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The humanist approach emphasizes freedom and equality, whereas the need for a stable international order emphasizes respect for authority and continuity. Sometimes these two considerations may appear to be in conflict; it is desirable to find ways to harmonize them.
Conflict resolution is not a single act but a complex process consisting of many steps. The international community is increasingly clarifying its requirements both as to the behaviour of the parties during conflicts and as to the final outcomes. An effort is now under way within the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities to formulate guidelines for peaceful and constructive ways to handle situations involving minorities, regulating both processes and outcomes (Eide, 1990, 1991b). These are briefly outlined below.
(i) Paramount importance must be given in our time to equality, nondiscrimination, and full participation of all individuals and groups. The current basis is the International Bill of Human Rights, founded on article 1 of the Universal Declaration:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.10
Equality in the enjoyment of human rights requires abstention from and prevention of discrimination; equality in dignity requires respect for the self identification of the individual with her or his group, within a broader society of reciprocal tolerance between members of the different groups.
The intensity of religious, national, or ethnic conflicts can often be traced to a lack of respect for ordinary individual human rights on an impartial basis. Such conflicts could often have been prevented had there been full impartiality in the administration of justice, with special emphasis on equal and effective protection of all ethnic groups by law enforcement officials and security forces. The right to freedom of association, if applied without discrimination on ethnic grounds, would make possible the peaceful and open expression of policy preferences by such groups. Freedom of expression and information on an equal basis for all ethnic groups would make it possible for them all to express themselves and seek information in the language they prefer, including their mother tongue, orally and in writing. Freedom to participate in cultural life of the community, in accordance with UDHR article 26, means that individuals can preserve and develop the culture of the community constituted by each minority group.
Full and equal participation is provided for in several respects in the human rights system; see, for instance, article 21 of the Universal Declaration, article 25 of the Convention on Civil and Political Rights, and article 1 of the Declaration on the Right to Development. Issues of a complex nature arise where constitutional and administrative arrangements, which depend on the nature of the different situations, are involved. When the political will is there, a wide range of options exists; some of these are examined in section (iii) below.
(ii) The rights and development of minorities must be promoted in a manner that is consistent with the unity and stability of states, in the light of the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States (UN General Assembly Resolution 2625/25). This declaration spells out in greater detail the principles of the United Nations Charter. In the post-Cold War period it may be possible to implement them more consistently than before.
Every government considers it a paramount task to maintain the political independence and territorial integrity of its state, and all other states are expected to respect its sovereignty and integrity. One qualification exists, however, namely, the right of peoples to self-determination. A major problem arises, in dealing with minority conflicts, when the ethnic group concerned lives compactly together in a region of the state, and claims that it is a "people" and therefore entitled, in accordance with the United Nations Charter, to self determination. The most serious human rights problems occur during ethnic conflicts where the political status of the territory is made uncertain through such claims. When neighbouring states and/or the international community react in ambiguous ways to such claims or even endorse them, the future status of that territory is thrown into uncertainty. Efforts to find peaceful solutions are then blocked, and armed conflict is often very difficult to avoid, sometimes attracting external intervention. Outside states and the international community should insist on the application of general principles of international law, thereby limiting the options as to what is lawful and thus reducing the uncertainty with all its accompanying violence.
While the right of peoples to self-determination is generally recognized, the scope of its application is, unfortunately, still highly controversial. Some comments are required.
The claim, in a specific case, that a group has a right to self-determination implies that the group concerned is entitled to determine freely its political status and to pursue that collectivity's economic, social, and cultural development. Furthermore, every state has the duty to respect this right in accordance with the provisions of the Charter. The crucial problem arising in such cases is to decide who can be the beneficiaries, or subjects, of the right to self-determination: Who is the "self"? Who is a "people" as regards this right?
Sometimes the application of the principle is clear in theory, but difficult in practice. The people living in a colonial territory are entitled to self-determination. This means the people living in a territory beyond Europe, administered as a colony or under similar control by European states, or by states subsequently populated by people of European stock. Normally it means the people as a whole, including the different ethnic groups which together form the population within the inherited colonial boundaries. Separate ethnic groups cannot each on their own demand a right to self-determination.
A second case is that of alien occupation. The people living in a territory that has been subjected since the adoption of the United Nations Charter in 1945 to alien occupation or annexation not endorsed by a free and fair popular referendum, are entitled to self determination. Also, the people as a whole hold the right, not the separate ethnic groups on their own.
