Léo Matarasso
in Etude réalisée par M. Léo Matarasso, présentée à la réunion internationale d'experts sur l’approfondissement de la réflexion sur le concept de droits des peuples. Unesco, Paris, 27-30 novembre 1989
1. Unesco commissioned the International League for the Rights and Liberation of Peoples to prepare a legal study on the relationship between the rights of peoples and human rights as defined in the Universal Declaration of Human Rights and the International Covenants on Human Rights and, in particular, on the relationship between the rights of peoples and cultural rights as defined in the three above-mentioned universal international instruments.
2. The present study attempts to answer the questions thus posed by keeping to what appears to be the positive law on the subject. It will not be possible to avoid completely the historical, philosophical, political or moral considerations that are frequently made on this subject, but they will be reduced to the strict minimum necessary for an understanding of the law. The same will apply to doctrinal controversies. Within these limits, this study will necessarily have a summary, even elementary, content. It will certainly merit the criticism that may be levelled at it: some will find that it contains too many certainties, others that it reveals too many uncertainties. Both will probably be right.
3. It seemed appropriate to begin by defining the two concepts whose relationship is under study: human rights on the one hand and peoples’ rights on the other. The scope of the work will thus be determined.
It will then be necessary to clarify the relationship between these two concepts, before concluding with a more specific examination of their relationship in the field of cultural rights.
HUMAN RIGHTS
a) The texts
4. It is easier to know what is meant by human rights than, as we shall see, by the rights of peoples. There is a considerable body of doctrinal literature on this point and, in terms of positive law, a large number of international instruments.
We will focus on the three universal international instruments mentioned in the subject of our study:
the Universal Declaration of Human Rights adopted and proclaimed by the United Nations General Assembly on 10 December 1948;
• the International Covenant on Economic, Social and Cultural Rights, adopted by the United Nations General Assembly on 16 December 1966.
• the International Covenant on Civil and Political Rights adopted by the United Nations General Assembly on 16 December 1966.
5. These three texts constitute the bulk, but not the whole, of positive international human rights law.
The existence of a positive international human rights law has sometimes been contested, in particular on the grounds that the Declaration itself, in its preamble, presents itself “as a common standard of achievement for all peoples and all nations”. It is therefore, according to some, a document with only moral value, without binding force.However, as René Cassin, one of the fathers of the Declaration, pointed out, Article 56 of the United Nations Charter, under which States undertake to act jointly or separately to achieve the aims set out in Article 55 (which include “universal respect for, and observance of, human rights and fundamental freedoms”), gives the Declaration a legal value that goes beyond that of a mere recommendation (1). Since then, the subject has been enriched by the two International Covenants now ratified by the majority of States.
b) The individual as subject of international law
6. Should we consider that, by becoming rules of positive international law, the provisions of the Universal Declaration put an end to the old doctrinal controversy on the question of whether or not the individual could be a subject of international law? Classical international law refuses to see the individual as a subject of the law of nations, believing that the latter governs only relations between States. The individual, as a subject of internal law, can only be affected by the rules of international law through the State to which he belongs and its internal law.
This concept, already criticized by various authors before the Second World War, seems outdated today. There are too many sentences in both the Declaration and the Covenants beginning with the words “Everyone has the right…” or “Everyone has the right…” for it to be disputed that it is to the individual himself that rights are recognized by these international instruments. Although the Covenants which form part of multilateral treaty law contain numerous commitments by the signatory States to ensure respect for human rights, the fact remains that it is the individual who is the holder of these rights.
7. The fact that some texts, such as the Optional Protocol on Civil and Political Rights or the European Convention on Human Rights, allow for complaints from individuals claiming to be victims of a human rights violation, supports the view that, contrary to the classical view, individuals are, or at least have become, subjects of international law.
c) The distinctions between human rights
8. This is not the place to enumerate the various rights established by the Declaration and the Covenants, nor their classification into various categories. However, two distinctions between human rights are necessary:
– the distinction between civil and political rights on the one hand and economic, social and cultural rights on the other.
– the distinction between fundamental and other rights.
9. Civil and political rights are those directly derived from the French Declaration of 1789, which focus on the individual. Economic, social and cultural rights are those that can only be exercised collectively. They are sometimes called second generation human rights. During the elaboration of the International Covenants on Human Rights, the question of whether one or two Covenants should be elaborated arose and gave rise to a long and laborious discussion. According to the proponents of a single Covenant, it was impossible to distinguish between the various human rights. Civil and political rights risked being formal rights in the absence of economic, social and cultural rights. Conversely, economic, social and cultural rights could not be guaranteed in the absence of civil and political rights. The proponents of two separate Covenants made their case by arguing that civil and political rights should be immediately applicable while respect for economic, social and cultural rights should be organized progressively.
