Bisaz 2012

The Concept of Group Rights in International Law
The Raoul Wallenberg Institute

Human Rights Library
VOLUME 41
The titles published in this series are listed at brill.nl/rawa

The Concept of Group Rights in
International Law
Groups as Contested Right-Holders,

Subjects and Legal Persons
by
Corsin Bisaz
LEIDEN BOSTON
2012
Library of Congress Cataloging-in-Publication Data
Bisaz, Corsin.
The concept of group rights in international law : groups as contested right-holders, sub-
jects and legal persons / by Corsin Bisaz.
p. cm. -- (The Raoul Wallenberg Institute human rights library ; v. 41)
Includes bibliographical references and index.
ISBN 978-90-04-22870-2 (hardback : alk. paper) -- ISBN 978-90-04-22871-9 (e-book)
1. Minorities--Legal status, laws, etc.--Philosophy. 2. Human rights--Philosophy. 3.
Minorities--Civil rights. 4. Social groups--Political aspects. I. Title.
K3242.B57 2012
342.08701--dc23
2012028488
issn 1388-3208
isbn 978 9004 22870 2 (hardback)
isbn 978 9004 22871 9 (e-book)
Copyright 2012 by Koninklijke Brill nv, Leiden, The Netherlands.

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Table of Contents
Acknowledgements vii
Table of Cases ix
Table of Treaties, Declarations and Other Documents xi
Abbreviations xiii
Introduction 1
1. Group Rights: Rights, Subjects and Legal Personality 7

1.1. Rights and Groups as Their Bearers 7
1.1.1. Defining and Delimiting Group Rights 7
1.1.2. Group Rights and the Concept of Rights 12
1.1.3. The Third-Party Beneficiary and the Criminal Law Problem 20
1.1.4. Rights as Rules and Principles 22
1.1.5. Rights and the Problem of Coercion in International Law 23
1.1.6. Group Rights as a Legal Category A Paradox? 26
1.2. The Subjects 28
1.3. The Concept of Legal Personality 33
2. Group Rights in Contemporary International Law 43

2.1. Groups and International Law 44
2.2. Groups and the Concept of Self-Determination 45
2.2.1. Some Main Features 46
2.2.2. The Legal Right 51
2.2.3. The Subject 61
2.3. Groups and the Concept of Equality and Non-Discrimination in
International Law 66
2.3.1. Some Main Features 67
2.3.2. The Legal Right 68
2.3.3. The Subject 70
2.4. Some Concrete Group Rights in International Law 77
2.4.1. Humanitarian Law and the Creation of States 78
vi Table of Contents
2.4.2. International Criminal Law 85

2.4.3. Obligation to Prevent Genocide 104
2.4.4. Rights of Minorities 107
2.4.5. Rights of Indigenous Peoples 120
2.4.6. Protection of Family 125
3. Features of Existing Group Rights and Discussions on

Group Rights 127
3.1. Observations Regarding Rights, Subjects and Legal Personality 127
3.2. Group Rights in Philosophical Debates 132
3.2.1. Romanticism/Nationalism versus Liberalism 134
3.2.2. Collectivism versus Individualism 143
3.2.3. Group Rights versus Individual Rights 149
3.2.4. Group Rights, Fundamental Rights and Human Rights 153
3.3. Concluding Remarks 157
4. Reappraising the Concept of Group Rights in International Law 159

4.1. Some Key Issues 161
4.1.1. The Inadequacy of A Priori Approaches 161
4.1.2. Exclusive Nationalism 163
4.1.3. Group Rights and the Public-Private Distinction 165
4.1.4. The Need for Locally-Designed Solutions: Political versus
Legal Sphere 169
4.1.5. The Limits of Norms on Group Governance in International Law 176
4.2. Rights: Elements of a Principled Approach of International Law 178
4.2.1. Principles on Substate Groups 179
4.2.2. Equality and Self-Determination as Principles 182
4.2.3. A Substantive Distinction of Claims 191
4.2.4. The Lack of International Enforcement Mechanisms 195
4.3. Subjects 198
4.3.1. Categorising Groups or Claims? 198
4.3.2. Claimants Attributes Strengthening Its Claims 200
4.3.3. Definition Requirements: Projected Groups and Identity Groups 201
4.4. Legal Personality as Recognition 203
4.5 Some Remarks on the Implications 206
4.5.1 Implications for States and Groups 207
4.5.2 Implications for the Legal Concept Itself 209
Conclusions 211
Bibliography 215
Index 241
Acknowledgements
I would like to thank Daniel Threr for supervising my dissertation and for giv-
ing me the freedom I needed to pursue the research. It is thanks to him that I was
inspired to study law, to write a dissertation in law, and to choose group rights as
the topic for my dissertation.
I am grateful to the Swiss National Science Foundation for so generously
funding my research, enabling me, together with my wife, to spend two years
at the Raoul Wallenberg Institute in Sweden as a visiting researcher. For my re-
search stay in Lund I am deeply grateful to Christina Johnsson for acting as my
advisor; she has always been very enthusiastic about my work and has been of
great help to me in the dissertation by guiding me through the writing proc-
ess. Furthermore, I am indebted to the Raoul Wallenberg Institute for Human
Rights and Humanitarian Law and its former Director, Gudmundur Alfredsson,
for their hospitality and for providing me with an ideal infrastructure to pursue
this research.
I want to thank the following persons for reading previous drafts and/or
parts of my dissertation and for providing me with invaluable input: Gudmundur
Alfredsson, Romedi Arquint, Alejandro Fuentes, Radu Mares, Karol Nowak,
Rebecca Stern, and Lyal Sunga. For their encouragement, advice, and critical
acumen I want to thank Diana Amnus, Anna Maria Andersen Nawrot, Nina-
Louisa Arold, Anna Bruce, Thomas Burri, Jonas Grimheden, Xavier Groussot,
Ulf Linderfalk, Gran Melander, Lena Olsson, Marianne Pfister, Rolf Ring, Nina
Schmid, and Habteab Tesfay. For their indispensable help with the language edit-
ing, I also want to thank Maria Orchard who was in charge of a large part of the
book, and also her predecessors Jackson Oldfield and Anna Maria Martignetti.
I thank my parents for their unconditional support and encouragement over
all these years of studies without which this work would not have been possible;
and, last but not least, I thank my wife for her unfailing patience and support.
During the time of my dissertation we moved from Switzerland to Sweden as a
couple and came back again as parents with one son and one daughter; it has been
an intense time to which I owe her much.
viii Acknowledgements
For their support with realising the publication of the dissertation I thank
Timothy Maldoon of the RWI and Lindy Melman from Brill.
This work has been accepted by the Faculty of Law of the University of
Zurich as a Doctoral Thesis in May 2011 and takes into account literature and
cases up to February 2011.
Table of Cases
ACHPR
Centre for Minority Rights Development (Kenya) and Minority Rights Group
International on behalf of Endorois Welfare Council v. Kenya, 4 February
2010 123
CERD
Jewish Community of Oslo et al. v. Norway, 15 August 2005 77
ECtHR
Sejdi and Finci v. Bosnia and Herzegovina, 22 December 2009 207
Thlimmenos v. Greece, 6 April 2000 73, 189
HRCee
ngela Poma Poma v. Peru, 27 March 2009 113, 114
Apirana Mahuika et al. v. New Zealand, 27 October 2000 114, 115
Chief Bernard Ominayak and Lubicon Lake Band v. Canada, 26 March 1990 112,
113, 115, 116
Ilmari Lnsman et al. v. Finland, 26 October 1994 113
Jouni Lnsman et al. v. Finland, 15 April 2005 113
Kitok v. Sweden, 27 July 1988 114
Marie-Hlne Gillot et al. v. France, 15 July 2007 63, 115
Sandra Lovelace v. Canada, 30 July 1981 114
IACmHR
Grand Chief Michael Mitchell v. Canada, 25 July 2008 113
IACtHR
Juridical Condition and Human Rights of the Undocumented Migrants, 17
September 2003, Advisory Opinion 69
ICJ
Accordance with International Law of the Unilateral Declaration of Independence
in Respect of Kosovo, 22 July 2010, Advisory Opinion 192
Accordance with International Law of the Unilateral Declaration of Independence
in Respect of Kosovo, 22 July 2010, Advisory Opinion: Koroma (Dissenting
Opinion) 192
x Table of Cases
Application of the Convention on the Prevention and Punishment of the Crime

of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 26 February
2007 95, 96, 105, 106, 107
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 8 April 1993,
Provisional Measures, Order: Weeramantry (Separate Opinion) 25
of Genocide (Bosnia and Herzegovina v. Yugoslavia), 11 July 1996, Preliminary
Objections 106
Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v. Rwanda), 3 February 2006, Jurisdiction
and Admissibility 97
Case Concerning the Barcelona Traction, Light and Power Company, Limited
(New Application 1962) (Belgium v. Spain) Second Phase, 5 February 1970 53,
69
East Timor (Portugal v. Australia), 30 June 1995 51, 53, 64
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, 9 July 2004, Advisory Opinion 51, 53, 54, 64, 196
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, 9 July 2004, Advisory Opinion: Higgins (Separate Opinion) 51
Reparation for Injuries Suffered in the Service of the United Nations, 11 April
1949, Advisory Opinion 37, 39, 130
Western Sahara, 16 October 1975, Advisory Opinion 64, 129, 130
ICTR
Prosecutor v. Clment Kayishema and Obed Ruzindana, 21 May 1999 93, 94
Prosecutor v. Georges Anderson Nderubumwe Rutaganda, 6 December
1999 94, 95
Prosecutor v. Jean-Paul Akayesu, 2 September 1998 90, 92, 93
ICTY
Prosecutor v. Duko Tadi, 7 May 1997 98
Prosecutor v. Goran Jelisi, 14 December 1999 96, 102
Prosecutor v. Milomir Staki, 22 March 2006, Appeal Judgement 95, 96
Prosecutor v. Radislav Krsti, 2 August 2001 94
Prosecutor v. Radoslav Branin, 1 September 2004 95
Prosecutor v. Tihomir Blaki, 3 March 2000 101
Prosecutor v. Vujadin Popovi et al., 10 June 2010 95, 96, 207
Prosecutor v. Zoran Kupreki et al., 14 January 2000 102, 207
PCIJ
Minority Schools in Albania, 6 April 1935, Advisory Opinion 44
Supreme Court of Canada
Reference re Secession of Quebec, 20 August 1998 57
Table of Treaties, Declarations and Other
Documents
Agreement for the Prosecution and Punishment of Major War Criminals of the
European Axis, and Establishing the Charter of the International Military
Tribunal (IMT), 8 August 1945 86
Charter of the UN, 26 June 1945 45, 48, 49, 50, 51, 52, 53, 62, 70, 176, 182, 183, 185, 186,
196
Convention on the Elimination of All Forms of Discrimination against Women, 18
December 1979 68, 75
Convention on the Prevention and Punishment of the Crime of Genocide, 9
December 1948 20, 8697, 104107, 129, 130
Council of Europe
Convention for the Protection of Human Rights and Fundamental Freedoms, 4
November 1950 69
Framework Convention for the Protection of National Minorities, 1 February
1995 107, 117, 198
Protocol No. 12 to the ECHR, 4 November 2000 69
European Union
Conclusions of the Presidency of the European Council in Copenhagen, 21-22
June 1993 117
Geneva Red Cross Conventions (I-IV), 12 August 1949 7985, 92, 99
ILC
Draft Articles on Responsibility of States for Internationally Wrongful Acts, 12
December 2001 85, 197
ILO
Convention Concerning Indigenous and Tribal Peoples in Independent
Countries, 27 June 1989 121, 122, 123, 124, 125
Convention Concerning the Protection and Integration of Indigenous and
Other Tribal and Semi-Tribal Populations in Independent Countries, 26 June
1957 121
International Convention on the Elimination of All Forms of Racial Discrimination,
21 December 1965 65, 68, 73, 74, 75, 76, 77, 103, 185
International Convention on the Suppression and Punishment of the Crime of
Apartheid, 30 November 1973 104
xii Table of Treaties, Declarations and Other Documents
International Covenant on Civil and Political Rights, 16 December 1966 49, 54, 60,
65, 68, 69, 75, 108, 109, 110, 112, 113, 114, 115, 116, 117, 119, 120, 125, 128, 156, 194
International Covenant on Economic, Social and Cultural Rights, 16 December
1966 49, 54, 68, 71, 156
League of Nations
Covenant of the League of Nations, 28 April 1919 66
Optional Protocol to the International Covenant on Civil and Political Rights, 16
December 1966 62, 115, 116
OSCE
Conference on Security and Co-operation in Europe Final Act, Helsinki 1975, 1
August 1975 50
The Lund Recommendations on the Effective Participation of National Minorities
in Public Life & Explanatory Note, September 1999 189
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of Non-International Armed Conflicts, 8 July 1977 81
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and
Other Devices as amended on 3 May 1996 (Protocol II as amended on 3 May 1996)
annexed to the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons which may be deemed to be Excessively Injurious or to
have Indiscriminate Effects, 3 May 1996 82
Rome Statute of the International Criminal Court, 17 July 1998 85, 86, 88, 92, 97, 99,
100, 102, 103
UN GA
Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law, 21 March 2006 195, 196
Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United
Nations, 24 October 1970, Res. 2625(XXV) 49, 50, 56, 62
Declaration on the Granting of Independence to Colonial Countries and Peoples,
14 December 1960, Res. 1514(XV) 48
Declaration on the Rights of Indigenous Peoples, 2 October 2007 121
Declaration on the Rights of Persons Belonging to National of Ethnic, Religious
and Linguistic Minorities, 18 December 1992 117, 118
Principles Which Should Guide Members in Determining Whether or Not an
Obligation Exists to Transmit the Information Called for Under Article 73e of
the Charter, 15 December 1960, Res. 1541(XV) 49
Resolution on the Crime of Genocide, 11 December 1946, Res. 96(I) 88, 89
Universal Declaration of Human Rights, 10 December 1948, Res. 217(III) 45,
70, 78, 104, 182
Vienna Declaration and Programme of Action, 12 July 1993 56
UN Security Council
Resolution 217 (1965), 20 November 1965 196
Resolution 418 (1977), 4 November 1977 196
Resolution 1244 (1999) on the Situation Relating Kosovo, 10 June 1999 58
Vienna Convention on the Law of Treaties, 23 May 1969 105, 109, 116
Abbreviations
ACHPR African Commission on Human and Peoples Rights

art., arts. Article(s)
CCPR International Covenant on Civil and Political Rights
CEDAW Convention on the Elimination of all Forms of Discrimination
against Women
CERD International Convention on the Elimination of all Forms of
Racial Discrimination
CESCR International Covenant on Economic, Social and Cultural Rights
CETS Council of Europe Treaty Series
CSCE Conference on Security and Cooperation in Europe
ed., eds. editor(s)
edn. edition
et al. and others
ETS European Treaty Series
et seq. and following
fn., fns. footnote(s)
HRCee Human Rights Committee
i.e. that is
IACmHR Inter-American Commission of Human Rights
IACtHR Inter-American Court of Human Rights
ICC International Criminal Court
ICJ International Court of Justice
ICJ Reports Reports of Judgements, Advisory Opinions and Orders of the
International Court of Justice
ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
ILC International Law Commission
ILO International Labour Organisation
NGO non-governmental organisation
no. number
xiv Abbreviations
OSCE Organisation for Security and Co-operation in Europe, former

Conference on Security and Co-operation in Europe (CSCE)
p., pp. page(s)
para., paras. paragraph(s)
PCIJ Permanent Court of International Justice
SC Security Council
UDHR Universal Declaration of Human Rights
UN United Nations
UNESCO United Nations Educational, Scientific and Cultural Organization
UN GA United Nations General Assembly
UNTS United Nations Treaty Series
VCLT Vienna Convention on the Law of Treaties
Introduction
Conflicts today are frequently connected with substate groups of different cul-
tures, ethnicities, and/or religious beliefs and their claims. International law has
for a long time tried to ignore such internal matters of states. However, in the
run of the human rights revolution and in light of mass atrocities, as well as
the experiences of spill-overs from internal conflicts becoming severe threats of
international peace and security, it has become obvious that international laws
classical limitation to inter-state relations has become inappropriate in this field
as well. Yet, international law still has to find its role in this context and an ade-
quate approach to prevent and resolve internal conflicts. Generally, conflict pre-
vention and conflict resolution can be achieved through several political and le-
gal instruments. Among others, group rights are being propagated as a possible
means for this purpose. However, this category of rights is highly controversial.
The debate on group rights in international law is not new. In fact, since
substate groups have always had some importance in international relations and
from the very beginning of the UN era, the topic of group rights existed; never-
theless, it was only in the 1970s and 1980s that it gained attention from political
and legal scholars as well as legislators. Still, international law only rarely pro-
vides rights and/or duties to groups and often does so in a very cautious way.
Although the topic of group rights is not new, it has turned out that there is con-
siderable confusion with regard to what group rights are as well as an ideological
bias towards the concept itself; as a result, a pragmatic use of this category of
rights appears to be beyond what can be expected from the international com-
munity today. Overall, this means that international law might ignore a useful le-
gal means to tackle problems between substate groups as well as between groups
and states. In light of the importance of such conflicts, this is highly regrettable.
Interest in the Topic

The concept of group rights is strongly contested and has resulted in a huge
amount of literature on the topic, mainly in the form of articles, and this is also
interesting mainly in the field of (political) philosophy. There are admittedly
2 Introduction
some monographs on group rights, some even in the field of legal science; how-
ever, already this first impression deserves attention as we are talking about an
inherently legal category of remarkable complexity. Astonishingly, the literature
often tackles the topic on a rather abstract level with few references to concrete
examples in existing legal systems, although such examples exist and could add
substantially to its understanding. More importantly, a very ideological way of
arguing is widespread and reflects a dogmatic understanding of the topic which
can be seen as one of the main reasons why international law has been very reluc-
tant so far to provide group rights and to call them by their name.
Main Research Question

In order to elaborate a more consistent view of the concept and its reality in inter-
national law as well as to provide a more coherent approach of international law
to substate groups, this work will tackle the following research question: is the
reluctance to provide group rights in international law justified?
Justified shall mean for this purpose that the provision of such rights is
made on the basis of a realistic evaluation of the problem which has to be handled
by law, as well as a realistic evaluation of the legal means to do so. An evaluation
is realistic when it is led by facts. In other words, when the provision or non-pro-
vision of group rights in international law is made without reasons or for reasons
disconnected from concrete facts (this might be the case with ideologies), it is
unjustified according to this understanding. In the following, this approach will
be called pragmatic as opposed to ideological.
It is argued that problems on a conceptual level are connected with three
questions: First, can groups from a conceptual point of view be right-holders?
Second, can groups be defined in a reasonably exact way? Third, are groups having
rights and/or duties under international law legal persons? Therefore, throughout
this work the issue will be discussed from these three different angles: groups
as right-holders (connected with the concept of legal rights), groups as subjects
(problems of definition), and groups as legal persons (connected with the legal
concepts of subjectivity/personality/capacity). Of course, these three perspectives
are strongly interconnected; it is nevertheless useful to take each of them into ac-
count as each of them includes an additional set of questions.
Aim of the Work

The aim of the work is to provide an overview of a substantial part of group rights
in international law, i.e. group rights connected with the existence and cultural
or political continuation of substate groups, to give an impression of how they are
discussed in philosophy, and to outline a better approach for their understand-
ing and use in international law. In other words, the work aims at unravelling the
many layers of the topic and intends to provide a less ideological and more coher-
ent understanding of the concept of group rights in order to allow legislators to
Introduction 3
base their provision or non-provision of group rights on more rational grounds

than is common today. This might enable legislators to provide group rights in
cases where such rights more adequately address a situation than other forms of
regulation. Overall, the scope of this work is broad and the aim is to build on the
experiences of group rights in international law in order to strengthen the under-
standing of the concept and its use in international law.
Structure and Methods

This work consists of four main chapters. In chapter 1, the theoretical founda-
tion of group rights will be laid out, the aim is to clarify defi nitions and concepts
relevant to the topic. This discussion belongs to the realm of political and legal
philosophy and provides an understanding of the concept of group rights and its
related philosophical problems.
In chapter 2, existing group rights in international law connected with self-
government in a broader sense will be searched for and analysed with a special
focus on issues connected with the concept of rights, as well as with the group
as subject and its contested legal personality. It is based on the previously intro-
duced conceptual framework and focuses in its legal analysis of group rights in
international law on the issues which were considered important according to the
analysis in chapter 1. Moreover, this legal analysis of contemporary international
law serves as a factual point of reference for the theoretical discussion as well as
for legislation confronted with issues concerning groups. The idea is that existing
examples of group rights in international law could clarify the strengths, weak-
nesses, dangers and chances of group rights and indicate if, when, and how such
rights could be useful and therefore justified in international law.
In chapter 3, the main findings of the previous inquiry will be presented and
contrasted with common arguments in the debate on group rights. It presents
some traditionally important arguments of the philosophical discussion and
confronts them with the findings of the legal analysis in chapter 2. This part can
mainly be attributed to the realm of political philosophy as it challenges classic
positions mainly found in the political philosophy discourse on the issue.
Chapter 4 aims at a reappraisal of the concept of group rights in internation-
al law which allows for a more pragmatic understanding and use of such rights.
It introduces a de lege ferenda approach of international law to group rights and
touches upon all previously applied disciplines, namely international law, legal
philosophy and political philosophy.
The perspective from which this inquiry will be undertaken is conceptual.
In other words, the legal concept of group rights is at the centre of interest of this
inquiry and the legal application of it in international law only an example, a case
study. The reason for taking this perspective is that the categorisation of rights
as group rights has turned out to be a reason for supporting or opposing them.
This means that the problem can be solved neither by showing what courts have
decided regarding groups nor by simply referring to the existence of such rights
4 Introduction
in reality. Supporters and detractors of the concept cannot be convinced by the

arguments of the existence or non-existence of such rights. Indeed, the dispute of
group rights is highly political and it is a challenge not to become political when
discussing the topic scientifically.
The issue of group rights cannot be solved on a theoretical level; in fact,
it will be shown that many of the theoretical disagreements are based on differ-
ing conceptualisations of the concept of group rights itself as well as underly-
ing concepts like the concept of rights. Hence, some issues will be solved by
clarifying the concept while most will remain a matter of personal belief and
inclination. Nevertheless, a theoretical discussion will be crucial to isolate ques-
tions which cause the dispute from the many instances where the topic causes no
reasonable objection. The theoretical discussion of the concept will thus help to
reduce the complexity of the many arguments implicitly and explicitly used for
and against the concept. The result will be a clearer understanding of the concept
as such as well as its main potential weaknesses. Yet, keeping the inquiry on this
theoretical level, its results would remain detached from reality; therefore, to be
able to evaluate the importance of the weaknesses and strengths connected with
the concept as well as to assess the function of such rights in international law,
the application of the concept of group rights in international law will also be
investigated. Hence, by approaching this topic both dogmatically and as applied,
a more solid ground for the provision of group rights in international law will be
laid out which, in turn, could result in an enhanced capacity of solution-finding
based on international law.
How this could be reached is discussed in the concluding reassessment of
the concept and its potential role in international law. It will again be made from
a conceptual perspective and be based on the main principles which underlie
group rights in contemporary international law. The aim there will be to build on
uncontested territory and provide a more coherent vision of international laws
approach to groups and their rights.
It might be argued that the weight given to the rather philosophical concep-
tual discussion of group rights is inadequate as it is not concepts but reality which
matters. Apart from the fact that reality is taken into account, as just discussed,
the importance of concepts in law should not be underestimated. In fact, the
changing view of legal concepts is one way in which law, its application, develop-
ment and accordingly also reality is being changed.1 This is also, if not even more
so, true for such a contested concept like group rights.
1 In this sense there is reason to believe that legal concepts generally differ from the
concepts Derek Parfit discusses when he argues: We are discussing cases where,
relative to the facts at some lower level, the higher-level fact is, in the sense that I
have sketched, merely conceptual. My claim is that such conceptual facts cannot be
rationally or morally important. What matters is reality, not how it is described. D.
Parfit, The Unimportance of Identity, in H. Harris (ed.), Identity: Essays based on
Herbert Spencer Lectures given in the University of Oxford (Clarendon Press, Oxford
Introduction 5
Limitations
The scope of this work is limited in different ways. First, it is restricted to inter-
national law and leaves national legislation aside; this choice is justified in light
of the aim of this work and its research question as it is the legal obligations of
states with regard to their substate groups which are the focus here. Second, this
work concentrates on global regulations and leaves regional laws and jurisdic-
tions aside; the reason for this is that the main issues involved in this discussion
are covered by these examples and would not gain from additional examples.
However, regional legislation and practice will be taken into account where they
substantially add to the discussion. Third, it will also strongly focus on legally
binding instruments. There are many resolutions and declarations which can be
seen as soft law documents which doubtlessly play a role in the legal account of
groups in international law. Some of these instruments will be mentioned where
appropriate; however, the inquiry is not aimed at covering all instruments with a
certain authority in this field. The research question can be answered by taking
only the legally binding instruments into account. Fourth, a further limitation
regards the content of group rights: not all typically claimed group rights will
be considered. The focus will be, as mentioned before, on group rights connected
with the existence and cultural or political continuation of groups which is basi-
cally the main category of existing group rights in international law.2 These are
also the most interesting examples as, again, problems connected with diversity
within states and its management are the reason for many armed conflicts and, as
a result, for claims by groups for protection through group rights.
1995), p. 33. An exception to the claim that legal concepts matter could to some de-
gree however be the concept of legal personality in international law, see the discus-
sion in chapter 1.3.
2 This is based on James Crawfords categorisation of peoples rights and discussed
in chapter 1.1.1.
1. Group Rights: Rights, Subjects and Legal
Personality
This chapter concentrates on the conceptual dimension of group rights. The

starting point of the discussion will be the definition of group rights. Next, the
main conceptual challenges shall be considered. Basically, these can be divided
into three areas: challenges connected with the concept of rights, challenges of
defining the group within group rights, and challenges connected with the con-
cept of legal personality.
1.1. Rights and Groups as Their Bearers

This discussion will have the following structure: First, a definition of group
rights has to be given and separated from other categories. Second, the question
of what we understand as a right needs to be discussed in order to see if groups
can meaningfully be discussed as holders 3 of such rights. As will be shown, an-
swers to this question differ substantially and should therefore be explicitly made
subject to discussion. In fact, the central question for group rights, who is the
right-holder, depends on the understanding of what a right is. Third, questions
surrounding the definition of the group will have to be discussed. Fourth, the
concept of legal personality will be introduced to enable an analysis of the legal
personality of groups in contemporary international law.
1.1.1. Defining and Delimiting Group Rights

Let us begin with a working definition of what will be referred to as group rights
in this work:
Group rights are rights in international law whose holder is a group which consists
of individuals.
This simple and very general definition has to be clarified and justified.
3 Right-holders and bearers of rights will be used synonymously.

8 Chapter 1
By its very definition the main feature of group rights is the group as the
right-holder; to clarify this specialty, it can be added that the group is holding the
right rather than its members severally. However, there has been much confu-
sion as to this point. Many authors do not pay much attention to the distinction
of rights that are held by the group and (individual) rights that are granted only
to members of certain groups but not of other groups (so-called group-differen-
tiated rights).4 5 For example, the right of self-government can only be held by
a group and is therefore clearly a group right, whereas the right of workers to
fair wages is held by individuals who share the characteristics which make them
workers; above all, it is also the individual that can, as the right-holder, claim
this right in a court and not the group of workers; hence, it is not the workers as
a group which own the right.6 It is also to be said that the systematic violation of
the individual rights of members of a certain group does not change the nature of
these rights; hence, it is misleading when Fields writes that we move from merely
the violation of rights of individuals by the state, to the non-recognition and vio-
lation of the rights of a specific group, that is, the right of African Americans to
receive due process from the police and the courts the way in which other people
do.7 The right to receive due process is and stays an individual right no matter
the systematic violation. Moreover, the distinction between individual rights and
group rights is not a gradual one; conceptually there are no overlaps and hence
there can be no gradual move from individual rights to group rights. However,
as Fields implicitly indicates by the term in the way in which other people do, the
4 Cf. P. Jones, Cultures, Group Rights, and Group-Differentiated Rights, in M. Di-

mova-Cookson and P. M. R. Stirk (eds.), Multiculturalism and Moral Conflict (Rout-
ledge, New York 2010), pp. 3841; on group-differentiated rights, see e.g., E. J. Mit-
nick, Rights, Groups, and Self-Invention (Ashgate, Aldershot 2006).
5 It is symptomatic for the discussion on group rights and its terminological vague-
ness that the book often referred to as a main work on group rights in international
law does not provide much guidance as to the definition of group rights; in fact,
Natan Lerner seems to call a group right a right which in some way can be seen as
protecting a group, be the bearer of it a member of a group or a group as such. N. Le-
rner, Group Rights and Discrimination in International Law (2nd edn., Kluwer Law
International, The Hague 2003). The use of the term group rights in a synonymic
way for group-differentiated rights is also found e.g. in the following books/articles:
W. F. Felice, Taking Suffering Seriously: The Importance of Collective Human Rights
(State University of New York Press, Albany 1996); D. Miller, Group Rights, Hu-
man Rights and Citizenship, 10 European Journal of Philosophy (2002) 178; T. W.
Pogge, Group Rights and Ethnicity, in I. Shapiro and W. Kymlicka (eds.), Ethnicity
and Group Rights (New York University Press, New York 1997); D. de Vito, Rape as
Genocide: The Group/Individual Schism, 9 Human Rights Review (2008) 361.
6 Also a union of workers could base its claims only on the rights of its members.
7 A. B. Fields, Rethinking Human Rights for the New Millennium (1st edn., Palgrave
Macmillan, New York 2003), p. 103.
Group Rights: Rights, Subjects and Legal Personality 9
case he describes could amount to a violation of the principle of non-discrimina-

tion which could be understood (in part) as a group right, as we will discuss later.8
Another restriction is the given definition of members of a group: groups, as
understood in this work, consist of individuals; thus, groups of juristic persons,
like states, are not subsumed to the definition given. In fact, the rights of the
international community as discussed in the context of erga omnes obligations
are not considered group rights in this work.9 The reason for this is its different
set of problems and, accordingly, its separate treatment in theory and practice.
Ultimately, group rights as discussed here are the legal rights of substate groups
provided by international law.
The topic of group rights as discussed here has been referred to with oth-
er names as well; most importantly with the term collective rights. Th is work
will not use the term collective rights as it has been used in so many different
meanings that it would hardly add clarity to it. In fact, scholars use the expres-
sions collective rights and group rights sometimes to mean the same, while
sometimes collective rights mean group-differentiated rights, jointly exercised
individual rights 10 or rights from erga omnes obligations.11 Looking at the more
recent literature on the topic, the notion of group rights seems to be used in a
slightly more stringent way and is, therefore, preferred here.12 Furthermore, the
8 See chapter 2.3.3.

9 Generally on this cf. M. Ragazzi, The Concept of International Obligations Erga
Omnes (Clarendon Press; Oxford University Press, Oxford, New York 2002).
10 See e.g., Y. Dinstein, Collective Human Rights of Peoples and Minorities, 25 Inter-
national and Comparative Law Quarterly (1976) 102, p. 103.
11 Cf. the discussion in N. Wenzel, Das Spannungsverhltnis zwischen Gruppen-
schutz und Individualschutz im Vlkerrecht (Max-Planck-Institut fr auslndisches
ffentliches Recht und Vlkerrecht Heidelberg, Berlin, Heidelberg 2008), pp. 2433;
examples of the notion collective rights as meaning what we refer to as group
rights, cf. H. Ketley, Exclusion by Defi nition: Access to International Tribunals for
the Enforcement of the Collective Rights of Indigenous Peoples, 8 International
Journal on Minority and Group Rights (2001) 331, p. 331; J. Crawford, The Rights
of Peoples: Peoples or Governments?, in J. Crawford (ed.), The Rights of Peoples
(Clarendon Press, Oxford 1988), p. 67; for the distinction between collective rights
and jointly exercised individual rights, see M. A. Jovanovi, Recognizing Minor-
ity Identities through Collective Rights, 27 Human Rights Quarterly (2005) 625, pp.
640642.
12 Cf. e.g., P. Jones, Group Rights and Group Oppression, 7 Journal of Political Phi-
losophy (1999) 353; P. Jones, Human Rights, Group Rights, and Peoples Rights,
21 Human Rights Quarterly (1999) 80; Jones, Cultures, Group Rights, and Group-
Differentiated Rights, supra note 4; Wenzel, Das Spannungsverhltnis zwischen
Gruppenschutz und Individualschutz im Vlkerrecht, supra note 11; T. M. Franck,
Individuals and Groups of Individuals as Subjects of International Law, in R. Hof-
mann (ed.), Non-State Actors as New Subjects of International Law: International
Law From the Traditional State Order towards the Law of the Global Community.
10 Chapter 1
term collective is also being used for further differentiation within what we call
group rights. In particular, Jones distinguishes between what he calls a collec-
tive and a corporate conception of group rights.13 However, both conceptions
are covered by our definition of group rights and as the further differentiation
does not add to the following discussion on the topic, it will not be further used.14
The identification of the right-holder has been viewed as unproblematic in
literature. However, this view will be challenged to some extent in the chapter
on group rights as legal rights. Some authors avoid these kinds of problems by
defining group rights as rights whose beneficiaries are groups. However, such an
informal definition bears the problem that it includes a variety of different types
of rights, e.g. group rights in our meaning, group-differentiated rights, and even
more additional individual rights, without delimiting them from other catego-
ries. In fact, the notion of a beneficiary of a right is not specialised and could, as
such, mean a variety of things. Who is to be seen as the beneficiary of the free-
dom of opinion and expression for example? One could reasonably argue for such
different things like individuals, society, political parties, publishing companies,
artists, art, the political system, and so on. Admittedly, scholars using such an
approach delimit the notion by adding that the beneficiary must be the collective
rather than its individual members.15 However, this does not solve the underly-
ing problem just shown, because in reality this definition does not provide any
reason why a certain group, like a publishing company for example, should be
regarded as the beneficiary of the freedom of opinion and expression rather than
its employees. Exactly because it is an informal notion, the legal logic of the cor-
porate veil does not apply here; hence, whoever is interested in the existence of
this right can accordingly be seen as a beneficiary of it. In other words, the termi-
nology of rather than implies an either or- situation which usually does not
exist in the case of beneficiaries of rights. Moreover, beneficiaries of group rights
are, even in very extreme communitarian approaches, by and large not only the
groups, but also their members. Hence, such a definition seems problematic and
will therefore not be used in this work. Admittedly, similar difficulties are also
Proceedings of an International Symposium of the Kiel Walther-Schcking-Institu-

te of International Law, March 25 to 28, 1998 (Duncker & Humblot, Berlin 1999), pp.
107109; H.-J. Heintze, Vlker im Vlkerrecht, in K. Ipsen (ed.), Vlkerrecht (5th
edn., Beck, Mnchen 2004), pp. 392393; E. Riedel, Gruppenrechte und kollektive
Aspekte individueller Menschenrechte, in W. Klin et al. (eds.), Aktuelle Probleme
des Menschenrechtsschutzes. Referate und Thesen (Mller, Heidelberg 1994).
13 Jones, Group Rights and Group Oppression, supra note 12; Jones, Human Rights,
Group Rights, and Peoples Rights, supra note 12.
14 However, this issue will be addressed in the discussion of moral agency of groups in
chapter 3.2.2 as, in that context, the distinction proves to be important.
15 An example of such a definition is, e.g., Ketley, Exclusion by Definition: Access to
International Tribunals for the Enforcement of the Collective Rights of Indigenous
Peoples, supra note 11, p. 331.
found in the discussion of right-holders when applying certain theories on the

concept of rights as will be shown in the following, albeit not as problematic.
Additionally, group rights in the meaning of this work are permanent and
as such distinct from affirmative action which by definition consists only of
timely, limited and transitional preferential measures. Affirmative action is about
achieving equality between groups; thus the underlying right is of non-discrim-
ination and in this sense the right of non-discrimination might be a group right,
but not the transitional preferential measures of affirmative action which consti-
tute rather a policy to achieve the result demanded by that right.16
Another crucial distinction will be drawn between group rights and human
rights. As this is rarely made and has resulted in a large amount of literature
influencing how we think of group rights in general, this will be discussed in
chapter 3.2.4 in more detail.
The focus of this work will be on a specific kind of group rights. It is based
on the influential categorisation by Crawford17 who lightly revises and adds one
category to Siegharts compilation of collective rights.18 He uses the following
seven classes of what he calls peoples rights and divides them into two more
general categories: the category of group rights on existence and cultural or po-
litical continuation of groups (right of groups to exist, self-determination and
equality of rights, and rights of minorities) and the [m]iscellaneous category of
group rights on economical development and the coexistence of peoples (includ-
ing rights relating to international peace and security, permanent sovereignty
over natural resources, rights in relation to development, and rights in relation to
the environment).19 According to Crawford, the second category is substantially
new and in most cases embryonic;20 therefore, the focus of this work will be on
his first category of group rights connected with the existence and cultural or
16 On the principle of non-discrimination, see chapter 2.3.

