UNIVERSITY OF PADOVA

RESEARCH CENTRE ON THE RIGHTS OF MAN AND OF THE PEOPLES

DOCUMENT PRESENTED AT THE GENERAL CONFERENCE OF THE HELSINKI CITIZENS' ASSEMBLY, HCA, BRATISLAVA, 25-29 MARCH 1992 @sommario

CONTENTS:

1. Human rights and rights of the peoples: the new international law 2. The right of self-determination. Definition of the "peoples" 3. The concept of the right of self-determination 4. Peaceful implementation of the right of self-determination 5. The rights of the minorities 6. The legal status of the "transnational territories"

7. Conclusions

ABSTRACT: "In the era of planetary inter-dependence, of transnationalization, of international organization, of the internationalization of the rights of man and of the peoples, it is necessary to devise new forms of nationalization, going beyond the logic of the "border" and of the "armed sovereignty". "Any new independent territorial bodies should be unarmed, and should thus be guarantied within an international system of collective security. In other words, the system of the United Nations, characterized by a democratic participation and regional systems directly related to the system of the United Nations". -----------------------------------

1. Human rights and rights of the peoples: the new international law

Human rights and the rights of the peoples are now recognized by the international law.

The Charter of the United Nations rules that the respect of human rights and of peoples' self-determination is one of the chief goals of the United Nations (art. 1):

"The goals of the United Nations are: (...); 2. Developing friendly relations among the nations, based on the respect and on the principle of equality of rights and of peoples' self-determination, and adopting other measures apt to enhance universal peace; 3. Pursuing international cooperation in the solution of international problems (...) and in promoting and encouraging the respect of the rights of man and of the fundamental liberties for all, without distinctions of race, sex, language or religion; (...)".

The universal declaration of human rights of 1948 specifies a first list of human rights and recommends the respect thereof. The two International Conventions of 1966, respectively on civil and political rights and on economic, social and cultural rights, contain binding juridical regulations at the international level. These two international legal instruments, along with other instruments such as the European, inter-American and African regional conventions, the Convention against torture, the Convention on the rights of children, represent the sources of the international human rights law, which is a completely new law. The Helsinki final act of 1975, which is an important political agreement but not a juridical agreement formally speaking, incorporates the international rules on human rights and self-determination (see principles VII and VIII).

The international juridical regulations recognize that each human being has inborn rights, which are therefore inviolable, inalienable and indefeasible, which pre-exist the written law. The individual is a subject of sovereignty and comes before the state and the system of the states. By virtue of the rights that belong in equal measure to each of its members, the universal human family is also am original collective subject which comes before the system of the states and of the single state. A number of inborn rights (to existence, to identity, to self-determination) are recognized also by the human communities that are structured to form a people.

Individuals and peoples are therefore original subjects also in the international legal system, and states should be considered as "derivated" complex bodies also in the system of the international law and politics. The chief principles of this new international law are: the principle of life; the principle of the equality of the individuals and the peoples; the principle of peace; the principle of solidarity; the principle of social justice; the principle of democracy.

A fundamental principle for the implementation of human rights is the principle of inter-dependence and indivisibility of all human rights: civil, political, economic, social and cultural; individual and collective; of the human being and of the peoples (see Resolution 32/130 of the United Nations General Assembly of 16.12.1977; Resolution 41/128 of the United Nations General Assembly of 4.12.1986, containing the Declaration on the right of development; art. 5 of the Lome IV Convention between the European Community and the ACP countries, of 1990).

The international juridical regulations on human rights strengthen the principle of the peaceful solution of the controversies and that of the ban to use force established by paragraphs 3 and 4 of art. 2 of the Charters of the United Nations:

"3. Member must solve their international controversies with peaceful means, to avoid international peace and security and justice from being jeopardized. 4. The Members must refrain from the threat or the use of force (...) in their international relations".

The international regulations on human rights pose the principle of supranational authority as necessary to prepare and effectively operate an appropriate international enforcement machinery.

