The effectuation of postcolonial, and indeed post-cold war,95 self-determination never
occurs in a vacuum. Particularly for collectivités hoping to achieve the status of a ‘people’ and the level of self-administration associated therewith, questions of potential territorial modifications and the associated questions of administration may also arise. The foremost initial challenge for a newly independent state, a self-determining ‘people’ or a minority group is to evaluate the merit of an entity’s particular claims. Many states will devote considerable effort toward denying the factual existence of a substantive claim by collective groupings. Indeed, as well, many col- lective groupings will lack sufficient resources to be able to advocate their claims sufficiently. Al- ternatively, states may strongly respond that no established procedure exists to attempt rectification of the situation. However, (viz. Greenland’s autonomy from Denmark and the devolution of powers in the British Isles) internal self-determination may also be achieved on the basis of mutual consent, as allocation of certain powers away from a central governmental establishment need not be necessarily contested.
It is never straightforward to ascribe a particular legal status to postcolonial collective groupings beyond the usual categorisation into the established forms of ‘self-determination of peoples’, ‘minority rights’ and ‘indigenous peoples’ rights’. Accordingly, the underlying ques- tion, and thus the primary focus of this chapter, is how collective groupings become ‘recognised’ by both municipal and international legal frameworks and once ‘recognised’ per se, how those entities are able to function, not as independent states, but as, primarily, self-administering terri- torial regions within established states.
As the frameworks both for ‘peoples’ rights’ and ‘minority rights’ are defined primarily in the context of international law and international human rights law in particular, this is a cir- cumstance whereby international law itself has a direct and relevant role to play in the territorial administration of an entity, in that it defines the form and function of a ‘people’ or ‘minority’. Such a process, from the perspective of public international law, involves evaluating specific circumstances allocating established legal principles according to their connection to particular
facts and implementing decisions taken on this basis.96 The fundamental juridical problem is
that the set of circumstances between the official recognition of claims by collective groupings and the official recognition of claims by ‘new-state entities’, as it were, share both similar cir- cumstances and different legal definitions. The ‘similar circumstances’ are that an emerging en- tity seeks acknowledgement from more established entities. The ‘different legal definitions’ reflect that fact that, concerning newly emerging states, their definitional form is exclusively based on external, Montevideo criteria, whereas for collective groupings, definitional criteria, while being not wholly dissimilar, are also significantly more relativist and therefore dependent upon individual circumstance, given the conceptual overlap between the separate regimes of ‘self-determination’ and ‘minority rights’.
This dilemma reflects a problem common to entities seeking a specific legal recognition, either as independent entities or as component parts of a municipal, recognised ‘state’. Although the concept of ‘recognition’ as a legal concept per se is certainly set in the context of peer-state recognition, many of the same underlying processes are also transferable to sub-state situations.
95Viz. the unification of Germany, the separation of Czechoslovakia and the dissolution of Yugoslavia. 96Cf. Crawford, 2nd ed., supra note 4, at 117: “It will be seen that in each of these cases the problem of identification [of the units of self-determination] has been solved in practice by processes of agreement or at least acquiescence.”
Whenever collective groupings present, through established legal channels, coherent argu- ments for the legal recognition of specific claims made within the frameworks of ‘peoples’ and/or ‘minority’ rights, states will be called upon to provide a similarly coherent procedural framework for the evaluation and eventual effectuation of such claims, both within their own territories as well as for the recognition of such claims, on the international plane.
This line of argumentation has been afforded significant structural enhancement by the United Nations’ 2000 Millennium Declaration, which makes clear that states have a concrete ob- ligation to respect claims for collective self-administration and individual equality by their citi-
zens.97 These obligations were given considerable further definition in the 2005 World Summit,
in UN Doc. A/RES/60/1 (24 October 2005), which reaffirmed the 2000 Declaration five years af- ter its proclamation. This is most evident with regard to paragraphs concerning human rights and conflict prevention, but what is particularly notable is the groundbreaking ‘responsibility to protect populations’, now colloquially referred to as ‘R2P’, mentioned in paragraphs 138 and 139 of the GA resolution (with emphasis added):
Human rights. 121. We reaffirm that all human rights are universal, indivisible, interre- lated, interdependent and mutually reinforcing and that all human rights must be treated in a fair and equal manner, on the same footing and with the same emphasis. While the signifi- cance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, all States, regardless of their political, economic and cul- tural systems, have the duty to promote and protect all human rights and fundamental free- doms.
