The Right to Internal Self-Determination of Minorities

The question considered in this project is straight forward Do minorities have a right to internal self-determination The very short overall answer is that classic minorities in Europe have a right to internal self-determination according to the approach of legitimacy and justice. Several questions arise both from the question and the conclusion and are addressed in the different chapters. 

Part 1 introduces the subject matter. In Chaps. 1 and 2, the framework and outer limits of the project are provided. A very basic assumption is that international law is relevant. Another basic viewpoint is that international relations are based on much more than only binding international law. Regimes and institutions defined in broad terms are relevant. The project is limited to Europe while the term Europe calls for a clearer definition. The project deals with liberal states which are defined in terms of democracy, market economy, private property rights and civil and political rights. 

Chapter 3 provides an overview of minority rights and self-determination that can be found according to the classic sources of international law under art. 38 (1) ICl-S. The conclusion is that among these sources only treaty law is an indispensable source for this project Customary international law as the second of the two most important sources of international law is imbued with too many conceptual problems that even a modem approach of customary international law cannot solve sufficiently. 

Chapter 4 crmtinues with an overview of actors and instruments that can be foimd in the fields of minority rights and self-determination. This chapter, however, refers oidy to nmi-state actors and non-binding instruments, as it is in relation to these that their relevance for the further analysis has to be shown. The chapter shows the 

Chapter 5 does exactly what Chap. 4 calls for. It offers an account of the approach of legitimacy and justice which are concerned with questions other than sources. Legitimacy is found according to a test based on Thomas Franck s four criteria of legitimacy which are determinacy, pedigree, coherence and adherence. A catalogue of six criteria is developed covering the dimension of justice. This is inspired by the theory of justice of John Rawls. 

---

The Right to Internal Self-Determination of Minorities in Larger Context... 

As accepted international law today stands it remains true that black letter treaty law does not explicitly link minorities or minority rights to self-determination. There seems to be reluctance among states to recognize a right to internal self-determination for minorities. If this is all there is to be found in treaties, it is time to turn to the second source of international law which is customary international law. 

This notion shows international self-determination and classic minorities belong together. The link between internal self-determination and classic minorities is fair. Depending on the circumstances, the same group of persons can be a people or a minority. Recognizing the right to internal self-determination for classic minorities in Europe overcomes historical inconsistencies, solves definitional problems and moves international law one step closer to reality. 

Chapter 2 provides the adequate international relations framework. This chapter establishes the possibility of inclusion of non-state actors and non-binding instrument into the analysis. Chapter 3 takes a step back and provides an overview of established international law on minority rights and self-determination. There is no need to exclude undisputed international law. The overall evaluation of a minority s right to internal self-determination is only comprehensive when both undisputed... 

The question is whether a right to internal self-determination is fair. Franck provides procedural fairness under the heading legitimacy and Rawls provides substantive fairness under the name of justice. The theories are introduced below. Later on, they are applied in different ways and at different stages. In this chapter, the fairness approach is used on those documents that the sources doctrine considers as non-binding. In Chap. 10, I return to the fairness approach. Here, four specific minority rights are discussed regarding their procedural and substantive fairness. Franck is followed closely while Rawls serves as a framework and inspiration but I do take more liberties with him. 

Legitimacy and justice have received their share of criticism. Yet, I believe they contribute with a new filter on an old issue. Regarding my specific research question of whether minorities have a right to internal self-determination I think it is quite fitting to put the question to the test. 

The original position is a hypothetical exercise of the mind. A just society is envisaged and principles are agreed upon that lead to a just society. However, reality rarely mirrors or fulfils our ambitions, goals and ideals. While 1 argue within a fair and just framework, the ultimate question of whether minorities have a right to internal self-determination cannot be answered without taking reahty into account. 

In the field of human rights, issues of bindingness remain. Positivism cannot explain why principles of the CSCE Copenhagen Document are treated as rules. It is therefore necessary to go further and seek alternative explanations. The question to be answered is whether minorities have a right to internal self-determination. The answer is proposed in two steps. First, as many minority rights and also issues of self-determination appear in so-called non-binding instruments, it is important to show their relevance. Once this is done, the second step is taken. 

Thomas Franck s procedural fairness termed legitimacy and aspects of John Rawls distributive justice have been introduced as the tools chosen for the analysis. As has been shown, the basis of the discussion is contractarian in the sense that the different actors are related by contracts. Minorities and their rights are considered with a positive attitude without letting minorities have unlimited rights. Self-determination needs to be divided into internal and external self-determination. Internal self-determination is a positive value for individuals. It is still valuable for the group however, the group s needs have to be balanced with those of the majority. This is the content of the contract the restriction to internal self-determination balanced by the well treatment by the state. 

The answer to the nature of the right to self-determination is important in a very fundamental way. If the right to self-determination is normative in character and minorities are found to have a right to internal self-determination, this could have practical consequences. If the right is merely declaratory in nature, minorities receive far less support from international law. 

It is too general to conclude that minorities have a right to self-determination. It is necessary to keep in mind that minorities are meant to be classic minorities. Self-determination is understood as meaning internal self-determination. Thus, a right to internal self-determination for classic minorities seems to emerge. This conclusion is reached within the framework of legitimacy and justice. It is necessary to place this conclusion in a larger context. 

Legitimacy is the procedural aspect of fairness. Justice is the substantive aspect of fairness. For the conclusion this means, in short, that a right to internal self-determination for classic minorities is fair. This does not mean that political reality will be changed. However, as the context shows, a right to internal self-determination for classic minorities is not threatening states in Europe. It is rather the recognition of a reality that has existed for the past 15-20 years and which has solid historical roots. 

Traditional international law meets its limits once faced with the question of whether minorities have a right to internal self-determination. The path of analysis chosen in this project provides new possibilities and a wider scope than traditional sources doctrine allows. Nevertheless, the project is restrictive in the application of the new approach so as not to alienate traditional international lawyers. 

No global and general conclusion is envisaged there are restrictions in place. The project is limited to the European framework. It is further restricted to classic minorities. The argument is based on an approach of legitimacy and justice. The analysis in this project shows that some minority rights overlap with the different dimensions of internal self-determination. In short, classic minorities in Europe have a right to internal self-determination. 

This book shows that they are two sides of the same coin. Minority rights guaranteed by international hard and soft law overlap craisiderably with the concept of internal self-determinatirai. Thus, the conclusion is that minorities have a right to internal self-determination a conclusion that states should not fear but can embrace in good faith. 

Somewhat surprisingly, scholars have mostly taken the same stance. The very easy explanation as to why self-determination and minorities are not coimected is that self-determination is a right of peoples. As minorities are not peoples, they cannot claim self-determination. This is just one of the accepted truths in international law that is questioned in this project. 

---