In compliance with these rules and principles, the principle of the sovereignty of the states and of the non-interference in domestic affairs is overridden by the principle of sovereignty of the human being and of the universal human family, and in fact ceases to exist de fure. The principle of active interference in domestic affairs is therefore consistent with the ratio of the juridical rules on human rights, as explained by the Institut de Droit International (Santiago de Compostela Resolution of 13.09.1989), by the European Parliament (Resolution on human rights in the world of 1989 and 1990 and on EEC policy on human rights of 191), by the CSCE (Conclusive document of the Conference on the Human sphere, Moscow 4 October 1991), the Security Council (Resolution 688 of April 1991 for the humanitarian intervention for the Kurds), as well as by a letter of the Minister of Foreign Affairs of the Italian Republic to the Governor of the Commission on Human Rights of the Helsinki Citizens' Assembly (the letter s

ays, among others, "...I favour the reference to the right-duty of intervening in the domestic affairs of other states in cases where human rights are violated. This active interference is the pilot line for international relations in the 21st century").

Article 27 of the Charter of the United Nations, which forbids interference in the domestic affairs of other states, must be considered repealed by the regulations on human rights in cases in which the subject pertains to the "human sphere".

There is a hierarchy between the regulations of the current international law. The first place is occupied by the regulations and principles on human rights, as regulations of fus cogens or supra-constitution. The rights of the states are subordinated to these fundamental principles. In cases of conflict between internationally recognized human rights and the rights of the states, the former must prevail. To avoid conflicts, the international institutions must conform to this principle.

The new international law still represents a separate body of principles and rules, as it is still seeking its effectiveness. At the moment a conflict is under way between the old and the nee international law, between the law of the armed national sovereignties and the law of humanity. The debate on the "new world order" includes this opposition. The opposition to a United Nations with supranational authority and power and to a pan-European system of supranational integration is clearly made by the supporters of the old international law, who prefer forms of "inter-governmental" and "multinational" organization of international relations and remain faithful to the concept of armed national security and therefore of armed national state.

The logic of the new international law is antonymic with respect to that of the border.

This new law is seeking convince supporters. These can be neither conservative nor reactionary. They must be individual and collective subjects who believe in human values and operate for the humanization of the political, legal and economic systems from within the United Nations. The new international law legitimates to operate for a new human international order, which politically means democratic and non-violent, under art. 28 of the universal declaration of the rights of man:

"Each individual has the right to a social and international order where the rights and liberties enunciated in this Declaration can be fully achieved".

3. The right of self-determination. Who are the "peoples"

The subject of the self-determination of the peoples must be confronted in the light of these concepts and of these principles, taking stock of the fact that the new international human rights law had a ratio that is completely different from that of the traditional international law, which is fundamentally an inter-state law. The Helsinki final act incorporates the principles of this new law - principles VII and VIII - and places them in relation to the principles of inter-state law, namely with the right of the states to territorial integrity. This "coordination", in order to be meaningful, should be carried out according to the following principles:

1) primacy of human rights compared to the rights of the states: principle of fus cogens for the implementation of internationally acknowledged human rights; 2) principle of the peaceful solution of international controversies; 3) principle of the ban of the use of force; 4) principle of planetary citizenship;

5) principle of international authority;

6) principle of active interference in domestic affairs;

7) principle of international collective security;

8) principle of domestic and international democracy;

9) principle of equality of the peoples.

Under the international human rights law, the subject that holds the right of self-determination is the population as a separate subject from the state. But no international juridical regulation contains the definition of people. This conceptual reticence is not accidental. The states play on ambiguity, as they are not yet willing to explicitly admit that the peoples lack their own international subjectivity. A concept of people must be found in official or semi-official documents devoid of any juridical nature. A recent UNESCO report (Doc. SHS-89/CONF.602/7, Paris, 22.02.1990) provides a definition of people as:

"a group of human being that have several or all the following characteristics in common: a) a common historical tradition; b) a racial or ethnic identity;

c) a cultural homogeneity;

d) a linguistic identity;

e) religious or ideological affinities;

f) territorial links;

g) a common economic life;

2) the group, which may not be numerically considerable (e.g. population of micro-states) should be more than just an association of individuals within a state; 3. the group as such wish to be identified as a people or be aware of being a people, under the agreement that groups or members of these groups, while sharing the above described characteristic, are free to lack this will or this awareness; 4. the group must have institutions or other means to express its common characteristics and its desire for identity".

