the original position.
In comparison of the documents, the Copenhagen Document exerts the
strongest compliance pull of the four documents. It is strong both on legiti-
macy and justice. The Friendly Relations Declarations is equally just and has
a good pedigree. Overall, a compliance pull is justified, yet the general belief
that the Friendly Relations Declaration is customary international law or even
ius cogens seems to go too far according to this test. There must be other
factors not discussed here that allow for such a conclusion. This does not
diminish the importance of the Friendly Relations Declaration under the
legitimacy and fairness criteria. The Declaration exerts a strong compliance
pull but it is not elevated to higher law.
The UN Minority Declaration scores well on Franck’s criteria. It is a just
document even though one could have wished for an approach that covers
more areas important to minorities. Its compliance pull exists, though the
documents weaknesses in several fields make the compliance pull rather
weak compared to the Copenhagen Document and the Friendly Relations
Declaration.
Res. 1541 had an impact in the context of decolonization. Today, it is not
applicable anymore. It would not be agreed upon in the original position as it
addresses the issue of decolonization that is not an issue in the original
position. Of the four documents, only Res. 1541 would not be among those
agreed upon in the original position. The other three documents show a
balance between the minority and the majority or the state.
This chapter argues for the relevance of non-binding instruments in inter-
national law in the fields of minority rights and self-determination. The focus
is on four instruments that are important in the further analysis. The chapter
reveals the strengths and weaknesses of the documents according to the
criteria of legitimacy and justice. The non-binding instruments examined
have asserted or still assert a compliance pull. Even though the compliance
pull may vary between the documents, they are all documents that are
(continued)
References 133
constantly referred to. They are clearly well established and respected and
they are relevant to the international community. This conclusion supports
the key position that these documents are endowed with in the analysis of
Chap. 10.
References
Books and Articles
Bleicher S (1969) The legal significance of re-citation of general assembly resolutions. Am J Int
Law 63:444–478
Bloed A (1993) The CSCE process: it’s origin, development and basic features. In: Bloed A
Harris DJ (1998) Cases and materials on international law, 5th edn. Sweet & Maxwell, London
Rosenstock R (1971) The declaration of principles of international law concerning friendly
relations: a survey. Am J Int Law 65:713–735
Online Sources
United Nations (2010) Functions and Powers of the General Assembly. http://www.un.org/ga/
about/background.shtml. Accessed 06 May 2014
United Nations (2010) UN Voting Record Res. 1541 (XV). http://unbisnet.un.org:8080/ipac20/
ipac.jsp?profile¼voting&index¼.VM&term¼ares1541 Accessed 06 May 2014
Official Materials
World Conference on Human Rights (1993) Vienna Declaration and Programme of Action UN
Doc. A/CONF.157/23
Primary Sources
CSCE (1990) Copenhagen Document http://www.osce.org/odihr/elections/14304 accessed on

06 May 2014
Framework Convention on the Protection of National Minorities CoE Doc. ACFCNM/SR
(1999)009
Final Act of Helsinki (1975) http://www.osce.org/mc/39501?download¼true. Accessed 06 May

2014
Final Recommendations of the Helsinki Consultations 1973 (1973). http://www.osce.org/mc/
40213. Accessed 06 May 2014
Framework Convention for the Protection of National Minorities (1998) As published in Frame-
work Convention for the Protection of National Minorities, Collected Texts, 4th ed., Council of
Europe Publishing, Strasbourg, 2007
General Assembly (1970) Friendly Relations Declaration UN Doc. A/RES/2625 (XXV)
General Assembly (1963) Considerations of Principles of International Law Concerning the
Friendly Relations and Co-Operation Among States in Accordance with the Charter of the
United Nations UN Doc. A/RES/1966 (XVIII)
General Assembly, UN Minority Declaration, UN Doc. A/Res/47/135
Hersch Lauterpacht (1955) South-West Africa – Voting Procedure – Separate Opinion Advisory
Opinion of 07-06-1955: I.C.J. Reports 1955, pp. 90.
International Court of Justice (1974) Nuclear Tests Case Judgment Nuclear Tests Case (Australia
v. France), 20 December 1974: I.C.J. Reports 1974, pp. 253
International Law Commission (2006) Guiding Principles Applicable to Unilateral Declarations of
States Capable of Creating Legal Obligations, With Commentaries Thereto UN Doc. A/61/10
Legal Status of Eastern Greenland of 05-04-1933
United Nations (2007) Rules of Procedure of the General Assembly UN Doc. A/520/Rev.17
Part II
Key Concepts
Chapter 7
Minority Rights
Minority rights are usually spoken of as human rights.1 The aim of both human
rights and minority rights is protection of people. Once, they were seen as alterna-
tives to each other and the group aspect of minorities clashed with the idea of
individual human rights. Does it, then, make sense to place minorities in a human
rights context? Yes, it does; the argument follows below.
It is difficult to pinpoint an exact date when human rights came into existence.
The situation is similar for minority rights. We can point to a specific point in time,
when a treaty laid down a specific right. We can also assume that it was not a
completely new invention for the treaty, but that there had been a wish for this right,
protection or treatment before. Alternatively, there may have existed a custom that
was then codified in a treaty. For example, many peoples had customs about the
treatment of foreigners. This is not the type of minority this project is concerned
with, but the idea of treating a group differently because of gender, origin or other
characteristics is not something that only came up in modern times.
This chapter is divided into two parts; one is about the history of minority rights
while the second part is concerned with conceptual issues of minority rights. First,
the development of minority rights using landmarks is traced. The common account
of minority rights starts with the treaties after World War I and the League of
Nations. I would like to start earlier: for legal purposes, the Religious Peace of
Augsburg of 1555 serves as a good starting point. The second part of the chapter is
analytical. It looks at the similarities and differences of minority rights and human
rights. This includes a short argument on the necessity of minority rights.
1
At the United Nations, all minority bodies and positions are structurally placed under the Human
Rights Council. Art. 27 ICCPR on minority rights is included in a human rights treaty. The
Framework Convention’s art. 1 explicitly states that the protection of the minorities and their
members covered by the Convention form an integral part of human rights protection. The
Language Charter accepts in art. 4 (1) the superiority of the European Convention on Human
Rights.

DOI 10.1007/978-3-319-08876-1_7
138 7 Minority Rights
7.1 A History of Minority Rights
Minority protection and minority rights have a long tradition. It is important to

understand it and see that the minority protection of the last 20 years continues a
long tradition and does not introduce completely new ideas.
7.1.1 The Beginnings of Minority Protection in Europe
Protection of groups different than the majority of a population has a long story.
Already in the sixteenth century, the Ottoman Empire gave religious minorities
special rights. In treaties with European states, also foreigners received special
rights differing from the general rights of the population.2 What the Ottoman
Empire had recognized, Medieval Europe had to recognize in 1555: the existence
of different religious groups that needed to be protected. Europe had to bid farewell
to the idea of a unified Christendom and thus broke with an accepted fundamental
idea of Europe.
The 1555 Religious Peace of Augsburg guaranteed in clauses 15 and 16 that the
rulers of each state within the Holy Roman Empire had the sovereignty to decree
the religion within his realm. Later, this principle was coined as Cuius regio, eius
religio, meaning that he who rules, determines the religion. This did not mean that
the individual could choose his own religion, but that the princes in the Empire
could choose a religion for their people. At the same time, clause 24 of the Peace of
Augsburg guaranteed even the lowest peasant the right to move to a different realm
where his religion was the official religion and where he thus could freely practice
his religion. This meant that different versions of Christendom were recognized and
accepted.
The Religious Peace of Augsburg was the result of conflicts of the previous
decades that had been further inflamed by Martin Luther’s theses which resulted in
the splitting of the Catholic Church. New religious groups had formed across
Europe and conflicts with the ruler of the territory were not uncommon. In 1555,
the Holy Roman Emperor had to recognize the existence of two different religions
within his empire: Catholicism and Protestantism.3
The mistreatment of other religious groups eventually contributed to the reli-
gious reasons for the outbreak of the Thirty Years War.4 The 1648 Peace of
Westphalia was composed of two treaties: the Treaty of Münster and the Treaty
2
Krasner (1999), pp. 76–77.
3
Other religions such as Calvinists, Anabaptist or other reformists groups were not protected under
the Peace of Augsburg. See § 17, Peace of Augsburg (1555) http://www.lwl.org/westfaelische-
geschichte/portal/Internet/ku.php?tab¼que&ID¼739. Accessed 29 May 2010.
4
For a more detailed account of the reasons for the outbreak of the Thirty Years War, see: Asch
(1997), ch. 1.
7.1 A History of Minority Rights 139
of Osnabrück.5 The Peace of Westphalia confirmed the principle of cuius regio,

eius religio. In contrast to Augsburg, people now in addition enjoyed the right to
freedom of religion as individuals. There was also a prohibition against discrimi-
nation for religious reasons.6 While expanding protection to the reformed such as
Calvinists and regulating the status of the Protestant religion in the Holy Roman
Empire other groups were again excluded from protection.7
The idea of minority protection continued to come up time and again,8 especially
after the Napoleonic Wars. Throughout the nineteenth century, several treaties
included provisions on minorities.9 The treaties did not include any provisions on
how to enforce the new rules. The minorities in question remained dependent on the
good will of their sovereigns.10 The big powers in Europe were not going to
interfere with each others’ affairs—be it in the states themselves or their spheres
of influences.
Minority protection at that time was largely meant for the Jews and later
Muslims in Christian dominated states in the Balkans. It was during the 30 years
preceding World War I that minority protection not only for religious but also for
other types of minorities slowly gained momentum.
5
The Protestant and Catholic sides refused to meet, so the Holy Roman Emperor met with France
and its Catholic allies in Münster and for negotiations with Sweden and its Protestant allies in
Osnabrück.
6
Art. VII (34) Peace of Westphalia – Osnabrück (1648) http://www.pax-westphalica.de/ipmipo/
pdf/o_1732en-treatys.pdf. Accessed 29 May 2010; Art VII (35) Peace of Westphalia – Osnabrück
(1648) http://www.pax-westphalica.de/ipmipo/pdf/o_1732en-treatys.pdf. Accessed 29 May 2010.
7
See articles V with 58 sub-clauses and VII of the Peace of Westphalia – Osnabrück (1648) http://
www.pax-westphalica.de/ipmipo/pdf/o_1732en-treatys.pdf. Accessed 06 May 2014, art. VII
(1) Peace of Westphalia – Osnabrück (1648) http://www.pax-westphalica.de/ipmipo/pdf/o_
1732en-treatys.pdf. Accessed 29 May 2010 and art. VII (2) Peace of Westphalia – Osnabrück
(1648) http://www.pax-westphalica.de/ipmipo/pdf/o_1732en-treatys.pdf. Accessed 06 May 2014.
8
For a list of treaties see Krasner (1999), p. 81.
9
See art. II, Dutch Treaty at Vienna (1815) As published in British and Foreign State Papers 1814–
1815, Vol. II, James Ridgway, London, 1839, pp. 136–142; art. 1 Final Act of Vienna (1815) As
published in British and Foreign State Papers 1814–1815, Vol. II, James Ridgway, London, 1839,
pp. 7–56.; art. IX Treaty of Paris (1856) As published in Hurst, Michael (Ed.), Key Treaties for the
Great Powers 1814–1914, Vol. I 1814–1870, David & Charles, Newton Abbot, 1972, 317–328; art.
IV of the Treaty on Ionian Islands (1815) As published in 12 (1918) American Journal of
International Law, Official Documents, Supplement, pp. 79–85; art. 4 Berlin Treaty (1878) As
published in Hurst, Michael (Ed.), Key Treaties for the Great Powers 1814–1914, Vol. II, David &
Charles, Newton Abbot, 1972, pp. 551–577. See also Hudson (1976), pp. 220–221; Fink
(1996), p. 274.
10
For a detailed account on a never realized joint protest of the Great Powers against the treatment
of the Jews in Romania that breached the Treaty of Berlin from 1878 see Hudson (1976), pp. 220–
221.
7.1.2 Post World War I: The Minority Treaties
World War I changed the situation for minorities because of self-determination of

other groups or entities. It is also important to note that the type of minority
changed. While there by now was a tradition to protect religious minorities, the
focus now changed to include national and ethnic minorities. The principle of self-
determination showed itself to be a delicate principle and it was incoherently
applied after World War I. The self-determination of the new Eastern European
states meant that ‘considerable numbers of minorities [. . .] would, paradoxically, be
victims of the “self-determination” of their new masters.’11
The aftermath of the war showed that self-determined peoples did not automat-
ically grant justice to its ethnic and religious minorities.12 Eventually, this led to the
Minority Treaties that most new states in Central and Eastern Europe had to sign.13
The first one drafted was the Polish Minority Treaty which was by many outsiders
considered to be the dawn of a better era for minorities.14 All minority treaties and
declarations had the guarantee clause in common saying that the obligations
towards minorities were ‘of international concern and shall be placed under the
guarantee of the League of Nations.’15
The Polish Minority Treaty16—which is in fact the first 12 provisions of a larger
treaty—was drafted relatively quickly in the spring of 1919. It is heralded as having
‘revolutionized the history of minority rights.’17 The treaty introduces two types of
rights. One type calls on the state to promote rights while the other focuses on rights
to a certain treatment (e.g. non-discrimination, fair trial). The first article elevates
articles 2–8 to an almost constitutional level. Among these fundamental laws are
the principles of non-discrimination, freedom of religion, equality before the law,
several provisions on nationality and language rights in the context of education.
The language provisions which continue in the later articles are extensive and only
reappear several decades later as rights on the international scene in the Interna-
tional Covenant on Civil and Political Rights.
11
Hudson (1976), pp. 204–230.
12
Fink (1996), p. 279; see also Fink (1995), p. 199.
13
In total, 14 states signed treaties or declarations relating to minorities. Treaty provisions were
signed by Poland, Czechoslovakia, Romania, Yugoslavia, Greece, Austria, Hungary, Bulgaria and
Turkey. Declarations as a condition for membership of the League of Nations were made by
Finland, Albania, Latvia, Lithuania and Estonia.
14
Fink (1996), p. 274.
15
See art. 12 (1) Polish Minority Treaty (1919) As published in British and Foreign State Papers
1919, Vol. CXII, 225–243.
16
For a detailed description of the negotiations and the drafting process, see Viefhaus (1960),
pp. 152–173 and 189–209.
17
Fink (1996), p. 279.
Art. 12 deals with the enforcement of the treaty and is described as ‘the most
innovative, contested and revised portion of the Polish Minority Treaty.’18 It places
the responsibility of guaranteeing adherence to the treaty with the Council of the
League of Nations. From the viewpoint of minorities, art. 12 uplifted their status:
breaches by the states would not go unnoticed anymore. As art. 12 only refers cases
to the League of Nations and does not directly provide sanctions for violations of
the previous provisions of the treaty, the protection often remained on paper. The
League of Nations received complaints but was not obligated to consider them.
The groups most affected by the treaties, the minorities themselves, had little say
regarding the treaties. Sometimes, they were heard and included in the negotiations
but more often they were left out. Some of their proposals were discussed but
ultimately either rejected or considerably watered down. Most of the new states
themselves that had to sign minority treaties persisted on being one-nation states
and felt it was an infringement of their sovereignty if there was outside control of
their treatment of their minorities by the League of Nations.19
The minority treaties protected minorities; however, their success was not
measured on how minorities were protected. The objective of the treaties had
been political:
The object of the protection of minorities which those treaties committed to the League of
Nations was to avoid the many inter-state frictions and conflicts which had occurred in the
past, as a result of the frequent ill-treatment or oppression of national minorities.20
A more recent minority treaty—the Framework Convention—echoes this

approach. Minority protection is not only rooted in a humanitarian approach of
protecting the weak. Political considerations also play a role as is stated in the
preamble: ‘Considering that the upheavals of European history have shown that the
protection of national minorities is essential to stability, democratic security and
peace in this continent [. . .].’21 These persistent political considerations should and
are taken up in the analysis. This is done by including the Rawlsian criteria of state
considerations and general aims. These two criteria view a document or a specific
minority rights as a tool for achieving certain interests—be it peace and stability or
securing a state’s sovereignty.
The minority treaties are important for several reasons. Firstly, they codified
minority rights. Their rights are not comparable to the detailed provisions of the
Copenhagen Document or the Language Charter. Nevertheless, it was quite a step at
the time to codify minority rights on the international level. The rights touched on
several areas and not only on religion. This expansion of minority rights to cover
18
Fink (1998), p. 272.
19
Fink (1996), p. 280; see also Ádám (2004), p. 241; Viefhaus (1960), pp. 198–200; Hudson
(1976), p. 213. Hudson notes the positive exceptions at p. 215.
20
de Azcárate (1945), p. 14. For the same argument see Raitz von Frentz (1999), p. 87.
21
more areas is the second achievement of the minority treaties. Thirdly, the guaran-
tee clause lifted minority rights to the international level. The treatment of minor-
ities was no longer an internal matter—at least for the states with minority treaties.
Linked to this is an international enforcement mechanism. Disregarding its disputed
effectiveness, it is nevertheless a first attempt to enforce minority protection on the
international level.
7.1.3 Minority Protection in the League of Nations
As the League of Nations was not party to any of the minority treaties, the guarantee
clause could have remained a rather hypothetical tool for minority protection. One
of the most important characteristics of the minority treaties was that the minorities
did not gain direct access to the League. Governments were not to be placed at risk
of being ‘constantly harassed’22 by individuals or groups of people.23 Ultimately,
the minorities depended on the goodwill of the states in the Council of the League
of Nations which had no minority obligations themselves and not a positive record
on minority treatment either.
Wilson had proposed to place the minorities under the protection of the General
Assembly; however, did not prevail.24 Both states and minorities could send a
petition to the Council, but only a Council member could place it on the agenda and
only the Council could take action. The right of petition did not include the right to
have the petition considered. The question even came up, if the Council could
refuse to guarantee the rights of minorities. While this would have been legally
possible, it was deemed impossible in practice.25
A Committee of Three was set-up for every petition and decided if a case was
grave enough to warrant the attention of the Council. Between 1921 and 1939, only
14 out of about 500 cases before the Committees of Three were sent on to the
Council.26
Since only documents on the cases before the Council were published, the
majority of cases simply disappeared. When a Committee of Three decided against
sending the case to the Council but did not dismiss it, another committee of the
Council was set up who worked jointly with the Minorities Section and the
government in question on a compromise. Once the Committee of Three was
22
Hudson (1976), p. 222.
23
There had even been the proposal that once the Permanent Court of International Justice was set
up, every Polish national and all national groups should be allowed to appeal directly to the court.
See Viefhaus (1960), p. 195.
24
For a detailed account of the complaint procedure and its adjustments over the years see Roucek
(1929); and Bagley (1950), pp. 65–96.
25
de Azcárate (1945), p. 97.
26
Bagley (1950), pp. 88–89.
satisfied, the case was closed without report.27 This procedure leaves much to be
desired seen with today’s eyes and demands of transparency.
Minorities needed a sympathetic state to advance their cases. When Germany
became a member of the Council in 1926, the German minorities had the necessary
momentum to have some of their cases heard before the Council. In the 1920s,
Germany had six million Germans living outside the borders of Germany and thus
had a natural interest in the effective protection of minorities. It is also argued that
Germany’s special interest in its minorities and its making use of the League of
Nations served the long term goal of returning the areas with German minority
population to the state of Germany.28
The minority treaties were not the only possibility for elevating minority issues
to the League of Nations level. Minority cases could technically also be brought to
the Council under art. 11 of the League’s Covenant, which states in paragraph 2 that
any member of the League can bring up cases that ‘threaten the peace or the good
understanding between nations’ both to the Assembly and the Council. Only a few
minority cases were brought this way; in the early years of the League, most of them
were related to population transfers. The Council adopted a preliminary procedure
which left a large degree of discretion to the Council members in deciding whether
to take up a case or not.29
The system had several shortcomings. One that has already been mentioned was
the lack of direct access. As a minority needed the back-up of a Council member,
politics were always involved. Once a case was accepted at the Council level,
negotiations ensued. Political bargains were struck and cases only rarely reappeared
before the Permanent Court of International Justice. The Council was not provided
with any effective enforcement tools in relation to the minority states. Furthermore,
its decisions were not legally binding. The secret procedure was another shortcom-
ing. The lack of transparency opened up for political bargains and potentially
dubious deals. Even the judicial procedure was vague or interpreted loosely. Urgent
petitions could take 3 years in reaching a conclusion and then retaliation measures
could be feared.30
On the positive side, the establishment of the Minorities Section in the League
needs to be mentioned. It turned out to be quite influential in its early years and the
first director, the Norwegian diplomat Eric Colban, developed a coherent system for
minority protection.31
The Minorities Section worked primarily in five areas. It assisted the Council in
the examination of the petitions submitted between 1921 and 1939. Out of 950 sub-
missions, 550 were considered receivable and the section prepared files for the
Committees of Three. The Section also prepared files on the petitioners in order to
27
Fink (1995), p. 200.
28
Fink (1998), p. 274.
29
Raitz von Frentz (1999), p. 90.
30
For more details see Fink (1995), pp. 201–202.
31
Fink (1995), p. 200.
see whether the minorities met their obligations to their government.32 The
Section maintained personal contact with both the minority states and the minorities
themselves which meant extensive travels for the director. In addition, the
Section monitored the implementation of the minority treaties. The last main
activity was the examination of general minority issues.
As in the Committees of Three, nationals from the minority states and Germany
could not join the Minorities Section. It has been pointed out that the Minorities
Section was disliked so much in the minority states because of this exclusion. It was
felt like a monitoring mechanism imposed by the Allied Powers.33 In fact, in the
20 years of its existence, the Minorities Section was headed by two Norwegians,
two Spaniards and two Danes. The principal Allied Powers were not too much
involved in the Section.
The Minorities Section was the only permanent institution concerned with
minority rights under the League of Nations. It expanded its activities over the
years and took on more than a mere clerical role. It developed procedures for
minority petitions and the Council left it much leeway to use its expertise on
minority issues also on substantive issues.
The League’s Assembly showed a positive attitude toward minorities. Art.
3 (3) of the Covenant of the League of Nations gives the Assembly the right to
deal with ‘any matter within the sphere of action of the League or affecting the
peace of the world.’ Minority issues are clearly among these matters. The Assembly
never became very active in the issue; mostly because of the latent threats of the
minority states to block the customary budget negotiations and therewith force the
stand still of the League of Nations as a whole.34 The Assembly went only as far as
expressing
the hope that the states which are not bound by any legal obligations to the League with
respect to Minorities will nevertheless observe in the treatment of their own racial, religious
or linguistic minorities at least as high a standard of justice and toleration as is required by
any of the Treaties and by the regular action of the Council.35
Several initiatives on behalf of minority protection led nowhere.36 When the

debates yielded no results and a generalization of minority protection was as
unlikely as ever, Poland declared in 1934 that it would cease all cooperation with
the League of Nations on the issues of minorities.37
Overall, even though minorities might have got only half of what they wanted,
they did make big some steps. The fact that minority protection was
internationalized at all is the first one. Even though inefficient on many minority
issues, it was the first multilateral system for minority protection. In more open-
32
33
34
Raitz von Frentz (1999), pp. 88–89.
35
Minutes of the third Assembly as quoted in Bagley (1950), p. 99.
36
Fink (1995), p. 201; Bagley (1950), p. 98.
37
Bagley (1950), pp. 98–99.
minded countries such as Czechoslovakia and Latvia, minorities actually could take
part in the political process. Through mediation at the League of Nations, some
conflicts about the co-existence of majority and minority could be solved.38
Although the judicial procedure was full of obstacles for minorities, one should
not underestimate the fact that political negotiations often ensued with the state in
question. In this context it becomes clear that already in the very beginnings of
minority protection, the kin-state plays an important role. Only after Germany
joined the Council did the minorities have an ally in presenting their cases to the
Council. Also, financing the setting up and the running of educational, religious and
social institutions required assistance from outside—in the German case this was
the government of Germany in Berlin.
The mechanism of the League of Nations has received more critique than
appraisal.39 When the United Nations was established, a different approach was
chosen. Minorities were not mentioned in the Charter. Yet, a closer look reveals that
many of the bodies of the League of Nations and their functions have reappeared on
the international level.
The mechanism of the League was based on three pillars. There were the
minority treaties, the Covenant of the League of Nations and the Minority Section.
Minority treaties as they were signed after World War I do not exist today. Yet there
is the Framework Convention which is exclusively concerned with minorities. On a
global level, art. 27 ICCPR is a minority provision. More importantly, the ICCPR
includes a right to communications for states and the Additional Protocol even
includes the right to individual communications. Today, the procedure is stronger in
the sense that communications cannot be brushed aside as was possible for the
Committee of Three under the League of Nations. The Human Rights Committee
fulfils different roles that already existed under the League. It is the monitoring
body of a treaty relevant to minorities. The minority treaties were monitored by the
Minority Section. The Human Rights Committee furthermore receives the commu-
nications by states and individuals. This work was shared by the Minority Section,
the Council and the established sub-bodies such as the Committees of Three. The
League of Nations envisioned a stronger procedure in one point: a case could be
brought in front of the Permanent Court of International Justice. This is not possible
today. Decisions on the communications under the ICCPR cannot be appealed
before the International Court of Justice.
The Covenant of the League of Nations provided an indirect access for minor-
ities. Issues that threaten peace, security and friendly relations could be brought to
the main bodies of the League. The same is possible under the UN Charter. The
General Assembly may discuss any matters under the scope of the Charter and even
make recommendations to member states or the Security Council. Minority issues
can find their way to the United Nations via these articles 10 and 11.
38
Weisbrod (1993), p. 371.
39
For a deeper analysis of the protection of minority in the League of Nations and its positive and
negative sides see Bagley (1950), pp. 97–132.
Today, the Minority Section would be categorized as a sub-body and its func-
tions are carried out by different actors. As mentioned above, regarding monitoring
issues, this is now carried out by the Human Rights Committee or the Advisory
Committee regarding the Framework Convention. The Minority Section or rather
its director kept in personal contact with both states and minorities. This is one of
the functions of the OSCE High Commissioner on National Minorities. Further-
more, the Section was concerned with the general examination of minority issues.
This corresponds to the work of the Forum on Minority Issues and the Independent
Expert of Minority Issues who work within but not only on the UN Minority
Declaration.
The interplay between judiciable and political solutions has parallels still today.
The Council of Europe goes the judicial way with treaties and the European Court
of Human Rights. The OSCE, on the other hand, works exclusively on the political
level. Both organizations have their advantages and disadvantages, their successes
and failures. Former director of the Minority Section Pablo de Azcárate concludes
that the compromises reached through political bargaining ‘were perhaps in the
circumstances more useful to the minorities and to the cause of peace.’40 The lesson
to be learned from this must be that legal protection does not necessarily solve all
problems. Political compromises are not always inferior to legal solutions.41
After World War I, minority rights were both granted and limited by political
considerations. They were most often granted in cases where the minority in
question was placed within a foreign state that had to sign the minority treaties.
The two European powers Great Britain and France opposed Wilson’s idea of
universal minority protection through the League of Nations. On the other hand,
they realized the necessity of protecting the new minorities. The minority treaties
with the Council of the League of Nations as guardian were the compromise.
At Versailles, Wilson’s foremost attention was directed at the establishment of
the League of Nations. His original aim was to include a more general clause on
minority protection in the Covenant. Britain, though, showed strong reservations
about making such a global statement on minority rights. It considered Wilson’s
proposition too vague and general and there was a fear that the League could neither
enforce nor supervise it. Also, Britain was adamant about the respect of the
sovereignty of the new states.42 The Japanese, one of the victorious powers but
who kept out of European affairs, reacted with the demand for recognition of racial
40
de Azcárate (1945), p. 101.
41
For a thorough discussion on advantages and disadvantages of hard and soft law see Abbott and
Snidal (2000), pp. 424–450.
42
Fink (1998), p. 258.
7.2 The Concept of Minority Rights 147
equality in the Covenant of the League of Nations. They argued that the different
states could only be expected to assume the responsibilities of the League if the
League in turn affirmed their equality. The British Foreign Secretary Arthur Balfour
rejected the idea on the basis that the ‘all men are created equal’ proposition was an
eighteenth century concept.43 As a result, minority protection was placed under the
guarantee of the League while the protection clauses themselves were incorporated
in other treaties or declarations.
Minority rights were continuously watered down or reduced. Cultural autonomy
was opposed by the victorious successor states as well as by Britain and France.
Likewise, it was rejected that minorities could set up self-contained entities, where
they could found and maintain schools, public charity and social institutions.
Proportional minority representation in elected institutions was struck out as
well.44 Instead of a universal declaration on minority rights in the Covenant of
the League of Nations, Wilson had to settle for considerably less, which, however,
still constituted a great advancement for minorities. Their protection was placed
under the guarantee of the League45; even though one can also consider this to be
only ‘a scrap of paper.’46 The Covenant itself does not mention the word minorities
even once, let alone the League’s responsibility to protect them. Yet, even though
the mechanism was criticized, its ideas survived.
7.2 The Concept of Minority Rights
The shortcomings of the League system were clear by the end of World War II.47
When the United Nations was established and the Universal Declaration of Human
Rights came about, the protection of minorities was not mentioned. Individual
rights were now at the centre of attention. The League system had ceased to exist
and the new system looked to non-discrimination and equality. Minority protection
43
Ambrosius (1998), p. 76.
44
Ádám (2004), pp. 227 and 240.
45
‘Poland agrees that the stipulations in the foregoing Articles, so far as they affect persons
belonging to racial, religious or linguistic minorities, constitute obligations of international
concern and shall be placed under the guarantee of the League of Nations.’ See art. 12 Polish
Minority Treaty (1919) As published in British and Foreign State Papers 1919, Vol. CXII, 225–
243.
46
Fink (1996), p. 285.
47
There are countless discussions on why the League of Nations failed. For an account on the
existence of the League of Nations see Northedge (1986). Northedge also lays out the fundamen-
tally different approach of the United Nations that was regarded necessary in order to avoid the
weaknesses of the League of Nations. For a critically positive appraisal of the League of Nations
see for example Joyce (1978). Rodley has pointed out that the minority system under the League
never had a chance. Rodley (1995), p. 48.
was not explicitly stated for fear of creating incentives for separatist tendencies and
movements.48
Even though the League of Nations system for the protection of minorities
collapsed, it has now been argued that minorities were—and still are—considerably
worse off under the UN system.49 The Sub-Commission on Prevention of Discrim-
ination and Protection of Minorities was already established in 1947,50 but minority
issues were all but forgotten in the early years of the United Nations. This reflects
the UN-approach: Individual human rights combined with strong anti-
discrimination policies were to include minority members without specifically
protecting these groups. In 1967, the Economic and Social Council reprimanded
the Commission for Human Rights for not having considered three consecutive
reports of the Sub-Commission. The Commission’s reason reflects the low standing
of minority issues: the commission had simply not had the time.51
The United Nations established human rights bodies and the European and
American regimes for human rights protection were put in place after World War
II. Nothing exists for minorities that is comparable to the Inter-American or the
European Court of Human Rights.
Minority rights were conceived in human rights even though one can find
fundamental differences. Today, minority rights have achieved their own standing
though they are still considered to be within the framework of human rights; to be
‘an inseparable element of universally recognized human rights.’52
7.2.1 The Collective Dimension
There are several conceptual differences between human rights and minority rights.
The most obvious difference is the group dimension in minority rights. Treaties
concerning minorities avoid giving minorities a legal status as a group. Also the two
minority treaties of the Council of Europe address persons as belonging to a
minority, not the minority as such. When Hungary and Romania concluded the
Treaty on Understanding, Cooperation and Good Neighbourliness in 1996, it was
made clear that no collective rights of the respective national minorities were
recognized.53
48
Symonides, J (1993): A Protective Framework – International Rules that Protect Minorities’
Rights, UNESCO Courier.
49
For more on this see Weisbrod (1993), p. 402; Wirsing (1981), p. 165.
50
In 1999, the name was changed into Sub-Commission on the Promotion and Protection of
Human Rights.
51
Para. 2 Economic and Social Council (1967) Reports of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities UN Doc. ECOSOC Res. 1240 (XLII).
52
Dalton (1994), p. 100.
53
Hungary-Romania: Treaty on Understanding, Cooperation and Good Neighborliness (1996) As
published in 36 (1997) International Legal Materials, 340–353.
Recognizing collective rights begs the question what happens when collective
rights collide with individual rights. Patrick Thornberry has made it clear, that
human rights—the individual’s rights—must trump a group’s claims.54 This is one
of the points of criticism about human rights from extra-European states. For
example, African states have voiced time and again that human rights are regarded
as neo-liberal Western values that do not fit well in the African context. They do not
disagree with human rights; however, ‘African history is a product of community
relationships.’55 In their opinion, the individual’s rights cannot trump collective
rights of groups as Thornberry advocates. The UN Human Rights Committee
confirms Thornberry’s view.56
Another question arises with regard to representation of the group. When a group
has rights, is it the individual claiming the rights, a representative, the group as a
whole? Are there demands for a democratic process of electing representatives? Is it
acceptable to appoint them? Who elects or appoints the representatives? Moving
within a framework where membership in the minority may not be controlled by the
authorities as is the case in the Danish-German context, it is near impossible to
come up with an electoral register. Rights are usually accompanied by duties. Who
can be held accountable for a minority’s duties? These are questions related to the
issue of legal personality. There is no general rule to this and each state has its own
answer to these questions. Representation can become an important issue. The
Mikmaq Case57 was declared inadmissible because the applicant could not prove
he was the authorized representative of the tribe.
54
Gilbert (2005), p. 141 quoting Thornberry. Along similar lines, the Framework Convention does
not accept traditions that are contrary to national law or international standards. See para.
44 Explanatory Report to the Framework Convention for the Protection of National Minorities
(1995) As published in Framework Convention for the Protection of National Minorities –
Collected Texts, 4th ed., Council of Europe, 2007, pp. 17–35, Strasbourg.
55
Emphasis added. Oloka-Onyanog (1999), pp. 183–184.
56
Sandra Lovelace, an ethnic Indian in Canada, lost this status when she married a non-Indian. She
could not regain this status after her divorce. The question of Canada’s obligations in relation to
art. 27 ICCPR vs. The Indian Act was put before the Human Rights Committee. The Committee
held that Lovelace should be regarded as a member of the minority as defined by art. 27 ICCPR
and therefore had to have the possibility to return to the reserve in order to enjoy her minority
rights ‘in community with the other members’, as it is stated in art. 27 ICCPR. See Human Rights
Committee (1981) Communication No. 24/1977, Sandra Lovelace v Canada UN Doc. CCPR/C/
13/D/24/1977 for further details.
A different case presents itself in the UK, where arranged marriages in minority groups are
accepted. Here, the individual’s rights to free choice is limited by an overriding group concern. See
art. 16 (2) Dealing With Cases of Forced Marriage – Guidance for Educational Professionals
(2005) Foreign & Commonwealth Office. http://publications.teachernet.gov.uk/
eOrderingDownload/FCO%2075263.pdf. Accessed 02 June 2010.
57
In this case, the Grand Captain of the Mikmaq tribal society claimed a violation of the right to
self-determination on behalf of his tribal society. When investigating the standing of the Grand
Captain, the Grand Chief of the Grand Council spoke against the Grand Captain’s standing and the
Grand Council never authorized the Grand Captain to represent the tribal society. See Human
Scholars disagree about the existence of collective minority rights.58 I am in

overall agreement with a minimal catalogue of collective rights that has been
written up.59 Its author concedes that not all rights are recognized as rights yet
may serve as a basis for further discussion. The right to existence is the very basic
right that is a precondition to any other right. The right of non-discrimination, the
right to be different, the right to special measures and the right to decide who is
entitled to membership in the group could probably be said not be of too much
controversy. The right to establish institutions, to communicate and cooperate with
similar groups and the right to be represented in the government are of different
nature as they can have a direct effect on the majority society and the state. The last
two rights of the list are questionable, though it is specifically stated that they are
only valid for some groups. These are the rights of a legal personality and the right
to self-determination.
Most of these rights have both a collective and an individual dimension. The
right to existence secures the survival of each individual member of the minority.
The right to existence as a minority ensures the space and conditions necessary for a
minority and its members to maintain their traditions, language etc. The right to be
different is similar in its application to both the group and the individual. Legal
personality, on the other hand, is solely collective.
The right to autonomy, if indeed such a right should exist, has been identified as
a collective right.60 ILO Convention No. 16961 and the Declaration on the Rights of
Indigenous Peoples62 contain the rights of groups/peoples and are thus collective
rights. Indigenous peoples’ and minority right overlap to a certain degree but it is
not possible for minorities to claim indigenous rights. Common art. 1 of the two
Covenants—a people’s right to self-determination—has been recognized as a
collective right.63
One way of offering collective rights to minorities is to reserve a special
proportion of seats in parliament, in the government or any other public sector for
minority members.64 It is not the right of an individual to be appointed to a post at a
Rights Committee (1984) Communication 78/1980: The Mikmaq Tribal Society v. Canada UN
Doc Supp. No. 40 (A/39/40).
58
Andreescu (2007), p. 164.
59
Lerner (2003), pp. 39–41.
60
Gilbert (2005), p. 150.
61
ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries
(1989) ILO Doc http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169. Accessed 06 May 2014.
62
General Assembly (2007) UN Declaration on the Rights of Indigenous Peoples UN Doc.
A/RES/61/295.
63
Para. 2 Erika-Irene Daes and Asbjørn Eide (2000) Working Paper on the Relationship and
Distinction Between the Rights of Persons Belonging to Minorities and Those of Indigenous
Peoples UN Doc. E/CN.4/Sub.2/2000/10.
64
The Danish minority has a confirmed seat in the Schleswig-Holstein Landtag, the state parlia-
ment. This seat is guaranteed and not dependent on the election result. Further seats are, of course,
allowed. The minority competes on equal footing with all other parties for the seats in parliament.
university, but it is the right of the minority to have the position in question filled
with one of their own minority members.
Reading international documents on minorities, one more group right seems to
develop: the right to identity. The phrasing is more indirect. Art. 1 of the UN
Minority Declaration obliges states to protect and create conditions for the promo-
tion of minority identity. The CSCE Copenhagen Document has a similar provision
in art. 33. The provisions signal openness towards the issue of identity. It has been
pointed out, that states possibly would not have agreed to this if it had been part of a
legally binding document such as a treaty.65
Minorities can have collective rights or their rights have a collective dimension.
The freedom to association also has a collective dimension even though it is part of
the human rights canon. A group dimension is thus not completely alien to human
rights. The right to freedom of religion may serve as an example. Every individual
may live its own religion. However, the vast majority of people exercises its
religion in the collective. The freedom of speech does not make much sense if
there is no one who can listen. These are all considered part of minority rights and
also human rights. Thus, a collective component of rights cannot be a sufficient
reason for excluding minority rights from the sphere of human rights.66
Collective rights do not fit the concept of human rights which are aimed at the
individual. They are based on the equality of all human beings. They are the same
for everyone. Collective rights single out a group for these special collective rights.
An argument against collective rights is advanced, though it is not of legal nature. It
is maintained that recognizing collective rights can split societies. If a state sees
itself as a unified society, recognizing smaller groups within society counters this
unity by cementing group identities instead of resolving them.67 Group rights
divide all people into several groups and demand identification with a group
which in turn threatens the individual’s identification with society as a whole.
They do not take into account that one may have more than one identity.
Offering minorities rights can, so to speak, turn the tables. When minorities are
recognized, protected, given freedoms and live peacefully within the majority
society, then it is up to the minority to make sure that it knows and shows why it
needs extra rights and protection. When members of minorities are well integrated
into the majority society, at some point the question will be asked if the minority
still exists. Integration into majority society leaves a question mark after minority
identity. It is then the minority’s task to prove that the subjective factors of wanting
to be treated as a minority and the will to retain minority traditions still exist.
65
Wright (1996), p. 197.
66
In favour of collective human rights: see Freeman (1995); Köchler (2001), p. 139; van Boven
(1982), p. 55; for a detailed examination of what can constitute collective rights see also
Andreescu (2007), pp. 164–168.
67
Valentine (2004), p. 447. The opposite argument exists also: collective rights support peace and
stability. See Zoltani and Koszorus (1996), pp. 137–140.
Considering the Framework Convention, it becomes clear that a number of the