17 Crawford, The Rights of Peoples: Peoples or Governments?, supra note 11, pp.
5658; another influential list of group rights is the one by Natan Lerner who lists
the following examples: 1. the right to existence, 2. the right of non-discrimination,
3. the right to the preservation of the identity of the group, 4. the right to special
measures needed for the maintenance of the identity of the group, 5. the right to de-
cide who is entitled to membership in the group and the conditions for maintaining
that membership, 6. the right to establish institutions, 7. the rights to communicate,
federate and cooperate with similar groups, 8. some rights to representation in the
different branches of government, 9. the right to impose duties upon the members
of the group, 10. the right (of some groups, in certain conditions) to the recognition
of their legal personality, and 11. the right of self-determination. See Lerner, Group
Rights and Discrimination in International Law, supra note 5, pp. 3941.
18 P. Sieghart, The International Law of Human Rights (Clarendon Press, Oxford, New
York 1983), pp. 367378.
19 See Crawford, The Rights of Peoples: Peoples or Governments?, supra note 11, pp.
5657.
20 Ibid., p. 58.
12 Chapter 1
political continuation of groups as this category not only seems to cover most of
the group rights that are claimed to exist but also the ones which are connected
most closely with governance of multicultural states in general.
1.1.2. Group Rights and the Concept of Rights

To discuss group rights means to tackle a variety of different problems. On the
following pages, the focus will lie on the concept and conceptions21 of rights and
of groups as possible right-holders. It makes sense to take a closer look at legal
theory and to clarify the terminology of group rights as it is the conceptual basis
of the discussion to follow. Moreover, the discussion of the main conceptions of
rights is crucial in order to understand some of the objections to the concept of
group rights, as some authors argue that it is impossible to understand groups as
right-holders for conceptual reasons.22 Again, the lack of clear definitions in this
regard have caused some confusion on group rights while, in fact, its discussion
is crucial for any attempt to give a realistic view of its existence and importance
in international law.
What is a right according to the concept of rights? Can a group, according
to the concept of rights, be the right-holder? Answers to these questions differ in
legal theory. Before discussing substantive reasons against the concept of group
rights in the following chapters, it is the aim of this part to show that theories
which reject group rights on conceptual grounds are unconvincing as they un-
derestimate the flexibility of the concept of rights as a tool amenable to describ-
ing different social realities. However, the distinction between legal theories that
reject group rights for conceptual reasons and those which do it for substantive
reasons is artificial and only of pedagogical use. Nevertheless, it is necessary to
discuss the main conceptual arguments against this category of rights as it would
be difficult to appraise them from a legal perspective if group rights were im-
possible for reasons relating to the concept of legal rights. Moreover, the main
21 The word conception is used in this work as a subjective creation of/and opposite
to the objective concept; conceptions try to capture the concept (as accurately as
possible), their relation is like that of theory to reality. In this sense I understand
Rawls use of it: [I]t seems natural to think of the concept of justice as distinct
from the various conceptions of justice Those who hold different conceptions
of justice can still agree that institutions are just when no arbitrary distinctions
are made between persons in the assigning of basic rights and duties and when the
rules determine a proper balance between competing claims to the advantages of
social life. Men can agree to this description of just institutions since the notions of
an arbitrary distinction and of a proper balance, which are included in the concept
of justice, are left open for each to interpret according to the principles of justice
that he accepts. J. Rawls, A Theory of Justice (2nd edn., Belknap Press of Harvard
University Press, Cambridge MA 1999), p. 5.
22 E.g., Carl Wellman who discusses groups as alleged right-holders, see C. Wellman,
Real Rights (Oxford University Press, New York 1995), pp. 173177.
disagreement with many of the legal theories discussed below centres on where
to appropriately draw the line between the conceptual and substantive spheres.
To paint with an overly broad brush, the many views on rights fall into the
following schools: the choice theory, the interest theory and the justified-con-
straint theory.23 Therefore, after a short introduction to the theory on rights with
the locus classicus by Hohfeld, the views of each theory will be discussed.
The Hohfeldian Analysis

With his analysis of the concept of rights as used by judges, published in the Yale
Law Journal in 1913 and 1917,24 the American legal theorist Hohfeld created the
base for most of the following theories on the topic. Notably, the terminology that
he introduced has been widely adopted by subsequent legal theorists. His analysis
is usually seen more as a stipulation of how the term right should be used rather
than how it is really used. In his analysis, Hohfeld argued that there were four
ways to use the term right: as claims, liberties (he used the term privileges),
powers or immunities. He presented these together with their logical equivalents,
their correlatives: claim/duty, liberty/no-claim, power/liability and immunity/
disability. Additionally, he presented the four kinds of rights with their logical
contradictories, their opposites: duty/liberty, claim/no-claim, power/disability
and liability/immunity. In conclusion, this means that according to his analysis,
legal relationships inevitably have three variables, A has x to/against B,25 and that
even the most complex legal relationships can be reduced to some combination
of individual parties. All in all, this classical analysis leaves the question open as
to who could be a possible right-holder, or in other words, no conceptual implica-
tions on who could be a right-holder are seen from this perspective; consequently,
groups could, theoretically speaking, have rights.26 Moreover, the analysis does
not provide information on the content of rights; this is left open to the lawmaker.
23 It is important to note at this point that these theories are artificial and more an at-
tempt to reduce complexity and concentrate on the main points of the huge variety
of theories related to those schools. However, it is clear that theories of authors from
these schools are by far more complex and subtly differentiated.
24 W. N. Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Rea-
soning, 23 Yale Law Journal (1913) 16; and W. N. Hohfeld, Fundamental Legal Con-
ceptions as Applied in Judicial Reasoning, 26 Yale Law Journal (1917) 710.
25 Or more detailed in the words of Rainbolt: X has a [relation] with respect to Y that
Z do A. X is the subject of the relation, Y is the object of the relation and Z is subject
of the content of the relation. G. W. Rainbolt, The Concept of Rights (Springer, Dor-
drecht 2006), p. 11.
26 Cf. W. A. Edmundson, An Introduction to Rights (Cambridge University Press,
Cambridge UK, New York 2004); according to George W. Rainbolt this question
is controversial, but unfortunately he does not provide any examples for this
observation. See Rainbolt, The Concept of Rights, supra note 25, p. 5; a plea for a
collective-friendly form of the Hohfeldian approach in the context of international
14 Chapter 1
The Choice Theory

The choice theory (or will theory) emphasises the power of choice of the right-
holder and his control over the correlative duty of a person, his power to claim
performance or remedy for non-performance. Hence, rights are seen as protect-
ed choices.27 This understanding of rights can be traced back to Windscheid,28
von Savigny or even Kant and was advocated prominently by Hart.29 The choice
theory can show how strong the power of the right-holder of a legal right is and
how different his position is to that of someone who has only a moral right.30
Therefore, it can draw a clear line between legal and moral rights. It can also ac-
count for the relational nature of rights. However, it has some serious flaws when
it comes to duty rights,31 rights of children or inalienable rights. Is it for example
from a conceptual point of view nonsensical to speak of human rights if a hu-
man being has no mental capability to make a choice? This would be very much
counterintuitive and a theory on the concept of rights that comes to such conclu-
sions can only be limited in its explanatory force.
According to the choice theory, the only requirement that right-holders have
to fulfi l is that they are theoretically capable of a choice. This requirement may
close the door for minor children as they can be seen as not capable of making
a choice, but not for groups as long as they can organise themselves in a way in
which they are able to make a choice collectively. Therefore, according to this
theory, the problem of a group to be considered a right-holder would be of a more
political or organisational nature, rather than a conceptual one.
law can be found in J. R. Morss, The Legal Relations of Collectives: Belated Insights
from Hohfeld, 22 Leiden Journal of International Law (2009) 289.
27 Cf. H. L. A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory
(Clarendon Press, Oxford 1982), pp. 162193.
28 Beide Arten der subjectiven Rechte umfasst die Definition: Recht ist eine von der
Rechtsordnung verliehene Willensmacht oder Willensherrschaft. B. Windscheid,
Lehrbuch des Pandektenrechts (9th edn., Rtten & Loening, Frankfurt am Main
1906), p. 156.
29 However, the enumeration of authors belonging to a certain school has to be taken
cautiously as it is very generic and accounts for neither the differences between them
nor the fact that some of the scholars have also changed their positions in terms of
the mentioned schools in the course of time.
30 Think of the small scale sovereign as presented by H.L.A. Hart in H. L. A. Hart,
Essays on Bentham, supra note 27, p. 183.
31 Examples of duty rights are the right to vote in countries where it is illegal not to
vote or the right of a judge to impose a sentence, as George W. Rainbolt has argued.
See Rainbolt, The Concept of Rights, supra note 25, pp. 3438.
The Interest Theory

A much broader understanding underlies the interest (or benefit) theory advo-
cated by Bentham, Jhering, MacCormick and Raz, to name but a few. Whether
one can speak of someone having a right or not can be answered by the defini-
tion proposed by Raz: X has a right if and only if X can have rights, and, other
things being equal, an aspect of Xs well-being (his interest) is a sufficient reason
for holding some other person(s) to be under a duty.32 Hence, according to this
approach rights are interests that are sufficiently important to be legally and/or
morally protected, and the right-holders are beneficiaries of a legal duty of some-
one else. Therefore, the justification of rights through this theory is, in the end,
the protected well-being of the right-holder. Again, the interest protected is not
based on whatever interest the right-holder has in a concrete situation but rather
on the typical interest a right-holder has in such a situation according to the un-
derstanding of the legislator.33 The strength of the interest theory is that it covers
a broader range of rights than the choice theory does. For instance, childrens
rights, duty rights or inalienable rights are much better explained by the inter-
est theory than by the choice theory because it is hard to see in these cases an
important role for the decidedly central feature of choice. On the other hand, its
broadness is also a weakness of the interest theory as it tends to blur the distinc-
tive nature of legal rights.
For the question of whether groups can be right-holders in the view of this
theory, the question has to be whether a groups interest is a sufficient reason for
holding some other person(s) to be under a duty. This question can be seen as a
political one for the lawmaker or (for some, in the case of basic rights) a question
of natural law, but, overall, it is a substantive rather than a conceptual question.34
In other words, the concept requires a sufficient interest but puts no conceptual
boundaries on the question of who could be the owner of an interest. Thus, the
possibility of groups as right-holders exists generally according to this theory as
well.
The Justified-Constraint Theory

This conception of rights, based on a neo-Hohfeldian analysis of rights, differs
with regard to the interest and choice theories in that it focuses on the norma-
32 J. Raz, The Morality of Freedom (Clarendon Press; Oxford University Press, Oxford,
New York 1986), p. 166, footnotes omitted.
33 Typical interest is my translation which conveys the general sense of the expres-
sion Durchschnittsinteresse used by Hans Kelsen. Cf. on this H. Kelsen, Allgemeine
Staatslehre (Julius Springer, Berlin 1925), pp. 5556.
34 Cf. J. Waldron, Taking Group Rights Carefully, in G. Huscroft and P. Rishworth
(eds.), Litigating Rights: Perspectives from Domestic and International Law (Hart,
Oxford, Portland 2002), p. 203.
16 Chapter 1
tive constraints that rights put on one another as an essential conceptual feature
and that these constraints are owed to the right-holder. By focusing on the duty-
bearer this theory avoids the requirement of choice or interest of possible right-
holders.35 Parallel to the argument that any present individual can have rights, the
justified-constraint analysis accepts the view that groups can have rights. Its only
requirement for a right-holder is that it can be the object of an obligation and this
in turn depends on whether a particular rule system picks out a feature of that
thing as a positively relevant feature Restrictions on group rights are placed,
not by the concept of rights, but by the substantive normative statements of the
rule system.36 Thus, there are no conceptual reasons against group rights from
this perspective either.
Conceptions with Additional Requirements

Some legal philosophies, even though committed to the choice or the interest
theory, differ from the given general overview in that they set additional condi-
tions for right-holders: according to Wellman, a right-holder needs to be an agent
and capable of making choices,37 according to Raz, it has to be a moral agent,
and according to Feinberg it has to have the mental state needed for purposive
behaviour,38 while others demand the capability of being sentient. The reasons for
such additional requirements differ, but are sometimes related to the more ho-
listic approach the scholars take to the question of what rights are. In particular,
some do not start their analysis exclusively with legal rights and do not limit their
analysis to legal rights but approach rights in their generality, covering legal
rights as well as moral rights.39 As an example, think of the above mentioned
definition by Raz, especially the part if X can have rights. Raz continues with
a definition of the capacity for possessing rights: An individual is capable of
having rights if and only if either his well-being is of ultimate value or he is an
35 In fact, as George W. Rainbolt argues, structurally there is a parallel between the

interest theory and the choice theory: The choice theory at least seems to imply
that beings that cannot choose cannot have rights. The interest theory at least seems
to imply that beings that do not have interests cannot have rights. Rainbolt, The
Concept of Rights, supra note 25, p. 104.
36 Ibid., p. 198.
37 In his words, he does not want to give an answer to the question of who ought to be a
right-holder, but he wants to give the answer to the question: What kinds of beings
could be right-holders consistent with the best theory of rights? Wellman, Real
Rights, supra note 22, p. 176.
38 Cf. J. Feinberg, The Rights of Animals and Unborn Generations, in J. Feinberg,
Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton
University Press, Princeton NJ 1980).
39 For a general discussion see Rainbolt, The Concept of Rights, supra note 25, p. 208.
artificial person (e.g. a corporation).40 Accordingly, the Razian right-holders are

moral agents with interests of ultimate value41 or artificial persons.42
All these additional conditions limit the circle of possible right-holders and
put the focus on what usually is seen as the main characteristics of a right-holder
in opposition to a non-right-holder. This approach seems questionable for two
reasons. Firstly, the question of who should be a right-holder is a substantive ques-
tion and has arguably nothing to do with the concept of rights itself. Secondly,
but connected with the first reason, the proposed requirements are misleading
and sometimes close to being circular arguments.
Let us explore this in more detail. For the first criticism it is worth not-
ing that the discussion of rights is connected very closely to the one on law.43
Actually, rights derive from law and are legal entitlements of the right-holder
in a concrete situation; Bucher calls this relation a Delegationssachverhalt,44
i.e. the law as a normative system delegates a right to the right-holder to cre-
ate certain obligations for the duty-bearer. Hence, according to this view the
question on who should become a right-holder is one that has to be answered by
the legislator,45 as there is no conceptual question of rights. Indeed, a legal right
is a Rechtsform, a legal form, and has to be distinguished from its content, the
Rechtsinhalt.46 In fact, the concept of rights stays the same if you change from the
40 Raz, The Morality of Freedom, supra note 32, p. 166.

41 Joseph Raz provides the following explanation of what he understands by interests
of ultimate value: Being of ultimate, i.e. non-derivative, value is being intrinsically
valuable, i.e. being valuable independently of ones instrumental value. Something
is instrumentally valuable to the extent that it derives its value from the value of its
consequences, or from the value of the consequences it is likely to have, or from the
value of the consequences it can be used to produce. Having intrinsic value is be-
ing valuable even apart from ones instrumental value. But not everything which is
intrinsically valuable is also of ultimate value. Ibid., p. 177, footnotes omitted.
42 The appendage of artificial persons is interesting in our context; if a group has a
right under a certain legal regime, would this not mean that it is at least considered
an artificial person for that law? In other words, this appendage could open the door
for groups to be included in the right-holders according to the Razian view as well.
43 Moreover, many languages do not even distinguish the two terminologically and
have to add the adjective subjective as opposed to objective law.
44 E. Bucher, Das subjektive Recht als Normsetzungsbefugnis, Habilitationsschrift Uni-
versitt Zrich (Mohr Siebeck, Tbingen 1965), p. 56.
45 It is interesting in this regard that legislator means literally bearer of the law.
However, from a human rights perspective (and actually also from a natural law
point of view) the choice of who has to be accepted as a right-holder is restricted in
the way that human beings have to be recognised as right-holders in the case of hu-
man rights (and/or natural rights).
46 In this sense, e.g., Bucher, Das subjektive Recht als Normsetzungsbefugnis, supra
note 44, pp. 3638.
18 Chapter 1
law of one state to another; only the content of rights changes.47 Thus, proposed
conceptions of rights should keep the conceptual door open for different views
of different lawmakers. Rainbolt seems to agree on this view when he considers
it an advantage of the justified-constraint theory of rights over other theories
that it does not make a conceptual connection between rights and some par-
ticular feature of presently existing things (i.e., interests, choices or wills). Again,
he argues similarly to the argumentation here that the question of whether or
not a particular presently existing thing has rights is a substantive matter and
depends on substantive matters.48 The concept of rights is, according to this
understanding, impartial (wertfrei 49) and the circle of right-holders has to be
defined by the lawmaker.50
For the second (and related) point we can assume for a short while that we
agree on the proposed restrictions for right-holders in the above mentioned con-
ceptions of rights. In that case, we have to ask ourselves if groups can meet these
requirements; hence, can groups be seen as agents capable of making choices?
Are they moral agents? Do they have the mental state needed for purposive be-
haviour? Are they sentient? These questions seem very difficult to answer and
create new problems: What is an agent? What is a moral agent? What is the men-
tal state needed for purposive behaviour when thinking of groups? Would it be
enough if a groups members were sentient or would the group as such have to
be sentient? Can a group be sentient at all? Reflecting on these questions ignores
the main issue. Indeed, the additional requirements seem to be created from the
expected results of the concept of rights, and built into its conceptions: the adult
human being (and the sentient animal) seems to be the classical starting point,
while stones and plants should be excluded from the possibility of having rights.
The requirements fit in these cases. Hence, if a group should not be a right-holder
in the view of the creator of a conception of rights, his conception will not allow
it. In other words, what we call a right depends on why we want to call something
a right.51 Our expectation is self-fulfi lling, the argumentation close to circular.
Ultimately, the discussion of these topics brings our thoughts further away from
the legal concept of rights and more into metaphysical questions on morality
47 See generally ibid., p. 40.

48 Rainbolt, The Concept of Rights, supra note 25, p. 198.
49 Bucher, Das subjektive Recht als Normsetzungsbefugnis, supra note 44, p. 40.
50 This might be seen as a very positivistic view. Think of the case where a lawmaker
would give no right to any human being at all, or only to some few, or only to the
dead for example. Indeed, this would truly be opposite to law. However, the point
here is that such an Un-Rechtsstaat is incompatible with (human rights) law for nor-
mative reasons and not for reasons such as the concept of rights.
51 I am paraphrasing Lawrence M. Friedman here: What we call law depends on why
we want to call something law. L. M. Friedman, Coming of Age: Law and Society
Enters an Exclusive Club, 1 Annual Review of Law and Social Science (2005) 1, p. 3.
and the normative content of rights.52 Nevertheless, the discussion of the moral
agency of groups for example is an important one in the literature on group rights
and discussed for good reasons, but it seems plausible that these reasons are con-
nected with the question of the ought of a right, its content rather than with the
concept of rights as such.53 In conclusion, we can agree with Waldron who writes:
There is no logical difficulty with the idea of group rights if there are rea-
sons for opposing talk of group rights in general (or specific claims about group
rights), or for insisting that they be reduced to the rights of individual men and
women, they are not analytical reasons. 54
Conclusions
Indeed, it seems unconvincing that it is conceptually impossible for groups to be
right-holders.55 The only requirement that right-holders have to fulfi l following
the choice theory is that they are theoretically capable of a choice. Th is require-
ment, as discussed, may close the door for children but not for groups. The prob-
lem for a group to be considered a right-holder according to this theory would be
more a political or organisational issue, rather than a conceptual one. Looking
to the interest theory, a similar point can be made. A right-holder according to
this theory must have an interest that is a sufficient reason for holding some other
52 As the moral agency of groups is no precondition for legal group rights, the topic to
be inquired in this work, it will be refrained in this work from an in-depth-analysis
of this question.
53 Maybe we could even go a step further and argue that conceptions or rights can
generally not give a conclusive answer to the question of right-holders. (Cf. e.g. the
explanations by Carl Wellman on the scope of his conception of rights, C. Wellman,
An Approach to Rights: Studies in the Philosophy of Law and Morals (Kluwer Aca-
demic Publishers, Dordrecht, Boston 1997), pp. 2930.) For instance, if a lawmaker
would provide group rights, would the hypothetical fact that a group could not meet
the proposed requirements of a conception of rights hinder them from becoming
in reality right-holders? This is doubtful as conceptions of rights try to explain the
concept of rights in as close a way to reality as possible. Hence, if group rights did
exist they would have to be reflected in conceptions of rights rather than be changed
in reality because of not fitting such conceptions.
54 Waldron, Taking Group Rights Carefully, supra note 34, p. 203.
55 Moreover, it is also unconvincing from a conceptual point of view that the word
right would change its meaning in the combination of group rights as Fernando
R. Tesn argues: [M]y point is that the meaning of the word right in the expres-
sion collective rights is different in crucial ways from the meaning of the same
word when talking about individual rights. In fact, it is precisely the opposite. F.
R. Tesn, Ethnicity, Human Rights, and Self-Determination, in D. Wippman (ed.),
International Law and Ethnic Conflict (Cornell University Press, Ithaca NY 1998),
pp. 102103. In fact, certain features of rights may be stronger in certain legal fields
and weaker in others, but, as argued before, the concept nevertheless remains stable;
hence, it is logically impossible that a concept turns into its opposite.
20 Chapter 1
person(s) to be under a duty. If one does not go a step further to demand a right-
holder to be a moral agent or similar, as some philosophers who are in favour of
this theory do, there seems to be nothing that could hinder groups from being
right-holders according to this theory too. According to the justified-constraint
theory there is no conceptual problem with group rights.
1.1.3. The Third-Party Beneficiary and the Criminal Law Problem

In this short section two cases need to be addressed which the above mentioned
main schools of legal rights both like to discuss as important ones. The discussion
here will be at a more general level as more concrete examples, like the question
of who is the right-holder in the Genocide Convention, will be discussed more
in-depth later on. The Genocide Convention is considered by advocates of group
rights as a classical group right in international law as it protects certain groups
in their (physical) existence; however, according to our working definition of
group rights this could only be true if the groups could be seen as the right-hold-
ers of the rights provided by the Genocide Convention. The situation of the group
in the Genocide Convention could be understood as the third-party beneficiary
of a contract between states or as a victim of a crime as defined in international
criminal law. Overall, the question of who can be seen as the right-holder in the
third-party beneficiary situation, as well as in criminal law, has been disputed
between the mentioned schools on the concept of legal rights.
A common problem of legal theory is the question of who should be consid-
ered the right-holder in third-party beneficiary cases. Indeed, if A promises B to
pay C an amount of money who should be regarded as being the right-holder?
According to the choice theory, the main feature of a right-holder is that he can
claim/waive an obligation; in the given case, this would mean that B is the right-
holder as A promised him to pay. Opposed to this, the interest theory focuses
on whose interest is being protected; in this case, this would be C as he is the
one to receive the payment, thus, C would be the right-holder. Hence, the two
main schools on the concept of rights disagree. In Rainbolts words, [u]nfortu-
nately the ordinary language of rights does not come down firmly on either
side.56 Based on the justified-constraint theory of relational obligation which he
is pleading for, he argues that the interest theory and the choice theory
do not correctly draw the line between conceptual and substantive matters. In the
justified-constraint conception of rights, the debate over the third-party beneficiary
case is a substantive dispute over which individual features justify obligations in the
rule system in question. It is not a conceptual dispute over the nature of relational
obligation.57
56 Rainbolt, The Concept of Rights, supra note 25, p. 153.

57 Ibid.
Consequently, his justified-constraint theory
is neutral on the third-party beneficiary case. It is perfectly possible to write a legal

rule system that implies that [B] has the right, to write a legal rule system that im-
plies that [C] has the right, or to write a legal rule system that implies that both of
them have the right.58
In fact, this seems to be the most logical consequence if we do not want to exceed
the conceptual implications of rights and argue that only one of the mentioned
legal rule systems can be right from a conceptual point of view. Thus, the many
cases in legal reality that are unclear on who the legal rule system wanted to im-
ply/implies a right cannot be solved on a conceptual level, but must be examined
on the often more complex substantive level. Articles on group rights commonly
decide (explicitly or implicitly) to consider only the interest or the choice theory
in such cases; they rest on a weak basis and are consequently of limited explana-
tory power.
Another similar problem concerns criminal law. Criminal law is, in that
sense, similar to the discussed third-party beneficiary situation as the victim of
a crime, although not being a beneficiary of criminal law, is still especially in-
terested in the sentencing and punishment of the criminal. However, the choice
theory implies that the one who violates criminal law does not violate the legal
rights of his victim as, according to this view, it is the state that has the power to
bring legal action against the criminal. This view is counterintuitive and uncon-
vincing for different reasons.59 First, imagine a crime against the physical integ-
rity of human beings, e.g. the human right not to be tortured. The reason for it
to be part of criminal law in most known legal systems from a certain degree on
is that it is considered such a grave attack against human integrity and dignity
that it is separated from civil law and therefore withdrawn from free personal
disposition over it. In other words, the core (not meant technically) of this right
is considered of such great importance for a person that he would not even have
to claim the right himself, but the state would do it for him directly; moreover,
the power to make such a claim is withdrawn from the person exactly to secure
his right in every circumstance. Hence, the view that such core rights of a person
should not be considered as the right of this person is arguably absurd. Second,
this is also expressed in everyday language when persons claim that their rights
have been violated by a criminal act, think of a raped woman who claims that the
attacker has violated her rights for example.60 Third, as Rainbolt argues, we could
imagine a country that knows only criminal law which counter-intuitively would
mean that, in Wellmans and Harts view, this country would not provide any
58 Ibid.
59 For a criticism of Carl Wellman and H.L.A. Hart on this point, see ibid., pp. 102103.
60 This argument is made by George W. Rainbolt, see ibid.
22 Chapter 1
legal rights.61 Thus, it is much more convincing that also criminal law can provide
rights for persons and that, hence, victims of criminal acts are rightly considered
legal right-holders.62
To which of the two described situations should we count international
criminal law then? Even though it is correct that it is the states who sign an in-
ternational agreement on the topic and it is often a private person or group of
persons who are being protected, the argumentation is actually the same as for
criminal law in general: victims are not just beneficiaries of the system, but are
specially interested in its function, and it is the importance of their rights which
made the states agree on protecting them in this way. Thus, the victims of a crime,
according to international criminal law, are correctly seen as right-holders.
1.1.4. Rights as Rules and Principles

Another issue that needs clarification before analysing international law is how
to understand the relationship of rights, rules and principles. As we will see, this
differentiation is needed as, for example, the right to self-determination is often
called a principle as well as a right in the meaning of rule. In this work the
concept of rights is understood as including both principles as well as rules.
It is enough for the purposes of this work to use the term principle to mean
a general norm from which rules need to be deducted to become applicable in
concrete cases as this distinction is mainly needed to clarify the different func-
tions of principles compared to rules. In this context Hart has argued that
there are at least two features which distinguish them from rules. The first is a mat-
ter of degree: principles are, relatively to rules, broad, general, or unspecific, in the
sense that often what would be regarded as a number of distinct rules can be exhib-
ited as the exemplifications or instantiations of a single principle. The second feature
is that principles, because they refer more or less explicitly to some purpose, goal,
entitlement, or value, are regarded from some point of view as desirable to maintain,
or to adhere to, and so not only as providing an explanation or rationale of the rules
which exemplify them, but as at least contributing to their justification.63
61 See ibid., p. 102.

62 This is the result of following the justified-constraint theory as it does not see the
power to claim a right as part of a right, ibid., p. 148. The same result is reached fol-
lowing the interest theory as it is the protected interest of the victim that is at issue.
63 H. L. A. Hart, The Concept of Law, with a postscript edited by Penelope A. Bulloch
and Joseph Raz (2nd edn., Clarendon Press, Oxford et al. 1998), p. 260. However, this
would be a field which would need more reflection if the proposed approach was
taken and would be applied in a systematic way and international law would take a
constitutional function in this field. A useful approach could then be the one pro-
posed for constitutional law by Robert Alexy. See R. Alexy, Theorie der Grundrechte
(1st edn., Suhrkamp, Frankfurt am Main 2006).
It is important to notice in this context that legal rights as rules can derive from
legal principles in concrete situations; in other words, if a principle on which X
would have a right to Z is applicable and prevails over other principles or rules in
a specific situation, X has a legal right to Z in this case.64 Furthermore, in Alexys
terms, principles are optimisation commands which include an ideal ought
which is necessarily connected with an optimisation command as a rule;65 in fact,
this connection of rule and principle is intrinsic to the very concept of a princi-
ple.66 Accordingly, where a legal principle is ignored when it is applicable, or un-
justifiably outweighed amounting to largely the same, this amounts to a breach
of law as the optimisation command as a rule has not been followed. In fact, this
is one of the misunderstandings which misguide the discussion on group rights
as they will often derive from legal principles as discussed here. Hence, it is mis-
leading to understand legal rights exclusively as quite specific legal entitlements
which apply equally in all similar circumstances as used by Weller when con-
cluding his inquiry on the settlement of self-determination disputes:
The approach of international constitutional law can best help us conceptualize these
developments. However, it is necessary to distinguish between conceptual explana-
tion of observed phenomena and legal rights. The former help us to understand how
and why new developments are taking place, and what effect these developments
may have on the international system in the longer term. This understanding will
also affect emerging patterns of practice of the future. But it is a different matter to
ask whether these developments have already resulted in quite specific legal entitle-
ments which apply equally in all similar circumstances.67
What seems to be missing here is the principle-dimension which rights can have.
Indeed, the developments Weller refers to could reflect and clarify the legal prin-
ciples on the basis of which cases are being solved, which in certain circumstanc-
es might prevail over other principles and give a group a certain right.
1.1.5. Rights and the Problem of Coercion in International Law

So far, one characteristic element of rights has not been touched upon. In fact,
what many scholars have emphasised as a main difference of legal norms com-
pared with other norms (e.g. moral norms) is that legal norms are enforceable
64 Cf. ibid., p. 88.

65 See R. Alexy, On the Structure of Legal Principles, 13 Ratio Juris (2000) 294, p. 301.
66 See A. Peczenik, On Law and Reason (2nd edn., Springer, Oxford 2009), p. 64.
67 M. Weller, Settling Self-determination Conflicts: Recent Developments, 20 Euro-
pean Journal of International Law (2009) 111, p. 165.
24 Chapter 1
through a specific mechanism and are backed with coercion.68 International law
does not fit into this way of thinking and has therefore been questioned as to
whether it can be justifiably called law.69 Alternatively, Kelsen has suggested
maintaining the connection between law and coercion while still acknowledg-
ing the legal nature, albeit a very primitive one, of international law; in fact, he
interpreted war in a rather questionable way as the sanction of international law,
notwithstanding that such a sanction is not from the legal system but from the
violated state.70 Today, such a view that war is the element that makes interna-
tional law law can only irritate.71 Among others, it is Hart who has criticised the
conception of law as essentially an order backed by threats.72 With regard to
international law as a legal order where a centrally organised system of sanctions
is absent, he observed that its rules are thought and spoken of as obligatory,73
that there is general pressure for conformity to the rules,74 and that claims and
admissions are based on them and their breach is held to justify not only insistent
68 A locus classicus of this argumentation is J. Austin, The Province of Jurisprudence

Determined: And The Uses of the Study of Jurisprudence, with an introduction by
H.L.A. Hart (Weidenfeld and Nicolson, London 1954).
69 John Austin for example comes from his understanding of law to the conclusion that
international law (or, in his words, the law of nations) is not law, properly under-
stood; instead, he calls it positive morality. Ibid., p. 142.
70 The original argumentation by Hans Kelsen reads: Indes gibt es auch Vlkerrechts-
stze, die unmittelbar das Verhalten bestimmter Menschen bestimmen und auch
tatschlich unter eine spezifische Sanktion stellen. Diese Sanktion ist der Krieg. Er
ist auch auf vertragswidriges Verhalten gesetzt und so vertragsmiges Verhalten
zur spezifischen Vlkerrechtspflicht gemacht. Da dieser Zwangsakt nicht von be-
sonderen, zu seiner Realisierung ausschlielich befugten Organen, sondern von
dem in seinen Interessen, seiner Ansicht nach, rechtswidrig verletzten Staat und
daher ohne ein den Unrechtstatbestand objektiv feststellendes Verfahren zu setzen
ist, das ist zweifellos ein rechtstechnischer Mangel des Vlkerrechts, das eben da-
rum als ein hchst primitives Recht gelten mu. Aber es ist kein Grund, dem Vl-
kerrecht den Rechtscharakter abzusprechen; wenn nur feststeht und daran kann
nicht gezweifelt werden da der Krieg im Sinne der ihn statuierenden Normen des
Vlkerrechts nur als Reaktion gegen eine Vlkerrechtsverletzung, d. h. unter ganz
bestimmten, vom Vlkerrecht gesetzten Bedingungen zulssig ist. Kelsen, Allge-
meine Staatslehre, supra note 33, pp. 125126.
71 In light of the current trend of international law to restrict power, Malcolm N. Shaw
for example has argued, such an argumentation would lead to the absurd result that
the more force is controlled in international society, the less legal international law
becomes. M. N. Shaw, International Law (6th edn., Cambridge University Press,
Cambridge 2008), p. 5.
72 Hart, The Concept of Law, supra note 63, p. 218.
73 Ibid., p. 220.
74 Ibid.
demands for compensation, but reprisals and counter-measures.75 Moreover, he

noted that [w]hen the rules are disregarded, it is not on the footing that they are
not binding; instead efforts are made to conceal the facts.76
In the same vein, Judge Weeramantry elucidated in his separate opinion in
of Genocide that the legal obligation to comply with an order must be strictly
separated from the question of enforceability.77 Moreover, he revealed that in
international law the Austinian view that a sanction is necessary to the exist-
ence of a rule of law, or of a legal prescription, has always been particularly
inappropriate.78 By and large, coercion has been seen as closely interconnected
with law;79 however, as both the case of international law in general but also in-
ternational human rights law more specifically show, it is not convincing to view
coercion as the decisive element to define law. The power of law has always had
to do with its felt legitimacy which is connected to its underlying consent on
values and process. For international law this aspect seems to be of much more
importance than coercion.80
75 Ibid.
76 Ibid. This last argument seems to echo Immanuel Kants argumentation in his Per-
petual Peace (Zum ewigen Frieden) where he points to the fact that kings who
engage in war traditionally refer to some kind of legal or moral justification and as
such at least implicitly acknowledge that war is an exception from the rationally
preferred peace and as such needs justification.
77 As the lack of mechanisms for enforceability sometimes clouds discussions of the
binding nature of the orders of this Court, a consideration of the binding nature
of provisional measures must start with the clear distinction that exists between
the question of the legal obligation to comply with an order and the question of its
enforcement. The fact that an order cannot be enforced does not in any manner af-
fect its binding nature, for the binding nature of an order is inherent in itself. It im-
poses a positive obligation recognized by international law. Whether such an order
is complied with or not, whether it can be enforced or not, what other sanctions lie
behind it all these are external questions, not affecting the internal question of in-
herent validity. Weeramantry (Separate Opinion), Application of the Convention on
the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia (Serbia and Montenegro)), 13 September 1993, ICJ, Further Requests
for the Indication of Provisional Measures, Order, ICJ Reports 1993, p. 370, at p. 374,
footnotes omitted.
78 Ibid., p. 375.
79 In fact, law is the justification (and limit) of the exercise of coercive power by the
state. Cf. e.g. R. M. Dworkin, Laws Empire (Belknap Press of Harvard University
Press, Cambridge MA 1995), p. 190.
80 For a general discussion of sources of power of international law other than coer-
cion, see T. M. Franck, The Power of Legitimacy among Nations (Oxford University
Press, New York 1990).
26 Chapter 1
1.1.6. Group Rights as a Legal Category A Paradox?

