DOCSLIB.ORG

2. 'Group Rights' in Contemporary International

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
2. 'Group Rights' in Contemporary International 2. ‘Group Rights’ in Contemporary International Law By and large, in existing international law minority and indigenous rights are about keeping groups happy within the State. – Gudmundur Alfredsson 163 Th is chapter investigates the existence of group rights in international law to fi nd out in what way they exist and how they work; a deeper understanding of their reality will help to assess their function and importance to solve group related problems in contemporary international law. Th is inquiry of the lex lata will fo- cus on the issues which have been discussed before as conceptual challenges of the concept of group rights. Th ereby it will not be possible to cover the entirety of (alleged) group rights even of Crawford’s fi rst category (category of group rights on existence and cultural or political continuation of groups).164 Nevertheless, the chosen samples of existing group rights (taking the defi nitions given above) will put us in the position to reassess commonly discussed challenges of the concept of group rights as introduced in chapter 1. Th is inquiry will start with two very general group rights, or rather general principles applicable to groups, and go over to more concrete group rights. Th e view taken here is that the principle of non-discrimination (or equality) and the principle of self-determination underlie most of the more concrete rights whose holders are groups.165 Hence, aft er discussing these two more general issues, more concrete group rights as guaranteed by international law will be investigated. 163 G. Alfredsson, ‘Minorities, Indigenous and Tribal Peoples, and Peoples: Defi nitions of Terms as a Matter of International Law’, in N. Ghanea and A. Xanthaki (eds.), Minorities, Peoples, and Self-Determination: Essays in Honour of Patrick Th ornberry (Martinus Nijhoff Publishers, Leiden 2005), p. 164. 164 See the discussion in the introduction. 165 Th is position will be explained in the following analysis of group rights in interna- tional law in this chapter as well as in chapter 4.2. 44 Chapter 2 2.1. Groups and International Law Since the very beginning of international law, parts of it were on group accom- modation.166 First it was mainly the Protestant Reformation which forced rul- ers – in light of the new impossibility of enforcing one belief on all people – to provide religious groups rights within their territories and to acknowledge such rights in international treaties.167 Aft er a while, a second event, the discovery of the non-European world, slowly gave rise to the idea that peoples have a right to self-determination. Th is became a strong (political) claim aft er the introduc- tion of majority voting in the Enlightenment and the rise of Romantic national- ism which encouraged linguistic, cultural and ethnic groups to create their own ‘national’ state; where they did not succeed, they were sometimes granted some rights which could also be included in international agreements.168 Th e minority treaties following World War I took international law in the fi eld of minority protection a step further in that they were under the supervi- sion of the League of Nations, and in that the Permanent Court (of International Justice) was given jurisdiction in many cases on minority disputes or with a con- nection to the minority treaties.169 Several judgements and advisory opinions of the Permanent Court are still of great interest and would arguably even mean a progress to the current approach of international law to minorities in some re- gards.170 An example of this is the historical Minority Schools in Albania case171 in which the Permanent Court pointed out that the main purpose of the protection of minorities established under the League System warranted the application of 166 Of course, group accommodation dates back to immemorial times. Although it would be a highly interesting topic to investigate pre-existing approaches, this anal- ysis focuses on international law in the modern sense which roughly started in the 16th century, and will thus leave earlier approaches aside. 167 If it is meaningful to use the adjective “inter-national” for issues of that time is arguably questionable as the concepts of “nation”, “state”, and even “(legal) treaty” in their modern sense were not fully developed yet. However, the mentioned agree- ments come close to what we would understand as international treaties today. For examples of such treaties, cf. e.g., Lerner, ‘Group Rights and Discrimination in In- ternational Law’, supra note 5, p. 7. 168 See on the whole J. B. Muldoon, ‘Th e Development of Group Rights’, in J. A. Sigler (ed.), Minority Rights: A Comparative Analysis (Greenwood Press, Westport 1983). 169 See H. Hannum, ‘Th e Concept and Defi nition of Minorities’, in M. Weller (ed.), Uni- versal Minority Rights: A Commentary on the Jurisprudence of International Courts and Treaty Bodies (Oxford University Press, New York 2007), pp. 51–56. 170 See e.g., J. Castellino, ‘Th e Protection of Minorities and Indigenous Peoples in Inter- national Law: A Comparative Temporal Analysis’, 17 International Journal on Mi- nority and Group Rights (2010) 393. 171 Minority Schools in Albania, 6 April 1935, PCIJ, Advisory Opinion, Series A/B No. 64, <www.icj-cij.org/pcij/serie_AB/AB_64/01_Ecoles_minoritaires_Avis_consul- tatif.pdf>, visited on 22 February 2011. .