individual rights are the same rights accorded under international human rights
instruments, however extended to cover the minority dimension. The Framework
Convention targets ‘persons belonging to a national minority’; the rights can be
enjoyed alone or in community with others. Art. 27 ICCPR is not as broad and
explicitly limits the rights to be enjoyed ‘in community with the other members of
their group.’ The Explanatory Report to the Framework Convention states explic-
itly that the exercise of rights may be done in community with others, but that this is
different from group rights.68
For the time being, the tension between the group and the individual remains a
question without a concluding answer. However, as minority conventions focus on
the individual as well, the balance tilts in favour of the individual’s rights being
placed before the group’s rights. As art. 3 FCNM states, choosing to be treated or
choosing not to be treated as a member of a national minority may not result in any
disadvantage for that person. The individual is in the focus once again.
One conclusion is that minority rights can be individual and collective in nature.
A second conclusion is that there are collective human rights or human rights that
have a collective dimension. Third, self-determination is a collective right,69
though this does not preclude an individual dimension of self-determination.70
The circle is thus closed. Collective minority rights are part of human rights.
Self-determination is part of human rights. Minority rights and self-determination
do not preclude each other in the individual vs. collective dimension.
7.2.2 Equality and Non-Discrimination
A second conceptual difference between human rights and minority rights is the
idea of equality—or so it seems. Human rights are rights that place every single
person on the same level. They are rights equally applied to all—also minority
members have human rights.71 Non-discrimination is one of the most basic human
rights. Minority rights on the other hand focus on the minority and can accord them
special freedoms and rights. The minority is treated differently from the majority.
Seemingly, the idea of equality is lost. This is not so. Minority rights only afford
special treatment until the minority has reached equality with the majority. Thus,
minority rights are also based on the idea of equal treatment. It is difficult to
68
69
This is occasionally disputed. See de George (1991), pp. 1–7.
70
Para. 57 Héctor Gros Espiell (1980) The Right to Self-Determination – Implementation of
United Nations Resolutions UN Doc. E/CN.4/Sub.2/405/Rev.1.
71
See art. 2 UDHR.
pinpoint when equality has been reached and what happens then. If equality were an
identifiable stable status, minority rights would only have to be accorded special
rights once until equality had been reached and could then be abandoned. It is not
that easy.
While discrimination is generally frowned upon special treatment, also called
affirmative action or positive discrimination, for certain groups is not unknown.
The goal of minority rights is not to achieve a general preferential treatment of
minorities compared to the majority. The rationale for minority rights is that
minorities face a more difficult situation as such, as they are different in many
ways from the majority. To use John Rawls’ term: they are the least advantaged.72
Minority rights are supposed to lift up the minorities so they have the same
possibilities—be that on the job market or participation in the political or cultural
life in society—as the majority. Again, Rawls comes to mind; this time it is the
difference principle. The goal is not to achieve an unequal result in favour of the
minorities but rather to achieve substantial equality between minority and majority
and the instrument is unequal treatment. Because they start from different levels,
preferential treatment for minorities can sometimes be necessary to achieve equal-
ity.73 In other words, positive discrimination is about equalizing opportunities.
From the majority’s point of view, the question is, of course, when enough is
enough; when equality is reached. Erica-Irene Daes puts the question slightly
different: ‘To a greater or lesser extent, all groups and cultures overlap and change
over time . . . Does a group gradually lose its rights as its culture changes? Or lose
its rights when it exceeds a certain threshold of cultural similarity to other
groups?’74 There are no straight answers to these questions.
7.2.3 Minority Rights as Additional Rights
Minority rights are special in a third way. In addition to being the beneficiaries of
human rights, minority members enjoy additional rights. The right to education in
one’s own language75 is one of these examples. Neither the Universal Declaration
of Human Rights nor the two Covenants mention a human right to education in
one’s own language. This would give rise to considerable challenges in multilingual
societies.
72
For more on Rawls see Sect. 4.3.
73
For the same argument see para. 241 Francesco Capotorti (1991) Study on the Rights of Persons
Belonging to Ethnic, Religious and Linguistic Minorities, United Nations, New York, 1991.
74
75
The term ‘one’s own language’ refers to the language of the minority one belongs to. The
minority can be the mother tongue but often members of minorities are bilingual, speaking the
official state language and the minority language.
The Language Charter’s rights to education in regional or minority languages are

quite extensive and consider different scenarios and possibilities for states to
comply with the rules laid down. Art. 8 LC has to be read with reservations because
of the Charter’s pick and choose approach.76 Nevertheless, art. 8 reflects the
importance that language has for most minorities. It is very often via the language
that a minority holds on to traditions, culture and its identity.
Art. 7 FCNM provides rights that are also laid down in the Universal Declaration
of Human Rights: freedom of peaceful assembly and association (art. 20 UDHR),
freedom of expression (art. 19 UDHR) and freedom of thought, conscience and
religion (art. 18 UDHR). Freedom of expression exemplifies the additional minority
dimension.
Freedom of expression in art. 19 UDHR grants the rights to freedom of opinion
and expression, ‘this right includes freedom to hold opinions without interference
and to see, receive and impart information and ideas through any media and
regardless of frontiers.’ The Framework Convention includes freedom of expres-
sion in art. 7 as one of several rights in a list. Art. 9 FCNM on media access is
fleshed out with four paragraphs. Again, the individual has the right to the freedom
of expression which includes the right to receive and impart ideas, this time,
however, not through any media as is stated in art. 19 UDHR but ‘in the minority
language.’ ‘Regardless of frontiers’ also applies to minorities. Art. 9 FCNM then
adds a special prohibition against discriminating against minority members in their
media access. Art. 9 (3) obligates the states party to the convention to create the
possibility for national minority members for creating and using their own media.
This is an example where the Framework Convention uses a human right as a basis
and applies it in a minority context.
7.3 Further Characteristics and Challenges of Minority

Rights
Minority rights exhibit more characteristics that are not necessarily to be seen in
opposition to human rights. Yet, they are important to the nature of minority rights.
Giving minorities what they want—to a certain degree of course—puts them in
the precarious situation of justifying their special treatment. This argument comes
from the viewpoint that many minority rights exist because of past injustices.
Thomas Simon has argued that minorities are best defined by looking at historical
oppression of groups. These threatened groups are worth protecting.77 While his
approach may leave out peacefully co-existing minorities that nevertheless only
thrive because of the protection mechanism, his approach delivers the basis for the
discussed argument. When the rationale for minority protection is past injustice,
76
See Sect. 3.1.1.
77
Simon (1997).
7.3 Further Characteristics and Challenges of Minority Rights 155
compensation of some sort is appropriate; but for how long? When there is no
injustice anymore, then how is minority protection justified? When minorities are
no longer threatened, where is the reason for special treatment?
Minority protection has often been seen as a tool of conflict prevention. Thus, it
can be argued that even though a threat does not exist, minority protection is
necessary in order to avoid any possible conflicts. In my opinion, this is too easy,
as many groups would qualify for minority protection under theses premises. Most
states have shown themselves to be rather restrictive in their recognition of minor-
ities in international treaties. A threat cannot be the only factor for determining the
existence of a minority in the legal sense of a minority protected under the existing
international treaties.
A different question arises when a member of a minority chooses not to be
treated as a minority member. Some rights can be waived. Non-derogable rights can
never be waived. Even if torture or slavery is a tradition in the minority, a person
cannot consent to it.78 Minority rights always have to respect human rights—at least
those human rights considered to be the most fundamental ones. On the other hand,
it is completely legal not to send a child to a minority school when one or both
parents have a minority background.79
Minority rights are necessary today because they target a different set of issues
than human rights. The majority, by being the majority, sets the standards, and
diverging rights need special attention. Eide points to the fact that minority rights
‘aim at ensuring a space for pluralism in togetherness.’80 This statement hints at one
of the core issues of this project: togetherness. Minority rights do not have an
external dimension. This project does not argue for rights of minorities to break up a
state. On the contrary, internal self-determination for minorities can further togeth-
erness with the majority.
Minority rights face a different challenge than human rights. While human rights
have achieved a global status, minority rights are even easier to be denied. In these
cases, it is not necessarily the rights that are denied but the outright existence of
minorities. Today, most states regard minority protection as a stabilizing policy.
However, there are still states that take an adversary stance towards their minorities.
It would not be easy to oppress a minority without the world noticing, so the easier
way is to deny having minorities. The relationship between the state and minorities
has been likened to the relationship between Europe and the uncivilized world in
past times. Some states still deal with minorities without seriously listening to them
or involving them in a meaningful way.81
78
Gilbert (2005), p. 154.
79
The question is, whether they in this case consider themselves members of a minority. If this is
denied, they are per definition no members of the minority, as only free will can secure member-
ship in a minority.
80
81
Anghie (2006), p. 457.
7.4 On the Necessity of Minority Rights
However much is discussed relating to the concepts, the dividing line between
human rights and minority rights is not clearly drawn. Minority members always
enjoy the same human rights as members of the majority population. The fact that
the overlapping rights are included in the Framework Convention may be taken as
an indicator that minority members have a special need for these rights or rather,
that their rights are more at risk of being violated. In case of conflict between the
minority and the state, it is important to guarantee that members of the minority
may continue to exercise their rights.
There were times when minority protection was opposed because it was thought
that minority protection would undermine the stability and integrity of the state. It
was believed that granting minority rights would endanger the state as the minority,
when being offered the little finger of minority protection, would surely take the
whole hand of external self-determination.82 On the other hand, already in the late
nineteenth century, states like Austria-Hungary, Belgium and Switzerland granted
minorities protection in order to safeguard the sovereign state.
Generally today, the idea of minority rights is supported by wide spanning
reasons. They assumingly contribute to ‘stability, democratic security and
peace.’83 One could say the ultimate goal of minority protection is conflict preven-
tion. For this reason, the position of the High Commissioner on National Minorities
under the OSCE was established. The original mandate was to serve as an instru-
ment of early warning and as appropriate early action at the earliest possible state in
potential conflicts that involve national minority issues.84
Azcárate offers a more philosophical and humanistic reason for minority rights:
For after all, these differences of race, language or nationality are only some of the many
differences inherent in every human society. And if we acknowledge ourselves defeated by
them, and have recourse to the barbarous and cruel method of separating men, as they were
herds of sheep, into homogeneous national groups, in what way shall we solve other
differences? . . . [D]iversity of mentalities, temperaments, aptitudes, ideas, beliefs, has
always been rightly considered as a source of material and moral prosperity and strength
in nations and states.85
His last words are echoed in many conventions and speeches. There seems to be
a general consensus today, that minorities are a substantial part of Europe, enriching
society and adding to the identity of the European peoples.86
82
Simon (1997), p. 511.
83
84
CSCE (1992) Helsinki Document 1992: The Challenges of Change OSCE Doc. http://www.
osce.org/mc/39530?download¼true. Accessed 06 May 2014.
85
86
References 157
Conclusion
Art. 1 FCNM places minority rights firmly within the human rights context.
Being part of human rights undoubtedly has several advantages: first that of
being embedded within an institutional framework. Second, minorities take
advantage of human rights achievement, for example that of permeating
boundaries and thus state sovereignty. Being accepted as human rights
opens the door for minorities to (re-)enter the international arena.
Minorities exhibit some characteristics that are different than those of
human rights. Still, they are similar or run along the same reasoning as
human rights. The idea of human rights absorbing minority rights completely
has not been successful. Minority rights have regained their own standing
without severing their ties to the overall framework.
The protection of minorities has a long tradition. In today’s Europe, we see
approaches which are mostly characterized by a positive attitude. Minorities
can threaten the stability and security of a state. However, today, minorities
are regarded as being much more bridges than enemy front lines.
These insights become important later on in this project. The similarities in
the tales of self-determination and minority rights are only one of the con-
clusions this chapter contributes to. This chapter has also made it clear that
self-determination and minority rights were closely interwoven when self-
determination entered the arena after World War I. Further back in history,
religious minorities received limited religious autonomy—another close con-
nection to the concept of self-determination. The right to internal self-
determination for minorities has to be regarded not only as a legal issue.
There is also a historical dimension to both self-determination and minority
rights that offers both a framework and yardsticks for the cumulative discus-
sion in Chap. 11.
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Chapter 8
Minority, People, Nation
Scholars involved in minority rights and those actively working for minorities at
international organizations and non-governmental organizations can sometimes be
overheard saying that definitions are not important at all. The important thing is that
the groups actually get their rights, no matter how these groups are defined in detail.
Gudmundur Alfredsson offers two reasons as to why there is no binding definition.
Firstly, they feel threatened by minorities’ separatist claims that they expect when
minority rights are enforced. Secondly, by continuously discussing a definition,
substantive issues are avoided.1 The first reason shows the value of the original
position. Within the framework of liberal states in Europe, separatist claims do not
appear in the original position. While the second reason cannot be disproved, the
original position is about agreeing on fundamental principles. Hiding behind
definitional questions is not part of the strategy.
There are two viewpoints on the issue of the definition of minorities. One
maintains that a definition is not necessary in order to draft standards of minority
protection.2 There is not much to be argued with this statement. The term ‘people’
has not yet been defined; yet, the right to self-determination is well-established for
this group of persons.3 I subscribe to the second view which sees the continued
1
Alfredsson (2005), pp. 163–165.
2
Former OSCE High Commissioner on National Minorities Max van der Stoel says that the
‘existence of a minority is a question fact and not of definition.’ He goes on to name the
characteristics of a minority as being of linguistic, ethnic or cultural nature. In addition, identity
is important to minorities. Van der Stoel is thus close to proposed definitions as becomes clear
below. See van der Stoel, M (2010) Keynote Address at the Opening of the OSCE Minorities
Seminar in Warsaw in 1994. http://www.osce.org/hcnm/37959. Accessed 06 May 2014. For a
similar view on the needlessness of a definition see Alfredsson (2005), p. 163. For a summary to
this view see para. 12 European Commission for Democracy Through Law (2007) Report on
Non-Citizens and Minority Rights CoE Doc. CDL-AD(2007)001.
3
Para. 19 Commission on Human Rights (1986) Compilation of Proposals Concerning the
Definition of the Term “Minority” UN Doc. E/CN.4/1987/WG.5/WP.1.

DOI 10.1007/978-3-319-08876-1_8
162 8 Minority, People, Nation
‘desirability of proceeding with the task of defining a minority.’4 I find it difficult to

discuss minority rights in depth when there is no clear understanding of what a
minority actually is. In this, I follow the former director of the Minorities Section of
the League of Nations Pablo de Azcárate who wrote:
What is certain is that any legal machinery for the protection of minorities, or perhaps more
properly speaking, for the guarantee of specifically recognized minority rights, would gain
considerably in efficacy if the minorities for which the machinery is established were
clearly defined.5
A definition will be difficult to find. Decades of discussions have not led to a

legally binding definition of the term ‘minority.’ The existing working definition of
Francesco Capotorti will serve as a starting point. Some questions will remain
unanswered here. That does not mean, though, that they should not be asked.
Even if there is no black on white definition, it is still worthwhile to minimize the
grey area that surrounds the term ‘minority.’ For my purposes, it is also necessary to
distinguish between the terms ‘nation,’ ‘people’ and ‘minority.’ A point is made of
addressing the overlaps of categories. In case of overlap, a group would have to
decide under which category it wants to claim its rights. This is important as rights
vary for the two categories. This chapter shows that we are dealing with an
extremely complex issue where nothing should be taken for granted and where
everything not only deserves but warrants a second look.
The findings of this chapter are taken up in Chap. 11. They provide part of the
framework within which the results of the analysis are discussed. At the same time,
the findings contribute actively to the discussion. The finding that there is no
meaningful difference between minorities and peoples may be unsatisfactory in
relation to the definitions, but it is an important finding in the larger discussion.
8.1 Minority Definition
A number of proposals have been made regarding a definition of minorities.6 None

of them have led to a legally binding definition. In the 1990s, the Parliamentary
Assembly of the Council of Europe pushed for a legally binding definition of the
term ‘national minority’.7 Its proposal was not adopted by the Committee of
4
Para. 19 Commission on Human Rights (1986) Compilation of Proposals Concerning the
Definition of the Term “Minority” UN Doc. E/CN.4/1987/WG.5/WP.1. See also Packer
(1993), p. 25.
5
6
See for example Commission on Human Rights (1986) Compilation of Proposals Concerning the
Definition of the Term “Minority” UN Doc. E/CN.4/1987/WG.5/WP.1.
7
CoE Doc. PACE Rec. 1201 (1993).
8.1 Minority Definition 163
Ministers. There is, however, certain consent on a minority definition. Key aspects
are always the objective factor of being different and the subjective factor of
wanting to be different.
Much has been said and written about the definition of a minority. It seems
redundant to repeat many of the already thoroughly discussed issues such as the
non-existence of a binding definition, the problems of achieving a definition and
several aspects such as the minimum number and numerical inferiority.8 Therefore,
I have chosen a few points that are of special importance in relation to this project
for closer inspection. There are few issues that are relatively undisputed compared
to those I discuss in this chapter. These issues are not discussed further. A minority
is a group, it is numerically inferior and in a non-dominant position. Whether the
characteristics have to be different from the ‘rest of the population’ or the ‘majority
of the population’ is not of importance in this project.9
I have chosen the most accepted working definition as a starting point. This is
Francesco Capotorti’s definition that he proposed regarding art. 27 of the ICCPR in
1977. At the time he was UN Special Rapporteur of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities. I contrast several
other definitions on different points with Capotorti’s proposition.
8.1.1 National vs. Ethnic, Religious and Linguistic

Minorities?
Francesco Capotorti put this definition of a minority forward:

A group numerically inferior to the rest of the population of a State, in a non-dominant
position, whose members – being nationals of the State – possess ethnic, religious or
linguistic characteristics differing from those of the rest of the population and show, if
only implicitly, a sense of solidarity, directed towards preserving their culture, traditions,
religion or language.10
Curiously, this definition is used in virtually all minority discussions even

though Capotorti stated explicitly that his definition was solely developed in
relation to art. 27 ICCPR.11 The definition only focuses on ethnic, religious and
linguistic factors. National minorities are not mentioned. It was not until 1992 that
8
Bas de Gaay Fortman disagrees here and shows that numerical inferiority is not an adequate
criterion in the definition of a minority. Nevertheless, this is a criterion which is largely accepted.
See de Gaay Fortman (2011), pp. 276–277.
9
For a discussion on the numerical size of a minority see for example paras. 121–125 European
Commission for Democracy Through Law (2007) Report on Non-Citizens and Minority Rights
CoE Doc. CDL-AD(2007)001.
10
Para. 568 Francesco Capotorti (1991) Study on the Rights of Persons Belonging to Ethnic,
Religious and Linguistic Minorities, United Nations, New York, 1991.
11
the term ‘national’ was added through the 1992 UN Minority Declaration. Confu-
sion as to the meaning of the term ensued.12 In Europe, the term is no new
invention. The term ‘national minority’ is found in the European Convention of
Human Rights and the Framework Convention both of which are treaties under the
Council of Europe. The European Union uses the term as well in its Charter of
Fundamental Rights which prohibits discrimination inter alia based on membership
of a national minority.13 The question is where the differences lie between the
categories of minorities. Azcárate defined a national minority as follows:
[W]hat in the last resort constitutes the distinctive and characteristic features of a national
minority is the existence of a national consciousness, accompanied by linguistic and
cultural differences.14
He goes on to explain that linguistic and cultural differences are the chief factors
in determining whether a ‘national consciousness’ exists. A long list of other factors
also has to be kept in mind. Among these are racial, religious, historical and
geographical factors. Azcárate uses a flexible approach as the proportions of
these factors can vary, ‘but they are responsible for an indefinable sense of
community, of union, of internal solidarity in the past, present and future, and
also for that latent feeling of opposition.’15 Azcárate, predating Capotorti by some
30 years, points to some of the same characteristics as Capotorti.
Jules Deschênes, also of the UN Sub-Commission on the Prevention of Discrim-
ination and the Protection of Minorities, proposed a second, often cited definition of
‘minority’ in 1985:
A group of citizens of a state, constituting a numerical minority and in a non-dominant
position in that state, endowed with ethnic, religious or linguistic characteristics which
differ from those of the majority of the population, having a sense of solidarity with one
another, motivated, if only implicitly, by a collective will to survive and whose aim is to
achieve equality with the majority in fact and law.16
All three definitions point to the same ingredients. Azcárate has a wide scope, as
he takes more characteristics into account which then can vary in their proportion to
each other. It could be argued, that in cases where the religious factor is over-
whelmingly present, we should speak not only of a religious minority but also of a
national minority in Azcárate’s sense. Following Azcárate’s words, ‘national
minority’ encompasses some or all of the characteristics of ‘religious, ethnic and
12
See more on the title ‘national or ethnic, religious and linguistic minority’ in Sect. 3.2.3.
13
Art. 21 (1) CFR.
14
Original emphasis. de Azcárate (1945), p. 4.
15
de Azcárate (1945), pp. 5–6.
16
Jules Deschênes (1985) Proposal Concerning a Definition of the Term “Minority” UN Doc.
E/CN.4/Sub.2/1985/31. For a short reproduction of the comments Deschênes received see paras.
19–28 Commission on Human Rights (1986) Compilation of Proposals Concerning the Definition
of the Term “Minority” UN Doc. E/CN.4/1987/WG.5/WP.1.
linguistic minorities’. Deschênes pointed out that while Capotorti includes national
in ethnic, the Council of Europe includes ethnic in national.17
It seems to make only little sense to distinguish national minorities from the
three other forms of minorities. The term ‘national’ seems to be an umbrella term.
Religion and language are two determinate characteristics that can be verified
easily. ‘National’, on the other hand, is of different character. It is not an indepen-
dent term like the others that can be analysed easily. A national minority exhibits at
least one of the three criteria of ethnicity, religion and language. There is no
prescribed balance of the three in order to qualify as a national minority. In other
words, a national minority covers many different kinds of minorities. A linguistic
minority can just as well be a national minority as a religious minority can be. A
minority that exhibits both linguistic and religious differences compared to the
majority can equally be a national minority. The term ‘national’ is an umbrella
covering the other minorities.
The term ‘national’ was frequently avoided in the international arena for many
years. The close relationship to the terms nation, nationality and nationalism has led
to it being viewed with caution by states lest it be used to open doors to further
demands of self-determination.18 Also, the use of the term ‘national minority’ has
in the European context allegedly shown a tendency to mean minorities with a
kin-state, meaning that the minority has a ‘mother state’ across the border,19 which
would exclude many groups that have always been a separate group within a state.
Only some declarations to the Framework Conventions support this view.20
A third point on the evasion of national minorities is the simple mix of terms in
the international arena. In Europe, the term ‘national minority’ is relatively well
established despite the lack of clarity. Outside of Europe and within the UN system,
though, the term has not been able to prevail over the terms ‘ethnic, linguistic and
religious minorities’. Furthermore, the terms peoples, indigenous peoples, tribal
peoples, nations and ethnic groups are added to the debate, so a universal under-
standing of each of these terms is non-existent.21
In my understanding a national minority is a minority that has distinct ethnic,
cultural, religious or linguistic characteristics. A kin-state may make the existence
of a national minority more likely but is no essential requirement. Likewise, I do not
17
Para. 101 Jules Deschênes (1985) Proposal Concerning a Definition of the Term “Minority” UN
Doc. E/CN.4/Sub.2/1985/31.
18
Freeman (1999), p. 365.
19
Valentine (2004), pp. 471–472.
20
Declarations regarding the applicability of the FC contain both minority with and without
kin-states. Slovenia recognizes only the kin-state minorities of Hungarians and Italians. Germany
also recognizes the Sorbs who do not have a kin-state. Similarly, Sweden applies the FC to both
groups of minorities. See the respective declarations as published in Committee of Ministers of the
Council of Europe (2000) Draft Protocol to the Framework Convention for the Protection of
National Minorities (on the Interpretation of the Convention) CoE Doc. CM Doc. CM(2000)133
rev., pp. 64–69.
21
See below in this chapter.
consider autonomist aspirations to be a necessary requirement for a national

minority to exist.22 The Federal Union of European Nationalities talks about
‘autochthonous’ minorities, which I understand as being close to my idea of
minorities living in their ancestral region and possibly having been or still being
a nation. The term ‘nation’ has gradually disappeared and I find it quite possible that
nations have become national minorities, considering that the characteristics are
much of the same. The term ‘nation’ is overloaded with confusion.23 Having been
regarded as a nation in history hints at a national minority; however, I do not think
there is an automatic link. The existence of a national minority must be determined
on an individual case basis.
8.1.2 The Nationality Requirement
The requirement of nationality is a disputed issue. In 1977, Capotorti was of the

opinion that the members of the minority have to be ‘nationals of the state’ while
Deschênes chooses ‘citizens of the state’. Capotorti has since changed his mind and
in his contribution to the Max Planck Encyclopaedia of International Law nation-
ality was dropped as part of the definition of a minority.24 Opinions remain divided
on this issue.25 The Framework Convention simply refers to ‘a person belonging to
a national minority’. The majority of countries included the nationality requirement
in their declarations to the Framework Convention.26 Other states did not attach a
nationality requirement.27 It has been suggested that the term ‘national minority’
means a minority made up of members with the nationality of the host-state.28 This
22
Gilbert (1996), p. 168.
23
See below in this chapter.
24
Capotorti (1997), p. 411.
25
Already at the First Session of the Commission on Human Rights (1947) Sub-Commission on
the Prevention of Discrimination and the Protection of Minorities – First Session UN Doc. E/CN.4/
52, there was no agreement on this issue. See ‘Sub-Commission on the Prevention’, E/CN.4/52,
pp. 13–14. See also Wright (1996), pp. 194–196. The Human Rights Committee finds that
protection of art. 27 ICCPR on minorities is not limited to citizens. See para. 5.1 Human Rights
Committee (1994) General Comment No. 23: The Rights of Minorities (Art. 27) UN Doc. CCPR/
C/21/Rev.1/Add.5.
26
See the declarations of Austria, Estonia, Germany, Latvia, Poland, Switzerland, Macedonia as
published in Framework Convention for the Protection of National Minorities (1998) As published
in Framework Convention for the Protection of National Minorities, Collected Texts, 4th ed.,
Council of Europe Publishing, Strasbourg, 2007, pp. 64–69. One should keep in mind that far from
all countries made any declarations at all.
27
See the declarations of Denmark, Netherlands, Sweden as published in Framework Convention
for the Protection of National Minorities (1998) As published in Framework Convention for the
Protection of National Minorities, Collected Texts, 4th ed., Council of Europe Publishing,
Strasbourg, 2007, pp. 65–68.
28
would cut the link between minorities and nations and nationalism and therewith
close for a number of potentially dangerous discussions for states. However, this
view has not been able to assert itself as the only view.
International law in general has the viewpoint that nationality decides on the
primary relationship an individual can have with a state. In Nottebohm, the Inter-
national Court of Justice applied a different approach in its 1955 judgement: the
‘genuine link’ approach. The effective tie to a state is the crucial factor which
decides that the state can take international responsibility for a person. Though
Friedrich Nottebohm assumed Liechtenstein nationality (and thus lost his German
nationality while having resided in Guatemala for over 30 years), the ICJ did not
find a real and effective tie between Nottebohm and the state of Liechtenstein that
could give Liechtenstein permission to act before the ICJ in this case. The ICJ
points out that if Nottebohm had a genuine link with any country, it was with
Guatemala where he had lived for a long time and also planned on staying.29
This approach of a ‘genuine link’ is echoed in the ICCPR. The Human Rights
Committee’s General Comment No. 27 on art. 12 ICCPR is concerned with the
freedom of movement. The comment points out that the ‘right to enter his own
country’ as stated in art. 12 (4) ICCPR has to be read broadly. It is not only a right of
those who have the nationality of the state in question but also those who ‘because
of his or her special ties to or claims in relations to a given country, cannot be
considered to be a mere alien.’30
Neither the Nottebohm Case nor art. 12 ICCPR are set in a minority context.
Nevertheless they can have effects for members of minorities. A person is always
protected by and under the responsibility of the state of his or her nationality. A
state cannot under international law renounce its responsibilities for its own
nationals. A person belonging to the Danish minority in Germany and being a
national of Denmark is not covered by the Framework Convention.31 This person
enjoys protection of the Danish state but placing this person also under the
responsibility of the German state could give rise to competing jurisdictions.32
A decision on jurisdiction would have to be made along the lines of Nottebohm.
The ‘genuine link’ is to a large degree a subjective factor. In Nottebohm, the Court
finds different factors important when considering the genuine link, all of whose
importance will vary from case to case: ‘the habitual residence of the individual
concerned, [. . .] centre of his interests, his family ties, his participation in public
life, attachment shown by him for a given country and inculcated in his children,
29
International Court of Justice (1955) Nottebohm Case (Second Phase) Judgement Second Phase
Nottebohm Case (Liechtenstein v. Guatemala), 06 April 1955: I.C.J. Reports 1955, pp. 4, at p. 26.
30
Para. 20 Human Rights Committee (1999) General Comment No. 27: Freedom of Movement
(Art. 12) UN Doc.CCPR/C/21/Rev.1/Add.9.
31
See the German Declaration speaking of ‘the Danes of German citizenship’. See Germany
(1995) German Declaration of 11 May 1995 http://conventions.coe.int/treaty/Commun/
ListeDeclarations.asp?NT¼148&CM¼1&DF¼&CL¼ENG&VL¼1. Accessed 06 May 2014.
32
One should note that a lot of human rights are universally applicable and not dependent on
nationality.
etc.’33 Decisions would have to be made on a case-to-case basis with a high danger
of incoherence. Depending on a number of subjective factors, the genuine link test
could also lead to jurisdiction shopping by the person seeking protection. For
members of kin-minorities—minorities having a ‘mother’ state in another coun-
try—the genuine link test is almost impossible to answer. A dual identity is a
regular occurrence in minorities. Though they may lean more to one side or the
other, a clear attachment to only one culture, tradition and state is impossible for
them.34
These are some of the reasons that speak against protecting minority members
that are not of one’s own nationality. The ‘genuine link’ approach simply does not
work well with minorities. This is valid at least for international treaties on minority
issues. In the second stance, one has to consider if minority members might be
entitled to a right not because of being a minority member but under human rights
treaties. One will also have to look at state practice. If the public administration in a
certain field were accustomed to servicing part of the public in the minority
language, it is unlikely it would refrain from doing so because the person in
question produced the wrong passport on demand. There can be a gap between
treaty protection and its implementation in real life.
Despite potential problems, the nationality requirement is only important in
some respect in relation to minorities. The Venice Commission notes that the
Advisory Committee to the Framework Convention differentiates between the
obligations to respect, protect and fulfil. States have an obligation to respect
the freedoms of the Framework Convention regardless of nationality and similarly
the protection against discrimination because of membership of a minority is to be
extended to non-citizens. The obligation to fulfil is another matter. Proactive
measures in favour of persons of another nationality is far from clear.35
There has been a movement away from the nationality requirement. Deschénes
and Rec. 1201 of the CoE Parliamentary Assembly include the nationality require-
ment. Some states still include it in their declarations to the Framework Conven-
tion. The Venice Commission also thought the nationality requirement was
necessary for a number of years.36 It was only in later years that a rethinking took
place. While art. 27 ICCPR never mentioned nationality and the Human Rights
Committee later explicitly stated that art. 27 ICCPR is applicable to non-citizens,
33
Nottebohm Case (Liechtenstein v. Guatemala), 06 April 1955: I.C.J. Reports 1955, pp. 4, at p. 22.
34
Pedersen (2000), p. 333. For young minority members’ opinions see Jung, F (2005): Das beste
Beispiel für das was Europa mal werden soll, Tageblatt, p. 7 Flensburger and Jung, F (2005): Der
weite Horizont ist unser grösstes Plus, Tageblatt, p. 7, Flensburger. See also EURAC (2007):
Kompetenzanalyse: Minderheiten als Standortfaktor in der deutsch-dänischen Grenzregion,
Europäische Akademie, Bozen-Bolzano, pp. 49.
35
Paras. 38–41 European Commission for Democracy Through Law (2007) Report on
36
Paras. 73–74 European Commission for Democracy Through Law (2007) Report on
Capotorti’s definition at the time did mention it but he has dropped it since. Both
within the Council of Europe and the OSCE, the focus has shifted away from
nationality and it is not regarded as decisive in the area of minority rights.37
8.1.3 Characteristics and Recognition of Minorities
A minority is defined by being different from the majority. Capotorti looks for the
characteristics in the individual members of the group while Deschênes looks at the
group as a whole. Azcárate is quiet on this issue, but generally talks about the
minority as such and never mentions the individual in this context.
The difference is important in several respects. The group dimension strengthens
the idea of collective rights and also strengthens the group as a subject. Focusing on
the group, new issues such as the one about representation emerge. Who represents
the group; are they appointed or elected; do they have a stable basis within the
group?
The individual approach is more in line with the prevalent approach in human
rights focusing on the individual. Concerning the substantive rights, an individual
applicability is straight forward. Concerning the characteristics it is a different
issue. Individual members may display their characteristics more or less pro-
foundly. It would go too far to accord differentiated protection within the group
according to their display of characteristics.
As minority rights are declared to have a strong collective dimension, it would
only seem consistent to focus on group characteristics instead of examining the
characteristics of the individual member. Following Deschênes, it is not necessary
to pinpoint exactly where in the group the ethnic, linguistic or religious character-
istics can be found. The best solution might be to look at both levels to verify that
the characteristics which the minority displays to the outside world are mirrored
within the minority.
Another point is connected to my term ‘display’ the characteristics of minorities.
It serves to embrace all three definitions, because they deal with these characteris-
tics in profoundly different ways. Capotorti uses the term ‘possess’, Deschênes uses
‘endowed’ and Azcárate uses ‘existence . . . accompanied with.’ Azcárate’s is
clearly the most neutral. ‘Possess’ and ‘endowed with’ have slightly different
meanings. ‘Possess’ is a word meaning ‘to experience as one’s own.’ It is a
synonym for own, hold, seize, control.38 It is the group itself who has the power
to possess. ‘Endowed with’ on the other hand has an outside dimension. Instead of
37
Paras. 71 & 85 European Commission for Democracy Through Law (2007) Report on
38
Merriam-Webster (2014) Possess. http://www.merriam-webster.com/thesaurus/possess.
endowed, one can use award, donate, bestow or bequeath.39 It is clearly something
that is conveyed to the group by an outsider. In case of minorities, that would
ultimately be the state. What can be endowed, can also be withheld.
This raises the issue if recognition by the state is compulsory for the existence of
a minority. As van der Stoel said, the existence of a minority is a matter of fact.
Following this argument, recognition by the outside world can have no influence on
the existence. The contradiction inherent in the doctrine of recognition is its
theoretical needlessness and practical necessity. Neither states nor minorities
need recognition to exist. For the state, the Montevideo characteristics40 are enough
and in relation to minorities, making the existence of a minority dependent on the
recognition of the state within which the minority exists leaves the state too much
room to simply deny the existence of minorities in its territory. Indeed, this is the
main reason why recognition as a minority is not essential for its existence.41
Legally, recognition does not change the status; this was already recognized in
the late nineteenth century.42 Nevertheless, even though recognition is not a
prerequisite for a minority to exist, it is one of the most important issues in
connection with minority rights. Minorities do not benefit from minority rights if
the state they reside in does not recognize them.
8.1.4 Subjective Factors
The next part of the definitions concerns the subjective feeling of being a minority.
For Azcárate it is one of the main features of a minority and both Capotorti and
Deschênes also rank this highly. They all speak of solidarity and of a sense of
community. It makes little sense to give special rights to a group of people who do
not even feel like a group. Thus, a minority only exists when the objective and
subjective factors are present.
39
Merriam-Webster (2014) Endow. http://www.merriam-webster.com/thesaurus/endowed.
40
Art. 1 Montevideo Convention (1933) As published in 165 League of Nations Treaty Series, 19.
41
See also Permanent Court of International Justice (1930) Greco-Bulgarian Communities Advi-
sory Opinion The Greco Bulgarian Communities, 31 July 1930: P.C.I.J. Series B. No. 17, p. 22;
paras. 204–205 Francesco Capotorti (1991) Study on the Rights of Persons Belonging to Ethnic,
Religious and Linguistic Minorities, United Nations, New York, 1991; para. 5.2 Human Rights
Committee (1994) General Comment No. 23: The Rights of Minorities (Art. 27) UN Doc. CCPR/
C/21/Rev.1/Add.5. In practice, recognition remains problematic. For a summary see Dimitras, P
(2004): Recognition of Minorities in Europe: Protecting Rights and Dignity, Minority Rights
Group International, London, pp. 4–7.
42
Lorimer (1883), p. 106.
Membership issues can be delicate. The Copenhagen Document says member-

ship of minorities is decided by choice.43 Once one has decided to be a member and
fulfils the objective criteria,44 this person can enjoy the rights stipulated for that
minority. The Framework Convention is suspiciously quiet on membership issues;
it simply skips the first step of determining who can be a member. It directly awards
substantive rights; one of them being the right to be treated or not to be treated as a
member of a minority in art. 3 (2) FCNM.
Membership can be imposed by outside perception when the outside world
perceives someone to be part of a group or a minority even though the person itself
does not associate him- or herself with the group. This is often based on external
features such as ethnicity. Determining group membership by the outside would
open for extensive abuse by those in power such as governments and is thus not
accepted under international law.
Going back to the three definitions and what they say about the subjective factor,
all three authors attach a ‘time-link’ and ‘threat-link’ to the subjective factor of
solidarity. Capotorti uses the term ‘preserve’. The minority must have the intention
to continue its existence. At the same time preserving also means that if nothing is
actively done, the minority will at some point cease to exist. There is a latent threat
of dissolution. This is more obvious in Deschênes’ definition who talks of ‘a
collective will to survive.’ Here again, both the time and the threat dimension are
clear. Even more explicit is Azcárate when he speaks of the ‘internal solidarity in
the past, present and future’ and of a ‘latent feeling of opposition.’ Deschênes
combines the will to survive with another factor and thus advocates a higher
threshold. Minorities must have the ‘aim to achieve equality with the majority in
fact and law.’ While the Capotorti minorities only want to preserve their own
culture and traditions, the Deschênes minorities have to strive for equality.
The time element that Capotorti, Deschênes and Azcárate all integrate into their
definitions excludes for example newly founded religious sects from seeking
minority protection. History is a very important element for a minority. It must
have a long-term presence in the territory. Migrant workers, refugees and other
foreigners who are only in the territory on a temporary basis are excluded from
minority rights. The point of time when migrant workers and immigrants become
minorities is a matter of discussion. Alfredsson propagates a useful yardstick:
43
Para. (32) CSCE (1990) Copenhagen Document http://www.osce.org/odihr/elections/14304.
Accessed 06 May 2014. See also Committee on the Elimination of Racial Discrimination (1990)
General Recommendations No. 8: Identification with a Particular Racial or Ethnic Group (Art.
1, par. 1& 4) UN Doc. CERD General Recommendation No. 8.
44
The FC stresses the importance of the subjective and objective criteria, so that nobody can
arbitrarily choose to belong to a minority. See para. 35 Denmark (1999) Report Submitted by
Denmark Pursuant to Article 25, Paragraph 1 of the Framework Convention on the Protection of
National Minorities CoE Doc. ACFC/SR(1999)009.
[W]hen the individuals concerned identify more closely with the new territory or country
(where they live now) than the old territory or country (where their parents or grandparents
came from).45
This would amount to a generation or two and is considerably less than the
100 years that others have put forward as a time-frame.46
8.1.5 Detecting Minorities via Historical Threats
The view that minorities are often threatened has led Thomas Simon to advocate a
definition based on the degree of harm that is done to a group. Simon looks at
history: ‘The historical record of oppression unleashed by dominant groups locates
minorities.’47 Simon discards Capotorti’s definition on almost all points Capotorti
sets forth.48 Instead, he propagates an approach based on historical harm. If a group
is harmed because of a certain characteristic (for example a different religion), this
is the character that is worthy of protection49; or in a wider sense, the characteristics
that lead to harm define a minority worthy of protection.
Historical oppression might be a valuable indicator. However, minority and
majority may live peacefully side by side in the present and extensive minority
protection might lead to a sharper distinction of the two groups than is necessary or
even wanted. Simon bases his argument on the statement that minority rights are
about protection. Therefore, it is not a matter of defining a minority and then
protecting it in case of harm but a matter of protecting a harmed group with
minority rights. The aim is noble—everyone who is harmed should be protected.
However, minority rights are hardly the adequate means for all groups. On the other
hand, it can hardly be denied that those harmed need protection.50 An empirical
approach to past and present group harms should, according to Simon, lead us to
minorities.
Simon’s approach leaves a lot of open questions, some of them inherent in
international law. Who decides when a group is harmed because of being a
group? What about the state’s monopoly on the use of force? Simon looks towards
physical violence, but a minority can be oppressed by many other means such as
banning the use of the language or discrimination in election laws.
45
Alfredsson (2005), p. 167.
46
47
Simon (1997), p. 511.
48
Simon lists the following problems with Capotorti’s definition: lack of precision, under-
inclusive, over-inclusive, subjective factors, objective factors and a numerical problem. For a
detailed account see Simon (1997), pp. 513–517.
49
Simon (1997), p. 515.
50
Alfredsson agrees on this point with Simon. See Alfredsson (2005), p. 168.
Despite the shortcomings, Simon’s approach is worthwhile probing. Erica-Irene