122. We emphasize the responsibilities of all States, in conformity with the Charter, to re- spect human rights and fundamental freedoms for all, without distinction of any kind as to race, colour, sex, language or religion, political or other opinion, national or social origin, property, birth or other status. […]
127. We reaffirm our commitment to continue making progress in the advancement of the human rights of the world’s indigenous peoples at the local, national, regional and interna- tional levels, including through consultation and collaboration with them, and to present for
97Cf. United Nations Millennium Declaration, UN Doc. A/RES/55/2 (18 September 2000), para 6: “We consider certain fundamental values to be essential to international relations in the twenty-first century. These include:
Freedom. Men and women have the right to live their lives and raise their children in dignity, free from hunger and from the fear of violence, oppression or injustice. Democratic and participatory govern- ance based on the will of the people best assures these rights.
Equality. No individual and no nation must be denied the opportunity to benefit from develop- ment. The equal rights and opportunities of women and men must be assured.
Solidarity. Global challenges must be managed in a way that distributes the costs and burdens fairly in accordance with basic principles of equity and social justice. Those who suffer or who benefit least deserve help from those who benefit most.
Tolerance. Human beings must respect one other, in all their diversity of belief, culture and lan- guage. Differences within and between societies should be neither feared nor repressed, but cherished as a precious asset of humanity. A culture of peace and dialogue among all civilizations should be actively promoted.
Respect for nature. Prudence must be shown in the management of all living species and natural resources, in accordance with the precepts of sustainable development. Only in this way can the immeas- urable riches provided to us by nature be preserved and passed on to our descendants. The current unsus- tainable patterns of production and consumption must be changed in the interest of our future welfare and that of our descendants.
Shared responsibility. Responsibility for managing worldwide economic and social development, as well as threats to international peace and security, must be shared among the nations of the world and should be exercised multilaterally. As the most universal and most representative organization in the world, the United Nations must play the central role.”
adoption a final draft United Nations declaration on the rights of indigenous peoples as soon as possible. […]
130. We note that the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities contribute to political and social stability and peace and enrich the cultural diversity and heritage of society. […]
Democracy. 135. We reaffirm that democracy is a universal value based on the freely ex- pressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. We also reaffirm that while democra- cies share common features, there is no single model of democracy, that it does not belong to any country or region, and reaffirm the necessity of due respect for sovereignty and the right of self-determination. We stress that democracy, development and respect for all human rights and fundamental freedoms are interdependent and mutually reinforcing.
136. We renew our commitment to support democracy by strengthening countries’ capacity to implement the principles and practices of democracy and resolve to strengthen the capac- ity of the United Nations to assist Member States upon their request. […]
Responsibility to protect populations from genocide, war crimes, ethnic
cleansing and crimes against humanity. 138. Each individual State has the responsibil-
ity to protect its populations from genocide, war crimes, ethnic cleansing and crimes against human- ity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it.
The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability. 139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.98
The willingness manifested by the General Assembly to assume responsibility to protect their populations, of which collective groupings may form a part, from genocide, war crimes, crimes against humanity and ethnic cleansing (itself a term with a less-developed juridical pedi- gree than the other three), is of critical importance in how the international community views the seriousness of implementing international human rights law, particularly in the most chal- lenging of regional situations. When the level of urgency with which collective groupings make
specific legal claims per se is so high that genocide, war crimes, ethnic cleansing and crimes
against humanity are considerable possibilities, it can readily be assumed that the state involved has an obligation to respond expeditiously to such claims, with an established procedural framework capable of providing an effective result. As such, arguments are not necessarily formed—as submissions to courts of high standing, in a framework whereby international law is sufficiently developed—so as to assert, clearly, the universal equality of citizens, within a state, as well as the right of such citizens to have access to universal standards of individual and collective
human rights.99
Therefore, by affording particular and specific rights to collective groupings under the substantive and procedural rubric framed by indigenous peoples’ rights, a people’s right to self- determination and minority rights enacted by the territorially administering state, states have explicitly recognised the conceptual validity of collective groupings with specific rights formed from international law. ‘Recognition’ as considered in the present context, is greatly dominated by the established practice of states recognising entities professing ‘statehood’, under the estab- lished criteria for such a status. But, in the more extreme of factual circumstances, such as those observed when attempting to view statehood through its more ‘modern’, i.e., postcolonial real- ity, established practice may be lacking, and the underlying evaluative criteria may be highly subjective.