Incorporations resulting from occupations, apart from the colonial ones, which have taken place prior to 1945, do not normally give rise to a right of self-determination. Many territories, in Europe and elsewhere, have at some stage in history been incorporated through occupation and military conquest into the state in which they now find themselves. To rearrange all such historical outcomes now would cause havoc to the international order. Few of the existing sovereign states have obtained their present borders through free and friendly developments. Nevertheless, over successive generations, the ethnic groups now constituting the state have developed networks and ties, both on the personal level (intermarriages and associations of many kinds) and on the material level (infrastructures of transport and communication, etc.). It would be highly destabilizing at the present stage to accept claims by peoples of territories which at some time in history were incorporated through occupation that they now have a right to self-determination.
The third case is that of federations formed by voluntary accession by member republics, and where it has been explicitly stated in their respective constitutions that they have a right to withdraw from such federations. In such cases, the federation itself is a voluntary arrangement, lasting as long as the parties to the federation find it appropriate, and therefore the withdrawal is justified as a utilization of a right existing from the very time of the combination into a federation. The most prominent examples are the dissolutions of the USSR and the Yugoslav federation. The right of self-determination, based on the principle of voluntary accession, is in such situations applicable only to the union republics, not to the smaller entities which may have various kinds of autonomies under the pre-existing order.
Beyond these cases, the question of unilateral right to self-determination is in doubt, overridden by the basic principle of territorial integrity. There is one important proviso, however: that the state conducts itself in compliance with the principle of equal rights and self-determination of peoples and is possessed of a government representing the whole people of the territory without distinction as to race, creed, or colour. It must be kept in mind that the most basic principle of self-determination is that of the right of popular participation in the government of the state as an entity. When the government does not allow all segments and all peoples living in the state to participate, the claim of self-determination by the excluded group becomes stronger.
National or ethnic groups, living compactly together on a territory inside a sovereign state, will therefore bear the onus of proving, in all cases other than those mentioned above, that they have a right under international law to secede; the presumption will be against such a right. If the right cannot be convincingly proved, through some kind of recognition by the international community, outside states cannot be entitled to encourage or support such efforts at self-determination.
The difficulty is that the international community has not established appropriate institutions and procedures to settle competing and controversial claims of self-determination versus territorial integrity. Intergovernmental institutions tend to shy away or to be evasive when confronted with such issues, finding them too politically volatile. State practice, however, generally conforms to the criteria outlined above.
International law prohibits external help to secessionists. The Declaration on Friendly Relations makes it clear that the right of peoples to self-determination cannot authorize, and shall not be used to encourage, "any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states possessed of a government representing the whole people belonging to that territory without distinction as to race, creed and colour." According to the same declaration, every state is obliged to refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other state or country.
All states have the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands for the purpose of incursion into the territory of another state. This also goes for the so called "mother country." Every state, furthermore, has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another state (pares 1 and 2, principle of non-intervention, Declaration on Friendly Relations). Except for the cases mentioned above, all kinds of support to armed struggle for secession constitute violations of international law.
The right to self-determination, understood as a unilateral right, is not generally available to groups even when they live compactly together on a territorially defined area within a larger state. This does not exclude the possibility of peaceful, bilateral arrangements negotiated between the different groups living inside a state, aiming to transform the political structure without the use of violence. Populations living in different territorial parts of a state are, of course, free to decide peacefully on an amicable divorce, as long as this is not brought about by violence or external pressure.
(iii) Minority rights and development should be promoted in ways which do not endanger regional peace and security. Regional security is negatively affected by ethnic and religious conflicts, which often lead to serious dislocations and internal displacement of populations, international refugee flows, and strong temptations for or pressure on outside states to intervene, justified as humanitarian intervention. Conflicts are often started by minor episodes. In the beginning there may be nothing more than some feeling of unease about alleged discrimination. Such allegations are gradually combined with protests and political demonstrations. Rumours emerge and are easily believed. If at that stage security forces overreact, their response constitute a self-fulfilling prophecy which is then exploited by the self appointed militants among the minority; they may respond in kind to the action of the security forces and this, in turn, may lead to new and more violent responses by the latter.
It should not be excluded from consideration that the violence is deliberately provoked by militants on both sides, for the purpose of agitating public opinion and creating firm and confrontational alignments, leading eventually to massacres and reprisals by both sides. Eventually this can degenerate into a guerrilla/counter-guerrilla process, bringing about full polarization, where extralegal executions, even liquidation, become part of the process, with internal repression on both the majority and the minority side.