Daes links the threat and discrimination when she takes a similar approach declar-
ing that the ‘ideal type of a minority is a group that has experienced exclusion and
discrimination.’51 Based on this injustice, minority rights are installed and have a
purpose. Minority rights are often conceived as conflict prevention because they
prevent the discrimination of either the group or the members of the group, in this
case the minority.
One aspect that is not part of any of the definitions discussed but that was part of a
minority discussion in 1947 is the issue of allegiance to the state. The
Sub-Commission on Minorities states explicitly: ‘In order to qualify for protection
a minority must owe undivided allegiance to the Government of the State in which
it lives.’52 This is unmistakably a duty of the minority; and it is a duty that should
soothe the state. These words strongly imply that minorities are not allowed to think
of any external solutions to their situation.
This duty has not been forgotten. It creates a quid pro quo situation. The state
protects the minority and in return the minority will not aspire anything that disrupts
the state. There are strong similarities within the Friendly Relations Declaration
which has a similar safeguard.53 Curiously enough, this duty is not emphasised to
such a degree as would seem possible. Art. 20 FCNM only includes the duty to
respect national legislation. The German minority in Denmark has acted in this
field. The General Principles (Leitbild) of the German minority in Denmark explic-
itly include the provision on the minority’s loyalty towards the state and the
constitution of Denmark.54
The definitions of Azcárate, Capotorti and Deschênes all use—in different
degrees—the same ingredients to form a minority. All three, though, simply point
to the same things that the Permanent Court of International Justice focused on in
the Greco-Bulgarian Communities Case.55 Even though there seems to be an
overall agreement on the relevant elements for a minority, there are still open
questions as to their balance and interaction. There are no definitive answers to
51
52
Commission on Human Rights (1947) Sub-Commission on the Prevention of Discrimination
and the Protection of Minorities – First Session UN Doc. E/CN.4/52, p. 13.
53
See Sect. 3.2.3.
54
Bund Deutscher Nordschleswiger (1993) Leitbild der Deutschen Minderheit. http://www.
nordschleswig.dk/SEEEMS/395.asp. Accessed 31 May 2010.
55
Permanent Court of International Justice (1930) Greco-Bulgarian Communities Advisory Opin-
ion The Greco Bulgarian Communities, 31 July 1930: P.C.I.J. Series B. No. 17, p. 33.
the question on the correlation between the objective and the subjective factors.
Similarly, the inclusion of non-nationals in a national minority definition is unclear.
There are questions regarding the numbers: on the necessity of a numerical ratio
between the majority and minority and the question whether a minority needs to
have a minimum size. There are no general answers.
Despite the advantages of not having a binding definition, I find it puzzling that
the international community has not been able to agree on a binding definition;
especially since a somewhat vague definition would most probably be accepted as
well. The definitions from 1930 (PCIJ), 1945 (Azcárate), 1977 (Capotorti) and 1985
(Deschênes) all fundamentally agree on the constitutive factors of a minority, as do
most of the other definitions proposed over time.56 Thus, even after more than
75 years of discussion, the most ample conclusion on the concept ‘minority’ might
be one proposed by Tennent Bagley in 1950, who said that the minority concept’s
‘primary characteristics are its imprecision and vagueness and breadth of scope.’57
There is a simple way to end this discussion—though it opens up another one. In
1974, it was suggested to discard with the term minority entirely. The suggested
alternative spoke of ‘national, ethnic, religious, cultural, linguistic and tribal
groups.’58 Whether this would have spared us any discussions is questionable.
Many characteristics would still be debatable and mixing what we today call
minorities with tribal and indigenous peoples into the same term seems to open
up for a number of problems of their own.59 Overall, international law meets its
limits on the issue of a definition. If there lacks political will, proposals of clear
definitions stand little chance.
8.2 Minority, People, Nation
It seems that hardly anyone is keen on defining legally binding concepts related to
minorities, peoples and indigenous peoples. There are, however, working defini-
tions in many areas. It would go too far to analyse the details of the proposed
definitions of nations and peoples at this point. In this case it will suffice to look at
the differences and similarities they display when compared to minorities. Both
nations and peoples are different from minorities yet they also seem to be the same.
56
In order to compare proposed definitions for the term ‘minority’ between 1919 and 1985 see
Commission on Human Rights (1986) Compilation of Proposals Concerning the Definition of the
Term “Minority” UN Doc. E/CN.4/1987/WG.5/WP.1.
57
Bagley (1950), p. 9.
58
UN Doc. ST/TAO/HR/49 as quoted in: Lerner (2003), p. 10.
59
For more about other the proposed alternative terms such as ‘communality’, ‘community’,
‘social group’ and ‘natural class’ see Lerner (2003), pp. 34–36.
8.2 Minority, People, Nation 175
8.2.1 Indigenous Peoples
Regarding indigenous peoples, a working definition has found the widest accep-
tance.60 Tribal and indigenous peoples show two main and decisive differences
compared to minorities. A crucial element in their definition is their original
habitation of the land. This also applies to nomadic tribal peoples who only
seasonally depend on a specific territory. Besides this extended time requirement,
both tribal and indigenous peoples rely on their land for their way of living. This
includes land for herding and hunting and fishing grounds. Also, the use of land for
agricultural use is often seen with tribal and indigenous peoples. In addition, these
peoples have their own codices and traditions and have autonomy over their own
membership. Members of indigenous peoples usually have a stronger indigenous
identity and keep somewhat separate from the common life of the majority.61
Though indigenous peoples seem to meet a few more requirements than minor-
ities and therefore may claim some farther-reaching rights, there is nothing to stop
them from claiming minority rights.62 For this reason, making the Framework
Convention applicable to the Sami in Sweden is not problematic. Minorities do
not have the same possibility—they cannot claim indigenous rights, so rights only
overlap in one direction. On the other hand there have been movements to accord
minorities rights over the natural resources in the territory where they ‘normally
reside’.63
To make things more complicated, the United Nations does not use the term
tribal peoples and Alfredsson thinks it likely they would be classified as minori-
ties.64 This shows how difficult it is to speak on the same level on a global scale. Not
60
Cobo Martinez (1986) Study of the Problem of Discrimination against Indigenous Populations
UN Doc. ECN.4/Sub.2/1986/7/Add.4.
61
62
Peoples UN Doc. E/CN.4/Sub.2/2000/10. See also para. 17 Working Group on Minorities (2005)
Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights
of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities UN Doc. E/CN.4/
Sub.2/AC.5/2005/2.
63
Minority Rights Group (1991): Minority Rights in Europe – Policies and Practices in CSCE
Participating Countries, Minority Rights Group International, London, p. 11. On a possible overlap
see the Human Rights Committee which speaks of ‘members of indigenous communities consti-
tuting a minority.’ See para. 3.2 Human Rights Committee (1994) General Comment No. 23: The
Rights of Minorities (Art. 27) UN Doc. CCPR/C/21/Rev.1/Add.5. See also para. 50 Erika-Irene
Daes and Asbjørn Eide (2000) Working Paper on the Relationship and Distinction Between the
Rights of Persons Belonging to Minorities and Those of Indigenous Peoples UN Doc. E/CN.4/
Sub.2/2000/10.
64
Alfredsson (2005), p. 169. For more on the different views of groups, minorities and the term
national see also Wright (1996), p. 194.
only is it impossible to find a definition, but also when it is almost found, it is

applied and interpreted differently.
Asbjørn Eide characterizes minority rights as individual rights while the rights of
indigenous peoples are collective rights.65 While minority rights aim at inclusion
of minorities in the larger society without them losing their otherness, the rights of
indigenous peoples aim at autonomous development.66 The very idea of two sets of
rights is thus different. Erica-Irene Daes agrees on this; however, she also points out
that there will always be overlaps between the two groups.67 It would seem that a
group on this threshold should decide what its aims are and then decide on how it
defines itself. It the group opts for inclusion in society though linked to special
rights, it should define itself as a minority. If it aims for some form of self-
government it should define itself as an indigenous people. It will depend on the
state government which effects this self-definition has, but categorization issues
seem arbitrary to me.
8.2.2 Peoples
The term ‘peoples’ has a wider scope than tribal or indigenous peoples. It was
peoples that were granted the right to self-determination in the context of
decolonisation. Practice there showed that ‘peoples’ is understood to be the popu-
lation of a fixed territory. It is not important whether there are different ethnic
groups or cultural differences within the population. This is contradictory to Res.
1541 that speaks of ‘a territory and its peoples.’ Quite apparently, several peoples
can exist within the boundaries of a given territory. In reverse one needs to conclude
that a territory does not automatically imply one people only. This territorial
approach is fundamentally different from the definition of minorities and also
indigenous peoples. There, the focus is on the group composition and on the
common characteristics of the members. In the decolonization context, the
approach of one colony, one people was nevertheless applied. On the basis of uti
possidetis, it was later easier to argue for self-determination of the colonies as such
but deny external self-determination to the different groups within the new sover-
eign states.
65
66
67
Paras. 41 & 43 Erika-Irene Daes and Asbjørn Eide (2000) Working Paper on the Relationship
and Distinction Between the Rights of Persons Belonging to Minorities and Those of Indigenous
Outside of the decolonisation context, it has been difficult to define peoples

differently from minorities. Under UNESCO’s tutelage, an International Meeting of
Experts on Further Study of the Concept of the Rights of Peoples took place in
1989. The final report lists seven characteristics that are “inherent in a description
(but not a definition) of a ‘people.’”68 The words speak a clear language of avoiding
a definition at all costs. According to this list, a ‘people’ enjoys some or all of the
following common features: a common historical tradition, racial or ethnic identity,
cultural homogeneity, linguistic unity, religious or ideological affinity, territorial
connection and common economic life. The report goes on to call for ‘a certain
number which need not be large . . . but which must be more than a mere association
of individuals within the state.’ Also, a subjective factor is added: ‘the group as a
whole must have the will to be identified as a people or the consciousness of being a
people.’ Lastly, it is regarded possible, that a people ‘must have institutions or other
means of expressing its common characteristics and will for identity.’69
As Jane Wright has rightly pointed out, ‘it is difficult to think of a minority
which does not fulfil most of the criteria.’70 She concedes that elements such as the
‘common economic life’ may be difficult to display for minorities. However, the
report is also satisfied that it deals with peoples when only some of the features are
displayed. Wright argues that peoples and minorities are divided into two categories
because of political reasons; mainly because self-determination is often equated
with secession.71 Wright stands almost alone with her opinion. The overwhelming
majority of scholars concerned with self-determination and minorities denies
minorities a right to self-determination exactly because they do not fit the definition
of a people.72
Despite this aversion to discuss a characteristics approach to peoples, the two
concepts of peoples and minorities are closely linked. The overlap becomes clear
when looking at the secessionist movement in Nigeria in the late 1960s. After
Nigerian independence, the Ibo tribe sought and declared its independence as
Biafra. The following civil war was won by government forces and the question
of whether the Ibos constituted not only a minority but a people became inconse-
quential.73 Not so for the international lawyer who concludes: “The moot point
remains that the Biafrans would have been a ‘people’ had they won the civil war
against the Nigerian army.”74 What is the lesson to be learned? Apparently, if you
as a minority are strong and powerful enough you can be a people.
68
69
70
Wright (1999), p. 627.
71
Wright (1999), p. 627.
72
Castellino (2000), pp. 64–66; Thornberry (1989), p. 881.
73
Castellino (2000), pp. 69–70.
74
Already in the Post World War I era, the terms were used without much
distinction. Karl Josef Partsch lists five usages of the term ‘peoples’. There could
be peoples living as a minority or a majority in a state ruled by another people.
Noteworthy here is that this implies a recognition that more than one people can
live within a state. At other times, ‘peoples’ could describe a minority living in
another state. Thirdly, Partsch mentions kin-minorities. A fourth usage concerns
‘peoples’ as peoples or nations dispersed in different states. A last understanding of
the term ‘peoples’ regards peoples living as a majority or minority inside a territory
with a special status under foreign domination.75
The UN Working Group on Minorities adds to the confusion. In its commentary
on the UN Minority Declaration it openly states that individuals belonging to an
ethnic or national group may seek protection under minority rights. These same
individuals may, when acting as a group, make claims based on the right to self-
determination.76 Seemingly, individuals can belong both to minorities and peoples
at the same time; but the group this person belongs to will remain the same group.
Consequently, the group surrounding this individual qualifies both for minority and
people. Even if the claims under minority rights and self-determination are made in
different contexts, I find it difficult to justify the different status of the group in
question.
The international community took the easy way out in the era of decolonization
even if the situation was not that simple. It is increasingly difficult to justify a
difference between peoples and minorities. International law meets its limits on this
question. Peoples and minorities have different rights—namely peoples have a right
to self-determination. Keeping these two groups apart is most probably done for
political reasons.
8.2.3 Nations as a Link
Woodrow Wilson introduced the principle of self-determination for nations. It then

became a right of peoples in de-colonization. What development took place?
Alfredsson gives a simple answer: ‘nation’ was too ethnically loaded and for all
practical purposes in the United Nations, it was replaced by the term ‘peoples.’77
Both terms depict the exact same group of persons. So it is no longer a matter of
national self-determination but a people’s right to self-determination.
Alfredsson’s explanation seems too easy and indeed there is more to it. When
Capotorti in the 1970s tried to reach agreement on a definition, he received a
75
Partsch (1982), p. 63.
76
Para. 15 Working Group on Minorities (2005) Commentary of the Working Group on Minorities
to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities UN Doc. E/CN.4/Sub.2/AC.5/2005/2.
77
comment by the Soviet Union saying that there were no minorities as defined by
Capotorti in its territory. In the Soviet Union, they only referred to ‘nations’ and
‘nationalities.’ At the time the term ‘nationalities’ was also being used in Yugosla-
via. It covered the same groups of people as the term ‘minorities’ in other countries.
In Romania, the term minority was substituted with the term ‘co-inhabiting nation-
ality.’78 So while the Soviet Union, Romania as well as Yugoslavia used the same
term, they did not attach the same meaning to the word.79 The word ‘nationality’
carries two quite different meanings. In the West generally, it involves citizenship
in a state; in Eastern Europe and many other regions, it implies an ethnic bond. This
difference is fundamental to the problem of minorities, and arises through a series
of historical developments.80
Originally, the Latin word nation means origin or membership of a community,
a relationship with a community one was born into.81 The term ‘nation’ underwent
several changes in understandings over time which explains the confusion that still
exists today.82
A key problem regarding definitions comes with the nature of international law.
Being international, the terms and concepts exist in numerous languages around the
globe. The variety of words within a language poses a problem in this context. The
German word Volk is translated both into nation and people.83 Respectively, the
Danish word folk is also translated into nation and people.84 This adds to the
confusion that people and nations should be the same. Reading the UN-Charter,
one continues to wonder. Art. 1 (2) declares one of the UN goals to be ‘to develop
friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples.’85 The UN Secretariat states that ‘nation’ is a
term including colonies, mandates, protectorates and quasi-states as well as states.
Nation is used in the sense of all political entities. ‘Peoples’, on the other hand,
78
79
For more on the terms referred to in the context of minorities see also European Commission for
Democracy Through Law, Commission on Human Rights (1947) Sub-Commission on the Pre-
vention of Discrimination and the Protection of Minorities – First Session UN Doc. E/CN.4/52,
pp. 46–47.
80
Bagley (1950), p. 10.
81
Para. 12 Committee on Legal Affairs and Human Rights (2005) The Concept of Nation CoE
Doc. PACE Doc. 10762.
82
For a tracing of the meanings of the term ‘nation’ see paras. 10–27 Committee on Legal Affairs
and Human Rights (2005) The Concept of Nation CoE Doc. PACE Doc. 10762.
83
Volk. http://dict.leo.org/ende?lp¼ende&lang¼de&searchLoc¼0&cmpType¼relaxed&sectHdr¼
on&spellToler¼on&chinese¼both&pinyin¼diacritic&search¼volk&relink¼on. Accessed 06 May
2014. See also Volk. http://www.wordreference.com/deen/volk. Accessed 06 May 2014.
84
Folk. http://www.ordbogen.com/opslag.php?word¼folk&dict¼auto#daen. Accessed 06 May
2014. See also Folk. http://ordbog.gyldendal.dk/sitecore/content/Ordbog/Home/Opslag/Resultat.
aspx?q¼folk&lcode¼DAEN&pos¼sb.&lemdesc¼befolkning&cq¼folk&cpos¼sb.&clemdesc¼
befolkning. Accessed 06 May 2014.
85
My emphasis.
‘refers to groups of human beings who may or may not comprise States or
nations.’86 ‘Peoples’ is thus the broader term covering nations.87
The Parliamentary Assembly of the Council of Europe has discussed the concept
of a nation at length based on a report of the Committee on Legal Affairs and
Human Rights. The result is, in short, that it is impossible to find a common
definition of ‘nation’.88 Sometimes, ‘nation’ depicts the citizenship while at other
times the term describes an ethno-cultural community. Its link to political ideolo-
gies also remains problematic.89 The rapporteur concludes that the definition of
‘nation’ should be flexible.90 I disagree in so far as this term muddies the waters and
complicates the relations between minorities and peoples. While I recognize that is
may be extremely difficult to find a common definition, I think it is the more
important to precisely map the uses of ‘nation’ in order to reach a better
understanding.
‘Nation’ remains problematic. It has a difficult relationship with ‘peoples.’
Similarly, ‘nations’ and ‘states’ cannot necessarily be equated. The notion of a
nation-state is confusing as it refers to one nation becoming a state.91 To believe
that every state is a nation is likewise confusing. China is a state made up of
56 different nations. The Bretons and the Sorbs are examples of stateless nations.
The term ‘nation’ is used in many contexts but without a clear understanding.
Developing an understanding of the relations between nations, peoples and
minorities, I would argue the following: The existing nations, be it the As, the Bs
and the Cs, should develop friendly relations amongst each other. At the same time,
the inhabitants of states A, B and C need to be heard, because they are the peoples
enjoying self-determination. To clarify, the inhabitants of A-State and the As will
overlap to a large degree, but there may also be A-persons in C-State who belong to
the A-nation.
On the other hand, there may be the case of a nation-state where there is truly
only one nation in the state. Here, nation and people depict the exact same group of
human beings. Where there are several nations in one state, a nation can also be a
minority. China again serves as a good example. The Han-Chinese are only one of
the 56 nations recognized in the China. However, they accord for over 90 % of the
86
UNCIO Docs, Vol. XVIII, pp. 657–658 as quoted in Thornberry (1991), p. 871.
87
‘Peoples’ also covers states and groups of human beings who are neither state nor nation. Sureda
(1973), p. 100.
88
Para. 3 Committee on Legal Affairs and Human Rights (2005) The Concept of Nation CoE Doc.
PACE Doc. 10762. The draft recommendation of the Committee was later adopted by the
Parliamentary Assembly (2006) Recommendation 1735 (2006) on the Concept of Nation CoE
Doc. PACE Rec. 1735 (2006).
89
Paras. 4–5 Committee on Legal Affairs and Human Rights (2005) The Concept of Nation CoE
90
Para. 27 Committee on Legal Affairs and Human Rights (2005) The Concept of Nation CoE
91
Schmidt (1995).
population and are the group in power. The remaining 55 nations vary considerably
in size and are often also described as ethnic minorities.
Conclusion
Defining a minority is a complicated matter. Many issues are still unclear,
though not many concerned with minority rights seem to mind. It is difficult
to distinguish the terms national, ethnic, linguistic and religious minorities
from each other. Most often, the minority in question displays several differ-
ent characteristics. There is certainly one very big advantage when minorities
are not defined too closely: the monitoring mechanisms of the different
treaties have a large margin of appreciation when detecting minorities. On
the other hand, this can leave a group in an unclear position as to whether it
qualifies for minority rights or not.
Indigenous peoples are both well-defined and have achieved a consider-
able level of attention for their causes. Within the UN-system, the Permanent
Forum on Indigenous Issues has a cross-sectoral mandate to coordinate the
UN’s activities related to indigenous issues and to provide recommendations
on indigenous issues throughout the UN-system, thus making sure that all UN
proceedings take indigenous issues into account. Indigenous people can be
said to have the strongest position of the groups discussed in this chapter.
Peoples are a whole different case. They have the most far-reaching rights
in terms of autonomy and self-government as they have a clearly articulated
right to self-determination. This is a true group right as the right to self-
determination can only be availed of by a group. On the other hand, peoples
do not figure as recipients of detailed rights such as the right to administer
one’s own schools in international treaties.
Nations seem to take an intermediate position linking all concepts and
letting them overlap. As the approach used towards the definition of peoples
during decolonization is difficult to justify at a closer look, the house of cards
that keeps peoples separate is threatened by strong winds. Armin von
Bogdandy and Stefan Häußler explain there are at least three current under-
standing of the term ‘nation’: state, people and national minority.92
In short, the concepts of minorities, peoples and nations are closely related
and it can even be impossible to distinguish the groups. Peoples were
separated during decolonization even though that was not consistent with
General Assembly resolutions. This separation is increasingly difficult to
uphold. When external self-determination is not an issue or only an absolute
last resort, there is no reason why the territorial approach to defining a people
should keep its questionable validity. The group characteristics approach is
much closer to the real situation and deserves to be taken seriously.
92
von Bogdandy and Häußler (2008), para. 2.
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Chapter 9
Understanding Self-Determination
Associating minorities with self-determination invites criticism. It also means

taking on a number of conceptual issues. In order to discuss a possible link, the
basis is laid in a historical review before tackling the conceptual issues that self-
determination faces. Self-determination has been endowed with meanings, has been
interpreted and possibly misinterpreted for decades. This chapter offers the under-
standing of self-determination that is used in this project.
9.1 The Historical Perspective
The idea of self-determination was not unknown when Wilson introduced it in

1914.1 Therefore, a chronological account must start earlier.2 Self-determination
was clearly present already in the American as well as the French revolution that
showed that people sought independence and freedom from heteronomy. These are
possibly the two most prominent examples of self-determination from a European
perspective. They exemplify the two dimensions of self-determination that we
today call external and internal self-determination. The Americans fought for
their independence from a state—the British Empire. The French people fought
for more self-determination and changes within the system. The labels internal and
external were introduced much later, but the American Revolution is an example of
1
The term ‘self-determination’ does actually not appear in the Fourteen Points which are often
cited as the entrance of self-determination into the international arena. See Pomerance (1976),
pp. 1–2.
2
Thomas Franck goes as far back as pre-Christian times to find the ideas that later came to be the
basis for self-determination. I restrict myself to modern times. See Franck (1992), p. 53. Kalana
Senaratne has criticized the Western ethnocentrism of the generally accepted concept of self-
determination. See Senaratne (2013b).

DOI 10.1007/978-3-319-08876-1_9
186 9 Understanding Self-Determination
a fight for external self-determination while the French Revolution is an example of

claiming internal self-determination.
9.1.1 The Nineteenth Century
The nineteenth century witnessed the emergence of new states in Europe. The Great
Powers in Europe3 at the time dictated the conditions under which a state could
become independent. Stephen Krasner notes, ‘there is no example [. . .] of a Balkan
state where domestic actors were able to choose their own fate completely.’4
When Greece became independent from the Ottoman Empire in 1832, several
treaties concerning the constitutional structure and policies were drawn up by the
Great Powers. They chose the kings they thought suitable as Greek heads of state
and insisted that Greece take a tolerant approach towards religion. The Greeks and
the Ottoman Empire were simply asked to accept the treaties.5 The constitutional
structure of Bulgaria was decided at the Congress of Berlin in 1878, where no
Bulgarians took part.6 Serbia, Montenegro and Albania all had to accept constraints
on their sovereignty. The right to self-determination had not yet been proclaimed.
Nevertheless, the process of seceding from a larger state as the Balkan states did
from the Ottoman Empire is for the modern reader the exercise of external self-
determination.
Different examples of self-determination come to mind. Italy was united after
plebiscites had been held in all the realms. Even though this seems to be a true
example of free self-determination, the Great Powers were involved and especially
France gained territory in exchange of supporting the ousting of Austria from what
today is Northern Italy.7 Belgium’s claim to independence received the support of
France and Britain on the condition of Belgium’s neutrality.8 Nothing in Europe at
the time happened without the—implicit or explicit—consent of the Great Powers.
Under this headline, it becomes all the more interesting to observe that the new
states came into existence after agreeing to different conditions. The European
Communities did something that seems similar in the early 1990s. The Guidelines
for the Recognition of New States in Eastern Europe and in the Soviet Union make
3
Those referred to as the Great Powers are France, Great Britain, Prussia, Austria and Russia. In
changing alliances their foremost goal was the maintenance of a balance of power between
themselves. They did not always all engage on a specific issue, but largely nothing went on in
the Europe of the nineteenth century without some kind of involvement of one or some of these
states.
4
Krasner (1999), p. 155.
5
Krasner (1999), pp. 157–159.
6
Krasner (1999), p. 165.
7
See Wambaugh (1920), pp. 58–101, esp. p. 65. For more details on European influence on Italian
unification see Hearder (1990), pp. 178–197.
8
Scheltema (1999), p. 771.
9.1 The Historical Perspective 187
recognition conditional upon several aspects, the most important here being in the
respect of the UN Charter, the Final Act of Helsinki and the Charter of Paris. These
are only guidelines and recognition is done by states and not by the Communities.
Nevertheless, it is the same pattern: the powerful states dictate the conditions for the
factual independence of new states. Recognition is no essential element of existing
as a state, but without recognition the capability of acting is restricted. Self-
determination had its limits in the nineteenth century and it also has it today.
Support on the worldview of the time can be found in the two volumes on the
Institutes of the Law of Nations by Scotsman James Lorimer. Published in 1883/
1884, the volumes offer an insight into a legal scholar’s mind of the time.9 Lorimer
starts his analysis with the recognition of nations in the civilized, barbarous and
savage worlds. While Eastern Europe of the nineteenth century cannot be argued to
be savage and not even barbarous in Lorimer’s terms, he nevertheless develops a
hierarchy according to level of civilization. Depending on the degree of civilization,
he recognizes or withholds rights for the entities.
Before embarking on the division of the world, Lorimer submits the question
whether each civilization should not be measured by its own standards, likening the
application of Western European standards to Mongolian politics to the task of
construing Chinese by Romanic grammar rules.10 This debate on the existence of
universalism is still ongoing.
Lorimer finds an answer to this submission: the laws of recognition only apply
selectively. He finds three concentric zones in humanity: civilized humanity,
barbarous humanity and savage humanity.11 The rules of international law only
apply to the first category; to the civilized world. The second category is a
questionable candidate for the law of nations, for there are circumstances when it
is partially recognized to be covered by existing international law.
Lorimer announces the inequality of states within the first category of civilized
states. Neither citizens within a state nor states within the international community
are equal. They differ in power and therefore in rights.12 It is difficult to imagine a
more explicit carte blanche and justification for the Great Powers to organize
Eastern Europe after their own wishes. This is hardly an explanation still acceptable
today.
9
See also Wheaton (1878), pp. 16–17.
10
Lorimer (1883), pp. 94–95.
11
On the zones of humanities and who belongs to which humanity see Lorimer (1883), pp. 101–
102.
12
Lorimer (1883), p. 103.
9.1.2 World War I: Self-Government and Self-Determination
Even before the United States entered World War I, there was a plan for the future
of the Austro-Hungarian Empire: federalism within the existing boundaries.13
During the war, Wilson had to abandon his idea of a unified Austria–Hungary as
a strong counterbalance to Germany in Central Europe. The break-up was supposed
to happen along the lines of nationalities even though it soon became clear that this
was not a good way and would sometimes result in injustice.14
The tenth of Wilson’s Fourteen Points advocated ‘The peoples of Austria–
Hungary, whose place among nations we wish to see safeguarded and assured, should
be accorded the freest possible opportunity of autonomous development.’15 The
wording can be interpreted in several ways. The first one focuses on the word ‘free’.
If this is important, the will of those concerned must be of utmost importance and there
can hardly be any restrictions as to the outcome. On the other hand, ‘autonomous
development’ does not give rise to any hope of establishing an independent state.
Another focus could be ‘whose place.’ It can clearly refer to Austria–Hungary
and thus be understood to underline the unity of the monarchy. If conceived in this
way, the provision simply aims at the independence of Austria from Germany’s
influence. On the other hand, ‘whose place’ can refer to the peoples of the Empire.
In this case, the provision envisions the entities to take their place in the inter-
national community. This, in turn, can only mean independent states as they were
the only accepted international actors at the time.
Considering the reactions at the time, there does not seem to be much doubt that
autonomy within a state is what was understood by Wilson’s tenth point. Wilson
aimed at internal self-determination.16 The peoples in the Austro-Hungarian Empire
had been advocating their independence for some time then and were disappointed
because they saw this point as falling far short of their aspired secession.17
Post World War I borders meant that a large number of people in Central Europe
belonged to minorities. After the allies forbore from their wish to create nationally
and/or ethnically homogenous states, one might say they did the next best thing.
They inserted clauses on minority protection in the numerous treaties states had to
sign with the Great Powers after World War I.18 It is maintained that it was
US-president Wilson who insisted on these protections.19
13
The plan envisaged six member states in a federation. See Steiner et al. (2008), p. 973. On
Wilson’s idea on an integral state of Austria–Hungary see Whelan (1994), p. 100.
14
Ádám (2004), p. 33. See also House (1976), p. 429. For the same opinion see also de Azcárate
(1945), p. 7.
15
No. 8 Woodrow Wilson (1918) Wilson’s Fourteen Points http://avalon.law.yale.edu/20th_cen
tury/wilson14.asp. Accessed 06 May 2014.
16
Castellino (2000), p. 13; Hannum (1996), p. 30.
17
For a more general view on this see Hannum (1996), p. 32.
18
See Sect. 7.1.2.
19
Ádám (2004), p. 227.
Wilson endorsed the idea of legitimacy coming through the consent of those
governed that was already part of the US Declaration of Independence. Thus, he
preferred the term self-government over self-determination.20 He foremost thought
of internal matters and internal solutions. It has been stressed that self-government
and self-determination should not be confused.21 This advice was not heeded at the
time. Still today, self-determination is traced back to Wilson’s self-government.
I am myself guilty in this undertaking; however, seeing that my focus lies on the
internal dimension which I regard to be self-determination in the Wilsonian spirit,
my conscience is not burdened too much.
Wilson envisaged self-government within the existing boundaries. It were his
own ideals of speaking on behalf of the oppressed that led to his three approaches
when it became clear that the existing boundaries in Eastern Europe could not be
upheld: statehood to identifiable peoples, plebiscites in border regions and minority
protection through the treaty regime.22 There was no elaborate test which category
groups in Europe belonged to. It was “a simple question of line-drawing. Depending
on where the dividing line is drawn, an ethnic, religious or other community aspiring
to nationhood can become either a ‘people’ [. . .] or a minority.”23 Self-determination
was applied through politics.
Self-determination for nations was little more than lip service. Besides political
considerations as described above, one more fundamental problem was unanswered
and to a certain degree still remains unsolved today. There was no generally valid
definition of a nation.24 Without knowing to whom self-determination could be
granted, it was doomed to be a political tool for the powerful that could be used at
their discretion. There was no right to self-determination yet. Even calling it a
principle may be too much. The dictionary defines principle as ‘a comprehensive
and fundamental law, doctrine, or assumption’ or ‘a rule or code of conduct.’25
Self-determination was certainly not a fundamental law in the years following
World War I and as it was applied so very inconsistently that one can hardly
speak of a code of conduct.
One of the most blatant acts of ignoring self-determination on basis of political
consideration was art. 80 of the Versailles Treaty which obligated Germany to
respect the independence of Austria. This provision is understandable considering
that through accession of Austria, Germany would have made up for all other
territorial losses and its power in Central Eastern Europe would have been strength-
ened. Nevertheless, taking the Wilsonian stance, art. 80 completely ignored the
wishes of the German-Austrian population who had made it unequivocally clear
20
Whelan (1994), p. 100.
21
Murray (1922), p. 8.
22
Whelan (1994), pp. 100–101.
23
Whelan (1994), p. 103.
24
See Sect. 8.2.
25
Both from Merriam-Webster (2014) Principle. http://www.merriam-webster.com/dictionary/
principle. Accessed 06 May 2014.
that they wished to accede to Germany.26 This is, however, not the only example of
incoherence. Austria had to renounce claims to the territory of South Tyrol.27 A
plebiscite there would have most likely resulted in South Tyrol being Austrian.
Similarly, Hungary lost both a large territory and a large share of its population.
Wilson introduced the concept of self-determination, not a right but more than a
simple statement. Self-determination quickly covered not only Wilson’s ideas of
internal self-government but expanded into something bigger. Wilson himself
advocated the inclusion of a paragraph on external self-determination into the
Covenant of the League of Nations. It was a very carefully worded draft that
enforced territorial integrity—however, not at all costs. The provision was not
included in the final document.28 The Rapporteurs in the Åland Island Question
stated in 1921, self-determination was ‘not properly speaking a rule of international
law.’29
9.1.3 Self-Determination During the Cold War
The Atlantic Charter included the ‘freely expressed wishes of the peoples
concerned.’30 The UN Charter speaks of self-determination as one of its principles.
In practice, the UN adapted self-determination for the process of decolonisation.
Although this fits the narrative of self-determination nicely from today’s perspec-
tive, it was a big step to apply one of the UN Charter’s most basic principles to the
context of decolonisation. When the Charter was drawn up, the actors and those the
Charter aimed at were sovereign states. Colonial people and non-self-governing
territories were only thought of in so far as the colonial and administering powers
that had special duties towards the peoples they governed. The right to self-
determination of art. 1 (2) UNC was not written with granting independence to
colonial peoples or other peoples in mind.31
Wilson’s self-determination of protection and self-governance of minorities had
changed meaning. For better or for worse, self-determination gained a new meaning
and was applied to the colonies. Resolutions 1514 and 1541 from 1960 explain
26
Kolb (2005), p. 68. Wilson faced more criticism for stepping back from his own beliefs or
simply acting on ignorance with consequences for millions of people; see Pomerance (1976),
pp. 3–7.
27
Arts. 28 & 36 Treaty of Saint Germain-en-Laye (1919) As published in Australian Treaty Series
1920 No. 3, http://www.austlii.edu.au/au/other/dfat/treaties/1920/3.html. Accessed 06 May 2014.
28
Hannum (1996), p. 32.
29
Commission of Rapporteurs (1921) The Aaland Islands Question – Report Submitted to the
Council of the League of Nations by the Commission of Rapporteurs LoN Doc. B7 21/68/
106, p. 27.
30
Principle 2 Atlantic Charter (1941) http://avalon.law.yale.edu/wwii/atlantic.asp. Accessed
06 May 2014.
31
See also Higgins (1994), pp. 111–112.
self-determination and heaved it into the decolonisation context. The problems of