Load more

Recommended publications
  • Jurisprudence of Minority Rights: the Changing Contours of Minority Rights
    RESEARCH ASSOCIATION for RAIS INTERDISCIPLINARY DOI: 10.5281/zenodo.1215148 MARCH 2018 STUDIES Jurisprudence of Minority Rights: The Changing Contours of Minority Rights Kheinkor Lamarr Ph.D. Scholar, Jawaharlal Nehru University, New Delhi, India [email protected] ABSTRACT: Questions concerning minority rights has long been of international consequence and is at the center of many academic, legal and political debates. Identity claims of minority groups have been recognized and deemed worthy of protection. It is significant to note that nonetheless, even today minority issues tend to occasion anxiety amongst people and States. It is, therefore, necessary to have jurisprudential understanding of minority rights. This will enable us to gain clarity on questions of the nature of minority rights and the various challenges revolving around them. The paper has viewed claims and rights of minorities from the stand- point of international law and human rights and in doing so has charted out the historic progression of minority rights. It further studies the present day issues of the inter-relationship between minority rights and refugees and migrants. It also examines the ever increasing demands for the inclusion of various categories like gender and children under the minority rights regime. KEYWORDS: Minority Rights, History of Minority Rights, International Law, Human Rights 1. Introduction The protection and rights of minority groups have long been of international consequence and are at the centre of academic and political debates. Identity claims of minority groups have been recognised and deemed worthy of protection. It is significant 165 Proceedings of the RAIS Conference I MARCH 26-27, 2018 to note that nonetheless even today minority issues tend to occasion anxiety amongst people and States.
    [Show full text]
  • Trianon 1920–2020 Some Aspects of the Hungarian Peace Treaty of 1920
    Trianon 1920–2020 Some Aspects of the Hungarian Peace Treaty of 1920 TRIANON 1920–2020 SOME ASPECTS OF THE HUNGARIAN PEACE TREATY OF 1920 Edited by Róbert Barta – Róbert Kerepeszki – Krzysztof Kania in co-operation with Ádám Novák Debrecen, 2021 Published by The Debreceni Universitas Nonprofit Közhasznú Kft. and the University of Debrecen, Faculty of Arts and Humanities, Department of History Refereed by Levente Püski Proofs read by Máté Barta Desktop editing, layout and cover design by Zoltán Véber Járom Kulturális Egyesület A könyv megjelenését a Nemzeti Kulturális Alap támomgatta. The publish of the book is supported by The National Cultural Fund of Hungary ISBN 978-963-490-129-9 © University of Debrecen, Faculty of Arts and Humanities, Department of History, 2021 © Debreceni Universitas Nonprofit Közhasznú Kft., 2021 © The Authors, 2021 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopy- ing, recording, or otherwise, without the prior written permission of the Publisher. Printed by Printart-Press Kft., Debrecen Managing Director: Balázs Szabó Cover design: A contemporary map of Europe after the Great War CONTENTS Foreword and Acknowledgements (RÓBERT BARTA) ..................................7 TRIANON AND THE POST WWI INTERNATIONAL RELATIONS MANFRED JATZLAUK, Deutschland und der Versailler Friedensvertrag von 1919 .......................................................................................................13
    [Show full text]
  • Cultural Rights of Native Majorities Between Universalism and Minority Rights
    Ruud Koopmans Cultural Rights of Native Majorities between Universalism and Minority Rights Discussion Paper SP VI 2018–106 December 2018 Research Area Migration and Diversity Research Unit Migration, Integration, Transnationalization WZB Berlin Social Science Center Reichpietschufer 50 10785 Berlin Germany www.wzb.eu Copyright remains with the author . Discussion papers of the WZB serve to disseminate the research results of work in progress prior to publication to encourage the exchange of ideas and academic debate. Inclusion of a paper in the discussion paper series does not constitute publication and should not limit publication in any other venue. The discussion papers published by the WZB represent the views of the respective author and not of the institute as a whole. Ruud Koopmans Cultural Rights of Native Majorities between Universalism and Minority Rights Discussion Paper SP VI 2018–106 Wissenschaftszentrum Berlin für Sozialforschung (2018) Affiliation of the author Ruud Koopmans WZB Berlin Social Science Center & Humboldt University Berlin Email: [email protected] Abstract Cultural Rights of Native Majorities between Universalism and Minority Rights Minorities’ claims for rights increasingly clash with majorities who wish to retain and defend “national” cultural and religious traditions. Debates around minarets in Switzerland, burqas in France, Saint Nicolas’ companion “Black Pete” in the Netherlands, and about freedom of speech versus respect for minorities in several countries are cases in point. Such issues are highly salient and offer a major mobilization potential for populist parties. However, while publications about minority rights abound, the normative literature is remarkably silent on the issue of the normative legitimacy of rights claims by autochthonous cultural majorities.
