LAW 221: INTERNATIONAL LAW Dr. Başak Çalı

Outline This week: International Law and Self Determination Protection of Minorities in International law International human rights law Outline

Sources UN Charter The ICCPR and the ICESCR General Assembly Resolutions Bilateral minority treaties The Council of Europe Framework Convention on the Protection of National Minorities Sources

Evolution in normative content over time Self determination (Post Versailles, Post 2nd WW, Post decolonization) Minority rights (Post Versailles, Post 2nd WW, Post development of the IHRL regime) IHRL (post 2nd World War) Evolution in normative content over time

Self-determination and protection of minorities have emerged in IL as a response to statehood problems in Europe following the demise and dissolution of empires. Historical outlook

Called self-determination ‘an imperative principle of action’ for post 1st World War settlements Failed to convince other leaders include the principle within the United Nations as a universal principle of post war settlement. Woodrow Wilson

Bilateral Minority rights treaty regime Emerged as a solution in the post WW1 negotiations. Peoples that remained on the ‘wrong side’ of the border were accorded protection through bilateral treaties. Purpose: to guarantee equality to minority individuals and to ensure that the minority can keep its characteristic and traditions. Bilateral Minority rights treaty regime

Examples of peace treaties with minority rights regimes Treaty of Versailles (1919) Treaty of St. Germain (1919) Treaty of Trianon (1920) Treaty of Lausanne (1923) Examples of peace treaties with minority rights regimes

2nd World War and the UN Charter Right to self-determination in the UN Charter Article 1(2) Article 55: the self-determination of peoples a principle on which “peaceful and friendly relations among nations” is based. 2nd World War and the UN Charter

Question: Is the right to self-determination a binding right? Is it a legal right in treaties? Is it custom? Is it ius cogens? (cf. Timor Gap case) What is the scope of the right? Who does it apply to? Question: Is the right to self-determination a binding right?

Skeptical views It cannot create a binding right. It is too general, too vague. Who has a right to self-determination exactly? This is a political principle with a weak legal content Skeptical views

UN General Assembly (GA) Resolution 1514 (1960) “all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. UN General Assembly (GA) Resolution 1514 (1960)

Features Defined as a right of a people Includes the right to determine political status And the right to freely pursue economic, cultural and social development. Features

Common Article 1 of the ICCPR and the ICESCR 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. Common Article 1 of the ICCPR and the ICESCR

The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the UN (1970) by virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all people have the right freely to determine... their political status

Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order: To promote friendly relations and co-operation among States; and To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;

and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.

Self-determination belongs to a people who are under alien control. Coupling of self-determination with de-colonisation This is called external self-determination of colonised peoples. Post 1970 interpretation

Human Rights Committee General Comment 12 Paragraph 3, in the Committee's opinion, is particularly important in that it imposes specific obligations on States parties, not only in relation to their own peoples but vis-à-vis all peoples which have not been able to exercise or have been deprived of the possibility of exercising their right to self-determination. The general nature of this paragraph is confirmed by its drafting history. It stipulates that "The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations". Human Rights Committee General Comment 12

Internal self determination With regard to paragraph 1 of article 1, States parties should describe the constitutional and political processes which in practice allow the exercise of this right. Internal self determination

Does external self determination extend beyond decolonisation in international law? If so, what criteria will be used to define peoples? Does external self-determination apply to people living within existing states? (the people of a state) Does internal self-determination mean right to democratic governance? Does internal self-determination involve a right to constitutional autonomy? (a people within a state) Do minorities have a right to internal self-determination? Do indigenous people have a right to self-determination? Disputed issues