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Скачать бесплатно! Научная работа на тему CONCEPTUAL ASPECTS OF MINORITY PROTECTION IN INTERNATIONAL LAW. Аудитория: ученые, педагоги, деятели науки, работники образования, студенты (18-50). Minsk, Belarus. Research paper. Agreement.

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Опубликовано в библиотеке: 2022-11-17
Источник: Russian Analytica, № 7, 2006, C. 23-46

Stanislav Chernichenko


Vice-President, Russian Association of International Law Professor


Ph.D. (History)


The issue of minorities includes at least four aspects.


* The first one is the choice of the minority protection concept. The question is - what should be protected - the rights of minority individuals or the rights of the minorities themselves?


* The second aspect is the classification of minorities and their categorization.


* The third aspect pertains to the definition of a minority. It might seem that this is the issue to start with, but the experience shows that the problem is practically impossible or at least very hard to resolve. Besides, some agreement has to be reached on what population categories should be designated as minorities in order to come up with even an approximate definition of a minority.


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The forth aspect is the distinction between minorities and indigenous peoples. This distinction is necessary since the legal regimes associated with these notions are different.


First of all, it should be emphasized that the right of nations to self-determination does not pertain to minorities. International cooperation in minority protection started to develop intensely only in 1919 following World War I. This development preceded a universal cooperation in the area of human rights. However, applying the right of nations to self-determination to minorities was never considered seriously. To some extent this may be explained by the fact that in practice the concept of protecting the rights of minority individuals prevailed over that of protecting minorities. As an example, one can refer to Article 27 of the International Covenant on Civil and Political Rights which establishes that "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 practice their own religion, or to use their own language". Naturally, the right of minorities to self-determination makes no sense in the framework of this approach. The reluctance to touch upon the minority rights protection issue was due to both the concern about the possibility of stimulating minority detachment, which might result in their artificial isolation and antagonize the rest of the population, and to the fear of separatist leanings among some minorities.


However, in a while the notion started to solidify that in some situations the question of protecting the rights of minorities as such should be considered internationally. This tendency was


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particularly pronounced in Western Europe. Its influence is visible in the February 3, 1993 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities adopted by the UN General Assembly Resolution 47/135. The declaration is based on the concept of protecting the rights of individuals belonging to minorities, as its title clearly shows. At the same time Article 1 of the Declaration reads: "States shall protect the existence and the national or ethnic, cultural, religious, and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity." This is an explicit indication of the rights of minorities as such to exist and to preserve their identities.


Yet the recognition of the rights of minorities to existence and to their identities is not tantamount to their right to self-determination.


A lot depends on the category of the minority considered. The League of Nations focused on protecting racial, religious, and language minorities. The categorization of minorities was revised and corrected after the end of World War II. The December 14, 1960 UNESCO Convention against Discrimination in Education refers to individuals belonging to national minorities (Article 5.1(c)). Article 27 of the International Covenant on Civil and Political Rights mentions ethnic, religious or linguistic minorities. The Preamble and Article 2 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities refer to minority individuals. This "or" is a compromise since some of the delegations objected to including the term "national minorities" when the Declaration was being drafted, assuming that it is necessary to follow the terminology of Article 27


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of the Covenant. Article 1 of the Declaration also mentions cultural minorities along with the national, ethnic, and religious ones. It should be noted that the conjunction "or" is not important here. For example Article 30 of the Convention on the Rights of the Child uses the formula of ethnic, religious or linguistic minorities. The June 14 - 25, 1993 Vienna Declaration and Programme of Action refers to the Declaration and reiterates its formula: "persons belonging to national or ethnic, religious and linguistic minorities" (Article 26). It was decided that the Working Group of the UN Subcommission on Prevention of Discrimination and Protection of Minorities established in 1995 would adhere to the same formulation. Currently, the classification of minorities defined by the Declaration can be considered generally accepted.


This does not rule out other classifications. As for the racial minorities, at present this notion is replaced by the notion of national and ethnic minorities. Individuals of the same race can belong to different national or ethnic minorities. Still, under some circumstances they can be considered as a certain ethnic minority. In other words, there appears to be no need of a separate racial minority category, since it is embraced by those of national and ethnic minorities. Here one can recall the formulation found in Article 1.1 of the December 21, 1965 International Convention on the Elimination of All Forms of Racial Discrimination, by which the term "racial discrimination" denotes not only the racial discrimination per se, but also any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin.


