Minorities' Claims: From Autonomy to Secession

International Law and State Practice

Gnanapala Welhengama

• Publisher: Routledge
• Year: 2017
• eBook ISBN:
  9781351728331
• Topic: Sciences sociales
• Subtopic: Sociologie

This title was first published in 2000:  An investigation of how the claims of minority groups for greater political power through 'autonomy' and 'secession' clash with the concerns of the nation-State, and how States' refusals to respond positively to such claims contribute to the escalation of ethnic conflicts in contemporary multi-ethnic polities. In addition, this book examines the extent to which the international community is prepared to accommodate the concerns of minority groups beyond traditionally identified 'minority rights'. The validity of claims for autonomy with shared-sovereignty, autonomy as an inherent part of self-determination, autonomy as a solution to current ethnic conflicts, secessionist and irredentist movements and their impact on peace and security are analyzed in detail. Most importantly, whether minorities as such can secede from the State in which they live by virtue of self-determination is critically analyzed. The discussion of 'peoples' in the context of self-determination is the first detailed research on this subject to appear in international and human rights literature.

1
Claims From Autonomy to Secession: Introduction

Part I

1.1 Objectives

The following issues are investigated, assessed and critically analysed:

1. Ethnic violence has been on the increase for a considerable time in almost all parts of the world, and has engulfed the current political debate both at international and domestic levels;
2. Most minority groups are either fighting for greater political power through greater autonomy or in extreme cases engaged in the building of ethno-nation-States challenging the contemporary understanding of the right to self-determination and or justifying their struggles in terms of the right to secession by virtue of the right to self-determination;
3. Ethnic clashes involving minority groups and nation-States are forcing the United Nations and other international bodies to modify existing laws and or to create new sets of laws to cater for the claims of minorities.

This book also:

1. identifies and examines the extent to which contemporaiy international law and the international community are prepared to accommodate the concerns of ‘minorities’;
2. analyses how the claims of minorities for political rights beyond traditionally understood limited rights clash with the concerns of nation-States and the norms of contemporary international law; and
3. identifies the extent to which clashes between minorities and nation-States develop in post-modern plural societies. The clashes scenario will be examined by referring to sample cases in various parts of the world.

These will be confined to post World War II conflicts such as Bangladesh, Biafra and the most recent cases such as Kosovo and other secessionist movements in the Balkans and Caucasus.

Analyses of the issues raised in this work are principally confined to the period from 1945. However, references are made in brief to the pre-World War II period, in particular to the League of Nations.

1.2 Minorities?: “Cat Owners and Bald Peoples do not Fit the Standard Picture of Minority Groups”?

This book limits its focus to minorities as identified in article 27 of the International Covenant on Civil and Political Rights, 1966 (ICCPR)¹ and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992² (Declaration on Minorities, 1992) who are non-dominant and numerically inferior in comparison with the dominant group. Ethnic, national, religious and linguistic minority groups are referred to in this work as ethnic minorities or minorities, because the author is of the opinion that religions, languages and cultures are salient defining characteristics of ethnic groups. Other vulnerable social and cultural groups such as women, homosexuals, and the disabled are excluded.

There are conflicting views amongst some scholars about whether social and cultural groups should be covered by the term minority. Humphrey (1989: 50) argued that even though such disadvantaged groups may have some of the characteristics of real minorities, it would be better if another term could be found to describe them. Such groups, as Sanders (1991:370) noted, in particular those “suffering from discrimination, have a tendency to assert a collective character, simply as part of the struggle” (see also Nowak, 1993:491). By way of an example, he refers to the homosexual community in the USA who identify themselves as the Queer nation. Referring to women and homosexuals, Special Rapporteur Deschenes questioned how it could be possible to identify them as minorities in terms of international law³ Therefore, minority groups who identify themselves with ideological opinions associated with age, disability, or sexual orientation are outside the terms of minorities of this study (see also Zayas, 1993). “Bald people, cat owners, and members of armed forces do not fit the standard picture of a minority group” either (Gilbert, 1992:69-70). As is evident from present UN practice, international law does not accept all groups, which want to be protected and identified as minorities. Sigler (1983:4-5) argues that international law regards many sub-groups as social groups rather than minorities. As Thomberry writes (199la: 16), international law is not concerned with “every conceivable classification of minority” (see also Ramcharan, 1989:201).

