Anne Kaboré

in Peuples/Popoli/Peoples/Pueblos (January 1994)

Academic opinion is unanimous on at least one point – and this is to be welcomed – the concept of people is plurivocal. Some will speak more tenderly of a “chameleon word” (E. Jouve), more coldly of a “polysemous concept” (F. Rigaux), less cautiously of a “notion in the midst of ideology” (G. Cahln), with more concern of a “vague and imprecise notion… difficult to prevent” (A. Cristescu). In short, there are as many definitions as there are peoples (according to the conclusion of the symposium of experts organised by UNESCO in Harare).
Jurists, sociologists and political scientists are passing the quid on the definition of a people. Futile, wordy debates among specialists? Because in the end, “every time in history a people has become aware of being a people, all definitions have proved superfluous, as the Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities reminds us. No, however, there are other issues at stake, and it is not without mischief that A. Giélé, who participated as an expert in the drafting of the African Charter on Human and Peoples’ Rights, points out that the ambiguity surrounding the definition of a people was deliberately maintained.
The issues involved in defining the people
There are in fact two questions: whether it is possible to define the concept of a people, and whether such a definition is appropriate. The preliminary debate covers the second question. And here the doctrine is divided. There are two main trends: defining a people a priori would mean depriving certain population groups that do not fall within this definition of their potential ability to claim this right. Or, and here the effect is the opposite, defining the concept of the people would allow each entity to “try its luck”, none being excluded a priori; or finally, refusing to define the people as a subject of law would maintain the dependence of the exercise of peoples’ rights on the field of politics. So there are arguments in favour of a broader application of the right of peoples, or in favour of restricting it, both from those who propose defining the people and from those who do not see the need to do so? This is proof of the link between the definition of the people and the sphere of application of the legal content of the principle of the right of peoples.
Without seeking a universal definition of the people, which would certainly be inappropriate, many authors and international institutions have tried to ‘elucidate’ this concept. It is simply a question of common sense. According to S. Senese, the interest of this analysis lies “not only in a legal necessity: to know what a people is in order to grant it rights”, but also to “shed light on the political philosophy underlying” the right of peoples.
Current international events and the constant reference made to the right of peoples, via the question of nationalism, the intangibility of borders, national identity or even the right to interfere, illustrate what is at stake in the definition of the concept of people and its approach as a subject of law. It seems to us that J. Verhoeven sets out the problems very clearly. The postulate according to which we affirm “the existence, alongside or behind the State, of an entity – the people – which cannot be totally confused with the State and of which the State cannot claim to be the exclusive mediator” is “only of legal interest if the people has recognised rights”. According to the same author, three questions therefore arise:
If there is a right of peoples, what is its content and normative scope?
2. If a people is the holder of a right, what are the conditions that make it possible to define which of the countless human groupings are or are not peoples?
3. Assuming that these conditions have been defined, what are the mechanisms or procedures that make it possible to identify in concrete terms the entities that meet them?
It has to be admitted that, as it stands, international law does not provide any clear answers to these questions, and whether this is the reason for its incapacity or its perverse effects.
In fact, if questioning the meaning of the concept of people in international law means “first and foremost positing the autonomy of the people in relation to the State” and its anteriority, it is true that, as S. Pierre-Caps reminds us, situating the people in relation to the State is not the same as situating the State in relation to the people. It is true that, as S. Pierre-Caps points out, locating the space in which a people’s claim to legal existence arises is not the same as defining it legally. So if it is difficult to “pre-define the people”, isn’t the question that then urgently arises to find the constituent elements that make it possible to establish the structure of a people, and ultimately to ask “what is the threshold of a people’s existence?
How do we define a people?
We can establish a sort of typology of techniques for approaching the concept of the people.
A. A people is defined by its situation
There is a dichotomy between the apparent universality of the terms used in international texts and the restrictive application of the right of peoples. Thus the expression “all peoples” often used in UN texts refers in practice to “colonial peoples” or “peoples under foreign colonial domination, occupation or control”. According to J.F. Guilhaudis, this leads to the equation: colonial population=people.
One of the questions that arises is where does the colonial people end and the people who are victims of neo-colonialism begin? This lack of a definitional criterion will therefore lead the UN to act on a case-by-case basis. But it should be noted that the effect of this equation is to attribute the right of peoples to the “new peoples”, in the sense that it is the State framework imposed by the coloniser that delimits this people, which merges with the population of a State, a population whose members’ homogeneity is of little importance.
The preparatory work for the UN resolutions showed that the term “all peoples” covered both “ethnic groups and States”, or even “all humanity”.