Cultural minorities mentioned in Article 1 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious


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and Linguistic Minorities can hardly be regarded as an independent category of minorities. In all likelihood, they are a derivative of other minority categories listed in the Declaration. Probably it was due to this reason that the above term is not used frequently in international documents.


In practice, issues of national or ethno-national minorities are the ones dealt with most frequently within the entire range of minority issues. In this respect, attention should be paid to the following provision of the memorandum submitted by the UN Secretary-General to the Subcommission on Prevention of Discrimination and Protection of Minorities - it states that in general the formulation "racial, religious, and language minorities" was used because these features (with the possible exception of religion) were viewed as typical characteristics of a national community. However the concept of the minority term was not and currently is not limited to groups forming national communities. Both previously and at present the term has a broader meaning and also includes the groups united by either common religion, common language, common ethnic origin, or any two or three of the above characteristics, even if these groups do not form national communities. Such groups are concerned not so much with the preservation of their national existence distinct from the dominant group as with maintaining the viability of their language, culture, religion, and traditions (Definition and Classification of Minorities {Memorandum submitted by the Secretary-General). - Lake Success, New York, 1950, para. 44. - P. 11.)


A broad concept of the national minority was reflected by the Convention on the Safeguarding of the Rights of Members of National Minorities in 1994 adopted by some of the CIS countries


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on October 21, 1994. Article 1 on the Conventions says that in its framework an individual belonging to a minority means an individual residing permanently on the territory of one of the Convention countries and having its citizenship, who differs from the dominant population of the country in origin, language, culture, religion, or traditions (Diplomaticheskiy Vestnik, 1994, #21 - 22, p. 43 (in Russian). Supposedly in an indirect way the February 1,1995 Council of Europe Framework Convention for the Protection of National Minorities is based on the same concept, though it contains no national minority definition (Council of Europe. European Treaties. -No. 157. -Strasbourg, 11.II.1995)). Minorities can be either disperse, that is, scattered over the entire territory of the country of residence, or compactly living in a particular region. The applicability of the right to self-determination can emerge only in the case of ethnic or national minorities compactly populating a part of a country. However, in this case we are dealing with groups having the features of a people rather than national or ethnic communities per se. In this context one might refer to a comment on the Declaration by a representative of the Minority Rights Group International. He opined that though minorities per se certainly have no right to self-determination by the contemporary international law, the concept of the nation-carrier of the right to self-determination must incorporate minorities. No international legal documents indicate that any part of the population can be excluded from the self-determination process, which is a democratic instrument peoples use to set political, social, cultural, and economic conditions of their lives (Thornberry P. The UN. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis and


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Observations//An Occasional Paper from Minorities Rights Group. - L., June 1993. -P. 31). This is of course somewhat imprecise. Parts of the population, no matter how important, are not entitled to self-determination. But the self-determination process is supposed to involve various parts of the population comprising a people such as social groups, nations, and national minorities. Being a people means sharing a territory, being a socio-economic entirety, and having common cultural elements. A nation is a narrower notion than a people. A nation is characterized, on top of the above, by a common language and culture. A nation and a people are the same in a mono-national state, a phenomenon practically never occurring in the modern world. France claims being mono-national (it does not participate in the Council of Europe Framework Convention for the Protection of National Minorities), but this claim is basically unfounded.


It is impossible to determine the point of transition from a national or ethnic minority to a people (Transitions of this kind do take place, as it has already been discussed in legal literature: AKh. Abashidze. Minority Rights Protection According to Domestic and International Law. Moscow, Prava Cheloveka Publishing 1996, p. 193 (in Russian)). The corresponding objective conditions "mature" gradually. In reality this issue becomes a legal one when the country in which a particular group resides starts to recognize it as a nation or a people, or when this recognition is an act of the international community (being sufficiently inclusive and supported by the most politically influential countries). But a minority thus recognized is no longer a minority in the strict legal sense. Upon this, the question is not about applying the minority regime to a particular group but about creating conditions for its


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self-determination, though such conditions can include all or some of the minority regime elements.