H. Gros Espiell, one of the greatest experts on the subject, defines a people as "any given human community united by the awareness and the desire to represent a unity capable of operating with a view to a common future (...)".

Therefore, there are two fundamental elements that make up a people and distinguish it from other types of human communities, such as ethnic, linguistic or cultural minorities, and those communities which the documents of the United Nations describe as autochthonous populations:

a) the existence of a common cultural heritage;

b) the existence of a common project of political future, whose achievement involves the exercise of the right of self-determination.

3. The concept of the right of self-determination

The "principle" of the self-determination of the peoples is ruled by articles 1, par.2, 55 and 76 of the Charter of the United Nations. This "principle" has become a "human right" which is formally recognized to all peoples, by virtue of the same article 1 of the two international conventions in human rights of 1966:

"1. All peoples have the right of self-determination. By virtue of this right, they decide freely of their political statute and freely pursue their economic, social and cultural development. 2. To achieve their aims, all peoples can freely dispose of their riches and their natural resources without jeopardizing the obligations ensuing from the international economic cooperation, based on the principle of mutual interest and from the international law. In no case can a people be deprived of its means of subsistence. 3. The states that are part of this Convention, including the ones that are responsible for the administration of non.autonomous territories and of territories under trusteeship, should promote the implementation of the right of self-determination of the peoples and respect such right in conformity with the regulations of the statute of the United Nations".

The right of self-determination is recognized also by article 20 of the African Charter of Human Rights and of the Peoples, in effect since 1986.

The Helsinki Final Act recognizes the right of self-determination at principle VIII:

"The participant states respect the equality of the rights of the peoples and their right to self-determination, operating at all times in compliance with the aims and the principles of the Charter of the United Nations and the rules pertaining to international law, including those relative to the territorial integrity of the states (...). All peoples have the right, in full, freedom, to decide how and when they want their domestic and foreign political regime, without external interferences, and to pursue their political, economic, social and cultural development as they wish".

Article 1 par.2 of the Declaration of the United Nations on the right of development of 1986, explicitly referring to article 1 of the two International Conventions of 1966, rules that:

"The human right of development also implies the full achievement of the peoples' right of self-determination".

The Universal Declaration of the rights of the peoples (Charter of Algiers, 1976), which is an important non-governmental political act, established at article 5 that "every people has the inalienable and indefeasible right of self-determination".

The right of self-determination has a twofold application, internal and external. Internal self-determination means the right of a people to choose freely, i.e. with a democratic method and without external interference, the political and economic system within a state. External self-determination means the right of a people to choose freely, i.e. with a democratic method and without internal or external obstacles, its form of political independence in the system of international relations: creating a new state or adhering, in a confederal or federal way, to another pre-existing state. Apart from the hypothesis of access to independence on the part of non-autonomous peoples or territories (which are currently 19) the exercise of external self-determination always implies territorial modifications and changes of borders which, under the old international law, would represent a violation of the principle of territorial integrity of the states. The exercise of the right of self-determination, especially externa

l, is the cause of conflicts, which in some cases are armed conflicts. Generally speaking, the first answer of the pre-existing state is the repression of the popular movement and the initial attitude of the third states complies with the principle of non-interference. Subsequently, in most cases, the conflict that had an internal dimension tends to become international.

The international system is not yet prepared to peacefully administer the processes of self-determination in cases other than the above mentioned cases of decolonization. The international human rights law recognized the right of self-determination without preparing an adequate enforcement system, as prepared for human rights. Among other things, the possibility of a "collective communication" with the special commission of human rights operating under article 28 of the international convention on civil and political rights is not provided for.

4. Peaceful implementation of the right of self-determination

The right of self-determination is a "revolutionary" right, both because it involves processes of geopolitical reorganization and because it implies that the people maintain its own international juridical and political subjectivity, separated from that of the state: "The right of self-determination had a permanent virtuality" (H. Gros Espiell). This means that until there is a people there is the right of internal and external self-determination. The fact that the conclusive documents of the CSCE Conference "on the human dimension" of Madrid, Copenhagen and Moscow do not explain the part relative to self-determination of the principle VIII of the Helsinki final act testify the revolutionary value of this right.