self-determination were few but of substantial nature. The boundaries of the
colonies were often artificial. After self-determination was invoked for the colony
to achieve independence, different tribes and peoples in the various countries also
invoked this right for themselves. Tenor of United Nations practice became so that
self-determination was a right for colonies within the established borders—this is
the principle of uti possidetis iuris.32 Once independence was achieved, self-
determination was achieved. Smaller entities within a new state could not invoke
the right to self-determination. This is clear from the cases of Biafra that wanted to
secede from Nigeria and Katanga that wanted to secede from Zaire.
Both the ICCPR and the ICESCR—drafted during the 1950s and 1960s—
declare in their common art. 1 (1) that peoples have the right of self-determination.
They go on to explain what this means: any freely determined political status and
freely pursued economic, social and cultural development. It has been recognized
that self-determination is not only applicable to colonial peoples but also to those
under foreign or alien domination.33 Admittedly, this opens for a whole new
discussion on the definition of foreign domination.
9.1.4 Self-Determination Today
During the Cold War, self-determination in Europe was not high on the agenda. The
world was black and white. This changed abruptly when the Cold War ended and
many entities had the freedom or claimed to have the freedom to decide for
themselves. In some cases self-determination was surprisingly simple as old entities
became independent states. At the same time, conflicts arose in Yugoslavia and the
Caucasus. The world was suddenly shaded in grey.
Regarding external self-determination, it has been argued that self-determination
cannot be taken out of its colonial context.34 It does not, therefore, offer any right to
secession or other forms of self-determination to groups in Europe as they were not
affected by colonialism. Though legal instruments should always be read and
understood in their historic setting, it does not do justice to international law to
portray it as a stiff framework that does not follow developments around the world.
If one accepts that the Friendly Relations Declaration states customary international
law, one cannot refrain from understanding the principles stated therein—among
them self-determination—in a larger context detached from the time it was origi-
nally written.
32
The principle was declared to be customary international law by the ICJ in 1986. See Interna-
tional Court of Justice (1986) Frontier Dispute Judgement Case Concerning the Frontier Dispute
(Burkina Faso/Republic of Mali), 22 December 1986: I.C.J. Reports 1986, pp. 554, at pp. 565–567.
33
Higgins (1994), p. 115.
34
Weller (2005), p. 10.
In the case on East Timor, The International Court of Justice found that the
principle of self-determination of peoples is one of the essential principles of
international law. Moreover, it affirmed Portugal’s assertion that the right to self-
determination is a right erga omnes.35 Thus, it is clear that self-determination
remains relevant and should not be shelved. At the same time, one should remember
that the case of East Timor was exactly about a non-self-governing territory.
Koskenniemi describes it as ‘somehow arbitrary’36 to limit self-determination to
decolonisation. After all, the beginnings of self-determination are found in the
Enlightenment in the late eighteenth century and it was ‘meant for universal
consumption.’37 Also nationalist ideas that made self-determination their primary
goal did not distinguish between groups under colonial or other foreign rule. Lastly,
the Helsinki Final Act recognizes the applicability of self-determination outside the
framework of decolonization.38
In its advisory opinion on Kosovo, the ICJ, in very cumbersome language,
confirmed that there is no international law prohibiting a declaration of indepen-
dence.39 The Court did not want to go as far as confirming a right to remedial
secession.40 While we may not be confronted with a colonial context, the Kosovo
declaration of independence clearly falls within the external dimension of self-
determination. Therefore, the casu Kosovo is largely left out of the discussion here.
The one point that should be taken into consideration, though, is that apparently, a
case of external self-determination outside the colonial context and after the end of
the Cold War has been, if not endorsed than at least accepted, by the International
Court of Justice. Does this, then, open for a new law of external self-determination?
Opinions are divided. While everything related to Kosovo’s independence is
usually referred to as a unique case which does not provide for a precedent, there
have also been opinions that say that denying Kosovo the status of precedence
would undermine the international system as such.41
Today, the discussion has changed somewhat. The concept of internal self-
determination plays an ever more important role. From strong internal self-
determination follows, at least in theory, both a strengthening and a relative decline
of sovereignty. Treatment of one’s own citizens is no longer an exclusively
35
International Court of Justice (1995) Case Concerning East Timor (Portugal v. Australia)
Judgment of 30 June 1995, I.C.J. Reports 1995, p. 90, para. 29.
36
37
Koskenniemi (1994), pp. 242 and 263–264.
38
Principle VIII Final Act of Helsinki (1975) http://www.osce.org/mc/39501?download¼true.
Accessed 06 May 2014. Koskenniemi points out that it is doubtful whether this statement was
meant literally. See Koskenniemi (1994), p. 242. If it was not meant seriously in the Final Act, we
are back at image polisher which I refuse to accept. See Sect. 6.2.2.
39
International Court of Justice, Accordance with International Law of the Unilateral Declaration
of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 40, para. 79.
40
International Court of Justice, Accordance with International Law of the Unilateral Declaration
of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 40, para 83.
41
See Dickinson (2012), pp. 369–370.
9.2 Conceptual Issues 193
internal matter. Human rights penetrate borders. The question of a right to demo-
cratic governance that flows from international law challenges state sovereignty as
well. The political system of a state used to be a classic internal matter of the state.
At the same time, the sovereign state remains the firm fundament of the inter-
national community and is still protected by territorial integrity.
Today, self-determination has many faces. Among the well-known and accepted
are: the right to be free from colonial domination in the forms laid down in Res.
1514 and 1541, the right to remain dependent if that is the wish of the people,
peaceful dissolution of a state and the right to reunite. Problematic are secessions as
seen in the cases of Bangladesh and Eritrea and a possible right to limited autonomy
for well-defined groups in an identifiable territory. Relatively new and not conclu-
sively discussed is the right to democratic governance or the reinstallation of
democracy. Even including minority rights under the Covenants and the 1992
Declaration as well as minority protection in ethnically heterogeneous states are
included as part of modern self-determination. Rounding off the list are the rights to
abolish internal oppression, the rights to reconstitution of state sovereignty and
statehood and to natural resources.42
All these aspects are related to self-determination. It is not possible to discuss
each interpretation listed here, but it shows in what a confusing and interrelated
framework this project is situated. Regardless of its practical problems, the right of
self-determination has found its way out of the decolonization context and it is
overall still intact. It has shrunk in its external dimension; the firm refusal of
allowing a right to secession as was allowed for salt-water colonies in the 1960s
and 1970s is a witness to that. It has grown internally; the expansion to cover the
right to democratic governance, minority protection and the right to natural
resources are examples of this.
9.2 Conceptual Issues
Self-determination has undergone a change of understanding. The concept has been

re-interpreted and filled with new possibilities. As the term is still unclear on many
issues, it is necessary to account for the different interpretations relevant to this
project. First and most important, there is the distinction between external and
internal self-determination, which both are explained in more detail below. Con-
ceptually, external self-determination takes a territorial approach, while internal
self-determination foremost takes a non-territorial approach.
It should be noted that there has been voiced a fundamental criticism about
internal self-determination. A statement made by the then ICJ judge Zafrulla Khan
in the Advisory Opinion on Namibia is cited. With reference to a South African
official, Khan wrote the following in his concurring declaration:
42
Kirgis (1994), p. 307. For a similar list see also Colak (1996), pp. 31–32.
He [the South African official] concluded that in the case of South West Africa self-
determination “may well find itself practically restricted to some kind of autonomy and
local self-government within a larger arrangement of Co-operation” (hearing of 17 March
1971). This in effect means a denial of self-determination as envisaged in the Charter of the
United Nations.43
If this statement can be taken to mean that autonomy and self-government in

general mean a denial of self-determination is not entirely clear. What is clear,
however, is that we are dealing with an issue in the context of decolonization and
here, external self-determination is undoubtedly applicable.
A second issue necessary to discuss is whether self-determination is a process or
a result. Can the self determine its own fate once and for all or is determining an
ongoing process. The former would point to decolonisation—the political status
was determined. The latter points towards democratic governance, as the people
continuously have to determine their free wishes.
A third essential question regards the normativity of self-determination. Is it a
political concept, a declaratory right or is self-determination a normative right?
Fourth, light needs to be shed on the issue for whom self-determination is
actually applicable under recognized and accepted international law. It was intro-
duced as a right for nations, and then it became a right of peoples. Considering that
peoples and minorities are very close as groups, it has to be discussed how far
international law has developed.
9.2.1 External and Internal Self-Determination
The overwhelming mass of literature on self-determination devotes much time and

space on secession. Clearly, secession is the most radical form of self-determination
as it is contrary to territorial integrity. It is thus understandable that states shy away
from offering or accepting specific claims to self-determination. However, states
within the framework of analysis—being liberal, endorsing human rights, the rule
of law and democracy—should not have to fear this most radical form of self-
determination. Giving minorities rights will not lead to the break-up of the state.
There are other forms of self-determination.
I choose to focus on internal self-determination for three main reasons. Most
importantly, I see external self-determination as the exception and not the rule.
Self-determination was originally conceived to be an internal concept and focusing
on internal self-determination today follows up on the original understanding.
Secondly, minority rights are already quite close to internal self-determination. If
there indeed can be spoken of a right to self-determination for minorities, then it
43
International Court of Justice (1970) Legal Consequences for States of the continued presence of
South Africa in Namibia (South West Africa) notwithstanding the Security Council resolution
276 (1970), Advisory Opinion, 21-06-1971, I.C.J. Reports 1971, 16, Declaration of President Sir
Muhammad Zafrulla Khan, p. 63.
will be internal in nature. Thirdly, exploring internal self-determination offers a

variety of possibilities for accommodating minority rights. While many scholars
see self-determination of peoples and minority rights as two separate sets of rights,
I argue in favour of an integrated approach.
The concept of self-determination with the two dimensions internal and external
self-determination is firmly established; however, this dichotomy has recently been
challenged. It has been challenged on the basis of being a Western approach to self-
determination, as the roots of self-determination are traced back to events in the
Western world.44 To a certain degree, this is true; however, as this project moves
within a framework of liberal states, it seems only fitting to use their narrative of
self-determination.
The description ‘external’ denotes the fact that the existing boundaries are
somehow changed and as a consequence the territory of a state is changed. This
is a clear example of the territorial approach of self-determination. This stands in
contrast to the dictum of territorial integrity which may not be threatened. This is
one of the most basic and fundamental concepts of international law. Not surpris-
ing, international provisions on self-determination are usually accompanied by the
statement that the territorial integrity of a state may not be threatened by self-
determination.45 This is one more reason for leaving external self-determination
aside. Nearly all international instruments on self-determination include the safe-
guard of territorial integrity. This causes the legal analysis to quickly meet its limits.
General Assembly Resolution 1514, adopted in 1960, granted independence to
colonial peoples. In this context, it was stated that ‘all peoples have an inalienable
right to complete freedom, the exercise of their sovereignty and the integrity of their
national territory.’46 The constraints are clear: territorial integrity remains the
highest good in the international community: ‘Any attempt at the partial or total
disruption of the national unity and the territorial integrity of a country is incompa-
tible with the purposes and principles of the Charter of the United Nations.’47
Resolution 1541, which was passed the following day, specifies the content of
self-determination. The three possibilities—an independent state, free association
with an independent state or integration with an independent state48—are all
44
Senaratne (2013a), p. 477.
45
See for example the safeguard on self-determination in the Friendly Relations Declaration, art.
2 (4) UNC, principle IV of the General Assembly (1970) Friendly Relations Declaration UN Doc.
A/RES/2625 (XXV).
46
Para. 11 General Assembly (1960) Principles Which Should Guide Members in Determining
Whether or not an Obligation Exists to Transmit Information Called for under Article 73 e of the
Charter UN Doc. A/RES/1541 (XV).
47
Para. 6 General Assembly (1960) Principles Which Should Guide Members in Determining
Whether or not an Obligation Exists to Transmit Information Called for under Article 73 e of the
Charter UN Doc. A/RES/1541 (XV). See also art. 1 (2) VDPA.
48
Principle VI General Assembly (1960) Principles Which Should Guide Members in Determin-
ing Whether or not an Obligation Exists to Transmit Information Called for under Article 73 e of
the Charter UN Doc. A/RES/1541 (XV).
categorized as types of external self-determination. These rights were only appli-

cable to colonies as the resolution makes it clear in principle IV. There it is stated
that the resolution is valid for ‘a territory which is geographically separate and is
distinct ethnically and/or culturally from the country administering it.’49 Together,
these two resolutions allow for extensive external self-determination.
It is difficult to view decolonization as acts of secession. The salt water rule of
Res. 1541 made sure that the core territory of the colonial states was not threatened.
The colonies were for the most part not considered integral parts of the colonial
power’s territory.50 The colonies often had a special status; they were colonies and
not the colonial state. It is therefore misleading to speak of secession.
The discussion about external self-determination is still very much alive today.
Kosovo shows that it is extremely difficult for a group to achieve an external
solution. It has been pointed out that if statehood is such a good thing then it is
difficult to argue against the existing statehood.51 While this is certainly a good
point, it is only valid if existing statehood is an equally good thing as the emergence
into an independent state would be. It is not only about having a right but also about
receiving international support. One view of self-determination has remained
predominant for years—the external freeing from domination and heteronomy.
A consensus seems to have been reached that only gross human rights violations,
a severe destabilizing force of an ongoing conflict and political will can lead to the
exercise of external self-determination.52
External self-determination exists. This has most often, though, led to conflicts.
Despite external dimensions of self-determination exist, they have been applied
restrictively. This is one more reason for arguing in favour of an internal under-
standing of self-determination: territorial integrity has been too important to allow
for external self-determination. Thomas Franck has argued that the tension between
territorial integrity or uti possidetis as he calls it and self-determination was for a
long time largely ignored or even specifically denied.53 The tension between the
two poles is obvious. For a long time, it was simply the case that territorial integrity
was valued higher than self-determination or one might argue human rights in
general. The Commission of Rapporteurs on the Aaland Islands Question made it
clear that withdrawal by a minority or group from a community ‘because it is their
wish or good pleasures’ was unacceptable as it would destroy order and stability
and ‘inaugurate anarchy in international life.’54 Stability and order—to use
49
Principle IV General Assembly (1960) Principles Which Should Guide Members in Determin-
ing Whether or not an Obligation Exists to Transmit Information Called for under Article 73 e of
the Charter UN Doc. A/RES/1541 (XV).
50
Portugal is an exception on this point.
51
Klabbers (2006), p. 190.
52
See for example East Timor and Kosovo.
53
Franck (1995), p. 148.
54
106, p. 28.
Franck’s own terminology—trumped self-determination. The Supreme Court of

Canada came to a similar conclusion regarding Quebec. Self-determination was
expected to be carried out within the framework of existing states.55
The Friendly Relations Declaration could be the solution to self-determination
issues. It adds a fourth category of self-determination: ‘any other political status
freely determined by a people.’56 A political status must not necessarily involve the
break-up of a state. It includes the possibility of autonomy within the state. Also
noteworthy is that this political status has to be freely determined.
Internal self-determination most often aims at the group, not the territory. It is
therefore also called the non-territorial approach. Rights are accorded to a people, a
nationality or even a minority who in turn usually are found in a geographically
limited area. Internal self-determination looks at the relations between those
governed and those governing.
When self-determination, though not under that name, came about in the nine-
teenth century, it was in the coat of internal self-determination. Both Polish and
Czech people received participatory rights which eventually ended in the demand
of independence. Notwithstanding the result, the initial understanding of self-
determination was internal in nature.57
Wilson’s understanding of the term self-determination was self-government and
coupled with the concept of legitimacy through the consent of those governed, it is
not difficult to reach democracy. One of the most prominent defenders of the idea of
a right to democratic governance was Thomas Franck.58 In his article from 1994, he
speaks of an emerging right to democratic governance. While it would go too far to
say that such a right had existed already a century earlier, there has certainly been
the argument that non-democratic states cut themselves off from recognition as
states of civilized humanity.59 Other authors come to the same conclusion: there is
an established norm of international law for the right to participate in government.60
Internal self-determination and democracy are two terms closely linked. Taking
Res. 1541 into consideration, it is simply impossible to exercise self-determination
while ignoring democratic principles. The resolution stresses free political institutions,
freely expressed wishes and informed and democratic processes.61 Not all minorities
want or need their own political structures. There lies a chance of self-determination in
55
Para. 122 Reference re Secession of Quebec. (1998) [2 S.C.R. 217], Ref Type: Case.
56
Principle 5, para. 4 FRD.
57
Art. 1 (2) of the Final Act of Vienna (1815) As published in British and Foreign State Papers
1814–1815, Vol. II, James Ridgway, London, 1839, pp. 7–56; Pernthaler (2006), p. 24.
58
Franck (1990, 1992).
59
Lorimer (1883), pp. 162–168.
60
Epps (1997), p. 438. Franck speaks not only of participation but directly of a right to democratic
governance which consists of the three components self-determination, freedom of expression and
electoral rights. See Franck (1992), especially pp. 63–77 and 79.
61
See for example Principle IX in General Assembly (1960) Principles Which Should Guide
Members in Determining Whether or not an Obligation Exists to Transmit Information Called for
under Article 73 e of the Charter UN Doc. A/RES/1541 (XV).
the integration of minority bodies into the existing majority structures. As has been
argued, self-determination does not necessarily mean absolute control.62 I agree that
complete control is unrealistic because of competing interests and the need for
compromise in society. Both post-colonial self-determination and minority rights
are always a question of balance. They are always weighed against the rights of the
majority and can thus never be absolute.63
One form of internal self-determination is autonomy. Autonomy appeared in a
legal context in the 1881 Treaty between Greece and Turkey about their borders.64
Its philosophical roots go back to Machiavelli and Kant.65 Autonomy was linked to
a religious minority and implies a certain degree of freedom or at least the ‘absence
of strong central control in the daily lives of the people.’66 One cannot deduce a
right to political autonomy from the provision. At the Paris Peace Conference,
autonomy again was thought of as possible solutions to the minority problems.67
Instead of supporting autonomy, France, the United Kingdom and the United States
agreed on the establishment of the Committee of New States and the Protection of
Minorities that eventually drafted the minority treaties.
There is no standard model of autonomy and once again we are faced with a
concept used in international law that is not precisely defined: ‘Autonomy is a
hopelessly confused concept.’68 Nevertheless, autonomy is most often understood
as a devolution of powers so that a regional authority is in control of matters directly
concerning the region.69 While this gives an idea of what autonomy means, this
description is wide enough to encompass many varieties and degrees of autonomy.
This flexibility has the advantage for autonomy of being applicable in a large
number of circumstances. The price, however, is a superficial description that states
are reluctant to accept. Even though autonomy is sometimes granted, it is far from a
general right. Autonomy itself can vary from territorial autonomy over political
autonomy to cultural autonomy that does not threaten the state in its boundaries.
There is no right to autonomy. Neither the Covenants nor the European treaties
include a right to autonomy. As the demand for democratic governance receives
wider support it is not unlikely that also autonomy will one day be an internation-
ally recognized right. As of today, autonomy is a privilege granted by a state and a
favoured solution to group problems by international bodies, but it is not law.
62
Kolodner (1994), p. 163.
63
It is also argued that self-determination can be held up to external standards, meaning self-
determination only happens at the price of observing other human rights. Summers (2004), p. 337.
64
The Treaty speaks of religious autonomy; see art. VIII Convention of 1881 for the Settlement of
the Frontier Between Greece and Turkey as cited in Thornberry (1991), p. 25.
65
Wiberg (2005), p. 182.
66
67
Fink (1998), p. 261.
68
Wiberg (2005), p. 177.
69
Hannum (1996), p. 4. See also Loper (2011), pp. 32–33.
The Additional Protocol on minorities to the ECHR includes a restrictive right to

autonomy.70 The Protocol was not opened for signature.
A plebiscite is one of the possibilities in the process of achieving self-
determination—and by the UN regarded as a very important measure.71 Plebi-
scites have been described as the formal element of self-determination, as only a
plebiscite can actually result in the establishment of the free will of the people.72
This was practiced in the Danish-German border region after World War I, where
the border was drawn according to the results in a plebiscite prescribed in the
Treaty of Versailles.73
The plebiscites around Europe after World War I were not new. The idea of
asking the people’s consent via plebiscites had been known for quite a while and
‘by 1866 the method of appeal to a vote of the inhabitants . . . bade fair to establish
itself as a custom amounting to law.’74 At the same time, half the world was being
colonized, so the plebiscite as law should only be read in the framework of Europe.
Within the European Union today, member states exhibit different degrees of
enthusiasm for plebiscites. The German constitution does not include the possibility
for a plebiscite on the federal level (other than for making territorial changes within
the federal boundaries).75 Denmark has held several plebiscites and most notably
those of Ireland, France and The Netherlands on the latest reform treaties of the
European Union are examples of plebiscites.
9.2.2 Underlying Thoughts on Self-Determination
Self-determination first appeared in Europe when power was shifted from the king
to the people. Even though the communities were fighting for themselves and their
own good, they also fought for a different state, a different political system.
70
Art. 11 Parliamentary Assembly of the Council of Europe (1993) Recommendation 1201 (1993)
on an Additional Protocol on the Rights of Minorities to the European Convention on Human
Rights CoE Doc. PACE Rec. 1201 (1993).
71
Even though it was regarded an important tool during decolonization (both colonies, non-self-
governing and trust territories), it was not applied consistently. See the account on plebiscites in
Sureda (1973), pp. 294–306.
72
Colak (1996), p. 56. Colak also notes that plebiscites can be manipulated. See pp. 57–58.
73
Arts. 109–114 Treaty of Versailles (1919) As published in British and Foreign State Papers
1919, Vol. CXII, His Majesty’s Stationery Office, London, 1922. The Peace of Prague of 1866
already included a plebiscite in the region. The paragraph was officially abolished by Austria in
1879. After World War I, Danish politicians called for implementation of paragraph V of the
Prague Peace. See Frandsen (1994), pp. 88–89; Rasmussen (2009), pp. 84–85.
74
Wambaugh (1920), p. 1.
75
Art. 29 Grundgesetz für die Bundesrepublik Deutschland (1949) http://dejure.org/gesetze/GG.
Accessed 03 June 2010.
Against this background, Marti Koskenniemi develops two theories of self-

determination. One source is the classical model of self-determination; he also
calls it the Hobbesean conception of self-determination. The other is his romantic or
secessionist model. While the creation of a state and state structures are the main
point in his Hobbesean model, the spirit of fighting for oneself and one’s own way
of life is much closer to the romantic model.
The classical model of self-determination sees nations as artificial communities
that are only formed to organize chaos.76 In this concept, orderly decision-making
is at the core of self-determination; only states are accepted as doing the good of the
collective as they prevent bellum omnium. Minorities should be granted partici-
patory rights or other solutions have to be found. The important thing for this
school of thought is the preservation of the existing state.
Koskenniemi contrasts this with a different outlook on self-determination. The
romantic school of thought looks for the authentic community and thus offers it the
possibility of self-fulfilment. If that means building a state, so be it; if that should
mean seceding from an existing state, so be it as well.77 Koskenniemi maintains that
so far, the classical model that favours the state has been followed but is seriously
challenged by the more romantic version in later years.78 The two models are two
extreme poles and within their field of tension we find the most common ideas of
self-determination. Accepting total sovereignty and non-intervention, oppressive
regimes would have easy play. Accepting each group’s drive for self-determination
would end in fragmentation of the international order.
For 50 years, the classic model guaranteed a stable international order. With the
end of the Cold War, this model was challenged by different sides. It was time to
offer people a form of identity. At the same time, though, the state-centred system
was not to be to be put at risk. This is one explanation for the rise of minority rights.
The communities seeking recognition within many states had to be dealt with. As an
external solution was not thinkable, internal solutions in the form of minority rights
were offered.
Koskenniemi’s two theories are quite useful. They explain the field of tension in
which self-determination constantly moves between the two poles. Other scholars
have called the theories by different names79; however, the ideas of the centrality of
the state and of ethnic nationalism80 come close to Koskenniemi’s classical and
romantic theories.
76
77
Koskenniemi (1994), pp. 249–251.
78
79
For a similar categorization see Freeman (1999), pp. 359–360. Freeman uses the term ‘remedial
self-determination’ for what Koskenniemi calls the classic theory. Koskenniemi’s romantic theory
is termed ‘voluntarist self-determination’ by Freeman.
80
Whelan (1994), p. 99.
9.2.3 Self-Determination as Result or Process
Self-determination can be understood in different ways: as result or process. The

former points at the ‘self’, however defined, determining a status and rights once
and for all. Process, on the other hand, has a constant or at least continuing element.
Here, the ‘self’ is part of the process of determining a number of things such as
economic, social and cultural development.
Evidence for both result and process can be found in history. In the case of the
Åland Islands, the Commission of Jurists concluded that the inhabitants of the
Åland Islands had unanimously, sincerely and continuously expressed their wish to
reunite with Sweden.81 Self-determination was thus something that happened over
a period of time. Rosalyn Higgins also looks further and into the new state after
decolonization. She argues that it is not a right only for the moment of indepen-
dence, but it is a constant entitlement. This is necessary so as to guarantee a free
choice of the system of government so that peoples determine their economic,
social and cultural development. Self-determination needs to be an ongoing right.82
On the issue of Western Sahara, the International Court of Justice conceived self-
determination as a procedural right. It focused very much on the fact that the people
living in Western Sahara freely expressed their will in relation to the political status
of Western Sahara.83
On the other hand, Hurst Hannum portrays decolonization as a one-time right
when he says that when ‘self-determination has been exercised once, it cannot be
claimed again.’84 At the time, self-determination was regarded a result. The colo-
nies could decide their fate once and for all. It was a matter of ‘one person, one vote,
one time.’85 Afterwards, the territorial integrity of the new states barred all further
claims to self-determination.
Some phrases have been repeated in a number of documents on self-
determination. Res. 1514, the Covenants and the FRD all speak of the right to
‘determine the political status and freely pursue their economic, social and cultural
development.’86 The two terms status and development have very different conno-
tations attached to them. While status is something permanent and non-changing,
development per definition is not permanent. Development is something that
81
Committee of Jurists (1920) Report of the International Committee of Jurists Entrusted by the
Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal
Aspects of the Aaland Islands Question, Official Journal, Supplement No. 3, pp. 3–19, at p. 12.
82
Higgins (1994), p. 120. See also Heintze (2004), p. 295.
83
International Court of Justice (1975) Western Sahara Advisory Opinion of 16 October 1975:
I.C.J. Reports 1975, pp. 12, para. 70.
84
Hannum (1993), p. 23.
85
Franck (1995), p. 154.
86
No. 2 General Assembly (1960) Declaration on the Granting of Independence to Colonial
Countries and Peoples UN Doc. A/RES/1514 (XV); art. 1 ICCPR; art. 1 ICESCR; principle
5 (1) FRD.
changes. Status is result; development is process. Res. 1541 retains for those
territories associating themselves with an independent state the possibility to
modify the status of the territory87 and thus introduces a dynamic element. Asso-
ciation is only a lose tie between two entities. A possible disassociation would not
threaten the territorial integrity, as the two entities were not one single entity.
A territory that is integrated into another state faces a different situation. If it had
the possibility to modify its status, no state could ever be sure in its boundaries.
Deciding as the political status of being integrated with another state is not open to
modification.
In my argument, I do not want to argue for any special result for a minority but
I see a minority’s right to self-determination either in the inclusion of the demo-
cratic structures and processes or in building their own structures and democratic
processes.
9.2.4 The Nature of the Right to Self-Determination
The answer to the nature of the right to self-determination is important in a very

fundamental way. If the right to self-determination is normative in character and
minorities are found to have a right to internal self-determination, this could have
practical consequences. If the right is merely declaratory in nature, minorities
receive far less support from international law.
In the process of distinguishing between normative and declaratory rights, the
first question must be asked when self-determination became a right at all. While a
few scholars deny self-determination a legal status, the overwhelming majority
attributes self-determination the legal status.88 One of those denying self-
determination legal status is Yoram Dinstein who proclaimed that ‘all peoples do
not have a right to self-determination. They have never had it, and they will never
have it.’89
When considering the question of the nature, it is important to note that there are
different categories of rights. The ‘usual’ right known from the national level is a
right that prescribes or proscribes something. There is no question regarding the
implementation. International law cannot necessarily be seen in the same way.
87
Doc. A/RES/1541 (XV). This arguably shows a bias towards independence in decolonization.
88
See Cass (1992), pp. 26–27.
89
Original italics. Emerson, R., ‘Self-Determination in the Era of Decolonization’, 9 (1964)
Occasional Papers in International Affairs, 64 as quoted in: Freeman (1999), p. 356. Hurst Hannum
argues in favour of a principle to self-determination and in favour of a very limited right to self-
determination. See Hannum (1996), pp. 44–49.
In 1991, a new category of international law was argued to have emerged: declar-
ative international law.90 Declarative international law is close to customary inter-
national law yet it differs on an important point. Custom is made up of the two
ingredients of state practice and opinio iuris. Declarative, or as I term it, declaratory
international law, lacks one of the two ingredients. Either state practice or opinio
iuris are not general enough or the rules are not enforced.91 This seems to be
modern custom, or more specifically the sliding scale,92 where rules also can exist if
one of the two ingredients is lacking. However, declaratory international law is not
constricted to the framework of customary international law.
While Wilson introduced self-determination as one of the fundamental basics in
the international community, it was not a general right.93 The position of self-
determination grew stronger. It is stated that the principle of self-determination
‘found some place in the evolving opinio juris of the inter-war period.’94 When
Resolution 1514 was adopted in 1960, ‘this political principle of uncertain appli-
cations had begun to function as a quasi-legal principle.’95 Castellino argues that
the norm of self-determination was universally accepted at the time Res. 1514 was
passed. One may note here that the UN Charter uses the term ‘principle’ while Res.
1514 uses the term ‘right’. There were strings attached—no self-determination at
the price of instability and the setting was clearly decolonization—but nevertheless
the resolution linked self-determination to human rights, non-discrimination and it
clearly concedes that a number of conflicts have their roots in the oppression of
people’s freedom and rights.96
Another point for self-determination turning into a legal right could be the
Friendly Relations Declaration.97 The Declaration itself speaks of the principle of
equal rights and self-determination. Even though it is GA resolution, it is consi-
dered customary law if not even ius cogens.98 The fact that more than half of the
world’s states are party to at least one of the Covenants further indicates a
recognition of self-determination as law.
Ved Nanda accords self-determination the status of an enforceable legal right by
the late 1970s, though he constricts it to the decolonization context.99 Koskenniemi
sees the late 1970s as the turning point when most textbooks referred to
90
Chodosh (1991).
91
Chodosh (1991), pp. 95–96. Chodosh notes that there is no definition of what constitutes
‘general’ practice or ‘general’ opinio iuris; p. 119.
92
Kirgis (1987), Roberts (2001), Beckett (2001), and Weil (1983).
93
Whelan (1994), p. 103.
94
Whelan (1994), p. 106.
95
96
Preamble and no 7, General Assembly (1960) Declaration on the Granting of Independence to
Colonial Countries and Peoples UN Doc. A/RES/1514 (XV).
97
98
See Sect. 3.2.3.
99
Nanda (1997), p. 450.
self-determination as a legal right. One should not forget that the two Covenants
entered into force in 1977. Their common art. 1 codifies self-determination in
positive international law. A decade later, Thomas Franck regarded it to be a
principle of law in 1990.100 Even though it is impossible to pinpoint the exact
day when self-determination became a legal norm, I think it can be safely assumed
that self-determination became a legal norm in the 1970s. Self-determination has
been argued to be ius cogens101 which presupposes that self-determination is law.
The right to self-determination is laid down in binding treaties and a right under
customary international law.102 Enforceability is low as there is only the inter-
national community who acts politically. The fact that self-determination is not
clearly defined and is therefore open to abuse is another argument for only recog-
nizing a declaratory nature. Also, the fact that sovereignty and territorial integrity
are the ever present limits to self-determination weakens the right. This may point
in favour of a declaratory right.103
This last argument can be debated. Every right has its limits. The right to self-
determination is not exercised independently of any competing claims—may that
be territorial integrity or the self-determination of the majority population in a state.
Also, just because something is indecisive does not necessarily make it less of a
right; it simply makes it a weak right whose effect is lessened.104
So far, this section has regarded self-determination as something a group
existing within a state wants to achieve. It is not surprising that self-determination
is regarded as a challenge to states. Yet, states themselves are built on self-
determination. International relations work on the basis of sovereign equality and
non-interference. Koskenniemi argues that it is the respect for another state’s self-
determination that leads to non-interference.105 In this context, self-determination
is an essential feature of international law. It is essential that states respect the self-
determination of other states. From this angle, self-determination is a normative
right.
It is problematic to regard state supporting self-determination as a normative
right and state challenging self-determination as a declaratory right. State challeng-
ing self-determination is foremost self-determination in its external dimensions and
here lies the possibility of compromise. Internal self-determination supports and
strengthens the state from within. Endowing this kind of self-determination with
normativity is not so dangerous to states. Thus, it is again a question of
100
Koskenniemi (1994), p. 242. See also Hannum (1993), p. 12 for a similar timeframe as
Koskenniemi’s.
101
Pomerance (1982), pp. 63–72; paras. 70–78 Héctor Gros Espiell (1980) The Right to Self-
Determination – Implementation of United Nations Resolutions UN Doc. E/CN.4/Sub.2/405/
Rev.1.
102
For treaties see the UN Charter and the two Human Rights Covenants. The FRD codified
existing international law. See also Cassese (1995), p. 159.
103
Colak (1996), p. 33.
104
See also Moris (1997), p. 219.
105
distinguishing between external and internal self-determination when discussing

the nature of self-determination.
On a different point, one may note that self-determination after World War I was
only applicable to ‘those peoples and territories whose destinies had to be
resettled.’106 It hardly promotes general applicability of self-determination, but it
should soothe states that external self-determination can be made applicable only to
abnormal situations. Settled and stable states do not need to fear self-determination.
The general idea of self-determination is often endorsed. However, when it is
applied to a given situation, it becomes controversial. Koskenniemi makes a harsh
judgement: Self-determination becomes useless when it is most needed.107 I do not
see a law of self-determination as useless; it simply cannot be kept apart from other
priorities.
There seems to be only a declaratory right to self-determination. Self-
determination shows itself extremely vulnerable to international politics. As
long as the content of the concept and its status in relation to sovereignty
and territorial integrity are not clearly determined, normativity is difficult to
find. Documents show support of self-determination yet states become cautious
endorsing it in specific circumstances. As of today, self-determination is a
declaratory right.
9.2.5 Self-Determination for a Nation, a People

and for Whom Now?
When Wilson proclaimed the principle of self-determination, he spoke of nations.