There is something paradoxical about group rights as a distinct category of
rights. Actually, if we asked who is the right-holder of a group right the answer
would be the group. However, the thing which seems to make this answer rev-
olutionary is that the right-holder is not one person, but several. Indeed, this
becomes more obvious when using collective rights as a synonym for group
rights. For this reason, the idea of a collective as right-holder has created some
discussions as shown before. There is reason to take a different look at it. That is,
from a legal point of view, the answer the group as the right-holder means noth-
ing more than that the entity called the group is viewed and treated as the one
single legal person who bears the right. In fact, if group rights are acknowledged
it would, from a legal point of view, not mean that its right-holder constitutes
a collective, but that a collective is accepted as a (single) legal person. In other
words, groups as right-holders are not collectives in the view of law but single
persons. In fact, their collective dimension is an internal affair which in a way is
ignored by law.81 So in the end, what distinguishes group rights from other legal
categories of rights is that its right-holder is a group and not a collective or an
individual.82 Hence, when states discuss if groups are/should be provided rights
in international law, they basically discuss if certain groups have been/should be
recognised as right-holders. Usually, this discussion follows the vocabulary of
legal personality and, accordingly, the question is if groups are/should be con-
sidered legal persons of international law. We will turn to that topic in the next
sub-chapter.
Admittedly, this understanding of group rights contrasts with the positions
taken by some other scholars in the field. Most recently, Jovanovi has argued
that groups having rights differ from juristic persons, such as corporations, in-
sofar as their reality is not de jure, but de facto.83 He refers to Kis who argues that
internal and external group recognition is simply given and that, in contrast to
corporations/associations, to constitute a group no association act needs to be
done, groups pre-exist.84 Another author who is cited in this context is Van Dyke
who argues:
81 Peter Jones distinction of a corporate and a collective conception of group rights

seems to question this point. However, this is not the case as the distinction is rel-
evant to the question of moral agency but not to the question of who is the right-
holder. See chapter 3.2.2.
82 This is another reason why the notion group rights is preferred to collective rights
as it seems to point more to the right-holder as an entity and less to the right-hold-
ers internal quality.
83 M. A. Jovanovi, Are There Universal Collective Rights?, 11 Human Rights Review
(2010) 17, p. 31.
84 Janos Kis writes on this: But how is, then, the rights-bearer constituted in this case?
Certainly not by way of association: the minoritys right is not based on a certain
What I have in mind is suggested by the idea of a corporation, which has rights and
liabilities distinct from those of the persons composing it. It is suggested, for that
matter, by the state itself, for it is a kind of corporation. At the same time, ethnic
communities are unlike corporations in that they are not the creatures of law or
the state. They come into existence as nations sometimes do independently of
the state, raising the question whether they may have moral rights and a capacity to
advance moral claims regardless of their legal status.85
Jovanovi concludes from this that [t]he membership in these collective entities
is, thus, a sociological one, and that is exactly what distinguishes collective rights
from rights held by natural or juristic persons.86
Let us begin with the de jure reality of groups versus de facto reality of ju-
ristic persons. The claim cannot be that legal and factual reality are exclusionary
per se;87 the claim has probably to be understood as that groups exist as entities
even before they are accepted by the law (sociological membership), whereas ju-
ristic persons come into existence only with the recognition by law. There are two
weaknesses in this argumentation. First, it seems unconvincing to base the sepa-
rate categorisation of groups as persons only on their pre-existing membership as
there are many different sorts of juristic persons which differ quite a lot in their
membership. Second, connected though, pre-existing membership is not such an
exclusive thing which only groups may have (had). The opposite is rather more
probable; there were schools, organised associations, institutions, companies and
so on long before law has recognised them as legal persons. In fact, it seems more
convincing that it was their existence and often growing importance which was
the reason for their legal recognition. This will be discussed in the next chapter
on legal personality in more depth.
number of people coming together and forming an organization. It is not this way
that an ethno-linguistic minority is formed. Such groups are not bodies of associ-
ated individuals. They simply are given for members and non-members alike, by the
signs used and identified, by mutual recognition paid by members to each other, and
by the regard of outsiders To summarize, collective rights are distinguished from
the joint rights of associated individuals by two criteria. First, their subjects do not
come into being by way of association but are simply given, and, second, in order
for them to be capable of bearing rights, they need to be officially recognized by the
state. J. Kis, Beyond the Nation State, 63 Social Research (1996) 191, p. 221, footnotes
omitted. We will return to the question of recognition (by the state or states) when
discussing the issue of legal personality. See particularly chapters 1.3 and 4.4.
85 V. van Dyke, The Individual, the State, and Ethnic Communities in Political Theo-
ry, in W. Kymlicka (ed.), The Rights of Minority Cultures (Oxford University Press,
Oxford, New York 1995), p. 33.
86 Jovanovi, Are There Universal Collective Rights?, supra note 83, pp. 3132, foot-
notes omitted.
87 Today, the reality of corporations is de jure and de facto, undoubtedly. If groups were
recognised de jure as well, it is difficult to see any difference in this regard.
28 Chapter 1
Exactly this ignorance of law with regard to the internal collective nature
of groups acknowledged as right-holders is a matter of concern for other critics.
However, this question is mainly a substantive rather than a conceptual one and
will be discussed in chapters 3 and 4.
1.2. The Subjects

The element which has probably caused most discussions in the context of group
rights is the one of the who (the group, the subject). Let us start with a simple
observation from everyday life: When I was running at the city park of Lund,
Sweden I came across a group of young people conspicuously dressed in black.
One of them was wearing a t-shirt saying united in brutality. In everyday lan-
guage there is no doubt that we could refer to these persons as a group it can
be assumed that this brutality group has some kind of common lifestyle, that
they maybe listen to the same kind of music and share certain values. Hence, the
question arises: do these people constitute a group in the meaning of this work?
The Concise Oxford Dictionary of Current English describes a group as
a number of people or things located, gathered, or classed together.88 For the
discussion of group rights we can agree on reducing the term on persons89 and
leaving the things aside. Furthermore, the given definition focuses too much
on the passive side of the word, the ascription of certain qualities to a number
of persons that make them a group. Instead, a number of persons can as well
look at themselves as sharing something which makes them a group. Moreover,
the word together hides another important feature since not any connection
between persons makes them a group; it must be a connection that is viewed
(by them and/or by others) as important in the context of calling the persons a
group. Hence, a group will generally be defined in the following as a number of
individuals bigger than one that is conceived by themselves or by others as being in
a certain regard connected in a substantive way. From this working definition of a
group it becomes clear that the crucial element in defining concrete groups will
be the substantive connection.
However, this definition would arguably still include companies, political
parties, associations, and states as they, in the end, consist of individual persons
as well. Claiming that there is a difference as to these candidates because they are
artificial persons is unconvincing as advocates of group rights claim exactly this
status for groups like indigenous peoples. In other words, if an indigenous people
as such has rights (as a group, hence group rights), not being an individual per-
son, it would be an artificial person as well. In fact, claiming group rights means
88 C. Soanes and A. Stevenson, Concise Oxford English Dictionary (11th edn., Oxford
University Press, Oxford, New York 2008).
89 The word individuals will be used to clarify that reference is made to natural per-
sons as in the general definition on group rights in chapter 1.1.1.
to claim the artificial personality or the legal personality of (certain) groups.90

The reason for excluding states91 from the discussion of group rights in this work
is of a substantive rather than conceptual nature: the legal personality of states
in international law is established beyond discussion.92 However, the justification
for this being so will be discussed later on in relation with claims of substate
groups to autonomies. With regards to companies, political parties and associa-
tions, the difference in relation to any other group is that the substantive way
in which they are connected with each other consists of an aim to which they
are united willingly. In fact, their very existence is based on their common aim.
There are many similar problems of legal recognition with such common aim
groups as well;93 however, the focus in this work will be on groups which are seen
as existing independently of such a common aim. Moreover, not including states,
companies, political parties, associations in this work on group rights means to
understand group rights the way they are usually understood in philosophical
discussions. Nevertheless, it is worth noting that this is a choice by the author and
not a cogent logical implication from the concept.94
What is a substantive connection? In law and theory, substate groups have
been classified among others as minorities, national minorities, peoples, in-
digenous peoples, nations, religious communities, and cultures. The criteria
connecting persons belonging to such groups have traditionally been race,
ethnicity, religion, culture, and language. Prima facie, all these criteria are
to be seen as the substantive connections of groups and seem rather objective,
concrete, and, in consequence, it seems possible to detect the boundaries be-
90 This is the group rights-paradox discussed above in chapter 1.1.6.

91 For a discussion of international legal rights and duties of (e.g. cultural, regional)
groups of states, see for example H. Thirlway, Reflections on Multiculturalism and
International Law, in S. Yee and J.-Y. Morin (eds.), Multiculturalism and Interna-
tional Law: Essays in Honour of Edward McWhinney (Martinus Nijhoff Publishers,
Leiden, Boston 2009).
92 One could also argue that states rights do not only emanate from their citizens (as
a group), but from the soil, from the territory as well. This is correct; however, one
could understand the territorial link as the substantive way in which people are con-
nected with each other and, hence, just part of their quality as a group.
93 Some of them will be discussed in chapter 1.3.
94 Untechnically Chris Brown and Kirsten Ainley call states, intergovernmental or-
ganisations and multinational corporations aggregates of people and express in
that way that these subjects can be understood as groups, see C. Brown and K. Ain-
ley, Understanding International Relations (4th edn., Palgrave Macmillan, Basing-
stoke 2009), p. 221. The same understanding seems to underlie Nicols L. Caleras
reasoning when he writes: It cannot be said that States, U.N.O., E.U., universities,
political parties, churches, and trade unions are not collective subjects with col-
lective legal rights and duties. N. L. Calera, The Concept of Collective Rights, 34
Rechtstheorie (2003) 351, p. 369.
30 Chapter 1
tween the different groups with scientific precision. Reality is far from that.95
When trying to find a suitable definition for nation Hobsbawm explains the
problem in the following words: [T]he criteria used for this purpose language,
ethnicity or whatever are themselves fuzzy, shift ing and ambiguous, and as
useless for purposes of the travelers orientation as cloud-shapes are compared to
landmarks. This, of course, makes them unusually convenient for propagandist
and programmatic, as distinct from descriptive purposes.96 Although possibly
desirable from a legal point of view, definitions are particularly limited when it
comes to the shifting identities of groups.97 Additionally, it has been argued
that [n]o consensus has emerged in large part because the terms attempt to fi x
for international law purposes aspects of group identity that are inherently con-
textual and forever subject to change.98 Traditionally, this observation is used
for another line of argument to oppose group rights. The argument is built on the
fact that the right-holder is not identifiable with reasonable precision.99 However,
as will be shown in chapter 2, in practice this philosophical objection may be less
strong than first expected.100
Besides this inherent vagueness of any definition or description of a group,
the objectivity of such substantive connections is very questionable. Marko il-
lustrates this in the following:
Of course, skin colour is an objective, even natural factor in itself. But, first and
above all, it is a normative decision to give exactly that factor relevance in social and
political behaviour. Already at this abstract, epistemological level, this is a norma-
tive decision and not a biological, anthropological or psychological predisposi-
tion to give exactly that factor relevance in social and political behaviour. Otherwise,
we would prosecute red-haired women to this very day as witches. Secondly, in
defining a people or nation by so-called objective markers such as language or
religious denomination, one has again to make a decision that a particular cultural
95 For a general discussion of the difficulties with definitions in international law in

the context of identity, difference and otherness, see T. Makkonen, Identity, Differ-
ence and Otherness: The Concepts of People, Indigenous People and Minority in
International Law (Forum Iuris, Helsinki 2000).
96 E. J. Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality
(2nd edn., Cambridge University Press, Cambridge UK, New York 1992), p. 6.
97 For a discussion of the issue of shifting identities, see also N. Berman, The Interna-
tional Law of Nationalism: Group Identity and Legal History, in D. Wippman (ed.),
International Law and Ethnic Conflict (Cornell University Press, Ithaca NY 1998).
98 D. Wippman, Introduction: Ethnic Claims and International Law, in D. Wippman
(ed.), International Law and Ethnic Conflict (Cornell University Press, Ithaca NY
1998), p. 3.
99 Cf. e.g., D. Makinson, On Attributing Rights to All Peoples: Some Logical Ques-
tions, 8 Law and Philosophy (1989) 53.
100 See also the discussion in chapter 3.1.
marker out of a possible plurality of such markers shall be the common character-
istic to be found in a certain number of people, thereby constructing a category and
not a group in the sociological sense. Again, it is a normative decision and not an
empirical fact that characteristics that people have in common should constitute
the particular people or nation. The alleged identity of common characteristics is
nothing else, therefore, but the normative concept of equality with the demand to
treat individuals with those common characteristics equally. Ethnicity is thus not
an inherent, natural trait or essential property of people(s) or territories, but a
structural code with the political function of exclusion or inclusion.101
That also skin colour is not as objective as one might expect, shows the fact that
Barak Obama has been seen as the first black president of the United States
in fact, he is as white as he is black; or the case of the Eritrean emigrant who
became aware of his skin colour only in Europe where this seemed to have some
importance. Again, groups are constructs.102 From this some argue often only
implicitly that therefore a groups claims are of secondary relevance compared
with the really existing states and individuals. This argumentation is of special
force in the context of what is to be given priority, individual rights or group
rights. A radical constructivist would simply reply that states and individuals
are constructs as well. A stronger argument might be that groups, although con-
structed, can be very real for their members as well as non-members, and of
such importance that pointing to the fact of construction does not really weaken
a groups claims. They can matter as much as more real categories.103 Sometimes
101 J. Marko, The Law and Politics of Diversity Management: A Neo-Institutional Ap-
proach, 6 European Yearbook of Minority Issues (2007) 251, p. 270. Josef Marko goes
on with a critique of nationalism ignoring this construction of reality: And it is
the political function of nationalism as an ideology, be it ethnic or civic, to cam-
ouflage these normative decisions in the social construction of political unity. By
pretending to natural characteristics, power relations are concealed, legitimized
and, at the same time, immunized against critique. Ibid.; see also M. Bulmer and J.
Solomos, Introduction: Re-thinking Ethnic and Racial Studies, 21 Ethnic and Ra-
cial Studies (1998) 819, p. 822.
102 Similarly, when discussing the concept of a nation, Max Weber described a nation as
a community based on feeling: Es liesse sich ein Begriff von Nation wohl nur etwa
so definieren: sie ist eine gefhlsmssige Gemeinschaft, deren adquater Ausdruck
ein eigener Staat wre, die also normalerweise die Tendenz hat, einen solchen aus
sich hervorzutreiben. Cited in Z. Norkus, Max Weber on Nations and National-
ism: Political Economy before Political Sociology, 29 Canadian Journal of Sociology
(2004) 389, p. 394.
103 Cf. Bulmer and Solomos, Introduction, supra note 101, p. 822; and some argue that
there is something real about it too: But ethnic groups cannot be created out of
whole cloth, though some have tried. There is something real at the core of ethnic
identity that renders ethnic affi nities resistant to the leveling influences of modern-
ization and that provides a solid base for intense, even passionate, collective action
32 Chapter 1
maybe even more; indeed, in the course of a genocide it is quite off the point to
argue that the distinction of Hutus and Tutsis or Jews and Aryan is only
constructed and hence not significant.
Up to now the brutality group could still be seen as a group relevant to this
work; knowing that groups are constructed, it is easy to justify their considera-
tion. However, the discussion of group rights is basically restricted to what Pogge
calls cultural groups groups with common ethnicity/race, religion, language
or lifestyle (culture in a narrower sense) as opposed to non-cultural groups
defined by age, gender, disability et al.104 In general, non-cultural groups are not
seen as having a substantive connection which would justify the provision of
rights to the group as such. Accordingly, societies typically and justifiably in-
tegrate them which usually will exclude any reference to group rights.105 On the
other hand, cultural groups in Pogges sense may require approaches other than
the assimilationist or integrationist ones and could even demand group rights.
However, even with the brutality group the case is not conclusive with regard to
its substantive connection; at least they could have a lifestyle in common, maybe
also a religion. Again, definitions are hardly conclusive in this area, the substan-
tive connections presented are indicative at best.
In consequence, it has been a very common criticism in the literature on
group rights that groups cannot be defined precisely, that it is not fully clear who
decides on group membership, that often any organisation of the group is miss-
ing, and many other problems surrounding the vagueness of the term groups.
This criticism has led many to reject this category of rights as a whole and to
claim the individual rights of group members instead. The following discussion
on existing group rights in contemporary international law in chapters 2 and 3
will shed some light on this issue.
and political mobilization in ways that may appear irrational to outside observers.
Wippman, Introduction, supra note 98, p. 4.
104 Hier mu man zunchst einmal differenzieren zwischen kulturellen und nicht-
kulturellen Minderheiten. Kulturelle Minderheiten sind solche, die ihrer Kultur we-
gen als besondere Gruppen angesehen werden. Kulturelle Minderheiten kann man
grob in vier Klassen einteilen, nmlich danach, ob sie aufgrund ihrer Volkszugeh-
rigkeit, Religion, Sprache oder Lebensweise als anders gesehen werden. Nicht-kultu-
relle Minderheiten dagegen sind Gruppen, die etwa blo aufgrund von Geschlecht,
Alter, Krpergre, Behinderung oder Hautfarbe als signifi kant anders angesehen
werden. T. W. Pogge, Gruppenrechte von Minderheiten, in M. Kaufmann (ed.), In-
tegration oder Toleranz?: Minderheiten als philosophisches Problem (K. Alber, Frei-
burg Breisgau 2001), p. 189.
105 In this sense Thomas W. Pogge: Mir scheint, da gerechte Gesellschaften danach
streben sollten, nicht-kulturelle Minderheiten zu integrieren. Wie Brger einander
behandeln und schtzen sollte nicht von solchen uerlichkeiten abhngen. Diesen
Punkt halte ich fr ziemlich unkontrovers Ibid.
1.3. The Concept of Legal Personality

The controversy on group rights is also traditionally linked with the question of
legal personality of groups in international law. Are groups subjects of interna-
tional law with legal capacity?106 It is therefore the aim to clarify this legal concept
here, before moving on to an analysis of examples of group rights in contempo-
rary international law.
The concept of legal personality is prominent in textbooks on international
law and is frequently and naturally used by legal scholars. Surprisingly, however,
a closer examination of this concept reveals that a generally accepted definition
of it is missing; moreover, it has even been argued that the ascription of legal
personality to an entity largely depends on the personal inclinations of the re-
spective scholar.107 Additionally, the importance of the concept is being evaluated
quite differently: where some consider it to be crucial,108 others see it as either
circular or unhelpful.109
It is worth recalling some historical roots of the concept. Roman law, for
example, knew two forms of associations, the universitas and the societas. The
universitas was a legal person in the modern sense, it had its own property sepa-
rate from the property of its members, could suit and be suited in its own name.
More importantly, it was a public law concession;110 hence, its main, although
not the only, examples are states and municipalities. The societas, on the other
hand, was not a legal person but a contractual relationship between its members,
who remained owners of their shares, who had to suit and be suited, and whose
leaving would mean dissolution of the entity.111
It is important to be aware of the fact that personality, as we understand it,
was unknown in Roman law. More generally, Roman law looked at human be-
106 Legal personality will be used here as synonymous to legal subjectivity, thus, a legal
person is conceptually the same as a legal subject. Moreover, legal personality is
also synonymous to legal capacity. This is consistent with the vast majority of the
literature on the topic. See e.g., V. Epping, Vlkerrechtssubjekte, in K. Ipsen (ed.),
Vlkerrecht (5th edn., Beck, Mnchen 2004), p. 55; and also C. Walter, Subjects of
International Law, Max Planck Encyclopedia of Public International Law [2007],
<www.mpepil.com>, visited on 13 January 2011.
107 See B. Vukas, States, Peoples and Minorities, 231 Recueil des Cours (1991) 267, pp.
483508. Accordingly, Budislav Vukas writes that searching for an answer to who
possesses legal personality under international law means entering a circulus vir-
tuosus. See ibid., p. 483.
108 See e.g., Shaw, International Law, supra note 71, p. 195.
109 See e.g., S. R. Ratner, Is International Law Impartial?, 11 Legal Theory (2005) 39, p.
47.
110 A. Vincent, Can Groups be Persons?, 42 Review of Metaphysics (1989) 687, p. 707.
111 C. Windbichler, Gesellschaftsrecht: Ein Studienbuch (22nd edn., Beck, Mnchen
2009), pp. 1516.
34 Chapter 1
ings as free persons with legal capacity, but for this personality their belonging
to a social class/group was decisive, not their individuality. Hence, it was not the
notion of a person but rather the notion of a class which was at centre of the
Roman approach.112 In fact, the very notion of a person derives from the Latin
term persona which was the mask of the actors in Roman theatre; as a result, in
the context of law, it referred to the roles which were performed in a legal process
with the word party as an equivalent.113 Roughly, it was the Enlightenment with
its claims of equality and liberty that transformed the notion of a legal person; it
was in this era that the perception changed and persons were newly seen as au-
tonomous and equal bearers of rights.114
With regard to the concept of state, it is worth mentioning that although
Hobbes was the first to describe the state as a person, it was Pufendorf who made
the further step to conceptualise it as a corporation.115 What in Roman law was
functionally covered by the institution of universitas newly arose under changed
views on the state and personality in the concept of a corporation.
In the late 19th century, the dispute between the fictional and the realist
theory on legal persons and their relation to natural persons took place a dis-
pute personified by Savigny and Gierke.116 To draw with an overly broad brush,
fictional theorists understood legal personality of entities other than individual
human beings as fictional concessions from the state,117 while for Gierke groups
were real, had a will of their own, and, accordingly, their incorporation in law
was merely declaratory.118 Real personality does, however, according to this view,
not have a necessary, innate, biological essence119 but only reflects a legal status.
When discussing modern laws approach to collectives this is usually the start-
ing point as the dispute was on how law should perceive and tackle associations
(meant in a generic sense as collectives) that played an important role in society,
especially the economy. As such, the discussion is of vital importance for the
topic of group rights.
By recognising some forms of associations as legal persons, the law accepted
certain social realities and, at the same time, formed social reality itself by de-
manding of associations certain organisational features and ignoring associa-
112 Cf. R. Damm, Personenrecht: Klassik und Moderne der Rechtsperson, 202 Archiv
fr die civilistische Praxis (2002) 841, pp. 849850.
113 See Vincent, Can Groups be Persons?, supra note 110, p. 700; cf. also J. Klabbers,
The Concept of Legal Personality, 11 Ius Gentium (2005) 35, p. 65.
114 See Vincent, Can Groups be Persons?, supra note 110, p. 701; and Damm, Personen-
recht, supra note 112, p. 850.
115 Cf. H. Aufricht, Personality in International Law, 37 American Political Science Re-
view (1943) 217, pp. 217219.
116 Cf. the discussion in Damm, Personenrecht, supra note 112, pp. 861871.
117 Cf. Vincent, Can Groups be Persons?, supra note 110, p. 706.
118 Cf. ibid., pp. 704715.
119 Ibid., p. 712.
tions lacking these features; ultimately, legally recognised associations became

an important factor in social reality.120 Since then, there has been a tendency to
reconcile the claims of the fictional with those of the realist theory and to view
legal persons in analogy to natural persons,121 an analogy that is already reflected
by the very notion of a corporation,122 but which may be of questionable value.123
Generally, the law approached such entities with the concept of a corporate
veil which gave some (legal) continuity to the group or corporation regardless
of changes in membership for example.124 However, this did not mean that if a
natural person tries to cover up criminal activities the state could not lift its own
created veil to prosecute this person. Thus, what counts in the end is the natural
person.125 Hence, to step back and look more generally at the issue, we could say
that accepting group rights as a concept and groups as legal persons would mean
to accept the legal creation of a veil for certain groups in certain aspects and situ-
ations. Moreover, this may be true even if it is the natural person which counts
in the end.126
After these short preliminary remarks on legal personality, it is time to
focus on the concept as it is used in international law.127 Legal personality in con-
temporary international law has some agreed upon content. To start with the
obvious, legal personality of an entity in national law is not the same as legal
personality in international law and vice versa as it depends on the legal rule
system in which entities shall be viewed as its subjects.128 More importantly, legal
personality in international law is usually understood as the capacity to possess
international legal rights and/or duties.129 However, if this capacity is sufficient
or if there are additional requirements for an entity to be considered a legal per-
120 Cf. Damm, Personenrecht, supra note 112, pp. 865866.

121 Cf. ibid., pp. 866869.
122 Hans Kelsen has criticised this analogy, going as far as to view the person acting in
the name of a corporation as the legal person. Kelsen, Allgemeine Staatslehre, supra
note 33, pp. 6769. However, this very restrictive view has not prevailed.
123 For a critique of lumping these things together under the same heading of personal-
ity, see J. D. Ohlin, Is the Concept of the Person Necessary for Human Rights?, 105
Columbia Law Review (2005) 209.
124 Cf. Klabbers, The Concept of Legal Personality, supra note 113, p. 44.
125 Ibid.
126 This will be discussed in more depth in chapters 3.2 and 4.4.
127 For a useful overview of the different positions on the concept, see R. Portmann, Le-
gal Personality in International Law (Cambridge University Press, Cambridge 2010).
128 But see the critical discussion of an ECJ Case by Jan Klabbers where he points to the
fact that the Court understood the phrase shall have legal personality as referring
to international legal personality without giving any explanations for this. Klabbers,
The Concept of Legal Personality, supra note 113, p. 53.
129 Cf. M. Herdegen, Vlkerrecht (9th edn., Beck, Mnchen 2010), p. 72.
36 Chapter 1
son is controversial. Some scholars think it sufficient,130 having the classical

legal person, the state, in mind, while others take a more restrictive view and
demand additionally the capacity to participate in the creation of international
law. The reason for such an approach is for some the importance they give to the
characteristic that the subjects and the objects of international law are identi-
cal in their view a fundamental structural principle of international law.131
However, this point of view has not prevailed as it is based on a positivistic view
that debatably would have fit the Westphalian System, but is questioned today by
the very existence of jus cogens and erga omnes obligations in international law.132
Again, others see the capacity to enforce its rights as a further decisive criterion
of legal personality.133 In light of inalienable (human) rights of individuals and the
connected question of their legal personality, as well as the fact that probably the
majority of rights in international law are not enforceable, at least not in courts,
this criterion has been abandoned by many scholars and is generally not seen as
decisive anymore.134
130 Vlkerrechtssubjekte sind mithin diejenigen Einheiten, denen durch die Vlker-
rechtsordnung die Fhigkeit zuerkannt wird, Trger vlkerrechtlicher Rechte und/
oder Pflichten zu sein, d.h. deren Verhalten unmittelbar durch das Vlkerrecht be-
stimmt wird. Epping, Vlkerrechtssubjekte, supra note 106, p. 55. Defined in such
a way, it is understandable if much of what has been discussed in legal theory on
who can be a right-holder (see chapter 1.1.2) is also reflected in views on international
legal personality.
131 Cf. T. Schweisfurth, Vlkerrecht (Mohr Siebeck, Tbingen 2006), pp. 36.
132 Cf. also H. Lauterpacht, The Subjects of the Law of Nations, 63 Law Quarterly Re-
view (1947) 438, p. 450; and Vukas, States, Peoples and Minorities, supra note 107, p.
490.
133 In this sense, for example, Malcolm N. Shaw with many references, see Shaw, Inter-
national Law, supra note 71, p. 195.
134 After an inquiry of the different kinds of legal persons in international law the men-
tioned Malcolm N. Shaw comes to the conclusion that [p]rocedural capacity with
regard to enforcement is important but not essential. Ibid., p. 264, footnotes omit-
ted. In other words, if procedural capacity is to be seen as a precondition of what
he means by enforceability then enforceability is not essential for the question of
international legal personality; indeed, in that case he also would agree that possess-
ing rights and/or duties in international law would be sufficient to be considered an
international legal person. Hans Aufricht sees the enforceability requirement as
a confusion of the principles of substantive and procedural law. See Aufricht, Per-
sonality in International Law, supra note 115, p. 238; similarly, Hersch Lauterpacht
argues that [t]he existence of a right and the power to assert it by judicial process
are not identical. In the municipal sphere there are persons, such as minors and
lunatics, who though endowed with rights are unable to assert them by their own
action There is a clear distinction between procedural capacity and the quality of
a subject of law. Lauterpacht, The Subjects of the Law of Nations, supra note 132, p.
455; see also H. Lauterpacht, The Subjects of the Law of Nations, 64 Law Quarterly
Review (1948) 97, p. 97; and the discussion in chapter 1.1.5.
It is accepted today that legal personality is a matter of degree rather than

all-or-nothing.135 However, it may be remembered that still only the states are
seen as having full legal personality in international law.136 With the change of
international community in the 20th century, especially after World War II, new
actors have become of some importance in international law.137 Besides interna-
tional organisations and the classical subjects sui generis like the Holy See, the
Sovereign Order of Malta or the International Committee of the Red Cross, new
candidates for legal personality like non-governmental organisations, multina-
tional companies, minorities, peoples and individuals have been introduced.138
Some of them are accepted today as partial legal subjects; especially the individu-
als were named by many as new (possible) legal persons of international law.139
135 This was also held by the ICJ in its Advisory Opinion on the Reparation for Injuries
case: The subjects of law in any legal system are not necessarily identical in their na-
ture or in the extent of their rights, and their nature depends upon the needs of the
community. Throughout its history, the development of international law has been
influenced by the requirements of international life, and the progressive increase in
the collective activities of States has already given rise to instances of action upon
the international plane by certain entities which are not States. Reparation for Inju-
ries Suffered in the Service of the United Nations, 11 April 1949, ICJ, Advisory Opinion,
ICJ Reports 1949, p. 174, at p. 178.
136 However, Budislav Vukas correctly remarked that the ICJ exaggerated when it
stated in Reparation for Injuries that a state possesses the totality of international
rights and duties recognized by international law (ibid., p. 180), see Vukas, States,
Peoples and Minorities, supra note 107, p. 492.
137 For an early account of this development, cf. H. Mosler, Die Erweiterung des Kreises
der Vlkerrechtssubjekte, in R. L. Bindschedler et al. (eds.), Die Anerkennung im
Vlkerrecht. Referate und Thesen (C. F. Mller, Karlsruhe 1961).
138 Cf. J. Mertus, Considering Nonstate Actors in the Millennium: Toward expanded
Participation in Norm Generation and Norm Application, 32 New York University
Journal of International Law and Politics (2000) 537.
139 Some scholars have gone a step further and put the individual in the centre of their
conceptions of international legal personality, discussing the natural person as the
principle, and in the full meaning only, legal subject. However, this view has not
prevailed. See e.g., C. Berezowski, Les problmes de la subjectivit internationale,
in V. Ibler (ed.), Mlanges offerts Juraj Andrassy (Martinus Nijhoff Publishers, The
Hague 1968), p. 46; H. Kelsen, Thorie du droit international public (A.W. Sijthoff,
Leyde 1953), pp. 9397; G. Scelle, Prcis de droit des gens: Principes et systmatique
(Editions du Centre national de la recherche scientifique, Paris 1984), pp. 4244;
Janne E. Nijmans recent far reaching, even utopian, concept places the individual
as primary and originary legal person in the centre of it; states are only accepted as
international legal subjects as long as they represent their citizens. Her conception
would be open to NGOs as well as to groups. Cf. J. E. Nijman, The Concept of Inter-
national Legal Personality: An Inquiry into the History and Theory of International
Law (T.M.C. Asser Press, The Hague 2004), p. 468.
38 Chapter 1
Nevertheless, it is obvious that the concept of legal personality cannot adequately

account for entities other than states.140
Overall, the doctrine of legal personality in international law reflects an
actor-centred view that fit the reality of the Westphalian System and has been
criticised strongly as it is unable to account for the reality today.141 Moreover, glo-
balisation is expected to facilitate the creation of progressively new (partial) legal
subjects,142 a tendency that makes legal personality a concept with no bounds.143
Furthermore, the common approach to international law to discuss actors
in terms of either subjects or objects has been criticised namely by Higgins
who prefers a discussion of participants instead.144 Similarly, Klabbers writes:
[A] plea for personality, and the consequent acceptance thereof, has more to
do with political recognition of relations between actors and those relations rel-
evancies, than with anything else.145 Hence, the newer legal doctrine has over-
thrown the actor-centred view and replaced it with a focus on international law
140 Philip Alston has coined the fitting expression of the Not-A-Cat Syndrome, see P.
Alston, The Not-a-Cat Syndrome: Can the International Human Rights Regime
Accomodate Non-State Actors?, in P. Alston (ed.), Non-State Actors and Human
Rights (1st edn., Oxford University Press, Oxford 2005).
141 Cf. Walter, Subjects of International Law, supra note 106; and Portmann, Legal
Personality in International Law, supra note 127, pp. 268270.
142 S. Hobe, Individuals and Groups as Global Actors: The Denationalization of Inter-
national Transactions, in R. Hofmann (ed.), Non-State Actors as New Subjects of
International Law: International Law From the Traditional State Order towards
the Law of the Global Community. Proceedings of an International Symposium of
the Kiel Walther-Schcking-Institute of International Law, March 25 to 28, 1998
(Duncker & Humblot, Berlin 1999), pp. 133134.
143 Cf. Herdegen, Vlkerrecht, supra note 129, p. 75.
144 [I]t is not particularly helpful, either intellectually or operationally, to rely on the
subject-object dichotomy that runs through so much of the writings. It is more help-
ful, and closer to perceived reality, to return to the view of international law as a par-
ticular decision-making process. Within that process (which is a dynamic and not a
static one) there are a variety of participants, making claims across state lines, with
the object of maximizing various values Now, in this model, there are no sub-
jects and objects, but only participants. R. Higgins, Problems and Process: Interna-
tional Law and How We Use It (Clarendon Press; Oxford University Press, Oxford,
New York 1994), p. 50. We have all been held captive by a doctrine that stipulates
that all international law is to be divided into subjectsthat is, those elements bear-
ing, without the need for municipal intervention, rights and responsibilities; and
objects that is, the rest. Ibid., p. 49.
145 Klabbers, The Concept of Legal Personality, supra note 113, p. 38; in the footnote
he goes on: By and large, I share David Bedermans concern about the misleading
potential of the notion of personality, and agree that perhaps collectivities may be
better regarded in relational terms than as persons. Ibid.; the text referred to is D.
J. Bederman, The Souls of International Organizations: Legal Personality and the
Lighthouse at Cape Spartel, 36 Virginia Journal of International Law (1996) 275.
relationships146 which is more suited for the development of a variety of new

(partial) actors in international law.
Opponents of such an understanding draw on the importance of the inter-
national legal personality concept. The suggested importance of the concept is
mainly based on the idea that it is a conditio sine qua non for actors to perform
legal acts in a legal system, a threshold to act in international law.147 This view
was, to some extent, also reflected in cases and discussions in international law:148
the classic case of the ICJ is the Reparation for Injuries case in the late 1940s that
touched upon the issue.149 However, all in all, the Courts opinion leaves a lot of
space for interpretation. In particular, the threshold-reading of its short state-
ment on legal personality 150 is not cogent and could well mean that legal personal-
ity is not much more than having specific rights or obligations under internation-
al law.151 Indeed, there are reasons to prefer this later understanding. There is no
single legislator in international law that has the power to authoritatively decide
who the legal persons of international law are. So who should decide who should
be accepted as a (new) legal person of international law if not each single exist-
ing legal person? Any other view would restrict the contracting freedom of exist-
ing legal persons. In fact, if a state wants to accept a minority, a multinational
corporation or an NGO as a contractual partner, it is hard to see why this should
not be possible and why this actor cannot be seen as having legal personality at
least as far as agreed upon in the contract.152 Thus, it seems convincing that states
146 This expression was used in Walter, Subjects of International Law, supra note 106,
para. 31.
147 Cf. e.g., Shaw, International Law, supra note 71, p. 195.
148 Cf. Klabbers, The Concept of Legal Personality, supra note 113, pp. 4956.
149 Reparation for Injuries, supra note 135, p. 174.
150 The following argumentation of the ICJ has been interpreted in this way: But, in
the international sphere, has the Organization such a nature as involves the capacity
to bring an international claim? In order to answer this question, the Court must
first enquire whether the Charter has given the Organization such a position that it
possesses, in regard to its Members, rights which it is entitled to ask them to respect.
In other words, does the Organization possess international personality? This is no
doubt a doctrinal expression, which has sometimes given rise to controversy. But
it will be used here to mean that if the Organization is recognized as having that
personality, it is an entity capable of availing itself of obligations incumbent upon its
Members. Ibid., p. 178.
151 See the discussion by Jan Klabbers, also on a similar case of the ECJ: Klabbers, The
Concept of Legal Personality, supra note 113, pp. 4956; Budislav Vukas argues that
it is a misinterpretation of the Advisory Opinion to require more than mere posses-
sion of rights and obligations by an entity to be accepted as a legal subject, see Vukas,
States, Peoples and Minorities, supra note 107, p. 486.
152 A very interesting example is mentioned by Jan Klabbers: On the international
level, entities usually act first and ask questions later. A wonderful example is the
agreement concluded some years ago, on the E.U.s administration of Mostar. This
40 Chapter 1
can create new legal persons of international law as part of their sovereignty.
International law is an evolving system which is being created by its participants.
This does not mean that only its rules can be created by them, participants also
decide on the rules of participation in international law; in fact, absence from
the theatre of international law is the only existing exclusion of persons from
international law.
Barberis argues rather convincingly that a legal rule system cannot make a
legal subject just by choosing it and calling it so, the crucial point is that this sys-
tem provides such an entity some rights and/or obligations.153 This may be even
truer if the legal system is as polycentric as the one of international law. Hence,
according to such an understanding there cannot exist a gap between recog-
nised and unrecognised groups. Rather, the extent to which groups are not recog-
nized as legal persons will simply be because they have no rights, obligations, or
competences resting upon them.154 Moreover, one has to be aware of the fact that
the law cannot envisage every type of situation, impairment, or form of associa-
tion (in the generic sense) between human beings. The law might simply be reluc-
tant to attach personality to some associations for reasons wholly unconnected to
not only involved the E.U. (of which many thought devoid of personality to begin
with), but also the local communes of East Mostar and West Mostar (which are not
thought of by many to have international legal personality). Much the same would
apply to the Croats of Bosnia and Herzegovina, who were also involved. Klabbers,
The Concept of Legal Personality, supra note 113, p. 57, footnotes omitted. One can,
of course, question the international nature of such an agreement as it seems to lie
somewhere beyond the dichotomy of national and international; however, this di-
chotomy is not that clear in general when thinking of federal states like Switzerland
which provide in their constitutions powers to legislate in the international field to
their federal entities; moreover, such contracts between federal entities of different
states are viewed as international ones, but this might be less controversial as it is
the state itself that provides the federal units with such personality. There are differ-
ent views on how to understand this provision of legal personality in legal theory.
However, the state as such remains responsible for the acts of its organs. Cf. Shaw,
International Law, supra note 71, pp. 217223. Even so, it seems convincing that le-
gal persons like states can choose their contract partners as they like as long as they
do not break the law of the legal rule system within which the contract should be
concluded.
153 Sujeto de derecho es la denominacin que los juristas dan a los destinatarios de
derechos u obligaciones en las condiciones indicadas. El derecho no puede prescri-
bir en una norma jurdica que X es sujeto de derecho, porque carecera de sentido
y sera irrelevante. Aun cuando un orden jurdico contuviera una norma que dijera
que X es sujeto de derecho, X no sera sujeto si ese ordenamiento no le atribuyera,
al menos, un derecho o una obligacin. Las normas jurdicas no pueden imponer al
jurista que considere sujeto a quien no es titular de ningn derecho ni de ninguna
obligacin. J. A. Barberis, Los sujetos del derecho internacional actual (Tecnos, Ma-
drid 1984), p. 27.
154 Klabbers, The Concept of Legal Personality, supra note 113, p. 47.
their activities.155 156 Overall, the label legal person does not add to the underly-
ing facts that a certain entity has certain rights and/or duties (and competences)
in the according legal system157 and can, therefore, be seen as legally irrelevant.158
Admittedly, it could be argued that this conclusion may be correct for enti-
ties with only special (or particular) legal personality, but not for entities (most
typically states) with general (or objective) legal personality as the later are by
definition holders of rights and duties in international law, against all other ac-
tors and without ever entering into a contractual relationship.159 It is questionable
that this is correct, but the question can be left open here because the entities
discussed in this work all belong to the former category of entities. Hence, by
and large, it can be said that legal personality is not a conditio sine qua non.160
155 Ibid., pp. 4041, footnotes omitted. Jan Klabbers argues: The non-personality of the
English village is a case in point as was, according to some, the reluctance to grant
international legal personality to the European Union. Thus, there will inevitably
be gaps; forms of human association will arise which do not fit into one of the pre-
conceived categories of the law. The explanation for this state of affairs seems to be
reasonably obvious: people tend not to follow blueprints when organizing their lives
together, and the demand for certainty will often be countered by a demand for flex-
ibility. Ibid., p. 41.
156 Therefore, inspired by Hans Kelsen (cf. Kelsen, Allgemeine Staatslehre, supra note
33, pp. 6670), Jan Klabbers understands the concept of legal personality as a bun-
dle of rights, obligations, and competences. See Klabbers, The Concept of Legal
Personality, supra note 113, p. 47.
157 James Crawford can also be understood in this way when he aptly describes legal
personality as a compendious way of inferring certain capacities and powers in in-
ternational law ... the conclusion to be drawn from the answers to more fundamen-
tal questions as to the rights, powers and responsibilities of the particular entity. J.
Crawford, The Creation of States in International Law (2nd edn., Clarendon Press;
Oxford University Press, Oxford, New York 2006), p. 350.
158 For a very interesting discussion of the moral irrelevance of the concept of personal
identity, see Parfit, The Unimportance of Identity, supra note 1. Derek Parfit basi-
cally argues that, knowing its components, the concept of personal identity does
not add anything to them and is therefore morally irrelevant. For a discussion of
the application of this reasoning to legal personality, see Ohlin, Is the Concept of
the Person Necessary for Human Rights?, supra note 123; Roland Portmann agrees
that an adequate conceptualisation of international legal personality offers very
little normative content in light of the international legal system as a whole, see
Portmann, Legal Personality in International Law, supra note 127, p. 283.
159 Cf. Crawford, The Creation of States in International Law, supra note 157, p. 30.
160 Personality is emphatically not a prerequisite for the ability to act under interna-
tional law, nor do any Hohfeldian rights, privileges, powers or immunities follow
automatically from it. Indeed, if anything, it appears to be the other way around: the
existence of certain rights, privileges, powers or immunities may lead to the conclu-
sion that the entity concerned may be classified as an international, legal person.
J. Klabbers, Presumptive Personality: The European Union in International Law,
42 Chapter 1
However, it is neither merely declaratory; in the words of Klabbers, it is in a pe-

culiar way also constitutive but in a political sense.161 This will be further dis-
cussed in chapter 4.4.
By and large, Lauterpachts observation is still true: There is no rule of in-
ternational law which precludes individuals and bodies other than States from
acquiring directly rights under customary or conventional international law and,
to that extent, becoming subjects of the law of nations.162 Thus, from a concep-
tual perspective, groups could theoretically be legal persons of international law.
in M. Koskenniemi (ed.), International Law Aspects of the European Union (Kluwer