As a preliminary we need to ask ourselves: since the process of self-determination in the contemporary international system in addition to generating armed conflicts results in the creation of new armed sovereign states, which means a rise in the rate of armed nations and thus of the risk of armed conflicts, it is really useful and legitimate to favour self-determination outside the colonial context? The answer can only be affirmative, for three reasons: a) because there is an international juridical recognition of this right; b) because there is a growing demand of this right in every part of the world; c) because there is a new international human rights law which, as a whole, allows to find adequate solutions.

We therefore need to find specific measures of guarantee of this right, so that its exercise may occur in a peaceful way. In our case, enforcement must do more than adopt measures such as "collective communications" to the United Nations Commission and appeals to the international courts. It must imply the development of appropriate systems of international security in the framework of a strategy for a new democratic international order based on the above mentioned principles. The question is combining together territorial political independence, integration and international security. In other words, we need to relinquish the vision of the armed territorial border, a vision that is, among other things, contradicted by the major planetary processes of inter-dependence, transnationalization and organization in every field of the human life, as well as, obviously, of the internationalization of human rights and peoples. In other words, a global revision of the form of the sovereign nation-state is needed.

To make the exercise of the right of self-determination legitimate it is necessary for the human community concerned by the fact to have the characteristic of being a people and to respect the following conditions: 1) make an immediate and explicit reference to the international human rights law; 2) place itself immediately under the supranational authority of the United Nations and of the regional institutions this coordinates; 3) refrain from using violence, and using instead the instruments that are typical of the democratic method; negotiation, referendum, election, etc; 4) respect all human rights, namely the rights of the minorities; 5) operate in such a way that any new territorial not be armed; 6) adopt a democratic constitution that explicitly acknowledge the primacy of the international human rights law; 7) immediately adhere to a system of international integration.

The international community, on demanding the respect of these conditions, must in turn fulfil the following commitments: 1) in the territory where a problem of self-determination arises, be immediately present with a special structure of supranational guarantee, organized as follows: a) monitoring structure; b) structure of supervision of the processes of demonstration of the popular will; c) structure of interposition (if necessary);

2) prepare systems of international collective security under the supranational authority of the United Nations;

3) transform the pre-existing regional integration institutions in a federal sense, so that the new territorial bodies be immediately part of them;

4) democratize all international institutions (U.N., CSCE, Council of Europe, etc) through forms of direct legitimation and of popular political participation in the international decision-making processes.

At the European level, the CSCE, the European Community and the Council of Europe are required to immediately create a pan-European inter-institutional agency for the problems of self-determination and of the minorities, with the participation of the U.N. and the HCA.

The transnational network of independent civil institutions must achieve a twofold objective: 1) promote the "human rights and democracy" approach for the self-determination processes; 2) be immediately present, with its own monitoring and communication structure, in the social and political fabric of the territory concerned in self-determination to favour the use of the democratic instruments and the internationalization of the case.

5. The rights of the minorities

The international juridical instruments do not recognize the rights of the minorities as collective subjects, but a number of human rights of the individuals that belong to a minority. The most important rule is article 27 of the International Convention on civil and political rights:

"In states where there are ethnic, religious or linguistic minorities, the individuals that belong to such minorities cannot be deprived of the right to have their own cultural life, to profess and practice their own religion, or to use their own language, in common with the other members of their group".

The rights of the members of minorities that are so far recognized are: cultural rights, rights relative to a religious practice, rights relative to the use of a language. There is no reference to forms of territorial autonomy. According to a proper interpretation, the states' obligation in relation to article 27 would be that of safeguarding the minorities with adequate regulations (pertaining in particular to education and information) in the constitutions, in ad hoc laws and with administrative measures.

It is neglected that often in the case of the minorities, several other human rights recognized to the individuals as human beings are also violated.