10. As a result, while all the human rights proclaimed by the two Covenants are part of positive international law, the nature of the commitments made by the signatory states is not the same. They undertake “to respect and to ensure to all individuals within their territory (…) the rights recognized” by the Covenant.) the rights recognized” by the Covenant on Civil and Political Rights (Article 2), while each State party to the Covenant on Economic, Social and Cultural Rights “undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures” (Article 2).
11. Much has been written on the distinction between human rights and fundamental freedoms. If one wishes to confine oneself to positive law, one must confine oneself to Article 4 of the Covenant on Civil and Political Rights, which provides that “in time of public emergency which threatens the life of the nation”, signatory states may take “measures derogating from their obligations under the Covenant ‘provided that such measures do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’. However, “the foregoing provision does not permit any derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18”. States parties to the Covenant availing themselves of the right of derogation must immediately inform the other parties, through the Secretary-General of the United Nations, of the provisions from which they have derogated and of the reasons therefore.
12. The provisions of the Covenant on Civil and Political Rights from which a State may not derogate, even in time of public emergency threatening the life of the nation, are the following:
– the right to life: the death penalty in countries where it has not been abolished may be imposed only by virtue of a lawful judgement (art.6);
– the prohibition of torture, cruel, inhuman and degrading treatment;
– slavery or servitude (art. 8);
– the prohibition of imprisonment for breach of a contractual obligation (art. 11);
– the non-retroactivity of criminal laws, as no one may be convicted for acts that did not constitute a crime or an offence at the time they were committed (art. 15);
– the right to recognition as a person before the law (art. 16);
– the right to freedom of thought, conscience and religion (art. 18).
13. This irreducible minimum provided for in Article 4 of the Covenant on Civil and Political Rights is similar to the provisions that a State is obliged to respect “in all circumstances” under Article 3 of the four Geneva Conventions applicable to non-international armed conflicts. Whether it is an exceptional danger threatening the existence of the nation or a civil war, there is therefore a minimum of human rights that must be respected. In both cases, the State concerned has an obligation under international law.
d) The extreme weakness of international means of implementation
14. If human rights are perfectly stated and specified in the three international texts of a universal nature that serve as a reference, as rights of which the individual is the subject, how can we not be struck by the extreme weakness, if not the absence, of the means implemented to ensure “universal and effective respect” for them in accordance with Article 55 of the United Nations Charter? Under the two Covenants, States are only obliged to send reports. Thus, the Covenant on Economic, Social and Cultural Rights provides: “The States Parties to the present Covenant undertake to submit (…) reports on the measures they have adopted and the progress made in achieving the observance of the rights recognized in the Covenant” (art. 16). The Covenant on Civil and Political Rights provides: “The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights” (Art. 40). As for the possibility for the Human Rights Committee, provided for in Article 41 of the Covenant on Civil and Political Rights, to receive communications from a State party of interest to another State party, it is subject to the twofold condition that both the State making the communication and the State concerned by it have made a prior declaration recognizing the competence of the Committee. The number of States that have made such a declaration is very limited. It does not appear that this provision has been applied to date.
15. To conclude this brief overview of positive international human rights law, it should be said that it recognizes individuals as subjects of law, that these rights are set out and described in the Universal Declaration and specified in the two International Covenants, that States have an obligation to ensure respect for them, for some of these rights immediately and for others progressively, but that nothing or very little is done internationally to ensure their enjoyment, at least in the three universal instruments to which this study refers.
III RIGHTS OF PEOPLES
a) Position of the problem
16. While we have come to the conclusion that there is positive international human rights law, even if the means of enforcing it are singularly lacking, it is much more difficult to agree on the rights of peoples. Some even dispute the existence of these rights, considering that the one most often put forward, “the right of peoples to self-determination” or “the right to self-determination”, is more a political principle than a legal norm. In support of their contention, they point to the very difficulty of defining the notion of “people” and giving it a precise definition, the uncertainty about the content of the rights of peoples and, last but not least, the fact that there can be no right of peoples outside of States.
It is true that as soon as the question of a positive international law of the rights of peoples is raised, at least four questions inevitably arise for the jurist from which he or she cannot escape:
• what is a people?
• are the people subjects of international law?
• what is the content of the rights of peoples?
• who represents the people in the exercise of their rights?
b) What is a people?
17. It was in connection with the right of peoples to self-determination that the question arose as to what was meant by “people”. The discussion on this point is similar to the one developed in the nineteenth century on the “nation”, since the words “people” and “nation” were often confused, and only the doctrine attempted to distinguish between them. The objective conception of the nation, which was based on objective elements such as territory, language, religion, race or culture, was opposed to the subjective and voluntarist conception, which defined the nation essentially by psychological elements, what Ernest Renan called the “collective will to live”.
18. The same opposition emerged during the examination of the question of the definition of the term “people” by the organs of the United Nations. It has been noted that “there is no text or definition recognized to determine what a people is when it comes to the right of peoples to self-determination” recognized by the United Nations Charter (2). (2) Another author speaks of the “untraceable legal definition of a people” (3).