    [Show full text]
  • Minorities, Minority Rights and Internal Self-Determination This Is a FM Blank Page Ulrike Barten
    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 Library of Congress Control Number: 2014950833 © Springer International Publishing Switzerland 2015 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher’s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use.
    [Show full text]
  • Protection of Poland's Volhynian Ukrainian Minority, 1921-1939
    Florida State University Libraries Electronic Theses, Treatises and Dissertations The Graduate School 2009 The Failure of the Entente: Protection of Poland's Volhynian Ukrainian Minority, 1921-1939 Suzanne Elizabeth Scott Follow this and additional works at the FSU Digital Library. For more information, please contact [email protected] FLORIDA STATE UNIVERSITY COLLEGE OF ARTS AND SCIENCES THE FAILURE OF THE ENTENTE: PROTECTION OF POLAND’S VOLHYNIAN UKRAINIAN MINORITY, 1921-1939 By SUZANNE ELIZABETH SCOTT A Thesis submitted to the Department of History in partial fulfillment of the requirements for the degree of Master of Arts Degree Awarded: Summer Semester, 2009 The members of the committee approve the thesis of Suzanne Elizabeth Scott defended on June 24, 2009. Edward Wynot Professor Directing Thesis Jonathan Grant Committee Member Robert Romanchuk Committee Member The Graduate School has verified and approved the above named committee members. ii For Bernard Szabo iii ACKNOWLEDGEMENTS There have been many, many people along the way who have helped with research and/or encouraged me. First and foremost, I would like to thank my committee members for the countless hours spent discussing sources and instructing me in Russian and Ukrainian. I would also like to thank the people who helped direct my research at various institutions. Vadim Altskan, the program coordinator for the International Archival Division in the Center for Advanced Holocaust Studies at the United States Holocaust Memorial Museum in Washington, D.C. bantered with me in Ukrainian and loaned me his copy of Shmuel Spector’s The Holocaust of Volhynian Jews, 1941-1944. Not an ideal “bed time story,” but vital for this thesis.
    [Show full text]
  • Protection of Linguistic, Racial Or Religious Minorities by the League of Nations
    [Distributed to the Council a n d the Members of the League.] Official No.: C. 24, M. 1 8. 1929. I. Geneva. February 1929. LEAGUE OF NATIONS PROTECTION OF LINGUISTIC, RACIAL OR RELIGIOUS MINORITIES BY THE LEAGUE OF NATIONS. Resolutions and Extracts from the Minutes of the Council, Resolutions and Reports adopted by the Assembly, relating to the Procedure to be followed in Questions concerning the Protection of Minorities. Series of League of Nations Publications I.B. MINORITIES 1929. I B. 1. — 2 — NOTE BY THE SECRETARIAT. The provisions contained in the various international instruments at present in force relating to the protection of linguistic, racial or religious minorities by the League of Nations, have been assembled in document C.L.110.1927.I. (Annex), published in August 1927. The acts by which these provisions were placed under the guarantee of the League of Nations bear the following dates : A lb a n ia .............................................. February 17th, 1922 1. A u s t r i a .............................................. October 27th, 1920. B u l g a r i a ..........................................October 27th, 1920. Czechoslovakia ............................Novem ber 29th, 1920. E s to n ia ...............................................Septem ber 17 th, 1923. Finland (Aaland Islands) . June 27th, 1921. Germany (see LTpper Silesia) . G r e e c e ...............................................Septem ber 26th, 1924. H u n g a r y ..........................................A ugust 30th, 1921. L a t v i a ...............................................Septem ber 1st, 1923. Lithuania ..................................... December 11th. 1923. Mem el 2 ............................................... P o l a n d ...............................................F ebruary 13th, 1920. Roum ania ..................................... August 30th, 1921. Serbs, Croats and Slovenes .