Law International, The Hague, Boston 1998), pp. 252253, footnotes omitted.
161 Klabbers, The Concept of Legal Personality, supra note 113, p. 56.
162 Lauterpacht, The Subjects of the Law of Nations, supra note 134, p. 112.
2. Group Rights in Contemporary International
Law
By and large, in existing international law minority and indigenous rights are
about keeping groups happy within the State.
Gudmundur Alfredsson 163
This chapter investigates the existence of group rights in international law to find
out in what way they exist and how they work; a deeper understanding of their
reality will help to assess their function and importance to solve group related
problems in contemporary international law. This inquiry of the lex lata will fo-
cus on the issues which have been discussed before as conceptual challenges of
the concept of group rights. Thereby it will not be possible to cover the entirety of
(alleged) group rights even of Crawfords first category (category of group rights
on existence and cultural or political continuation of groups).164 Nevertheless, the
chosen samples of existing group rights (taking the definitions given above) will
put us in the position to reassess commonly discussed challenges of the concept
of group rights as introduced in chapter 1.
This inquiry will start with two very general group rights, or rather general
principles applicable to groups, and go over to more concrete group rights. The
view taken here is that the principle of non-discrimination (or equality) and the
principle of self-determination underlie most of the more concrete rights whose
holders are groups.165 Hence, after discussing these two more general issues, more
concrete group rights as guaranteed by international law will be investigated.
163 G. Alfredsson, Minorities, Indigenous and Tribal Peoples, and Peoples: Defi nitions
of Terms as a Matter of International Law, in N. Ghanea and A. Xanthaki (eds.),
Minorities, Peoples, and Self-Determination: Essays in Honour of Patrick Thornberry
(Martinus Nijhoff Publishers, Leiden 2005), p. 164.
164 See the discussion in the introduction.
165 This position will be explained in the following analysis of group rights in interna-
tional law in this chapter as well as in chapter 4.2.
44 Chapter 2
2.1. Groups and International Law

Since the very beginning of international law, parts of it were on group accom-
modation.166 First it was mainly the Protestant Reformation which forced rul-
ers in light of the new impossibility of enforcing one belief on all people to
provide religious groups rights within their territories and to acknowledge such
rights in international treaties.167 After a while, a second event, the discovery of
the non-European world, slowly gave rise to the idea that peoples have a right
to self-determination. This became a strong (political) claim after the introduc-
tion of majority voting in the Enlightenment and the rise of Romantic national-
ism which encouraged linguistic, cultural and ethnic groups to create their own
national state; where they did not succeed, they were sometimes granted some
rights which could also be included in international agreements.168
The minority treaties following World War I took international law in the
field of minority protection a step further in that they were under the supervi-
sion of the League of Nations, and in that the Permanent Court (of International
Justice) was given jurisdiction in many cases on minority disputes or with a con-
nection to the minority treaties.169 Several judgements and advisory opinions of
the Permanent Court are still of great interest and would arguably even mean a
progress to the current approach of international law to minorities in some re-
gards.170 An example of this is the historical Minority Schools in Albania case171 in
which the Permanent Court pointed out that the main purpose of the protection
of minorities established under the League System warranted the application of
166 Of course, group accommodation dates back to immemorial times. Although it

would be a highly interesting topic to investigate pre-existing approaches, this anal-
ysis focuses on international law in the modern sense which roughly started in the
16th century, and will thus leave earlier approaches aside.
167 If it is meaningful to use the adjective inter-national for issues of that time is
arguably questionable as the concepts of nation, state, and even (legal) treaty
in their modern sense were not fully developed yet. However, the mentioned agree-
ments come close to what we would understand as international treaties today. For
examples of such treaties, cf. e.g., Lerner, Group Rights and Discrimination in In-
ternational Law, supra note 5, p. 7.
168 See on the whole J. B. Muldoon, The Development of Group Rights, in J. A. Sigler
(ed.), Minority Rights: A Comparative Analysis (Greenwood Press, Westport 1983).
169 See H. Hannum, The Concept and Definition of Minorities, in M. Weller (ed.), Uni-
versal Minority Rights: A Commentary on the Jurisprudence of International Courts
and Treaty Bodies (Oxford University Press, New York 2007), pp. 5156.
170 See e.g., J. Castellino, The Protection of Minorities and Indigenous Peoples in Inter-
national Law: A Comparative Temporal Analysis, 17 International Journal on Mi-
nority and Group Rights (2010) 393.
171 Minority Schools in Albania, 6 April 1935, PCIJ, Advisory Opinion, Series A/B No.
64, <www.icj-cij.org/pcij/serie_AB/AB_64/01_Ecoles_minoritaires_Avis_consul-
tatif.pdf>, visited on 22 February 2011.
Group Rights in Contemporary International Law 45
a substantial, as opposed to a merely formal, concept of equality.172 In its protec-

tion of minority groups as such, it had a dimension which largely got lost in the
UN system.173
Indeed, the UN Charter174 of 1945 reflected a fundamental change of inter-
national law; it was created as the legal framework for international cooperation.
The most important event in the young history of the UN, from a human rights-
perspective, was the adoption of the Universal Declaration of Human Rights
(UDHR).175 At once, human rights became a core issue of international law.
Human rights were thereby primarily thought of as rights of individuals against
the state. Proposals to include minority rights in the UDHR made by the Sub-
Commission on Prevention of Discrimination and Protection of Minorities were
not adopted.176 Hence, the new world order designed by the UN did not consider
minority or group rights. With a few exceptions to this, the situation changed to
some extent as the following analysis of the current system will reveal.177
2.2. Groups and the Concept of Self-Determination

Self-determination is plainly a collective rather than an individual right
to be thought of as a right of peoples rather than governments. To the extent
that it applies, it qualifies the right of governments to dispose of the peoples in
question in ways which conflict with their rights to self-determination.
James Crawford 178
172 R. Grote, Minority Rights: Trends and Challenges, in D. Knig and R. Wolfrum
(eds.), International Law Today: New Challenges and the Need for Reform? (Springer,
Berlin 2008), p. 222.
173 Cf. e.g. ibid.
174 Charter of the United Nations, 26 June 1945, <www.icj-cij.org/documents/index.php
?p1=4&p2=1&p3=0&PHPSESSID=5be74026e016bf932fe8aee2958efa2a>, visited on 8
March 2011.
175 Universal Declaration of Human Rights, 10 December 1948, Res. 217 (III), <dac-
cess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/043/88/IMG/NR004388.
pdf?OpenElement>, visited on 11 March 2011.
176 Cf. A. Eide, International Cooperation for Group Accomodation through Minority
Protection: A Review of Standard Setting and Institution Building at Regional and
Global Levels, 13 International Journal on Minority and Group Rights (2006) 153, pp.
156159.
177 As previously discussed, the focus will thereby be on universal group rights which
means that group rights within regional (international) systems as well as in na-
tional legislations which generally are more willing to provide group rights (cf. C.
Johnsson, Nation States and Minority Rights: A Constitutional Law Analysis (Dis-
sertation, Uppsala 2002), pp. 138145) will not be discussed.
178 Crawford, The Rights of Peoples: Peoples or Governments?, supra note 11, p. 59.
46 Chapter 2
The right of self-determination is the prototypical example of a group right in

international law and has, hence, been referred to as the mother of all group
rights.179 However, the principle of self-determination is probably one of the most
controversial principles of contemporary international law. Therefore, the aim
here is to give a short overview of its content in international law with regard to
who are its bearers, as well as what kind of rights it provides.180 The focus thereby
will be on aspects which are important in contemporary international law, and
will leave issues which were mainly relevant in the context of the decolonisation
process aside as this process has been more or less completed.181
2.2.1. Some Main Features

Historically, the principle of self-determination has its roots in the French
Revolution, the American Declaration of Independence, and Rousseaus idea of
179 S. J. Anaya, Superpower Attitudes toward Indigenous Peoples and Group Rights, 93
American Society of International Law. Proceedings of the Annual Meeting (1999) 251,
p. 257.
180 The literature on the right of self-determination is enormous. Important works
are e.g., A. Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge
University Press, Cambridge 1995); J. Crawford, The Right of Self-Determination in
International Law: Its Development and Future, in P. Alston (ed.), Peoples Rights
(Oxford University Press, Oxford 2002); W. F. Danspeckgruber (ed.), The Self-De-
termination of Peoples: Community, Nation, and State in an Interdependent World
(Lynne Rienner, Boulder 2002); H. Hannum, Autonomy, Sovereignty, and Self-
Determination: The Accommodation of Conflicting Rights (2nd edn., University of
Pennsylvania Press, Philadelphia 1996); J. Klabbers, The Right to be Taken Seri-
ously: Self-Determination in International Law, 28 Human Rights Quarterly (2006)
186; K. Knop, Diversity and Self-Determination in International Law (Cambridge
University Press, Cambridge 2002); M. Koskenniemi, National Self-Determination
Today: Problems of Legal Theory and Practice, 43 International and Compara-
tive Law Quarterly (1994) 241; A. Margalit and J. Raz, National Self-Determina-
tion, 87 The Journal of Philosophy (1990) 439; T. D. Musgrave, Self-Determination
and National Minorities (Oxford University Press, Oxford 2002); M. Pomerance,
Self-Determination in Law and Practice: The New Doctrine in the United Nations
(Martinus Nijhoff Publishers, The Hague, Boston 1982); D. Rai, Statehood and the
Law of Self-Determination (Kluwer Law International, The Hague et al. 2002); C.
Tomuschat (ed.), Modern Law of Self-Determination (Martinus Nijhoff Publishers,
Dordrecht et al. 1993); M. Weller and B. Metzger (eds.), Settling Self-Determination
Disputes: Complex Power-Sharing in Theory and Practice (Martinus Nijhoff Publish-
ers, Leiden 2008); short overviews on the topic are provided e.g. by J. Klabbers, Self-
Determination, in D. P. Forsythe (ed.), Encyclopedia of Human Rights (Oxford Uni-
versity Press, Oxford, New York 2009); D. Threr and T. Burri, Self-Determination,
Max Planck Encyclopedia of Public International Law (2008), <www.mpepil.com>,
visited on 20 June 2010.
181 Klabbers, Self-Determination, supra note 180, p. 420.
the social contract between governments and the people being governed.182 The
nationalist movement during the 19th century and at the beginning of the 20th
century reinterpreted the principle to be a legitimate basis to claim a right of
each nation to constitute an independent State. This interpretation had an impact
on the reorganisation of Europe at that time. As a concept on the international
scene, it did not emerge before the end of World War I and was subsequently still
regarded only as a political one.183
At the beginning of the 20th century, the idea of self-determination was
being propagated by Soviet leaders, especially Lenin but also Stalin, as well as
US president Wilson. Whereas the Soviet approach to peoples focused on the
ethnos,184 the Wilsonian approach to self-determination added the idea of popu-
lar sovereignty as a child of Western democracy and hence understood peoples
more as meaning the demos.185 The treaty-making in the aftermath of World War
I shows that self-determination was mainly political rhetoric and subordinated
to the victors geopolitical, economic and strategic interests.186 However, the dif-
182 Cf. Cassese, Self-Determination of Peoples, supra note 180, pp. 1113; Heintze, Vl-
ker im Vlkerrecht, supra note 12, p. 389; generally on the history of the right to self-
determination, cf. K. Rabl, Das Selbstbestimmungsrecht der Vlker: geschichtliche
Grundlagen: Umriss der gegenwrtigen Bedeutung. Ein Versuch (2nd edn., Bhlau,
Kln 1973). Kurt Rabl traces the idea of self-determination of peoples back to the
political philosophy of evangelical reformers of the 16th century. Cf. ibid., pp. 49.
183 Cf. K. Henrard, Devising an Adequate System of Minority Protection: Individual Hu-
man Rights, Minority Rights and the Right to Self-Determination (Martinus Nijhoff
Publishers, The Hague, London 2000), p. 281; Cassese, Self-Determination of Peo-
ples, supra note 180, p. 13.
184 Antonio Cassese points out three components which Soviet declarations in that
time concluded: first, ethnic or national groups shall decide their own destiny free-
ly; second, the principle prohibited the annexation of territories against the will of
the peoples concerned; third, it was an anti-colonial postulate. Inherent to socialist
thinking, self-determination could only be thought of as a means, and therefore
subordinated to the aim of socialism. Ultimately, Lenin and the other Soviet lead-
ers were more interested in the self-determination of the working class in each State
than in the self-determination in their entirety. Ibid., pp. 1819. Nevertheless, the
Soviet Union has had an enormous influence on establishing self-determination as
a general principle of international law. See generally ibid., pp. 1423.
185 As such, Woodrow Wilson added a fourth component with a completely different
philosophical background: self-government. It furthered as such the internal di-
mension of the principle and tried to implement it in a peaceful manner. The ap-
proach was somewhat loose and did not gain general acceptance in international law
making in the beginning. Cf. ibid., pp. 1923.
186 Cf. ibid., pp. 2327.
48 Chapter 2
fering understandings of the notion peoples, which continue to exist today, can
be traced back to this era.187
The first time that the principle of self-determination was incorporated into
a multilateral treaty was in the UN Charter.188 Article 1(2) of the UN Charter
states the development of friendly relations among nations based on respect for
the principle of equal rights and self-determination of peoples as a purpose of the
UN. In the context of international economic and social co-operation (Chapter
IX) in Article 55, it refers back to the same aim.189 Furthermore, the Charter im-
plicitly refers to the principle of self-determination in Articles 73 and 76(b) in con-
nection with Non-Self-Governing Territories and the UN Trusteeship System.190
On the whole, the notion of self-determination was very vague in the be-
ginning; the principle did not provide much more than a moral and political
suggestion that states should grant self-government as much as possible to the
communities over which they exercise jurisdiction.191 This would change to some
extent in the years to come.
The potentially explosive nature192 of self-determination could be seen
when it was being applied on colonial countries and peoples. Without any dis-
senting votes, Resolution 1514(XV)193 was adopted by the UN General Assembly
187 Actually, the underlying tension with regard to the notion of people(s) has existed
even longer; in fact, since the very beginning of the schools of thought of liberalism
and romanticism/nationalism will be discussed in chapter 3.2.1.
188 Thus, the adoption of the UN Charter marks an important turning-point; it signals
the maturing of the political postulate of self-determination into a legal standard of
behaviour. Ibid., p. 43.
189 UN Charter, Article 1(2): The Purposes of the United Nations are To develop
friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples, and to take other appropriate measures to
strengthen universal peace. Chapter IX (International Economic and Social Co-
operation) Article 55: With a view to the creation of conditions of stability and
well-being which are necessary for peaceful and friendly relations among nations
based on respect for the principle of equal rights and self-determination of peoples,
the United Nations shall promote: a. higher standards of living, full employment,
and conditions of economic and social progress and development; b. solutions of
international economic, social, health, and related problems; and international cul-
tural and educational cooperation; and c. universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction as to race, sex,
language, or religion.
190 Threr and Burri, Self-Determination, supra note 180, paras. 67.
191 Cassese, Self-Determination of Peoples, supra note 180, p. 42.
192 Koskenniemi, National Self-Determination Today: Problems of Legal Theory and
Practice, supra note 180, p. 241.
193 Declaration on the Granting of Independence to Colonial Countries and Peoples, 14
December 1960, Res. 1514(XV), <daccess-dds-ny.un.org/doc/RESOLUTION/GEN/
NR0/152/88/IMG/NR015288.pdf?OpenElement>, visited on 9 March 2011.
on 14 December 1960, stating that all peoples have the right of self-determina-
tion.194 The following process of changing non-self-governing colonial territories
into independent States was one of the UNs biggest successes, as it meant a far-
reaching change and was completed peacefully.195
Self-determination was furthered by Article 1 of the International Covenant
on Economic, Social and Cultural Rights (CESCR)196 as well as Article 1 of the
International Covenant on Civil and Political Rights (CCPR):197 All peoples
have the right of self-determination. By virtue of that right they freely deter-
mine their political status and freely pursue their economic, social and cultural
development.198 Moreover, in the Friendly Relations Declaration,199 the General
Assembly clarified the principle of equal rights and self-determination of peo-
ples, enshrined in the UN Charter. According to the Resolution, all peoples
have the right freely to determine, without external interference, their political
status and to pursue their economic, social and cultural development200 and eve-
194 The principles guiding states decision to which territories Chapter XI of the Charter
should be applied were held in Principles Which Should Guide Members in Deter-
mining Whether or Not an Obligation Exists to Transmit the Information Called for
Under Article 73e of the Charter, 15 December 1960, Res. 1541(XV), <daccess-dds-ny.
un.org/doc/RESOLUTION/GEN/NR0/153/15/IMG/NR015315.pdf?OpenElement>,
visited on 9 March 2011.
195 However, Martti Koskenniemi doubts that it was this legal right which led to colo-
nial independence and not politics when he writes: The additional push to national
self-determination created by the practice since the passing of the decolonisation
declaration by the UN General Assembly in 1960 of speaking about it in terms of a
right of a people may not have been necessary to achieve what had already been
decreed by politicsnamely the entry into statehood of some hundred former co-
lonial territories. Koskenniemi, National Self-Determination Today: Problems of
Legal Theory and Practice, supra note 180, p. 241, footnotes omitted.
196 International Covenant on Economic, Social and Cultural Rights, 16 December 1966,
Res. 2200A (XXI), <www2.ohchr.org/english/law/cescr.htm>, visited on 9 March
2011.
197 International Covenant on Civil and Political Rights, 16 December 1966, Res. 2200A
(XXI), <www2.ohchr.org/english/law/ccpr.htm>, visited on 9 March 2011.
198 This formula has been criticised by Antonio Cassese for its nebulous wording that
does not set strict requirements for determining when the non-observance of the
right by a State amounts to a breach of self-determination. Cassese, Self-Determi-
nation of Peoples, supra note 180, pp. 331332.
199 Declaration on Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations, 24
October 1970, Res. 2625(XXV), <daccess-dds-ny.un.org/doc/RESOLUTION/GEN/
NR0/348/90/IMG/NR034890.pdf?OpenElement>, visited on 9 March 2011.
200 By virtue of the principle of equal rights and self-determination of peoples en-
shrined in the Charter of the United Nations, all peoples have the right freely to
determine, without external interference, their political status and to pursue their
economic, social and cultural development, and every State has the duty to respect
50 Chapter 2
ry State has the duty to promote, through joint and separate action, realisation
of the principle of equal rights and self-determination of peoples, in accordance
with the provisions of the UN Charter. Hence, the legal nature of the right to
self-determination was further ascertained.201 Moreover, there have been several
discussions in literature about the question of whether self-determination was
limited on topics regarding decolonisation. Besides the just mentioned Friendly
Relations Declaration, which did not restrict the principle to the colonial con-
text, the Helsinki Final Act of the Conference on Security and Cooperation in
Europe (CSCE) of 1975,202 a soft law-document, has also provided a negative an-
swer to this question.203 Today, the principle is largely recognised as being one
this right in accordance with the provisions of the Charter. Every State has the duty
to promote, through joint and separate action, realization of the principle of equal
rights and self-determination of peoples, in accordance with the provisions of the
Charter, and to render assistance to the United Nations in carrying out the responsi-
bilities entrusted to it by the Charter regarding the implementation of the principle,
in order: (a) To promote friendly relations and co-operation among States; and (b)
To bring a speedy end to colonialism, having due regard to the freely expressed will
of the peoples concerned; and bearing in mind that subjection of peoples to alien
subjugation, domination and exploitation constitutes a violation of the principle, as
well as a denial of fundamental human rights, and is contrary to the Charter. Ibid.,
pp. 123124; this is the wording of the Annex to Resolution 2625(XXV) that was ad-
opted by consensus. Cf. Threr and Burri, Self-Determination, supra note 180, para.
11.
201 James Crawford writes that there was a decisive move in the period from 1960
through 1971 in favour of treating self-determination as a part of international law. By
another historical accident, this coincided with a prolonged attempt by the General
Assembly to articulate a Declaration of Principles of International Law as embodied
in the Charter, which was eventually adopted without a vote in 1970. The principle
of equal rights and self-determination of peoples was given a prominent place in the
Friendly Relations Declaration, further reinforcing the view that self-determination
was an established legal principle. Crawford, The Right of Self-Determination in
International Law: Its Development and Future, supra note 180, pp. 1920.; cf. also
Georges Scelle who referred to self-determination of peoples as normes juridiques
positives, see G. Scelle, Quelques rflexions sur le droit des peuples disposer deux-
mmes, in D. S. Constantopoulos et al. (eds.), Grundprobleme des Internationalen
Rechts: Festschrift fr Jean Spiropoulos (Schimmelbusch & Co., Bonn 1957), p. 385.
202 OSCE: Conference on Security and Co-operation in Europe Final Act, Helsinki 1975, 1
August 1975, <www.osce.org/mc/39501>, visited on 12 March 2011.
203 Cf. Koskenniemi, National Self-Determination Today: Problems of Legal Theory
and Practice, supra note 180, p. 242.
of the essential principles of contemporary international law204 and that it is ap-

plicable outside the decolonisation context.205
Looking back at the last century, the principle of self-determination has had
a unique and unexpected history of success. In Casseses words, the underlying
dynamic has been simple: [S]elf-determination is attractive so long as it has not
been attained; alternatively, it is attractive so long as it is applied to others.206
Overall, self-determination is considered both a medicine but at the same time a
poison indeed, it has a somewhat Janus-like nature.207 Hence, it comes as no
surprise that although the right of self-determination constitutes a fundamental
legal norm of international law, it remains in most regards difficult to grasp or, in
one commentators words, lex lata, lex obscura.208
2.2.2. The Legal Right

In its recent meaning, the right to self-determination is essentially a product of
the UN General Assembly.209 Holder describes it as a groups right to make de-
204 See the decision of the ICJ in the East Timor case: The principle of self-determi-
nation of peoples has been recognized by the United Nations Charter and in the
jurisprudence of the Court it is one of the essential principles of contemporary
international law. East Timor (Portugal v. Australia), 30 June 1995, ICJ, ICJ Reports
1995, p. 90, p. 102.
205 Cf. the Israeli Wall Advisory Opinion where the ICJ applied the right of self-deter-
mination outside of the decolonization context: Legal Consequences of the Construc-
tion of a Wall in the Occupied Palestinian Territory, 9 July 2004, ICJ, Advisory Opin-
ion, ICJ Reports 2004, p. 136, pp. 182183. Unfortunately, it did so without further
legal analysis; that is also why it was criticised by Judge Rosalyn Higgins in her Sepa-
rate Opinion: Higgins (Separate Opinion), Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, 9 July 2004, ICJ, Advisory Opinion,
ICJ Reports 2004, p. 207, p. 214.
206 Cassese, Self-Determination of Peoples, supra note 180, p. 5; he explicates that [t]he
concept of self-determination is both radical, progressive, alluring and, at the same
time, subversive and threatening. Ibid.
207 Ibid.; cf. also Martti Koskenniemis account: The extraordinary difficulties into
which an attempt at a consistent application of the principle leads stem from the
paradox that it both supports and challenges statehood and that it is impossible to
establish a general preference between its patriotic and secessionist senses. Kosken-
niemi, National Self-Determination Today: Problems of Legal Theory and Prac-
tice, supra note 180, p. 249; similar reflections were also made by Georges Scelle, see
Scelle, Quelques rflexions sur le droit des peuples disposer deux-mmes, supra
note 201, pp. 388389.
208 Crawford, The Right of Self-Determination in International Law: Its Development
and Future, supra note 180, p. 26.
209 C. Tomuschat, Secession and Self-Determination, in M. G. Kohen (ed.), Secession:
International Law Perspectives (Cambridge University Press, Cambridge 2006), p. 37.
52 Chapter 2
cisions together and for themselves about the conditions and terms that govern
shared aspects of life.210 Its content is twofold: on the one hand, it confirms a legal
right (in the meaning of a rule) of peoples which deals with individual issues,
and, on the other hand, it is to be understood as a more general legal principle
which serves as a basic overarching guideline with one of its functions being
the interpretation of the UN Charter.211 Its importance as a rule is basically re-
stricted to decolonisation and of minor importance today. Overall, the develop-
ment of the right to self-determination after the Cold War indicates a shift from
self-determination as a rule to self-determination as a principle and process
of legitimacy (as well as a shift from its external to its internal component).212 The
issue has been discussed in chapter 1.1.3; for the current purpose it is enough to
draw attention to the open-textured nature of principles which contrasts with the
more limited application and more determined outcome of a rule.213
Both the customary rules and the principle have been considered as part of
jus cogens214 a classification that is arguably of more dogmatic than practical
relevance, even more as the principle of self-determination is to be read in the
context of the other basic principles of international law that are laid down in the
UN Charter.215
210 Cf. Self-determination is a groups right to make decisions together and for them-
selves about the conditions and terms that govern shared aspects of life. C. Holder,
Self-Determination as a Universal Human Right, 7 Human Rights Review (2006) 5,
p. 8.
211 Cf. Cassese, Self-Determination of Peoples, supra note 180, p. 319; and Threr and
Burri, Self-Determination, supra note 180, paras. 1244; for an overview on the po-
sitions in literature with regard to the right of self-determination and its distinction
in rules and principles, see Knop, Diversity and Self-Determination in Interna-
tional Law, supra note 180, pp. 2949.
212 E.g., Klabbers, The Right to be Taken Seriously, supra note 180.
213 A useful description is the following: The hallmark of a principle, in modern ju-
risprudence, is its open-textured nature. Where the application of a rule leads to a
certain, immediate result and where rules are typically applicable only to single sets
of circumstances (thou shalt not kill has a limited scope, after all), a legal principle
lends itself to application in a variety of circumstances and in a variety of ways. A
principle such as no one shall benefit from their own wrong may apply in murder
cases, but it can also apply to insider trading or even (hypothetically at any rate) to
self-determination. In this light, and while recognizing that terms such as rules,
rights, and principles continue to be used interchangeably in international legal dis-
course, the gradual move to discussing self-determination as a principle is signifi-
cant. Klabbers, Self-Determination, supra note 180, p. 421.
215 However, from a dogmatic perspective the view that a principle of law constitutes
jus cogens seems odd: by defi nition, jus cogens does not tolerate derogations, whereas
a principle by definition does so. I want to thank Ulf Linderfalk for drawing my
attention to this point. A solution to this problem could be seen in Robert Alexys
With regard to the duty bearers, the International Court of Justice (ICJ) has
referred to the highly contested concept of erga omnes obligations as developed
in the Barcelona Traction case216 and attributed this character to the right of peo-
ples to self-determination in the East Timor case.217 Furthermore, in the Israeli
Wall case, it decided that Israels construction of the wall was in breach of the
Palestinian peoples right of self-determination218 and clarified the content of the
erga omnes obligation by stating that all states were under an obligation not to
recognise the illegal situation.219 However, the question of who are the duty bear-
ers of the right of self-determination of peoples should not be muddied by this.
argument that principles include an optimisation command in form of a rule (see

chapter 1.1.4); based on this, it could be argued that a non-application of the prin-
ciple (and disputably also an unjustified outweighing of it amounting to largely the
same) would amount to a breach of the optimisation command where it would in
fact have to be applied. Thus, from this perspective, speaking of a principle as jus
cogens would mean that it is mandatory to consider this principle adequately. But
which legal principle has not to be considered adequately where applicable? Hence,
the point seems largely to boil down to the claim that the weight of a principle be-
longing to jus cogens is high.
216 See Case Concerning the Barcelona Traction, Light and Power Company, Limited
(New Application: 1962) (Belgium v. Spain) Second Phase, 5 February 1970, ICJ, ICJ
Reports 1970, p. 3, at p. 32.
217 In the Courts view, Portugals assertion that the right of peoples to self-determina-
tion, as it evolved from the Charter and from United Nations practice, has an erga
omnes character, is irreproachable. However, this did not prevent the Court from
coming to a negative answer as to the question if it had jurisdiction in the case (as
Indonesia had not agreed on its jurisdiction): However, the Court considers that
the erga omnes character of a norm and the rule of consent to jurisdiction are two
different things. Whatever the nature of the obligations invoked, the Court could
not rule on the lawfulness of the conduct of a State when its judgment would imply
an evaluation of the lawfulness of the conduct of another State which is not a party
to the case. Where this is so, the Court cannot act, even if the right in question is a
right erga omnes. East Timor, supra note 204, p. 102.
218 That construction, along with measures taken previously, thus severely impedes
the exercise by the Palestinian people of its right to self-determination, and is there-
fore a breach of Israels obligation to respect that right. Israeli Wall, supra note 205,
p. 184.
219 Given the character and the importance of the rights and obligations involved, the
Court is of the view that al1 States are under an obligation not to recognize the ille-
gal situation resulting from the construction of the wall in the Occupied Palestinian
Territory, including in and around East Jerusalem. They are also under an obliga-
tion not to render aid or assistance in maintaining the situation created by such con-
struction. It is also for all States, while respecting the United Nations Charter and
international law, to see to it that any impediment, resulting from the construction
of the wall, to the exercise by the Palestinian people of its right to self-determination
is brought to an end. Ibid., p. 200.
54 Chapter 2
Generally, the duty bearer of this right is every state which is a party to the CCPR
and/or CESCR, but even if a state is not a party to these instruments, it still
has some obligations as far as the right to self-determination has become part
of customary law.220 Hence, the erga omnes concept should not be understood as
meaning that the duty bearer is all (omnes) states in the meaning of the states as
a group, but every single state.221 That is also why the ICJ called it Israels obliga-
tion to respect that right in the Israeli Wall case.222 Apart from this, it is doubtful
that all questions that touch upon this right, especially in its form as a principle,
create an obligation erga omnes. Maybe only a breach223 of this right can be
seen as creating such an obligation. However, what exactly amounts to a breach
remains unclear.224
External Component and the Right to Secession

The right of self-determination is usually described as having an internal and
an external component.225 The external component is mainly about the relation
of peoples to other peoples and states, it means that a people has a right to inde-
pendence to its own state, free from colonial subordination as well as military
occupation. In this sense, it constitutes a legal rule. As long as it is not realised, it
is in tension with the principle of sovereignty of states and their territorial integ-
rity. Moreover, when the right is about to be realised, it is typically also in tension
with the uti possidetis-principle.226 It is in this context that the implausible idea of
a right to self-determination restricted to one act arises.227 As mentioned before,
220 For an analysis of the right of self-determination as customary law, e.g., Cassese,
Self-Determination of Peoples, supra note 180, pp. 67140.
221 In this sense, the situation of the duty bearer is not analogous to the situation of a
group right but analogous to that of a group-related right, where the right-holders
are still the individuals.
222 [A]nd is therefore a breach of Israels obligation to respect that right. Israeli Wall,
supra note 205, p. 184.
223 Like in the aforementioned Israeli Wall case, cf. ibid.
224 The only place where some information on this can be found is the Israeli Wall case;
unfortunately, it is not very instructive on this point. Cf. ibid., p. 200.
225 Cf. e.g., P. Thornberry, The Democratic or Internal Aspect of Self-Determination
with some Remarks on Federalism, in C. Tomuschat (ed.), Modern Law of Self-De-
termination (Martinus Nijhoff Publishers, Dordrecht et al. 1993).
226 On this principle and its critique, see S. R. Ratner, Ethnic Conflict and Territorial
Claims: Where Do We Draw a Line?, in D. Wippman (ed.), International Law and
Ethnic Conflict (Cornell University Press, Ithaca NY 1998); and Tomuschat, Seces-
sion and Self-Determination, supra note 209.
227 For a critique see O. Kimminich, A Federal Right of Self-Determination?, in C.
Tomuschat (ed.), Modern Law of Self-Determination (Martinus Nijhoff Publishers,
Dordrecht et al. 1993), pp. 9091.
the external component has lost much of its importance since the (arguable) end
of the decolonisation process. Therefore, its discussion will be kept very short and
the focus will be on its most controversial aspect: the right to secession.228
Generally, international law does not recognise a right to secession outside
of the colonial context;229 secession is usually regarded as a factual phenome-
non, neither legal nor illegal.230 However, the view that such a right could exist in
some way in international law seems to have gained more and more support from
scholars in recent years. If there was such a right it would doubtlessly constitute
a group right as it is hard to think of it in terms of an individual right. Moreover,
if there was a right to secession, it would have to be based somehow on the right to
self-determination as no other legal sources can be found to support such a rights
claim. To make a connection between the groups right to self-determination and
the groups right to secession we would, prima facie, have to accept two things:
first, the right-holder (subject) of the right to self-determination would have to be
a substate group as secession can only make sense in that case; second, the right of
228 For a recent general overview on this right and its discussion from an international
law perspective, cf. D. Threr and T. Burri, Secession, Max Planck Encyclopedia of
Public International Law (2009), <www.mpepil.com>, visited on 23 June 2010.
229 For example, James Crawford has concluded in his report to the Supreme Court of
Canada in 1997: As this brief review demonstrates, state practice since 1945 shows
very clearly the extreme reluctance of states to recognise or accept unilateral seces-
sion outside the colonial context. That practice has not changed since 1989, despite
the emergence during that period of 22 new states. On the contrary, the practice
has been powerfully reinforced. J. Crawford, State Practice and International Law
in Relation to Unilateral Secession: Report by James Crawford, in A. F. Bayefsky
(ed.), Self-Determination in International Law: Quebec and Lessons Learned. Legal
Opinions Selected and Introduced by Anne F. Bayefsky (Kluwer Law Internation-
al, The Hague, Boston 2000), para. 63; Luzius Wildhaber has agreed on this in his
own report to the Supreme Court of Canada, cf. L. Wildhaber, Report by Luzius
Wildhaber, in A. F. Bayefsky (ed.), Self-Determination in International Law: Quebec
and Lessons Learned. Legal Opinions Selected and Introduced by Anne F. Bayefsky
(Kluwer Law International, The Hague, Boston 2000), pp. 6465; in a more recent
inquiry James Crawford comes to the same conclusions, cf. Crawford, The Creation
of States in International Law, supra note 157, pp. 415418.
230 Peter Hilpold for example argues: Mit einem etwas drastischen Bild wird auch ge-
sagt, die Staatengemeinschaft sei kein Selbstmrderclub. Wrde sie ein Recht auf
Sezession auch auerhalb des kolonialen Kontextes anerkennen, so wre die Exi-
stenz ihrer tragenden Elemente fortlaufend gefhrdet. P. Hilpold, Die Sezession
zum Versuch der Verrechtlichung eines faktischen Phnomens, 63 Zeitschrift fr
ffentliches Recht (2008) 117, p. 122; but besides not providing a right to secession,
the international community has not forbidden it either, as he explains. In his view
rightly so, as a consequence of a prohibition of secession would mean in the end that
the international community would have to support any government against any
secessionist movement within its territory, no matter what the reasons for founda-
tion were. Ibid., p. 123.
56 Chapter 2
self-determination would have to contain not only a right to a certain amount of