It must be noted that autonomy or some other special territorial status can be established for various purposes. First, they can be a form of realizing the right to self-determination. Secondly, they can be a form of protecting a minority residing compactly on a part of the territory of a country. This does not necessarily have to be an ethnic or a national minority but in any case a one not having the features of a people. Perhaps, the population of Ajaria exemplifies the above situation - its population differs from the rest of the population of Georgia by its Muslim religion. The Jewish population of the Jewish Autonomous District in Russia cannot be considered a people either due to its small numbers on the territory (as well as the disperse Jewish minority in Russia in general). It should be noted at the same time that a religious minority compactly inhabiting a territory can, under certain circumstances, create an original culture, which, combined with other features, would also make it possible to regard it as a national minority.


It should be added to the above considerations that autonomy or any other special territorial status may be unrelated to the realization of the right to self-determination or minority protection. For example, many federations subjects, while having a high degree of independence, got their statuses without any self-determination of peoples or minority protections being involved.


As for the potential for the evolving of a national or ethnic minority compactly residing on a territory into a people, a process entailing all of the corresponding political and legal consequences, one must admit that there is absolutely no clarity on the issue of discerning national and ethnic minorities. In a 1985 study on the


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definition of minorities J. Deschenes remarked that sometimes it is proposed to include the notion of a national minority into that of an ethnic one, as F. Capotorti did; sometimes - vice versa, as the Committee of Government Experts of the Council of Europe did in 1973. J. Deschenes found it appropriate to abolish the term national minorities and to adhere to the terms of Article 27 of the International Covenant on Civil and Political Rights (UNdoc.E/CN.4/Sub.2/1985/31). The issue was examined in detail by F. Capotorti, a speaker of the UN Subcommission on Prevention of Discrimination and Protection of Minorities, in his study dedicated to the rights of individuals belonging to minorities. Referring to the Subcommission's Resolution 9(XX), on which he based his study, F. Capotorti limited it to the analysis of ethnic, religious, and language minorities {Human Rights Study Series. No. 5//Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities by Francesco Capotorii, Special Rapporteur of the Subcommission on Prevention of Discrimination and Protection of Minorities. - NY., 1991. - P. 10 - 11). But since the Declaration added national minorities to the corresponding list, the problem of discerning national and ethnic minorities has to be revisited.


If we proceed from the assumption that under certain circumstances some national or ethnic minorities can become a small people (or a nation practically identical to a people), should we seek differences between them? Otherwise, the corresponding terms can be considered synonymous and then one of them is unnecessary. One can of course point to the fact that any national community is ethnically inhomogeneous. But once it becomes a people and gets the right to self-determination, it no longer matters if it is ethnically homogeneous or not.


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Practically, arguments of this kind are important, for example, in the Transdnistria case. If we assume that the Russian and the Ukrainian ethnic minorities live in this region, there is hardly any sense in talking about their self-determination. Yet if we assume that a combination of Russians, Ukrainians, and Moldavians in Transdnistria plus the predominance of the Russian language and culture resulted in the formation of, shall we say, a Transdnistrian people, the situation's outlook is completely different.


It is of interest to compare the situations in South Ossetia, Abkhazia, and Kosovo. Kosovo is a part of Serbia. This fact was recognized by the UN Security Council Resolution 1244 (1999). However, at that time the resolution mentioned Yugoslavia which comprised Serbia and Montenegro. But it is still valid with respect to Serbia. Albanians in Kosovo are a national minority in Serbia, and they have no right to self-determination or, all the more, to secession, though Kosovo can secede provided that Serbia consents to this move.


The corresponding nations exist in South Ossetia and Abkhazia. Together with other nations living on the territories, these nations make the peoples of South Ossetia and Abkhazia, which have the right to self-determination. However the right to self-determination does not automatically entail the right to secession. South Ossetia and Abkhazia are parts of Georgia as recognized by the UN Security Council as well. Georgia was admitted to the UN in the borders defined back when it was a part of the USSR.