19. The most detailed analysis is that of Charles CHAUMONT (4). For him, the absence of a definition of the people cannot prevent it from existing legally. The various conditions usually evoked to try to define the people only take on their meaning through the historical movement of determination of the people and this movement is manifested by the struggle which, on the one hand, reveals the existence of these conditions, and, on the other hand and above all, constitutes the testimony of the people on the march. This is the lesson of the experience of the national liberation movements of the contemporary era. The struggle has a real probative value. The people must constantly fight for their existence as a people, even though in the case of traditional nations the “need for proof is not constantly felt acutely”. This concept has sometimes been summarized by saying that a people is not defined, it defines itself, which is not at all paradoxical, since it is true that a people is understood less by its being than by its becoming.
c) Peoples as subjects of international law
20. Once a people can testify to its own existence, it must be admitted that its right to self-determination makes it a subject of international law. This was not conceivable in classical international law, which only concerned relations between States. But to deny today that peoples have become subjects of international law is to deny any meaning to the provisions of Article 55 of the Charter proclaiming “the equal rights of peoples and their right to self-determination”. It is also to deny any meaning to Article 1 common to both Covenants which begins with the words: “All peoples have the right of self-determination. By virtue of that right they shall freely determine their economic, social and cultural development”.
On two occasions the International Court of Justice (ICJ) has had occasion to consider that the right of peoples to self-determination was, or at least had become, a norm of international law. In its Advisory Opinion of 21 June 1971 in the Namibia case, the Court stated that it had taken into consideration the evolution of international law since the Charter of the United Nations, an important stage of which was the Declaration on the Granting of Independence to Colonial Countries and Peoples “applicable to all peoples”. It concludes by saying: “In the field to which the present proceedings relate, the last 50 years have marked … an important development.
21. As a result of this development, there can be little doubt that the ‘sacred trust of civilization’ (the trust entrusted by the League of Nations to South Africa) had as its ultimate objective the self-determination and independence of the peoples concerned. In this area, as in others, the corpus juris gentium has been greatly enriched, and in order to be able to discharge its functions faithfully, the Court cannot ignore it”. (5) In its Opinion on Western Sahara of 16 October 1976, the ICJ affirmed that “the free and genuine expression of the will of the people of the territory remains applicable to the case of Western Sahara”.
22. It is worth mentioning another international instrument that makes the right of peoples a principle of international law. This is Protocol 1, additional (of 1977) to the Geneva Conventions of 1949, which assimilates to international armed conflicts “armed conflicts in which peoples are fighting against colonial domination and foreign occupation and against racist regimes in the exercise of the right of peoples to self-determination, as enshrined in the Charter of the United Nations and in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
d) The content of the rights of peoples
23. There is therefore agreement today that the right of peoples to self-determination is a norm of positive international law. In various United Nations and Unesco documents, but also in other international instruments and in legal writings, other rights recognised as belonging to the people appear, such as the right to development, the right of peoples to their natural wealth and resources, their right to culture, their right to environmental protection and even their right to peace.
24. Can these various rights attributed to peoples be considered norms of positive international law? This question cannot be answered without considering the process of creation of international law. It is commonly accepted today that international law is in a constant state of evolution. United Nations resolutions contribute to this continuous creation. They have a legal value insofar as they record either an agreement or a customary rule in the process of formation. A moral or political principle may become a norm of positive law through its repeated inclusion in the texts of the United Nations, the Unesco Commission on Human Rights or other international organizations. It has been said of the affirmation of the right to development in United Nations resolutions that “it has the effect of fundamentally transforming international development policy from a moral to a legal plane, from alms to obligation” (7).
(e) Who represents the people in the exercise of their rights?
25. In order to answer this question, a distinction must be made between so-called external self-determination and internal self-determination. When a people under colonial rule or foreign occupation fights for its liberation, it in fact gives itself a leadership in that struggle, which often succeeds in gaining recognition from all or part of the international community. Liberation movements and governments in exile have frequently been accepted as representative not only by states but even by the United Nations.
26. For them, the right to self-determination means the right to be free from any colonial or foreign domination or racist regime. In all these cases, it is the right of an unorganized people in a state to choose its status, to achieve external self-determination.
27. While it is true that self-determination leads, by the very fact of the conditions of international life, to the formation of a distinct State, it cannot be claimed that the people are confused with the State, nor even that the State is in all circumstances the representative of the people. Contemporary international law has put an end to the concept of an indestructible link between the people and the state. The right of peoples to self-determination is not only the right to be free from foreign, colonial or racist domination, but also the right to freely and permanently determine their own destiny, in other words the right to internal self-determination. A people is not free if it is denied fundamental rights and freedoms and denied political rights.
28. We are here at the crossroads of human rights and the rights of peoples. The right to self-determination takes on its full meaning when it enables a people to free itself from any colonial domination, foreign occupation or racist regime, and to become the master of its own destiny by benefiting from a democratic government representing all its citizens without distinction of race, sex, creed or colour and capable of ensuring effective respect for human rights and fundamental freedoms for all.