autonomy within the state (internal dimension of self-determination), but also
a right to leave the state and gain independence (external self-determination)
this was at least the understanding of the right in the colonial context. Whereas
international law is not very clear on the first point but seems to accept it in some
cases, as will be shown in the following, the second point cannot be seen as part
of the right to self-determination outside of the decolonisation process.231
Instead, there is another argumentation which could lead to a right to seces-
sion without having the external self-determination as a basis. The claim which
has gained a lot of support from scholars is the one of remedial secession232 a
right to secession in cases of systematic and massive human rights abuses to-
wards a groups members and serious oppression of a group as such;233 in other
words, in serious cases of a groups deprivation from its internal right to self-
determination.234 Generally, based on the Friendly Relations Declaration235 and
the Vienna Declaration,236 Crawford concludes that
231 Cf. P. Hilpold, The Kosovo Case and International Law: Looking for Applicable
Theories, 8 Chinese Journal of International Law (2009) 47, pp. 5456.
232 Cf. Hilpold, Die Sezession zum Versuch der Verrechtlichung eines faktischen
Phnomens, supra note 230, pp. 127137; the classic on remedial secession is L.
C. Buchheit, Secession: The Legitimacy of Self-Determination (Yale University Press,
New Haven, London 1978), pp. 220223; on remedial secession see also A. Buchan-
an, Justice, Legitimacy, and Self-Determination: Moral Foundations for International
Law (Oxford University Press, Oxford 2007), pp. 331400; and K. Doehring, Self-
Determination, in B. Simma (ed.), The Charter of the United Nations: A Commen-
tary (2nd edn., Oxford University Press, Oxford 2002), pp. 5758, margin nos. 3740.
233 Cf. e.g. Christian Tomuschat: Within a context where the individual citizen is no
more regarded as a simple object, international law must allow the members of a
community suffering structural discrimination amounting to grave prejudice af-
fecting their lives to strive for secession as a measure of last resort after all other
methods employed to bring about change have failed. It is at this juncture that the
debate on a right to secession and the debate on the admissibility of humanitarian
intervention converge to cover the same ground. Tomuschat, Secession and Self-
Determination, supra note 209, pp. 4142.
234 This can be re-connected with the notion of external self-determination: Daniel
Threr and Thomas Burri for example refer to it as a dormant external self-deter-
mination which may be activated in exceptional circumstances. Threr and Bur-
ri, Secession, supra note 228, para. 17; similarly, James Crawford speaks of measures
which may reinforce or even constitute the case for external self-determination.
Crawford, The Right of Self-Determination in International Law: Its Development
and Future, supra note 180, pp. 6465.
235 Friendly Relations Declaration, supra note 199.
236 Vienna Declaration and Programme of Action, 12 July 1993, UN Doc. A/CONF.
157/23, para. 2, <www.unhchr.ch/huridocda/huridoca.nsf/(symbol)/a.conf.157.23.
en>, visited on 9 March 2011.
a State whose government represents the whole people of its territory without dis-
tinction of any kind, that is to say, on a basis of equality, and in particular without
discrimination on grounds of race, creed or colour, complies with the principle of
self-determination in respect of all of its people and is entitled to the protection of
its territorial integrity. To put it another way, the people of such a State exercise the
right of self-determination through their participation in the government of the
State on a basis of equality.237
The argumentation in favour of the existence of a right to secession is based on

an e contrario reasoning of this; indeed, the point is that governments which do
not comply with the requirement of representation and non-discrimination lose
their sovereignty over the oppressed part.238 Some legal developments seem to be
in favour of such an understanding. For instance, the Advisory Opinion of the
Canadian Supreme Court in Reference re Secession of Quebec has left the possibil-
ity open that under specific circumstances remedial secession could be consid-
ered legal.239 In a similar vein, the African Commission has argued according to
Wheatley that a denial of the rights of political participation when accompanied
by serious human rights abuses may call into question the territorial integrity of
a State party to the African Charter on Human and Peoples Rights.240
237 J. Crawford, State Practice and International Law in Relation to Secession, 69 The
British Year Book of International Law (1998) 85, pp. 113114.
238 Cf. generally Threr and Burri, Secession, supra note 228, paras. 1520; against such
a progressive interpretation of the safeguard clause, see Hilpold, Die Sezession
zum Versuch der Verrechtlichung eines faktischen Phnomens, supra note 230, pp.
127137.
239 A right to external self-determination (which in this case potentially takes the form
of the assertion of a right to unilateral secession) arises in only the most extreme
of cases and, even then, under carefully defi ned circumstances. Reference re Se-
cession of Quebec, 20 August 1998, Supreme Court of Canada, [1998] 2 S.C.R. 217,
para. 126, <csc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.pdf>, visited
on 22 February 2011; moreover, the Court stated later on: The continued existence
and operation of the Canadian constitutional order could not be indifferent to a
clear expression of a clear majority of Quebecers that they no longer wish to remain
in Canada. The other provinces and the federal government would have no basis
to deny the right of the government of Quebec to pursue secession, should a clear
majority of the people of Quebec choose that goal, so long as in doing so, Quebec
respects the rights of others. Ibid., para. 151; Marc Weller writes on this: Of course,
this expansive reading of a right to constitutional self-determination may not yet be
firmly established in international law general practice still appears to require an
express confirmation of a right to secession in the constitution in order to generate a
definite international legal entitlement to secede. Weller, Settling Self-determina-
tion Conflicts, supra note 67, p. 124.
240 S. Wheatley, Democracy, Minorities and International Law (Cambridge University
Press, Cambridge 2005), p. 97.
58 Chapter 2
Although he finds the argument for remedial secession a respectable and

commendable normative proposition, Klabbers argues that state practice has
shown hitherto fairly little empirical support for the thesis that self-determina-
tion can take the form of a remedial right.241 One example which seems to jus-
tify secession under specific circumstances is Security Council Resolution 1244
(1999) regarding Kosovo.242 However, like many cases where secession is involved
in some way, Kosovo has been referred to as an exception and/or a unique special
case in order to avoid a precedence case.243 More seriously, Klabbers draws atten-
tion to a potentially nasty side effect hidden in this proposition: [I]t might be
241 Klabbers, Self-Determination, supra note 180, p. 425; see also Crawford, State Prac-
tice and International Law in Relation to Unilateral Secession, supra note 229, para.
71.
242 UN Security Council Resolution 1244 (1999) on the Situation Relating Kosovo, 10 June
1999, UN Doc. S/RES/1244 (1999), <daccess-dds-ny.un.org/doc/UNDOC/GEN/
N99/172/89/PDF/N9917289.pdf?OpenElement>, visited on 27 January 2010; Chris-
tian Tomuschat concludes that this resolution can be deemed to constitute the
first formalized decision of the international community recognizing that a human
community within a sovereign State may under specific circumstances enjoy a right
of self-determination. See Tomuschat, Secession and Self-Determination, supra
note 209, p. 34.
243 Cf. generally, Threr and Burri, Secession, supra note 228, para. 38; on the right
to self-determination and the case of Kosovo, see e.g. Hilpold, The Kosovo Case
and International Law: Looking for Applicable Theories, supra note 231; A. Ora-
khelashvili, Statehood, Recognition and the United Nations System: A Unilateral
Declaration of Independence in Kosovo, 12 Max Planck Yearbook of United Nations
Law (2008) 1. However, according to this author, Kosovo has no such right to self-
determination as it does not constitute an entity which could be the bearer of that
right, see ibid., p. 11; furthermore, cf. R. Mllerson, Precedents in the Mountains:
On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abkha-
zia, 8 Chinese Journal of International Law (2009) 2. He investigates and questions
in some regards the uniqueness of the cases of Kosovo, Abkhazia, and South Os-
setia as in his view it is much a question of perspectives and, hence, he criticises
the selective choice of cases in which secession is justified on its sui generis nature;
for an analysis of the use of legal arguments in international politics explained on
the case of Kosovo as well as South Ossetia and its effects and importance, see C.
J. Borgen, The Language of Law and the Practice of Politics: Great Powers and the
Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia, 10 Chi-
cago Journal of International Law (2009) 1; for a discussion of the ethnos/demos
divide of self-determination and its role in the context of polity formation based on
the events in Kosovo and its contested independence, see Z. Oklopcic, Populus In-
terruptus: Self-Determination, the Independence of Kosovo, and the Vocabulary of
Peoplehood, 22 Leiden Journal of International Law (2009) 677; for an extensive and
more general discussion of the Kosovo crisis in form of a Dostoievskian dialogue,
see R. J. Delahunty and A. F. Perez, The Kosovo Crisis: A Dostojevskian Dialogue
on International Law, Statecraft, and Soulcraft, 42 Vanderbilt Journal of Transna-
tional Law (2009) 15.
beneficial to exaggerate the scope of human rights violations; it might even be

beneficial to stimulate and provoke gross violations if, at the end of the rainbow,
there is a pot of gold waiting in the form of secession.244 Overall, a right to re-
medial secession cannot be seen as part of the lex lata of contemporary interna-
tional law and remains a highly contested issue.
Internal Component
The internal component of self-determination is referred to as the right of peoples
to a certain amount of autonomy short of sovereign independence. In the words
of Crawford, the internal right of self-determination contains the recognition
of cultural identity and internal self-government for different groups or peoples
within the State.245 He goes on to say that
[t]raditionally international law treated such issues as essentially matters of do-

mestic jurisdiction, as reflected in the very reserved formulation in the minority
rights clause, Article 27, of the International Covenant on Civil and Political Rights.
Developments in respect of the idea of internal self-determination and self-govern-
ment are, however, occurring, and they are accompanied by an extension of minor-
ity rights, including the rights of national minorities, and an increased recognition
of the rights of indigenous peoples. Consistently with these developments, the term
peoples is coming to be seen as more inclusive, and is not limited to the people of
the State as a whole. But these developments are still tentative (de lege ferenda), and
they do not affect the established rules and practices with respect to self-determina-
tion and the territorial integrity of States.246
Whereas one can agree on his description of the internal component of the right
to self-determination, there is need for clarification with regard to the de lege
ferenda nature he attaches to it and his treatment of it as if it was not part of
the right to self-determination. The internal component has always been there247
244 Klabbers, Self-Determination, supra note 180, p. 425.

245 Crawford, State Practice and International Law in Relation to Secession, supra note
237, p. 114.
246 Ibid.
247 Of course, classically, self-determination has been defi ned as the right of peoples
freely to determine their political status and pursue their economic, social, and cul-
tural development. In practice, the application of this provision had been severely
contextually reduced, in both its external and internal dimensions Internal self-
determination would address both the constitutional system of public authority and
the right of democratic participation in governance. However, it was simply pre-
sumed that any constitutional system and structures of governance were, merely
by virtue of their existence, the product of free determination by the people con-
60 Chapter 2
and has gained much more importance in recent years,248 so Klabbers comes to
the opposite conclusion, that self-determination outside of decolonisation actu-
ally means internal self-determination rather than external self-determination
and secession.249 There is a strong move towards such an understanding, focusing
on the democratic and federal internal dimension of the right to self-determi-
nation.250 Furthermore, this is also increasingly reflected in state practice. Most
cerned. Weller, Settling Self-determination Confl icts, supra note 67, p. 164, foot-
notes omitted.
248 It would however be fallacious to conclude that the adoption of common Article
2 [of the CCPR] was a Pyrrhic victory for the West: for the first time a powerful
concept was enshrined in international legal rules, a concept destined to have a
snowball effect as soon as the climate of international relations changed. Indeed,
the break up of the Soviet empire and the gradual opening of Central and Eastern
European countries to democratic doctrines, as well as the implementation of the
same doctrine in Latin America are now setting the stage for both the revitalization
of Article 1 common to the two Covenants, and the gradual crystallization of a cus-
tomary norm proclaiming internal self-determination as a principle of democratic
governance. Cassese, Self-Determination of Peoples, supra note 180, p. 323.
249 Now that self-determination can no longer simply be construed as a right of colo-
nies to independence, it has evolved into a right of peoples to take part in decisions
affecting their future self-determination is best understood as a procedural right;
that is, entities have a right to see their position taken into account whenever their
futures are being decided. That may not amount to a right to secede or even to a right
to autonomy or self-government, but it does amount to a right to be taken seriously.
Klabbers, The Right to be Taken Seriously, supra note 180, p. 189, footnotes omit-
ted.
250 For a useful overview on the issue, see G. H. Fox, Democracy, Right to, Interna-
tional Protection, Max Planck Encyclopedia of Public International Law (2008),
<mpepil.com>, visited on 28 June 2010; see also the collected papers on the right to
democratic governance and related issues and discussions in G. H. Fox and B. R.
Roth (eds.), Democratic Governance and International Law (Cambridge University
Press, Cambridge 2000); a classical point of reference on the issue is T. M. Franck,
The Emerging Right to Democratic Governance, 86 American Journal of Interna-
tional Law (1992) 46; cf. also N. Petersen, The Principle of Democratic Teleology in
International Law, 34 Brooklyn Journal of International Law (2008) 33. He negates
the existence of a right to democratic governance but points to the process-oriented
character of democratisation which leads him to the notion of the principle of dem-
ocratic teleology which underlies contemporary international law; for accounts on
democratic governance with special reference to federal structures, see Kimminich,
A Federal Right of Self-Determination?, supra note 227; Thornberry, The Demo-
cratic or Internal Aspect of Self-Determination with some Remarks on Federalism,
supra note 225; D. Threr and M. MacLaren, A Common Law of Democracy? An
Experimental Conceptualization, in A. Auer et al. (eds.), Les droits de lhomme et
la constitution: tudes en lhonneur du professeur Giorgio Malinverni (Schulthess
Juristische Medien, Genve 2007); and D. Threr and M. MacLaren, In and Around
the Ballot Box: Recent Developments in Democratic Governance and International
prominently, the recognition of an internal right to self-determination can be

seen in recent examples of construction and governance of (new) states.251 In
other words, to some degree internal self-determination is part of the lex lata,
however, probably not in the form of a legal rule but rather as a legal principle.252
2.2.3. The Subject

On the surface it seemed reasonable: let the people decide. It was in fact ri-
diculous because the people cannot decide until somebody decides who are
the people.
Sir Ivor Jennings253
Despite its somewhat disparaging tone, this introductory remark points to a cen-
tral problem when dealing with the right of self-determination: which unit does
international law refer to when speaking in this context of peoples? Neither a
subjective (based on the will of people(s)) nor an objective (based on certain
characteristics) approach seem to be able to answer this question in a principled
way.254 Overall, the discussion on the problems of defining the right-holding group
as conferred in chapter 1.2 apply also to the discussion of this right. Nevertheless,
what is clear today is that the right-holder of the right to self-determination is the
people as such and not the government.255
Law Put into Context, in M. G. Kohen (ed.), Promoting Justice, Human Rights and
Conflict Resolution through International Law: Liber Amicorum Lucius Caflisch
(Martinus Nijhoff Publishers, Leiden, Boston 2007); sceptical with regard to a fed-
eral dimension, e.g., S. Boysen, Demokratische Selbstbestimmung?: Zum Verhltnis
von staatlicher Integritt und Gruppenrechten im Vlkerrecht, 47 Archiv des Vlk-
errechts (2009) 427; a more general overview on the inter-related issues of minority
rights, self-determination and the right to democratic governance is provided by
Wheatley, Democracy, Minorities and International Law, supra note 240.
251 Cf. the cases discussed in Weller, Settling Self-determination Conflicts, supra note
67.
252 See above chapter 1.1.4; cf. also Crawford, The Right of Self-Determination in Inter-
national Law: Its Development and Future, supra note 180, p. 66.
253 I. Jennings, The Approach to Self-Government (Cambridge University Press, Cam-
bridge 1956), p. 56.
254 To summarize, the first and most obvious logical difficulty with r.u.p.s [rights at-
tributed universally to people] the absence of any indication of which collectivities
are peoples remains a quarter of a century after the adoption of the Covenants one
of the most serious difficulties, as a result of the absence of any mechanism to fi ll the
gap in an authoritative manner, either by general stipulation or by the accumulation
of case judgment. Makinson, On Attributing Rights to All Peoples: Some Logical
Questions, supra note 99, p. 56.
255 Cf. especially Crawford, The Rights of Peoples: Peoples or Governments?, supra
note 11; in this sense misleading is the Vienna Declaration and Program of Action
62 Chapter 2
Generally, the term people (with the plural peoples) faces the same dif-
ficulties as the terms nation, minority, national minority and similar terms;
thus, no definition exists. Moreover, it is worth noting at this point that the
Human Rights Committee has refused to address this topic under the Optional
Protocol to the CCPR.256 However, contemporary international law is not com-
pletely silent on who shall enjoy the right of self-determination.257 Musgrave
lists four different definitions of the term people as used in international law:258
Kelsens definition, the decolonisation definition, the representative government
definition, and the ethnic definition. Kelsens definition that the state is the peo-
ple is incorrect as different international treaties distinguish these two terms.
Currently, also the decolonisation definition that narrows the self of the right
of self-determination in considering only colonial peoples as peoples has met
widespread disapproval as evidenced from a textual analysis of important inter-
national treatises as well as from UN practice.259 Hence, today the representative
government definition and the ethnic definition are the prevailing definitions
in contemporary international law.
According to Musgrave, the representative government definition of a peo-
ple is characterised by two features:
(1) it is universal in scope, applying both to sovereign and independent states and to
non-self-governing territories, and (2) the people in question comprise the entire
population of the political entity, which means that the people is defined by the ter-
ritorial limits of the state. These two features of a people under the representative
when stating: In accordance with the Declaration on Principles of International

Law concerning Friendly Relations and Cooperation Among States in accordance
with the Charter of the United Nations, this shall not be construed as authorizing
or encouraging any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent States conduct-
ing themselves in compliance with the principle of equal rights and self-determina-
tion of peoples and thus possessed of a Government representing the whole people
belonging to the territory without distinction of any kind. Vienna Declaration and
Programme of Action, supra note 236, para. 2, emphasis added.
256 Optional Protocol to the International Covenant on Civil and Political Rights, 16 De-
cember 1966, Res. 2200A (XXI), <www2.ohchr.org/english/law/ccpr-one.htm>, vis-
ited on 9 March 2011. See the discussion in chapter 2.4.4.
257 Antonio Cassese argues that international legal rules do indeed specify the units
of self-determination to which they grant an international right albeit indirectly
and perhaps somewhat obliquely. Cassese, Self-Determination of Peoples, supra
note 180, p. 327; cf. also I. Brownlie, The Rights of Peoples in Modern International
Law, in J. Crawford (ed.), The Rights of Peoples (Clarendon Press, Oxford 1988), p. 5.
258 Musgrave, Self-Determination and National Minorities, supra note 180, pp. 148
179.
259 Ibid., p. 151.
government concept of self-determination help to ensure that its ultimate objective

is achieved, namely the periodic exercise of popular sovereignty within a given po-
litical unit in order to obtain a representative government.260
Although this interpretation is supported by different important international

treaties,261 criticisms have arisen due to its failure to take into account the im-
pact of linguistic, cultural and religious factors which influence how populations
identify themselves, and thus the often ethnically oriented political representa-
tion of the exercise of popular sovereignty within multi-ethnic states.262
Albeit, the fact that the representative government definition of the term
people dominates in international law, an ethnic definition has continued to ap-
pear in different international law documents as well as in state practice and lit-
erature.263 The weaknesses of such an approach are obvious as ethnicity includes
a wide range of subjective and objective elements that vary from case to case. In
other words, it is a construction that is difficult to handle by law.264 Furthermore,
it is arguably problematic as it might permit the exercise of the right of self-de-
termination on a discriminatory basis and could therefore be in conflict with hu-
man rights.265 Nevertheless, the existence of this definition arguably shows that
states seem not to view all important aspects of the right to self-determination
covered by the representative government definition. As a consequence, the sub-
jects of the right to self-determination cannot be determined definitively.
Another instance which should be mentioned is that self-determination has
traditionally been connected to peoples which are territorially bound. This con-
nection of self-determination and territory is philosophically questionable266 and
legally connected to a biased view of self-determination in its external meaning.
260 Ibid., p. 152.

261 Cf. also Steven Wheatley who refers to this interpretation as the territorial interpre-
tation. Wheatley, Democracy, Minorities and International Law, supra note 240,
pp. 7576; he sees this territorial interpretation confirmed in: Marie-Hlne Gillot
et al. v. France, 15 July 2007, HRCee, Communication No. 932/2000, <www.unhchr.
ch/tbs/doc.nsf/(Symbol)/12769c97c02eee6ac1256c38002e171f?Opendocument>, vis-
ited on 22 February 2011.
262 Musgrave, Self-Determination and National Minorities, supra note 180, pp. 151154.
263 See for several such examples and a critique of the ethnic definition: ibid., pp. 154
167.
264 The ethnic approach is very much interrelated with the idea of a nation and, as
mentioned before, faces the same problems of definition. See J. Marko, Autonomie
und Integration: Rechtsinstitute des Nationalittenrechts im funktionalen Vergleich,
Habilitationsschrift Universitt Graz 1994 (Bhlau, Wien et al. 1995), pp. 3750.
265 Cf. Musgrave, Self-Determination and National Minorities, supra note 180, pp.
154156.
266 In fact, no convincing philosophical reasons can be found to justify such a limita-
tion of the right to self-determination only to territorial entities according to Avis-
64 Chapter 2
However, besides these conceptual difficulties, in concrete situations, the

existence of a people is often out of question. In the few legal inquiries of the
ICJ in which the claim of groups to constitute a people was involved, this claim
regularly went unchallenged. Examples are the Western Sahara case,267 the East
Timor case 268 and the Israeli Wall case.269
The question of whether minorities constitute peoples in the legal under-
standing, and can therefore be understood as bearers of the right to self-determi-
nation, is strongly contested. That they do so at least as part of the whole popula-
tion is established beyond doubt.270 By contrast, there are doubts if a minority as
an ethnic community can be viewed as a people.271 Some authors argue for such
hai Margalit and Joseph Raz. Cf. Margalit and Raz, National Self-Determination,
supra note 180; for a recent discussion of the importance of territory in the context of
the right to self-determination in contemporary international law, see J. Castellino,
Territorial Integrity and the Right to Self-Determination: an Examination of the
Conceptual Tools, 33 Brooklyn Journal of International Law (2008) 503.
267 In short, the decolonization process to be accelerated which is envisaged by the
General Assembly in this provision is one which will respect the right of the popula-
tion of Western Sahara to determine their future political status by their own freely
expressed will The right of that population to self-determination constitutes
therefore a basic assumption of the questions put to the Court. Western Sahara, 16
October 1975, ICJ, Advisory Opinion, ICJ Reports 1975, p. 12, at p. 36.
268 For the two Parties, the Territory of East Timor remains a non-self-governing terri-
tory and its people has the right to self-determination. East Timor, supra note 204,
p. 103, emphasis added; cf. also ibid., pp. 105106.
269 As regards the principle of the right of peoples to self-determination, the Court ob-
serves that the existence of a Palestinian people is no longer in issue. Israeli Wall,
supra note 205, pp. 182183. It argues that Israel has accepted the view that Palestin-
ians constitute a people and refers to legal, as well as political, documents showing
so. With regard to the aforementioned cases, it is worth noting that this Advisory
Opinion was on an issue outside of the decolonisation process.
270 Cf. for such an argumentation Higgins, Problems and Process, supra note 144,
pp. 121128; and the discussion of Rosalyn Higgins position in J. Wright, Minor-
ity Groups, Autonomy, and Self-Determination, 19 Oxford Journal of Legal Studies
(1999) 605, pp. 625628.
271 An overview on different positions can be found in M. Nowak, U.N. Covenant on
Civil and Political Rights: CCPR Commentary (2nd edn., Engel, Kehl 2005), pp. 1922.
an understanding,272 and some under certain conditions;273 however, in general

it can be said that minorities are not considered to be the bearers of the right to
self-determination in its external meaning and in the form of a legal rule.274 An
exception might be the right of racial groups not to be subordinated to an apart-
heid regime a legal right (in the form of a rule) to a certain degree of internal
self-determination.275 In the form of a legal principle, the right to self-determina-
tion in its internal meaning may be broader and include to some degree minority
groups as such, but a clear line of the lex lata is difficult to draw in this context.276
272 See, with further references, Wright, Minority Groups, Autonomy, and Self-Deter-
mination, supra note 270, pp. 625628; in this sense also the General Recommenda-
tion No. 21 (on the right to self-determination) of the CERD: In order to respect
fully the rights of all peoples within a State, Governments are again called upon to
adhere to and implement fully the international human rights instruments and in
particular the International Convention on the Elimination of All Forms of Racial
Discrimination. CERD: General Recommendation No. 21: Right to Self-Determina-
tion, 23 August 1996, para. 5, <www.unhchr.ch/tbs/doc.nsf/(Symbol)/dc598941c9e68
a1a8025651e004d31d0?Opendocument>, visited on 6 July 2010, emphasis added; see
also I. Garvalov, The United Nations International Convention on the Elimination
of All Forms of Racial Discrimination, in K. Henrard and R. Dunbar (eds.), Syn-
ergies in Minority Protection: European and International Law Perspectives (Cam-
bridge University Press, Cambridge 2008), pp. 268269.
273 E.g., Francesco Capotorti writes: Taking into account the text of this Declaration,
it can be stated that contemporary international law does not recognize the right of
minorities to self-determination, unless a given minority has a historical right to
be called a people, and provided that the State to which a minority group belongs
is subject to a government representing the whole people, without discrimination
based on race, creed or colour. F. Capotorti, Are Minorities Entitled to Collective
International Rights?, in Y. Dinstein and M. Tabory (eds.), The Protection of Mi-
norities and Human Rights (Martinus Nijhoff Publishers, Dordrecht et al. 1992), pp.
509510, footnotes omitted.
274 Essentially, self-determination is a child of the General Assembly (GA). In the eyes
of the GA, however, and also of the Commission on Human Rights, external self-
determination as a right to establish an independent State does not exist for ethnic
communities which constitute integral elements of a sovereign State and are thus
able to take part in the conduct of public affairs of that State. Legal doctrine over-
whelmingly shares this view. Tomuschat, Secession and Self-Determination, supra
note 209, p. 37.
275 Cf. Cassese, Self-Determination of Peoples, supra note 180, p. 319.
276 An indicator that this understanding has become accepted in international law is
e.g. the changed practice of the Human Rights Committee as a quasi-judicial body
which has started to use the right of self-determination for the interpretation of
other provisions, especially Articles 25, 26, and 27 of the CCPR. Cf. with further
references Nowak, U.N. Covenant on Civil and Political Rights, supra note 271, p.
19; see also the discussion in 2.4.4.
66 Chapter 2
One of the main reasons for the reluctance of states to accept minorities as
bearers of the right of self-determination is connected with its external compo-
nent which was traditionally more visible and, accordingly, potentially dangerous
to the unity of the state. It is also interesting to note that from a historical point
of view, the principle of self-determination was not incorporated in the Covenant
of the League of Nations;277 instead, a minority rights system was established. The
relation of the principle of self-determination to the system of minority protec-
tion and the mandate system of the League of Nations was close; however, the
minority protection measures in that system can be seen as a kind of alternative
to self-determination.278 Hence, Henrard states that the League of Nations period
arguably contained the germ of the strict distinction between a right to self-
determination of peoples and the rights of (members of) minorities.279
2.3. Groups and the Concept of Equality and Non-Discrimination in

International Law
After having taken a closer look at the right of self-determination of peoples, we
will now turn to another fundamental principle of international law which could
also be crucial in the context of groups. Traditionally, the principle of non-dis-
crimination is viewed as protecting individuals and not groups; however, there is
a connection between that principle and the protection of groups which might be
relevant to the discussion of group rights in international law.280 This connection
will be explored in the following section.
277 League of Nations: Covenant of the League of Nations, 28 April 1919, <www.unhcr.
org/refworld/docid/3dd8b9854.html>, visited on 12 March 2011.
278 Cf. Henrard, Devising an Adequate System of Minority Protection, supra note 183,
p. 282; Cassese, Self-Determination of Peoples, supra note 180, pp. 2627; cf. also
The Aaland Islands Question. Report submitted to the Council of the League of
Nations by the Commission of Rapporteurs, League of Nations Council Doc. B7,
21/68/106 VII, 16 April 1921; for a discussion of this interesting case, see M. Suksi,
What Can We Learn From the land Islands Case?, in D. Threr and Z. Kedzia
(eds.), Managing Diversity: Protection of Minorities in International Law (Schulthess
Juristische Medien, Zrich 2009).
279 Furthermore, she concludes that it can be argued in this respect that the minor-
ity rights, as conceptualized by the League of Nations, did not even come close to
self-determination despite their allegedly identical purpose. Henrard, Devising an
Adequate System of Minority Protection, supra note 183, p. 282.
280 For an overview on the history of equality and non-discrimination becoming prin-
ciples of international law, see generally W. A. McKean, Equality and Discrimination
under International Law (Clarendon Press, Oxford 1983).
2.3.1. Some Main Features

Conceptually, the principle of non-discrimination is intimately related with the
notion of equality.281 In fact, it can be seen as the application of equality as a refer-
ence standard to a concrete situation and, in this sense, it can also be understood
as a negative formulation of the principle of equality.282 As a result, all difficulties
in defining the content of equality are immanent to the concept of non-discrim-
ination as well.283 Radbruch once captured a main feature of equality in the follo-
wing words: Gleichheit ist ja nicht eine Gegebenheit, die Dinge und Menschen
sind so ungleich, wie ein Ei dem andern, Gleichheit ist immer nur Abstraktion
von gegebener Ungleichheit unter einem bestimmten Gesichtspunkte.284 Let me
reformulate this idea in order to clarify this quotation: a world not knowing the
concept of equality would consist of persons and things (and processes and cir-
cumstances) not being the same; at least in their concrete ingredients or location,
all things and even more persons differ (in the trivial meaning of not being
the same). Maybe the similarities could be noticed, but the differences would
be the basic feature. What equality adds when entering this world is that, still
acknowledging that nothing is the same, things can be seen more abstractly as
equal with regard to certain features and be, in this limited regard, considered
281 Moreover, equality is intrinsically related with the concept of justice and law. Cf. A.
Peczenik, Juristic Definition of Law, 78 Ethics (1968) 255, p. 255.
282 E.g., A. F. Bayefsky, The Principle of Equality or Non-Discrimination in Inter-
national Law, 11 Human Rights Law Journal (1990) 1, pp. 12; of course, not every
deviation of equality can be seen as legally relevant and hence a discrimination;
however, the more technical (legal) use of the term discrimination in the context
of a concrete legal instrument should not distract from the fact that, basically, non-
discrimination and equality refer to the same concept. But see A. Lester and S. Jo-
seph, Obligations of Non-Discrimination, in D. J. Harris and S. Joseph (eds.), The
International Covenant on Civil and Political Rights and United Kingdom Law (Clar-
endon Press; Oxford University Press, Oxford, New York 1995), p. 565.
283 The complexity of the concepts of non-discrimination and equality and their con-
nection are enormous and cannot be discussed in this work. The focus here will
lie on a few main ideas which seem to be important when discussing group rights.
On equality, non-discrimination and justice, e.g., G. Vlastos, Justice and Equality,
in J. Waldron (ed.), Theories of Rights (Oxford University Press, Oxford, New York
1984); and A. J. Morris, On the Normative Foundations of Indirect Discrimination
law: Understanding the Competing Models of Discrimination Law as Aristotelian
Forms of Justice, 15 Oxford Journal of Legal Studies (1995) 199; on contemporary
non-discrimination law, e.g., N. Bamforth et al., Discrimination Law: Theory and
Context (Sweet & Maxwell, London 2008); and D. Schiek et al., Cases, Materials and
Text on National, Supranational and International Non-Discrimination Law (Hart,
Oxford 2007).
284 G. Radbruch, Rechtsphilosophie (6th edn., K.F. Koehler, Stuttgart 1963), p. 126.
68 Chapter 2
the same.285 The problem which follows is that the concept itself does not tell us
which features should be relevant to establish equality among things and persons
and so on; hence, this is where the source of disagreement lies; this is what sepa-
rates liberalists from socialists for example.
2.3.2. The Legal Right

Generally, four elements have to be tested to establish whether discrimination is
taking place,286 whereas intention is not a necessary element of discrimination:
(1) Is there differential treatment? (2) Are the cases equal? (3) Is there an objec-
tive and reasonable justification? (4) Is there proportionality between the aim and
means?
The first and second questions establish whether the concept of equality is
applicable to the present case and whether the case is in conflict with the princi-
ple of equality. The third and fourth questions imply such a conflict between the
present case and that principle, and investigate if the legitimacy of the ends and
the proportionality of means to the ends can justify the alleged deviation from
the principle.287 If the first and second questions have to be answered the same,
positively or negatively, the third and fourth questions have to be met in order to
establish if there is a violation of the principle of non-discrimination.
The principle of non-discrimination is included in several covenants and con-
stitutes, in many regards, a rule;288 furthermore, it is a widely recognised principle of
285 But see Dagmar Schiek in Schiek, Waddington and Bell, Cases, Materials and Text
on National, Supranational and International Non-Discrimination Law, supra note
283, p. 27, who writes that the quotation of Gustav Radbruch Gleichheit ist immer
nur Abstraktion von gegebener Ungleichheit captures that persons are never alike
in all aspects (note that this, contrary to my understanding, would imply that, gen-
erally, they would be alike).
286 See W. Vandenhole, Non-Discrimination and Equality in the View of the UN Human
Rights Treaty Bodies (Intersentia, Antwerpen 2005), pp. 3334.
287 See Bayefsky, The Principle of Equality or Non-Discrimination in International
Law, supra note 282, pp. 1112.
288 The principle is included in the UN human rights treaties, most importantly the
CCPR, CESCR, CERD, and CEDAW. For a general overview of the practice of the
treaty bodies with regard to non-discrimination and equality, see Vandenhole, Non-
Discrimination and Equality in the View of the UN Human Rights Treaty Bodies,
supra note 286; generally, the scope of the right of non-discrimination is restricted
in the CESCR, CERD and the CEDAW to the provided (human) rights and hence
it is not autonomous. (The CEDAW is a special case in that it is the only conven-
tion which is asymmetrically conceptualized with women as the only beneficiaries
and not naming the status sex as a prohibited ground of discrimination, allowing
women as well as men to claim such a discrimination. On this, see Y. Hangartner,
Staatliches Handeln im Bereich von Diskriminierungsverboten, in S. Breitenmoser
et al. (eds.), Human Rights, Democracy and the Rule of Law: Liber Amicorum Luz-
international law and has been regarded (at least partly) as jus cogens.289 Moreover,
the principle of equality of peoples is included in Article 1(2) of the UN Charter290
ius Wildhaber (Dike Verlag; Nomos, Zrich, Baden-Baden 2007), pp. 13061307.) In
contrast, Article 26 of the CCPR provides, as confirmed by the practice of the Hu-
man Rights Committee, the right of non-discrimination as an independent right in
addition to the accessory prohibition of discrimination in Article 2 of the CCPR. See
Nowak, U.N. Covenant on Civil and Political Rights, supra note 271, pp. 604605;
in the context of the ECHR (Council of Europe: Convention for the Protection of Hu-
man Rights and Fundamental Freedoms (ECHR), 4 November 1950, ETS No. 5), it has
only recently been extended by the entry into force of Protocol No. 12 to the ECHR
for 18 states up to 28 January 2011 with the general prohibition of discrimination. See
Council of Europe: Protocol No. 12 to the ECHR, 4 November 2000, CETS No. 177.
289 See for example the argumentation by the IACtHR: [T]his Court considers that the
principle of equality before the law, equal protection before the law and non-dis-
crimination belongs to jus cogens, because the whole legal structure of national and
international public order rests on it and it is a fundamental principle that perme-
ates all laws. Nowadays, no legal act that is in conflict with this fundamental prin-
ciple is acceptable, and discriminatory treatment of any person, owing to gender,
race, color, language, religion or belief, political or other opinion, national, ethnic
or social origin, nationality, age, economic situation, property, civil status, birth or
any other status is unacceptable. Th is principle (equality and non-discrimination)
forms part of general international law. At the existing stage of the development
of international law, the fundamental principle of equality and non-discrimination
has entered the realm of jus cogens. Juridical Condition and Human Rights of the
Undocumented Migrants, 17 September 2003, IACtHR, Advisory Opinion, Series A
No. 18, para. 101, <www.corteidh.or.cr/docs/opiniones/seriea_18_ing.pdf>, visited
on 22 February 2011; in the Barcelona Traction case the ICJ held that obligations erga
omnes derive, for example, in contemporary international law, from the outlawing
of acts of aggression, and of genocide, as also from the principles and rules concern-
ing the basic rights of the human person, including protection from slavery and ra-
cial discrimination. Barcelona Traction, supra note 216, p. 32, emphasis added. Sim-
ilarly, the Human Rights Committee has established that [n]on-discrimination,
together with equality before the law and equal protection of the law without any
discrimination, constitute a basic and general principle relating to the protection of
human rights. Compilation of General Comments and General Recommendations
adopted by Human Rights Treaty Bodies, 12 May 2004, UN Doc. HRI/GEN/1/Rev.7,
p. 146, <www.unhchr.ch/tbs/doc.nsf/0/ca12c3a4ea8d6c53c1256d500056e56f/$FILE/
G0441302.pdf>, visited on 28 January 2011.
290 It states that the purpose of the United Nations is the development of friendly rela-
tions among nations based on respect for the principle of equal rights and self-
determination of peoples. Rdiger Wolfrum has commented this article as follows:
The term equality of peoples was meant to underline that no hierarchy existed
between the various peoples. To this extent, the prohibition of racial discrimination
was transferred from the national level to the level of international relations. Apart
from that, the principle of equality of peoples and the right to self-determination are
united. With this, it is assured that no peoples can be denied the right to self-deter-
mination on the basis of any alleged inferiority. R. Wolfrum, Chapter I: Purposes
70 Chapter 2
and is considered part of customary international law.291 The states are the duty
bearers as far as the legal obligations apply to them.292
2.3.3. The Subject