When the United Nations General Assembly granted the right to self-determination
in the context of decolonization, it spoke of peoples. When we speak of self-
determination today, to whom do we apply it? Or asked in a different way: ‘What
is it that makes peoples particularly suited to self-determination?’108
After World War I, a form of internal self-determination was applied when
minority groups where granted access to political life. Minority rights came after
the larger population had achieved or was granted self-determination. Self-
determination was applied inconsistently at the time, but its idea took root and
grew continuously.
Decolonization in practice regarded the colonies as black boxes without consi-
dering the possibility of several groups within each colony. The aim was to
establish new states. The internal aspect of self-determination was taken into
account as far as the free pursuance of economic, social and cultural development
is concerned. The free pursuance must include participation. Participation is open to
106
Murray (1922), p. 9.
107
Koskenniemi (1994), pp. 264–265.
108
Margalit and Raz (1990), p. 443.
the whole population and not only certain groups. Everyone should have the
possibility to actively participate in public life. Minorities are distinguishable
groups and have thus achieved that their participation in public life is protected in
international treaties. Participation is a possible link between minority rights and
self-determination.109
Higgins argues against a right of self-determination for minorities. She gives
territorial integrity such a strong position as to only allow for the whole people in
the territory to exercise its self-determination. She says: ‘But minorities as such do
not have a right to self-determination. That means, in effect, that they have no right
to secession, to independence, or to join with comparable groups in other states.’110
I agree and disagree with her. I agree that minorities, or for that matter peoples,
do not have a right to external self-determination. I disagree on other points. In her
account on self-determination, Higgins differentiates between external and internal
self-determination. Yet, with this quote, she blurs the scene. She refers to ‘self-
determination’ but lists only external dimensions of it. Had she added the little word
‘external’ and thus saying minorities do not have a right to external self-
determination I would not want to argue with her. Negating self-determination
for minorities because of territorial integrity and the possibility of secession does
not do justice to minorities’ other possibilities. Without a further thought, Higgins
cuts minorities off from any self-determination rights. She then goes on to explain
minority rights and the possibility of autonomy. From my point of view, autonomy
is a dimension of internal self-determination. Autonomy does not threaten terri-
torial integrity which Higgins values so much.
Considering the drafting process of the UN Charter and especially that of article
1 (2) on self-determination, it has been shown earlier111 that the term ‘peoples’ was
a broad term that was not limited to states or nations. In the context of decoloni-
zation the term ‘peoples’ was equated with territorial entities. There is no reason
why we should not go back to the original understanding of the word as covering
also groups that are not states or nations—for example minorities.
Valerie Epps takes an even more radical stance and argues that self-
determination has developed into a declared right for ‘any self-declared group’112
to break away from the nation states and from a new state, when full participation is
not guaranteed to the group.113 She even envisions that these groups, provided they
109
For more on participation see Sect. 10.4.
110
Original italics. Higgins (1994), p. 124.
111
See Sect. 8.2.
112
Epps (1997), p. 442.
113
Epps (1997), p. 441. This is a form of what Freeman has called the ‘remedial theory’ of self-
determination. Secession is a right of last resort. See Freeman (1999), pp. 359–360.
9.3 The Content of Self-Determination 207
have claims to a territory, will shortly be able to legitimately claim external self-
determination—secession—even when they have full participatory rights in all
aspects.114 I would not dare to predict this today, but I think she does have a
point that self-determination is a right including more and more groups within its
area of applicability. Sovereignty is not the stronghold it used to be, especially in
Europe. However, the basis of the international community in Europe is still the
sovereign state.
It is certain that self-determination has moved on into the state. Internal self-
determination can be made available to more groups without risking a state’s
existence. Nevertheless, states resist this extension of internal self-determination.
International law is constantly undergoing changes and at the moment, the refusal
to grant minorities a right to internal self-determination but to grant extensive
participatory rights is a contradiction that needs to be addressed.
9.3 The Content of Self-Determination
When considering overlaps between self-determination and minority rights, it is

important to be clear what the content of self-determination is. Again, the answer
remains somewhat vague. What does it actually mean to be socially self-
determined? Below, we get closer to an answer; however, considering that self-
determination is such a contested issue, it is surprising that there is very little
material on the economic, social and to a certain degree also cultural self-
determination. The vast majority of literature on self-determination is concerned
with the political dimension.
Despite all shortcomings in the following descriptions, it becomes clear that the
different dimensions are interconnected. It also becomes clear that the self-
determination part remains more or less the same—making one’s own decisions
about issues of one’s own concern—but that we simply talk about different aspects
of life. What follows below then are rather descriptions and not definitions of the
different dimensions of self-determination. Aspects, terms and keywords are used
to describe especially the three dimensions of economic, social and cultural self-
determination. As there is next to none legal literature on the content of these three
types of self-determination, I have used other, non-legal sources. The keywords and
aspects describing the different dimensions of self-determination are used again in
Chap. 10 where the overlaps between self-determination and minority rights are
illustrated graphically.
114
Epps (1997), p. 442. An unconditional right to secession falls under Freeman’s category of the
‘voluntarist theory’ of self-determination. This is based on the will of each individual. There is no
limit to what individuals can decide; if a majority decides to secede from a state—so be it. One of
the few conditions attached is that the new entity must support liberal values. See Freeman
(1999), p. 360.
Political status has been defined in Res. 1541 as independence, association and
integration. The Friendly Relations Declaration added any other political status
freely determined. The explanations and definitions of economic, social and cul-
tural development must be found outside of self-determination provisions. They are
not further defined in resolutions on self-determination. It is therefore necessary to
look beyond self-determination provisions. The United Nations are active in issues
relating to economic, social and cultural development. It is here that further
explanations of the terms are found.
As becomes clear below the three fields of economic, social and cultural
development sometimes overlap. Putting the three terms into a self-determination
context, one thing seems clear. The UN places great weight on free and democratic
processes concerning political self-determination. It is therefore reasonable to
expect that the processes in the other fields must meet the same requirements.
A good starting point for economic self-determination is the description as the
‘poor second cousin’115 of political self-determination. The literature on self-
determination supports this view—economic, social and cultural rights do not
take up much space compared to the lengthy discussions on the dimensions of
political self-determination.
Just as self-determination is often equated with political self-determination,
economic development is often discussed under the general headline ‘develop-
ment.’116 The United Nations are concerned with development, though it is devel-
opment aimed at states and not at peoples as self-determination demands.117
Economic development touches on the system as such through the participation
of the state in international economic organizations and in particular the power over
one’s own natural resources. The free disposal over natural wealth and resources is
mentioned in art. 1 (2) ICCPR. The Human Rights Committee has stated that this is
‘a particular aspect of the economic content of the right to self-determination.’118
Art. 2 of the Charter of Economic Rights and Duties of States119 lists the economic
freedoms a state has. The article explains economic state activities; however, it does
not explicitly address economic development. Art. 7 places the prime responsibility
for economic development on the state. Art. 1 firmly places decisions on the
economic system within the state in accordance with the will of the people; no
interference or coercion from external actors may take place.
115
Oloka-Onyanog (1999), p. 169.
116
Oloka-Onyanog (1999), pp. 170–171.
117
Oloka-Onyanog (1999), pp. 171–175.
118
Para. 5, Human Rights Committee (1984) General Comment No. 12: The Right to Self-
Determination (Art. 1) UN Doc. CCPR General Comment No. 12. A UN report on the right to
self-determination also stresses the power over one’s own natural resources as an important factor
of economic self-determination. See paras. 136–149 Héctor Gros Espiell (1980) The Right to Self-
Determination – Implementation of United Nations Resolutions UN Doc. E/CN.4/Sub.2/405/
Rev.1.
119
General Assembly (1974) Charter of Economic Rights and Duties of States UN Doc. A/RES/
3281 (XXIX).
9.3 The Content of Self-Determination 209
This sheds only limited light on the economic dimension of self-determination in

Europe. The power of natural resources was especially important during decoloni-
zation in Africa. While power over natural resources is important to some minorities
in Europe, such as the Sami, natural resources do not seem to be high on the list in
general.
Therefore, a different approach to the economic dimension of self-determination
is offered. The Human Development Index is an index that was introduced by the
United Nations Development Programme in 1990. It does not solely look at hard
economic data like Gross Domestic Product, per-capita income and the like. The
Human Development Index thinks development as a construct that covers economics
and social issues. The human being is at the centre of attention. While there are
enough surveys on economic growth based on economic data, the United Nations
Development Programme’s approach is more fitting here as the fields of economics,
social issues and culture are regarded as interconnected. Human Development means
striving for a long and healthy life, education and a decent standard of living. Income
alone simply does not have enough explanatory power to speak of development.
Social development is overall concerned with the welfare of people both in
relation to other humans and to societal institutions. ‘Institutions’ is meant as a
broad term including not only what we call institutions or organizations in everyday
life but also people’s values, individual behaviour and motivation.120 The UN
Declaration on Social Progress and Development identifies the aims of social
progress: the continuous raising of the material and spiritual standards of living
of all members of society.121 Art. 10 of the Declaration names the main areas of
social progress which include issues related to work such as the right to work, trade-
unions, collective bargaining, elimination of unemployment, improvement of
health and safety measures and a sufficiently high minimum wage for a decent
standard of living. Other main goals of social progress are the elimination of
hunger, the right to proper nutrition, elimination of poverty, better health standards,
eradication of illiteracy and adequate housing. Social development is about closing
the gap between needs and reality.122 Social self-determination means taking part in
these issues.
Social development can be measured by the index of social progress where the
factors can be categorized as education, health status, women status, defence effort,
economic, demographic, geography, political participation, cultural diversity and
welfare effort.123 Most interesting in a minority setting are the indexes of
political participation and cultural diversity. Political participation is measured on
120
Paiva (1977), p. 329.
121
‘Objectives’ Part II, General Assembly (1969) Declaration on Social Progress and Develop-
ment UN Doc. A/RES/2542 (XXIV).
122
Paiva (1977), pp. 330–331.
123
Estes (1996), p. 121.
the violations of civil and political liberties and human suffering. Cultural diversity
looks at the variety of languages, religions and ethnic origins.124
The UN World Decade for Cultural Development (1988–1997) had four aims:
acknowledging the cultural dimension of development, affirming and enriching
cultural identities, broadening participation in culture and promoting international
cultural cooperation.125 Cultural development is often considered as one dimension
of development. As a consequence, the question addressed is not so much about the
development of culture but rather what role culture plays in development and how it
can be protected or preserved in ongoing development processes.126
‘Cultural heritage’ is a wide term and it is not defined what is included in this
term. Culture includes symbols, rituals and institutions of society.127 Culture is also
described as defining how people relate to everything from nature over their
physical environment to their beliefs.128 The competences of the Danish Ministry
of Culture encompass creative arts, music, theatre, film, libraries, archives,
museums, protection and preservation of buildings and monuments and archaeo-
logy. There to come the fields of radio, television, sports and international cultural
cooperation.129 All these terms hint at the meaning of culture. They point to fields
where peoples have to have the possibility to make free decisions for the overall
development.
Self-determination as determining the political status is a different concept as it
is not generally regarded as a process but rather as a result which is the way it was
also regarded during decolonization. The Friendly Relations Declaration reinforces
political self-determination as result. It also speaks of ‘any other political status
freely determined’. Decision-making about a status is a process as the UN expects
free and democratic decision-making.
This open category could include autonomy or other forms of participation. A
political status does not necessarily have to have a territorial dimension. The Danish
minority party Sydslesvigsk Vælgerforening in Schleswig-Holstein has a special
political status in relation to its seats in the Landtag in Kiel. The German minority’s
political party Schleswigsche Partei has a special status when one considers that it
is always represented in the four most Southern kommuner albeit without voting
124
Estes (1996), p. 123. See the full list of all basic indicators, pp. 122–123.
125
Para. 2 General Assembly (1986) Proclamation of the World Decade for Cultural Development
UN Doc. A/41/187.
126
See for example General Assembly (1991) World Commission on Culture and Development
UN Doc. A/46/158; General Assembly (1991) World Commission on Culture and Development
UN Doc. A/46/158; General Assembly (1986) Proclamation of the World Decade for Cultural
Development UN Doc. A/41/187.
127
World Commission on Culture and Development (1995) Our Creative Diversity UNESDOC
CLT-96/WS-6, p. 16.
128
CLT-96/WS-6, p. 24.
129
Council of Europe (2010) Compendium: Cultural Policies and Trends in Europe www.
culturalpolicies.net. Accessed 06 May 2014, Chapter on Denmark.
9.4 Self-Determination, Minorities and Minority Rights 211
rights. Voting rights are only accorded to those representatives that are elected on
equal footing with all the other candidates.130
The four fields of self-determination, political status and economic, social and
cultural development are wide and together they encompass what constitutes a state
with its society. Free and democratic processes in these fields means that everyone
has the possibility to participate in the shaping of economic, social and cultural
development and can participate in the decision on the political status.
Participation, or rather the possibility for participation, thus becomes the key
word in self-determination. Not everyone takes advantages of the possibility to
participate; however, self-determination can only be filled meaningfully if everyone
has the possibility to participate. Participation can be permanent, for a limited
amount of time or recurring in intervals. The term ‘participation’ suggests that
one is not alone in the process. While self-determination suggests the opposite, it
has been manifested that self-determination is never absolute. It is always limited
by the others’ right to self-determination.
9.4 Self-Determination, Minorities and Minority Rights
Self-determination and minority rights seem to be contradictory or at least to

exclude each other. The denial of self-determination is compensated with minority
rights.131 This is not true. Wilson introduced a link between self-determination and
minorities. Because of Wilson’s focus on the consent of the people, minorities
capable of constituting their own state were granted self-determination in the form
of their own states. Wilson’s vision for Europe, however, was originally based on
self-determination within the existing boundaries. The League of Nations applied a
limited version of self-determination on minorities.132 The tenuous link between
minorities and self-determination was later broken up.
Self-determination has undergone a significant development since its introduc-
tion to the international community by Woodrow Wilson. It was an unclear concept
he proposed.133 The target was peoples within specific territories. The UN and
decolonization changed the focus. It was territories that achieved self-determination
notwithstanding the composition of the territories. After the end of the Cold War
human rights have reenergized self-determination in its old form. Thomas Franck
has argued for an emerging right to democratic governance. I disagree. It is now
merely re-emerging. Looking at the larger picture of self-determination, taking the
130
Bekendtgørelse om Fremme af det Tyske Mindretal i Sønderjyllands Repræsentation m.v. i
Haderslevs, Sønderborg, Tønder og Aabenraa Kommuner (2005) Bek. nr 869 af 16/09/2005.
131
Seidl-Hohenveldern (1997), recital 1577. See also Harris (1998), p. 113. See also Crawford J
(2007), pp. 91–93; Pomerance (1982), p. 3.
132
Nanda (1997), p. 447.
133
Whelan (1994), pp. 102 and 105.
milestones Wilson, decolonization and post Cold War into consideration, I regard
decolonization as the black sheep in the family of conceptions of self-
determination.
Today’s understanding of internal self-determination is closer to Wilson’s
understanding than to the decolonization context. One should not regard today’s
universal applicability of self-determination as an unacceptable expansion of a
principle targeted at decolonization. One should rather understand it as bethinking
itself of its own roots. Self-determination has a clear internal notion since its
conception by Wilson. Its expansion to what we today call external self-
determination was only targeted at colonies and dependent territories. And even
here, the existing boundaries were not called into question or at least not by those
controlling the boundaries. The external self-determination happening in colonies
was restricted to the colonial boundaries. However much self-determination
worked for the decolonization circumstances, it is now returning from the exception
to the rule: to internal self-determination and democracy.
Self-determination and minority rights have many issues and problems in com-
mon. It is an often read statement that minority rights are the consolation prize for
those groups that are denied self-determination.134 The shift between these two was
already mentioned in the Åland case where the Rapporteurs took up the issue of
oppression.135 Put simply, stark oppression would have led to self-determination—
in this case the reunification with Sweden. The rapporteurs propose a number of
guarantees to the Ålanders and conclude that only if these guarantees are not
granted by Finland, this ‘would then force us to advise the separation of the islands
from Finland.’136 This approach is echoed in the Friendly Relations Declaration
some 50 years later. External solutions only become serious possibilities when
internal solutions are unsatisfactory. Yet, it is important to note that the Ålanders
were a minority, while the Friendly Relations Declaration speaks of peoples.
The rapporteurs were optimistic that an internal solution would be satisfactory.
They did not see the need for separation. Furthermore, it would be unjust to take the
Aaland Islands away from Finland.137 The solution was autonomy. As pointed out
above, in my view autonomy is one form of internal self-determination not an
alternative. At the same time autonomy is linked to minorities. Here, self-
determination and minority rights overlap.
134
Hannum (1993), p. 6.
135
106, p. 28.
136
106, p. 34.
137
106, p. 29.
Abnormality, serious human rights violations, threats and the degree of insta-
bility the issue provokes to the international community138 seem to heighten the
possibility for minorities to achieve a form of self-determination. In fact, this is not
only so for minorities. The case of the Katangese was refused by the African
Commission on Human and People’s Rights because there was no ‘concrete
evidence of violations of human rights to the point that the territorial integrity of
Zaire should be called to question.’139
If self-determination and minorities were completely separate, the conditionality
of human rights violations would be superfluous. The categorical denial of a
connection between self-determination and minorities does not make sense. If
there is no possibility for minorities to achieve any kind of self-determination,
then what does the conditionality propose? The connection between minorities and
self-determination may be weak under classic international law but it exists.
Usually, there are two ways of refusing self-determination to minorities. Either
self-determination is restricted solely to the context of decolonization140 or self-
determination is not applicable because minorities are not peoples.141 Both of these
arguments do not hold up at closer scrutiny. By using Franck’s and Rawls’
approaches, the connection between minorities and self-determination becomes
much more obvious.142
Another reason that seems to keep self-determination and minority rights apart
are the different dimensions. This has been shown not to be the case.143 Even
though minority rights mostly address the individual members, there are collective
minority rights. At the same time, self-determination is a collective right. This is
only partly true. Res. 1541 and subsequent documents stress the free will of the
people concerned. Internal self-determination which focuses so much on partici-
pation is often addressed as individual rights. This is the same phenomenon we can
see with minority rights. Both minority rights and internal self-determination rights
are termed as individual rights even though they at least indirectly aim at the
underlying group.144 The connection from minorities and their rights to self-
determination follows the path to internal self-determination. For one, the original
position does not support external self-determination. For another, external self-
determination falls outside the scope of minority rights.145 There are a number of
138
For the instability argument see Kirgis (1994), p. 308.
139
Para. 6 African Commission on Human and Peoples’ Rights (1995) Katangese People’s
Congress v. Zaire ACHPR Doc. Communication 75/92 (1995).
140
Weller (2005), p. 10.
141
See for example Castellino and Gilbert (2003), p. 169.
142
There are scholars who recognize a certain overlap between minorities and self-determination.
However, there are not many of them. See Weller (2005), p. 6.
143
See Sect. 7.2.1.
144
See Klabbers (2006), pp. 204–205.
145
Para. 19 Working Group on Minorities (2005) Commentary of the Working Group on Minor-
ities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic,
minority rights that fit the headline of political status and economic, social and
cultural development—the main points of self-determination. This is argued in
Chap. 10.
Conclusion
Self-determination has many faces. Recognized cases of self-determination
include the freedom from colonial domination and vice versa, the right to
remain dependent. This last one, of course, is only valid as long as the
dependent people wishes this. An example of this is Puerto Rico which
remains dependent on the United States. The peaceful dissolution of a state
and the formation of new states instead—as seen in most cases the former
Soviet Union and Czechoslovakia—is also a recognized form of self-
determination. Two states may also unite if it is the will of the people as
seen in Germany. Secession is always disputed, as many states are afraid of
creating a precedent for other cases.
As far as internal self-determination goes, autonomy rights are recognized
depending on their extensiveness. In confederations, autonomy arrangements
are usual practice. In the case of Haiti, the international community followed
Franck in his argument for a right to democratic governance,146 a second way
of interpreting internal self-determination. However, this has not been suc-
cessfully used as a precedent.
Considering the history of self-determination one cannot fail to notice that
many of the yardsticks in its history are the same as they are for minority
rights. While the Religious Peace of Augsburg and the Peace of Westphalia
are often mentioned in relation to rights for religious minorities, they have
also been cited on the account of self-determination.147 The right of each
individual to determine its religion is counted as a decisive step of the
expansion and consolidation of human rights and more specifically of the
right of each individual to live self-determined. This individual right leads in
community with others to the right to determine the political system or the
structure one lives in.148 This interpretation explains democratic or at least
democracy-like structures, because it assumes that the inhabitants in a given
territory will determine what they want for the community. Early inter-
national lawyers like Vitoria and Grotius argued that political decision can
only be legitimated by the free will of the people.149 What is called
(continued)
146
General Assembly (1991) The Situation of Democracy and Human Rights in Haiti UN Doc.
A/46/L.8/Rev.1.
147
Colak (1996), p. 19.
148
Colak (1996), p. 20.
149
Colak (1996), p. 21.
Volkssouver€ anit€at (sovereignty of the people) in the early Modern ages finds
its culmination in Thomas Franck’s right to democratic governance.
Wilson’s Fourteen Points introduced self-determination and his League of
Nations introduced minority protection. Domestic and international guaran-
tees for minorities of the time have been said to be ‘different forms’150 of self-
determination. In other words, minority protection after World War I belongs
into the context of self-determination.
Originally, self-determination or rather self-government was conceived as
an internal instrument. It was meant as a tool in an ongoing process. The focus
on determining a status once and for all belongs to the era of decolonization
and is only applicable in that context. Internal self-determination has made a
come-back with the right to democratic governance.
After World War II, it is claimed that self-determination and minority
rights both lost momentum. ‘Self-determination was not a real issue between
1945 and 1989.’151 On minority rights one finds: ‘In sum, minority rights
almost disappeared from the postwar [World War II] world.’152 Immediate
objections come to mind. Only 5 years after the end of World War II, the
General Assembly called upon the Economic and Social Council of the
United Nations ‘to study ways and means which would ensure the right of
peoples and nations to self-determination.’153 Decolonization is tied to self-
determination and it was repeated in different treaties. The treaties on South
Tyrol and Trieste and the Copenhagen-Bonn Declarations bear witness to the
fact that minorities were not forgotten. Even though the Minority Section of
the League of Nations was closed and minorities are not mentioned in the UN
Charter, new bodies on minority issues were established. Despite these
occurrences, both self-determination and minority rights were only pushed
upwards on the multilateral agenda after the end of the Cold War.
The dimensions of self-determination have been scrutinized further to see
what lies beyond the mere words. Economic, social and cultural self-
determination cannot be considered separate from each other as they are all
connected. They each have their own focus but they are part of the same
larger framework. Each of them touches on issues that are important to
minorities.
Self-determination is still one of the main challenges in the international
system. Accepting the point that boundaries are fixed—or at least only can be
(continued)
150
Hannum (1996), p. 35.
151
152
Krasner (1999), p. 98.
153
Section D General Assembly (1950) Draft International Covenant on Human Rights and
Measures of Implementation: Future Work of the Commission on Human Rights UN Doc.
A/RES/421 (V).
changed through peaceful negotiations—the next possibility, which is polit-

ical participation of the minority within the state, comes into focus. This can
happen in the shape of political autonomy or of political participation in
general politics. Self-determination and minority rights each have their own
framework of analysis and discussion; but they overlap and are interlinked at
many points.
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CLT-96/WS-6
Part III
The Analysis
Chapter 10
Minority Rights and Internal
Self-Determination
Minority rights in general and the content of self-determination have been exam-
ined and discussed. Now, it is time to take a step further and analyse if minority
rights are legitimate and just and secondly whether they correspond to rights under
internal self-determination.
Not all rights of minorities that appear in the chosen instruments can be exam-
ined here. Therefore, a selection is made on the basis of three criteria. For one, the
rights covered should be of high important for members of minorities. Second, the
rights chosen should cover most aspects of minority life. Third, the rights chosen
should have a sound basis in the focus instruments.
Accordingly, four rights are selected1:
1) The right to identity. This includes the right to existence. Physical and mental
existence are difficult to keep completely apart. This is without question of
fundamental importance to minorities. Aspects of identity are well covered by
the chosen four instruments.2
2) The right to language. The phrasing of this right points to the fact that it includes
a wide variety of language rights. The right to learn a minority language is one
aspect; a related right is the right to receive education at school in the minority
language. Furthermore, this includes the right to use a minority language in
public—again in various settings. For many minorities, language is a very
important aspect, it covers a large aspect of minority life and it is also well
covered by the focus instruments.3
1
See also Annex I for a complete overview.
2
For provisions covering the right to existence and identity see paras. 32.2, 32.5, 33 and 34 of the
Copenhagen Document. Furthermore, art. 8 (g) and art. 12 of the Language Charter. Also, art.
1, art. 4 (2) and art. 4 (4) of the UN Minority Declaration. Lastly, see art. 5 (1), art. 10 (1) and art.
12 (1) FCNM.
3
For provisions covering the right to language see paras. 32.1, 32.5 and 34 of the Copenhagen
Documents. Furthermore, art. 8, art. 9 and art. 10 of the Language Charter. Also, art. 4 (3), art.

DOI 10.1007/978-3-319-08876-1_10
224 10 Minority Rights and Internal Self-Determination
3) The right to cross-frontier contacts. This right is often overlooked. Nevertheless,

it should not be underestimated in its importance to members of minorities.
Especially in cases where there is a kin-state, cross-frontier contacts of very
important. However, also the possibility to be in contact with other minorities is
included in this right. This can be equally important to minorities that may live
in a border region, or it is simply a matter of being in contact with other
minorities in Europe who are in a similar situation. Even though provisions on
cross-frontier contacts are very short, they appear in all the four focus
instruments.4
4) The right to participation. Participating in decision-making is extremely impor-
tant. Participation can take many shapes. It includes anything from being heard
to a possible veto on issues directly concerning issues of relevance to a minority.
Participation in usually understood in the political context; however, it also
stretches to other fields such as culture. Participation is also well founded on the
focus instruments.5
These four rights cover both the most important aspects of minority life and most
of the substantive provisions regarding minority protection. Specific rights on
religion and media have not been chosen even though they, too, are well
documented. However, both religious rights and rights concerning the use of
media can be subsumed in the category of identity as both areas contribute to the
continued protection of the existence of minorities.
The rights chosen are anchored in the four chosen focus instruments. The fact
that only two of them are treaties under international law and that one is a General
Assembly Resolution while the last instrument is a political commitment under the
auspices of the OSCE does not diminish the analysis. As has been shown in Chap. 6,
the non-binding instruments have earned the status as serious sources of obligations
in the context of minority rights.
The following analysis is based on the criteria based on Franck and inspired by
Rawls. They are the same as were used in Chap. 6. Each right is examined
separately. First, rights will be tested against the criteria of Franck’s legitimacy.
The test consists of the four criteria determinacy, pedigree, coherence and adher-
ence. These criteria are applied to relevant provisions. Determinacy concerns the
clear understanding as opposed to vagueness of a provision. The second criterion of
pedigree relates to the origin and the process of the making of a provision.
A note on pedigree is necessary. Pedigree does not receive much attention in the
analysis in this chapter. Yet, it is deemed to be one of the most important factors in
4 (4) of the UN Minority Declaration. Lastly, see art. 10 (2), art. 10 (3), art. 11, art. 12 (2), art.
12 (3), art. 14 (1) and art. 14 (2) FCNM.
4
For provisions on the right to cross-frontier contacts see para. 32.4 of the Copenhagen Document,
art. 14 of the Language Charter, art. 2 (5) of the UN Minority Declaration and art. 17 FCNM.
5
For provisions on the right to participation see paras. 35.1 and 35.2 of the Copenhagen Docu-
ment. Furthermore, see art. 12 and art. 13 of the Language Charter. Also, see art. 2 (2), art. 2 (3), art
4 (4), art. 4 (5), art. 5 (1) and art. 5 (2) of the UN Minority Declaration. Lastly, see art. 4 (2), art.
6 (1), art. 12 (1) and art. 15 FCNM.
10 Minority Rights and Internal Self-Determination 225
the analysis. This contradiction is easily explained. The analysis of the pedigree of
the four minority rights in this chapter takes treaties and non-binding instruments
into consideration. There is not much to be desired when treaties are involved. The
second category has received all necessary attention in Chap. 6. A pre-selection of
non-binding instruments was done in Chap. 4.6 From among those instruments, four
were chosen for further analysis. One of the main pre-selection criteria was
closeness to states. While the documents originate from multilateral fora, states
have adopted them. The analysis of Chap. 6 shows that these non-binding instru-
ments are relevant and can be used for further discussion. The issue of pedigree,
when it relates to non-binding instruments such as the UN Minority Declaration and
the Copenhagen Document, is thus not discussed at length because a strong
pedigree of the documents has been established earlier.
Franck’s third criterion is coherence which takes a look at the broader context. A
provision that fits other rules and is generally applicable is determined to be
coherent. The last criterion is adherence which looks at the vertical level. While
coherence considers the vertical context of other rules, adherence is concerned with
whether there are provisions at a lower level that support the provision one
examines. If there are rules for implementation, adherence is higher than a provi-
sion that is simply established but is left hanging in the air. If these four criteria are
met, the examined provision is legitimate.
Thereafter, the provisions are tested in the original position in order to determine
their degree of justice. The basis for the analysis is found in Rawls’ theory of
justice. I do not follow him in every point but I also believe that I do not betray his
theory when I stray from it in the way I do. The test based on Rawlsian criteria has
several steps. First it needs to be established that there are two competing parties or
concepts. Considering the rights included here in a minority context, this question is
answered in the affirmative at this point for all four rights to be examined more
closely.
In order for a right to be adopted in the original position, a number of factors
need to be considered. First, the right must be in line with the pre-set values of
democracy, rules of law, human rights. Secondly, it has to be tested whether the
right accepts the importance of individual choice and individual freedom. Thirdly,
the right will conform to the original position if it contributes to the values strived
for which are peace, stability and welfare. The fourth question contemplates state
considerations. The predominant question here is whether the right threatens the
state in its existence as only those that do not threaten the state can be accepted. In
other words, this question aims at the consequences of the right. A second aspect of
state considerations is the issue that the state or the majority has rights that also need
to be respected. Minority rights need to be balanced with majority rights. Last but
not of least importance is the question after personal interests which is best phrased
as a question about the individual’s best interest. I think it is worth considering this
6
See Sect. 4.2.3 on the criteria for non-binding instruments and Sect. 4.2.4 for an overview over
relevant non-binding instruments.
Table 10.1 Overlap of Minority rights Self-determination

minority rights and self-
determination • Identity • Political status
• Language • Economic development
• Cross-frontier contacts • Social development
• Participation • Cultural development
question in order to allow for a broader and possibly more realistic approach. After
these five criteria have been tested, one more question remains. The right has to
comply with the difference principle, meaning that it works for the benefit of the
least advantaged in order to be a candidate for adoption in the original position.
This test on legitimacy and justice establishes the compliance pull of the specific
rules for members of minorities. Once the four rights are firmly recognized a last
issue remains. The gap between minority rights and self-determination is closed
when minority rights fall under the definition of self-determination. This is the final
step that needs to be done. The gap between minority rights and self-determination
is closed by the analysis of this chapter and the content of self-determination as
proposed in Chap. 9. Table 10.1 makes it clear, what is sought with examination of
the overlaps and divergence of minority rights and self-determination:
What needs to be done is to see if the rights covered by the headlines in the
category minority rights overlap with the four categories of self-determination.
When discussing minorities and self-determination, one has to distinguish
between the minority’s own self-determination and its contributions to the self-
determination of the larger population. When members of minorities contribute to
the economic development of their region, they do not necessarily live self-
determined. On the other hand, minorities can assure their own economic
development.7
Similarly, minorities can contribute to the cultural development of their region
or they can develop their own culture. In most cases there will be overlaps. The
region may be regarded as a bi- or multicultural region because majority and
minority cultures prosper together or parallel to each other. If minorities are not
completely cut off, they will have to respond to developments within the majority
culture. That culture will influence the minority. Culture and identity can change,
evolve and develop. They are not fixed constants in time.
A minority will not only have to respond to outside influences but also answer
questions from within or respond to tendencies within itself. If the identity of its
members changes in relation to issues of relevance to the minority it is likely the
identity of the minority will change as well over time. Its own cultural development
is determined by these factors.
The results from this analysis are taken up in the following chapter. They should
not be considered in isolation. The previous chapters have created a context and
7
For examples on internal support of economic development within a minority see EURAC
(2007): Kompetenzanalyse: Minderheiten als Standortfaktor in der deutsch-dänischen
Grenzregion, Europäische Akademie, Bozen-Bolzano, pp. 23–26; 33–34.
10.1 The Right to Identity 227
include several conclusions helpful in finding the final answer to the question
whether minorities have a right to internal self-determination.
10.1 The Right to Identity
The right to identity is both essential for a minority and the basis for minority rights
at the same time. Part of the definition of ‘minority’ is the subjective factor of
wanting to preserve the culture, traditions, religion and language. These could be
summarized as ways of preserving an identity. In general, minorities want to
preserve their identity that makes them different from the rest. This can be the
individual identity of members of minorities or the collective identity of the
minority.8 Without a right to identity many of the existing minority rights would
not make much sense as they aim at preserving a certain aspect of the minority
identity.
A precondition of identity is physical existence. The Minority Declaration places
existence and identity in the first article thereby signalling that they are of utmost
importance. Existence is a group attribute. In the African Charter on Human and
Peoples’ Rights, the right to existence is a right of peoples. The Genocide Conven-
tion protects the physical existence of groups identified by shared characteristics.
The gap between peoples and minorities is narrowed once again.
Identity needs to be described in order to be understood in the context of
minorities. No comprehensive definition is attempted here. Two key words are
‘consciousness’ and ‘other.’ A collective identity as minorities have it can only
exist when the group is conscious of being different compared to the ‘other’. The
otherness of the minority compared to the majority is based on the members’
acceptance that they are similar in a way that makes them feel solidarity amongst
themselves. Identity has to do with consciousness of oneself or of the group. If the
solidarity among certain people results in the realization that there are other groups
that have their own sets of similarities which differ from those of oneself, then we
might be on the way to finding a minority. Identity in a minority context is
understood to be a construct that is both the power holding the members together
and what the minority wants to preserve.9
8
The Geneva Report of Experts speaks of both individual and collective identity. See respectively
parts III and IV CSCE (1991) Report of the CSCE Meeting of Experts on National Minorities,
Geneva 1991 http://www.osce.org/documents/osce/1991/07/14125_en.pdf. Accessed
29 May 2010.
9
The concept of identity described here is based on Fligstein (2008), pp. 127–129 and Delanty and
Rumford (2005), pp. 51–54.
10.1.1 Legitimacy of the Right to Identity
Determinacy The UN Minority Declaration takes a twofold approach to protection

and promotion. The existence of the minorities covered by the Declaration shall be
protected. The identity of these minorities shall not only be protected but conditions
must be encouraged for the promotion of identity. Existence and identity are two
sides of the same coin. ‘Encourage conditions’ is not determinate as no further
explanations are given. Considering, though, that the article is a precondition and
basis for the other articles, determinacy may be sacrificed for general applicability.
When considering ‘encourage conditions’, one should also read further and include
paragraph 1 (2) where it is stated that states shall adopt appropriate legislative or
other measures. While there is an indeterminate element in ‘appropriate’ again, the
provision specifies what to do about the first paragraph of art. 1.
In para. (33), the Copenhagen Document focuses on identity only but is more
determinate than the UN Minority Declaration. The Copenhagen Document echoes
the double-layered approach of protection and creating conditions of promotion of
minority identity. Moreover, it takes a collective approach. Para. (33) places pos-
itive obligations on states not only to act at all but to act in a certain way. States take
‘necessary measures’; ‘due consultations’ including contacts with minority insti-
tutions are involved. States not only act in accordance with decision-making pro-
cedures but the measures are also ‘in conformity with the principles of equality and
non-discrimination with respect to the other citizens.’ The states’ space of action is
limited by these conditions.
The Framework Convention includes identity in art. 5. It takes a cautious
approach when it speaks of preserving ‘the essential elements of their identity’. It
is also notable that the Framework Convention targets persons belonging to
national minorities. A collective identity is often more than the sum of individual
identities. The Framework Convention does not take the direct collective approach.
Art. 5 names the essential elements of identity as being religion, language, tradi-
tions and cultural heritage and thus makes the provision determinate.
Pedigree There is general agreement that minority identity shall be protected and
promoted. There is no explicit right for members of minorities to have an identity.
However, the state obligation makes a lot more sense if there is an implied right to
identity. Considering identity in the context of minorities, there cannot be doubts
about the pedigree. The key documents on minority rights include provisions on
identity.
Coherence The UN Declaration on Indigenous Peoples also protects identity but
identity is not included in the two Covenants. Neither do the Universal Declaration
of Human Rights and the European Human Rights Convention include a right to
identity. This is not surprising as identity usually becomes an issue when there is an
‘other’ involved; an ‘other’ that is different from oneself. Thus, identity becomes
important for a minority or indigenous peoples because it is one of the core
identifying characteristics of these groups.
Identity does not only fit the framework of minority rights but is one of its
cornerstones. Identity is a recurring issue in many areas covered by international
law that touch on the issue of integration and assimilation. Identity plays a key role
in this. The right to identity is relatively new when considering the core documents
on minorities that all developed in the 1990s. Coherence would be strengthened by
making ethnocide punishable under international law. If conditions like mens rea
are met, depriving a group of its identity could amount to ethnocide.
Even without the concept of ethnocide, the right to identity for minorities is
applicable in its own right. There are several dimensions that all aim at strength-
ening minority identity. Other minority rights including those on learning the
minority language and practicing the minority religion are pieces of identity. It
would be strange to allow for the pieces but not the overall picture. It is coherent as
it fits the overall framework and is in line with other minority rights.
Adherence Identity is included both in the Language Charter and the Framework
Convention which both have a monitoring mechanism attached. Art. 14 of the
Language Charter is one of the ‘menu rights’10 so it is not automatically binding on
all states party to the Charter. The monitoring mechanisms contribute to adherence.
The UN Minority Declaration does not have a monitoring mechanism of European
nature attached. The Independent Expert on Minority Issues can nevertheless make
recommendations on how to improve the implementation of the rights of members
of minorities.11 This must presuppose that the Independent Expert has an opinion
on how effective the UN Minority Declaration is. There are thus several bodies than
can have an opinion and/or ask about the implementation of the provisions on
identity.
10.1.2 Justice of the Right to Identity
The question seems almost absurd: is it just to have a right to identity? The
immediate response is: Of course it is just. Or maybe it is simply unthinkable to
be without an identity. In order to confirm this spontaneous answer we need to go
back into the original position and consider the Rawlsian criteria. We also need to
be aware that there is an individual identity and a collective identity.
Pre-Set Values None of the pre-set values is threatened by a right to identity.
Democracy thrives on differences. Democracy can be viewed as the process or the
tool that manages differences yet is output oriented. Individuals can have many
different identities and identify with many different ideas. Regarding identity and
human rights, those two sometimes have a strenuous relationship in practice. This is
10
On the special ‘menu set up’ of the Language Charter see Sect. 3.1.1.
11
No. 7 Economic and Social Council (2005) Res. 2005/79: Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities UN Doc. E/CN.4/2005/L.11/Add.8.
mainly in cases where identity cannot be manifested in public. While one could
argue that human rights are threatened when identity cannot be manifested, it is not
identity itself that threatens human rights. Identity is based on human rights and
does not seek to threaten them. On the contrary, the human rights of minorities and
indigenous peoples would be superfluous if there were no different identities.
Individual Freedom The right to individual identity is very closely connected with
individual choice. A person does not need to be restricted to only one identity.12
Surroundings influence identity. In the end, it is up to each person to find his or her
own identity. Regarding collective identity, as in minority identity, one needs to be
careful not to impose an identity on the minority members. This is legally
countervailed by the possibility to choose whether one wants to be treated as a
member of a minority or not. Lack of minority identity is only one of many possible
reasons to choose not to be treated as a member of a certain minority; however, it is
certainly a valid reason. The right to have an identity does not prescribe the nature
of the identity. This is up to the individual person to decide.
The Copenhagen Document explicitly states that it is an individual choice to
belong to a minority.13 The Framework Convention takes a slightly different
approach and says members of minorities can choose whether to be treated as
such or not.14 Art. 3 (1) of the UN Minority Declaration implies this choice by using
the words ‘persons belonging to minorities may exercise their rights. . .’15
General Aims Competing identities can lead to conflicts and could possibly
threaten the peace and stability of a state. This is a worst case scenario and the
argument can be turned around. If identity is suppressed the potential for conflict
rises. Respect of each other’s identities—the majority and the minority identity—is
likely to prevent conflicts. The possibility for minorities to keep their identity is in
line with a minority’s wish to preserve it traditions and culture for the future.16 The
right to identity is important both for individuals and for groups. The status of right
strengthens the position of the group or in this case the minority in relation to the
state. Policies such as assimilation are considered unlawful and the right to identity
strengthens this prohibition. When the right to identity is respected minorities have
reached one of their core wishes. Conflicts are less likely to occur.
12
No. I. 4 High Commissioner on National Minorities (1999) Lund Recommendations on the
Effective Participation of National Minorities in Public Life & Explanatory Note http://www.osce.
org/documents/hcnm/1999/09/2929_en.pdf. Accessed 29 May 2010.
13
Para. (32) CSCE (1990) Copenhagen Document http://www.osce.org/odihr/elections/14304
14
Art. 3 (1) Explanatory Report to the Framework Convention for the Protection of National
15
My italics.
16
This is part of the subjective factor of the minority definition as proposed by Francesco
Capotorti. See Sect. 8.1.4.
State Considerations The right to identity does not threaten the existence of a state.
As before, it is a question of respecting the right and thereby keeping the potential
for conflict at a low level. In a state where the right to identity is respected, it is by
far more difficult to argue for an external solution to an issue than in a state where
identity is suppressed. Respecting the identities of the various groups and giving
groups enough space to live their identities does not pose a threat to a liberal state.
Individual Best Interest The question to consider here is whether it is in the
personal interest of everyone to have the right to identity. It is difficult to find a
scientifically proven answer, but who would we be without an identity? It seems
evident that it is in every individual’s best interest to have an identity. Our identity,
though it can change, stays with us. It is difficult to understand the existence of
human beings without identity.
The Difference Principle The right to identity for minorities targets minorities
which are the least advantaged in this set-up we are dealing with. This is a society
consisting of a majority and a minority. It is the minority who benefits from such a
right as it is the minority identity that is potentially threatened. The right to identity
for minorities does not threaten to lead to imbalances with the majority. Stressing
the right to identity for minorities could be argued to be a lesson learned from
history where minorities and their identities were oppressed. The majority has an
equal right to identity. No identity can trump the other. To make sure of this, the
minority identity as the more prone to be oppressed identity is placed under special
protection.
10.1.3 The Right to Identity and Self-Determination
A common identity is one of the basic characteristics of a minority. A majority also