IV. THE RELATIONSHIP BETWEEN PEOPLES’ RIGHTS AND HUMAN RIGHTS
29. It is impossible to ignore the fact that human rights and the right of peoples to self-determination have a common origin and history. Is it because of this common history that some people consider the rights of peoples to be, or also to be, human rights, referred to as third-generation human rights? Is respect for the rights of peoples a precondition for respect for human rights? Or is there a constant complementarity between the two concepts?
a) Common origin and history
30. The first text in which human rights and the rights of peoples are proclaimed simultaneously is the Declaration of Independence of the United States, whose first words are as follows
“When in the course of human events it becomes necessary for one people to dissolve the political ties which have attached them to another, and to take, among the powers of the earth, the separate and equal place to which the laws of nature and of nature’s God entitle them, the respect due to the opinion of mankind obliges them to declare the causes which determine them to the separation.
“We hold the following truths to be self-evident:
All men are created equal; they are endowed by the Creator with certain unalienable rights; among these rights are life, liberty, and the pursuit of happiness.”
31. The same text thus proclaims, within a few lines of each other, the rights of a people to dissolve the ties that have bound it to another and the inalienable rights of man.
32. It was mainly during the French Revolution that the ideas of human rights were further developed, at the same time as the principle of the right of peoples to self-determination, later known as the “principle of nationalities”, was elaborated. Although the 1789 Declaration of the Rights of Man and of the Citizen contains no mention of the concept of “people”, the various constitutions of the revolutionary period make express reference to it. The same texts proclaimed human rights and the rights of peoples to freedom and equality.
33. Conversely, the two notions, human rights and the principle of nationalities, will be considered as “pernicious” ideas by the Holy Alliance and banished from the Europe of the restored absolute monarchy. The peoples have no rights to claim against the monarchs. The citizens have no rights other than those that the monarchs want to recognize. From now on, in all the countries of Europe or of European origin, struggles will be waged at the same time for human rights and for the right of peoples to self-determination.
34. The ferment of 1848, which has been called “the springtime of the peoples”, bears witness to a popular agitation for democracy, human rights, independence and national unity.
35. It was in the name of these principles that the countries of Latin America broke away from the Spanish and Portuguese colonizers, that other peoples broke away from Ottoman domination, that the Austro-Hungarian Empire, described as a “mosaic of peoples”, was dismembered.
36. As for the Empire of the Tsars, which was called the “prison of the peoples” it becomes, according to the Fundamental Law of January 31, 1924, a Union of Soviet Socialist Republics in which it is “guaranteed” to each Republic “the right to leave the Union freely” while “access to the Union is open to all Soviet Republics existing or that may be formed in the future”, marking thus “a new decisive step in the union of the workers of all countries in a world socialist soviet republic.
37. Subsequent Constitutions will maintain the right to leave the Union, but will no longer speak of a “guarantee” or a “World Socialist Soviet Republic”.
38. Nazi Germany, on the other hand, would declare itself fundamentally opposed to the ideology of human rights and the rights of the people, and would demonstrate this tragically through mass killings and deportations and the enslavement of large parts of the peoples of Europe.
39. After the victory of the Allies, the United Nations Charter was the first international document of a universal nature to solemnly recognize human rights and the right of peoples to self-determination. The same article 55 affirms “the equal rights of peoples and their right to self-determination”, on the one hand, and “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”, on the other.
40. This brief review of the common history of the two concepts with which we are concerned would be misleading if we did not recall that, despite the universal significance they gave to these principles, European states or states of European origin, such as the United States of America, were perfectly happy with slavery, colonialism and even genocide, not to mention all forms of racial discrimination. The Latin American countries that have liberated themselves from colonialism have maintained colonial ties with the Indian populations, with all that this implies in terms of despoilment and subjugation.
41. Slavery was not abolished until the second half of the 19th century. It took the United States of America a civil war to achieve this. The 19th century, the century of human rights and the principle of nationality, was the golden age of colonisation. Millions of human beings were enslaved by powers that had enshrined in their constitutions the great principles of 1789.
b) The distinction between human rights and peoples’ rights
42. Whether it is because of this common history or because of the inclusion of the right of peoples in Article 1 of the two International Covenants on Human Rights, there have been those who have believed that the right to self-determination should be considered a “human right. This view, as we shall see, was dismissed quite easily.
43. However, when it comes to the “new” rights of peoples, such as the right to development or the right to dispose of natural wealth and resources, the idea has arisen that they should be equated with human rights, and they are commonly referred to as “third generation human rights”. We challenge such a formation below.
44. The two International Covenants on Human Rights contain a similar article 1 which reads as follows
“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
“2. All peoples may freely dispose of their natural wealth and resources for their own ends” without prejudice to the obligations arising out of international economic cooperation based on the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
“3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination of peoples, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
45. Should the inclusion of the right of peoples to self-determination in the two Covenants mean that the right to self-determination should be considered a “human right” in the strict sense of the term? Most authors do not accept this. They argue, correctly, that human rights protection is intended for individuals as such, whereas it is the people collectively who exercise their right to self-determination.