Another term, which is frequently used in this book, plural society/ies, is used to identify deeply divided contemporary multiethnic, multireligious and multilingual societies. The author has followed the description of the term plural societies provided by Professor Arend Lijphart. Most contemporary societies, according to Lijphart (1995:276), are “sharply divided along religious, ideological, linguistic, cultural, ethnic, or racial lines into virtually separate subsocieties with their own political parties, interest groups, and media of communications. The most common of these distinctive features is ethnicity, but the different categories overlap considerably”.

Part II: The Minority Issue and Ethnic Conflicts

1.3 The Minority Issue and the League of Nations: “It Drags Out All Our Dirty Linen and Washes it Publicly”

The minority issue is not a new phenomenon. Where there is a minority there is always a possibility of clashes between it and the majority community. Moreover, minorities are vulnerable to assimilation, segregation and fusion. The latter is akin to the policy of Romanisation practised in the old Roman Empire (Macartney, 1934:27-29). In extreme cases, they are subjected to oppression and persecution at the hands of State machinery and or majority groups. This often results in conflicts, involving basically a minority and the dominant majority groups, culminating in the involvement of the State. These conflicts often spill across the boundaries of many States, giving an international dimension to many ethnic conflicts. For centuries, therefore, particularly in Europe and the Middle East, there have been experiments made with a view to finding ways and means not only to keep minorities under control but also to find reasonable solutions to minority problems. It is believed that the first such initiative took the form of the millet system introduced in the Ottoman Empire during the 15th century by Sultan Mehmet II to guarantee certain rights for non-Muslim religious and ethnic minorities. The main objective was to ensure that its various ethnic and religious groups received protection within the Empire. Sigler (1983:70) states that the millet system was “something akin to modem minority group rights” because it was based on the recognition of groups and their institutions. It was also international in character, because it was operated across national boundaries in large parts of Europe and Asia. Subsequently, the welfare of religious and national minority groups have become legitimate concerns of the European powers. The Treaty of Vienna, 1606 (between Hungary and Transylvania), the Treaty of Olivia, 1660 (between Sweden and Poland), the Treaty of Westphalia, 1648 (France and the Holy Roman Empire and their Allies), the Treaty of Nijmegen, 1678 (between France and Holland), the Treaty of Ryswick, 1697 (between France and Holland), the Treaty of Paris, 1763 (between France, Spain and Great Britain), the Congress of Vienna, 1815 (between France, Great Britain, Portugal, Prussia, Russia and Sweden), the Treaty of Berlin, 1878 (between Germany, Austria, Hungaiy, France, Great Britain, Italy, Russia and Turkey), the International Convention of Constantinople, 1881 (between Germany, Austria, Hungary, France, Great Britain, Italy, Russia, and Turkey) are worthy of mention (see details Sigler, 1983:68-69; Capotorti report, 1979:1-2).

Throughout the 16th, 17th and 18th century conflicts were largely religious in character. Ethnic minorities, however, became a political issue during the 19th century with the rise of nationalism in Southern, Eastern and Central Europe. Certain States were compelled to introduce laws in their domestic legal system to protect minorities. For instance, the Austrian Constitutional Law, 1867 had taken a significant step in addressing legitimate concerns of ethnic minority groups. It recognised that “all the ethnic minorities of the States shall enjoy the same rights and, in particular, have an absolute right to maintain and develop their nationality and their language”. This was considered a significant step in minority protection (see Capotorti report, 1979:3). Similarly, the Polish Constitution 1815, Hungaiy’s Act XLIV, 1868, and the Constitution of the Swiss Confederation 1874 are other notable instances where certain constitutional guarantees were introduced to protect minorities and to address their concerns.