has an identity even though it may not be displayed as consciously as in the case for
a minority. For the majority, it is not so essential to express its identity as the
surroundings and society as such is coined by the majority identity. Even though the
right targets individuals, the minority would not have an identity if its members had
none. While the collective identity is more than and possibly different from the sum
of individual identities, these are feeding the collective identity.
Identity is part of the subjective factor in the definition of a minority. When
applying the groups characteristics approach to peoples,17 identity is also a core
feature. The right to have an identity for members of minorities contributes to the
definition of the ‘self’ in self-determination. It is therefore highly relevant for the
discussion on minorities and self-determination. Taking a group characteristics
approach of peoples, identity is also part of the definition. Peoples must have the
17
See Sect. 8.2.
will and the opportunities to express their identity. Indigenous peoples also have
their own identity and traditions that they want to preserve. Most groups or
members of specified groups count identity among their constitutive elements.
When there is a common will to preserve traditions, culture, language, religion or
identity, international law is likely to recognize it as a group worthy of protection
under international law.
Having an identity does not automatically lead to self-determination.18 Identity
is part of the preconditions for self-determination to be applicable. A minority
without an identity is impossible per definition. A strong identity may strengthen
claims to self-determination; however, while identity is essential for self-
determination, self-determination is no automatic result for a group with an
identity.
The self-identity also influences which dimension of self-determination is
sought by the group. Not all groups and minorities seek political self-determination.
Some may seek ‘only’ to determine their own cultural development. With the right
to identity for individual members of minorities, a common basis is laid for a
discussion on minorities and self-determination.
10.2 The Right to Language
In the aftermath of World War I, one of the means to determine the existence of a
nation was a common language. There were so many exceptions that this test lost its
meaning. Also, the nations themselves rejected this test when it worked against
their interests, so language was rendered another political tool with little objective
value.19 Despite these drawbacks, linguistic differences remain one of the best
criteria to determine the existence of a minority.20 Today, language provisions of
different dimensions such as education and public authorities are always included
in documents on minorities and their rights.
Working within a European framework, most recognized minorities have their
own language or a language differing from the majority of the state they live in.21
Having a minority language does not have any implications regarding possible
18
For the view that differences in ethnic, cultural, linguistic or religious matters do not always lead
to the creation of national minorities see part II CSCE (1991) Report of the CSCE Meeting of
Experts on National Minorities, Geneva 1991 http://www.osce.org/documents/osce/1991/07/
14125_en.pdf. Accessed 29 May 2010.
19
Cobban (1996), p. 39.
20
de Azcárate (1945), pp. 4–5. For the same opinion see Loper (2011), p. 3.
21
Consider the German minority in Denmark, the Frisians, the Sorbs and the Danish minority in
Germany, the Welsh, the Sami and the Swedes in Finland. See the High Commissioner on National
Minorities (1996) Hague Recommendations Regarding the Education Rights of National Minor-
ities & Explanatory Note http://www.osce.org/documents/hcnm/1996/10/2700_en.pdf. Accessed
29 May 2010 on educational rights which repeatedly link language and education.
10.2 The Right to Language 233
bilingualism. Language has several dimensions. Educational acquisition of and

instruction in the language is of utmost importance.22 Education takes a special
position as instruction of and in the minority language at all ages contributes to the
preservation of minorities and their identity. Education has too many dimensions
itself; therefore, for the sake of clarity, I treat education like any other dimension of
language rights.
Language rights do not only target the persons’ capabilities of speaking the
language but extend to use personal names in the minority language and public
street signs or other signs of private use that are visible to the public.23 In the
Language Charter, recognized rights of language target the use of minority or
regional languages not only in the private sphere but also with public authorities,
especially in judicial proceedings.24 The ICCPR’s art. 27 is clear on the issue;
linguistic minorities shall not be denied the right to use their own language in
community with other members of their group. It is difficult to summarize all the
different dimensions of language rights under one headline. I have nevertheless
done it referring to the right to language. This naturally begs the question of
dimension: the right to learn, speak and use the language or the right to enjoy the
language in other contexts.
10.2.1 Legitimacy of the Right to Language
Determinacy Both the UN Minority Declaration and the Copenhagen Document

cover language rights. The Language Charter also provides input on language
issues. The Minority Declaration only devotes three sub-provisions on language.
Considering that there are only seven substantive articles in the declaration, this
should not be regarded as a downgrade of language rights. Art. 4 (4) links language
with education when it says that knowledge of inter alia language should be
encouraged. Art. 4 (2) links language to expression of minority characteristics. It
22
Para. 63 Language Charter (2010) As published in National Minority Standards – A Compila-
tion of OSCE and Council of Europe Texts, Council of Europe-OSCE, Strasbourg, 2007, pp. 241–
293. See the High Commissioner on National Minorities (1996) Hague Recommendations Regard-
ing the Education Rights of National Minorities & Explanatory Note http://www.osce.org/docu
ments/hcnm/1996/10/2700_en.pdf. Accessed 29 May 2010 on educational rights which repeatedly
link language and education.
23
Art. 11 Explanatory Report to the Framework Convention for the Protection of National
ities – Collected Texts, 4th ed., Council of Europe, 2007, pp. 17–35, Strasbourg. The High
Commissioner on National Minorities (1998) Oslo Recommendations Regarding the Linguistic
Rights of National Minorities & Explanatory Note http://www.osce.org/documents/hcnm/1998/
02/43268_en.pdf. Accessed 29 May 2010 support the use of language in names.
24
Arts. 9–10 LC; art. 10 Explanatory Report to the Framework Convention for the Protection of
National Minorities (1995) As published in Framework Convention for the Protection of National
Minorities – Collected Texts, 4th ed., Council of Europe, 2007, pp. 17–35, Strasbourg.
is a determinate provision; however, it still has some flaws. States shall take
‘measures’—measures is not further defined. ‘Favourable conditions’ shall be
created. Is it enough to treat minorities on equal footing and not discriminate
against them or is positive action needed? ‘Favourable’ should not be understood
as favourable compared to the majority. ‘Favourable’ means minorities should have
realistic possibilities to develop their culture, language and other characteristics
mentioned in art. 4 (2). The limitations attached do not have consequences for the
determinacy of the provision. Specific practices that are in violation of national law
and contrary to international standards are not allowed. It is not possible to exactly
define the ‘specific practices’ as they can vary from state to state. It is clear
however, which condition they must meet in order to be forbidden.
Art. 4 (3) is the only provision solely concerned with language. It is the right of
the members of minorities to learn the mother tongue or receive instructions in
the mother tongue.25 While there are several qualifications to the provision, the
meaning is nevertheless clear. It is determinate.
The Copenhagen Document is structured differently from the UN Minority
Declaration. While the Minority Declaration is mostly addressed to states and
concerns their obligations, the Copenhagen Document has two parts: a determinate
part on the rights and a softer part on state obligations. Para. (32.1) consists of one
sentence and the right to use the mother tongue in private and in public. Para. (32.3)
links language to religious activities. Para. (32.5) speaks of dissemination, access to
and exchange of information in the mother tongue. Determinacy is not an issue;
quite the contrary when it comes to state obligations. Para. (34) has so many
safeguards for states attached that they make the reading of the provision difficult.
The states will ‘endeavor’ to ensure that there are ‘adequate opportunities’ for
instruction of the mother tongue. While the words ‘use before public authorities’
hint at the overall aim of the provision, the phrasing as such and the conditions that
have to be fulfilled—wherever possible and necessary and in conformity with
national legislation—make it questionable whether there is a firm will to give
minorities the right to use their own language before public authorities.
The Language Charter takes this up in articles 9 and 10. Art. 9 (1) a–c spell out
what is means to use the language before judicial authorities. Similarly, art.
10 (1–3) provides for state measures on minority or regional languages before
administrative authorities and public services. These measures are detailed and
determinate. The fact that they are part of a menu from which states can choose
which provisions it accepts as binding does not affect the determinacy.
The Framework Convention addresses language right in art. 14. It is difficult to
understand the clear message of art. 14 (2). The provision consists of only one
sentence, but this sentence is made up of 59 words. The provision gives members of
minorities the possibility to learn the minority language. There are so many
25
Note here the assumption that the minority language also is the mother tongue. This assumption
recurs in the CSCE (1990) Copenhagen Document http://www.osce.org/odihr/elections/14304
conditions attached to this possibility—traditional inhabitation, sufficient demand,

the parties endeavour to ensure, as far as possible and within the framework of their
educations systems to name but a few—that the whole provision becomes compli-
cated and difficult to read. The actual meaning of the provision—language rights
for members of minorities—becomes obscured by the long list of conditions in a
way that it is not easy to detect the essential meaning. A look at the Explanatory
Reports provides limited guidelines. The flexible approach without restricting
definitions is explicitly chosen in order to allow for states to take account of their
own particular circumstances.26 The terms causing indeterminacy are addressed but
they do not contribute much to clarification.
The different instruments all include indeterminate terms or even provisions.
The Language Charter functions as an explanatory note to the other instruments. It
explains terms the other instruments use without further explanation. For example,
the right to use one’s own language in the public sphere becomes determinate when
considering the several documents together.
Pedigree The right to use one’s own language in a variety of situations is well
documented. At a global level, the UN Minority Declaration includes the right to
learn the minority language. At a European level, both minority treaties under the
auspices of the Council of Europe include language rights. The CSCE Copenhagen
Document also covers language rights. The pedigree is not disputed in a European
framework.
Coherence The right to learn the language and also to use it in private is
undisputed. Using a minority language in the public sphere is well explained in
the Language Charter. The UN Minority Declaration and the Copenhagen Docu-
ment both deal with language rights at a more general level. They are general rules
that are applicable in a variety of situations. Learning and using a minority language
is a brick in the preservation of their identity for most minorities. UNESCO is a UN
body active on language and culture. There are number of initiatives such as
recommendations but also conventions that stress the need for preserving languages
in many aspects.27 The right to learn and use a minority language fits the larger
context and approach behind minority rights. It is a coherent right. A closer look is
needed for specific rights. The right to receive instruction of and in the minority
language are two different things.
Adherence The general right to learn a minority language as proposed in art.
4 (3) Minority Declaration is a general provision that needs to be further defined.
Again, the Language Charter offers input. Even though it makes little sense to talk
about the Language Charter as containing subsidiary rules they nevertheless
26
Paras. 75–77 Explanatory Report to the Framework Convention for the Protection of National
27
For an overview see http://portal.unesco.org/culture/en/ev.php-URL_ID¼35598&URL_
DO¼DO_TOPIC&URL_SECTION¼201.html.
support the provision of the UN Minority Declaration. The Language Charter also
provides adherence by having a monitoring mechanism attached that will make sure
that the accepted provisions of the Charter will be followed. The Oslo Recommen-
dations of the High Commissioner on National Minorities are not binding, however,
contribute to the support of language provisions.
10.2.2 Justice of the Right to Language
Pre-Set Values Language rights do not contradict any of the pre-set values such as
democracy, rule of law and human rights.
Individual Freedom Each member of a minority has the right to be treated as such
or not. There is thus also the choice of language. One does not have to take
advantage of being able to use the minority language with public authorities. It is
simply an offer to members of minorities. One cannot be forced to learn the
minority language or to send children to minority schools. There is complete
freedom of individual choice. The right to learn and use the minority language
focuses on the individual and its wellbeing.
General Aims Granting minorities special language rights can be to the advantage
for the state in different ways. Especially in cases of kin-minorities, the knowledge
of another state’s official language can lead to minorities being a useful resource.
Members of minorities can offer special language know-how if they are bi-
lingual. This know-how can lead to economic advantages for the (border) region
where the minority is primarily situated when for example companies are in
demand of personnel speaking both languages of the region. Minorities can thus
contribute to the welfare of society. There is no guarantee for this, but it is a
possibility.
State Considerations Using the minority language can be taken to strengthen the
minority identity. As is stated in the context of the Framework Convention, the right
to learn the minority language is ‘one of the principal means by which such
individuals can assert and preserve their identity.’28 As argued above, minority
identity does not threaten the state. Respecting the language rights and letting
minorities use their own language will strengthen their positive attitude towards
the state they live in.29
28
29
Para. 13 Language Charter (2010) As published in National Minority Standards – A Compila-
tion of OSCE and Council of Europe Texts, Council of Europe-OSCE, Strasbourg, 2007, pp. 241–
293.
Individual Best Interest Using the language one is most comfortable with or fluent
in is a positive thing that I believe most people would take advantage of. At the
same time, few people would endorse an unlimited language right as it is easy to
imagine an implementation problem. The geographical restrictions of the Language
Charter and the Framework Convention to the German minority in Southern Jutland
by Denmark are understandable. It is here that the German minority has its
historical roots. Those that choose to move to Copenhagen or other areas in
Denmark will live in Danish surroundings. It would be too difficult to ensure that
all authorities can speak German. Unrelated to minority rights, most countries have
legal provisions on languages and translators for everyone that does not speak the
official language.30 These are rights that also members of minorities can take
advantage of.
The Difference Principle Having the right to receive instruction in one’s own
minority language is to the benefit of the least advantaged. It is important to notice
that several provisions state that the right to learn the minority language does not
excuse the members of minorities from learning the majority language. The right to
use the minority language with public authorities is also to the benefit of the least
advantaged. It makes access to public life easier for members of minorities. The
right to use the minority language does not touch on the general applicability of the
majority language and does not discriminate against it.
10.2.3 The Right to Language and Self-Determination
Language rights touch on the different dimensions of self-determination. Keeping

in mind that members of minorities ideally are bilingual, they can contribute to the
economic development. The 2008 Competence Analysis of the minorities in the
Danish-German border region stresses that members of minorities have ‘compe-
tencies in bilingualism and multilingualism, intercultural understanding, and cul-
tural exchange proficiency.’31 The list here points at contributing to the cultural
development but the competences can also be regarded as factors capable of
influencing the economic development of the region where the minority is found.
The right to learn one’s minority language strengthens identity, traditions and
culture. Being able to use a minority language in private offers a degree of self-
determination on the individual level. Having the right to use it with public
authorities is a way of strengthening the position of the minority member. It
supports the view that ‘linguistic otherness’ is accepted and endorsed. Minorities
who have their own language can benefit from language rights as part of their
cultural development.
30
See for example § 149 Retsplejeloven (2007) LBK 1262 of 23-10-2007.
31
EURAC (2007): Kompetenzanalyse: Minderheiten als Standortfaktor in der deutsch-dänischen
Grenzregion, Europäische Akademie, Bozen-Bolzano, p. 83.
Cultural diversity is part of the index of social progress. Cultural diversity is not
absolutely dependent on differing languages; however, if such language exists, it is
usually one of the defining aspects of a minority and its culture. Thus, even though
language does not necessarily lead to social self-determination, it can often con-
tribute to it. Social development is concerned with the welfare of people both in
relation to each other and to societal institutions. Having the right to speak to each
other in the language of free choice and the right to use the minority language with
institutions like administrations contributes to social development.
Freely determining the political status does not rely on language rights. Lan-
guage rights can be indirectly involved in political processes. Political represen-
tatives must be bilingual so that they can serve as a bridge between the members of
minorities where the minority language is spoken in assemblies and the political
bodies where the majority language is spoken. The right to learn or use one’s own
minority language does not lead to political self-determination. The right to learn or
use the language can only be regarded as one of many bricks in the context of
political self-determination.
10.3 The Right to Cross-Frontier Contacts
Documents on minority rights include provisions on contacts across frontiers.

Cross-frontier contacts can be placed within the larger framework of identity32
and it is especially important to kin-minorities. First, for those existing in border
regions, it is obvious that their identity is strengthened by ties to the kin-state.
Media is a second tool to strengthen identity. The right to access to media and
contacts across frontiers are covered by separate provisions. Nevertheless, it is of
relevance to kin-minorities to have access to media from the kin-state.33 Third in
this context is the right to participate in NGOs at the international level.
The right to cross-frontier contacts is one of the widespread minority rights. In
art. 2 (5), the UN Minority Declaration states that members of minorities have the
right to contacts across frontiers with citizens of other states that they have national
or ethnic, religious or linguistic ties with. Members of the Danish minority thus
have the right to contacts to citizens in Denmark. The Copenhagen Document in
para. (32.4) echoes the wording of the UN Declaration. The Framework Convention
also includes cross-frontier contacts in art. 17, and even the Language Charter
32
See para. 83 Explanatory Report to the Framework Convention for the Protection of National
33
High Commissioner on National Minorities (1998) Oslo Recommendations Regarding the
Linguistic Rights of National Minorities & Explanatory Note http://www.osce.org/documents/
hcnm/1998/02/43268_en.pdf. Accessed 29 May 2010 address the issue of access to media from
abroad in no. 11.
10.3 The Right to Cross-Frontier Contacts 239
recognizes the importance of cross-frontier contacts; it focuses on state obligations

in this regard in art. 14.
The relevance of cross-frontier contacts for this discussion is further explained
by the fact that it reaches beyond the boundaries of the state where the minority
exists. Cross-frontier contacts of minority members do not only oblige the mother
state to allow or even promote such contacts but it includes the state at which the
contacts are aimed.34 This does not seem to pose a problem in the European
framework. It is difficult to imagine that a kin-state would not accept that its citizens
remain in contact with members of a kin-minority in another country. Nevertheless,
cross-frontier contacts are unique in opening a different and international level of
minority rights.
10.3.1 Legitimacy of the Right to Cross-Frontier Contacts
Determinacy The examined documents are quite clear on the contact issue. It is
clear that there is no right to contact to just anybody. The nature of the ties varies
slightly as can be seen in Table 10.2.
The Framework Convention is slightly wider in its approach as the right to cross-
frontier contacts applies ‘in particular’ to those people one has ties with. The right
itself is wider and covers all those persons lawfully staying in other states.
The wording is different in the sense that the UN Minority Declaration speaks of
the right of persons belonging to minorities while the Framework Convention
places an obligation on the state not to interfere with the right. The Copenhagen
Document speaks of establishing and maintaining unimpeded contacts across
frontiers. The Framework Convention limits the right to ‘free and peaceful con-
tacts.’ There are thus slight differences; however the meaning of the provisions is
clear. It is clear who has the right to cross-frontier contacts, to whom these contacts
can apply and of what nature the ties can be. Again, it is the Language Charter
which provides the most detailed provisions; though it has to be kept in mind that
this focuses on the language aspect. Nevertheless, art. 14 of the Language Charter
provides examples that also national or ethnic minorities could take advantage of.
Pedigree The right to cross-frontier contacts is a recurring right. It is included both
in treaties and other documents. It has a well-established pedigree.
Coherence The right to cross-frontier contacts is embedded in the larger minority
framework. Cross-frontier contacts can strengthen the identity of a minority. They
can be to the benefit of the state. Cross-frontier contacts are not only the contact
34
The Explanatory Report on the Language Charter discusses this issue but sees the cross-frontier
aspect as an opportunity rather than a problem. See para. 125 Language Charter (2010) As
published in National Minority Standards – A Compilation of OSCE and Council of Europe
Texts, Council of Europe-OSCE, Strasbourg, 2007, pp. 241–293.
240
Table 10.2 Overview of documents dealing with minorities and cross-frontier contacts
Characteristics
Documents National Ethnic Religious Linguistic Cultural Terms Provisions
UN Minority Declaration x x x x Ties 2 (5)
10
Copenhagen Document x x x x Origin (32.4)

00
Belief
00
Heritage
Framework Convention x x x x x Identity 17
00
Heritage
Language Charter x Use 14
Minority Rights and Internal Self-Determination
10.3 The Right to Cross-Frontier Contacts 241
between persons but also institutions. The right not to be confined to the state where
the minority exits promotes a number of other rights. One is the right to participate
in non-governmental organizations at the international level.35 The right to cross-
frontier contacts strengthens other rights and is a piece in a comprehensive minority
framework. The right is generally applicable to classic minorities. Its applicability
is not restricted to few groups but is open to members of all recognized minorities.
The criterion of coherence is met.
Adherence Adherence is found via treaties. Both the Framework Convention and
the Language Charter have monitoring bodies attached. The article-by-article
approach of the Advisory Committee on the Framework Convention provides for
a procedure where this article is not overlooked. It is not possible to link the
documents here as primary and subsidiary rules. However, they re-enforce each
other and are therefore considered to promote adherence.
10.3.2 Justice of the Right to Cross-Frontier Contacts
Pre-Set Values The right to keep in contact with people one feels close to does not
threaten the values of democracy and the rule of law. One might object to this when
thinking of the Kurds that are spread out over several states and keep in contact with
each other across the frontiers. Especially across the Turkish-Iraqi frontier, contacts
can be regarded dangerous by Turkish authorities when militant Kurds from Turkey
retreat into safe Iraq territory. In this case, we leave the framework of the liberal
state and even more importantly, the stress on peaceful relations as put into the
Framework Convention is disregarded. Those kinds of contacts would not be
considered just in the original position. The fields of contacts listed by art.
14 (a) of the Language Charter—culture, education, information, vocational train-
ing and permanent education—do not threaten the pre-set values. The field of
information may serve as an example. Being informed about each other’s lives
and societies is likely to enhance mutual understanding. The minority will keep
abreast of developments of and within the kin-society and the kin-society will learn
about the kin-minority and their circumstances and thereby also learn something
about the mother state of the kin-minority.
Individual Freedom Restricting the contacts of members of minorities solely to the
majority society would take away the freedom of choice for the members. The right
to cross-frontier contacts again is a possibility but not a must. It is up to the
individual members of the minority. There is equally no obligation of individual
35
See art. 17 (2) Explanatory Report to the Framework Convention for the Protection of National
ities – Collected Texts, 4th ed., Council of Europe, 2007, pp. 17–35, Strasbourg; Para. (32.6)
06 May 2014.
persons that live across the frontier to be in contact with a minority member. The
right to cross-frontier contacts for members of minorities is a wide-spanning
individual right.
General Aims The argument in favour of the right across frontier in this context is
similar to the one on pre-set values. Contacts can potentially threaten a state but
those are not the kinds of contacts that are envisaged in the documents. Contacts
across frontiers can support economic development and welfare. They can further
mutual understanding and thus secure peace and stability between two or more
states.
State Considerations Contacts across frontiers open a new dimension of minority
rights. Usually, minority rights focus on the relationship between the state and the
minority. Now, another state is—if only indirectly—involved; an external dimen-
sion is added. It is imaginable that a minority’s wish to integrate with its kin-state is
strengthened by strong ties. On the other hand, if minority rights and the identity of
a minority are respected, the reasons for seeking an external solution to minority
issues become weaker. There are also enough instances where the minority does not
live in a border region. Nevertheless, contacts to the mother society are important to
the minority.
Individual Best Interest Being in contact with those similar to oneself is a wish
easy enough to understand. Especially when a minority is surrounded by a majority
that differs on important points from the minority, it will be important for members
of the minority to keep in contact with its kin-state.
The Difference Principle The possibility to keep cross-frontier contacts is to the
benefit of the least advantaged. It supports their existence and identity. It promotes
the minority’s possibility to be heard beyond the state boundaries. The right to
cross-frontier contacts implies that minorities have a special interest in this while
the majority does not necessarily share this interest. The granting of this right
focuses on minorities and their needs. The difference principle is respected.
10.3.3 The Right to Cross-Frontier Contacts

The right to cross-frontier contacts has been described as furthering or supporting

minority issues like identity and participatory rights. Having the freedom of choice
who to be in contact with is of great importance to minorities. This freedom falls
under the scope of the right to determine one’s own cultural development as part of
the right to self-determination.
The cross-frontier contacts right addresses the individual; nevertheless the
contacts can have consequences for the minorities as a whole. The right to partici-
pate in non-governmental organizations both on the national and international level
10.4 The Right to Participation 243
supports contacts between members of minorities and it is easy to imagine that this
can provide input to minority institutions.
Cultural development has been explained often as being part of social develop-
ment. Making decisions about one’s culture has to do with symbols, rituals and
institutions of society. The right to cross-frontier contacts strengthens all these
dimensions of culture. International cultural cooperation is part of cultural devel-
opment, yet it is also part of cross-frontier exchanges according the Language
Charter. The cultural identity of the minority is strengthened by this right. Again,
there is the overlap to cultural development which includes the affirmation of
cultural identity. Culture encompasses inter alia arts and media. The minority
right to access to media is another brick in the process of determining the cultural
development of the minority.
When culture is understood as part of a bigger development, the question is how
culture can be preserved. Also in this understanding, the right to cross-frontier
contacts corresponds to the right to determine one’s own cultural development. It is
again the identity dimension which is most important to minorities in this context. If
the question of culture relates to its preservation in a larger context of development,
cross-frontier contacts support the preservation of identity. Cultural diversity is a
factor in the index of social progress. Cross-frontier contacts strengthen this. In
conclusion, cross-frontier contacts as accepted in the original position contribute to
free social and cultural development which are two dimensions of self-
determination.
10.4 The Right to Participation
When minorities have a right to participation it is widely understood in a political

context. While this is true, the concept can be wider and encompass public life as
such.36 It is important to be clear about the aim of participation: to produce an over-
arching common interest.37 Participation is closely related to sharing; this points at
another important aspect of participation: there are at least two parties involved.38
The right to participation is one of the core rights for minorities. The Copenhagen
Document speaks of ‘effective participation in public affairs’39 and continues to
include local or autonomous administrations as possible ways to ensure the promo-
tion of ethnic, cultural, linguistic and religious identity of certain minorities. The UN
36
See Ghai (2005), pp. 4–6.
37
Kaler (1999), pp. 130–131.
38
Kaler (1999), p. 126.
39
Minority Declaration specifies the right to participation as ‘participate effectively in

cultural, religious, social, economic and public life.’40 The Framework Convention
similarly speaks of ‘effective participation of persons belonging to national minor-
ities in cultural, social and economic life and in public affairs, in particular those
affecting them.’41 The dimensions of cultural, social and economic life and public
affairs strikingly reminds one of the wording concerning self-determination as
meaning the determination of political status and to pursue one’s economic, social
and cultural development.
Participation is included in several other non-binding instruments. The Universal
Declaration of Human Rights addresses political participation in art. 21: ‘Everyone
has the right to take part in the government of his country’. The provision continues
to prescribe democratic governance when it states that ‘the will of the people shall
be the basis of the authority of government’. Art. 27 UDHR addresses the cultural
dimension of participation and states that ‘everyone has the right to freely partici-
pate in the cultural life of the community.’ While these provisions are not directed
at members of minorities, they are also applicable to them. One should be aware
that the right to participation in the core minority documents is always linked to the
principle of non-discrimination.42
The Lund Recommendations on the Effective Participation of National Minor-
ities in Public Life from 1999 distinguish between two dimensions of participation.
Firstly, participation can mean participation in decision-making in the state as a
whole and secondly, it can mean self-governance over certain internal affairs.43
Participation in the first sense is a broad term concerned with representation not
only in parliament or the government but also in the civil service and the judiciary.
Participation in the second sense is what commonly is simply referred to as
autonomy.
Participation of minorities can take many shapes. Consultation and the main-
tenance of a dialogue between authorities and minorities are stressed by the
Advisory Committee and the Committee of Ministers within the monitoring mecha-
nism of the Framework Convention.44 The Lund Recommendations provide a list of
40
Art. 2 (2) General Assembly (93 A.D.) UN Minority Declaration UN Doc. A/Res/47/135.
41
Art. 15 Explanatory Report to the Framework Convention for the Protection of National
ities - Collected Texts, 4th ed., Council of Europe, 2007, pp. 17–35, Strasbourg.
42
See at I. 2) High Commissioner on National Minorities (1999) Lund Recommendations on the
43
Introduction High Commissioner on National Minorities (1999) Lund Recommendations on the
44
See for example both opinions of the Advisory Committee on the Framework Convention for the
Protection of National Minorities (2000) Opinion on Denmark CoE Doc. ACFC/INF/OP/I(2001)
005 and Advisory Committee on the Framework Convention for the Protection of National
Minorities (2002) Opinion on Germany CoE Doc. ACFC/INF/OP/I(2002)008.
possible initiatives that assure effective participation in decision-making.45 Regard-

ing the levels of the central, regional and local government, the list includes
reserved parliamentary seats, cabinet positions and posts addressing minority issues
in one or several ministries. In the context of elections, the list proposes propor-
tional representation systems, some form of preference voting or lower numerical
thresholds for representation in the legislative. Advisory and consultative bodies are
also possibilities for ensuring participation.
The idea of effective participation can be summarized as the right to be taken
seriously. There are no regulations about the form. Whether minorities decide by
themselves or ‘only’ participate in the decision-making process with others, this
right provides the protection that minorities are heard and not ignored.
The most obvious possibility for internal self-determination is full autonomy for
a smaller region within the state. Full autonomy is territorially based and would be
the conferment of all rights save the rights to conduct independent external relations
and the establishment of the region’s own military forces. In most cases, fiscal
issues will also be restricted. From this starting point it is possible to deselect
certain subject areas from the autonomous region and retain them at state level.
Obvious areas would be police, health and other issues were it would not be sensible
to establish a completely state independent regime within the autonomous region.
Autonomy, whether in a strong or a weak form, never means independence.
Local self-government likewise does not aim at leaving the state framework. The
Charter of Local Self-Government states clearly in art. 3 that local self-government
is a way of regulating and managing a substantial share of one’s own affairs—
within the limits of the law. The UN Working Group on Minorities has pointed out
that autonomy may be a good way to ensure effective participation of minorities.46
The Copenhagen Document links effective participation and local or autonomous
administrations in accordance with the policies of the state concerned.47 Self-
government, whether local or regional, should not be understood in relation to an
independent entity.
45
The following examples are taken from part II ‘Participation in Decision-Making’ of the High
Commissioner on National Minorities (1999) Lund Recommendations on the Effective Participa-
tion of National Minorities in Public Life & Explanatory Note http://www.osce.org/documents/
hcnm/1999/09/2929_en.pdf. Accessed 29 May 2010.
46
Para. 20 Working Group on Minorities (2005) Commentary of the Working Group on Minorities
to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic,
47
10.4.1 Legitimacy of the Right to Participation
Determinacy The right to participation in the UN Minority Declaration lacks

somewhat in determinacy. Nevertheless, the overall message of the right is clear.
We know who it is available to and in what fields. Participation is clear in general;
however, it is qualified by the little word ‘effectively’. It is within this word where
indeterminacy is found. Whether something is done effectively or not depends on
many variables and synonyms for effective are efficacious, efficient, potent and
productive.48 My understanding of effective is producing a decided or desired
effect.49 If a process reaches the desired effect, the process is effective.
The UN Minority Declaration does not contain any further explanation of what
effect is desired by the participation of minorities. The right to effective partici-
pation is a determinate right as soon as the understanding of ‘effective’ is clarified.
The fields where the participation should be applied—cultural, religious, social,
economic and public life—are wide by nature. This does not lead to a lack of
determinacy. On the contrary, seeing that the widest possible terms have been
chosen and that they cover almost every aspect of life, it is clear that effective
participation for minorities is applicable to all situations in life and should not be
read restrictively.
The Copenhagen Document is clearer on the issue. While paragraph (35) first
speaks of ‘effective participation in public affairs’ which lacks in determinacy the
subsequent paragraph is clearer. First, states will respect the right to effective
participation in public affairs and affairs relating to identity of minorities. The
second sub-paragraph speaks of the protection and promotion of the identity of
minorities. One way this can be granted is by setting up local or autonomous
administrations. Read together, it seems that effective participation is meant to
happen to the effect that the identity of minorities is protected and promoted. One
way effective participation can be ensured is via local or autonomous admini-
strations. Thus, if minorities participate in public life in a way that leads to the
protection and promotion of their identity, the participation can be said to be
effective. The meaning of ‘effective’ in the Copenhagen Document becomes
clearer at second reading.
The Framework Convention’s art. 15 is short. The Explanatory Report is much
more detailed and provides a list of possible measure that states could adopt. This
includes consultation, involvement at different stages of development plans and
legislation and decentralised or local forms of government. While none of these
possibilities is binding, it provides an open framework of measures that can be
taken for the implementation of art. 15.
48
Merriam-Webster (2014) Effective. http://www.merriam-webster.com/thesaurus/effective.
49
Merriam-Webster (2010) Effective. http://www.merriam-webster.com/thesaurus/effective.
Accessed 04 June 2010.
The Universal Declaration of Human Rights supports participation with its

determinate provision of art. 21. Taking part in the government is a general phrase.
Read in the larger context of the whole article, it becomes clear what is meant.
Participation can happen directly or through representatives. The representatives
have to be chosen freely. Periodic and genuine elections are called for. They need to
be by universal and equal suffrage and held by secret vote or equivalent free voting
procedures. The article leaves a margin of interpretation, yet at the same time there
are quite strict requirements.
Pedigree The right to participation is not only laid down in classically non-binding
instruments such as the UN Minority Declaration, the Copenhagen Document and
the Universal Declaration on Human Rights. On the European level, both the
Language Charter (art. 12) and the Framework Convention (art. 15) contain the
right to participation. Having established the relevance of the UN Minority Decla-
ration and the Copenhagen Document in Chap. 5, the conclusion must be that the
right to participation has a good pedigree in the European context.
Coherence The right to participation can hardly be said to be incoherent. Partici-
pation is in line with the overall idea of integration of minorities. There can be
certain hindrances in the political sphere for members of minorities; however, these
are not directed specifically at minorities. Eligibility to be elected to a political
office is in many states restricted to the nationals of the state.50 These restrictions
are not considered discriminatory. One should notice that Capotorti’s original
definition included the nationality requirement and thus election restrictions could
not be a minority issue as all members of a minority per definition had the
nationality of the state. The right to participation is a general right and it seeks
the empowerment of minorities. The right to participation is coherent.
Adherence The right to participation is fleshed out in several provisions. The UN
Minority Declaration’s art. 2 (3) can easily be understood in a political context.
According to the provision, persons belonging to minorities have the right to
participate effectively on the national and possibly also regional level when it
concerns their minority or their geographical region. These decisions need not
necessarily be made in a parliament. Decisions can be taken by ministries or
subordinate agencies. The provision restricts participation so that it may not be
incompatible with national legislation.
The Copenhagen Document indirectly speaks of participation in several places.
When educational, cultural and religious institutions, organizations or association
can seek public financial assistance, they participate in public life. When members
of minorities have the right to maintain their own organizations and participate in
international non-governmental organizations, they also participate in the public
sphere. Another starting point is that the state promotes a climate of mutual
50
See for example §30 (1) in connection with §29 of the Danish Grundloven (1953) Lov. nr. 169 of
05 June 1953.
understanding and cooperation and solidarity among all persons living within the
state.51 Especially the last provision aims at inclusion of the minority into the
majority and the openness of the majority towards the minority. Cooperation and
solidarity are furthered by letting the minority participate in all aspects of life.
The UN Minority Declaration stresses the economic dimension when it declares
that states have an obligation to make sure that persons belonging to minorities
‘may participate fully in the economic progress and development in their coun-
try.’52 The Declaration stops short of participation on national and international
issues. Art. 5 states that legitimate minority interests have to be taken into due
regard when planning and implementing national policies and programmes and
when international programmes of cooperation and assistance are planned and
implemented. There could possibly be a gap between what a government considers
to be due regard to legitimate interests and the way a minority views this. Minorities
are not given a voice in this specific context.
At the political level, participation can be enhanced by special rules such as the
exemption from the 5 %-clause for the Danish minority in the Landtag in Kiel and
for the German minority’s guaranteed representation in the political bodies in the
four southernmost kommuner in Denmark.53 The Lund Recommendations, though
not accepted as setting new standards or functioning as subsidiary law, offer a
detailed account of what participation can entail.54 Some of these are found in the
Danish-German border region.
There are other non-binding instruments that address the issue of participation.
The OSCE has published Guidelines to Assist National Minority Participation in
the Electoral Process.55 The Warsaw Human Dimension Seminar on National
Minorities provides positive examples of how to ensure political participation of
national minorities.56 Under the auspices of the Venice Commission, a report was
made addressing participating in the operation of democratic institutions.57 The
Venice Commission prepared a report on Dual Voting for Persons Belonging to
51
See paras. (32.2), (32.6), (36) CSCE (1990) Copenhagen Document http://www.osce.org/odihr/
elections/14304 Accessed 06 May 2014.
52
Art. 4 (5) General Assembly (93 A.D.) UN Minority Declaration UN Doc. A/Res/47/135.
53
On the Danish minority see § 3 (1) Landeswahlgesetz Schleswig-Holstein (1991) Gesetz- und
Verordnungsblatt Nr. 19, 1991, 442–456. On the German minority see Bekendtgørelse om
Fremme af det Tyske Mindretal i Sønderjyllands Repræsentation m.v. i Haderslevs, Sønderborg,
Tønder og Aabenraa Kommuner (2005) Bek. nr 869 af 16/09/2005.
54
Part. II. A.-C. High Commissioner on National Minorities (1999) Lund Recommendations on
the Effective Participation of National Minorities in Public Life & Explanatory Note http://www.
osce.org/documents/hcnm/1999/09/2929_en.pdf. Accessed 29 May 2010.
55
OSCE/ODIHR (2001) Guidelines to Assist National Minority Participation in the Electoral
Process as published http://www.osce.org/documents/odihr/2001/01/1565_en.pdf. Accessed
04 June 2010.
56
Bloed (1993).
57
Stéphane Pierré Caps (1993) The Participation of Persons Belonging to National Minorities in
the Operation of Democratic Institutions CoE Doc. CDL-MIN(1993)002e-restr.
National Minorities.58 At the UN level, the Independent Expert on Minority Issues

equally has taken up the issue of participation in a minority context.59 The amount
of international documents on political participation mirrors the importance it has in
the field of minority rights. The documents mentioned here are not legally binding
and I do not propose they should be regarded as such. Nevertheless, they provide a
substantial sub-framework for the right to participation.
Participation is a well established right for minorities. Other rules have been
constructed around this principle and adherence should not be doubted. On the
contrary, there is a possibility to find even more adherence when one uses a wide
understanding of participation. In cases of minority interests being taken into
account, it is easy to reach the conclusion that somehow these interests must be
made known and that the minority participates at some level if this principles of
taking interests into account is to be filled with meaningful content.
10.4.2 Justice of the Right to Participation
Pre-Set Values The right to participation supports the pre-set values. Democracy
without participation is not imaginable. Participation is often understood in its
political sense but the right to participation covers public life in general. Partici-
pation is a useful tool for strengthening all pre-set values. Participation has an
ownership aspect. Lending from the business world where employee participation
is an issue, two points emerge. First, there is an assumption that employee com-
mitment to the company is improved through participation. Secondly, employee
participation has been motivated by the simple fact that non-participation is
unfair.60 Both points are interesting in the context of minorities. Involving minor-
ities and letting them participate will strengthen their commitment to the state. The
idea that non-participation is unfair is the reverse conclusion of what is argued here.
The right to participation contributes to strong pre-set values.
58
European Commission for Democracy Through Law (2008) Report on Dual Voting for Persons
Belonging to National Minorities CoE Doc. CDL-AD(2008)013.
59
See the documents by the Independent Expert on Minority Issues Gay McDougal: Independent
Expert on Minority Issues (2009) Note by the Independent Expert on Minority Issues, Gay
McDougall, on Minorities and Effective Political Participation UN Doc. HRC/FMI/2009/2 and
Independent Expert on Minority Issues (2009) Background Document by the Independent Expert
on Minority Issues, Gay McDougall, on Minorities and Effective Political Participation UN Doc.
A/HRC/FMI/2009/3. See also the Draft Recommendations on Minorities and Effective Political
Participation by the Forum on Minority Issues, Forum on Minority Issues (2009) Draft Recom-
mendations on Minorities and Effective Political Participation UN Doc. A/HRC/FMI/2009/4. For
an overview over UN activities see Forum on Minority Issues (2009) Work of the Office of the
High Commissioner for Human Rights and Human Rights Bodies With Regard to Minorities and
the Right To Effective Participation UN Doc. A/HRC/FMI/2009/5.
60
Kaler (1999), p. 129. For the same idea see also Esheté (1974), pp. 42–43.
Individual Freedom Nobody has to participate in public life or be part of decision-