A number of resolutions of the UN General Assembly, interpreting the principle of equal rights and self-determination of peoples declared by the UN Charter, state that this principle should


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not be used to justify activities leading to a partition of countries or to a partial or complete violation of their territorial and political integrity. In particular, this is stressed by the well-known 1970 Declaration on Principles of International Law which outlines the relations and cooperation between countries in accord with the UN Charter.


But an important stipulation is involved here. The provisions pertain to countries observing the principle of equal rights and self-determination of peoples. Neglect for this principle combined with violence or threats of violence enables a people to rise the question of secession. The attempts of the Saakashvili Administration to escalate tensions in relations with South Ossetia and Abkhazia can be considered as threats of the above kind.


If we adopt the view point by which ethnicity means belonging to an ethnos understood as a natural phenomenon (according to L. N. Gumilev), the problem of discerning ethnic and national minorities starts to look different and practically significant. Since the right to self-determination does not apply to an ethnos in the above sense, the transformation of an ethnos into a people enjoying this right cannot even be discussed. It would be the same as saying that a biological individual evolves into a voter at some phase of his or her development. These phenomena simply lie in different planes. At the same time, being natural phenomena rather than social ones, ethnic minorities can and must be legally protected when necessary.


Continuing the above argument, one can pinpoint parallelisms in the distinctions between national and ethnic minorities, on the one hand, and nations (or peoples) and ethnoses on the other. Being phenomena which lie in different planes, ethnoses and


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nations (or peoples) are still interrelated. A similar relation exists between national and ethnic minorities or nationality and ethnicity. The national can largely be understood as the manifestation of the ethnic in the social. This does not mean that nationality and ethnicity always coincide. Individuals of the same nationality can have different ethnic roots. What is meant here is not a mechanical mixing of ethnicities, but a combination resulting in some kind of a unity which manifests itself in the social area in a certain way. The variants of this manifestation are numerous and impossible to list. Sometimes they are hard to separate from the "natural" ethnic features. Traditions and behavioral patterns, have both social and "natural" aspects. Probably, culture and social institutions are the most obvious manifestations of the above unity. Considering such phenomena as nation, nationality, ethnos, ethnicity, etc. it is impossible to draw a sharp border between them and to formulate definitions that cannot be challenged. Any definition inevitably entails an assumption. Nationality, for example, does not necessarily mean belonging to the nation. So, Canadian Jews are not a part of the Israeli nation (despite the Zionist doctrine of a global Jewish nation or people). By the way, nationality in the present sense is distinct from the nationality in the legal sense, which is in some languages practically synonymous to citizenship. Whereas the national is more or less a manifestation of the ethnic in the social, the nationality can be interpreted as the manifestation of belonging to an ethnos in the social, understanding the ethnos as LN. Gumilev did. As a natural phenomenon an ethnos has a territorial basis but particular individuals can still belong to it while living elsewhere. In the social area their self-identification and the way they are perceived by


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others can obviously be expressed in terms of their belonging to a particular nationality.


It is not feasible to dwell on the definition of a minority in finer detail. First, there is no universally acknowledged definition. There is no unity on the issue even on the doctrinal level, and there is no hope that a definition acceptable for a large number of countries will emerge. Secondly, a definition would have to embrace various categories of minorities, not all of which are in any way related to the problems considered, and to the right to self-determination in particular. Still, since such a definition inevitably would have to be applied to national and ethnic minorities, some attention has to be paid to the problem.


The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities provides no definition of a minority. This is deliberately so since the difficulties of developing such a definition could hinder the drafting of the Declaration. At the same time we have to go back to the definition issue from time to time, occasionally on the official level. The establishment of the Working Group of the UN Subcommission on Prevention of Discrimination and Protection of Minorities in 1995 made it necessary to reexamine the problem. The Working Group is supposed to be guided by the declaration, but practically this is possible only in case at least some operational definition of a minority is adopted for overall orientation. Otherwise the Working Group would be unable to act in accord with its mandate. Besides, having no definition of a minority the Working Group for Minorities would not be able to avoid overlapping with the Working Group for Indigenous Populations.