The principle of equality of peoples included in the just mentioned Article 1(2) of
the UN Charter has the same subject as the right to self-determination and, hence,
the same definitional problems discussed above apply as well.293 Apart from this
rather special and exceptional case, the equality protected through international
law was equality between individuals and, hence, non-discrimination in contem-
porary international law, and especially in international human rights law, typi-
cally means non-discrimination of individuals.294 As a consequence, the concept
of non-discrimination is often presented in an individualistic understanding and
even as an argument to oppose group protection through group rights.295 The
focus in the following will lie on aspects of the principle as established in inter-
national law which challenge this purely individualistic understanding and may
even allow a place for a groups right.
Discrimination is generally related to group membership of persons; in fact,
people are usually not discriminated against without a reason or for a reason
connected to their individuality, but for reasons connected with traits of cer-
tain groups of people which face prejudice and negative connotations. In short,
they are typically not discriminated against because they are Peter or Patricia,
and Principles, in B. Simma (ed.), The Charter of the United Nations: A Commentary
(2nd edn., Oxford University Press, Oxford 2002), p. 44, margin no. 21, footnotes
omitted.
291 See ibid., p. 40, margin no. 4.
292 See e.g., Hangartner, Staatliches Handeln im Bereich von Diskriminierungsverbo-
ten, supra note 288, p. 1302.
294 A major feature of the human rights system established under the United Nations
was its strong emphasis on equality and non-discrimination in the treatment of
each individual. The principle was set out in the UN Charter itself and made the
core pillar of the Universal Declaration. The nationalists of the preceding century
had not treated members of minorities as equals. Eide, International Cooperation
for Group Accomodation through Minority Protection, supra note 176, p. 157.
295 For example, Nigel S. Rodley has argued that it would be enough to rely on a broad
understanding of the principles of equality and non-discrimination to protect mi-
norities and their members. See N. S. Rodley, Conceptual Problems in the Protec-
tion of Minorities: International Legal Developments, 17 Human Rights Quarterly
(1995) 48; against this interpretation, Rainer Grote argues that if a group wants to
preserve its distinct identity rather than fully integrate into the majority, such an
approach is inadequate. See Grote, Minority Rights: Trends and Challenges, supra
note 172, pp. 226227.
but because they are Roma, female, black, poor, etc.296 Hence, discrimination
can generally be said to have an important group dimension.297 With the shift in
international human rights law from the aim of formal equality to substantive
equality,298 this group dimension has even been strengthened recently.299
To claim the right to non-discrimination as a groups right is to claim that
groups have to be treated equally and that groups as such have this right not to be
discriminated against. The case that groups are compared with each other, in or-
der to establish if they are treated equally or not, arises in the context of indirect
discrimination, as will be shown.300 However, establishing that groups are treated
differently, and even unjustifiably and disproportionally so, still does not make
the underlying right of non-discrimination a group right. For instance, if a law
296 The idea of discrimination is not generally considered to include unjustified preju-
dice, hostile attitudes, or rejection solely because of likes or dislikes based on strictly
individual qualities of behaviour, real or supposed. On the contrary, it deals with
prejudice, dislike, enmity, or hatred of one person towards another because the lat-
ter belongs to a particular race or ethnic group; has a certain colour of skin; belongs
to the male or female sex; speaks a certain language; professes a particular religion;
stands for a political opinion; maintains a certain scientific opinion; prefers a certain
artistic style; is a foreigner; is a wealthy or poor person; belongs to the nobility; is an
illegitimate child; or is a soldier, a lawyer, etc. UN Secretariat, The Main Types and
Causes of Discrimination: (Memorandum submitted by the Secretary-General), UN
Doc. E/CN.4/Sub.2/40/Rev.1 (Lake Success, New York 1949), para. 25, <daccess-dds-
ny.un.org/doc/UNDOC/GEN/G49/000/03/PDF/G4900003.pdf?OpenElement>,
visited on 1 July 2010.
297 For a recent overview on non-discrimination and (minority) groups in judicial dis-
course in international law, see G. Pentassuglia, Minority Groups and Judicial Dis-
course in International Law: A Comparative Perspective (Martinus Nijhoff Publish-
ers, Leiden, Boston 2009), pp. 89103.
298 On substantive equality, see e.g., C. Barnard and B. Hepple, Substantive Equality,
59 Cambridge Law Journal (2000) 562.
299 An expression of this move can be found in the recent General Comment 20 of the
Committee on Economic Social and Cultural Rights when discussing substantive
equality: Eliminating discrimination in practice requires paying sufficient atten-
tion to groups of individuals which suffer historical or persistent prejudice instead of
merely comparing the formal treatment of individuals in similar situations. Com-
mittee on Economic, Social and Cultural Rights (CESCR): General Comment No.
20, 10 June 2009, UN Doc. E/C.12/GC/20, para. 8, <www2.ohchr.org/english/bodies/
cescr/comments.htm>, visited on 11 March 2010. This challenges the traditional view
on non-discrimination which saw discrimination only by comparing the treatment
of individuals in a concrete situation. Cf. also O. M. Anardttir, Multidimensional
Equality from Within: Themes from the European Convention on Human Rights,
in D. Schiek and V. Chege (eds.), European Union Non-Discrimination Law: Com-
parative Perspectives on Multidimensional Equality Law (Routledge-Cavendish,
London 2009), p. 57.
300 Cf. also ibid.
72 Chapter 2
discriminates against Jehovahs Witnesses, this does not yet explain if the group
as such or only the groups members are discriminated against. Accordingly, ap-
plying the principle of non-discrimination to groups does not yet establish if this
principle establishes a group right or only a group-related right in this context. In
order to verify that the right to non-discrimination is also a groups right, a group
as such would have to be protected by it.
Discrimination can be direct or indirect. Direct discrimination is unjus-
tified differential treatment that is directly connected with a persons association
with one of the protected categories,301 whereas indirect discrimination tradi-
tionally arises when a practice, rule, requirement, or condition is neutral on its
face but hits disproportionately at particular groups, and does so without any ob-
jective justification.302 Lester and Joseph conclude that [p]roof of direct discrim-
ination is therefore determined by a comparison between individuals, whereas
proof of indirect discrimination involves a comparison between groups.303 More
importantly, indirect discrimination is usually connected with institutional and
structural biases.304 Overall, international law does not protect groups as such
through the prohibition of direct discrimination, but possibly through a prohibi-
tion of indirect discrimination.
Again, the fact that groups are compared with each other does not permit
the conclusion that groups as such have a right to be treated equally, a right to
non-discrimination. In the case of Jehovahs Witnesses, the comparison to other
religious groups could show that military service rules discriminate against them
301 UN Economic and Social Council, Analytical Study of the High Commissioner for
Human Rights on the Fundamental Principle of Non-Discrimination in the Con-
text of Globalization: Report of the High Commissioner, UN Doc. E/CN.4/2004/40
(2004), para. 12, <www.unhchr.ch/Huridocda/Huridoca.nsf/0/35fed614473e504ec12
56e700050f7f0/$FILE/G0410357.pdf>, visited on 30 June 2010.
302 Lester and Joseph, Obligations of Non-Discrimination, supra note 282, p. 575, foot-
notes omitted.
303 Ibid, footnotes omitted.
304 In this sense, the High Commissioner for Human Rights argues that [c]ombating
indirect discrimination is an important means of dealing with the institutional and
structural biases often unintentional and unperceived that result in discrimina-
tion and that act as impediments to the achievement of equal human rights for all.
Significantly, focusing on the disparate impact of an apparently neutral measure
taken with respect to an individual as part of a particular group opens up the pos-
sibility of identifying the root causes of discrimination and inequality a significant
step in achieving substantive equality, not simply formal equality. The prohibition
on indirect discrimination considerably widens the scope of the principle of non-
discrimination and national, regional and international responses to it vary. UN
Economic and Social Council, Analytical Study of the High Commissioner for Hu-
man Rights on the Fundamental Principle of Non-Discrimination in the Context of
Globalization, supra note 301, para. 12, footnotes omitted.
indirectly as they are committed to pacifism.305 The situation would then be that
these persons are pacifists for religious reasons and may require different treat-
ment with regard to military service. Still, the situation could be solved perfectly
without any reference to the group Jehovahs Witnesses and without any claim
to a right of such a group. By and large, this individualistic approach is the one
pursued in international law.306
The only provision of non-discrimination in international law which can
be understood as a groups right seems to be the one in the CERD307 regarding
certain racial groups, as it contains an obligation of states to treat certain groups
equally. This obligation is on affirmative action (or special measures, positive
action, reverse discrimination or positive discrimination),308 and targets the
305 Think of e.g., Thlimmenos v. Greece, 6 April 2000, ECtHR, no. 34369/97.
306 Indirect discrimination law is also often said to correspond to a notion of group
justice, as opposed to individual justice. Certainly, group disadvantage is the start-
ing point of indirect discrimination law. However, indirect discrimination law has
never established group rights. The concept rather provides for remedies to indi-
viduals, who suffer from disadvantage due to their ascribed group membership, al-
though the practice or measure in question does not explicitly refer to that group
membership Accordingly, indirect discrimination law continues to guarantee
individual justice, albeit in relation to disadvantage suffered for group related rea-
sons. Schiek, Waddington and Bell, Cases, Materials and Text on National, Supra-
national and International Non-Discrimination Law, supra note 283, pp. 330331,
footnotes omitted.
307 International Convention on the Elimination of All Forms of Racial Discrimination,
21 December 1965, Res. 2106(XX), <www2.ohchr.org/english/law/cerd.htm>, vis-
ited on 9 March 2011; in the view of Natan Lerner [t]he Convention against Racial
Discrimination is undoubtedly the most important instrument for the protection
of groups at the international level. Lerner, Group Rights and Discrimination in
International Law, supra note 5, p. 71. However, besides the principle of equality
between groups as will be discussed, there is no group right available in this Con-
vention. Moreover, one has to recall that, according to Article 14, only petitions of
individuals/groups of individuals are admissible, but not a petition (communica-
tion) on behalf of a group.
308 For a general overview on the concept and practice of affirmative action in inter-
national law, see UN Economic and Social Council, Prevention of Discrimination:
The Concept and Practice of Affirmative Action: Final Report submitted by Mr. Marc
Bossuyt, Special Rapporteur, in Accordance with Sub-Commission Resolution 1998/5,
UN Doc. E/CN.4/Sub.2/2002/21 (2002), <www.unhchr.ch/Huridocda/Huridoca.
nsf/e06a5300f90fa0238025668700518ca4/0aaa7775daf0bcebc1256c0c0031c5bd/$FI
LE/G0214014.pdf>, visited on 5 July 2010. In his report, Special Rapporteur Marc
Bossuyt defines affirmative action as a coherent packet of measures, of a temporary
character, aimed specifically at correcting the position of members of a target group
in one or more aspects of their social life, in order to obtain effective equality. Ibid.,
para. 6.
74 Chapter 2
institutional and structural level of discrimination309 which is connected with

indirect discrimination.
Article 2(2) of the CERD310 on affirmative action311 is relevant as it is in fa-
vour of disadvantaged racial groups and their members. Although this Article is
written in a very cautious way (when the circumstances so warrant), it still ex-
presses a right to non-discrimination which imposes obligations on states to take
measures to realise it.312 Thornberry concludes that this Article thus confronts
the question of an intermediate level of social reality between State and individu-
al in a more direct way than the most important contemporary legal text relevant
309 For a philosophical discussion of structural inequalities affecting social groups

and how they relate to ideas of justice, see I. M. Young, Equality of Whom? Social
Groups and Judgments of Injustice, 9 Journal of Political Philosophy (2001) 1.
310 States Parties shall, when the circumstances so warrant, take, in the social, eco-
nomic, cultural and other fields, special and concrete measures to ensure the ade-
quate development and protection of certain racial groups or individuals belonging to
them, for the purpose of guaranteeing them the full and equal enjoyment of human
rights and fundamental freedoms. These measures shall in no case entail as a con-
sequence the maintenance of unequal or separate rights for different racial groups
after the objectives for which they were taken have been achieved. CERD, supra
note 307, para. 2, emphasis added.
311 See also the definition given in Article 1(4) of the CERD: Special measures taken for
the sole purpose of securing adequate advancement of certain racial or ethnic groups
or individuals requiring such protection as may be necessary in order to ensure such
groups or individuals equal enjoyment or exercise of human rights and fundamental
freedoms shall not be deemed racial discrimination, provided, however, that such
measures do not, as a consequence, lead to the maintenance of separate rights for
different racial groups and that they shall not be continued after the objectives for
which they were taken have been achieved. Ibid., para. 4, emphasis added. In this
paragraph it is clarified that the special measures are temporarily limited and must
not establish unequal treatment of groups (and individuals) as a consequence.
312 Note that the traditional understanding that special measures are an exception to
the principle of equality and non-discrimination has recently been rejected by the
Committee on the Elimination of Racial Discrimination in its General Comment
32: [S]pecial measures are not an exception to the principle of non-discrimination
but are integral to its meaning and essential to the Convention project of elimi-
nating racial discrimination and advancing human dignity and effective equality.
CERD: General Recommendation No. 32: The Meaning and Scope of Special Measures
in the International Convention on the Elimination of Racial Discrimination, August
2009, para. 20, <www2.ohchr.org/english/bodies/cerd/comments.htm>, visited on
28 January 2011; overall, affirmative action furthers the position of groups (and their
members). To accept it as an integral part of the principle of non-discrimination is
to accept that there are situations where group membership can prevail over equal-
ity between individuals; in other words, equality between groups can sometimes be
preferred to equality between individuals in order to reach a wider equality between
individuals.
to the protection of the identity of minority groups Article 27 [of the CCPR].313
However, affirmative action as such is not to be considered a group right in itself;
it is only a temporarily limited action of reverse discrimination.314 Nevertheless,
the CERD aims with this Article on special measures at a protection of groups
as well as individuals, both groups and individuals should be treated equally.315
Hence, the provided right to non-discrimination is also held by the group itself.316
This reading could be challenged by pointing to the fact that, in the end, it
is the individuals which should be equal and that the equality of groups is only
a means to this end. This view is also supported by the explicitly temporarily
limited scope of the measures to realise equality between certain racial groups.317
Even so, this does not change the fact that the means to this end is the legal pro-
tection of certain racial groups as such and, hence, that a group right is provided
to assure this individual protection.
Within its reporting system, the Committee on the Elimination of Racial
Discrimination has confirmed in many reports on states that the CERD has a
group dimension. In fact, as recent examples, the Committee has recommended
that the State party [Chile]: (a) step up its efforts to speed up the process of granting
constitutional recognition to the rights of indigenous peoples and, to this end, con-
duct effective consultations with all the indigenous peoples and (c) take effective
313 P. Thornberry, International Law and the Rights of Minorities (Clarendon Press, Ox-
ford 1992), p. 268.
314 See also the discussion in chapter 1.1.1.
315 E.g., Lerner, Group Rights and Discrimination in International Law, supra note
5, p. 183; note that the special measures as referred to in Article 4(1) of the CEDAW
aim only at equality between men and women (as individuals) and nowhere speak
of a sexual group which has to be treated equally with other groups. Hence, this is
a fundamental difference compared with the special measures of the CERD.
316 This is ignored by Asbjrn Eide when discussing affirmative action as opposed to
group rights in A. Eide, Minority Protection and World Order: Towards a Frame-
work for Law and Policy, in A. Phillips and A. Rosas (eds.), Universal Minor-
ity Rights (Institute for Human Rights bo Akademi University; Minority Rights
Group International, Turku/bo, London 1995), pp. 101102.
317 However, the temporarily limited nature of the special measures should not be
overestimated. In fact, it could even be argued that this formulation reflects more
political fear than wisdom of the legislator. Which measure treating equal groups/
individuals differently would not be discriminatory and thus illegal when equality
is reached and differential treatment not justified for other reasons? In other words,
it seems logically compelling that reverse discrimination (special measures) is only
possible as long as there is discrimination to reverse.
76 Chapter 2
measures to involve indigenous peoples in the work on a human rights action plan
and in all areas, including legislative proposals, that might affect their rights.318
In addition, it has urged the State party [Pakistan] to legislate and mainstream
the existing policy on the provision of adequate political participation of all
ethnic groups,319 and has been concerned at the failure of the State partys
[Ecuador] draft Constitution to grant legal recognition to the Roma people as an
ethnic minority.320 The Committee has recommended that the State party [Fiji]
consider adopting measures to ensure that all ethnic groups are duly represented
in state institutions and public administration,321 has recommended that the
State party [Italy] adopt and implement a comprehensive national policy and leg-
islation regarding Roma and Sinti with a view to recognising them as a national
minority and protecting and promoting their languages and culture,322 and has
been concerned that the indigenous peoples of the Pacific, central and northern
regions of Nicaragua do not enjoy any specific legislation that recognizes and
protects their rights.323
These examples clearly highlight that, besides the protection of members
of racial and ethnic groups, also groups as such are seen by the Committee as
protected by the CERD.324 However, it has to be emphasised that the scope of the
CERD is restricted to human rights/fundamental freedoms and that the princi-
318 UN Committee on the Elimination of Racial Discrimination, Report of the Commit-

tee on the Elimination of Racial Discrimination: Seventy-Fourth Session (16 Febru-
ary6 March 2009), Seventy-Fifth Session (328 August 2009), UN Doc. A/64/18 (New
York 2009), para. 31(16), <daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/462/80/
PDF/G0946280.pdf?OpenElement>, visited on 5 July 2010.
319 Ibid., para. 40(18).
320 UN Committee on the Elimination of Racial Discrimination, Report of the Com-
mittee on the Elimination of Racial Discrimination: Seventy-Second Session (18
February7 March 2008), Seventy-Third Session (28 July15 August 2008), UN Doc.
A/63/18 (New York 2008), para. 138, <daccess-dds-ny.un.org/doc/UNDOC/GEN/
G08/449/20/PDF/G0844920.pdf?OpenElement>, visited on 5 July 2010.
321 Ibid., para. 173.
322 Ibid., para. 234.
323 Ibid., para. 330.
324 See further CERD: General Recommendation No. 23: Indigenous Peoples, 18.08.1997,
<www2.ohchr.org/english/bodies/cerd/comments.htm>, visited on 28 January
2011, especially paras. 4(a), (c), and (e), and 5 seem interesting in this context; and
CERD: General Recommendation No. 27: Discrimination against Roma, 16 August
2000, <www2.ohchr.org/english/bodies/cerd/comments.htm>, visited on 28 Janu-
ary 2011, which also highlights the importance of the group dimension; for an over-
view on the practice of the Committee with regard to economic, social, and cultural
rights, see N. Prouvez, Committee on the Elimination of Racial Discrimination:
Confronting Racial Discrimination and Inequality in the Enjoyment of Econom-
ic, Social and Cultural Rights, in M. Langford (ed.), Social Rights Jurisprudence:
ple of non-discrimination is, hence, not autonomous.325 Overall, the Committee

has taken a very broad approach to the subject of certain racial groups (Article
2(2) of the CERD) or certain racial or ethnic groups (Article 1(4) of the CERD)
and included ethnic, tribal and indigenous groups.326 Recently, the Committee
has confirmed the very broad understanding of the beneficiary groups and clari-
fied in its General Comment No. 32 that any group covered by Article 1 of the
CERD has to be seen as a beneficiary.327 Under its rather weak petition system of
Article 14,328 the Committee has accepted claims from groups.329 Generally, the
Committee has not stressed the difference between the protection of the group as
such and the protection of a groups members.
Overall, the right of non-discrimination largely protects individuals even
where there is a group dimension. Nevertheless, as has been shown, there are
some few instances where groups as such are protected by this very general right.
2.4. Some Concrete Group Rights in International Law

From the above mentioned, we can see that international law, even though re-
luctant, does provide groups certain legal rights on a very general level. In this
section, examples of more concrete rights and duties of groups in contemporary
international law will be discussed. The following compilation of group rights is
Emerging Trends in International and Comparative Law (Cambridge University

Press, Cambridge UK, New York 2008).
325 Article 1(1) of the CERD.
326 For the practice of the CERD until 2005, cf. Vandenhole, Non-Discrimination and
Equality in the View of the UN Human Rights Treaty Bodies, supra note 286, p. 210.
327 Although the Convention designates racial or ethnic groups or individuals requir-
ing protection (art. 1, para. 4), and racial groups or individuals belonging to
them (art. 2, para. 2), as the beneficiaries of special measures, the measures shall in
principle be available to any group or person covered by Article 1 of the Convention,
as clearly indicated by the travaux prparatoires of the Convention, as well as by the
practice of States parties and the relevant concluding observations of the Commit-
tee. CERD General Recommendation No. 32, supra note 312, para. 24, footnotes
omitted.
328 See generally T. van Boven, The Petition System under ICERD: An Unfulfi lled
Promise, in G. Alfredsson et al. (eds.), International Human Rights Monitoring
Mechanisms: Essays in Honour of Jakob Th. Mller (2nd edn., Martinus Nijhoff Pub-
lishers, Leiden 2009).
329 The Committee decided not to take a strict approach with regard to the admissibility
of complaints by group of individuals and considered that organisations, bearing
in mind the nature of their activities and the classes of person they represent, they
too satisfied the victim requirement in article 14. Jewish Community of Oslo et al.
v. Norway, 15 August 2005, Committee on the Elimination of Racial Discrimination,
UN Doc. CERD/C/67/D/30/2003, para. 7.4, <daccess-dds-ny.un.org/doc/UNDOC/
DER/G05/436/47/PDF/G0543647.pdf>, visited on 22 February 2011.
78 Chapter 2
based on examples provided by literature, as well as some which are less present
in academic discussions on the topic; the aim is to present a variety of cases which
show different features of such rights. A complete enumeration was not possible
within the context of this work and thus was not attempted. As mentioned in the
introduction of this work, the thematic focus lies on rights connected with the
existence of groups, as well as with their cultural and political continuation.330
2.4.1. Humanitarian Law and the Creation of States

International humanitarian law will be discussed separately from human rights
law as its evolution was separate from it at least until 1968.331 Humanitarian law
is a classical part of international law and is traditionally about the rules in war-
fare, the jus in bello. Hence, for international humanitarian law, the distinction
between peace and war is crucial. For our purposes, it is important to realise that
war is a phenomenon between groups. This can, for example, be illustrated by the
entry on war in the Stanford Encyclopedia of Philosophy:
War is a phenomenon which occurs only between political communities, defi ned as
those entities which either are states or intend to become states (in order to allow for
civil war). Classical war is international war, a war between different states, like the
two World Wars. But just as frequent is war within a state between rival groups or
communities, like the American Civil War. Certain political pressure groups, like
terrorist organizations, might also be considered political communities, in that
they are associations of people with a political purpose and, indeed, many of them
aspire to statehood or to influence the development of statehood in certain lands.332
330 See introduction.

331 Cf. R. Kolb, The Relationship between International Humanitarian Law and Hu-
man Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights
and the 1949 Geneva Conventions, 38 International Review of the Red Cross (1998)
409. On the draft ing of the Universal Declaration of 1948 and the 1949 Geneva Con-
ventions Robert Kolb writes: What we see is that after saluting the flag of principles,
each camp tackled its subject-matter on the basis of its own rules and methods.
A technical and cultural gap separated these branches of the law which the vicis-
situdes of two very different paths had happened to bring relatively close to each
other within the body of international law. Ibid., p. 416; cf. also H.-P. Gasser, The
Changing Relationship between International Criminal Law, Human Rights Law
and Humanitarian Law, in J. Doria et al. (eds.), The Legal Regime of the Interna-
tional Criminal Court: Essays in Honour of Professor Igor Blishchenko (Martinus Ni-
jhoff Publishers, Leiden, Boston 2009); and D. Threr, Protection of Minorities in
General International Law and in International Humanitarian Law, in D. Threr,
Vlkerrecht als Fortschritt und Chance. International Law as Progress and Prospect
(Dike; Nomos, Zrich et al. 2009).
332 B. Orend, War, Stanford Encyclopedia of Philosophy (2000), <plato.stanford.edu/
entries/war>, visited on 3 October 2009.
The group dimension of the very term war is obvious; war is a phenomenon be-
tween groups in the sense of this work and it is historically the phenomenon most
at the centre of international law ever since. In the following it will be argued
that international humanitarian law has taken this as a fact and tried to subject
groups participating in war to its regime, no matter if they were recognised states
or not. Indeed, with the consideration of not only classical war but also of in-
ternal wars, international law has applied a more holistic understanding of the
term, and by doing so it has touched upon the question of personality of groups
in a generic sense. By and large, belligerents and insurgents can be considered to
be (at least potentially) legal persons of international law even though they are
difficult to classify.333
The need of international law in the 19th and beginning of the 20th century
to take these parties of classically regarded civil and therefore internal wars
into consideration was based on the importance of sovereignty, which is factu-
ally missing to some degree within states in civil war, and the reciprocity of the
interests of all involved belligerents (for example on the exchange of prisoners).334
International law generally refrained from interfering with these internal af-
fairs and waited until one party prevailed in gaining leadership; war was ac-
cepted as a means of politics in the Clausewitzian sense,335 and with the Geneva
Conventions,336 the suffering from wars should be combated, not war itself. By
and by, jus in bello accepted the reality of internal war and, to some extent, also
333 In his commentary on the law of treaties Special Rapporteur for the ILC G. G.
Fitzmaurice writes: 22. (b) para-Statal entities The case of de facto authorities in
control of territory, insurgents to whom belligerent rights have been accorded, etc.
is difficult to classify. But undoubtedly such entities have a measure of international
personality. They are subjects of international law, and have certain international
rights and obligations. Within the limits involved by the scope of their personality
(as indicated in paragraph 4 of the Article), they have treaty-making capacity: for
instance, insurgents recognized as belligerents in a civil war would certainly pos-
sess the capacity to enter into international agreements with third Powers about the
conduct of the civil war, and matters arising out of it, affecting those Powers. G.
G. Fitzmaurice, Law of Treatise, Yearbook of the International Law Commission
(1958]); cautiously accepted also by some scholars, e.g., I. Brownlie, Principles of Pub-
lic International Law (7th edn., Oxford University Press, Oxford, New York 2008),
p. 63; however, the discussion of international legal personality as a threshold to act
in a legal relevant way is a doubtful approach, as showed in chapter 1.3.
334 For a more detailed discussion of the recognition of belligerency and insurgency
(two different topics, actually) in that era, cf. S. C. Neff, War and the Law of Nations:
A General History (Cambridge University Press, Cambridge UK, New York 2005),
pp. 250275.
335 C. v. Clausewitz, Vom Kriege (Weltbild Verlag, Augsburg 1990).
336 Geneva Red Cross Conventions (IIV), 12 August 1949, <www.icrc.org/eng/war-and-
law/treaties-customary-law/geneva-conventions/index.jsp>, visited on 20 January
2011.
80 Chapter 2
its combating rivals.337 However, the taken approach was on an ad hoc basis and
the importance of the recognition of belligerents by a foreign state mainly gave
an insight on how this state classified the internal conflict. Moreover, the legal
power of belligerents and insurgents was limited on topics directly connected
with their war and their control of parts of the country,338 and the main reason
for this approach of international law was to ensure neutrality of foreign states
to internal conflicts, or in other words, to keep them out of internal conflicts.339
Nevertheless, parties other than states could become in that way legal entities of
international law and also certain groups as referred to in this work. In a way,
the neutrality of international law to events within states led somewhat surpris-
ingly to the acceptance of a factual internal division in certain circumstances,
and belligerents and insurgents could become contractual parties within the oth-
erwise exclusive international law club of states.
It was only with the adoption of the weak Common Article 3 of the Geneva
337 Cf. Neff, War and the Law of Nations, supra note 334, pp. 177214.
338 See S. C. Neff, The Prerogatives of Violence In Search of the Conceptual Founda-
tions of Belligerents Rights, 38 German Yearbook of International Law (1995) 41.
339 Cf. Neff, War and the Law of Nations, supra note 334, pp. 250275.
Conventions in 1949340 and the further-reaching Protocol II in 1977341 that inter-

nal conflicts became directly subject to international regulation.342 More recent-
ly, the Amended Protocol on Prohibitions or Restrictions on the Use of Mines,
340 Geneva Red Cross Conventions (IIV), supra note 336. The common Article 3 of
the Geneva Conventions reads: In the case of armed conflict not of an interna-
tional character occurring in the territory of one of the High Contracting Parties,
each Party to the confl ict shall be bound to apply, as a minimum, the following
provisions: (1) Persons taking no active part in the hostilities, including members
of armed forces who have laid down their arms and those placed hors de combat
by sickness, wounds, detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded on race, colour, religion
or faith, sex, birth or wealth, or any other similar criteria. To this end, the following
acts are and shall remain prohibited at any time and in any place whatsoever with
respect to the above-mentioned persons: (a) violence to life and person, in particu-
lar murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hos-
tages; (c) outrages upon personal dignity, in particular humiliating and degrading
treatment; (d) the passing of sentences and the carrying out of executions without
previous judgement pronounced by a regularly constituted court, affording all the
judicial guarantees which are recognized as indispensable by civilized peoples. (2)
The wounded and sick shall be collected and cared for. An impartial humanitarian
body, such as the International Committee of the Red Cross, may offer its services
to the Parties to the confl ict. The Parties to the confl ict should further endeavour to
bring into force, by means of special agreements, all or part of the other provisions
of the present Convention. The application of the preceding provisions shall not
affect the legal status of the Parties to the confl ict. See e.g., International Commit-
tee of the Red Cross (ICRC): Convention (I) for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, 12 August 1949, <www.icrc.org/
ihl.nsf/FULL/365?OpenDocument>, visited on 7 August 2009; this common Article
3 can be seen as the minimum humanitarian standard of international law, cf. S.
Boelaert-Suominen, Commentary: The Yugoslavia Tribunal and the Common Core
of Humanitarian Law Applicable to all Armed Confl icts, 13 Leiden Journal of Inter-
national Law (2000) 619.
341 International Committee of the Red Cross (ICRC): Protocol Additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection of Vic-
tims of Non-International Armed Conflicts, 8 July 1977, <www.icrc.org/ihl.nsf/
FULL/475?OpenDocument>, visited on 7 October 2009; note that with the ratifica-
tion of Protocol II, humanitarian law is not completely distinct from human rights
law anymore, but simultaneously applicable in certain situations. Cf. Gasser, The
Changing Relationship between International Criminal Law, Human Rights Law
and Humanitarian Law, supra note 331, pp. 11141115.
342 See generally G. Abi-Saab, Non-International Armed Confl icts, in UNESCO (ed.),
International Dimensions of Humanitarian Law (Henri Dunant Institute, Geneva
1988).
82 Chapter 2
Booby-Traps and Other Devices343 has based its provisions on this fundament.344
According to these provisions, the parties to an internal conflict in the sense
of the treaty have an ipso jure status which is both objective (i.e. independ-
ent from the will of the government) and automatic (i.e. arising directly from
the legal instrument, as soon as the situation provided for comes into being).345
However, this status is much more limited than the one emanating from the
above mentioned ad hoc recognition of belligerency.346
Actually, this would only be of interest to the discussion of group rights if
groups in the sense of our definition could constitute a party to the/a conflict
and, thus, have rights and/or duties according to these provisions. The introduc-
tory sentence of Common Article 3 reads: In the case of armed conflict not of an
international character occurring in the territory of one of the High Contracting
Parties, each Party to the conflict shall be bound to apply, as a minimum, the fol-
lowing provisions. Accordingly, the bearers of the duties of this provision are the
parties to the conflict. Now, a party to the conflict according to Common Article
343 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices as amended on 3 May 1996 (Protocol II as amended on 3 May 1996) annexed
to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional
Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate
Effects, 3 May 1996, 2048 UNTS 93.
344 Article 1 Scope of application [:] 1. This Protocol relates to the use on land of the
mines, booby-traps and other devices 2. Th is Protocol shall apply, in addition
to situations referred to in Article 1 of this Convention, to situations referred to in
Article 3 common to the Geneva Conventions of 12 August 1949. This Protocol shall
not apply to situations of internal disturbances and tensions, such as riots, isolated
and sporadic acts of violence and other acts of a similar nature, as not being armed
conflicts. 3. In case of armed conflicts not of an international character occurring in
the territory of one of the High Contracting Parties, each party to the conflict shall
be bound to apply the prohibitions and restrictions of this Protocol. 4. Nothing in
this Protocol shall be invoked for the purpose of affecting the sovereignty of a State
or the responsibility of the Government, by all legitimate means, to maintain or re-
establish law and order in the State or to defend the national unity and territorial
integrity of the State. 5. Nothing in this Protocol shall be invoked as a justification
for intervening, directly or indirectly, for any reason whatever, in the armed conflict
or in the internal or external affairs of the High Contracting Party in the territory
of which that conflict occurs. 6. The application of the provisions of this Protocol
to parties to a conflict, which are not High Contracting Parties that have accepted
this Protocol, shall not change their legal status or the legal status of a disputed ter-
ritory, either explicitly or implicitly. Ibid., p. 550; cf. S. Boelaert-Suominen, Grave
Breaches, Universal Jurisdiction and Internal Armed Conflict: Is Customary Law
Moving towards a Uniform Enforcement Mechanism for All Armed Conflicts?, 5
Journal of Conflict and Security Law (2000) 63, pp. 8283.
345 Abi-Saab, Non-International Armed Conflicts, supra note 342, p. 231.
346 Ibid.
3 consists of some kind of collective.347 However, the last sentence of Common

Article 3 reads: The application of the preceding provisions shall not affect the
legal status of the Parties to the conflict. Nevertheless, it is clear that as far as
the treaty accepts belligerents as bearers of legal rights and/or duties, it does have
an effect on their legal status, but it is limited.348 If so, can they also be viewed as
right-holders? Although from an interest theory point of view we can argue with
good reasons that it was individuals who should be protected, at the same time
the reciprocity of the interests of the parties to the conflict and their interest has
been at the centre of discussions. In other words, it is the belligerent parties that
have to respect parts of humanitarian law and are to that extent bearers of inter-
347 Cf. the discussed criteria of the preparatory work that give some idea of who was
meant with party to the confl ict: (1) That the Party in revolt against the de jure
Government possesses an organized military force, an authority responsible for its
acts, acting within a determinate territory and having the means of respecting and
ensuring respect for the Convention. (2) That the legal Government is obliged to have
recourse to the regular military forces against insurgents organized as military and
in possession of a part of the national territory. (3) (a) That the de jure Government
has recognized the insurgents as belligerents; or (b) that it has claimed for itself the
rights of a belligerent; or (c) that it has accorded the insurgents recognition as bel-
ligerents for the purposes only of the present Convention; or (d) that the dispute has
been admitted to the agenda of the Security Council or the General Assembly of the
United Nations as being a threat to international peace, a breach of the peace, or an
act of aggression. (4) (a) That the insurgents have an organisation purporting to have
the characteristics of a State. (b) That the insurgent civil authority exercises de facto
authority over persons within a determinate territory. (c) That the armed forces act
under the direction of the organized civil authority and are prepared to observe the
ordinary laws of war. (d) That the insurgent civil authority agrees to be bound by the
provisions of the Convention. J. S. Pictet and F. Siordet, article 3, in ICRC (Inter-
national Committee of the Red Cross) (ed.), Geneva Convention for the Amelioration
of the Condition of the Wounded and Sick in Armed Forces in the Field (International
Committee of the Red Cross, Geneva 1952), pp. 4950. Although these criteria were
rejected, they give a clear impression that the small scale sovereigns in this case were
not meant to be individuals but more or less state-like entities.
348 Georges Abi-Saab writes on the conclusion of Protocol II: The resulting Protocol
reads like a series of injunctions addressed exclusively to governments, or rather
of unilateral undertakings subscribed to only by them. But of course this cosmetic
reformulation cannot alter the legal basis and structure of the Protocol. After all,
common article 3 continues to apply to these conflicts, together with Protocol II
which is supposed to supplement it, and the parties to the confl ict figure promi-
nently in common article 3. Moreover, even a superficial analysis of the contents of
the Protocol reveals that its prescriptions are addressed to all those who take part
in the armed conflict. It follows that to the extent that rebels are directly attributed
rights and obligations under common article 3 and Protocol II, they are the ad-
dressees of their provisions and thus have an objective legal status under these legal
instruments, whether they are mentioned expressly therein or not. Abi-Saab, Non-
International Armed Conflicts, supra note 342, p. 231.
84 Chapter 2
national legal rights and duties. From a justified constrained theory perspective,
the same can be said as Common Article 3 wants to bind the parties of a conflict
for their own sake and for the sake of civilians. From a choice theory perspective,
this question causes problems as clearly only the signatory states of the conven-
tion have the possibility to resign the contract, but, at the same time, as long as
the convention is in power, it also provides rights and duties to the rebels. Hence,
for that time, the rebels can claim these rights as well. Nevertheless, their position
as right-holders can be doubted from a choice theory perspective.
Another objection could be made pointing to the limited legal personality of
such groups; in fact, belligerents are largely considered as legal persons because
they are duty-bearers and not right-holders.349 This seems correct at first sight;
however, besides the reciprocal interests, there are also some rights in Common
Article 3 that give parties to a conflict a right-holder position; in fact, they have
the right350 to accept services from an impartial humanitarian body, as well as
the right to bring into force more of the provisions of the Geneva Conventions.
Hence, a state cannot hinder such a party from becoming active in international
law in this way with the argumentation that the acceptance of the legal personal-
ity of such a party by the ICRC would constitute an inadmissible attempt to in-
terfere in the internal affairs of the state.351 In conclusion, international humani-
tarian law potentially provides certain groups rights (group rights) and duties
through Article 3 of the Geneva Conventions and Protocol II.
Again, another category is the one of national liberation movements. This
category was mainly important within the decolonisation process and shall not
be discussed in more detail at this point. However, it has to be mentioned that
the reason for international law to treat national liberation movements as legal
persons was based on the international legality of their struggle (based on the
right to self-determination of peoples) and the specific effectiveness of their pow-
er within their people and parts of a country.352 Hence, historically, liberation
movements are arguably a category through which groups have constituted legal
entities of international law.
349 This would not alter their position as legal persons to be sure, but arguably weaken
it.
350 Right here is meant as a liberty in the Hohfeldian terminology privileges or
more precise liberty right in Rainbolts terminology which includes the duty of
others not to interfere when the right-holder wields it. Cf. Rainbolt, The Concept of
Rights, supra note 25, pp. 3034.
351 Cf. Pictet and Siordet, article 3, supra note 347, pp. 5760.
352 E.g., H. Atlam, International Liberation Movements and International Responsibil-
ity, in M. Spinedi and B. Simma (eds.), United Nations Codification of State Respon-
sibility (Oceana Publications, New York 1987), pp. 4546. However, the article takes,
in this context, a questionable view on the legal importance of legal personality as it
treats it as a threshold for legal acts. See the discussion above in chapter 1.3.
Yet another interesting topic is that, according to the ILC Draft Articles on
State Responsibility,353 new states are responsible for internationally wrongful acts
committed by a movement during its successful struggle for independence.354
This is in line with the doctrine and viewed as a well-established principle of
international law.355 Hence, responsibility for the internationally relevant acts of
groups represented by such movements is attached to their new state afterwards,
which means that there is continuity between the two subjects of international
law, the movement and the (new) state.356 Thus, groups which form an insurrec-
tional movement can become responsible for their wrongful acts and, in this way,
constitute legal entities in the case of their success to create a new state. In other
words, they are retrospectively duty-bearers of international law under the con-
dition precedent (suspensive Bedingung) that they succeed to create a new state.
2.4.2. International Criminal Law