46. During the UN debates on Article 1 of the two Covenants, some people thought they could contest this obvious fact. They argued that there are indeed human rights that can only be exercised collectively, such as freedom of association or freedom of association. Why should the same not be true of the right to self-determination?
47. To this observation it was rightly replied that it was the individual right-holder who freely made the decision to join an association or a trade union, whereas membership of a people does not depend, save in exceptional cases, on an individual choice (8).
48. With regard to the “new” rights recognized for peoples, such as the right to development, the right of peoples to dispose of their natural wealth and resources, their cultural rights, their right to environmental protection and even their right to peace, some scholars have considered them to be human rights and even described them as “third-generation human rights”.
49. At first sight, it seems difficult to consider the right of peoples to self-determination as a third-generation right since, as we have seen, it has the same historical origin as human rights. It would therefore have to be accepted that the only right of peoples is the right to self-determination and that the other rights mentioned above are, in fact, only human rights that appeared later.
50. It is true that some texts give a dual dimension to the right to development, characterizing it as both a human right and a right of peoples. Thus the Declaration on Social Progress and Development proclaimed by the United Nations General Assembly on 11 December 1949 states that “all peoples and all human beings … have the right to live in dignity and to enjoy social progress freely”. The Unesco Declaration on Race and Racial Prejudice also speaks of the “right to full development of every human being and every human group”.
51. But in fact, these are two distinct rights. The right of the individual to full and complete development cannot be confused with the right of the whole people to economic and social development. The same distinction must be made, as we shall see, for cultural rights: one thing is the right of the individual to access to culture, another is the right of a people to have its culture respected.
52. Will it be said that the same right can have two beneficiaries? We believe that neither human rights nor the rights of peoples have anything to gain from such an amalgam. If the purpose of the right to development is the fulfilment of the individual, it must be borne in mind that there are no abstract human beings outside time and space, but real men and women living among a people. The identification of human rights with the rights of peoples, and the use of a rather unusual vocabulary (“third-generation human rights”) to designate rights belonging to the people, can only lead to confusion and obscure the discussion of the relationship between the two concepts, which must be considered as distinct but complementary.
53. As for the “right to peace”, which is sometimes held to be a third-generation human right and sometimes a right of peoples, it should be noted that the illegality of recourse to war has been proclaimed in numerous texts, from the Pact of Paris of 27 April 1928, known as the Briand-Kellogg Pact, to the United Nations Charter. But recourse to war is not only an illegal act. It is also a criminal act. Article 6 of the Nuremberg Statute defined the concept of “crime against peace”, entailing the criminal responsibility of the perpetrators of this crime. The Nuremberg verdict applied this and was enshrined in the United Nations General Assembly resolution of 11 December 1946, Article 5 of which on the definition of aggression states: “A war of aggression is a crime against international peace. Aggression gives rise to international responsibility”. The statement of a recognized right to peace for men and peoples adds nothing to these peremptory condemnations of the use of war, which are essential binding norms of international law. War of aggression is an international crime in the eyes of all humanity.
c) Peoples’ rights as a condition of human rights
54. We have already seen that the inclusion of the right of free determination of peoples in the two International Covenants, i.e. in legal instruments essentially devoted to the enunciation of individual rights, did not have the effect of making it a “human right”. How, then, can this inclusion be explained? Is it a methodological error, as some have claimed, since the right of peoples to self-determination has no place in the human rights Covenants? We do not think so. In fact, by including the international right of self-determination in the first part of each of the two Covenants, consisting of a single article 1, the drafters of the Covenants intended to make it clear that there could be no human rights where a people was enslaved.
55. The United Nations resolutions usually present the right to self-determination as the right to free oneself from all colonial, foreign or racist domination, such domination being incompatible with the guarantee of respect for human rights. This respect therefore presupposes the prior liberation of the people which, in the conditions of contemporary international life, is affirmed by the creation of an independent State. Through this creation, the people exercise their self-determination within the international framework, human rights being then the sole responsibility of the new sovereign independent State.
56. This view is correct but incomplete. It is true that freedom from colonial, foreign or racist domination is a necessary condition for human rights, but not a sufficient condition. The right of a people to self-determination is not only the right to free itself from colonial subjugation, foreign occupation or racist rule, but also the right to free and permanent self-determination. A people is not free and master of its destiny if it is subjected to an authoritarian and repressive regime. The right of a people to self-determination does not become irrelevant once it has broken the chains of foreign domination. It is, like human rights, a permanent right.