Minority consciousness vis-à-vis the emergence of nationalism gradually laid the foundation for future ethnic conflicts which later spread to other parts of the globe. Referring to these developments Sigler (1983:72) wrote that “nationalism was the seedbed of modem minority rights, and minority discontent was one of the most unsettling forces in international relations”. With the fall of the 20th century, solutions to this new conflict scenario were sought through various bi-lateral and multilateral treaties and declarations.

The first modem international experiment with the minority issue was made by the League of Nations⁴ which, according to Robinson (1971:62), “constitutes an unsurpassed high point in a centuries old tradition” (see details in Jones, 1949; Capotorti report, 1979:4). Yet the Covenant of the League of Nations did not contain any provision for the protection of minority rights (Azcarate, 1945:92). This was due to conflicting views amongst the leaders who played a major role in the process of drafting the League Covenant at the Paris Peace Summit. Some attempts were made, notably by the former US President Wilson, to include such a clause. He urged:

The League of Nations shall require all new States to bind themselves as a condition precedent to their recognition as independent or autonomous States to accord to all racial or national minorities within their several jurisdictions exactly the same treatment and security, both in law and in fact, that is accorded to the racial or national majority of their people.

Later, Wilson proposed an additional article:

Recognising religious persecution and intolerance as fertile sources of war, the Powers signatory hereto agree, and the League of Nations shall exact from all new States and all States seeking admission to it the promise, that they will make no law prohibiting or interfering with the free exercise of religion, and that they will in no way discriminate, either in law or in fact, against those who practice any particular creed, religion or belief whose practices are not inconsistent with public order or public morals (see Azcarate, 1945:168; and also see Miller, 1928:91).

These proposals were rejected by a majority of States and subsequently abandoned by the US delegate. Such a move was considered by many as undesirable or impossible to implement (Jones, 1949:604-605). Nonetheless, it was believed by the leading players of the League of Nations that the ultimate goal, that is international peace, would be achievable only through an effective mechanism capable of protecting minorities (Macartney, 1934:274). Minority issues were, however, left for States to deal with in what were subsequently popularly known as ‘minorities treaties’ and ‘declarations’. of these the Polish Treaty, 1919 (between Poland the Principle Powers and its Allies) became a standard formula for subsequent treaties, such as the Treaties of Saint-Germain-en-Laye, 1919, Neuilly-sur-Seine, 1919, Trianon, 1921 and Lausanne, 1920 (Azcarate, 1945:92 and 169; Robinson, 1971:63-64). Amongst declarations, the Declaration by Albania, October 2, 1921, the Declaration by Estonia, September 17, 1923, the Declaration by Finland, June 27, 1921, the Declaration by Latvia, July 7, 1923 and the Declaration by Lithuania, May 12, 1922 should in particular be mentioned.

In addition, some special measures were taken to address individual cases, such as the Jewish minorities in Greece, Poland, Rumania, Lithuania; the Valachs of Pindus in Greece, the Ruthanians in the Carpathian Mountains, the non-Greek monastic communities of Mount Athos in Greece; the Moslem minorities in Albania, Greece, and the Kingdom of the Serbs, Croats and S...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• Acknowledgements
• Abbreviations
• List of Cases
• List of Statutes and Constitutions
• List of Conventions, Treaties and Declarations
• Preface
• Series Editor’s Preface
• Foreword
• 1 Claims From Autonomy to Secession: Introduction
• 2 Minorities?
• 3 Peoples, All Peoples, Nations and Minorities
• 4 Claims for Autonomy With Shared-Sovereignty
• 5 Claims For Autonomy Through the Right to Self-determination?
• 6 Models of Autonomy and Movements for Autonomy
• 7 Claims for Autonomy: The Concerns of States
• 8 Secessionist Movements
• 9 The Right to Secession: The Views of Jurists
• 10 The Right to Secession: International Law and UN Practice
• 11 Secessionist Attempts: Case Studies
• 12 The Right to Secession Through the Right to Self-determination? Attitudes of States
• Conclusions
• Index