making processes.61 This is an offer made to members of minorities. Participation
for minority members offers them the right to a voice. It is up to each single person
to choose the level of involvement. One should not forget, though, that individual
participation has consequences for the minority as a whole. Even though it may not
be a minority that has the right to participate, it is important for a minority to be
heard. Also, effective participation in the political sphere makes more sense if
understood in a wider group context. A minority member may be elected individ-
ually to a political body but this person will usually receive support from minority
institutions.
General Aims Engaging minorities can support peace and stability as well as
welfare. Effective participation means that minorities are heard. Even if not every
wish is granted, being heard and at least considered is much more satisfactory than
simply being ignored. Satisfied minorities do not pose a threat to peace and
stability. Participation can come in weaker and stronger forms. These can range
from simply being informed to participating in decision-making. Taking minorities
seriously will lead to more stability as their wish to seek an external solution to
issues should decline.
State Considerations Just like participation strengthens the stability of a state it
does not threaten the state. Integration of minorities in majority structures while
respecting their identity is one way of strengthening ties between the minority and
the majority. Participation aims at common interests and togetherness. There is no
external dimension in this on the contrary it strengthens the state internally as
minorities can live acceptably within the existing state.
Individual Best Interest Nobody can be forced to participate but it is not hard to
imagine that non-participation can endanger the minority’s continuing preservation
and existence. It also seems natural that one wants to be included in some way on
issues that have a direct effect on oneself. One example of inclusion is participation.
Minorities are different from the majorities; otherwise they wouldn’t be minorities.
Minorities have special interests and these need to be taken into consideration in
order to reach the general aims and preserve a liberal society’s values.
The Difference Principle The right to participation for members of minorities is to
the benefit of the least advantaged. When democracy is understood as the ruling of
the majority, small and weak groups and persons can easily be overlooked.
The right to participation strengthens the voice of members of minorities and in
continuation of this the minority as such. Introducing a right to participation
strengthens the weak and the least advantaged.
61
For an explicit recognition of this see part I. 1) High Commissioner on National Minorities
(1999) Lund Recommendations on the Effective Participation of National Minorities in Public
Life & Explanatory Note http://www.osce.org/documents/hcnm/1999/09/2929_en.pdf. Accessed
29 May 2010.
10.4.3 The Right to Participation and Self-Determination
Participation and self-determination are seemingly two opposites. The word ‘self’
in self-determination aims at complete control while participation has the notion of
sharing which means that there is no complete control but most probably a
compromise. Once one looks only at the meaning of internal self-determination,
this concept of complete control does not hold anymore.
Internal self-determination is about the relations between those governing and
those governed.62 The consent of those governed is of particular importance for
internal self-determination. Acceptance is most easily given when one is included
in processes. Democracy is also about accepting that not all one’s wishes come true.
If a decision is reached after a legitimate process, it is easier to accept the outcome,
even if one is not in favour of it. Participation of so-called weak groups as
minorities lends more legitimacy of the process.
Post-colonial self-determination has been argued to be about balance of inter-
ests. This is exactly what the right to participation is about. Through this right—if it
is as effective as is called for in international documents—the minority receives the
opportunity to make its interests heard.
Effective participation would be agreed upon in the original position. As a
possible means for this, the Copenhagen Documents mentions ‘appropriate local
or autonomous administrations’.63 The two qualifications make it acceptable to the
parties in the original position. Local and autonomous administrations must be
‘appropriate’ and they are only ‘possible means’. There is thus a balance between
majority and minority wishes. As there is no knowledge about the two groups in the
original position, a balanced provision would be the result. Arguably, the qualifi-
cations tilt the balance towards the state as it is the ultimate decision-maker
regarding minorities and thus can decide on inappropriate autonomous structures.
It could be argued that prescribing autonomous structures is disrespecting sover-
eignty. We should not forget, though, that we are in the original position where it is
the very objective to agree on principles and basic structures of society and the
state. Thus, agreeing on a specific structure cannot be contrary to sovereignty.
Furthermore, the text does not envisage extensive autonomous rights but speaks
of local or autonomous administrations. The text does not call for independent
executive decision-making power for minorities.
Participation is also a matter of level. For example, if minorities receive freedom
to determine the use of their own cultural funds, one could argue they have cultural
self-determination. Seen in the larger context, minorities may have participated in
the process of allocating these funds to the minority but it is not the minority alone
that allocates funds to itself. Thus, what seems like self-determination at a lower
level can be a product of a participatory process at a higher level.
62
See Sect. 9.2.1.
63
As participation is usually associated with political decision-making, the link to

political self-determination is obvious. The political aspect is described as freely
determining their political status. Political participation does not make it possible
for a minority to unilaterally declare its political status; be this internal or external.
This is not only true for minorities. The Welsh or the Scots could not just uni-
laterally declare to be autonomous. The process of devolution in the United
Kingdom was a slow process and even though it included referenda and thus the
participation of the population, the central government had its decisive role to play.
Self-determination understood as determining the self’s political status is most
likely not a unilateral right. The forthcoming advisory opinion on Kosovo’s uni-
lateral declaration of independence by the International Court of Justice will shed
light on this issue.
The right to participation does not equal political self-determination in the sense
of determining a political status. Participation is a part of political self-
determination when considering the internal aspect of self-determination. Internal
self-determination is characterized by democratic and possibly legitimate pro-
cesses. The right to participation for minorities contributes to the understanding
of internal self-determination.
It is important to distinguish general participation from specific language rights
or the right to cross-frontier contacts. For one, participation always needs a further
qualification; participation in which field and of what kind. The right to learn the
minority language is clear the way it is. Secondly, the right to learn the minority
language does not presuppose the active involvement of the majority society.
Learning the language is an activity that can happen parallel to regular majority
society life. The right to participation is different. If the minority member has a
right to participate in public life, it is implied that the majority is involved because
there must be something to participate in.
Participation can have a number of conflicting consequences. The closer the ties
between the minority and the majority the more difficult it can become to uphold
and preserve the minority identity. This last argument is a protective approach to
minorities and does not do their role justice. If minorities are to contribute to the
welfare and stability of the state they live in, they need to be ready to interact with
their surroundings. On a different note, participation can be used to make minority
issues heard and considered and can possibly create conditions that will make
preservation of the minority identity possible or easier. One can even take this
thought one step further. A member of a minority who participates in public life
exercises his or her right to self-determination at a very practical level. This person
uses the freedom of taking his individual self-determination to the public level. In
this sense, taking advantage of the right to participation is maybe the purest form of
exercising self-determination for a minority member.
10.5 Minority Rights and Internal Self-Determination 253
10.5 Minority Rights and Internal Self-Determination
The rights discussed in this chapter are well documented. They are found in
classically non-binding documents originating from bodies close to states.
So-called state distant documents also support the four rights.64 The documents
clarify issues and often link the different rights. The Geneva Report of Experts is an
example of a report where identity, language, cross-frontier contacts and participa-
tion are all addressed repeatedly. Minority rights only make sense when understood
together. They support each other. At the same time, there is also the restriction
which falls in the category of state considerations: ‘The right to maintain the
collective identity through the minority language must be balanced by the respon-
sibility to integrate and participate in the wider national society.’65 Not only are
identity and language linked but at the same time they are restricted by state
considerations. Even though this statement originates from a state distant
non-binding document, it captures the essence of minority rights. Recapitulating
the Friendly Relations Declaration on self-determination, this statement on minor-
ities strikingly reminds one of the constraints to self-determination. Everyone has
the right to self-determination as long as it happens within the existing state.
After having discussed specific minority rights and their relationship with self-
determination, we can reverse the angle and show graphically, where the overlap
between internal self-determination and minority rights is. Self-determination is
defined as freely determining the political status and the economic, social and
cultural development. Internal self-determination mainly means two things. For
one, it is respectful of territorial integrity and keeps self-determination within
existing boundaries. Secondly, internal self-determination stresses democratic pro-
cesses, the free will and informed choices.66
The following graphic representations take a look at the four dimensions of self-
determination. At the centre, we find keywords of the definition or content of the
specific dimension of self-determination. In the outer circles we find specific
minority rights from the four minority instruments; namely the CSCE Copenhagen
Document of 1990, the Language Charter of 1992, the UN Minority Declaration
also from 1992 and the Framework Convention of 1995. The specific origin of the
minority rights mentioned below can be found in the annex.
64
On state distance and state closeness see Sect. 4.1.2.
65
Education Rights of National Minorities & Explanatory Note http://www.osce.org/documents/
66
For an argument of self-determination as a concept of political participation see Mello (2004),
pp. 206–208.
Express,
preserve and
Effective develop minority
Participate in
participation identity
activities of
regarding
national and
protection and
international
promotion of
NGOs
minority identity
Autonomy,
participation, non-
Effective territorial participation,
Cross-frontier
participation in any other political status contacts
public affairs
freely determined
(federalism, devolution,
decentralization)
The possibility Participation in
of local or economic
autonomous progress and
administrations States take development
legitimate
minority
interests into
account
Fig. 10.1 Political self-determination and minority rights
10.5.1 Internal Political Self-Determination
Internal political self-determination means to freely determine one’s political

status.
As becomes clear from Fig. 10.1, there are minority rights which support what is
covered by the headline of political self-determination. Of these rights, some
directly address issues of participation while other rights could be deemed to be
of supporting character. Examples of the former are the right to effective partici-
pation in public affairs and the possibility of local or autonomous administrations.
An example of the latter could be the right to express, preserve and develop the
minority identity. This right itself does not correspond to internal political self-
determination, but it is an important building stone if political self-determination
were to be applied to minorities. Another example, one that is not included here, is
the right to language. If accepting that language is the main means by which one
engages politically,67 then several language rights should have been included here
as well. The reason why they are not included in the graphic illustration above is
that language is merely a tool, but not a precondition such as identity.
Participation can be more than political participation. Participation in elections
or political bodies is not the only way of implementing an internal right to political
self-determination. Yet, the minority right to participation overlaps with internal
political self-determination. They are not completely concordant but they overlap.
Taking into account the suggestion that local autonomy or autonomous admini-
strations could be a good way of ensuring minority rights, the overlap becomes
larger.
While the number of overlaps is moderate, the minority rights which directly
address issues of participation cover a large area of the large circle of political self-
determination. When speaking of a large overlap, it is all the more important to note
the content of self-determination—the circle on self-determination is solely
concerned with internal self-determination.
10.5.2 Internal Economic Self-Determination
Internal economic self-determination means to freely pursue one’s economic

development.
As with political self-determination, there are some minority rights that directly
address issues of economic concern, while other rights only indirectly support
economic self-determination of minorities; see Fig. 10.2.
An example of a double overlap is found in the Oslo Recommendations. It is
stated that members of national minorities can operate private businesses in the
language of their choice.68 Firstly, this statement addresses the language compo-
nent and connects it to economic participation. Secondly, economic participation
falls within the economic dimension of self-determination. Language rights can be
of relevance in the economic dimension. Cross-frontier economic contacts can—
but not must—further economic self-determination of minority businesses or
organizations. Part of economic self-determination is the free disposal over natural
wealth and resources. This is a classic indigenous right. Indigenous peoples can
claim minority rights but one cannot reverse this and give the classic minorities in
Europe a general right over their natural resources
The number of overlaps is lower than for political self-determination. In addi-
tion, the overlaps directly addressing economic self-determination are very limited.
Also, they do not directly give minorities and independent role in the economy, but
67
Dudar (2012), p. 557.
68
No. 12) High Commissioner on National Minorities (1998) Oslo Recommendations Regarding
the Linguistic Rights of National Minorities & Explanatory Note http://www.osce.org/documents/
To participate
fully in the
economic
progress and
development in
Operating
the country To receive
private
education in the
businesses in
minority
the language of Free disposal over language
choice
natural resources
GDP, per-capita
income, human Educational,
To knowabout
minority development index, cultural,
religious
history, long and healthy life, institutions,
language,
culture
education, decent organizations,
associations
standard of living
To use the
minority
cross frontier
language in
contacts
private and
public
Fig. 10.2 Economic self-determination and minority rights
place the minority within the context of the larger society, as can be seen in the
wording of “participat[ing] fully in the economic progress and development of the
country.
While it is thinkable that a minority could establish a parallel economy to the
majority society, it seems much more obvious that minorities also participate in the
larger context where they are located. Thus, economic self-determination for
minorities is difficult to conceive by itself. In connection with political self-
determination, economic self-determination begins to make more sense; however,
still remains somewhat weak. Again, there is an overlap between minority rights
with an economic dimension and internal economic self-determination without the
two being congruent.
effective
participation in effective
public affairs participation
To receive
regarding
education in the
protection and
minority language
promotion of
ntity
minority identity
Rais of the material
Raising rial
Express, preserve and spiritual standards of profess and
and develop practice their own
minority identity living, right to work, religion
trade unions,
improvement of health,
elimination of hunger,
To develop
eradication of illiteracy, to use the minority
minority culture,
language in private
language, cultural diversity, and in public
traditions, customs
political participation
pol ion
to express
association and
minority educational, assembly
characteristics ccultural, religious
institutions,
organizations,
associations
Fig. 10.3 Social self-determination and minority rights
10.5.3 Internal Social Self-Determination
Internal social self-determination means to freely pursue one’s social development.

Already at the first sight of Fig. 10.3 it becomes clear that the overlap between
self-determination and minority rights becomes larger. Part of this larger overlap
may be explained especially through two keywords appearing in the centre circle:
cultural diversity and political participation. We see that the different dimensions of
self-determination cannot be separated completely. At the same time, most of the
minority rights here address issues of cultural diversity which may be a part of the
social dimension of self-determination; however, keeping in mind that cultural self-
determination is a dimension in itself, overlaps of minority rights with cultural
diversity should not weigh too heavily when considering social self-determination.
Social development covers many aspects and dimensions of human life. Conse-
quently, minority rights cover some but not all of them. The index of social progress
includes factors such as education, health, defence effort, political participation and
cultural diversity. None of the minority rights examined here cover health issues or
defence efforts. Education is covered by some language rights such as the right to
learn the minority language at all stages of education. There are other minority
rights such as provided by art. 13 FCNM where members of minorities are
guaranteed the possibility to set up private educational establishments. The edu-
cational language rights of minorities are not to the detriment of the majority
population. The majority’s right to social development is not curbed by these
minority rights. Members of minorities, on the other hand, achieve one dimension
of internal social self-determination when being granted the right to learn and use
their minority language at educational facilities. The index of social progress
undoubtedly overlaps with the minority right to participation.
When looking at the content of social self-determination in the large inner circle,
we find very few minority rights that address the key concepts of social self-
determination. Again, this is not surprising. Similarly to economic self-
determination, social self-determination takes place in the larger context of society.
Improvement of health or eradication of hunger can be of utmost importance to
poor minorities; however, these goals cannot be achieved by a minority in isolation.
The state has a large role to play in this matter.
10.5.4 Internal Cultural Self-Determination
Internal cultural self-determination means to freely pursue one’s own cultural

development.
The number of overlapping circles in the Fig. 10.4 is the highest among all
dimensions of self-determination. Also with regards to the content of the circles,
they directly address issues of culture. Thus, we have both in quantity and in quality
the largest overlap between self-determination and minority rights. The minority’s
culture, the traditions and solidarity among the members of minorities are preserved
for future generations.
Internal cultural self-determination is the dimension of self-determination clos-
est to minorities. The right to identity offers members of a minority to be part of the
group, the culture, adhere to minority traditions and speak the minority language.
The right to identity has a strong temporal dimension in the sense that it preserves
the minority culture for future generations. The language rights for minorities also
are strong indicators for preserving the culture. For many minorities, language
remains a key factor in their identification as a minority or member of a minority.
Cross-frontier contacts also support the culture of a minority. All these rights
strengthen the minority in preserving what it was, is and stands for. They give the
minority the possibilities to live self-determined in several dimensions. A minority
will never be completely isolated from the rest of the state. There are always points
To know about
minority
m history, Effective
Express, language, participation
preserve, culture regarding
develop protection, and
minority identity promotion off
minority identity
entity
To profess and
Express
practice one’s
minority
characteristics own religion
Symbols, rituals, beliefs,

traditions, creative arts,
To use the
Learn the performing arts, music, minority
minority theatre, museums, language in
language private and in
archeology, libraries, public
literature, radio,
television, sports
Receive
education in the
Access to media
minority
language
Develop
D
minority
min culture,
language, Educational, Cross-frontier
religion, religious,
re cultural contacts
traditions, organizations,
customs institutions,
associations
Fig. 10.4 Cultural self-determination and minority rights
of contact. The fact that members of minorities are required to learn the official
state language and to integrate with larger society means that self-determination is
restricted to smaller areas. Nevertheless, the examined minority rights offer these
areas of self-determination and it is up to the minorities and their members to make
use of the rights.
Minority rights work in cooperation with each other. It is difficult to extract one
single right and equate it with a certain dimension of self-determination. There are
several minority rights that together make up the cultural dimension of self-
determination. Having the right to learn the minority language is part of cultural
self-determination. To speak the minority language is also part of it. To establish
cultural associations is a third part. Cultural self-determination covers many
aspects. One single minority right is therefore not sufficient to fill the whole concept
of cultural self-determination.
Of the rights examined here, identity is a precondition for a discussion on self-

determination. At the same time it has a reciprocal and enhancing relationship with
other minority rights. The right to learn and use the minority language will be more
sought after if there is a strong identity among members of a minority. On the other
hand, learning and using a minority language as a member of the minority will
strengthen one’s identity. Similarly, the right to participation in public life can
strengthen the minority identity as one is more aware of the differences but a strong
minority identity could also be regarded as a precondition to participate in public
majority life. This last one point is more likely to be made in a political context.
For example, it is most likely only a person with a strong minority identity that will
run for office for a minority party. Reversing the argument, standing up for minority
issues in a forum of people who possibly do not think much about the minority
might strengthen the identity of the minority representative.
In conclusion, identity is important to minorities and self-determination alike.
Without identity, it is impossible to pinpoint the group eligible for self-
determination. This means that self-determination only follows after an identity
has been established. The reverse statement is not applicable. Just because a
group has an identity it does not necessarily follow that is has a right to self-
determination.69
The right to learn and use one’s own minority language is most relevant for the
cultural and possibly social dimensions of self-determination. Some of the language
rights address the issue how culture is preserved in overall development. They
make sure that there are possibilities to preserve an important aspect of a culture.
Culture includes among other things arts, media and theatre. Having the possibility
to make these available in the minority language is part of the minority’s cultural
self-determination. As culture can be understood as being part of social develop-
ment, there is also a part for language rights in this. However, similar to cultural
self-determination, social self-determination includes so much more than only one
single minority right can cover.
The right to cross-frontier contacts is connected to other minority rights. These
contacts will most likely strengthen identity. At the same time, an existing identity
will most likely result in a higher interest to keep cross-frontier contacts. Minorities
sharing a language with their kin-state will most likely experience both effects.
Cross-frontier people-to-people contacts occur mostly in a cultural or an economic
context. In an economic context this can lead to economic development when
companies find new cooperation partners or markets. The right to cross-frontier
contacts does not by itself constitute any right to self-determination. Yet, it is
another brick in the larger picture of self-determination.
The right to participation most obviously hints at political self-determination.
Minorities do not have the right to unilaterally change their political status; how-
ever, they do have the right to participate. Internal self-determination is about
69
Even stronger formulated, ‘the right to “identity” never includes the right to state-creation.’ See
Heintze (2004), p. 293.
inclusive and democratic processes. Participation and its notion of the self being in
complete control seem to be at odds with each other. One should remember that
self-determination is always limited by circumstances, law or other persons’ rights.
Thus, complete control is misleading. Participation and the right to be taken
seriously is what internal self-determination is about.70 Participation does not
mean to get everything but it means to look for compromises when interests
clash. Participation means being heard and taken seriously but not necessarily
that all wishes are fulfilled.
Minority rights do not automatically lead to self-determination. Minority rights
are possibilities and opportunities for members of minorities. It is up to the
minorities and their members to breathe life into these rights. When scrutinizing
the different dimensions of self-determination, self-determination does not seem to
be so threatening to the state. The terms ‘self-determination’ and ‘minorities’ are
still not mentioned in the same context; however, a comparison of the content of the
four dimensions of self-determination with specific minority rights leads to the
result that there are overlaps and that this is not as disastrous as is generally
portrayed.
Conclusion
Before concluding this chapter, a short note on external self-determination is
appropriate. External self-determination should not be linked to minority
rights. As the Hague Recommendations stress, ‘persons belonging to national
minorities have a responsibility to integrate into the wider national society.’71
This is not only applicable in the area of language but is the overall approach
to minorities.
Several observations were made in this chapter. Regarding Thomas
Franck’s criteria on legitimacy it emerges that adherence is the weak point
of three of the minority rights examined. Language rights take a special
position as their adherence is strengthened greatly by the existence of the
Language Charter. Otherwise, it lies in the nature of declarations that there is
no monitoring or enforcement mechanism attached. They receive their adher-
ence pull from treaties.
There are, however, a number of documents that could be said to rank
lower than the non-binding documents of the analysis. These include the
OSCE High Commissioner’s thematic recommendations and the Geneva
Report of Experts. They are not legally binding but they contribute to the
body of documents on minority rights in Europe. They are not directly
(continued)
70
Klabbers (2006), pp. 202–203.
71
No. 1) High Commissioner on National Minorities (1996) Hague Recommendations Regarding
the Education Rights of National Minorities & Explanatory Note http://www.osce.org/documents/
subsidiary to other non-binding instruments or treaties, but in the case of the

HCNM recommendations, they explicitly refer to relevant provisions and
thus fulfil the role of subsidiary provisions.
What the rights lack in adherence is balanced by strong pedigrees. The
discussed minority rights all feature in documents that have received wide-
spread state support. Probably the most important issue arises regarding the
determinacy of the rights. As was discussed in relation to the Framework
Convention, a flexible approach was meant to secure state support. Similarly,
the strong pedigree of the rights might in part be a result of a lack of
determinacy at times. Pedigree remains a key factor. A strong pedigree is
found when states themselves agree on an issue or adopt and support a
document. As we are dealing with sovereign states, it is only of secondary
importance what is agreed. Primarily, it is important who agrees. States can
agree to anything they want—as long as they agree. This approach is mirrored
in the stress that is put on pedigree. Of course, not much is gained if states
were to agree on something completely utopian; however, in principle it is
their right to do so.
If pedigree is gained, determinacy can sometimes be lost. Language rights
benefit enormously from the Language Charter which is very detailed in its
provisions. Art. 14 FCNM on language rights is difficult to understand at first.
What it lacks in determinacy, the Language Charter more than makes up for.
Identity is an indeterminate concept just like self-determination
is. Nevertheless, the right to have an identity is quite clear. The provisions
on identity are general in nature which they need to be as basic principles.
At the same time they limit identity to certain characteristics. The same is the
case for cross-frontier contacts. Even if the documents put a slightly different
focus, the aim of the right is clearly understood. The right to participation is
determinate; however, again the indeterminacy lies in the concept itself. In
order to find out what ‘participation’ actually means we need to look at more
documents where it is further explained, best practices are listed and the
different dimensions are taken up. The provisions including a right to partici-
pation are not indeterminate but the concept of participation is often not
explained thoroughly enough. This is done in supporting documents.
The rights are found in all core documents but also in supporting docu-
ments like recommendations of the OSCE High Commissioner. The rights are
firmly in place in a larger framework. Not only do they themselves fit the
context but the minority rights are connected and interrelated. There is a
coherent framework of minority rights and the four rights examined here
support the framework and each other.
Concluding on Franck’s criteria, pedigree and coherence are undoubtedly
met. Adherence and determinacy are also upheld, though they receive a
qualified yes. Even so, adherence and determinacy are not in doubt and
(continued)
therefore the overall conclusion on Franck’s criteria is that they are met and
thereby the four minority rights identity, language, cross-frontier contacts
and participation are legitimate or in other words procedurally fair.
The catalogue of criteria inspired by John Rawls presents a similar picture.
There are gradual differences between the rights and to what degree they
support the criteria. None of the rights, though, contradict the criteria.
The biggest challenge is posed by cross-frontier contacts because an
external dimension is introduced. This external dimension cannot be un-
limited. Restrictions are necessary. They may not, however, obstruct justice.
This contradiction can be explained. ‘Free and peaceful contacts’ are exam-
ples of just restrictions. They limit cross-frontier contacts in line with liberal
values. A different restriction is provided in the larger context of minority
rights. These rights cannot be used contrary to international law and must
respect fundamental principles such as sovereign equality and territorial
integrity. Being placed within this framework, the right to cross-frontier
contacts for members of minorities fulfils the justice-criteria.
All four rights support the pre-set values of democracy, human rights and
the rule of law. Similarly, the possibilities contained in the rights offers the
individual members of minorities a choice. They are not forced to make use of
these rights or even to be considered members of the minority. Individual
freedom is not only respected but furthermore protected by the four rights. It
is generally considered that minority rights will contribute to peace and
stability of the state; the general aims. As mentioned above, the right to
cross-frontier contacts could be a potential danger, but the restrictions
attached make it a peaceful tool. The right to identity does not challenge
the state in its borders. Language rights do not challenge the majority in the
way identity does and are thus not as problematic. Learning a language and
using it is not debated. The right to use a minority language with public
authorities such as administrations and judicial authorities is limited by
practical reasons which are not considered to be unjust. Thus, Denmark has
restricted the applicability of the Language Charter to the German minority
language as such but restricted it to Southern Jutland. Members of the
German minority moving outside this area cannot claim language rights
under the Language Charter. This is considered just because it would
be impossible in practice to guarantee the language know-how in all of
Denmark. Participation clearly supports the pre-set value of democracy and
thereby it should also support the general aims of the right to participation
which is peace and stability of the state. The possibility to be heard and the
right to have a say in society integrates a minority. At least in theory,
participation appeases minorities and thus contributes to peace and stability.
Human interests fall outside of the Rawlsian framework. Nevertheless,
even here the rights are supported. It seems natural to want to have an identity
(continued)
and participate in the larger society and especially on issues that are of one’s
direct concern. Speaking one’s own language equally seems like a natural
wish. From the other viewpoint, it does not seem strange if another group
wants to have an identity, speak its language and participate. Cross-frontier
contacts may be more important to some groups than to others but again it
does not seem alien to want to be in contact with those one feels a connection
with. From a majority viewpoint, the fact that there are restrictions attached to
the cross-frontier contacts means that there is nothing to fear from a
minority’s cross frontier contacts.
The difference principle is of absolute importance in Rawls’ framework.
All four minority rights aim at the weak group in society. They seek to elevate
the weaker group to a higher level and close the gap to the majority. This may
be done directly through the right to participation and indirectly through the
right to identity in order to strengthen the group as such in its dealings with
the majority. Overall, the four minority rights identity, language, cross-
frontier contacts and participation affirm and support the Rawlsian criteria.
The analysis of this chapter concludes with several results. For one, the
four minority rights are considered to be legitimate. For another, the four
rights are regarded to be just. Third, it has also been shown that there is an
overlap between the four rights and the content of internal self-determination.
Internal self-determination has several dimensions and while there for exam-
ple is more overlap of the four minority rights with cultural self-
determination than with economic self-determination, the overlap cannot
simply be ignored. There is no basis for the conclusion that minorities do
not have a right to self-determination. On the contrary, the overlaps show that
there are enough reasons for a serious reconsideration. This is done in the
appropriate framework in the next chapter.
References
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Chapter 11
Putting Together the Pieces
Each of the foregoing chapters focuses on a certain subject—a piece—that plays a

role in the discussion on internal self-determination for minorities. The chapters are
partly based on each other as is the case of Chaps. 5 and 10 being based on Chap. 4.
They also refer to each other. Chapter 3 contains information on the actors and
non-binding instruments important in this discussion. Chapter 6 contributes with a
presentation on relevant treaties that appear in the discussion in Chap. 10. These are
only examples and there are many more such links between the chapters.
This chapter brings order into these links and references between the chapters.
The discussions of some chapters deserve to be put into the larger framework. The
analyses of non-binding documents and the four minority rights are done in the
context of the original position. This is the necessary framework in order to
consider the Rawlsian criteria. The conclusions on the legitimacy and justice of
the documents and the four minority rights need to be put into the larger context of
minorities, minority rights and self-determination. This chapter brings together the
input and conclusions of the other chapters. This allows for a comprehensive
conclusion on the right to internal self-determination for minorities.
11.1 Framework
Minorities and self-determination are issues discussed around the world. Neverthe-
less, I have limited my framework to the European level.1 While self-determination
issues are mostly addressed at the global level, there are more minority rights
embedded within the European regime than on the global level. European docu-
ments on minority rights have a key role in the analysis. One cannot make a global
argument based on these documents. Furthermore, the justice approach calls for a
1
For the definition of Europe see Sect. 1.4.

DOI 10.1007/978-3-319-08876-1_11
268 11 Putting Together the Pieces
homogenous group of actors. The global community is not homogenous. Even

within Europe, homogeneity is not a given. However, in the area of human rights
European states have similar values. Rawls specifically restricts his theory to liberal
states. A European framework conforms to demands of theories and sets sensible
limits to the project.
Even though minority rights and self-determination have been known for cen-
turies, this project focuses on the twentieth century. The milestones of the century
were the protection of minorities in connection with the League of Nations,
decolonization and post Cold War time in the last decade of the century. Decoloni-
zation and the implications it has for external self-determination is excluded as far
as possible. However, one cannot understand self-determination in the twentieth
century without this dimension.
It is important to know the underlying framework of international relations.
Considering a question of international law in a political vacuum is like following
street signs without knowing the desired destination. One will get somewhere and
see the landscape but whether the tour has any further value is questionable.
Knowing the underlying theories of international relations lets one know whether
to follow the signs for the airport, the train station or the motorway. In short, it
makes a big difference which school of international relations is accepted. Follow-
ing the international relations signs of realism would lead us directly to the airport.
This is of little use when the international law analysis travels by bike.2
Most importantly, I reject theories that see international law as irrelevant.
I regard international law to have two dimensions. States act in their own interests
and use international law in this process. This dimension is found in the Rawlsian
criterion of state considerations. At the same time, especially in the area of human
rights, international law is sometimes upheld because it is the right thing to do.
Liberalists put the individual at the centre of attention. This underlying inter-
national relations concept is mirrored in the Rawlsian criteria of individual freedom
and an individual’s best interest. Another international relations approach which
underlies the project is regime theory. Regime theorists3 accept actors other than
states. Non-state actors and especially instruments originating from non-state actors
are of particular importance in this project. Soft law and what I term non-binding
instruments are part of the world regime theorists and those endorsing global
governance inhabit. Overall, this view on the international world influences
which tools I can use for my analysis in international law.
2
For the presentation of liberalism, regimes, governance and institutions see Chap. 2.
3
On the definition of regimes see Sect. 2.2.
11.2 Tools and Preparations 269
11.2 Tools and Preparations
Before considering the analysis it is necessary to take a look at the array of tools that
were chosen. For one, the project is open to non-state actors. In order to comply
with the claim to be a realistic project, the actors were narrowed down by criteria
that led to international organizations emerging as the non-state actors relevant in
this project. International organizations are made up of numerous bodies and
depending on their state distance the influence of the bodies on international law
is graduated. The documents and the occasional oral statement originating from
these international organizations and their bodies all contribute to the context of the
discussion on internal self-determination for minorities. I have termed them (classi-
cally) non-binding instruments. Those non-binding instruments adopted by states
receive the highest scores on pedigree. Other instruments are relevant, but they are
treated as support rather than being capable of serving as bases for further discus-
sion themselves.
Pedigree is one of Thomas Franck’s criteria of legitimacy. Pedigree concerns the
procedural question of origin. International law still revolves around sovereign
states and as Koskenniemi has said, ‘[f]or the modern lawyer, it is very difficult
to envisage, let alone to justify, a law which would divorce itself from what states
think or will to be the law.’4 Having accepted that state interests play a role, it
would be naı̈ve to believe that states would accept just anything as international
law. International law originates from states—or that is the classic tale. While I
challenge this strict view I do not want to depart much from it. States may not be the
only actors but they are still the most important actors when it comes to rule-
accepting under international law. International organizations are accepted but the
pedigree of documents and rights remains a central issue.
The first reason for focusing on pedigree thus is that the more influence states,
their governments or their representatives have on the making of a document or a
specific right, the more likely it is that they will accept it at later stages. Secondly,
accepting non-state actors is necessary but should not be done without giving it
further thought. It has been stated that the sources of law are of great practical
importance.5 It is unrealistic to leave the sources doctrine behind completely. Thus,
even in the approaches of legitimacy and justice, pedigree and state interests are
important. The focus on pedigree explains Chap. 6 which is solely concerned with
assuring that classically non-binding instruments are acceptable for further ana-
lysis; in short that rights originating from these sources have a good pedigree.
The relevance of non-binding instruments is shown by applying two sets of
criteria. Thomas Franck introduces two dimensions of fairness. Procedural fairness
is termed legitimacy and substantive fairness is termed distribute justice.6 Franck
sets up his criteria in relation to rules. I use them slightly differently in Chap. 6 on
4
Koskenniemi (1990), p. 21. See also Koskenniemi (2005), pp. 270–273.
5
Weisburd (1988), p. 2.
6
For a thorough introduction to the theories and the criteria see Chap. 5.
the various documents. In order to be taken seriously in the further analysis, a

document has to be both procedurally and substantively fair. The criteria for
procedural fairness are taken directly from Thomas Franck. The so-called Rawlsian
criteria are developed on the basis of John Rawls’ theory of justice. They account
for the substantive dimension of fairness.
Four non-binding instruments are chosen for further scrutiny. They are all of
relevance in their respective fields of minority rights and self-determination.
Though they exhibit different degrees of affirmation of the fairness criteria, they
are all concluded to be relevant in international law. The relevance is based on the
conclusion that the documents are fair. Just like fair rules exert a strong compliance
pull according to Franck, the same is valid for fair documents. A compliance pull is
the description of the effect of a given rule or document. A fair document pulls on
states to comply with the document. The fairer the document is the stronger the pull.
Of the four documents, three exert a compliance pull today. The fourth is Res. 1541
whose compliance pull at best is restricted to the era decolonization. In conclusion,
the non-binding instruments are approved for further use in the project.
11.3 Results: Internal Self-Determination and Minority

Rights
The same test of criteria the documents have to face is applied to four specific
minority rights. First, the fairness and thereby the compliance pull of the four rights
is shown. The next idea takes the argument one step further. Minority rights,
originating mostly from non-binding instruments but supported by treaties, receive
the status of legal rules under international law. It is then shown that minority rights
and self-determination—within certain restrictions that are explained below—
overlap. It makes no sense to deny minorities the right to self-determination if the
content of the minority rights and the content of self-determination is the same.
From this thought follows the conclusion that minorities have a right to self-
determination—but of course, still with restrictions attached.
The restrictions need to be addressed. They concern the terms ‘minorities’ and
‘self-determination.’7 Only when these terms are clear, an informed and sound
conclusion is possible.
The term ‘minority’ is not defined in a legally binding document. Nevertheless,
it is possible to restrict the group of persons this project is concerned with. The first
restriction is made by introducing the term ‘classic minorities’. This excludes
groups that sometimes are termed minorities. These groups include immigrants,
refugees, homosexuals and political groups. They are not part of this project. I am
solely concerned with minorities that are covered by the understanding of the term
7
For thorough discussions on these terms see Chap. 8 on minorities and Sect. 9.2 on self-
determination.
11.3 Results: Internal Self-Determination and Minority Rights 271
‘minority’ under international law—no matter how vague this understanding may
be. Chapter 8 has shown that a closer look reveals a general understanding of
‘minority’ but that there is no clear delineation to the related concepts of peoples
and nations. Even within the area of the minority definition, it is difficult for
example to distinguish between national and ethnic minorities.
This project simply speaks of minorities. These minorities are understood to be
national or ethnic, linguistic and religious minorities. This is borrowed from the
title of the UN Minority Declaration. I do not attempt to categorize minorities
because the categories overlap in different forms. I summarize national or ethnic,
linguistic and religious minorities under the term ‘classic minorities’ or simply
‘minority’.
Apart from the difficulty to distinguish between the different types of minorities,
there is the problem that international documents, UN representatives, state repre-
sentatives and scholars use the same terms but endow them with different meanings
or vice versa use different terms but mean the same group of persons. While this is
unsatisfactory in the context of definition, the lack of delineation only has conse-
quences for one area, albeit an important area of this project.
The overlap between nations and minorities is neglected as the rights of nations8
are not clearly defined. It is thus nations that would claim minority rights than the
other way round. Furthermore, nations are not the object of examination, so the
overlap between nations and minorities is recognized but not further explored. The
second overlap, the one between peoples and minorities, is much more important.
Self-determination is often denied minorities because they are not peoples.
Chapter 8 shows that this distinction between peoples and minorities is not credible.
Recognizing an overlap, there are two possible ways to continue. One is to
continue the argument and focus on defining minorities along the lines of peoples
and in this way to endow minorities with a right to self-determination (in an
unlimited version). I, however, follow a different path. I do not look at the right
holders but I focus on the content of the rights. If minority rights describe some-
thing that could equally well be described under the title of one of the dimensions of
self-determination, then self-determination and minorities are not linked because of
the link between minorities and peoples, but because of the content of minority
rights and self-determination. In Chap. 10, an overlap of internal self-determination
and some minority rights is argued for. Already here, a right to internal self-
determination for minorities seems likely. It is not dependent on the overlap of
the right holders. Yet, this overlap, of course, strengthens the overall argument. It is
therefore reintroduced in the discussion when the conclusion is placed in larger
context.
The second term to be clarified is ‘self-determination’. The main conclusion of
Chap. 9 is the limitation of self-determination to mean what today is called internal
self-determination. Self-determination is often equated with secession or another
8
Nation is sometimes used synonymously with states while at other times it is defined by group
characteristics. See Sect. 8.2.3.
way of rearranging state boundaries. There is no persuasive reason to do this.

