Lecture 12:Human Rights as Group Rights: Nations, Peoples, and the Right

to Self-Determination

Government S-1740

INTERNATIONAL LAW

Summer 2006

OUTLINE

I. International Law and self-determination of peoplesA. Philosophical considerationsB. Historical impetusC. Toward a legal formulationD. Indigenous peoples in the US: nations or not?

II. The international community and groups’ rightsA. The League of Nations “mandates” systemB. The UN system

III. Consequences, limitations and contradictionsIV. International relations theory and minority/group rights

II. INTERNATIONAL LAW AND SELF-

DETERMINATION OF PEOPLES

PHILOSOPHICAL CONSIDERATIONS

• 18th century European thought: – JJ Rousseau

Division of Poland:

Prussia: 160,000

Russia: 340,000

Austria: 1.5 million

HISTORICAL IMPETUS

• Napoleonic Wars (1799-1815)

• Post World War I (1920s)

• Decolonization movement (1950s-1960s)

• Post Cold War period (1990s)

NAPOLEONIC WARS, 1799-1815

POST-WWI BREAKDOWN OF HETEROGENOUS EMPIRES

AUSTRO-HUNGARIAN EMPIREPre-WWI

Post WWI

DECOLONIZATION, 1950s-1960s

BREAKUP OF SOVIET EMPIRE, 1990s

TOWARD A LEGAL FORMULATION

• Wilson’s Fourteen Points

Original short-hand draft, January 1918

INDIGENOUS PEOPLES IN THE US: NATIONS OR

NOT?• A history of legal limbo

• Early recognition– 1787 Constitution– 1790 Intercourse Act– George Washington’s 1789

message to the Senate

19th CENTURY EVOLUTION

• US Attorney General, 1821 and 1828

• Indian Removal Act, 1830

Trail of Tears, 1838

• Cherokee Nation v. Georgia (1831)

• Worcester v. Georgia (1832)

• Cayuga Indians Arbitral Case (1926)

LEGAL CASES ON INDIGENOUS

RIGHTS

II. THE INTERNATIONAL COMMUNITY AND

GROUP RIGHTS

THE LEAGUE OF NATIONS’ MANDATE

SYSTEM• System of foreign

administration

• Similar to colonial administration

• But with an obligation to report to the League

THE UNITED NATIONS

• Renewed effort to address the rights of peoples

• The UN mandate system

• The Charter

• General Assembly Resolutions

SHIFT IN THE MEANING OF SELF-DETERMINATION

ETHNIC KURDS

III. CONSEQUENCES FOR INTERNATIONAL LAW

LESSONS FROM DECOLONIZATION

• People of a non-independent entity may have a right to a state

• A right to resist if their self-determination is not recognized

SELF-DETERMINATION: LIMITATIONS AND CONTRADICTIONS

• The problem of consent

• The problem of viability

• Self-determination versus territorial integrity

• A right to protective external intervention?

• A right to an independent state?

Realist Theories of Group Rights

• Minority rights are another example of the “organized hypocrisy” of international law.

• The protection of minorities’ rights is a function of power relations.– effected by coercion and imposition, not legal

agreements– Most powerful governments intervene to “protect

minorities” when it is in their interest to do so.

Rational functionalist theories of group rights

• Krasner:

“…one of the reasons for honoring international pledges of religious toleration was that in some cases violations by one ruler could lead to retaliation by others against religious minorities within their own territories.” (p. 82)

• Some minority rights agreements are self-enforcing through expectations of reciprocity.

Constructivist Theories of Group Rights

• Identity-based, ethical, as well as instrumental reasons to recognize group rights.

• Politics over legal recognition will reflect identity-related struggles

• Tolerance and self-determination results from a logic of appropriateness, not just consequences.

• To understand the rise and application of rights to self-determination of peoples, you have to understand the struggle over how to frame the issue of group rights.

SUMMARY• “Group rights”, or rights of peoples, have a longer

history in IL than do individual human rights• The breakdown of heterogeneous empires has

stimulated demands for national self-determination• Irony: principles of self-determination received

attention in US foreign policy while indigenous peoples’ rights deteriorate within the US

• Decolonization reflects a special meaning of self-determination as independence from European domination.

• Territorial integrity tends to trump self-determination when these principles clash.