The ‘responsibility to protect’ is quite a new development in the international legal framework, and it remains to be seen how it will manifest itself in practice. Some indications on the future course of this legal development may be obtained from an article written by the UN
High Commissioner for Human Rights, Louise Arbour, prior to the expiry of her mandate.100 In
it, she observes that responses by the international community to severe violations of human rights and fundamental freedoms, such as genocide, are now widely viewed as reasonable ex- pectations by influential sectors of world opinion, which serves to intrude into “the fortress of State sovereignty”.101 This sense, she writes
[i]s not, as some have suggested, a leap into wishful thinking. Rather, it is anchored in existing law, in institutions and in lessons learned from practice. Its vitality flows from its inherent soundness and justice, as well as the concept’s comparative advantages over formulations of humanitarian intervention. […] Rooted in human rights and international humanitarian law, the norm squarely embraces the victims’ point of view and interests, rather than question- able State-centred motivations. It does so by configuring a permanent duty to protect indi- viduals against abusive behaviour. Such duty is a function of sovereignty and should be
99 See also Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN GA Resolution 60/147 (16 December 2005), whereby the Assembly states in the operative para- graphs one and two of the resolution that “The obligation to respect, ensure respect for and implement in- ternational human rights law and international humanitarian law as provided for under the respective bodies of law emanates from (a) Treaties to which a State is a party; (b) Customary international law; (c) The domestic law of each State,” and that “If they have not already done so, States shall, as required under international law, ensure that their domestic law is consistent with their international legal obligations by (a) Incorporating norms of international human rights law and international humanitarian law into their domestic law, or otherwise implementing them in their domestic legal system; (b) Adopting appropriate and effective legislative and administrative procedures and other appropriate measures that provide fair, effective and prompt access to justice; (c) Making available adequate, effective, prompt and appropriate remedies, including reparation, as defined below; (d) Ensuring that their domestic law provides at least the same level of protection for victims as that required by their international obligations.”
Furthermore, the Assembly lists the scope of the obligation as including “the obligation to re- spect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, includes, inter alia, the duty to (a) Take appropriate legislative and administrative and other appropriate measures to prevent violations; (b) Investigate viola- tions effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law; (c) Provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice, as described below, irrespective of who may ultimately be the bearer of responsibility for the violation; and (d) Provide effective remedies to victims, including reparation, as described below.”
100 See L. Arbour, The responsibility to protect as a duty of care in international law and practice, 34 Rev. Int’l Studies 445 (2008).
fulfilled primarily by the State concerned. Absent that State’s ability or willingness to dis- charge such obligations, the onus of protection falls by default upon the broader international community, which is then called upon to step in and help, or compel and—through appropri- ate authorisation and in accordance with international law—even coerce States to put in place the requisite web of protection. At its core, the norm asserts a broad international public interest predicated on universal human rights, while appealing to the practical wisdom of confronting threats and ongoing abuses before a crisis unravels and unfolds with unfore- seeable consequences.102
More specifically, although the responsibility to protect is formulated in a manner afford- ing protection to individuals, particularly when given the serious nature of the types of crimes deserving of protection, there is nothing per se logically inconsistent about viewing a group of individuals otherwise fulfilling the characteristics of a ‘people’ (or other collective grouping) as being worthy of protection. Indeed R2P’s existence may lead to increased credibility in the re-
gional acknowledgement of the claims of a collective grouping.103 When viewed against e.g. the
situation in Darfur—a situation to which Arbour herself draws reference—104 the theoretical in-
terplay between collective groupings and R2P must be acknowledged.
Conceptually speaking, however, as defined by this study, ‘collective groupings’, as a gen- eral legal concept, may be viewed in the context of an increasingly developed body of interna- tional law with direct applicability to domestic legal systems. In particular, collective groupings seeking ‘recognition’ per se will likely find the greatest measures of success when formulating their arguments along the lines of established legal principles. For example, a ‘people’ hoping for self-determination (i.e., territorial self-administration) would be likely to gain credibility in its lines of argumentation by employing principles derived directly from international law, such as Montevideo criteria and a demonstrated commitment to upholding the international human rights core. Given the explicit responsibility by states to protect populations within the ambit of their territorial administration, from the most extreme governmental and non-governmental actions targeted against specific populations, as decided by the 2005 World Summit, the inter- connectivity between the international and domestic planes is further reinforced. The question remaining will be the extent to which, by definition, a geographically-congruent ‘people’ can be formed as a result of collective decision-making, in opposition to the status quo. Indeed, it will be increasingly asserted that a ‘people’ can take specific form from such an inherently negative