At different times three definitions were submitted by the


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members of the Subcommission. According to the definition given by J. Deschenes, a minority is a group of citizens of a country with the characteristics "including numerical inferiority, non-dominance, possession of ethnic, religious and linguistic characteristics differing from those of the rest of the population, solidarity (if not implicitly), aimed at strengthening the group identity motivated by a collective will to survive and whose aim is to achieve equality with the majority in fact as in law" (UN doc. E/CN. 4/Sub.2/1985/31).


By F. Capotorti a minority is a group of population of a country with the characteristics "including numerical inferiority, non-dominance, possession of ethnic, religious and linguistic characteristics differing from those of the rest of the population, solidarity (if not implicitly) towards preserving their culture, traditions, religion and language" (Human Rights Study Series. No. 5. - P. 96).


Finally, according to a definition proposed by A. Eide, any group of individuals residing in a sovereign state, comprising less than half of its population and possessing ethnic, religious and linguistic characteristics differing from those of the rest of the population constitutes a minority (UN doc. E/CN. 4/Sub. 2/1993/34,10 August 1993. - P. 7).


In 1966 a definition was presented to the Working Group on Minorities based on approximately the same concept as that used in the definition of aggression. The initial basic definition was updated and complemented by various provisions and exceptions. In 1997 the Group considered and acknowledged a revised version of the working definition.


This definition takes into account the terminology and ideas of the Declaration (for example, in contrast to the above definitions,


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it also embraces national minorities) and includes three elements: numerical inferiority; residence on the territory of a particular state; and being united by the possession of ethnic, religious and linguistic characteristics differing from those of the rest of the population.


In principle, it should be possible to define every minority category specified by the Declaration, but in practice this might entail further debates and complications. In addition to the difficulty of discerning the ethnic and the national minorities, it is not always possible to draw a sharp line separating various categories of minorities in general. For example, an ethnic group mostly adhering to a certain religion might also include atheists. Intermarriages are another factor which can not be ignored. It is possible that a group might have the features of all the minority categories.


Some elements not common to all of the above definitions are also incorporated into the definition acknowledged by the Working Group. The mentioning of subjective factors - the solidarity and the will to survive - is very important. It is adequate to the spirit of Article 1.1 of the Declaration saying that countries should protect the existence and identities of minorities. As for the term "non-dominance" found in the definitions by J. Deschenes and F. Capotorti, its use is hardly warranted since its meaning is fairly vague and even ambiguous. It can be interpreted as denoting the positions of discriminated groups. At the same time, the updated definition reflects the idea that sometimes individuals who in reality comprise a majority find themselves in the situation of a minority.


The approximate list of cases to which the definition does not apply is also important, especially the indication that it does not pertain to indigenous peoples. The Working Group could not


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address the task of establishing some definition of the latter. This task is in the jurisdiction of other international institutions. But the exception itself had to be stressed.


A question can possibly arise about the combination of the minority and the indigenous peoples protection regimes. An indication of this possibility is found in Article 3.2 of the Human Rights Committee Issues Paper 23(50) of April 6, 1994 concerning Article 27 of the International Covenant on Civil and Political Rights. The corresponding remark says that an aspect of the rights of an individual protected by the Article, for example the right to enjoy a culture, can be closely related to the use of a territory and its resources. This is particularly true of indigenous peoples who are minorities (UN doc. CCPR/C/21/Rev.1/Add.5, 26 April 1994. - P. 2). But this is not so much an issue of applying the minority definition to indigenous peoples as a matter of giving preference to one of the regimes in a particular case.


The revised minority definition supplied to the Working group of the Subcommission and acknowledged by it is presented below.


Article 1


A minority is a group of individuals generally residing permanently on the territory of a country, numerically inferior to its population (making less than one half of its population), possessing national or ethnic, religious, linguistic and other characteristics differing from those of the rest of the population, and wiling to preserve the existence and identity of their group. This should not be interpreted as authorizing or encouraging any activities to deny individuals the status of citizenship or permanent residence.


Article 2


Nothing should prevent considering as a minority a group of


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individuals with the above characteristics if its members are not permanent residents of the particular country.


Article 3


Nothing should prevent considering as a minority a group of individuals with the above characteristics if its members reside permanently in some region of a country and comprise a group numerically inferior to the rest of the population in this region only.


Article 4


Nothing should prevent considering as a minority a group of individuals with the above characteristics which is not numerically inferior to the rest of the population in a country or its region in order to provide the minority protection regime to this group.