    [Show full text]
  • Redalyc.Weimar Germany's Foreign Policy and the Protection of Minorities: the Case of the German Minority in Poland
    Historia Caribe ISSN: 0122-8803 [email protected] Universidad del Atlántico Colombia Thoene, Ulf Weimar Germany’s foreign policy and the protection of minorities: The case of the German minority in Poland Historia Caribe, vol. IX, núm. 25, julio-diciembre, 2014, pp. 39-70 Universidad del Atlántico Barranquilla, Colombia Available in: http://www.redalyc.org/articulo.oa?id=93734234003 How to cite Complete issue Scientific Information System More information about this article Network of Scientific Journals from Latin America, the Caribbean, Spain and Portugal Journal's homepage in redalyc.org Non-profit academic project, developed under the open access initiative Weimar Germany’s foreign policy and the protection of minorities: The case of the German minority in Poland* ULF THOENE Profesor asistente de la Escuela Internacional de Ciencias Económicas y Administrativas de la Universidad de La Sabana (Colombia). Correo electrónico: [email protected]. El autor es Ph.D in Law de la University of Warwick (Reino Unido); además es LLM Socio-Legal Studies, University of Warwick (Reino Unido), Graduate Diploma in Economics, University of Nottingham (Reino Unido) y BA Int. History & Int. Politics, University of Sheffield (Reino Unido). Entre sus líneas de investigación contamos los temas de historia global, política social y mercados laborales. Recibido: 19 de febrero de 2014 Aprobado: 25 de mayo de 2014 Modificado: 01 de junio de 2014 Artículo de investigación e innovación * Este artículo forma parte del proyecto “Weimar Germany’s Foreign Relations”, con financiación solidaria. 39 Esta publicación está bajo una licencia Creative Commons Reconocimiento-Compartir Igual 3.0 Historia Caribe - Volumen IX N° 25 - Julio-Diciembre 2014 pp 39-70 ULF THOENE Weimar Germany’s foreign policy and the protection of minorities: The case of the German minority in Poland Abstract The protection of minorities in Central Europe became a deeply controversial issue in the aftermath of World War One.
    [Show full text]
  • Self-Determination, Minority Rights, and Constitutional Accommodation: the Example of the Czech and Slovak Federal Republic
    Michigan Journal of International Law Volume 13 Issue 1 1991 Self-Determination, Minority Rights, and Constitutional Accommodation: The Example of the Czech and Slovak Federal Republic Claudia Saladin University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Civil Rights and Discrimination Commons, International Law Commons, and the Rule of Law Commons Recommended Citation Claudia Saladin, Self-Determination, Minority Rights, and Constitutional Accommodation: The Example of the Czech and Slovak Federal Republic, 13 MICH. J. INT'L L. 172 (1991). Available at: https://repository.law.umich.edu/mjil/vol13/iss1/7 This Note is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. STUDENT NOTES SELF-DETERMINATION, MINORITY RIGHTS, AND CONSTITUTIONAL ACCOMMODATION: THE EXAMPLE OF THE CZECH AND SLOVAK FEDERAL REPUBLIC Claudia Saladin * Perhaps the greatest threat to establishment of stable democracies in Eastern Europe is ethnic tension.I Self-determination and the rights of minorities are especially important issues for these countries be- cause of their ethnically diverse populations. As the following discus- sion will demonstrate, the issues of self-determination and minority rights are closely related to one another and to the issue of democratic legitimacy. Using the example of current constitutional reform and debate in the Czech and Slovak Federal Republic (CSFR), this Note will describe the interrelationship of these issues.
    [Show full text]
  • "Were the Minority Treaties a Failure?"
    Carole Fink. Defending the Rights of Others: The Great Powers, the Jews, and International Minority Protection. New York: Cambridge University Press, 2004. xxvii + 420 pp. $80.00, cloth, ISBN 978-0-521-83837-5. Reviewed by Aimee Genell Published on H-German (November, 2005) The breakup of the Soviet Empire in 1989-91 Peace Conference, to its complete demise with the unavoidably invites historical comparison to the transfer of the Sudetenland to Germany in 1938. period of 1918 when the new Versailles states, As the subtitle suggests, the book examines the in‐ wrought out of the former eastern empires, terrelationships among the diplomacy of the emerged between Germany and Russia. In partic‐ Great Powers, the Jewish minority populations of ular, the demise of the Soviet Union, and later the Eastern Europe and their advocates throughout Bosnian War, generated renewed academic and these years--predominantly Jewish organizations legal interest in the question of national and reli‐ from Western Europe and the United States. gious minority rights and protection in Europe. While broader issues related to minority rights This issue had largely faded from scholarly, diplo‐ protection are addressed, Fink concentrates pri‐ matic and legal debate since the mid-1950s.[1] marily on the minorities question as it relates to While the general narrative of the creation of the the "inassimilable" Ostjuden faced with the rise of minority treaties at the Paris Peace Conference expansionist nationalism in Southern and Eastern and their guarantee by the League of Nations may Europe. In a broader historical context, Fink's be somewhat familiar, Carole Fink's book expands book demonstrates the primary importance of the our understanding of the creation of the treaties question of national and religious minorities to and the era of their partial enforcement.