The real problem of the rights of the minorities is that, in many cases, it is hard to distinguish the borders between minority and people. The problem is a crucial one, because if the group in question is a people, this would imply the application of the right of self-determination of the collective subject. The most authoritative definition of minority is the one contained in the special report of the Commission of te United Nations for the struggle against discrimination and the protection of the minorities, called "Etude des droits des personnes appartenant aux minorités ethniques, religieuses et linguistiques" developed by Francesco Capotorti in 1977 (new edition by the United Nations centre for human rights, 1991). The word "minority" is applied to a group that is:

"numerically smaller than the rest of the population of a state, in a non-dominant position, whose members - being citizens of the state - possess ethnic, religious or linguistic characteristics that differ from those of the rest of the population and reveal, at least implicitly, a sense of solidarity aimed at safeguarding their culture, traditions, religion or language" (par.568).

Another appropriate definition is the one given by Jay A. Sigler:

"In its simplest form, any group of persons that can be identified in a significant segment which is the object of prejudice or discrimination or that, because of deprivations, calls for the positive assistance of the state, can be considered a minority. A persistent non-dominant position of the group in the political, social and cultural field is the common characteristic of a minority" (J.A. Sigler, Minority Rights, Westport, Connecticut, Greenwood Press, 1983, p.5).

The problem of the rights of the minorities becomes more complicated when the so-called minority of a state identifies itself with the greater people of one of more other states. In these cases, the minority, in addition to asking not to be discriminated, also makes a more or less explicit claim of territorial autonomy or even of self-determination.

The greatest problem to solve is represented by situations such as one formulated above and by situations in which on a given territory within a state several minorities or micro-nationalities coexist: for instance in Subotica in Vojvodina, a province of Serbia.

For both cases, apart from the need to recognize and safeguard the rights of minorities as collective subjects, the measures contained in the conclusive document of the CSCE conference on the human dimension of Copenhagen (June 1990) apply: in other words, that the members of a minority first of all have the right to fully and effectively exert the rights of man and the fundamental liberties without suffering any discrimination (par. 31 and 32).

31. The persons that belong to national minorities have the right to fully and effectively exert the rights of man and the fundamental liberties without discriminations of any kind and fully equal before the law. The participant states will adopt, if necessary, special measures in order to guarantee full equality to the persons belonging to national minorities in the exercise and enjoyment of the rights of man and of the fundamental liberties.

32. The fact of belonging to a national minority represents the individual choice of each person, and no disadvantage can ensue from the exercise of this right. The persons belonging to national minorities have the right of expressing freely, preserving and developing their culture in all its aspects, protected by any attempt to be assimilated against their will. Namely, they have the right: 32.1. to freely use their mother-tongue in their private and public lives; 32.2. creating and preserving their own institutions, organizations or educational, cultural or religious institutions, which may call for coluntary or other contributions, as well as public assisstanece, in conformity with the national legislation; 32.3 professing and practising their religion, including the acquisition, possession and use of religous material, and of carrying out religious educational activities in their language, 32.4 of establishing and maintaining free contacts among them in their own country and abroad with the citizens of o

ther states with whom they share the national or ethnic origin, the cultural heritage or the religious beliefs, 32.5 of circulating, having access and exchanging information in their mother-tongue, 32.6 creating and maintaining organizations or associations in their country and of participating in non-governmental international organizations. The persons belonging to the national minorities may exert and enjoy their rights individually and in association with other members of their groups. (...).

The Report of the Meeting of experts of the CSCE on national minorities (Geneva 1991) contains three important declarations of principle:

"The participant states (...) underline that human rights and fundamental liberties are the basis for the safeguard and the promotion of the rights of the people who belong to national minorities. Moreover, they recognize that the problems relative to the national minorities can be satisfactorily solved only in a democratic political context based on the principles of a democratic state, with an effective independent judiciary (...). Lastly, they believe that an appropriate democratic participation of the people belonging to national minorities or of their representatives in decision-making or consultive bodies represents an important element of effective participation in the public life" (par. III).

Par. IV lists some appropriate "democratic" measures:

"-Consultive and decision-making bodies in which the minorities are represented, especially as far as education, culture and religion are concerned; - elective bodies and assemblies for the affairs of the national minorities; - local and autonomous administration, and territory-based autonomy, including the existence of consultive, legislative and executive bodies chosen through free and periodical elections; - self-administration of a national minority in relation to matters concerning its identity in situations in which the autonomy on a territorial basis cannot apply; - forms of local decentralized government; - (...);

- promotion of basic initiatives for relations among the minority communities, between majority and minority communities, between bordering communities, aimed to contribute to prevent the birth of local tensions or to peacefully solve the conflicts under way; - promotion of the creation of permanent mixed commissions, both inter-state and regional, aiming to facilitate communications between the border regions concerned".