Article 5


Nothing should prevent considering as a minority the group of individuals with the above characteristics if they are citizens of the respective country. This should not be considered an infringement on the human rights and basic liberties of other individuals residing on the territory of the country.


Article 6.


The following groups are not considered minorities:


Indigenous peoples;


Groups of individuals considered peoples and correspondingly having the right to self-determination;


Groups of individuals with the above characteristics who obviously are not interested in preserving their identity;


Groups of individuals with the above characteristics so small that it is impossible to establish any protection regime for them;


Groups of individuals with the above characteristics dominant in the country.


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Article 7


In case there are doubts concerning the will of the group mentioned in item (c) of Article 6 to preserve its identity it should be presumed that it wishes to preserve it.


Article 8


In case the possibility of applying another definition to a group is considered along with the definition of a minority, preference should be given to the definition whose application entails the regime most beneficial to the group unless a combination of definitions and the resulting regimes is possible (The definition was supplied to the Working Group for Minorities by the author of the present paper: UN doc. E/CN. 4/Sub. 2/AC. 5/1997/WP. 1,2 April 1997).


It is almost impossible to separate the notions of minorities, primarily the national and ethnic ones on the one hand and the indigenous people on the other. There is no universally accepted definition of the indigenous people just like that of minorities. However representatives of the indigenous peoples are more active on the issue emphasizing that differences do exist. Practically the UN often limits itself do recognizing the difference. When the minorities declaration was being drafted an agreement was reached that it would not apply to indigenous peoples.


The following statement illustrates the way indigenous peoples are perceived: "The experience of the state politics in developed foreign countries demonstrates that the term indigenous people or peoples is applied to the peoples that are left behind in their development phases and preserve their specific traditional cultural and economic forms (Indians, Eskimos, Aleuts in the US and Canada, Laplanders in Norway, Sweden, and Finland, etc.). In


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foreign social studies, the term is also applied to nomadic, isolated and other traditional peoples and groups of the autochthonous population in Asia, Africa, Australia and Oceania with an inferior social status." (V. Tishkov. Peoples and States. Kommunist, 1989, #1, p. 50 - 51).


It must be stressed that indigenous peoples remain such strictly due to their populating certain territories compactly.


The viewpoint solidified in the UN Subcommission on Prevention of Discrimination and Protection of Minorities in the process of drafting the Declaration on the Rights of Indigenous Peoples by which indigenous peoples have the right to self-determination. Perhaps this is the basis for the legal differentiation between the statuses of indigenous peoples and minorities. For several years the UN used the term "indigenous population". It was abandoned completely following the demands of the indigenous peoples. Indeed, it would be hard to discuss the right of an indigenous population to self-determination. It sounds much more logical in the case of indigenous peoples. The practical implementation of this right does not go beyond autonomy and self-government, and the indigenous peoples are entitled not to determine their status freely but rather to debate and to agree on their roles in the state affairs, their special obligations and means by which they provide for their interests. They also have the right to a full participation in the political, economic, social, and cultural life of the country while also fully preserving their political, economic, social, and cultural identity.


It must be noted that the most radical representatives of the indigenous peoples demanded at the sessions of the Working Group on Indigenous Populations to recognize these peoples as subjects of


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the international law. On one occasion there was even a demand to restore the Inca Empire. Due to these extremist views among the representatives of the indigenous peoples they apprised negatively the Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries adopted on June 27, 1989 by the General Conference of the International Labor Organization at its seventy-sixth session.


The convention's provision of its applicability is similar to the above definition. In any case it is a certain guidance concerning the norms for indigenous peoples. Article 1.1 of the Convention states that it applies to:


(a) Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;


(b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.


The negative reaction of the aforementioned representatives was caused by certain provisions of the Convention and by the fact that it does not treat indigenous peoples as subjects of the international law. The Convention is also somewhat conservative about applying to them the self-determination principle. Article 1.3 of the Convention reads: "The use of the term "peoples" in this


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Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law".