Granted, during decolonization a large number of new, independent states appeared
on the map. State boundaries were drawn and re-drawn. Yet, and this is an
important point to note, these boundaries did not threaten the territorial integrity
of existing states. This needs a short explanation. Colonial states such as Portugal
regarded their colonies to be an integral part of Portugal. Following this thought,
territorial integrity was broken up by granting independence to colonies. However,
this thought was rejected by most other states. Colonies, or non-self-governing
territories as the UN Charter calls them, were defined as those separated by sea
water in Res. 1541. This has two consequences. For one, colonies did not form part
of the territory of the colonial state. It is thus somewhat misleading to speak of
external self-determination. It was external for the colonies in the sense that they
became independent but it was not external for colonial states for their core
territories were not affected by Res. 1541. This is the second consequence of the
resolution. While Res. 1541 covered overseas territories, the salt water rule made
sure that no regions or peoples within the core territory of the colonial state could
claim self-determination under Res. 1541.
Self-determination was introduced as self-government and was directed at the
consent of those governed.9 It quickly evolved into something more but Woodrow
Wilson’s idea had internal solutions in mind. It is thus not so strange to return to the
idea of internal self-determination. After the end of the Cold War, international law
faced many challenges, most of which are still existing. The rise of human rights,
the idea of humanitarian interventions, conditional recognition of new states by
member states of European Union and the idea of democratic governance have
challenged the state in many ways. Borders are not impermeable anymore. Many
issues that were national issues are now of international concern. While borders are
not the stronghold of the state that they used to be, they are still a key piece in the
set-up of the state. Relying on internal self-determination means to avoid issues on
external borders.
Internal self-determination seeks democratic processes. Self-determination is
not a concept to be invoked once and never again. Internal self-determination
focuses on processes. This mainly derives from the description of determining the
economic, social and cultural development. Self-determination is a continuing
right. It means to include all those willing to participate. It does not mean that
everyone participating will always receive what is claimed. Self-determination
means being taken seriously. Internal self-determination places all this within the
framework of the state.
Another reason for focusing on internal self-determination is territorial integrity.
Regarding self-determination, there has always been a bias towards an internal
solution which is most obviously pronounced in the principle of territorial integrity.
Even when considering the external possibilities as listed in Res. 1514, territorial
integrity is always a limit to the exercise of self-determination. Internal self-
9
For the development of the concept of self-determination see Sect. 9.1.
11.4 The Right to Internal Self-Determination of Minorities in Larger Context 273
determination does not threaten the territorial integrity of a state and is thus much
more suited for further analysis.
It is too general to conclude that minorities have a right to self-determination. It
is necessary to keep in mind that minorities are meant to be classic minorities. Self-
determination is understood as meaning internal self-determination. Thus, a right to
internal self-determination for classic minorities seems to emerge. This conclusion
is reached within the framework of legitimacy and justice. It is necessary to place
this conclusion in a larger context.
11.4 The Right to Internal Self-Determination

of Minorities in Larger Context
Chapter 10 concludes with the insight that the overlaps between internal self-
determination and the analysed minority rights warrant a serious reconsideration
of the often repudiated link between minorities and internal self-determination.
Chapter 10 is set in the limited framework of legitimacy and justice. The original
position is a hypothetical situation and the overall conclusion of this project shall
not be hypothetical. Nevertheless, it was necessary to conduct the analysis of justice
in the original position. Therefore, it is now crucial to extract the conclusion from
its padded surroundings and regard it in a larger context.
The starting point is that several minority rights and several dimensions of
internal self-determination overlap. The right to internal self-determination for
minorities is legitimate and just. Because a right is legitimate and just does not
mean it is realistic. As Jan Klabbers has put it: ‘In fact, whether X may have a right
to self-determination appears to be largely irrelevant for its chances to exercise
it.’10 Embedding my conclusion into the framework of the other chapters shows it is
far less challenging than it appears at first sight.
There are three key arguments in this regard. For one, the group characteristics
approach to peoples provides a common context for minority rights and self-
determination. The overlap of the categories peoples and minorities opens for
minorities to be discussed in relation to self-determination. For another, treaties
and non-binding instruments have brought minorities and autonomy together.
There is no right to autonomy; however, an approximation of minorities and certain
dimensions of self-determination are visible. A third point addresses the historical
dimension. The link of minorities and self-determination in the aftermath of World
War I shows that they are not exclusive of each other. Each of these arguments is
addressed now.
Categorizing groups into minorities, peoples and nations is a challenging task.
As was shown in Chap. 8, the terminology is diverse. The most interesting aspect
regarding definitions is what I have called the group characteristics approach.
10
Klabbers (2006), p. 188.
The opposite approach is the territorial approach of defining a people to be the

inhabitants of a given territory. Even applying it to decolonization as it was done is
a dubious undertaking considering that Res. 1541 spoke of ‘a territory and its
peoples.’ While this approach may have contributed to stability at the time, it is
increasingly difficult to uphold this territorial approach. Peoples are more realisti-
cally defined by their characteristics. The group characteristics approach11 includes
both an objective and a subjective dimension. Common characteristics in the fields
of traditions, culture, linguistics, religion or ideology are important. Two further
points are a racial or ethnic identity and the consciousness of being a people. This is
not so different from a minority definition. The other factors, institutions and
common economic life, are more difficult for minorities to achieve but not impos-
sible. The territorial connection is not part of the minority definition but neither is it
important. The kind of self-determination minorities can claim is not aimed at the
territory but at the group.
A second argument in this context of the right holders concerns the rights
themselves. Binding and non-binding documents alike use the word peoples in
relation to self-determination. Other rights of peoples are not specified. It is not
clear what rights other than self-determination peoples can claim. There are specific
categories of peoples such as indigenous peoples. The documents on indigenous
peoples include specific rights. Yet, here the concept of people is based on the group
characteristics approach. Rights of indigenous peoples would be reduced to absur-
dity if ‘peoples’ is understood as the inhabitants of a given territory. Peoples do not
have any other explicit right than that to self-determination.12
At the same time, at least some of the accepted minority rights cover internal
self-determination. Recognizing this does not all of a sudden extend minority rights
to infinity. There is only one right affected by this procedure. It is a straight forward
matter. Groups defined as minorities can most probably be defined as peoples. If
this is accepted, minorities receive the right to internal self-determination—a right
they have in all but name already in the form of (some) minority rights.
Another argument on the overall question of internal self-determination for
minorities concerns explicit links between minorities and self-determination.
These two terms are never used in the same sentence. However, several documents
establish autonomy as a concept in relation to minority issues. Autonomy is one
way of exercising self-determination.13 One has to be careful here. Autonomy
means self-government. What the documents envisage is mostly self admini-
stration. Thus, the Copenhagen Document speaks of ‘appropriate local or auto-
nomous administrations.’14 The UN Independent Expert tentatively suggested
11
See Sect. 8.2.2.
12
See the major international documents UN Charter, ECHR, ICCPR, ICESCR. Art. 25 ICESCR
and art. 46 ICCPR on natural resources are argued to be part of economic self-determination.
13
See Sect. 9.2.1.
14
11.4 The Right to Internal Self-Determination of Minorities in Larger Context 275
‘territorial or non-territorial autonomy’15 for minority groups. There is no right to

autonomy for minorities. However, steps have been taken in the direction of
opening the concept of autonomy in some form or other for minorities.
This is not a new idea. As has been discussed,16 autonomy has been linked to
minorities in the past. Autonomy should not only be understood in the political and
territorial sense. Cultural or religious autonomy are non-territorial forms of auto-
nomy. They do not threaten the territorial integrity of the state. Throwing cultural
development as one dimension of self-determination, cultural autonomy and minor-
ities into a hat, the result will only become an independent state by magic.
The third main argument continues along the line of history. In some countries
the minority treaties after World War I led to the participation of minorities in
political processes17—something which falls under the headline of internal self-
determination. During that time, participation and self-government were the
favoured concepts. It did not and still does not threaten a state’s territorial integrity
to let minorities participate on different levels and in different fields. Self-
government must be understood within the ever present limits of territorial integ-
rity. Internal self-government is not equally easy to accept for every state. Federal
states are built on internal self-government but centralistic states may not be so easy
to convince of the concept of internal self-government.
It was argued that self-determination is never unlimited but that it is restricted by
other persons’ rights. The same is true for minority rights. Both minority rights and
especially self-determination are issues of balance.18 Internal self-determination or
internal self-government does not necessarily mean absolute control for the group
claiming it. There are different ways of exercising self-government. Three dimen-
sions are traced to Woodrow Wilson’s framework: independence, plebiscites and
minority treaties.19 This exemplifies the different dimensions of self-determination.
Independence was an accepted reality rather than a concept carried out because of
political will of leading states of the time. This has not changed since World War
I. The emergence of new states is still a process regarded with sceptical eyes by
existing states. Plebiscites are clear examples of the understanding of self-
determination as process. The fact that the minority treaties are part of Wilson’s
framework shows that minorities belong to the context of self-determination.
15
Para. 26 Independent Expert on Minority Issues (2006) Specific Groups and Individuals:
Minorities UN Doc. E/CN.4/2006/74.
16
See Sect. 9.2.1.
17
See Sect. 7.1.3.
18
See Sect. 9.2.1.
19
See Sect. 9.1.2.
Conclusion
Legitimacy is the procedural aspect of fairness. Justice is the substantive
aspect of fairness. For the conclusion this means, in short, that a right to
internal self-determination for classic minorities is fair. This does not mean
that political reality will be changed. However, as the context shows, a right
to internal self-determination for classic minorities is not threatening states in
Europe. It is rather the recognition of a reality that has existed for the past 15–
20 years and which has solid historical roots.
States granting minorities a right to internal self-determination only put a
different label on existing and accepted minority rights. These minority rights
are firmly embedded in the European framework. Dealing with liberal states,
neither minority rights nor internal self-determination should be viewed as
threatening states. Non-state actors and classically non-binding instruments
are relevant in the European framework of human rights and minority rights.
The instruments included here strike the balance between independence of
the actors yet closeness to states.
Issues in Europe are influenced by several factors. Global international law
is not only applicable but often originates or is at least supported by European
states. Regional international law such as the treaties of the Council of Europe
is more specific than global international law. The different international
governmental organizations in Europe span a net of legal provisions and
expectations in the field of minority rights and minority treatment. Exemplary
is the Final Act of Helsinki. Whether it is regarded as legally binding or not,
the fact remains that there is an obligation for states not to act contrary to
it. History is another factor which should not be underestimated. Institution-
alized Europe as we know it today has its roots in common historical
experiences. The main thread that seemed to have been lost over the decades
has re-emerged after the end of the Cold War.
This notion shows international self-determination and classic minorities
belong together. The link between internal self-determination and classic
minorities is fair. Depending on the circumstances, the same group of persons
can be a people or a minority. Recognizing the right to internal self-
determination for classic minorities in Europe overcomes historical inconsis-
tencies, solves definitional problems and moves international law one step
closer to reality.
References 277
References
Books and Articles
Klabbers J (2006) The right to be taken seriously: self-determination in international law.

Hum Rights Q 28:186–206
Koskenniemi M (2005) From apology to Utopia. Cambridge University Press, Cambridge
Weisburd AM (1988) Customary international law: the problem of treaties. Vanderbilt J Trans-
national Law 21:1–46
Primary Sources
CSCE (1990) Copenhagen Document as published. In: Bloed (ed) The Conference on Security and
Co-operation in Europe – Analysis and Basic Documents 1972–1993. Kluwer Academic
Independent Expert on Minority Issues (2006) Specific Groups and Individuals: Minorities UN
Doc. E/CN.4/2006/74
Part IV
Conclusion
Chapter 12
Conclusion
This project links classic minorities and minority rights to internal self-
determination. The overall fabric of the link is not law originating from the sources
of art. 38 (1) ICJ-S. Treaty law only plays a supporting role. The link is made out of
the four minority rights to identity, language, contacts across frontiers and partici-
pation, the approach of legitimacy and justice and non-binding instruments.
In order to lend more strength to the link, threads such as a group characteristics
approach to peoples and the historical approach to self-determination as self-
government are woven into the fabric.
12.1 Traditional and Alternative International Law
The project falls mainly into two parts. One could term them traditional and
alternative. Tradition is followed on a number of points. Speaking of self-
determination, a common attempt is to break it down into its components and
examine them separately. I have followed this common approach and examine
who determines what and in what way. I initially categorize instruments according
to the traditional way of the sources doctrine. Terms are used that reflect how
traditional international law sees them; for example the term non-binding instru-
ment. They are termed non-binding because they do not fit art. 38 (1) ICJ-S. Yet, the
very conclusion of the analysis is that they have binding force. The traditional way
of doing things is also followed regarding the term ‘minority’. The different
components are discussed in order to shed light on the overall concept. The analysis
of Chap. 10 uses treaties which are a traditional source of international law.
At the same time, traditional international law is challenged. The ‘self’ in self-
determination is reinterpreted. The ‘what’ of ‘what does the self determine’ is
subjected to closer examination. Here, the content of self-determination, especially
the economic, social and cultural development receives due attention. These
dimensions are often only treated with insufficient detail and care. An alternative

DOI 10.1007/978-3-319-08876-1_12
282 12 Conclusion
approach to the sources doctrine is offered. The approach of legitimacy and justice
challenges the accepted truth in international law that binding force only flows from
state consent. Non-binding instruments are concluded to have binding force. This
force stems from their legitimacy and justice. The approach itself of putting more
emphasis on the content of self-determination than on the examination of the ‘self’
is different than most traditional discussions. This approach makes it possible to
discuss minority rights and self-determination together. The discussion on minority
rights draws on traditional international law as found in treaties but it also heavily
relies on non-binding instruments that were earlier on in the project concluded to be
relevant and suitable for further use.
Traditional international law meets its limits once faced with the question of
whether minorities have a right to internal self-determination. The path of analysis
chosen in this project provides new possibilities and a wider scope than traditional
sources doctrine allows. Nevertheless, the project is restrictive in the application of
the new approach so as not to alienate traditional international lawyers.

of Minorities
The question considered in this project is straight forward: Do minorities have a

right to internal self-determination? The very short overall answer is that classic
minorities in Europe have a right to internal self-determination according to the
approach of legitimacy and justice. Several questions arise both from the question
and the conclusion and are addressed in the different chapters.
Part I introduces the subject matter. In Chaps. 1 and 2, the framework and outer
limits of the project are provided. A very basic assumption is that international law is
relevant. Another basic viewpoint is that international relations are based on much
more than only binding international law. Regimes and institutions defined in broad
terms are relevant. The project is limited to Europe while the term ‘Europe’ calls for a
clearer definition. The project deals with liberal states which are defined in terms of
democracy, market economy, private property rights and civil and political rights.
Chapter 3 provides an overview of minority rights and self-determination that can
be found according to the classic sources of international law under art. 38 (1) ICJ-S.
The conclusion is that among these sources only treaty law is an indispensable source
for this project. Customary international law as the second of the two most important
sources of international law is imbued with too many conceptual problems that even a
modern approach of customary international law cannot solve sufficiently.
Chapter 4 continues with an overview of actors and instruments that can be found
in the fields of minority rights and self-determination. This chapter, however, refers
only to non-state actors and non-binding instruments, as it is in relation to these that
their relevance for the further analysis has to be shown. The chapter shows the
12.2 The Right to Internal Self-Determination of Minorities 283
number of actors and instruments there are and as a consequence of this calls for an
approach that meets both actors and instruments openly yet not uncritically.
Chapter 5 does exactly what Chap. 4 calls for. It offers an account of the
approach of legitimacy and justice which are concerned with questions other than
sources. Legitimacy is found according to a test based on Thomas Franck’s four
criteria of legitimacy which are determinacy, pedigree, coherence and adherence.
A catalogue of six criteria is developed covering the dimension of justice. This is
inspired by the theory of justice of John Rawls.
By applying legitimacy and justice to the non-binding instruments, Chap. 5
shows that the chosen instruments are recognized as valid and relevant. The
conclusion is that certain non-binding instruments can be used in the further
analysis on equal footing with accepted international law such as treaties.
Part II starts by addressing the question of the framework of minority rights as
human rights in chapter 7. Minority rights have existed for centuries and they are
rightly placed within a human rights context. A suspected conceptual problem of
collective self-determination, individual human rights and minority rights as indi-
vidual rights with a collective dimension is not confirmed.
The definition of ‘minority’ and the different categories of minorities remains an
open issue. Chapter 8 shows also that a clear distinction between minorities and
peoples is difficult, especially when considering the last of related terms—
‘nations.’ The terms are used for different groups or the same group of persons
receives different name. The international community has so far not been able to
agree on clearly defined terms. One of the important conclusions of this chapter,
however, is that the distinction of peoples and minorities does not make much sense
when using the group characteristics approach to peoples.
In Chap. 9, self-determination itself is finally the object of discussion. Origi-
nally, self-determination was an internal concept about the consent of those
governed. This understanding is resurfacing now with the right to democratic
governance and participation for everyone and especially members of minorities.
External self-determination, as seen in the era of decolonization, is the exception.
The four dimensions of self-determination are examined. Thus, the chapter
addresses the meaning of the phrase ‘by virtue of that right [self-determination]
they freely determine their political status and freely pursue their economic, social
and cultural development.’1 Self-determination is more rightly regarded as a pro-
cess within existing states and regimes. Self-determination has never been and still
today is not unlimited but restricted by other people’s rights.
Part III consists of two chapters. Chapter 10 applies the criteria of legitimacy and
justice to the four minority rights of identity, language, contacts across frontiers and
participation. The analysis relies on binding and non-binding instruments alike. The
significance of the non-binding instruments was shown in Chap. 6. It is established
1
General Assembly (1960) Declaration on the Granting of Independence to Colonial Countries
and Peoples UN Doc. A/RES/1514 (XV).
284 12 Conclusion
that the rights are legitimate and just and thus exhibit a strong compliance pull.
They are firmly established and then compared to the dimensions of self-
determination that were described in Chap. 9. An overlap between well-established
minority rights and internal self-determination is found. In other words, a right to
internal self-determination for minorities is legitimate and just.
Chapter 11 takes this conclusion and provides the larger context. It draws on
previous chapters and establishes that a right to internal self-determination for
classic minorities in Europe does not threaten states. Furthermore, the chapter
shows that recognizing a minority right to internal self-determination is simply to
recognize a reality that has existed for the last 15–20 years.
12.3 Implications
The right to internal self-determination for classic minorities in Europe today may
at the most be considered to be soft law. Soft law has been justified as only being an
interim step towards hard law. Time will tell whether states will recognize the right
to internal self-determination for classic minorities in Europe.
Internal self-determination for minorities does not threaten the territorial inte-
grity of states. It does not break up states. It may even have the contrary effect.
Sometimes, minorities claim self-determination. Most times, states refuse self-
determination to any group. The right to self-determination is widely supported
by states—as long as it does not concern the states themselves. The conclusion of
this project is that minorities may reach their goal while states do not lose anything
when a right to internal self-determination is recognized.
Implications for the world outside my office window are difficult to foresee.
State opinions are not easily changed.
In any kind of attempt to persuade states to do something, you need to be profoundly
practical. You need to start from where they are now, if you want any chance of getting
them to move in another direction. That means we need to understand where states are. We
can’t get them to accept the premise on which you wish to work. You’ve got to accept
theirs.2
Concerning self-determination, it may be even more difficult to accept new

developments in international law, even when the developments are what can be
termed ‘state-friendly.’ There are a number of initiatives in relation to new insti-
tutions in both fields of self-determination and minority rights. These include the
establishment of a self-determination commission at the United Nations. Also for
the UN, an Office of a High Commissioner for Self-Determination has been
proposed.3
2
Frankovits (2001), p. 124.
3
For both suggestions see Hampson (2001), pp. 31–34.
References 285
It has been recognized that judicial structures for the implementation of minority
rights may not be suitable. Thus, the inclusion of minority rights into the European
Convention on Human Rights may not be desirable. The European Court of Human
Rights would not be able to cope with a case with three parties such as the minority,
the state and the majority or the kin-state. For these cases, a European Ombudsman
for Minority Issues has been proposed.4 His role is envisaged to be that of a
mediator. He is an international, independent and neutral person under the Council
of Europe. The Ombudsman could be an institution established under a Covenant
on Minority which is another instrument that has been suggested.5 If any of these
institutions were actually established, the discussion on the right of minorities to
internal self-determination would stand a better chance of being seriously
considered.
References
Books and Articles
Frankovits A (2001) Towards a mechanism for the realization of the right to self-determination.
In: Kly YN, Kly D (eds) In pursuit of the right to self-determination. Clarity Press, Atlanta,
pp 19–35
Hampson FJ (2001) Structures of governance rights & a general assembly of nations. In: Kly YN,
Kly D (eds) In pursuit of the right to self-determination. Clarity Press, Atlanta, pp 124–129
Trechsel S (2000) Human rights and minority rights – two sides of the same coin? A sketch. In:
Mahoney P et al (eds) Protecting human rights: the European perspective. Carl Heymanns Verlag,
Köln, pp 1443–1453
Official Material
Participating Countries, Minority Rights Group International, London
Primary Source
General Assembly (1960) Declaration on the Granting of Indpendence to Colonial Countries and
4
Trechsel (2000), pp. 1452–1453.
5
Participating Countries, Minority Rights Group International, London, p. 11.
Chapter 13
Summary
The right to self-determination is a right for peoples—not for minorities. This

classic tale of self-determination is questioned by examining the content of the
right to self-determination and the content of minority rights. Self-determination
has four dimensions: the political, the economic, the social and the cultural dimen-
sions. Minorities have minority rights that touch on most aspects of life as a
member of a minority. If there is an overlap between minority rights and the
different dimensions of self-determination, the tale that the right to self-
determination is only applicable to peoples loses credibility.
No global and general conclusion is envisaged; there are restrictions in place.
The project is limited to the European framework. It is further restricted to
classic minorities. The argument is based on an approach of legitimacy and justice.
The analysis in this project shows that some minority rights overlap with the
different dimensions of internal self-determination. In short, classic minorities in
Europe have a right to internal self-determination.
13.1 Framework
The very basic assumption of this project is that international law is dynamic and in
constant development. It both shapes and adapts to circumstances around it. The
project is confined to Europe. Here, Europe is limited to the liberal states of
Western and Eastern and Central Europe. The focus on Europe has several reasons.
For one, some of the most important documents are only applicable to European
states. For another, the approach of justice demands a homogenous community of
liberal states. Even though differences between European states are recognized,
Europe is regarded as coming close to fulfilling the demand. Another limitation of
the project is its focus on classic minorities. This project focuses on those minorities
that are covered by the UN Minority Declaration, by art. 27 of the International
Covenant on Civil and Political Rights, by the Framework Convention on the

DOI 10.1007/978-3-319-08876-1_13
288 13 Summary
Protection of National Minorities and those that are covered by the CSCE Copen-
hagen Document.
13.2 The Argument
The project is divided into three main parts. The first part introduces the relevant
actors and instruments. It explains the approach that is taken throughout the project
and concludes with a first application of the approach to four instruments.
The second part provides the larger context for the final discussion. It provides an
overview of existing and undisputed international law in the area of minority rights
and self-determination. It also examines the three main terms used throughout the
project: minority rights, minorities and self-determination. Part III includes the
main analysis of four minority rights and the four dimensions of self-determination
and secondly, it provides the overall discussion answering the question on internal
self-determination for minorities. Part III starts with an analysis that is directly
linked to Part I before it draws on the conclusions of Part II.
Chapter 1 introduces the project. The research question is ‘whether minorities
have a right to internal self-determination.’ Furthermore, the general framework
and limits of the project are provided. Recurring terminology is explained. These
include the terms ‘minorities’, ‘Europe’ and ‘non-binding instruments’.
Chapter 2 provides the general direction of the project. It introduces the under-
lying approaches of international relations that influence this international law
project. There are two international relations pillars to the project. One is liberalism
which focuses on democracy and the individual. It is a suitable approach consider-
ing the European framework and the fact that both minority rights and self-
determination are referred to in a human rights context. The other pillar sets the
stage for non-state actors and non-binding instruments that are used throughout the
project. This pillar is supported by those international relations theorists supporting
approaches of international governance and the relevance of institutions and
regimes. They believe that there is more to international relations than legal
relations. For example, they believe moral or political expectations and obligations
need to be considered.
This supports the argument made in the project where non-state actors and
especially documents originating from these actors play an essential role in the
analysis. Classic international law has an uneasy relationship with both of them.
Nevertheless, one cannot ignore the fact that international organizations play an
increasingly important role in the international arena. Similarly, there is a large
amount of documents that are considered non-binding and therefore not relevant
under classic international law because they do not fit into the categories of sources
of international law as laid down in art. 38 (1) of the Statute of the International
Court of Justice.
Chapter 3 presents minority rights and self-determination under traditional
international law and thus provides part of the foundation for the analysis in
13.2 The Argument 289
chap. 10. The overall discussion would not be complete if accepted and undisputed
law were excluded. Treaty law is relatively clear. Customary international law as
the second main source of international law besides treaties is discussed but
discarded from the subsequent analysis because of too many conceptual problems.
From this overview it becomes clear that there is so much more ‘out there’ on
minority rights and self-determination. However, this ‘out there’ is outside the
scope of classic international law that adheres to the sources doctrine. Therefore,
the picture is widened in chap. 4.
Chapter 4 describes four non-state actors of which three are included in the
analysis. They are all international governmental organizations. The global
non-state actor is the United Nations. On a European level, the Council of Europe
and the Organization for Security and Cooperation in Europe are chosen for further
analysis. The fourth actor is the European Union which is too new of an actor in the
field to be included. Not all non-binding instruments originating from international
governmental organizations have the same influence on international law. Instru-
ments adopted by state representatives are accorded a higher relevance because of
the possibility of states to make their opinions heard. Non-binding instruments
originating from independent sub-bodies of international governmental organ-
izations are included but are merely treated as supporting instruments.
The chapter shows a complex picture of actors and instruments in the fields of
minority rights and self-determination. The sources doctrine of classic international
law does not know how to deal with these actors and instruments. The sources
doctrine relies on the sources of art. 38 (1) of the Statute of the International Court
of Justice. The instruments introduced in this chapter cannot be part of the analysis
when relying solely on the sources doctrine; yet, the instrument cannot be ignored.
Therefore, an approach of international law is called for that allows for the actors
and instruments to be taken seriously.
Chapter 5 takes up the call for an alternative approach to international law.
The theories of Thomas Franck’s Legitimacy and John Rawls’ Justice open the
field of analysis. Legitimacy and justice establish the compliance pull of a rule.
The compliance pull is the indicator of the chances that a rule will be followed.
The compliance pull is made up of two dimensions: a procedural aspect and a
substantive aspect. Only a rule that is both made in a legitimate way and whose
content is considered to be just is likely to be followed. The more forcefully the
criteria of legitimacy and justice are fulfilled, the stronger the compliance pull will
be. The procedural aspect is discussed by applying Franck’s four criteria of
legitimacy. These are determinacy, pedigree, coherence and adherence. The sub-
stantive aspect is discussed by applying a set of criteria inspired by the theory of
justice by Rawls. The first criterion is that of the pre-set values of democracy, the
rule of law and human rights. Secondly, individual freedom is discussed. The issue
of supporting the general aims of peace, stability and welfare is third. Fourth is
the criterion of state considerations which is mirrored in the fight criterion of the
individual’s best interest. The sixths and last Rawlsian criterion is that of the
difference principle. The Rawlsian criteria are applied in the so-called original
290 13 Summary
position behind the veil of ignorance where nothing about the society that is about
to be structured is known.
The approach of legitimacy and justice is used twice in the project. For one, it is
applied to four non-binding documents; two documents each on minority rights and
self-determination. For another, the approach is used on four specific minority
rights. This way, the compliance pull of the documents and the rights is tested.
In Chap. 6, the first application is done. The compliance pull of four documents
is assessed. In the field of minority rights these are the UN Minority Declaration
from 1993 and Part IV of the CSCE Copenhagen Document from 1990. Regarding
self-determination, Res. 1541 (XV) from the context of decolonization and Princi-
ple V of the Friendly Relations Declaration are tested. Each of the four documents
is tested regarding all ten criteria of legitimacy and justice. Of the four documents,
only Res. 1541 (XV) has a weak compliance pull. The other three documents are
found to be legitimate and just. The non-binding instruments are relevant because
they exert a strong compliance pull. They are therefore suitable to be used as
reliable sources further on. This preliminary analysis serves as the basis for the
main analysis in Chap. 10.
The main terms themselves—minority rights, minorities and self-determination—
have yet to be defined and explained in the project. Regarding minority rights, an
examination of history shows that minority rights and self-determination have not
always been kept apart as is the case today. Minority rights and self-determination
are both discussed within the framework of human rights. Human rights focus on the
individual. The seeming contradiction of individual human rights and collective
rights such as the right to self-determination and minority rights that have inherent
collective dimensions is not confirmed.
Chapter 8 addresses the term ‘minority’, which is not defined in any treaty. It is
impossible to offer an unambiguous definition of the term. It has been said that
minorities are a matter of fact, not of definition. Peoples on the other hand, seem to
be a matter of definition. In this project, the approach of defining a people by its
territory as was done during decolonization is rejected. When a people is defined by
its characteristics, it becomes very difficult to define a minority differently from a
people. Also, an individual can be a member of a minority and a people at the same
time by belonging to the exact same group of persons. The distinction between
peoples and minorities seems arbitrary.
Chapter 9 offers the understanding of self-determination. Woodrow Wilson, who
is credited with introducing self-determination to the international community,
regarded it foremost to be an internal concept. Apart from relying on solutions
that respect territorial integrity, internal self-determination focuses on self-
determination as process. A third point in this context is that self-determination
cannot reasonably be limited to the era of decolonization. The second part of
Chap. 9 addresses the four dimensions of self-determination and what they actually
cover. This is important when comparing minority rights to the four dimensions of
self-determination.
With the groundwork done, the main analysis takes place. In Chap. 10, four
minority rights face the test of legitimacy and justice. The analysis relies heavily on
13.3 The Right to Internal Self-Determination of Minorities 291
the non-binding instruments that were found to be unproblematic for this task in
Chap. 6.
The four minority rights are the right to identity, the right to language, the right
to cross-frontier contacts and the right to participation. These four rights cover
aspects of importance to minorities and they span over a wide field of different
dimensions of minority rights. All four minority rights are found to be legitimate
and just. They exhibit a strong compliance pull and they are well established rights
in the field of minority issues.
The four minority rights are then compared to the four dimensions of self-
determination as explained in Chap. 9. The degree of overlaps is different for the
different dimensions of self-determination; however, it is clear that there is (“is” in
italics) a considerable overlap between internal self-determination and the four
minority rights.

of Minorities
The overlap between minority rights and the content of self-determination means
that minorities have a right to self-determination. This conclusion, however, is
found within the restricted framework of the original position of the theory of
justice. The final answer must consider the context in which minorities, minority
rights and self-determination are embedded.
The broader perspective shows that minorities and self-determination are always
kept apart. Scholars mainly give two reasons. For one, minorities are not peoples
and therefore, they cannot have a right to self-determination. For another, self-
determination was only applicable in the context of decolonization. Neither of these
reasons holds up at closer scrutiny.
A meaningful distinction between peoples and minorities is difficult. Applying a
group characteristics approach to peoples, most minorities are peoples. Granting
minorities the rights of peoples does not pose a threat to states. Self-determination is
internal in its effects. One cannot simply reduce it to decolonization. Self-
determination existed before decolonization and it is still a current issue today.
Self-determination was originally conceived as an internal concept. It does not
threaten the territorial integrity of a state.
Furthermore, it should be kept in mind that the framework lets us deal with
liberal states only. In those states, according special rights to a group does not
threaten society. On the contrary, involving all groups and individuals into
decision-making in all aspects is a defining characteristic of the liberal state.
Also, the analysis showed that the protection of minorities is balanced by interests
of the state. Therefore, internal self-determination, no matter whether for peoples or
for minorities, is acceptable for liberal states.
292 13 Summary
The question whether minorities have a right to internal self-determination can

now be answered in the affirmative. There are several important overlaps. Minority
rights and self-determination overlap. Peoples and minorities overlap. Self-
determination is best understood as an internal concept. Classic minorities in
Europe have a right to internal self-determination.
Annex I: Overview of Minority Rights Provisions
in Minority Documents
Chapter 10 provides the analysis of four chosen minority rights and their overlap
with the concept of internal self-determination. The four minority rights are for the
most part headlines for a category of rights and encompass several specific rights.
The following table shows precisely which rights from which documents belong
the four categories. The precise source is given as well. Thus, it is possible to retrace
all steps in the analysis and which are only shortly mentioned in Chap. 10.
Four categories of minorities are chosen for the analysis:
1) the right to identity
2) the right to language
3) the right to cross-frontier contacts
4) the right to participation
The column “rights” depicts a summarizing formulation of a specific right. For
example, the right to effective participation is spelt out in different terms in the
different documents. The exact provisions that can be found in the columns of the
four instruments may focus on political participation [No. 35 (1) and (2) of the
Copenhagen Document, art. 2 (3) of the UN Minority Declaration], economic and
social participation (art. 13 of the Language Charter) or be of general nature [art.
2 (2) of the UN Minority Declaration; art. 4 (2) and art. 15 of the Framework
Convention].
Which specific rights and provisions foremost belong to which category can be
found in the column “category”.
In the column “comments”, two types of comments are made. For one, it is
pointed out if a right is also a more general human right. For another, it is pointed
out if a provision in the documents is not a positive right for members of minorities.
As becomes clear, apart from the provisions on the prohibition of assimilation or
population transfer, the fact that rights may be exercised individually or in com-
munity with others and that no disadvantage shall arise from exercising minority
rights, all positive rights for members of minorities are covered by the four
categories chosen for the analysis.

DOI 10.1007/978-3-319-08876-1
Copenhagen Language UN Minority Framework
294
Rights Document Charter Declaration Convention Category Comments

Existence/identity 33 1 5 (1) Identity
Non-discrimination 31 2 (1) 4 (1) Human right
Equality before the law 4 (1)
Effective participation 35 (1) 13 2 (2) 4 (2) Participation
35 (2) 2 (3) 15
Association/assembly 32.6 2 (4) 7 Human right
17 (2)
Cross-frontier contacts 32.4 14 2 (5) 17 Cross-frontier
contacts
Individually/in community 32.6 (2) 3 (1) 3 (2)
with others
No disadvantage 32 (1) 3 (2) 3 (1)
32.6
Express/develop minority 32 (2) 12 4 (2) 10 (1) Identity
5 (1)
Learn minority language 32.1 8 4 (3) 14 (1) Language
34 14 (2)
Knowledge about the minority 32.5 8 (g) 4 (4) 12 (1) Identity
34
Part of economic development 35 12 4 (4) 6 (1) Participation
4 (5) 12 (1)
15
Take minority into account 5 (1) Participation Not a positive
5 (2) right
States cooperate on minority 36 14 6 1 Not a positive
issues 2 right
18
Annex I: Overview of Minority Rights Provisions in Minority Documents
Treaty safeguards 37 4 (1) 8 (1) 21 Not a positive
4 (2) 8 (2) 22 right
5 8 (4) 23
Positive discrimination 31 (2) 8 (3) 4 (2) Not a positive
4 (3) right
Minorities are an international 30 1 Not a positive
concern right
No assimilation or population 32 (2) 1 5 (2)
transfer 16
Religion 32.2 8 Identity
32.3
32.6
Media 32.5 11 9 Identity
Cross-frontier
contacts
Language 34 9 4 (3) 10 (2) Language
32.1 10 10 (3)
32.5
Signs, names 11 Language
Education 32.1 8 4 (4) 12 (2) Language
12 (3)
14 (2)
Annex I: Overview of Minority Rights Provisions in Minority Documents
295

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Ulrike

Minorities, Minority Rights

ISBN 978-3-319-08875-4 ISBN 978-3-319-08876-1 (eBook)

© Springer International Publishing Switzerland 2015

Printed on acid-free paper

Springer is part of Springer Science+Business Media (www.springer.com)

Odense, Denmark Ulrike Barten

ACHPR African Charter on Human and Peoples Rights

Part I The Framework

4 Non-State Actors and Non-Binding Instruments . . . . . . . . . . . . . . 49

Part II Key Concepts

7 Minority Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

9.2.4 The Nature of the Right to Self-Determination . . . . . . 202

10 Minority Rights and Internal Self-Determination . . . . . . . . . . . . . 223

© Springer International Publishing Switzerland 2015 3

1.1 Research Question and Approach

chapter on self-determination. After all, the treaty recognized religious minorities

the UN Minority Declaration, the Copenhagen Document, General Assembly

global perspective Europe is regarded as a homogenous society when it comes to

international law as unsatisfactory in its treatment of non-binding instruments. The

informed and conclusive answer to the question on a right to internal self-

Books and Articles

Castellino J, Gilbert J (2003) Self-determination, indigenous peoples and minorities. Macquarie

United Nations (2014) Minority Estimation. http://www2.ohchr.org/english/issues/minorities/

International law neither exists nor is it made in a political vacuum. It would

© Springer International Publishing Switzerland 2015 15

international law influences state behaviour or in stronger language: rules structure

self-determination and minorities together is likely to be regarded as utopian. I

received a boost and virtually all states in Europe,—Belarus is considered a border

2.2 Regimes, Governance and Institutions

The approach of neoliberal institutionalism and regime theory22 influences the

Yet, a relation can easily be established. According to Slaughter, regime theo-

put, Europe is full of extensive and well-developed institutions. I see states

Books and Articles

CSCE (1990) Copenhagen Document http://www.osce.org/odihr/elections/14304 Accessed

© Springer International Publishing Switzerland 2015 27

A treaty is defined as an agreement between states governed by international law.4

3.1.1 Minority Rights in Treaties

the Parliamentary Assembly, the Framework Convention for the Protection

discrimination because of association with a national minority in art. E of the

3.1.2 Self-Determination in Treaties

3.1.3 Intermediate Conclusion

International law on minorities, their rights and self-determination can be found in

3.2 Customary International Law

‘Customary international law causes problems wherever it is referenced.’47 With

3.2.1 Classic Customary International Law

3.2.2 Modern Customary International Law

3.2.3 Intermediate Conclusion

Customary international law is an accepted source of international law. Its impor-

3.3 Other Sources of International Law

Books and Articles

© Springer International Publishing Switzerland 2015 49

understanding of international law on these issues is offered. This approach lets us

4.1 International Governmental Organizations

4.1.1 Taking International Governmental Organizations

It is not disputed that international organizations play an important role in interna-

compliance.7 International organizations can act independently in a number of

4.1.2 Criteria for International Organizations

European Union in the legal protection of minorities in the future. Self-

4.1.3 Overview of International Governmental Organizations

framework of the Minorities Declaration. The Forum is open to the participation of

Similarly to the UN Independent Expert on Minority Issues, he works along the

adopted the resolutions on decolonization. Over time, self-determination issues

4.2 Non-Binding Instruments