    [Show full text]
  • The Minorities of Czechoslovakia and Poland : of Treaties and Human Nature
    Portland State University PDXScholar Dissertations and Theses Dissertations and Theses 1978 The minorities of Czechoslovakia and Poland : of treaties and human nature Bryant L. Larson Portland State University Follow this and additional works at: https://pdxscholar.library.pdx.edu/open_access_etds Part of the Eastern European Studies Commons, and the European History Commons Let us know how access to this document benefits ou.y Recommended Citation Larson, Bryant L., "The minorities of Czechoslovakia and Poland : of treaties and human nature" (1978). Dissertations and Theses. Paper 2871. https://doi.org/10.15760/etd.2865 This Thesis is brought to you for free and open access. It has been accepted for inclusion in Dissertations and Theses by an authorized administrator of PDXScholar. Please contact us if we can make this document more accessible: [email protected]. AN ABSTRACT OF THE THESIS OF Bryant L. Larson for the Master of Arts in History presented July 28, 1978. Title: The Minorities of Czechoslovakia and Poland: of Treaties and Human Nature. APPROVED BY MEMBERS OF THE THESIS COMMITTEE: - -- Charles A. LeGuin Franklin C. We st The most explosive phenomenon of modern contemporary history has been the friction between the aspirations of "national minorities" and the ambit~ons of "ruling majorities. " Strictly speaking, the problem is not new. It is as old as recorded history. Its intensity in recent times has been greatly stimulated by the 2 demands of every ethnic group for an independent political existence; by the use of fair and foul means by these groups to attain that goal; . by rivalries among great and small powers that often stimulate false hopes and national aspirations; and by the successful emergence of i· many new states.
    [Show full text]
  • Minority Rights: International Standards and Guidance for Implementation
    Minority Rights: International Standards and Guidance for Implementation New York and Geneva, 2010 i NOTE The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a figure indicates a reference to a United Nations document. HR/PUB/10/3 © 2010 United Nations All worldwide rights reserved ii CONTENTS Page Introduction ............................................................................. 1 I. DEFINITIONS .................................................................. 2 A. Who are minorities under international law? ......................... 2 B. Are indigenous peoples considered to be minorities? .............. 3 C. Do minority rights apply to non-citizens? ............................... 4 D. What is the relationship between minorities, non-citizens and stateless persons? ............................................................... 5 II. SCOPE OF MINORITY RIGHTS PROTECTION .............. 7 A. Survival and existence ........................................................ 7 B. Promotion and protection of the identity of minorities .............. 8 C. Equality and non-discrimination ............................................ 8 D. Effective
    [Show full text]
  • National Minorities in International Law
    Denver Journal of International Law & Policy Volume 3 Number 2 Fall Article 5 May 2020 National Minorities in International Law Joseph B. Kelly Follow this and additional works at: https://digitalcommons.du.edu/djilp Recommended Citation Joseph B. Kelly, National Minorities in International Law, 3 Denv. J. Int'l L. & Pol'y 253 (1973). This Article is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Denver Journal of International Law & Policy by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],dig- [email protected]. NATIONAL MINORITIES IN INTERNATIONAL LAW JOSEPH B. KELLY* I. Introduction In international law there are a wide variety of legal beings. At one end of the spectrum is the individual, an increasingly important subject of international jurisprudence, and at the other is the state itself, the archtype of the international legal person. Between the two lie a number of entities, one of which is the national or ethnic minor- ity group. This somewhat unfamiliar legal entity is composed of peo- ple who wish to retain their distinctive culture, but cannot find ex- pression through an independent state of their own. Historically, the protection of minority group rights has been a significant issue of international law. As early as 1696, the legal scholar, Victoria, wrote of the rights of the Indian peoples of the Western world in their dealings with Spain, rights which were not grounded on statehood.' Throughout the eighteenth and nineteenth centuries the concept of minority rights slowly developed, almost exclusively manifested by bilateral treaties guaranteeing religious freedom to various national groups.
    [Show full text]