A second conceptual observation should be made to set the tone for the rest of the chap- ter. Leaving aside the question of peremptory norms in international law, it should also briefly be recalled that the vast majority of the corpus of international law has been formed by the con- sent or acquiescence of states to be bound to a particular legal concept, and by subsequent state practice. Therein lies the implication of consent: by virtue of active membership within a group, its members give, at minimum, tacit consent to allow the aggregation of one’s individual actions to a collective, or group level, in order to promote that associated aggregated, collective or
group interest.6 When considering the concepts of ‘government’ and ‘equality’ in a postcolonial
context, the levels of ‘consent’, in evidence, may be of uncertain composition, as the municipal legal systems in force will, largely, have been inherited through colonialism, and the govern- ment may not be formed through democratic processes. Thus, as postcolonial states operate the machinery of statehood through their governments, their diplomatic positions, taken at inter- governmental forums such as the United Nations, may be influenced by a lack of access to gov- ernment or civic equality. The notion, then, of modern international law being formed by specific processes such as multilateral treaty-making and operating on the basis of consensus, becomes viewed through an additional layer of complexity.
‘Consent’ for a structured system of societal operations at a more global level, such as through an international community of states, surely predates the United Nations and its multi- lateral treaty-based system of global governance.
As Georg Schwarzenberger states, two conditions are required for the formulation of in- ternational law: a reciprocated equality of status and a level of contact which necessitates regula-
tion of conduct;7 this is, presumably, followed by voluntary actions by parties involved to
manifest their agreed wills. It can subsequently be observed how a functional system of state- hood has emerged on the international arena. The integrity of this system is derived from the sovereignty of each of its members and the lack of a higher authority to which the individual states might be bound. This implies that it is the structures within the individual states them- selves which perpetuate this system; moreover, that it is the acceptance of statehood per se by those within individual states, which makes statehood a desirable societal condition. Kalevi Holsti provides a theoretical construction of this in contemporary statehood by proposing that a
state’s legitimacy is based on something akin to consensus.8
6Viz. Thucydides et al, History of the Peloponnesian War, Book One, The Dispute over Corcyra 433 (Penguin, 1986) at 54: (as representatives of Corcyra spoke to Athenians) “Athenians, in a situation like this […] we have come to ask you for help, but cannot claim that this help is due to us because of any great services we have done to you in the past or on the basis of any existing alliance. We must therefore con- vince you first that by giving us this help you will be acting in your own interests; and then we must show you that our gratitude can be depended upon. If on all these points you find our arguments unconvincing, we must not be surprised if our mission ends in failure.”
7 See G. Schwarzenberger, A Manual of International Law, Book 1, (4th ed., 1960), at 3.
8Cf. K.J. Holsti, The State, War and the State of War (1996) 98: In a diagram, he purports that a contempo- rary state’s legitimacy is based upon: “an implicit social contract, consensus on political ‘rules of the game’, equal access to decisions and allocations, clear distinction between private gain and public service, effective sovereignty, ideological consensus/pragmatic politics, civilian control of military and interna- tional consensus on territorial limits and state legitimacy”.
Consensus is something more than consent.9 Whereas consent, as such, is something that
seems more focused on an individual and his or her embrace or acquiescence to something, consensus implies a dose of collective measure towards a more active participation in the affairs of the state. Consensus, as a procedural consideration, is at the heart of many UN policy-making bodies, particularly its General Assembly and Economic and Social Council. This is particularly the case in the area of standard-setting with regard to international human rights law, as op-
posed to special procedures and fact-finding, as well as intergovernmental enforcement.10
To illustrate this phenomenon in a wider context, it may be recalled from earlier in this study how European states began to form more or less organically, following the Peace of West- phalia. As the Hinterlands of European states came under fuller control of the capitals—often whether one liked it or not in the first instance—the consensus principle contributed to the terri-
torial definition of European statehood.11 This is not automatically to equate consensus with
modern notions of democratic governance; indeed, quite often the opposite was true. But this did signify a growth in importance of incorporating the totality of a population into the affairs of the state. It was a deliberate and active process of cultural integration, undoubtedly witnessed more in places like France and less in the lands of the former Holy Roman Empire. Neverthe- less, an important formula transpired, as European statehood simply did not ‘happen’. It was the natural outpouring and growth of its own complicated processes of societal evolution and de- velopment.
As concerns the implementation of ‘third-generation rights’ generally, it stands to reason, that actions encouraging the development of a consensus-based municipal state are to be con- ceptually welcomed, particularly in view of the eventual discord between state in society within the postcolonial state. Such formulations reaffirm that the notion of collective rights may apply to the entire population of a state, individuals within a state and groups of self-associating indi- viduals. For example, the right to political participation is universally expected, in a state-party to the ICCPR, and this may be effectuated both on an purely individual level, through e.g. vot- ing, in addition to actions taken through official interactions with local government institutions.
However, what is more appropriate for a study—predicated on the idea that the superim- position, of the European state onto colonised lands, has had, in some cases, a destabilising ef- fect on certain postcolonial populations— is to acknowledge the conceptual overlap between the concepts of ‘peoples’ and ‘minorities’ on the one hand, and to attempt to identify conceptual delineations, between the separate legal concepts, on the other. Furthermore, as the topic of self-determination of peoples has been extensively discussed on a general level in previous
9Cf. Concise Oxford English Dictionary (10th ed., 1999): Consent is a noun meaning ‘permission’ or a verb meaning ‘give permission’ or ‘agree to do something’. It dates from Middle English and can be traced back to Old French and Latin. Consensus, however, is a noun meaning ‘general agreement’ dating only back to the 17th Century from Latin antecedents.
10Cf. D. Kennedy, A New Stream of International Law Scholarship, 7 Wisc. Int.L.J. 39: “By 1975, the fash- ionable international institution made up its mind by consensus. By exactly translating political reality into institutional action, consensus keeps the institution in step with all states. The minority feels attended to, respected: neither the big powers nor the blocs are able to control the majority any more. Consensus is the perfect form of international deference. Moreover, consensus permits the institution to make powerful decisions and ensures compliance with such decisions as are taken. The very experience of coming to con- sensus builds community. Finally, as we might expect, by 1980, the blooms was beginning to be off con- sensus—and the results were familiar. The institution was hostage to one hold out autonomous state—and the individual sovereign felt bullied into agreement by a powerful consensus building plenary practice.” 11Cf. Frontier of Walfisch (Walvis) Bay between Germany and Great Britain, XI Recueil des Sentences Arbitrales 306 (1911) for the Hinterland doctrine: “[…] it requires for its application the existence or assertion of political influence over certain territory, or a treaty in which it is concretely formulated.”
chapters, it will be useful to develop the ‘peoples’ concept into a more specialised, regional con- text—in this case employing the provisions of the African Charter on Human and Peoples’ Rights—to attempt to emphasise aspects of the postcolonial state which would benefit from the greater effectiveness which is to be assumed with increased juridical provisions for ‘collective groupings’.