One part of international law that has developed the most in the last two decades
is that of international criminal law. After establishing several ad hoc tribunals
in the 1990s, a large part of the state community went a step further and estab-
lished the International Criminal Court (ICC) on the basis of the Rome Statute.357
However, the roots of many international documents on international criminal
law can be traced back to the Nuremberg Process, and have to a large extent been
drafted from the experiences of World War II, with the aim to penalise massive,
grave and systematic breaches of the most fundamental rights. The importance
of this section is often underestimated in the discussion of group rights which
is surprising since genocide is often mentioned as a classical example of such
rights.358 Reasons for this could lie in the nature of international criminal law
353 ILC: Draft Articles on Responsibility of States for Internationally Wrongful Acts,
12 December 2001, <untreaty.un.org/ilc/texts/instruments/english/draft%20arti-
cles/9_6_2001.pdf>, visited on 13 October 2009.
354 Article 10(2) reads: The conduct of a movement, insurrectional or other, which suc-
ceeds in establishing a new State in part of the territory of a pre-existing State or in a
territory under its administration shall be considered an act of the new State under
international law. Ibid.; see generally L. Condorelli and C. Kress, The Rules of At-
tribution: General Considerations, in J. Crawford et al. (eds.), The Law of Interna-
tional Responsibility (Oxford University Press, Oxford 2010), p. 231; and P. Dumber-
ry, New State Responsibility for Internationally Wrongful Acts by an Insurrectional
Movement, 17 European Journal of International Law (2006) 605.
355 Cf. ibid., p. 620.
356 Ibid., p. 608.
357 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90.
358 But cf. L. S. Sunga, International Criminal Law: Protection of Minority Rights, in
Z. A. Skurbaty (ed.), Beyond a One-Dimensional State: An Emerging Right to Au-
tonomy? (Martinus Nijhoff Publishers, Leiden, Boston 2005).
86 Chapter 2
which embraces the concept of individual criminal responsibility,359 and that it

is not the victim (group) who could trigger a situation which would initiate an
investigation by the prosecutor.360 The view that we could nevertheless speak of
group rights in this context is based on the idea that victims of a crime are hold-
ers of the right which was breached by the crime. This view has been defended
above361 and will be applied in the following discussion. It is not possible or useful
to discuss international criminal law in all of its breadth; it will have to suffice
to discuss some main examples to show the role of group rights in this field.
Accordingly, the focus will be on the group right to existence as provided by the
Genocide Convention and some rights listed in the Rome Statute with a group
rights-dimension.362
Let us begin with the crime that was also referred to as the crime of
crimes.363 The prohibition of genocide in international law is directly connect-
ed with World War II and the International Military Tribunal at Nuremberg.
Although the Tribunal prosecuted the major war criminals for crimes against
humanity, its indictment of 8 October 1945364 was the first official international
law document referring expressly to the term genocide which was coined a year
before by a Polish lawyer, Raphael Lemkin.365 It is very interesting to note how
Lemkin understood his new term, he writes:
359 See e.g., Article. 25 of the Rome Statute; see generally K. Ambos, Article 25, in O.
Triffterer (ed.), Commentary on the Rome Statute of the International Criminal
Court: Observers Notes, Article by Article (2nd edn., Beck; Hart; Nomos, Mnchen
et al. 2008); and A. Eser, Individual Criminal Responsibility, in A. Cassese et al.
(eds.), The Rome Statute of the International Criminal Court: A Commentary (Ox-
ford University Press, Oxford 2002); corporations and other legal persons are not
considered to be punishable according to the Rome Statute. See Ambos, Article 25,
supra note 359, p. 746, margin no. 4; and Eser, Individual Criminal Responsibility,
supra note 359, pp. 778779.
360 In the case of the ICC this can be made by the Security Council (Article 13(b) of the
Rome Statute), by a State Party (Article 14 of the Rome Statute), or by the Prosecutor
in his own capacity (Article 15 of the Rome Statute).
362 Many of these rights are based on international humanitarian law and could, hence,
be found in other legal documents in similar ways as well. However, for the purpose
in this book there is no need to elaborate on this further.
363 This is the subtitle of the book on genocide by William A. Schabas, see W. Schabas,
Genocide in International Law: The Crime of Crimes (2nd edn., Cambridge Univer-
sity Press, Cambridge UK, New York 2009).
364 Agreement for the Prosecution and Punishment of Major War Criminals of the Euro-
pean Axis, and Establishing the Charter of the International Military Tribunal (IMT),
8 August 1945, 82 UNTS 279.
365 Cf. Ragazzi, The Concept of International Obligations Erga Omnes, supra note 9,
pp. 92104.
By genocide we mean the destruction of a nation or of an ethnic group. Th is new

word, coined by the author to denote an old practice in its modern development, is
made from the ancient Greek word genos (race, tribe) and the Latin cide (killing),
thus corresponding in its formation to such words as tyrannicide, homocide, infan-
ticide, etc. Generally speaking, genocide does not necessarily mean the immediate
destruction of a nation, except when accomplished by mass killings of all members
of a nation. It is intended rather to signify a coordinated plan of different actions
aiming at the destruction of essential foundations of the life of national groups,
with the aim of annihilating the groups themselves. The objectives of such a plan
would be disintegration of the political and social institutions, of culture, language,
national feelings, religion, and the economic existence of national groups, and the
destruction of the personal security, liberty, health, dignity, and even the lives of
the individuals belonging to such groups. Genocide is directed against the national
group as an entity, and the actions involved are directed against individuals, not in
their individual capacity, but as members of the national group.366
It is worth noting at this point that it is inherent to the word genocide that it
focuses on groups as such and crimes against them; moreover, Lemkins claimed
broad protections would mean that nearly any step taken with the aim of de-
stroying a protected group would amount to genocide.367 It is also of some interest
that Lemkin used the terms groups and minority groups more or less inter-
changeably and argued for minority protection to prevent genocide368 a connec-
366 R. Lemkin, Axis Rule in Occupied Europe: Laws of Occupation: Analysis of Govern-
ment: Proposals for Redress (Carnegie Endowment for International Peace, Wash-
ington, DC 1944), p. 79, footnotes omitted.
367 Cf. K. Mundorff, Other Peoples Children: A Textual and Contextual Interpretation
of the Genocide Convention, Article 2(e), 50 Harvard International Law Journal
(2009) 61, p. 74.
368 Moreover, we should not overlook the fact that genocide is a problem not only of
war but also of peace. It is an especially important problem for Europe; where differ-
entiation in nationhood is so marked that despite the principle of political and ter-
ritorial self-determination, certain national groups may be obliged to live as minori-
ties within the boundaries of other states. If these groups should not be adequately
protected, such lack of protection would result in international disturbances, espe-
cially in the form of disorganized emigration of the persecuted, who would look for
refuge elsewhere. That being the case, all countries must be concerned about such
a problem, not only because of humanitarian, but also because of practical, reasons
affecting the interest of every country. Lemkin, Axis Rule in Occupied Europe,
supra note 366, p. 93; in the footnote that goes with the just mentioned citation he
adds: Adequate protection of minority groups does not of course mean that protec-
tive measures should be so stringent as to prevent those who so desire from leaving
such groups in order to join majority groups. In other words, minority protection
should not constitute a barrier to the gradual process of assimilation and integration
which may result from such voluntary transfer of individuals. Ibid.; in conclusion
88 Chapter 2
tion that might today, with the experience of genocide, be even more obvious.369
The UN General Assembly condemned genocide in Resolution 96(I) as
a crime under international law and a denial of the existence of entire human
groups.370 A result of this development was the (narrower) Genocide Convention371
which enumerated in Article 2 the five acts considered to be genocide, without
giving a general definition of genocide:372
[A]ny of the following acts committed with intent to destroy, in whole or in part,
a national, ethnical, racial or religious group, as such: (a) Killing members of the
group; (b) Causing serious bodily or mental harm to members of the group; (c)
Deliberately infl icting on the group conditions of life calculated to bring about its
physical destruction in whole or in part; (d) Imposing measures intended to prevent
births within the group; (e) Forcibly transferring children of the group to another
group.373
Note that Article 6 of the Rome Statute of the ICC on genocide has the same
wording.374
The Genocide Convention is still the main document in international law
securing the existence of groups and has regained importance since the end of
the Cold War, with the tragic events in Yugoslavia and Rwanda, and the result-
ing cases in the International Tribunals. Moreover, it can be seen, for good rea-
sons, as one of the most important and concrete rights of groups in international
law. However, the Genocide Convention has several weaknesses as it does not
foresee an implementation system or measures for the prevention of the crime.375
he writes: An international multilateral treaty should provide for the introduction,

not only in the constitution but also in the criminal code of each country, of provi-
sions protecting minority groups [sic] from oppression because of their nationhood,
religion, or race. Each criminal code should have provisions inflicting penalties for
genocide practices. Ibid.
369 Cf. Sunga, International Criminal Law: Protection of Minority Rights, supra note
358.
370 Resolution 96 (I) (1946) on the Crime of Genocide, 11 December 1946, UN Doc. A/
RES/1/96 (I), <daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/033/47/IMG/
NR003347.pdf?OpenElement>, visited on 9 March 2011.
371 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December
1948, 78 UNTS 277.
372 Cf. N. Robinson, The Genocide Convention: A Commentary (Institute of Jewish Af-
fairs, World Jewish Congress, New York 1960), pp. 5758.
373 Genocide Convention, supra note 371.
374 Rome Statute, supra note 357, p. 93.
375 Neither public propaganda to provoke genocide nor the existence of organizations
with the aim of genocide are outlawed by the Convention. The only article referring
to prevention is Article 8, which permits states to request UN organs prevent and
Additionally, the intention requirement has turned out to be a significant ob-

stacle for the prosecution of the crime. Furthermore, there has been criticism that
the definition of protected groups has a lot of blind spots as political,376 econom-
ic, social and linguistic groups are not included as such in the protection of the
Genocide Convention, and many commentators agree that the Convention does
not cover what they call cultural genocide or ethnocide either, whereas these
concepts were referred to in the previously mentioned UN General Assembly
Resolution 96(I).377 Indeed, in earlier drafts its inclusion was proposed but was
deleted in the final text.378 In Lerners view, today [i]t is claimed, however, that
in the light of contemporary experience, the Convention should be amended to
include a reference to cultural genocide so as to extend the scope of the defi-
nition of genocide beyond the concept of physical destruction of persons.379
However, it is not really correct to see the Genocide Convention as only covering
the physical destruction of persons Article 2(e), although often forgotten, is an
important leftover of cultural genocide;380 indeed, the forcible transferring of
children from one group to another with the intention of extinguishing a pro-
tected group already goes beyond the concept of physical destruction of persons.
Furthermore, we can agree with Mundorff when he writes:
The Genocide Convention was framed to fulfi l dual purposes, to stigmatize the
worst forms of violence and to provide affirmative protections for group viability.
Stigmatization has drawn the better share of attention, as scholars have been hor-
rorstruck by the recent brutality humanity has inflicted on itself. However, four of
the five acts prohibited in Article 2 of the Genocide Convention deal not with mass
killing, but with the nuts and bolts of protecting human groups: genocide can be
accomplished without killing even a single individual.381
suppress acts of genocide, and is considered to be of minor importance and practi-

cal relevance. Cf. Lerner, Group Rights and Discrimination in International Law,
376 Cf. e.g. B. van Schaack, The Crime of Political Genocide: Repairing the Genocide
Conventions Blind Spot, 106 Yale Law Journal (1997) 2259.
377 Cf. e.g. Shaw, International Law, supra note 71, pp. 282283.
378 The deletion of this article was decided upon by a vote of 25 to 16, with 4 absten-
tions, 13 delegations being absent during the vote. The main arguments given for the
exclusion were that cultural Genocide was too indefinite a concept to be included
in a Convention; that the difference between mass murder and the closing of librar-
ies, for instance, was too great; that cultural Genocide legitimately falls within the
sphere of protection of minorities. Robinson, The Genocide Convention, supra
note 372, pp. 6465, footnotes omitted.
379 Lerner, Group Rights and Discrimination in International Law, supra note 5, p. 151.
380 Cf. Robinson, The Genocide Convention, supra note 372, p. 64.
381 Mundorff, Other Peoples Children, supra note 367, p. 66, footnotes omitted.
90 Chapter 2
Thus, members of a group could survive genocide in the sense of the Convention,
but not the group (or parts thereof). Consequently, genocide is not about the
physical destruction of persons belonging to the group, but the group itself.382
The distinction of the physical destruction of the group as opposed to the
groups members is often ignored in literature, sometimes even in important
court decisions. In Prosecutor v. Akayesu for example, the ICTR refers to Article
2(c) of the Genocide Convention with the following words:
The Chamber holds that the expression deliberately inflicting on the group condi-
tions of life calculated to bring about its physical destruction in whole or in part,
should be construed as the methods of destruction by which the perpetrator does
not immediately kill the members of the group, but which, ultimately, seek their phys-
ical destruction.383
This proposed construction changes the wording of the provision from destruc-
tion of the group to destruction of members of the group. Admittedly, in most
cases this distinction may not lead to a different result; however, this flawed in-
terpretation constitutes a serious problem when an action is committed with the
mens rea of destroying the group without, in the same moment, being covered by
the actus reus of killing the members of the group. This case may be an exception,
but without doubt such situations exist. Indeed, rape may be such a deliberate
infliction on the group conditions of life calculated to bring about its physical
destruction in whole or in part. For instance, Fisher writes with regard to Article
2(c):
Repeated rape alone is still just rape, but rape with the intent to impregnate is
something more. Furthermore, when there is not only the intent to forcibly impreg-
nate but also the intent to destroy a group of people, it is genocide.384
He develops this with the example of Bosnia:
A policy of rape is particularly damaging in the Bosnian Muslim culture, where

a woman may not be marriageable if she has been raped or carried the child of
another man, because the religion emphasizes virginity and chastity before mar-
riage. According to traditional Islamic culture, victims of rape have been spoiled
382 The main characteristic of Genocide is its object: the act must be directed toward
the destruction of a group. Robinson, The Genocide Convention, supra note 372, p.
58.
383 Prosecutor v. Jean-Paul Akayesu, 2 September 1998, ICTR, Case No. ICTR-96-4-T,
para. 505, <www.unictr.org/Portals/0/Case/English/Akayesu/judgement/akay001.
pdf>, visited on 21 February 2011. Emphasis added.
384 S. K. Fisher, Occupation of the Womb: Forced Impregnation as Genocide, 46 Duke
Law Journal (1996) 91, p. 125.
for marriage and motherhood [because they are] no longer virgins in a culture that
condemns premarital sex and ostracizes even those women who have been [forcibly
raped or assaulted]. 385
Hence, again, the group as such is protected by the Genocide Convention and
Article 2(c) can be violated without killing any individual.
Another aspect pertains to the size of the group and how many killings of
group members are necessary to amount to genocide under the Convention. To
escape the problem of an accused defining a group in such a way that, after the
attacks, it was not totally extinguished, the Convention includes the notion of
the destruction of a part of a group, as long as the other requirements are met.386
However, the group must consist of several members,387 and also the part which is
attacked must be substantial in terms of numbers and/or proportion.388
The Protected Groups: National, Ethnical, Racial or Religious Groups

Robinson writes on the notion of a group: Groups consist of individuals
However, these individuals are important not per se but only as members of the
group to which they belong. 389 And again later he describes a group as an as-
semblage of persons regarded as a unit because of their comparative segregation
from others.390
As has been discussed before, the notion of a group is seen by many as too
broad and too vague for a right-holder.391 In the Genocide Convention the notion
385 Ibid., pp. 123124, footnotes omitted.

386 The restriction to a group, as an assemblage of persons regarded as a unit because
of their comparative segregation from others, would have left open the question
whether the aim must be the destruction of the group in the whole of a country, in
a part of it, in a single town, etc. The addition of the words in part indicates that
Genocide has been committed when acts of homicide are joined with a connecting
purpose, i.e., directed against persons with specific characteristics (with intent to
destroy the group or a segment thereof). Therefore, the intent to destroy a multitude
of persons of the same group because of their belonging to this group, must be clas-
sified as Genocide even if these persons constitute only part of a group either within
a country or within a region or within a single community, provided the number is
substantial. Robinson, The Genocide Convention, supra note 372, p. 63.
387 [T]he Convention is intended to deal with action against large numbers, not indi-
viduals even if they happen to possess the same group characteristics. Ibid.
388 Of course, there are a lot of difficulties with determining how big the part has to be.
For a discussion of court practice and literature, see Schabas, Genocide in Interna-
tional Law, supra note 363, pp. 273286; and J. B. Quigley, The Genocide Convention:
An International Law Analysis (Ashgate, Aldershot, Burlington 2006), pp. 139145.
389 Robinson, The Genocide Convention, supra note 372, p. 58.
390 Ibid., p. 63.
391 See chapter 1.2.
92 Chapter 2
of groups is not generic but restricted by the addition of national, ethnical, racial
or religious in the previously mentioned Article 2. Nevertheless, determining the
existence and identity of a group was underestimated as a source of difficulties
by the drafters of the Genocide Convention; they did not define any of the four
protected groups and the text of Article 2 seems to regard the existence of such a
group as an objective matter.392 However, in genocide cases this has been a major
issue of controversy; it has become an important defence strategy to question the
very existence of the groups specified in the accusations.393
International courts have taken different approaches to define the protected
groups according to the Genocide Convention.394 In Prosecutor v. Akayesu the
ICTR defined a national group as a collection of people who are perceived to
share a legal bond based on common citizenship, coupled with reciprocity of
rights and duties.395 The focus on legal aspects of citizenship helps to distin-
guish national groups from political groups as intended by the drafters of the
Convention, and gives a rather objective definition of group membership.396 It
went on to define an ethnic group as a group whose members share a com-
mon language or culture.397 Next, it described the conventional definition of
a racial group as based on the hereditary physical traits often identified with
a geographical region, irrespective of linguistic, cultural, national or religious
factors.398 Hence, racial groups refer to a physical appearance different from
other groups. Finally, it characterised a religious group as one whose members
392 Cf. Quigley, The Genocide Convention, supra note 388, p. 146.
393 Cf. ibid.
394 Note that the ICTY and the ICTR have limited temporal and geographic jurisdiction
over natural persons on genocide as well as on crimes against humanity. Whereas
the ICTY has additional jurisdiction on grave breaches of the rules of armed con-
flict as to the Geneva Conventions of 1949 and violations of the laws or customs of
war, the ICTR has jurisdiction over violations of common Article 3 and Additional
Protocol II of the Geneva Conventions of 1949. The ICC jurisdiction with respect to
genocide as well as crimes against humanity, war crimes, and the crime of aggres-
sion (see Article 5(1) of the Rome Statute, Rome Statute, supra note 357) is temporally
restricted to acts committed after the Rome Statute has entered into force and per-
sonally restricted to natural persons over the age of eighteen. See D. L. Nersessian,
The Contours of Genocidal Intent: Troubling Jurisprudence from the International
Criminal Tribunals, 37 Texas International Law Journal (2002) 231, p. 234.
395 Prosecutor v. Akayesu, supra note 383, para. 512.
396 Cf. Nersessian, The Contours of Genocidal Intent: Troubling Jurisprudence from
the International Criminal Tribunals, supra note 394, p. 262.
397 Prosecutor v. Akayesu, supra note 383, para. 513; this view to understand ethnical
(or ethnic in the words of the ICTR) as meaning the social, linguistic, and cultural
dimensions of a group seems to be in line with the travaux and prior academic writ-
ing. See Nersessian, The Contours of Genocidal Intent: Troubling Jurisprudence
from the International Criminal Tribunals, supra note 394, p. 262.
398 Prosecutor v. Akayesu, supra note 383, para. 514.
share the same religion, denomination or mode of worship.399 However, in this

case, the ICTR had difficulties in finding any objective reasons to classify a group
which was attacked with the aim of destroying it as one of the protected groups
of the Convention. The group at stake, the Tutsis, did not have any culture or
language distinct from the rest of the Rwandan population.400 To include this
group in the protection of the Genocide Convention, it broadened the circle of
protected groups by introducing the notion of stable and permanent groups, i.e.
not only the four named groups but all stable and permanent groups should be
seen as covered.401 Accordingly, it came to the conclusion that, in any case, at the
time of the alleged events, the Tutsi did indeed constitute a stable and permanent
group and were identified as such by all.402 However, apart from this argumenta-
tion, the Court did also qualify the Tutsis as an ethnic group,403 a qualification
also used in Prosecutor v. Kayishema.404 405 This markedly objective and broad
approach to determining the existence and identity of a group has turned out to
be problematic in its later decisions.406
Another approach for determining if a group is protected by the Genocide
Convention it could be called the holistic or minority407 approach is the one
399 Ibid., para. 515.

400 The Chamber notes that the Tutsi population does not have its own language or a
distinct culture from the rest of the Rwandan population. However, the Chamber
finds that there are a number of objective indicators of the group as a group with a
distinct identity. Ibid., para. 170; cf. e.g., Schabas, Genocide in International Law,
401 It argued with reference to the travaux: Moreover, the Chamber considered wheth-
er the groups protected by the Genocide Convention, echoed in Article 2 of the Stat-
ute, should be limited to only the four groups expressly mentioned and whether they
should not also include any group which is stable and permanent like the said four
groups. In other words, the question that arises is whether it would be impossible
to punish the physical destruction of a group as such under the Genocide Conven-
tion, if the said group, although stable and membership is by birth, does not meet
the definition of any one of the four groups expressly protected by the Genocide
Convention. In the opinion of the Chamber, it is particularly important to respect
the intention of the drafters of the Genocide Convention, which according to the
travaux prparatoires, was patently to ensure the protection of any stable and per-
manent group. Prosecutor v. Akayesu, supra note 383, para. 516.
402 Ibid., para. 702.
403 Cf. ibid., paras. 170, 171, and 702.
404 Prosecutor v. Clment Kayishema and Obed Ruzindana, 21 May 1999, ICTR, Case
No. ICTR-95-1-T, <www.ictrcaselaw.org/docs/doc9039.pdf>, visited on 21 February
2011.
405 Cf. Quigley, The Genocide Convention, supra note 388, pp. 148149.
406 See Pentassuglia, Minority Groups and Judicial Discourse in International Law,
407 Ibid., p. 31.
94 Chapter 2
taken by the ICTY in Prosecutor v. Krsti.408 Basically, the Court unified the four
categories of groups and linked it generally to the notion of minorities with its
legal and conceptual bonds. It argued that the
preparatory work of the Convention shows that setting out such a list was designed
more to describe a single phenomenon, roughly corresponding to what was recog-
nised, before the second world war, as national minorities, rather than to refer to
several distinct prototypes of human groups. To attempt to differentiate each of the
named groups on the basis of scientifically objective criteria would thus be inconsis-
tent with the object and purpose of the Convention.409
As Pentassuglia notes, [a]s a result, the combination of objective and subjective

criteria traditionally used to identify national minorities is implicitly assumed
to guide the conceptualisation of ethno-cultural groups under the Genocide
Convention.410 This understanding has been criticised for its departure from
the wording of the Genocide Convention and its weak basis in the travaux.411
However, how close the connection of these protected groups and national mi-
norities were for Lemkin, the father of the Genocide Convention, has been men-
tioned above412 and other scholars have pointed to this close connection as well.413
Again another approach was taken in Prosecutor v. Kayishema.414 The Court
defined an ethnic group within the meaning of the Genocide Convention not
only in objective but also subjective terms: An ethnic group is one whose mem-
bers share a common language and culture; or, a group which distinguishes itself,
as such (self identification); or, a group identified as such by others, including per-
petrators of the crimes (identification by others). 415 In Prosecutor v. Rutaganda,
408 Prosecutor v. Radislav Krsti, 2 August 2001, ICTY, Case No. IT-98-33-T, <www.icty.
org/x/cases/krstic/tjug/en/krs-tj010802e.pdf>, visited on 22 February 2011.
409 Ibid., para. 556, footnotes omitted.
410 Pentassuglia, Minority Groups and Judicial Discourse in International Law, supra
note 297, p. 31.
411 Cf. D. M. Amann, Group Mentality, Expressivism, and Genocide, 2 International
Criminal Law Review (2002) 93; Quigley, The Genocide Convention, supra note
388, pp. 149150.
412 Where reference was made to Lemkin, Axis Rule in Occupied Europe, supra note
366, p. 93.
413 E.g., Thornberry, International Law and the Rights of Minorities, supra note 313, p.
69.
414 Prosecutor v. Kayishema, supra note 404.
415 Ibid., para. 98; moreover, the Court decided on the basis of the identity cards, which
gave the governments view on which ethnical belonging someone was, and on the
self identification of testifying witnesses in the court procedure that Tutsis consti-
tute an ethnic group. Ibid., paras. 522526.
the Court went even a step further with regard to the subjective dimension: [T]
he Chamber notes that for the purposes of applying the Genocide Convention,
membership of a group [sic! Not only ethnic group.] is, in essence, a subjec-
tive rather than an objective concept.416 However, again referring to the stable
and permanent objective trait of groups it did not see a subjective definition as
sufficient;417 instead, it pleaded for a case-by-case approach, taking into account
both the relevant evidence proffered and the political and cultural context as in-
dicated supra.418 The ICTY argued also for a combined subjective-objective ap-
proach on a case-by-case basis in Prosecutor v. Branin:
In accordance with the jurisprudence of the Tribunal, the relevant protected group
may be identified by means of the subjective criterion of the stigmatisation of the
group, notably by the perpetrators of the crime, on the basis of its perceived na-
tional, ethnical, racial or religious characteristics. In some instances, the victim may
perceive himself or herself to belong to the aforesaid group.419
And:
The correct determination of the relevant protected group has to be made on a case-
by-case basis, consulting both objective and subjective criteria. This is so because
subjective criteria alone may not be sufficient to determine the group targeted for
destruction and protected by the Genocide Convention, for the reason that the acts
identified in subparagraphs (a) to (e) of Article 4(2) must be in fact directed against
members of the group.420
In a more general way, and without referring to the above mentioned approaches,
the ICTY drew attention in the recent cases Prosecutor v. Staki and, based on
this, in Prosecutor v. Popovi et al. to the targeted groups distinct identity, such
416 Prosecutor v. Georges Anderson Nderubumwe Rutaganda, 6 December 1999, ICTR,

Case No. ICTR-96-3-T, para. 56, <www.ictrcaselaw.org/docs/doc15149.pdf>, visited
on 21 February 2011.
417 Ibid., para. 57.
418 Ibid., para. 58.
419 Prosecutor v. Radoslav Branin, 1 September 2004, ICTY, Case No. IT-99-36-T, para.
683, <www.icty.org/x/cases/brdanin/tjug/en/brd-tj040901e.pdf>, visited on 22 Feb-
ruary 2011, footnotes omitted.
420 Ibid., para. 684, footnotes omitted; cf. also the view of the parties in the Bosnian
Genocide Judgement of 2007: The Parties essentially agree that international juris-
prudence accepts a combined subjective-objective approach. The issue is not in any
event significant on the facts of this case and the Court takes it no further. Applica-
tion of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), 26 February 2007, ICJ, para. 191,
<www.icj-cij.org/docket/fi les/91/13685.pdf>, visited on 11 January 2011.
96 Chapter 2
as persons of a common national origin or any religious community united by

a single spiritual ideal.421 These two cases point to yet another important aspect
of the definition of the protected groups,422 an aspect which was later highlighted
by the ICJ in the Bosnian Genocide judgement of 2007, that the protected groups
are defined positively as what they are and not negatively as what they are not.423
This is to prevent the subsuming of all mass killing to the notion of genocide;
hence, attacks against, for example, all foreigners or all non-Serbs are not cov-
ered according to this understanding of the term group.
Overall, although definitions of the protected groups of the Genocide
Convention leave uncertainties which have elicited different approaches, the
above mentioned cases show that courts are able to establish positively defined
groups protected by the Genocide Convention through a case-by-case approach,
taking objective as well as subjective criteria into account and acknowledging
the conceptual proximity of the protected groups with what was referred to as
national minorities.
The Right to Existence A Classic Group Right

The Genocide Convention is directed at offenders and at no place does it discuss
protected groups as right-holders. Nevertheless, the situation is clear that, after
the general theoretical discussion of the right-holder in (international) criminal
law, the protected groups can be seen as right-holders.424 Hence, the Genocide
421 Prosecutor v. Vujadin Popovi et al., 10 June 2010, ICTY, Case No. IT-05-88-T, para.
809, <www.icty.org/x/cases/popovic/tjug/en/100610judgement.pdf>, visited on 22
February 2011; referring to Prosecutor v. Milomir Staki, 22 March 2006, ICTY, Ap-
peal Judgement, Case No. IT-97-24-A, paras. 22 and 24, <www.icty.org/x/cases/sta-
kic/acjug/en/sta-aj060322e.pdf>, visited on 22 February 2011.
422 Cf. Prosecutor v. Goran Jelisi, 14 December 1999, ICTY, Case No. IT-95-10-T, para.
71, <www.icty.org/x/cases/jelisic/tjug/en/jel-tj991214e.pdf>, visited on 21 February
2011; Prosecutor v. Staki, Appeal Judgement, supra note 421, paras. 1628.
423 Bosnian Genocide Judgement of 2007, supra note 420, paras. 192193.
424 Cf. for a similar point of view: It is true that the Genocide Convention is directed
at offenders rather than victims; that is to say, the problem is treated in that Con-
vention as a matter of the duties of persons ... whether they are constitutionally
responsible rulers, public officials or private individuals (Art. IV), rather than in
terms of the rights of national, ethnical, racial or religious groups. But plainly the
definition of genocide can be regarded as having as its object the preservation of
those groups, and in this sense it is meaningful to talk about their rights. It should
be noted, however, that these rights are of a distinctly limited character, notwith-
standing (or perhaps because of) the breadth of the notion of a group in the Con-
vention. Thus the Convention only prohibits acts which involve or conduce to direct
or indirect physical destruction of the group or a substantial part of it, whether by
homicide, terrorism, mass deprivation, eugenics or forcible transfer of children.
Crawford, The Rights of Peoples: Peoples or Governments?, supra note 11, p. 59.
Convention is a classic example of group rights. Furthermore, it is the basic group

right which takes priority over many others and can be seen as implicitly includ-
ed in the principle of self-determination.425 Moreover, the ICJ held in the 2006
case of Armed Activities on the Territory of the Congo that the substantive provi-
sions of the Genocide Convention have the status of jus cogens and create rights
and obligations erga omnes.426
Protection of the Civilian Population

The Rome Statute gives the ICC subject matter jurisdiction over not only geno-
cide but also, in Article 7(1), over crimes against humanity. The roots of the crime
can be traced back to the beginning of the 20th century and played an important
role in the Nuremberg Trials. Surprisingly, one may think, it does not only con-
sist of crimes against a higher quantity of individuals, but of mass crimes against
a collective, the civilian population. Compared with the crime of genocide, this
group is, in different aspects, defined much more broadly;427 above all, the civil-
ian population includes all kinds of groups and does not have to form a specific,
425 Cf. ibid.

426 In para. 64 the Court holds that the rights and obligations enshrined by the Con-
vention are rights and obligations erga omnes The same applies to the relation-
ship between peremptory norms of general international law (jus cogens) and the
establishment of the Courts jurisdiction: the fact that a dispute relates to compli-
ance with a norm having such a character, which is assuredly the case with regard to
the prohibition of genocide Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda), 3 February 2006,
ICJ, Jurisdiction and Admissibility, ICJ Reports 2006, p. 6, at pp. 3132.
427 However, it is still possible that an attack against only a specific group being part
of the civilian population would amount to genocide but not to a crime against
humanity. See the example given by Gunal Mettraux, determining the targeted
population is also important in assessing the breadth or systematic nature of the
attack. The civilian population that is being targeted by the attack and is said by the
Prosecution to constitute a civilian population relevant to the charges might itself
constitute only a small part of a broader group of civilian individuals. Thus, if
two distinct ethnic groups, Group A and Group B, live together in a given town,
the civilian population of that town is AB, but the targeted civilian population may
consist of members of the B group only. The civilian members of the B group could
form the civilian population referred to in the defi nition of crimes against human-
ity. It is only in the context of this subgroup (the defi ned civilian population) that
the other elements (e.g. widespread or systematic nature) must be considered. If, on
the contrary, one regarded Group AB as the targeted group (the defined civilian
population), of which Group B is only a tiny minority, it could prove impossible to
show that the attack is widespread or even systematic if only Group B was targeted
during the attack. G. Mettraux, International Crimes and the Ad Hoc Tribunals
(Oxford University Press, Oxford, New York 2005), pp. 166167, footnotes omitted.
For the differences between the group in genocide and crimes against humanity
98 Chapter 2
unified group. Furthermore, with regard to the mens rea, no intention to destroy
the civilian population in whole or in part is required, and many forms of attacks
are included in the crime, including enslavement and deportation.428
For the purposes of this book, it is interesting to note that the object of this
crime is also a collective, a group. In Prosecutor v. Tadi, the ICTY commented
on this:
[T]he population element is intended to imply crimes of a collective nature and

thus exclude single or isolated acts which, although possibly constituting war crimes
or crimes against national penal legislation, do not rise to the level of crimes against
humanity the emphasis is not on the individual victim but rather on the collec-
tive, the individual being victimised not because of his individual attributes but
rather because of his membership of a targeted civilian population.429
Hence, crimes against humanity are, in Werles words, directed against a civil-
ian population as such, not merely at an individual. The term civilian population
encompasses any group of people linked by shared characteristics that in turn
make it the target of an attack.430
Such a definition of a group is nearly as broad as it can get, only the adjective
civilian narrows it down slightly.431 The underlying raison dtre of this inter-
national crime is, in my view, the same as for genocide: not that groups are of
special value, but the denial of any worth to individuals; in both crimes, they are
see e.g. ibid., pp. 329333; further A. Cassese, International Criminal Law (2nd edn.,
Oxford University Press, Oxford, New York 2008), pp. 144145.
428 See Article 7(1)(c) and (d) Rome Statute, supra note 357.
429 Prosecutor v. Duko Tadi, 7 May 1997, ICTY, Case No. IT-94-1-T, para. 644, <www.
icty.org/x/cases/tadic/tjug/en/tad-tsj70507JT2-e.pdf>, visited on 21 February 2011,
footnotes omitted. Cf. also R. Dixon and C. K. Hall, Article 7(1), in O. Triffterer
(ed.), Commentary on the Rome Statute of the International Criminal Court: Observ-
ers Notes, Article by Article (2nd edn., Beck; Hart; Nomos, Mnchen et al. 2008),
pp. 180181, margin nos. 1314; further E. Schwelb, Crimes Against Humanity, 23
British Yearbook of International Law (1946) 178, p. 191.
430 G. Werle, Principles of International Criminal Law (2nd edn., TMC Asser Press, The
Hague 2009), p. 293, margin no. 793; cf. also Gunal Mettraux on this issue: a
population may be defined as a sizeable group of people who possess some distinc-
tive features that mark them as targets of the attack. The population must form a
somewhat self-contained group of individuals, either geographically or as a result of
other common features. A group of individuals randomly or fortuitously assembled
such as a crowd at a football game could not be regarded as a population under
this definition. Mettraux, International Crimes and the Ad Hoc Tribunals, supra
note 427, p. 166, footnotes omitted.
431 The meaning of civilian is contested in legal literature as well as in court cases. For
a short overview on court practice cf. e.g. Werle, Principles of International Crimi-
nal Law, supra note 430, pp. 293296, margin nos. 793800.
just part of a collective, which is the reason that they become victims. If interna-
tional criminalisation was only connected to the quantity of victims, no group-
dimension would be needed at all.
Moving on to the war crimes prohibited in Article 8(2) of the Rome Statute,
the civilian population is still protected as a group, but the protection is provided
to the civilian population and individual civilians interchangeably.432 Similarly,
with regard to the prohibition of deportation or transfer by the occupying power,
all or parts of the civilian population are protected through Article 8(2)(b)(viii)
of the Rome Statute.433 However, essentially the same prohibition can be found
with regard to individual civilians in Article 8(2)(a)(vii) of the Rome Statute434 as
432 For international conflicts see: (b) Other serious violations of the laws and customs
applicable in international armed conflict, within the established framework of in-
ternational law, namely, any of the following acts: (i) Intentionally directing attacks
against the civilian population as such or against individual civilians not taking di-
rect part in hostilities. Rome Statute, supra note 357, p. 95. For internal conflicts, see
Article 8(2)(e)(i) of the Rome Statute, ibid., p. 97, with the same wording. Individual
civilians can lose this protection when taking part in the hostilities, the civilian
population as such not. See K. Drmann, Article 8(2)(b)(i), in O. Triffterer (ed.),
Commentary on the Rome Statute of the International Criminal Court: Observers
Notes, Article by Article (2nd edn., Beck; Hart; Nomos, Mnchen et al. 2008), pp.
323325, margin no. 31.
433 (b) Other serious violations of the laws and customs applicable in international
armed conflict, within the established framework of international law, namely, any
of the following acts (viii) The transfer, directly or indirectly, by the occupying
Power of parts of its own civilian population into the territory it occupies, or the
deportation or transfer of all or parts of the population of the occupied territory
within or outside this territory. Rome Statute, supra note 357, p. 95. Note that Ar-
ticle 8(2)(b)(viii) of the Rome Statute applies in international conflicts and does not
cover the Partys own nationals in national territory not occupied by an adverse
Party. (A. Zimmermann, Article 8(2)(e), in O. Triffterer (ed.), Commentary on the
Rome Statute of the International Criminal Court: Observers Notes, Article by Ar-
ticle (2nd edn., Beck; Hart; Nomos, Mnchen et al. 2008), p. 497, margin no. 322).
For internal conflicts see Article 8(2)(e)(viii): (e) other serious violations of the laws
and customs applicable in armed confl icts not of an international character, within
the established framework of international law, namely, any of the following acts
(viii) Ordering the displacement of the civilian population for reasons related to the
conflict, unless the security of the civilians involved or imperative military reasons
so demand. Rome Statute, supra note 357, p. 98. Hence, in internal confl icts, the
civilian population is protected against displacement, individual civilians are not
mentioned.
434 Article 8(2) reads: For the purpose of this Statute, war crimes means: (a) Grave
breaches of the Geneva Conventions of 12 August 1949, namely, any of the follow-
ing acts against persons or property protected under the provisions of the relevant
Geneva Convention (vii) Unlawful deportation or transfer or unlawful confi ne-
ment. Ibid., pp. 9495.
100 Chapter 2
well.435 Overall, the group rights dimension is much weaker in this category of
rights.436
Another crime against humanity which is committed against a group is the
one of persecution437 as stated in Article 7(1)(h) of the Rome Statute:
Persecution against any identifiable group or collectivity on political, racial, nation-

al, ethnic, cultural, religious, gender as defi ned in paragraph 3, or other grounds
that are universally recognized as impermissible under international law, in con-
nection with any act referred to in this paragraph or any crime within the jurisdic-
tion of the Court.438
In Article 7(2)(g) of the Rome Statute it is clarified that [p]ersecution means

the intentional and severe deprivation of fundamental rights contrary to inter-
national law by reason of the identity of the group or collectivity.439 The crime is
dealt with by the ICC only if it is committed in connection with another crime
within its jurisdiction; it needs to be mentioned that in customary international
law it has developed into an independent crime.440
435 M. Cottier, Article 8(2)(b)(viii), in O. Triffterer (ed.), Commentary on the Rome