On the other hand, Article 33 of the Convention does state that indigenous and tribal peoples should enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination whereas both human rights pacts begin with articles dedicated to the right to self-determination. Consequently it is fair to say that indirectly the right of indigenous peoples to self-determination is recognized. Due to this a reference to the pacts is found in item (e) of the Conclusions of the UN Seminar on the impact of racism and racial discrimination on the social and economic relations between indigenous peoples and states, which took place in Geneva on January 16 - 20, 1989. It says that the self-determination principle of the UN Charter and the opening articles of the pacts is important for the implementation of all the human rights of the indigenous peoples. It must also be mentioned that item (b) of the seminar's recommendations suggests to recognize the indigenous peoples as subjects of the international law (UN doc. E/CN. 4/1989/22,8 February 1989).


There is probably no need to explore the differences between the terms "indigenous" and "tribal" peoples. Attention should be paid to the fact that, as we know from practice, the notion does not embrace the part of the population of a number of African countries which preserves more or less the characteristics of the tribal way of life and constitutes a majority in their respective countries. Probably the most adequate approach would be not to attempt to come up with a precise definition of the indigenous peoples but to compile on the international and domestic levels a


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list of nations which must be considered as indigenous (provided that this peoples consent to being included in this list).


It was opined that it is necessary to apply the provisions of the UN Charter concerning the non-self-governing territories to the indigenous peoples of the Western hemisphere (Falkowski J. E. Indian Law/Race Law: a Five-Hundred-Year History. - New York; Westport, Connecticut; London, 1992. - P. 138).


Obviously, in this case they would be equaled to the colonized peoples and their recognized right to self-determination would inevitably include secession. Under the contemporary conditions this development might jeopardize the territorial integrity of a number of countries and provoke conflicts. One cannot deny that a lot of injustices have been and still are suffered by the indigenous peoples in some countries. However a recognition of the right of these peoples to self-determination must take into account the specific features of the situations and must not lead to separatism. Under the contemporary conditions, not only the indigenous but also the other peoples, even major ones, living in multinational countries should not realize their right to self-determination in the form of secession. It is all the more absurd to discuss the secession of the indigenous nations counting just several hundred individuals. It would also be unfair to assume that bigger peoples have more of a right to self-determination than smaller ones.


Discussions of the protection of indigenous peoples focus mostly on their collective rights, that is, on the rights of these peoples per se (in contrast to minorities).


As it is known from practice, the notion of a minority in the Council of Europe is different from that of the UN. The Advisory Committee of the Council of Europe Framework Convention for


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the Protection of National Minorities interprets the minority broadly in its conclusions on the situations with national minorities in the member-countries. It includes indigenous peoples, national, ethnic, language, and sometimes even religious groups in minorities. The Convention leaves it to countries to decide whom they consider minorities. Some parties to the Convention use this circumstance to adopt legislation clearly contradicting the spirit of the Convention. So, Latvia and Estonia include only their citizens in minorities, thus artificially denying a large part of the Russian-speaking population, which had the citizenship in the Soviet era, the protection regime. Some countries have laws listing the groups of individuals considered national minorities, and exclude from this category numerous groups which obviously have the minority characteristics (for example, Turks are not treated as minorities in Germany).


On a number of occasions the Advisory Committee also discussed the situations of groups that formally were not included in the minority category by their respective countries.


Examining the issue of the extent of using the Convention, so far most of the Advisory Committee members advocate a pragmatic approach which envisions not attempting to define even approximately the national minority. Currently an exchange of opinions on the issue continues in the Committee.


Clearly it would be reasonable to decide to which categories of individuals the Convention does not apply. For example, it certainly should not apply to illegal migrants or individuals temporarily residing in countries as students or on the conditions of a short-time employment. This should not in any way prevent them from being treated in accord with all the generally accepted


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international human rights standards. Nations should also be excluded from the scope of the convention, though the Committee members are divided over the issue.


Differences in the interpretations of the terms "minorities" and "ethnic minorities" in the practice of the UN and the Council of Europe must not hinder the development of the corresponding definitions on the country level. In any case, such definitions must incorporate the experience of both the UN and the Council of Europe, be adequate to the international legal commitments of countries, and provide maximally for the protection of minorities.




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© Stanislav CHERNICHENKO () Источник: Russian Analytica, № 7, 2006, C. 23-46

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