57. The United Nations proclaims the general principle that all peoples have the right to self-determination, but in fact applies it only to peoples under colonial or foreign domination. The sovereignty of the colonial or occupying power is not considered an obstacle to the international support due to a people struggling for its liberation. Self-determination is then exercised as a choice within the framework of international relations (external self-determination). It is true that the United Nations also applies the principle of self-determination to the case of peoples subjected to a racist regime. The obstacle of sovereignty thus disappears in the case of a State that subjects its people to a racist regime. This is a step towards the recognition of a right to internal self-determination.
d) Complementarity of human rights and peoples’ rights
58. The work of the United Nations in putting the principle of self-determination in order has been of capital importance in the process of decolonization and in the development of a true international law of peoples. But the jurist is obliged to go further. The right of peoples to self-determination is defined by the Covenants as the right to freely determine their political status. It thus encompasses both external and internal self-determination. When human rights and fundamental freedoms are systematically violated, when political rights are not recognized, the right of the people to self-determination is also violated, because the people cannot freely choose their political status.
59. As Antonio CASSESE has recalled, internal political self-determination means, on the one hand, “the right to choose a government freely through the exercise of all the freedoms which permit such a choice (freedom of thought, assembly, association, politics, etc.)” and, on the other hand, “once the government has been chosen, the right to ensure that it is always based on the consensus of the people” (9).
60. As Professor G. SCELLE wrote before the last war: “Tyranny, absolutism and dictatorship constitute both a violation of individual rights and a disregard for the rights of peoples”.
61. The Universal Declaration of the Rights of Peoples, a non-State document proclaimed by a number of personalities meeting in Algiers on 4 July 1976 on the initiative of the International League for the Rights and Liberation of Peoples and the Foundation of the same name, contains three articles devoted to political self-determination, as follows
“Article 5: All peoples have the inalienable and imprescriptible right to self-determination. They shall determine their political status in complete freedom from external interference.
“Article 6: All people have the right to free themselves from any direct or indirect colonial or foreign domination and from any racist regime.
“Article 7: All people are entitled to a democratic system of government representing all citizens without distinction as to race, sex, creed or colour and capable of ensuring effective respect for human rights and fundamental freedoms for all.”
62. The right of the people to self-determination thus takes on its full meaning since it covers both external self-determination (Art. 6) and internal self-determination (Art. 7). By recognizing the right of all peoples to a democratic regime representing all citizens and ensuring effective respect for human rights, the Algiers Declaration gives full meaning to the right of peoples to self-determination proclaimed by the United Nations Charter.
63. Rather than seeking to define the right to self-determination and other rights of peoples as human rights, and thus engage in legal confusion, it is more accurate to interpret the principle of self-determination in a way that gives it full force. The rights of peoples are the necessary condition for human rights, but effective respect for human rights and fundamental freedoms is a necessary condition for peoples to be able to exercise genuine self-determination. The two concepts therefore appear to be complementary.
64. Thus the question of the relationship between the people and the State is satisfied. It is a fact of contemporary international law that the people and the State are not the same thing. The State can only be considered as the representative of the people if it is based on a democratic regime ensuring effective respect for human rights and fundamental public freedoms. Otherwise, there is a contradiction between the state and the people.
65. Therefore, the international implementation of the right to internal self-determination inevitably faces the objection of national sovereignty. Here the objection is serious, as respect for national sovereignty is an essential norm of the law of nations and a condition for international peace. We have already pointed out the extreme weakness of the means used to ensure respect for international human rights law. We have welcomed the efforts of the United Nations in favour of the right to self-determination of peoples subjected to colonial, foreign or racist domination. We must now note that States do not have the legal means to ensure respect for the right to internal self-determination of peoples. If they sometimes have the will, it is always selectively according to partisan or selfish political options.
66. It is here that international public opinion must take over from states and official institutions. The support of public opinion is often obtained through the action of non-governmental organisations (NGOs), some of which manage to make themselves heard in the United Nations. This support becomes more effective if, in addition to moral and political reasons for condemning the oppressive government, legal arguments can be added.
67. The complementarity of the two concepts is clear. The struggles of colonial peoples for their liberation have found support from international public opinion not only on the basis of the rights of peoples, but also through the denunciation of the human rights violations that accompany colonization. The same must be true of the struggle against internal forms of oppression.
e) The delicate issue of minorities
68. We have tried to bring some clarity to the distinction between human rights and the rights of peoples and the relationship between these two concepts, trying as far as possible to overcome some of the confusion or ambiguity. The task is more difficult in the case of minorities, where such confusion and ambiguity seem to have been fostered.
69. The only text in the instruments that we use as a reference is article 27 of the International Covenant on Civil and Political Rights.
“Article 27. In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion or to use their own language”.
70. This text calls for two comments:
– The minorities taken into consideration are ethnic, religious or linguistic minorities, to the exclusion of national minorities,
– rights are recognized not to minority groups as such, but to “persons belonging to such minorities”.