This can ultimately develop into a cataclysm of infantile regression. For the self-appointed leaders of the minority the stakes have by this time become so high that they are no longer prepared to seek an accommodation with the government, which they might have warmly welcomed at an earlier stage in the evolution of the conflict; nor does public opinion permit the government to take conciliatory measures towards the minority. For the leaders of the minority, international support, either from the "mother country" or by other states, becomes crucial. Since the principle of non-intervention initially holds states back from providing such support, the strategy by minority leaders may be to provoke such strong repression from the majority side that potential outside helpers can justify their action as humanitarian intervention.
Had the parties applied humanitarian standards strictly in their encounters, when armed force is also used, escalation to such levels might not have happened. But while an international presence to constrain the parties might be helpful, recent experiences show that even this may not be enough, because of the irrational conflict dynamics.
The best way to prevent external intervention is to find constructive, domestic solutions based on consistent confidence-building efforts. It is also desirable to develop international mechanisms that make it possible for the parties to address the international community for purposes of conflict resolution.
(iv) For minorities to preserve their dignity as members of a particular community based on religion, language, or culture, they may need protection against other groups who might seek to block them from doing so. They may also need preservation and protection of the material basis of their culture and lifestyles, or material support sufficient to preserve that culture and lifestyle. This will undoubtedly require special measures. These can span a wide range of possibilities.
(v) Development processes can reduce or intensify national and ethnic conflicts. Development and modernization increase national and ethnic identification and inter-ethnic cleavages when economic disparities result, creating prosperity for some groups and relative or absolute deprivation for others. In addition, groups attach different values to different kinds of development. Some emphasize environmentally safe and sustainable developments which preserve traditional lifestyles and the established cultural basis of dignity, while others favour quick technological transformation even when environmental degradation results and lifestyles are disrupted.
Minorities have just cause for reacting when they live compactly together in a peripheral part of the country and are subjected, without having been properly consulted or having given their free and informed consent, to economic processes which profoundly affect their livelihood, and which result from policies and decisions adopted by central authorities influenced by the dominant majority. The problems become particularly severe when natural resources are exploited in such a way that the possibility of survival on the basis of the traditional way of life is destroyed.
On the other hand, ethnic relations can be improved when development projects are directed towards improving the conditions of minorities living in areas which have been lagging behind in economic development, provided they are properly involved in decision making related to those projects.
(vi) Measures adopted to protect minorities must also respect human rights of majorities and of all individuals in the country. Two points need to be addressed here:
(a) While minorities shall be allowed to preserve their identity and traditions, this cannot be used to enforce rules and regulations violating internationally recognized human rights.
(b) The preservation of identity, including self-government, cannot be used to deprive members of other groups of their human rights. A group constituting a numerical minority at the national level is often the majority within a specific region; should that minority be allowed to form and exercise local authority in that region, its rules and regulations must fully respect the internationally recognized human rights of members of other groups living there.
Problems of ethnic conflicts and minority issues are central to the international agenda in our time. There is an increasing need for a combination of the insights gained by international standard-setting and implementation, on the one hand, and conflict resolution practices, on the other.
Conflicts cannot be solved ad hoc, without the application of basic standards; all actors have to adapt to a common framework demanded by the international community. This, however, can be done only at the early stages, when the parties are behaving rationally. When conflicts have gone beyond the rational stage and become cataclysmic, there is a need for a much more complex, patient, step-by-step process to make them return to rationality and adaptation to norms of civilization. Peace enforcement will often be required but is tremendously difficult; the tactics and strategy of peace enforcement as a prelude to peace-building have yet to be learned.
Notes
1. This article was completed in 1993 and has not been updated. The literature on ethnic conflict and minority protection has grown exponentially during the last few years. Updated bibliographies are found, e.g., in Alan Phillips and Allan Rosas, Universal Minority Rights (pp. 363-79), published by Abo Akademi University Institute of Human Rights (Abo, Finland) in cooperation with Minority Rights Group, London, 1995. A comprehensive bibliography is contained also in Asbjørn Eide, Peaceful and Constructive Resolution of Situations Involving Minorities, United Nations University Monograph Series on Governance and Conflict Resolution (forthcoming).
On abbreviations: UDHR stands for the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948. ICERD stands for the International Convention on the Elimination of All Forms of Racial Discrimination, adopted by the General Assembly in 1965. ICCPR stands for the International Covenant on Civil and Political Rights, adopted by the General Assembly in 1966.
References to the literature on the minority protection under the League of Nations can be found in Thornberry, 1991. Capotorti (1979) provides a useful analysis of the content of those arrangements.
