Louis Joinet
in Hommage à Léo Matarasso, Séminaire sur le droit des peuples, Cahier réalisé par CEDETIM-LIDLP-CEDIDELP, Février 1999
While the Declaration borrowed heavily from positive law, it also innovated under the impetus of Léo Matarasso, who used to say: “Take texts beyond the borders that States, by their very nature, impose on them”. This is the case of the Declaration in that it brings together elements inspired by existing standards to unite them around a mobilizing theme, thus adding value to the texts in force.
The most debated passage of the Preamble was its last paragraph: “But these are also times of frustration and defeat, when new forms of imperialism emerge to oppress and exploit the peoples”. Some people gave it a classical interpretation, of the North/South type. Others, and this was my opinion, gave it an East/West scope, that is to say “against all imperialisms”, that of the Soviets as much as that of the Chinese, even if they took specific paths.
It is finally the first thesis that seems to me to have prevailed: “Imperialism, by perfidious and brutal means, with the complicity of governments often installed by itself, continues to dominate a part of the world”. Although this formulation can be applied to the Soviet “Empire”, or even to China (Tibet comes to mind).
Beyond the words, it must be noted that the term “imperialism” has somewhat fallen into disuse in the literature of the law of peoples, to give way to the concept of “imperialism”.
globalization”.
What about the text itself?
Section 1 of the Declaration, which concerns the right to existence, has, in my view, two gaps. It states: “No one shall, on account of his national or cultural identity, be subjected to massacre, torture, persecution, deportation, expulsion or to conditions of life which would impair the identity or integrity of the people to which he belongs”. To this day I wonder why we did not replace the word “massacre” with the word “genocide” in this list of crimes under international law, when we were living in genocidal times.
In the same way, we have targeted “national or cultural identity” while omitting “religious affiliation”, whereas experience teaches that it often plays a determining role in the turmoil of history, whether it be, here, by oppressive proselytism, or there, to liberate (we are thinking, for example, of the theology of liberation of our Latin American friends)
Section 2, on the right to self-determination, was written at a time when most of the peoples with whom we stood in solidarity had gained their independence, at least politically.
The question of economic independence had yet to be resolved and the transition from external to internal democracy had to be forged.
The foundations are laid by Article 7, which stipulates that “all people are entitled to a democratic system 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”. Although it is difficult to establish what the objective characteristics of a democratic regime are, the Declaration proceeds concretely: is the State capable of safeguarding fundamental rights? The answer to this question determines the democratic character of a State. In this context, the Declaration remains fundamentally relevant, as well as a tool for struggle and analysis.
However, if we were to update the Declaration, the issue of internal self-determination would be a priority, as most of the peoples in struggle have become States through the conquest of their independence. In this sense, the Helsinki Declaration is worth mentioning, in that it insists on the right to self-determination through the holding of elections, but also through the acceptance of political alternation: this point is essential, because it emphasizes that if peoples have the right to sovereign self-determination with regard to their political regime, this right implies the right to change it.
Article 6 of the Algiers Declaration is similar to the preamble regarding imperialism, because when it states that “all peoples have the right to freedom from direct or indirect colonial or alien domination”, the term “indirect” refers to economic independence and the presence of multinationals.
Although this point was only briefly mentioned in the Algiers Declaration, we now realize that it has assumed considerable importance.
Section 3, relating to economic rights, gave rise to an intense legal debate, particularly with regard to Article 8, in which the Chilean jurist E. Novoa played an active role because of the situation in Chile. It states that “every people has an exclusive right to its natural wealth and resources. They have the right to recover them if they have been robbed of them and to recover the compensation that has been unjustly paid.
Today, the spoliation of the wealth of certain countries has reached such a scale that this issue cannot be reduced to a problem of commercial law or even of criminal law. The question is posed in terms of public international law. In the case of Chile, for example, as in the case of Indonesia, the Philippines or Panama, it is necessary to go beyond individual initiatives which only lead to lawsuits against individuals, and not to a questioning of the system which supported this spoliation. In this context, there is an urgent need to advance international law.
Section 5 and the right of minorities was the subject of the most heated debate during the discussion of the safeguard clause, which states that the right of minorities must not be detrimental to the State.
It should be noted that the concept of minorities, in some countries, is totally inadequate when it comes to oppressed majorities (as in Guatemala). This is one of the reasons why the UN texts refer, in this case, to peoples, to indigenous populations.
Initially, this approach was self-evident, since it was most often a question of the oppression of one people by another State, but with the progress of political decolonization and the emergence of peoples who had become States, the question arose as to whether, in the name of the right of peoples, as defined in the Algiers Declaration, minorities could, in the new State, provoke a split, considering that they formed a people within the State.
Two schools of thought fuelled the debate: the maximalists, who believed that all peoples had a right to their autonomy or independence and that, consequently, no reason of state could be applied to them; and the supporters of safeguarding the state as an antidote to the risks of balkanisation. The main difficulty with this section was linked to the concept of the League for the Rights of Peoples of giving priority to the cause of peoples over that of States.
Article 21, in the absence of a consensus, gave rise to a compromise by specifying that “the exercise of these rights (of minorities) must respect the legitimate interests of the community as a whole, and must not authorize interference with the territorial integrity and political unity of the State”, thereby vindicating the latter, subject to the following proviso: “provided that the State conducts itself in accordance with all the principles set forth in this Declaration”. This compromise was also taken up in the Helsinki Declaration.
This section should therefore be more developed than it is in its current version.
According to Article 20 “members of the minority shall enjoy, without discrimination, the same rights as other nationals of the State and shall participate equally with them in public life”, but the implementation of this article poses a major political problem. When it says: “the members of the minority shall enjoy, without discrimination, the same rights as the other nationals of the State” this is an individualistic approach: if one respects the human rights of each individual, one respects the rights of each minority as a whole.
In the case of New Caledonia, I wanted to have a resolution voted on at the UN Sub-Commission on Human Rights, of which I am a member as an independent expert.
However, following a discussion at a LIDLIP meeting, J.M. Djibavu had convinced me that the relevant body was not the human rights committee but the “decolonization committee” because the fundamental objective was independence.
This individualistic approach was fortunately tempered by the phrase “and participate equally with them in public life”. This participation requires not only free elections, but also a system of equitable representation of the different ethnic groups in the population. The presence of different ethnicities creates situations in which Western systems of representation of the sovereignty of the people are not adapted. For example, in the case of Rwanda, the problem was to involve the different components of the population in a system of popular sovereignty. In addition to holding elections, it is also a question of ensuring that there are ministers from each ethnic group. The European system is not easily transposable, because in this case it is not only political pluralism but also ethnic pluralism.
Does it remain sufficiently topical, or does it deserve to be supplemented or re-evaluated on certain points so as not to lose sight of Léo Matarasso’s idea of promoting the Declaration as a legal reference point for international law?
If we want it to have greater normative value, there are three solutions. Either it takes the form of a resolution of the UN General Assembly, or that of a Convention, but States will never agree to ratify certain articles as they are presented, or finally the Declaration should have the value of customary law. This last thesis, dear to Léo Matarasso, requires, among other things, the militancy of all parties so that international institutions, such as the Court of Justice in The Hague, gradually take it into account when they rule.
Joinet, Louis