The author of the UN Sub-Commission report, A. Critescu, goes on to propose an attempted definition:
– the term “people” refers to a social entity with a clear identity and its own characteristics;
– it implies a relationship with a territory;
– a people is not the same as an ethnic, religious or linguistic minority.
However, the author concluded: “States, in the international sense of the term, are clearly peoples”. Can we then establish a second equation: State = People? But then we are in total confusion!
B. The people are defined by their rights
Many legal scholars agree with this proposition. As F. Rigaux puts it: “To define a people, all we have to do is describe how it determines itself”. Thus, in order to exist, a people has three forms of self-determination: political, economic and cultural. This approach implies that a decision has been taken on the status of a people as a subject of international law, which is not the case. Furthermore, it subordinates the definition of the people to that of the State. Finally, the attempt to define a people in terms of its rights may seem all the more difficult given that: the people is not a legal concept, but “falls within categories that have legal significance” (G. Soulier). This difficulty is compounded by the fact that not all peoples have the same rights. Finally, this approach errs on the side of legalism, since the relationship between the signifier and the signified cannot be influenced solely by the legal conceptual context, but also by external pressures.
Lastly, the major question raised by this approach to people through their rights is necessarily to take a position on the idea of the rights of peoples. The more we decide to grant rights to peoples, the broader the concept of the people will be.
C. The people are defined by their struggle
The transformation of the people into a liberation movement is often considered to be a privileged way of testifying to the existence of the people. A people that does not fight for its existence”, says C. Chaumont, “even if it has the “objective elements of community”, is merely an “agglomerate”. Chaumont. Other authors prefer to conclude from the practice of these struggles “strong presumptions of the existence of a people”. This brings us to the equation People=Liberation Movement. The question that arises is who will be competent to recognise these movements – a role currently devolved to regional inter-state organisations. The other question is that of the effectiveness of the liberation movement. Does the legal consecration of the struggle only exist when the people are victorious? Does the law merely legitimise any state of affairs that condemns peoples who are numerically weak and unarmed?
Whatever the case, this approach makes the people a transitory concept. Other authors will then highlight the permanent elements in the definition of peoples.
D. Descriptive approaches to the people
The first approach is to bring together the terms people, state and nation. This is an old debate. Each of these terms refers to a greater or lesser extent to the notions of population, territory and political unit. In the same way, the question of the objective or subjective, more voluntarist approximation of the people is raised.
Other analysts have defined the people as “a relationship between the excluded and the included” (G. Cahin and D. Carkacl). For A. Fenet, if the people is deprived of a conceptual homogeneity, we note the chronological appearance of three peoples: the citizen people, the colonial people and the minority people, an ethnic community.
E. Ideological approaches to the people
It remains to recall these definitions of the people as: the people of God, the working people, the civilised people.
How should a people be defined in international law?
It has to be said that while the core meaning of a people is “a group of people”, definitions vary depending on the ideological context. But if we refer strictly to positive international law, there are three categories of “group of people” subject to international law: peoples, minorities and indigenous populations. The boundary between the three is blurred, and we may wonder whether the first category, as we have outlined its definition, does not encompass the other two.
A) Minorities
Let us recall four approaches which seem to us to be relatively representative, as regards the definition of minorities.
According to the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, which has devoted several reports to the issue, minorities can be defined in terms of five elements:
a) the members must be nationals of the State in which they live
b) they must belong to a distinct population group with ethnic, religious or linguistic traditions or characteristics that are different from those of the rest of the population
c) they must want to preserve their identity
d) it needs protection to develop its characteristics
e) the group must be in a quantitative minority.
Note the limits to this recognition that have been formulated:
a) the group must not contribute to slowing down changes in behaviour due to the general evolution linked to modernity
b) it must not respect practices that are contrary to human rights
c) the group must be sufficiently large to be able to maintain itself, and must not impose on the State budget a burden disproportionate to its purpose
d) lastly, “minorities must show loyalty to the State of which they are a part”.
(extracts from the report by F. Capotorti: Study of the rights of persons belonging to ethnic, religious and linguistic minorities, United Nations, 1979)

2. Far removed from diplomatic or legal constraints, A. Fenet proposes a radically different approach to the question of minorities. An approach that we believe is fundamental to a clear understanding of the concept. Here is a brief reminder.