2. The basis of the International Bill is the Universal Declaration. For a detailed examination of the articles of the Universal Declaration and its follow-up in subsequent standard-setting, see Eide et al., 1992.
3. For a recent and comprehensive review, see Bokatola, 1991.
4. Capotorti (1979) remains the most comprehensive analysis of the implications of article 27. For an examination of the interpretation of the article by the Human Rights Committee. see Tomuschat, 1983.
5. For a review of efforts to draft minority rights, see Alfredsson, 1982 and 1991; Barsh, 1986; Hannum, 1988.
6. See further below, and Ermacora, 1991.
7. See further Boven, 1992.
8. A useful survey of these procedures is found in United Nations Center for Human Rights, 1991.
9. See CSCE Supplementary Document to Paris Charter; CSCE Valetta Mechanism; CSCE Moscow report (in list of instruments). The Conference on Security and Co-operation in Europe (CSCE) was in November 1994 renamed the Organization for Security and Cooperation in Europe (OSCE).
10. ICERD is a major tool in ensuring non-discrimination on racial or ethnic grounds.
References
Alfredsson, G. 1982. "International Law, International Organisations and Indigenous Peoples." Journal of International Affairs 36, no. 113.
_____ 1991a. "Equality and Non-Discrimination: Minority Rights." Report to the Council of Europe in connection with the Seventh International Colloquy on the European Convention on Human Rights. Document H/Coll (90) 6. Strasbourg: Council of Europe.
_____ 1991b. "Discussion Paper on Human Rights, Fundamental Freedoms and the Rights of Minorities." Submitted to the Third Strasbourg Conference on Parliamentary Democracy, SXB.COF (111) 8. Strasbourg.
Andrysek, Oldrich. 1989. Report on the Definition of Minorities. SIM Special no. 8. Utrecht: Netherlands Institute of Human Rights.
Barsh, R.L. 1986. "Indigenous Peoples: An Emerging Object of International Law." AJIL 80:369.
Bokatola, Isse Omanga. 1992. L'Organisation des Nations Unies et la Protection des Minorités. Brussels: Bruylant.
Boven, Theodore C. van. 1992. "The Security Council: The New Frontier." Review of the International Commission of Jurists 48 (June): 12.
Capotorti, Francesco. 1979. Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities. UN Doc. E/CN.4/Suh.2/384/Rev.1.
Eide, Asbjorm 1990. Possible Ways and Means of Facilitating the Peaceful and Constructive Solutions of Problems Involving Minorities. Preliminary report to the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities. UN Doc. E/CN.4/Sub.2/1990/46.
_____ 1991a. "Minority Situations: In Search of Peaceful and Constructive Solutions." Notre Dame Law Review 66, no. 5: 1311-53.
_____ 1991b. Possible Ways and Means of Facilitating the Peaceful and Constructive Solutions of Problems Involving Minorities. Progress report to the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities. UN Doc. E/CN.4/Sub.2/1991/43.
Eide, Asbjørn, and Jan Helgesen (eds). 1991. The Future of Human Rights Protection in a Changing World. Oslo: Norwegian University Press.
Eide, Asbjørn, Gudmundur Alfredsson, Goran Melander, Lars Adam Rehof, and Allan Rosas, with the collaboration of Theresa Swinehart. 1992. The Universal Declaration of Human Rights. A Commentary. Oslo: Scandinavian University Press.
Ermacora, F. 1991. "Rights of Minorities and Self-Determination in the Framework of the CSCE." In Marcel Brus, Sam Muller, and Serv Wiemers (eds), The United Nations Decade of International Law: Reflections on International Dispute Settlement (Dordrecht/Boston/London: Martinus Nijhoff).
Kooijmans, P.H. 1991. "Inter-State Dispute Settlement In the Field of Human Rights." In Marcel Brus, Sam Muller, and Serv Wiemers (eds), The United Nations Decade of International Law: Reflections on International Dispute Settlement (Dordrecht/Boston/London: Martinus Nijhoff).
Tomuschat, C. 1983. "Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights." Volkerrecht als Rechtsordnung Internationale Cerichtsbarkeit Menschenrechte. Festschrift fur Hermann Mosler (Berlin: Springer-Verlag), pp. 949-79.
United Nations Centre for Human Rights. 1988. United Nations Action in the Field of Human Rights. New York: United Nations.
United Nations Centre for Human Rights, and United Nations Institute for Training and Research. 1991. Manual on Human Rights Reporting. New York: United Nations.