71. During the preparatory work on article 27, a first draft included national, ethnic, religious or linguistic minorities. The reference to national minorities was dropped along the way, which raises the question of what a “national minority” means, and how it differs from an ethnic, religious or linguistic minority. The most diverse opinions have been expressed on this subject. Some have argued that “national minority” means a group of persons having the nationality or citizenship of a State other than that in which they reside. Others argued that the term “ethnic minority” included national minorities, while others considered that national minorities included ethnic minorities. Finally, some considered that the term “national minorities” should be abandoned in order to avoid a source of ambiguity arising from an expression whose meaning is not unanimous (11).
One author even went so far as to argue that oppressed majorities should be considered as minorities, which would mean that a numerical majority could be at the same time a legal minority. It was difficult to go further in the confusion.
72. Why such embarrassment? Is it not because the expression “national minority” could well refer to a minority “people” in a State that is not its own? To admit the existence of a minority people is, ipso facto, to recognize its right to self-determination since, according to Article 1 of the International Covenants, “all peoples have the right to self-determination”. There is no reason, in principle, to deny this right to a people that has demonstrated its existence by its behaviour, and if necessary by its struggle, on the sole ground that it lives in a minority in a State that is not its own.
73. If we accept our point of view on this question, the case of “national minorities” would fall within the scope of the right of peoples, since the right of self-determination is recognized for all peoples, whereas the case of ethnic, religious or linguistic minorities would fall within the scope of human rights, since, according to article 27 of the Covenant on Civil and Political Rights, the rights recognized by this article are for the benefit of “persons” belonging to such minorities.
74. In particular, “national minorities” and ethnic minorities should not be confused. A people may include individuals of various ethnic origins. Moreover, while ethnic origin may be one of the characteristics of a people, it is not sufficient in itself to constitute it.
75. Does this mean that the right to self-determination recognized for the minority people could go as far as secession, and thus lead to an attack on the territorial integrity of the State? This risk exists, but it will not be eliminated by denying the existence of the minority people. However, in many circumstances, the objective conditions for secession will not be met, e.g. a minority people enclosed within the territory of another people, a minority people spread over the whole territory of the state, etc. Sometimes also the subjective conditions, the will to separate, will not exist. In all these cases, persons belonging to the minority people must enjoy the rights granted to persons belonging to ethnic, religious or linguistic minorities and, at the same time, by virtue of the principle of non-discrimination, equal rights with persons belonging to the majority people.
V. HUMAN RIGHTS AND THE RIGHTS OF PEOPLES TO CULTURE
76. We will first recall the texts that refer to cultural rights as human rights and those that refer to them as the rights of peoples. We will then attempt to distinguish between human cultural rights and the cultural rights of peoples, while emphasizing their complementarity. We will continue by stressing the importance of the international recognition of cultural rights and by noting what some have seen as a move towards an “international law of culture”.
a) The texts
77. The following texts refer to cultural rights as human rights:
– Universal Declaration of Human Rights:
“Art. 22: Everyone … is entitled to the satisfaction of the economic, social and cultural rights indispensable for his dignity and the free development of his personality … having regard to the organization and resources of each country.”
“Art. 27.1: Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
– International Covenant on Economic, Social and Cultural Rights:
“Art 3: The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.
“Art. 15: The States Parties to the present Covenant recognize the right of everyone to
a) to participate in cultural life,
(b) to benefit from scientific progress and its applications,
(c) to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author…
• International Covenant on Civil and Political Rights:
Article 27 of the Covenant deals with the cultural rights of persons belonging to ethnic, religious or linguistic minorities. We have quoted its terms above.
78. As for the texts that expressly refer to the cultural rights of peoples, they include
• Article 1, paragraph 1, common to both International Covenants:
“All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
But above all, we must quote Article 1 of the Declaration of the Principles of International Cultural Co-operation, adopted unanimously by the General Conference of Unesco on 4 November 1966:
Every culture has a dignity and value that must be respected and safeguarded. Every people has the right and the duty to develop its culture. In their fruitful variety, diversity and reciprocal influence on one another, all cultures form part of the common heritage of humanity.
79. As we have done with the relationship between human rights and the rights of peoples in general, we must distinguish between human cultural rights and the cultural rights of peoples in order to avoid any ambiguity. Both are obviously related to culture, but they have neither the same object nor the same holder. On the one hand, every person has the right to participate in cultural life; on the other hand, every people has the right to respect and development of its culture. One thing is the individual’s right of access to culture, another is the right of each people to have its culture safeguarded and respected by other peoples and states.
80. Not only does the beneficiary of the right vary, but its purpose varies: in the first case, it is the obligation of each State, within its means, to ensure that everyone can participate in cultural life. In the second case, it is a matter of respecting and safeguarding the value and dignity of the culture of each people and of enabling it to develop, without there being any need to enter into a debate on the various meanings of the word “culture”, let us simply note that when it is a question of the culture of the individual and that of the people, the scope of the object is not the same.