A minority is first and foremost a minority situation, which is itself a ‘production of power’. There is only a minority because there is a majority, as defined by the implacable logic of the nation-state formulated by the bourgeoisie through the notion of sovereignty. The nation is an abstraction which implies the loss of identity of each individual and which detaches political society from reality. The nation is identified with the state, and any group that deviates from this model is subversive. This theory was taken up by the socialist states, where the will of the Soviet state was the will of all its people. Decolonisation – through the 1960 declaration on the granting of independence – itself confirms this logic. In fact, its starting point is territories, not peoples (see the Reims symposium on “the concept of people in international law”). It goes without saying that the legal implications of such a definition, which calls into question the existence of any centre, are quite different in scope from the definition given above.
3. The Algiers Declaration expands on the first approach, without joining the second, by putting forward the notion of a minority people. So, neither really a people, nor just a minority? This approach certainly has the advantage of highlighting the fragility of the boundary between the two notions (“when a people constitutes a minority”), but does it have the advantage of spelling out the legal implications? The fact remains that here too the minority people – holders of specific rights (articles 19 to 21) – do not have the right to secession, unless they are in a State that does not respect the rights recognised by the Declaration…
4. At a time when the legal implications, in terms of their international status – independence or autonomy – of the concepts of people, minority, nationality are being debated between legality and illegality, legitimacy and illegitimacy, it seemed appropriate to refer to the draft resolution for the protection of minorities approved on 21 February 1992 by the UN Commission on Human Rights. In an article entitled “Promouvoir une nouvelle légalité” (“Promoting a new legality”) published in issue 17 of Manière de voir du Monde Diplomatique, devoted to the Yugoslav tragedy, J. Yacoub outlines the main contributions and limitations of the resolution. We quote a few extracts.
“For the first time, an international document uses the term “particularities” in addition to “characteristics”. It also stresses the duty of States “to encourage knowledge of the history” (of minorities). “But the drafters were unable … to define the concepts of minority, nation or ethnic group. This begs the question of who decides that a group has the right to claim minority status: the State or international bodies?
“The text is also vague on the relationship between individual and collective rights”. “Moreover, it barely mentions the duties of minorities (including loyalty to the State, which must protect them). “Furthermore, the Declaration does not address a sensitive but complex issue: when does a minority have the right to self-determination? Two other shortcomings are raised by the author: there is no provision for organisations representing minorities to participate in cooperation programmes between States concerning these minorities and “no possibility of recourse to international bodies has been provided for”.
B) On indigenous populations (By Kasra Mofarah)
Indigenous, a term almost from elsewhere, to express in fact the original inhabitant. There are over 300 million of them, i.e. one twentieth of the world’s population, divided into almost 5,000 ethnic groups.
Having suffered conquest, colonisation and slavery, these populations are now living under the oppression of the Nation-State and industrial development. Elimination, acculturation, exclusion and the plundering of their territory’s natural resources are their daily lot. At best, the States most concerned with their image opt for a policy of assimilation.
Threatened with extinction, these populations are fighting for recognition of their rights. The legitimacy of their right to self-determination and to a territory is determined by the historical factor and their anteriority. This is where we can distinguish between indigenous peoples and minorities.
From 1988 onwards, within the framework of the UN bodies, which since 1985 have created a voluntary contribution fund for indigenous peoples, indigenous peoples are no longer considered as a population but as a people.
The year 1993 saw the recognition of indigenous peoples and the UN prepared to codify the rights of indigenous peoples in the form of a universal declaration to ensure their freedom, their equality with other peoples in “dignity and rights”, to improve their living conditions and their economic, social and cultural development, and to protect their rights to education, health, language, collective expression and intellectual property.
On this subject, see CRIDEV Bulletin No 113, October-November 1993, entitled Peuples en marche (People on the move), the 14 issues of Vivre autrement (Living differently), published by ENDA Tiers Monde, Delegation in Europe (tel: 43 72 09 09), devoted to the Vienna International Conference on Human Rights, and the dossier produced by the UN Indigenous populations: the international year 1993.
If we had to conclude…
Indigenous peoples, as they are now officially called, are therefore a certain category of people whose right to self-determination or secession – as is the case for minorities – has not been explicitly resolved or addressed. The multiplicity of approaches to the concept of a people, when set against the immensity of the dramas or hopes generated by its implementation or the claim to it, leaves a great void. Given the growing complexity of current global developments, the need to clearly define the legitimacy or quality of its actors seems to us vital for the credibility of the right of peoples and its realisation. Gone are the days of decolonisation when we could content ourselves with a facile and often falsified approach to the notion of a people – as a subject of law!

Kaboré, Anne
in: Peuples/Popoli/Peoples/Pueblos (January 1994)