In cases where minorities or ethnic groups or micro-nationalities identify with the people of one or more states, absolute priority must be given to the guarantee that ensues from forms of territorial autonomy.

6. The legal status of the "transnational territories"

In cases where more than one minority or ethnic group or micro-nationality are present on the same territory, the solution which seems most rational is the "transnationalization" of the territory concerned within the main territory of the state of origin, i.e. the creation of "transnational territories".

What does "transnational territory" mean? It is a new juridical institution of territorial body, which translates into the combination between internal and external also in terms of territorial institutions. The transnational territory is a territory that, for the fact of being inhabited by several minorities or ethnic groups, is considered a "common asset of humanity" in anthropological terms. In other words, multi-ethnicity, multi-culturality and multi-raciality are "resources of peace" for the entire world.

The territory concerned remains under the main authority of the state it is part of, but this "main authority" is conditioned by forms of international authority exercised by way of guarantee.

The transnational territory can assume various names: for instance, "transnational province", "transnational municipality", "transnational community", etc.

The legal status of the transnational territory is formed of the following elements: 1) agreement among the various minorities or ethnic groups present on the territory; 2) agreement between the state which the territory concerned belongs to and the bordering states; 3) the decision of an international organization of guaranteing the "transnationality" - which basically means territorial autonomy - of the territory concerned; 4) the presence on the territory of a permanent office of the international guarantee authority; 5) the organized presence of transnational structures of civil society, with the main aim of promoting and administering "permanent laboratories of multi-culturality"; 6) the membership of the "transnational territory" to a special chamber or committee or network within the organization of international integration (in Europe, European Community or Council of Europe or CSCE or, even better, a pan-European inter-institutional system formed by these three organizations).

The "transnational territory" should be unarmed and could benefit from economic and commercial help.

The "transnational territory" must promote the establishment of transnational civil society bodies ("embassies of the civil society").

7. Conclusions

1) In the era of planetary inter-dependence, of transnationalization, of international organization, of the internationalization of the rights of man and of the peoples, it is necessary to devise new forms of nations, that overcome the logic of the 'border' and of the 'armed sovereignty'.

2) New independent territorial bodies must be unarmed and must therefore be guarantied within an international system of collective security, i.e. the system of the United Nations and regional systems directly related to the system of the United Nations.

3) The "old" states must:

a) disarm;

b) carry out processes of 'federalization';

c) be part of systems of supranational integration.

4) Thus, the institutional-territorial contents of the strategy of positive peace are fundamentally: a) democratic supranational integration of the states; b) territorial autonomy within the states;

c) creation of transnational territories.

The basis of everything lies in a new political culture whose operative objectives are:

1) support to the new nternational law of human rights and of the peoples;

2) the democratization and the enhancement of the United Nations with supranational authority;

3) the creation and strengthening of independent civil society structures at all levels.

The "Paris Charter for a New Europe" of the CSCE of 21 November 1990 reads:

"We reiterate our deep belief that friendly relations among our peoples, as well as peace, justice, stability and democracy call for a safeguard of the ethnic, cultural, linguistic and relgious identity of the national minorities and the creation of the conditions for the promotion of such identity. We proclaim that the questions relative to the national minorities can be satisfactorily solved only in a political and democratic context. We recognize, also, that the rights of the persons belonging to national minorities must be fully respected as part of the universal rights of man".

As we know, the Council of Europe, on the basis of Recommendation II34 of the parliamentary assembly of 1 October 1990, has pledged to develop an international convention on the rights of the minorities.

For its part, the United Nations human rights commission has adopted, during its 48th session (1992) a "Declaration of the rights of the persons belonging to national, ethnic, religious and linguistic minorities" (Resolution 1992/16).

Obviously these are important steps in this field.

But we ask the states, the CSCE, the European Community, the Council of Europe and the United Nations this question: do you truly want the international law of human rights and of the peoples to be effective? If so, you must prepare to carry out a peaceful geo-political reorganization of the planet.