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,