81. Persons belonging to an ethnic, religious or linguistic minority have the right, under article 27 of the Covenant on Civil and Political Rights, to enjoy their “own culture”. This right is recognized in the same way as the right to profess their own religion or to use their own language. We have already mentioned these rights, pointing out that they are recognised not to the minority community as such, but to the persons belonging to the minority. On the other hand, Article 27 excludes from its scope national minorities, i.e. minority peoples within a State (see above).
b) Towards an international law of culture
82. While the reference to cultural rights as human rights is not problematic and can be held to be included in positive law, the notion of the cultural right of peoples appears to be a concept in the process of formation. Article 1 of both Covenants refers to the right of peoples to determine their cultural development only as an aspect of the general right to self-determination.
83. Some authors consider that it is not inconceivable that, in the field of cultural exchanges for example, not only State practice but international law itself will evolve (12). The resolutions and recommendations of the General Conference of Unesco have made a major contribution to the development of this new international law on culture, and there is every reason to believe that it will be implemented on the basis of the principles set out in Article 1 of the above-mentioned Declaration of 4 November 1966.
84. Unesco, with its knowledge of the cultural needs of all the people of the world and, at the same time, of the diversity of the cultures of each people and the need to safeguard them, is the ideal place where such an international law of culture could be developed.
85. This should be based on the complementarity and interdependence between the cultural rights of the individual and the cultural rights of peoples. The cultural rights of the individual cannot be satisfied when the people to which he or she belongs are enslaved. Conversely, the cultural development of each people presupposes free access to culture for all the individuals who make up that people.
86.It will have been noted that the Declaration of 4 November 1966 proclaims that ‘all cultures form part of the common heritage of mankind’. This notion of the ‘common heritage of mankind’, which is found in other international texts concerning other matters, was important to be recalled by Unesco in connection with the culture of peoples. Is this not a new principle of international law in the making? Beyond individuals, peoples and States, would not “humanity” be recognized as having a heritage and rights over it? Although outside the scope of this study, this remark did not seem to us to be unnecessary.
VI. CONCLUSION
87. We believe that we have covered, albeit in an elementary and sometimes superficial manner, what might be considered to be the positive international law of human rights and the rights of peoples, whether completed or in the process of being formed. However, in order to avoid any ambiguity, we should like to make two comments.
88. The fact that we have confined ourselves, as far as possible, to positive law in no way implies an adherence to the positivist theory of law, according to which any attempt to explain the legal norm outside the norm itself is pointless. Rather, the author of this study believes that the analysis of any legal norm must take into account the conditions of its formation in the context of given social and political structures, which are themselves in flux.
89. On the other hand, we are in no way unaware of, nor do we underestimate, the manipulation of peoples’ rights for political purposes to cover up manifest breaches of human rights and fundamental freedoms or, conversely, the manipulation of human rights to justify inadmissible violations of peoples’ rights. Such manipulations are unfortunately all too common. We felt that there was no need to report on them in this study, which concerns only the law and not its application, and even less its misuse.
1 See also Theo Van Boven, “Overview of Positive International Human Rights Law” in The International Dimensions of Human Rights, Unesco, Paris, 1978.
2 Aureliu Cristescu, “The Right to Self-Determination” United Nations, New York, 1981, p.37.
3 Edmond Jouve, Le droit des peuples, Collection Que sais-je?, Presses universitaires de France, Paris, 1986, p.7.
4 Charles Chaumont, “Le droit des peuples à témoigner d’eux-mêmes”, Annuaire du Tiers monde, Vol.II, 1975-76, Paris, p. 15 et suivantes.
5 Quoted by Cristescu, op. cit. See also “L’avis consultatif du 21 juin 1971 dans l’affaire de la Namibie” by Brigitte Bollecker, in Annuaire français de droit international, CNRS, Paris, 1977, p. 281 ff.
6 Maurice Flory, “L’avis de la Cour internationale de justice sur le Sahara occidental, 16 octobre 1975” in Annuaire français de droit international, CNRS, Paris, 1975, p.253 and following.
7 René-Jean Dupuy, “Thème et variations sur le droit au développement” in Le droit des peuples à disposer d’eux-mêmes, Mélanges offerts à Charles Chaumont, Editions Pedone, Paris, 1984, p.263.
8 See K.J.Partsch, “Les principes de base des droits de l’homme” in Les dimensions internationales des droits de l’homme, Unesco, Paris, 1978, p.72.
9 Antonio Cassese, in Le mois en Afrique, Oct-Nov 1981, p.102.
10 Quoted by Antonio Cassese, ibid.
11 See Jules Deschenes, “Proposition pour une définition du terme ‘minorité'”, United Nations, ECOSOC, New York, E/CN.4/Sud.2/1985/31.
12 See Jean-Pierre Colin et Jack Lang, “La culture entre les peuples et les Etats: vers un nouveau droit international” in Le droit des peuples à disposer d’eux-mêmes, Mélanges offerts à Charles Chaumont, Editions Pedone, Paris, 1984, p.179 et seq.
in: Etude réalisée par M. Léo Matarasso, présentée à la réunion internationale d'experts sur l’approfondissement de la réflexion sur le concept de droits des peuples. Unesco, Paris, 27-30 novembre 1989