Statute of the International Criminal Court: Observers Notes, Article by Article (2nd
edn., Beck; Hart; Nomos, Mnchen et al. 2008), p. 370, margin no. 93.
436 However, the group dimension could play a certain importance in determining the
gravity of a crime according to Article 78(1) of the Rome Statute and, thus, fi nding
the adequate penalty as it brings war crimes closer to genocide which is usually
considered one of the gravest crimes. Generally, it seems to be the case that a crime
against a group consisting of a certain quantity of acts against individuals is quali-
tatively more graver than just the addition of these individual acts.
437 See generally M. Boot and C. K. Hall, Article 7(1)(h), in O. Triffterer (ed.), Commen-
tary on the Rome Statute of the International Criminal Court: Observers Notes, Ar-
ticle by Article (2nd edn., Beck; Hart; Nomos, Mnchen et al. 2008); M. Boot and C.
K. Hall, Article 7(2)(g), in O. Triffterer (ed.), Commentary on the Rome Statute of the
International Criminal Court: Observers Notes, Article by Article (2nd edn., Beck;
Hart; Nomos, Mnchen et al. 2008); K. Roberts, The Law of Persecution before the
International Criminal Tribunal for the Former Yugoslavia, 15 Leiden Journal of
International Law (2002) 623; and Werle, Principles of International Criminal Law,
supra note 430.
439 Ibid., p. 94.
440 See Werle, Principles of International Criminal Law, supra note 430, p. 332, mar-
gin no. 898; see also A. Cassese, Crimes against Humanity, in A. Cassese et al.
(eds.), The Rome Statute of the International Criminal Court: A Commentary (Ox-
ford University Press, Oxford 2002), p. 376. However, Antonio Cassese holds that the
provision greatly expands the category of discriminatory grounds in comparison
with customary international law by adding cultural grounds, gender as defi ned
Overall, in a group rights-reading, the crime of persecution is committed

against identifiable ascribed groups by intentionally and severely depriving the
group of its fundamental rights. The ascription of group membership is made by
the perpetrator;441 his intention is discrimination of the group.442 With regard
to the holder of the fundamental rights, this reading is clearly too restrictive if
not completely wrong, as most of the fundamental rights referred to are held by
individuals,443 i.e. the members of such groups. Furthermore, it is widely accepted
that not only groups as such are protected, but also their members.444 However,
in a group rights-reading they are protected as representatives of the group,445
whereas in a more individualistic reading they are as individuals. Hence, the view
differs with regard to the right-holder, either the right-holders are the groups as
such or the groups as such plus the individuals. Commentators seem to disagree
on the correct reading.446 The wording of the provision as well as case law from
the ICTY seem to support a group rights-reading which is close to the approach
taken with the prohibition of genocide.447 However, the difference is mainly of
in paragraph 3, and other grounds that are universally recognized as impermissible

under international law. See ibid., pp. 376377.
441 See Werle, Principles of International Criminal Law, supra note 430, p. 328, margin
no. 890.
442 See ibid., pp. 332333, margin nos. 889900.
443 See the examples listed in Boot and Hall, Article 7(2)(g), supra note 437, pp. 257262,
margin no. 116.
444 See Boot and Hall, Article 7(1)(h), supra note 437, p. 217, margin no. 59, and Werle,
Principles of International Criminal Law, supra note 430, p. 328, margin no. 890.
445 The same understanding of the crime of persecution, but in the context of the ICTY,
was also applied in the reasoning in Prosecutor v. Blaki: In other words, the per-
petrator of the acts of persecution does not initially target the individual but rather
membership in a specific racial, religious or political group. Prosecutor v. Tihomir
Blaki, 3 March 2000, ICTY, Case No. IT-95-14-T, para. 235, <www.icty.org/x/cases/
blaskic/tjug/en/bla-tj000303e.pdf>, visited on 21 February 2011.
446 For a group rights reading, see Werle, Principles of International Criminal Law,
supra note 430, p. 328, margin no. 890. and ibid., pp. 332333, margin no. 899; for an
arguably individualistic reading, see Boot and Hall, Article 7(1)(h), supra note 437,
p. 217, margin no. 59, where it is argued that also the members of such a group are
protected, but not that they are so as representatives of the group; and where the
intention is only discriminatory but not specifically called discriminatory against
a group. Hence, this implies that the authors apply an individualistic reading of the
provision.
447 The clearest expression of this connection can be found in Prosecutor v. Kupreki:
As set forth above, the mens rea requirement for persecution is higher than for or-
dinary crimes against humanity, although lower than for genocide. In this context
the Trial Chamber wishes to stress that persecution as a crime against humanity is
an offence belonging to the same genus as genocide. Both persecution and genocide
are crimes perpetrated against persons that belong to a particular group and who
102 Chapter 2
academic importance in our discussion of group rights as opposed to individual

rights, but has hardly any practical implications, i.e. whether group members are
protected as individuals or as representatives does not make any difference for
the prosecution of a crime.448
Yet another crime against a group which is considered a crime against
humanity is the crime of apartheid prohibited in Article 7(1)(j) of the Rome
Statute.449 In Article 7(2)(h) the crime is described in the following words:
The crime of apartheid means inhumane acts of a character similar to those re-
ferred to in paragraph 1, committed in the context of an institutionalized regime
of systematic oppression and domination by one racial group over any other racial
group or groups and committed with the intention of maintaining that regime.450
are targeted because of such belonging. In both categories what matters is the intent
to discriminate: to attack persons on account of their ethnic, racial, or religious
characteristics (as well as, in the case of persecution, on account of their political
affi liation). While in the case of persecution the discriminatory intent can take
multifarious inhumane forms and manifest itself in a plurality of actions including
murder, in the case of genocide that intent must be accompanied by the intention to
destroy, in whole or in part, the group to which the victims of the genocide belong.
Thus, it can be said that, from the viewpoint of mens rea, genocide is an extreme and
most inhuman form of persecution. To put it differently, when persecution escalates
to the extreme form of wilful and deliberate acts designed to destroy a group or part
of a group, it can be held that such persecution amounts to genocide. Prosecutor
v. Zoran Kupreki et al., 14 January 2000, ICTY, Case No. IT-95-16-T, para. 636,
<www.icty.org/x/cases/kupreskic/tjug/en/kup-tj000114e.pdf>, visited on 21 Febru-
ary 2011. In the same vein Prosecutor v. Jelisi: From this point of view, genocide
is closely related to the crime of persecution, one of the forms of crimes against
humanity set forth in Article 5 of the Statute. The analyses of the Appeals Chamber
and the Trial Chamber in the Tadi case point out that the perpetrator of a crime
of persecution, which covers bodily harm including murder, also chooses his vic-
tims because they belong to a specific human group. Prosecutor v. Jelisi, supra note
422, para. 68, footnotes omitted. See also W. A. Schabas, The International Criminal
Court: A Commentary on the Rome Statute (Oxford University Press, Oxford 2010),
p. 175.
448 Regarding the intention, it is hard to see how a perpetrator could intend to dis-
criminate against a group member for reasons of her belonging to the group without
wanting at the same time at least implicitly to discriminate against the group as
such as well. For the discussion of the group dimension of non-discrimination see
chapter 2.3.3.
449 See generally, J. Gebhard, Apartheid, Max Planck Encyclopedia of Public Interna-
tional Law (2009), <mpepil.com>, visited on 4 July 2010.
Hence, the crime is committed by individuals such as leaders, organisers, but also
low-level perpetrators.451 The term racial group, according to Hall, has to be un-
derstood in a broad sense as including all groups protected by the CERD.452 After
our discussion of the interpretation of the CERD by its Commission, this is a very
broad understanding indeed and will include most if not all groups referred to as
minorities and indigenous peoples as well.453
In light of the gravity of the prohibited acts, this crime reflects an extreme
case of systematic discrimination against a group. However, systematic oppres-
sion and domination of a group are only the context in which the crimes are
committed and not the crime itself. This seems awkward at first sight as this usu-
ally would be seen as apartheid ; however, looking at the prohibited acts, this dif-
ference loses much of its weight. Article 7(2)(h) refers to Article 7(1) of the Rome
Statute which includes the crime of persecution and, hence, covers a broad range
of fundamental rights/human rights; the rights typically breached by a systemat-
ic oppression and domination of a group are covered by this Article.454 Moreover,
it has been argued that inhumane acts of a similar character would include most
451 In this sense Gerhard Werle, see Werle, Principles of International Criminal Law,
supra note 430, p. 339, margin no. 918; accord C. K. Hall, 7(2)(h), in O. Triffterer
(ed.), Commentary on the Rome Statute of the International Criminal Court: Observ-
ers Notes, Article by Article (2nd edn., Beck; Hart; Nomos, Mnchen et al. 2008), pp.
265266, margin no. 126.
452 Ibid., p. 265, margin nos. 124125; accord Werle, Principles of International Crimi-
nal Law, supra note 430, p. 339, margin no. 919.
453 In this sense also Christopher K. Hall: The wide number of acts which constitute
the crime of apartheid , the broad definition of racial discrimination under interna-
tional law as including discrimination based on race, colour, descent, or national or
ethnic origin and the significant number of States which today have institutional-
ized regimes of systematic oppression and domination by one racial group over at
least one other racial group, means that the potential number of acts which would
be subjected to the Courts jurisdiction is considerable. It is clear that the drafters
wished the crime of apartheid to have a broad definition as they did not include the
phrase in Article 1 of the Apartheid Convention that it included similar policies and
practices of racial segregation and discrimination as practiced in southern Africa
under the former government This broad definition may encourage governments
to review existing legislation and practices regarding their treatment of indigenous
and minority groups to ensure that they are not part of an institutionalized regime
of systematic oppression and domination by one racial group over any other racial
group. C. K. Hall, 7(1)(j), in O. Triffterer (ed.), Commentary on the Rome Statute
of the International Criminal Court: Observers Notes, Article by Article (2nd edn.,
Beck; Hart; Nomos, Mnchen et al. 2008), p. 229, margin no. 78.
454 See Hall, 7(2)(h), supra note 451, p. 264, margin no. 121.
104 Chapter 2
of the acts included in Article 2 of the Apartheid Convention455 which, in turn,

cover most acts of systematic oppression and domination of a group.456
2.4.3. Obligation to Prevent Genocide

Genocide as an international crime and its group dimension has been discussed
above. However, there is another aspect of the Genocide Convention that is not
directly linked with international criminal law. The thus far not discussed Article
1 of the Genocide Convention has the following wording: The Contracting
Parties confirm that genocide, whether committed in time of peace or in time
of war, is a crime under international law which they undertake to prevent and
455 International Convention on the Suppression and Punishment of the Crime of Apart-
heid, 30 November 1973, 1015 UNTS 243.; this argumentation can be found in Hall,
7(2)(h), supra note 451, pp. 263264, margin nos. 120121, and in Werle, Principles
of International Criminal Law, supra note 430, p. 338, margin no. 915.
456 See especially Article 2: (c) any legislative measures and other measures calculated
to prevent a racial group or groups from participation in the political, social, eco-
nomic and cultural life of the country and the deliberate creation of conditions pre-
venting the full development of such a group or groups, in particular by denying to
members of a racial group or groups basic human rights and freedoms, including
the right to work, the right to form recognized trade unions, the right to educa-
tion, the right to leave and to return to their country, the right to a nationality, the
right to freedom of movement and residence, the right to freedom of opinion and
expression, and the right to freedom of peaceful assembly and association; (d) any
measures, including legislative measures, designed to divide the population along
racial lines by the creation of separate reserves and ghettos for the members of a
racial group or groups, the prohibition of mixed marriages among members of vari-
ous racial groups, the expropriation of landed property belonging to a racial group
or groups or to members thereof; (e) exploitation of the labour of the members of a
racial group or groups, in particular by submitting them to forced labour; (f) perse-
cution of organizations and persons, by depriving them of fundamental rights and
freedoms, because they oppose apartheid. Apartheid Convention, supra note 455,
pp. 245246; Christopher K. Hall argues that [a]lthough some may contend that
some of the acts listed in Article II, such as the denial of the right to work or to
education, although, of course, very serious deprivations, are not of the same nature
as the acts listed in Article 7 para. 1, this contention overlooks the devastating im-
pact on the lives of those denied these rights recognized by the Universal Declara-
tion of Human Rights and guaranteed by the International Covenant on Economic,
Social and Cultural Rights, and on the society deprived of the full potential of its
members. Moreover, as indicated in the discussion of persecution many of the
acts constitute the crime against humanity of persecution. However, many of the
other acts listed in Article II, such as murder (Article II (a) (i)) and torture (Article
II (a) (ii)), are already covered by Article 7 para. 1, so they will fall within the crime
of apartheid under the Statute if the Court decides to follow the interpretation in
the second element of the Elements of Crimes. Hall, 7(2)(h), supra note 451, p. 264,
margin no. 121.
to punish. In the Bosnian Genocide judgement of 2007,457 the ICJ argued that
the undertaking to prevent genocide, as indicated in Article 1 of the Genocide
Convention,
is not merely hortatory or purposive. The undertaking is unqualified ; and it is

not to be read merely as an introduction to later express references to legislation,
prosecution and extradition. Those features support the conclusion that Article I, in
particular its undertaking to prevent, creates obligations distinct from those which
appear in the subsequent Articles. That conclusion is also supported by the purely
humanitarian and civilizing purpose of the Convention.458
After discussing the travaux and the circumstances of the conclusion of the
Convention as referred to in Article 32 of the VCLT,459 460 the Court concludes:
For the Court both changes the movement of the undertaking from the Preamble
to the first operative Article and the removal of the linking clause (in accordance
with the following Articles) confirm that Article I does impose distinct obliga-
tions over and above those imposed by other Articles of the Convention. In particu-
lar, the Contracting Parties have a direct obligation to prevent genocide.461
In conclusion, it held that this obligation is both normative and compelling,

has its own scope and means that states must take such action as they can to
prevent genocide from occurring.462
The Court went on to clarify this obligation to prevent genocide according
to the Genocide Convention, noting that
it is clear that the obligation in question is one of conduct and not one of result,
in the sense that a State cannot be under an obligation to succeed, whatever the
circumstances, in preventing the commission of genocide: the obligation of States
parties is rather to employ all means reasonably available to them, so as to prevent
457 Bosnian Genocide Judgement of 2007, supra note 420; for a discussion of the case,
see A. Gattini, Breach of the Obligation to Prevent and Reparation Thereof in the
ICJs Genocide Judgment, 18 European Journal of International Law (2007) 695; cf.
also D. Amnus, Responsibility to Protect by Military Means: Emerging Norms on
Humanitarian Intervention? (Dissertation, Stockholm 2008), pp. 277288; and Scha-
bas, Genocide in International Law, supra note 363, pp. 520525.
458 Bosnian Genocide Judgement of 2007, supra note 420, para. 162.
459 Vienna Convention on the Law of Treaties, 23 May 1969, <untreaty.un.org/ilc/texts/
instruments/english/conventions/1_1_1969.pdf>, visited on 8 January 2010.
460 Bosnian Genocide Judgement of 2007, supra note 420, paras. 163164.
461 Ibid., para. 165.
462 Ibid., para. 427.
106 Chapter 2
genocide so far as possible In this area the notion of due diligence, which calls
for an assessment in concreto, is of critical importance.463
It highlights especially the capacity of the state to influence the actions of (po-
tential) perpetrators to determine whether a state has lived up to this responsi-
bility.464 Regarding any additional territorial limitations on such a responsibility,
the Court relies on its judgement on the preliminary objections, where it stated
that the rights and obligations enshrined by the Convention are rights and ob-
ligations erga omnes. The Court notes that the obligation each State thus has to
prevent and to punish the crime of genocide is not territorially limited by the
Convention.465 In brief, the legal obligation to prevent genocide is of an erga
omnes nature.466
463 Ibid., para. 430.

464 Various parameters operate when assessing whether a State has duly discharged
the obligation concerned. The first, which varies greatly from one State to another,
is clearly the capacity to influence effectively the action of persons likely to commit,
or already committing, genocide. This capacity itself depends, among other things,
on the geographical distance of the State concerned from the scene of the events,
and on the strength of the political links, as well as links of all other kinds, between
the authorities of that State and the main actors in the events. The States capacity
to influence must also be assessed by legal criteria, since it is clear that every State
may only act within the limits permitted by international law; seen thus, a States
capacity to influence may vary depending on its particular legal position vis--vis
the situations and persons facing the danger, or the reality, of genocide. On the other
hand, it is irrelevant whether the State whose responsibility is in issue claims, or
even proves, that even if it had employed all means reasonably at its disposal, they
would not have sufficed to prevent the commission of genocide. As well as being
generally difficult to prove, this is irrelevant to the breach of the obligation of con-
duct in question, the more so since the possibility remains that the combined efforts
of several States, each complying with its obligation to prevent, might have achieved
the result averting the commission of genocide which the efforts of only one State
were insufficient to produce. Ibid.
465 Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), 11 July 1996, ICJ, Preliminary Ob-
jections, ICJ Reports 1996, p. 595, at p. 616; in the Bosnian Genocide Judgement of 2007
the Court held that this statement was only meant with regard to the obligations
contained in Article 1 of the Genocide Convention which is what is being referred
to here. See Bosnian Genocide Judgement of 2007, supra note 420, paras. 153154; cf.
further Amnus, Responsibility to Protect by Military Means, supra note 457, pp.
282283.
466 On the history of and the jurisdiction on erga omnes obligations in the context of
genocide, with special reference to the discussed case (Application of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide, Preliminary Ob-
jections, supra note 465), cf. Ragazzi, The Concept of International Obligations Erga
Omnes, supra note 9, pp. 92104.
The Court has circumscribed the content of this obligation further:
[A] States obligation to prevent, and the corresponding duty to act, arise at the in-
stant that the State learns of, or should normally have learned of, the existence of
a serious risk that genocide will be committed. From that moment onwards, if the
State has available to it means likely to have a deterrent effect on those suspected of
preparing genocide, or reasonably suspected of harbouring specific intent (dolus
specialis), it is under a duty to make such use of these means as the circumstances
permit.467
Of course, a State can be held responsible for breaching the obligation to prevent
genocide only if genocide was actually committed.468
From the perspective taken in this book, this is of great importance as the
prohibition of genocide is, put in positive terms, about the protection of groups.
In fact, it is the groups right of existence which is at stake. Hence, the erga omnes
obligation to prevent genocide is a legal obligation of all signatory states to the
Genocide Convention to safeguard the right of existence of the protected groups
in the Convention. Furthermore, as far as it has become part of customary law, it
is even an obligation of all states.
2.4.4. Rights of Minorities

Minority protection is widely accepted as a major factor for securing social and
political stability, accommodating diversity, and enhancing democracy and re-
spect for human rights today.469 In this part, the discussion will be on the ques-
tion if there are some group rights granted to minorities, apart from possible
overlaps with the above mentioned rights.
Although minority rights could be understood as prima facie classic exam-
ples of group rights, this is not the reality when looking closer at the legal docu-
ments, as most of them provide rights to persons belonging to minorities and,
hence, consist of individual rights. For different reasons governments have been
reluctant to integrate provisions to groups and, in Kymlickas words,
when the European standards for national minority rights were finally codified, all
references to self-government or autonomy were dropped, and a much weaker set of
norms were proposed. Indeed, the Council of Europes framework convention and
467 Bosnian Genocide Judgement of 2007, supra note 420, para. 431.
468 Ibid.
469 G. Pentassuglia, Reforming the UN Human Rights Machinery: What Does the Fu-
ture Hold for the Protection of Minorities and Indigenous Peoples?: An Introducti-
on, 14 International Journal on Minority and Group Rights (2007) 127, pp. 129 et seq.
108 Chapter 2
the OSCEs recommendations are essentially updated versions of the UNs minori-
ties declaration, founded on a clear integrationist approach.470
Moreover, in her extensive analysis on group rights and their relation to individ-
ual rights, Wenzel came to the simple conclusion that there are no group rights of
minorities at all in contemporary international law.471 However, some have disa-
greed on this and we need to take a closer look at the possible candidates.472
The natural point of departure for lawyers in the search of a minoritys
group right is Article 27 of the CCPR, stating that [i]n those States in which
ethnic, religious or linguistic minorities exist, persons belonging to such minori-
ties 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.473
Hence, with the persons belonging to formula, this important article is
clearly formulated in an individualistic rather than a collective way. However, the
provision is not without ambivalence as to this question since it is a compromise
between states in favour of a group provision and those in favour of an individu-
alistic approach.474 Legal commentators have pointed to the collective element
of the provision. Sieghart for example writes: Although this right is declared in
terms to attach to persons, it may be said to be a collective right in so far as its
exercise is protected in community with the other members of the minorities
referred to. 475 Pointing to the same phrase, Tomuschat concludes that the provi-
470 W. Kymlicka, The Internationalization of Minority Rights, 6 International Journal

of Constitutional Law (2008) 1, p. 30.
471 Gruppenrechte fr Minderheiten knnen zur Zeit jedenfalls nicht zum Bestand des
Vlkerrechts gezhlt werden. Wenzel, Das Spannungsverhltnis zwischen Grup-
penschutz und Individualschutz im Vlkerrecht, supra note 11, p. 94.
472 The right to self-determination and the legal prohibition of non-discrimination are
both important principles on which international minority protection is based on,
but they could only be discussed here if they were more far-reaching then discussed
generally in 4.1 and 4.2, e.g. if a minority would have as such a claim to external self-
determination based on international law, which clearly is not the case.
473 Cf. C. Tomuschat, Protection of Minorities under Article 27 of the International
Covenant on Civil and Political Rights, in R. Bernhardt et al. (eds.), Vlkerrecht
als Rechtsordnung, internationale Gerichtsbarkeit, Menschenrechte: Festschrift fr
Hermann Mosler (Springer, Berlin, New York 1983); Nowak, U.N. Covenant on Civil
and Political Rights, supra note 271, pp. 635667.
474 Cf. F. Ermacora, The Protection of Minorities before the United Nations (Martinus
Nijhoff Publishers, The Hague et al. 1983), pp. 321322; Rodolfo Stavenhagen has
called the individualistic approach of Article 27 of the CCPR a major failing, see
R. Stavenhagen, Human Rights and Peoples Rights The Question of Minorities,
5 Nordic Journal on Human Rights (1987) 16.
475 Sieghart, The International Law of Human Rights, supra note 18, p. 377.
sion is undoubtedly an individual one but with beneficial effects which extend
also to the groups with which the persons concerned are associated, writing:
By logical implication it can be inferred, therefore, that the existence of the three
types of minorities mentioned in Art. 27 is also protected as such. Otherwise, the
rights accorded to persons belonging to a minority could easily become devoid of
any substance. Endeavours to do away with an existing minority would infringe the
rights of everyone pertaining to that minority.476
Ermacora discusses the same part in the following words:
As to the verbal interpretation of Article 27 of the CCPR one has to mention that such
an interpretation has become formal in the light of the VCLT. Weight is to be lent to
the words in community with others. It is the community which is creative as to
culture, language and religion. Culture, religion and language are to be considered
values which are created by the communities concerned. States are under an obliga-
tion not to deny members of the communities the jouissance of these values.477
Similarly to Tomuschats view he goes on: It presupposes the obligation of the

States to create conditions which are necessary so that communities, bearers of
culture, religion and language can exist and in which the members of the com-
munities can participate. 478 He concludes that
Article 27 of the CCPR, therefore, contains one norm composed of two separate
rules. One rule follows directly from Article 27. The other rule follows from Article
27, read in conjunction with rules of general international law. The rule is that the
State must not deny the right of the individuals to enjoy the values of their commu-
nities and therefore to protect the existence of these communities. Th is is the group
approach to Article 27.479
476 Tomuschat, Protection of Minorities under Article 27 of the International Covenant

on Civil and Political Rights, supra note 473, p. 966.
477 Ermacora, The Protection of Minorities before the United Nations, supra note 474,
p. 323, footnotes omitted.
478 Ibid.; cf. also Thornberry, International Law and the Rights of Minorities, supra
note 313, p. 173.
p. 323, footnotes omitted; similarly, Francesco Capotorti speaks of a double effect
of Article 27 of the CCPR protection of the group and its individual members.
Capotorti, Are Minorities Entitled to Collective International Rights?, supra note
273, p. 508.
110 Chapter 2
In its General Comment 23 on Article 27, the Human Rights Committee480 has
pointed to the collective element of this provision as well:
6.2. Although the rights protected under Article 27 are individual rights, they de-
pend in turn on the ability of the minority group to maintain its culture, language or
religion. Accordingly, positive measures by States may also be necessary to protect
the identity of a minority and the rights of its members to enjoy and develop their
culture and language and to practise their religion, in community with the other
members of the group.481
Although the aim is the protection of the group, such positive measures could
still be provided in the form of individual rights for the members of the minority.
However, in 1983 Ermacora pointed to something that is also important today:
In my opinion much more decisive for the application of Article 27 of the CCPR
are the reports of the States which are submitted to the Human Rights Committee
on the basis of Article 40 of the CCPR. Many of the reports giving information on
the situation of human rights in the member States also contain information on the
application of Article 27 of the CCPR. All this information refers to the situation of
minority groups and not to members belonging to these groups! The State Reports
refer to the situation of groups. Human rights experts also put questions only in this
direction and they also receive answers from this direction. The practice of States
in the application of Article 27 of the CCPR before international bodies shows that
Article 27 is understood as a group protection provision.482
Looking to more recent reports by the Human Rights Committee, one can agree
with this view. Among others, it criticises in its 2008/2009 annual report the
480 As to the importance of the Human Rights Committee one needs to note, in Mar-
tin Scheinins words: Although there are no treaty provisions on the legal effect of
findings by the HRC [Human Rights Committee] under the reporting procedure or
in the consideration of individual complaints, such findings represent authoritative
interpretations, as the HRC [Human Rights Committee] is the only international
body established to monitor compliance with the ICCPR. M. Scheinin, The United
Nations International Covenant on Civil and Political Rights: Article 27 and other
provisions, in K. Henrard and R. Dunbar (eds.), Synergies in Minority Protection:
European and International Law Perspectives (Cambridge University Press, Cam-
bridge 2008), p. 24; cf. also P. Hilpold, UN Standard-Setting in the Field of Minority
Rights, 14 International Journal on Minority and Group Rights (2007) 181, p. 190.
481 Compilation of General Comments and General Recommendations adopted by Hu-
man Rights Treaty Bodies, supra note 289, p. 160; cf. Nowak, U.N. Covenant on
Civil and Political Rights, supra note 271, pp. 655657.
p. 323, footnotes omitted.
Danish Supreme Court for not recognising the Thule Tribe of Greenland as a
separate group capable of vindicating its traditional rights, despite the tribes
own perception to the contrary;483 noting with concern that Japan has not of-
ficially recognized the Ainu and the Ryukyu/Okinawa as indigenous peoples
entitled to special rights and protection;484 in the case of Australia it remains
concerned that indigenous peoples are not sufficiently consulted in the decision-
making process with respect to issues affecting their rights;485 with respect to
Sweden it remains concerned at the limited extent to which the Sami Parliament
may participate in the decision-making process on issues affecting land and tra-
ditional activities of the Sami people486 and speaks of de facto discrimination
483 The Committee notes with concern that, in its decision of 28 November 2003, the
Supreme Court did not recognize the Thule Tribe of Greenland as a separate group
capable of vindicating its traditional rights, despite the tribes own perception to
the contrary (arts. 2, 26 and 27). The State party should pay special attention to self-
identification of the individuals concerned in the determination of their status as
persons belonging to minorities or indigenous peoples. UN Human Rights Com-
mittee, Report of the Human Rights Committee: Volume I, UN Doc. A/64/40 (Vol.I)
(New York 2009), p. 23, <daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/450/67/
PDF/G0945067.pdf?OpenElement>, visited on 11 March 2011.
484 The Committee notes with concern that the State party has not officially recog-
nized the Ainu and the Ryukyu/Okinawa as indigenous peoples entitled to special
rights and protection (art. 27). The State party should expressly recognize the Ainu
and Ryukyu/Okinawa as indigenous peoples in domestic legislation, adopt special
measures to protect, preserve and promote their cultural heritage and traditional
way of life, and recognize their land rights. It should also provide adequate oppor-
tunities for Ainu and Ryukyu/Okinawa children to receive instruction in or of their
language and about their culture, and include education on Ainu and Ryukyu/Oki-
nawa culture and history in the regular curriculum. Ibid., p. 35.
485 While acknowledging the consultation process initiated by the State party to estab-
lish a national indigenous representative body to replace the Aboriginal and Torres
Islander Commission abolished in 2004, the Committee remains concerned that in-
digenous peoples are not sufficiently consulted in the decision-making process with
respect to issues affecting their rights (arts. 2, 25, 26 and 27). The State party should
increase its efforts for an effective consultation with indigenous peoples in decision-
making in all areas having an impact on their rights and establish an adequately
resourced national indigenous representative body. Ibid., p. 51.
486 While noting that the State party has delegated some responsibilities for reindeer
husbandry to the Sami Parliament, the Committee remains concerned at the limited
extent to which the Sami Parliament may participate in the decision-making process
on issues affecting land and traditional activities of the Sami people. Furthermore,
while noting the State partys intention to address recommendations concerning
Sami land and resource rights through a bill to be submitted to Parliament in March
2010, the Committee notes the limited progress achieved so far in respecting Sami
rights as well as the restrictive terms of reference of the Boundary Commission and
other inquiries tasked with the study of Sami rights (arts. 1, 25, and 27). The State
party should take further steps to involve the Sami in the decisions concerning the
112 Chapter 2
against the Sami in legal disputes on land ownership;487 and as to the United
Republic of Tanzania it is concerned that the State party does not recognize the
existence of indigenous peoples and minorities in its territory and regrets the lack
of information about certain vulnerable ethnic groups.488
Furthermore, the case law489 of the Human Rights Committee supports the
interpretation of Article 27 of the CCPR as a group protection provision. For
instance, in the classical Lubicon Lake Band case, it discussed threats against that
communitys way of life and culture as a violation of Article 27 of the CCPR.490
natural environment and necessary means of subsistence for the Sami people. The
State party should ensure the fair and expeditious resolution of claims concerning
land and resources made by the Sami people, by introducing appropriate legislation
in consultation with the Sami communities. Ibid., pp. 6061, footnotes omitted.
487 The Committee is concerned about de facto discrimination against the Sami in le-
gal disputes, since the burden of proof for land ownership has been placed wholly on
Sami claimants. The Committee also notes that, although legal aid may be granted
to individuals who are parties in civil disputes, no such possibility exists for Sami
villages, which are the only legal entities empowered to act as litigants in land dis-
putes in respect of Sami lands and grazing rights (arts. 1, 2, 14, 26 and 27). The State
party should grant adequate legal aid to Sami villages in court disputes concerning
land and grazing rights and introduce legislation providing for a flexible burden
of proof in cases regarding Sami land and grazing rights, especially where other
parties possess relevant information. The State party is also encouraged to consider
other means of settling land disputes, such as mediation. Ibid., p. 61.
488 The Committee recalls its general comment No. 23 (1994) on the rights of minori-
ties and is concerned that the State party does not recognize the existence of indig-
enous peoples and minorities in its territory and regrets the lack of information
about certain vulnerable ethnic groups. It also notes with concern reports that the
traditional way of life of indigenous communities has been negatively affected by
the establishment of game reserves and other projects (arts. 26 and 27). The State
party should, as a matter of urgency, carry out a study regarding minorities and in-
digenous communities in the State party, and adopt specific legislation and special
measures to protect, preserve and promote their cultural heritage and traditional
way of life. The State party should also consult indigenous communities before es-
tablishing game reserves, granting licences for hunting, or other projects on ances-
tral or disputed lands. Ibid., p. 67.
489 The Human Rights Committee is not a judicial organ; however, it has quite similar
functions. See Hilpold, UN Standard-Setting in the Field of Minority Rights, supra
note 480, p. 190; Martin Scheinin holds that [a]lthough there are no treaty provi-
sions on the legal effect of findings by the HRC under the reporting procedure or in
the consideration of individual complaints, such findings represent authoritative in-
terpretations, as the HRC is the only international body established to monitor com-
pliance with the ICCPR. Scheinin, The United Nations International Covenant on
Civil and Political Rights: Article 27 and other provisions, supra note 480, p. 24.
490 Historical inequities, to which the State party refers, and certain more recent
developments threaten the way of life and culture of the Lubicon Lake Band, and
constitute a violation of Article 27 so long as they continue. Chief Bernard Omi-
In the more recent case Poma v. Peru, it states even more clearly that Article 27
of the CCPR covers the right of a community (a group right!) to enjoy its own
culture: The Committee also points out that measures whose impact amounts
to a denial of the right of a community to enjoy its own culture are incompatible
with Article 27.491
In the same case, but not for the first time,492 the Committee pointed to the
importance of the participation of a community in the decision-making process:
[T]he admissibility of measures which substantially compromise or interfere with

the culturally significant economic activities of a minority or indigenous commu-
nity depends on whether the members of the community in question have had the
opportunity to participate in the decision-making process in relation to these mea-
sures and whether they will continue to benefit from their traditional economy.493
Moreover, the Committee considers that participation in the decision-making

process must be effective, which requires not mere consultation but the free, prior
and informed consent of the members of the community.494 Yet, the question of
effective participation of the members of the community in question leaves it
open regarding who exactly was meant by this. Was it the affected members of a
certain minority/indigenous group or also members not (directly) affected by the
criticised state measures?495
nayak and Lubicon Lake Band v. Canada, 26 March 1990, HRCee, Communication
No. 167/1984, para. 33, <www.unhcr.org/refworld/topic,4565c225b,45cb54582,4721c
5b42,0.html>, visited on 22 February 2011.
491 ngela Poma Poma v. Peru, 27 March 2009, HRCee, Communication No. 1457/2006,
para. 7.4, <daccess-dds-ny.un.org/doc/UNDOC/DER/G09/418/66/PDF/G0941866.
pdf?OpenElement>, visited on 22 February 2011. The Committee was hereby refer-
ring to: Ilmari Lnsman et al. v. Finland, 26 October 1994, HRCee, Communication
No. 511/1992, <www.unhchr.ch/tbs/doc.nsf/0/7e86ee6323192d2f802566e30034e775?
Opendocument>, visited on 22 February 2011; and Jouni Lnsman et al. v. Finland, 15
April 2005, HRCee, Communication No. 1023/2001, <www.unhchr.ch/tbs/doc.nsf/
(Symbol)/fa24fc7cd513751bc1256fe900525608?Opendocument>, visited on 14 March
2011.
492 Cf. e.g., Lnsman et al. v. Finland, supra note 491.; for a similar case in the Inter-
American Human Rights System, see Grand Chief Michael Mitchell v. Cana-
da, 25 July 2008, IACmHR, Report No. 61/08, Case 12.435, <www.cidh.oas.org/
annualrep/2008eng/Canada12435eng.htm>, visited on 22 February 2011.
493 Poma v. Peru, supra note 491, para. 7.6.
494 Ibid.
495 Moreover, the absolute formulation of the consent of these group members is prob-
lematic as apparently no other interests (e.g. of other groups or society as a whole)
could limit the will of them, no matter how important they were.
114 Chapter 2
Furthermore, for the Human Rights Committee, economic issues can be

covered by the groups right to culture if culturally significant economic activi-
ties of such a minority or indigenous group (community) exists as to its tra-
dition (continued benefit from their traditional economy). In conclusion, the
Human Rights Committee writes that measures must respect the principle of
proportionality so as not to endanger the very survival of the community and its
members.496 Again, the collective nature of Article 27 of the CCPR in the form of
a right to existence appears here expressly.
Again, in Kitok v. Sweden,497 the Human Rights Committee took the welfare
of the group into account and discussed the constraints an individual had to suf-
fer in terms of proportionality with it.498 Similarly, in Apirana Mahuika et al. v.
New Zealand,499 the Human Rights Committee explained:
In such circumstances, where the right of individuals to enjoy their own culture is in
conflict with the exercise of parallel rights by other members of the minority group,
or of the minority as a whole, the Committee may consider whether the limitation in
issue is in the interests of all members of the minority and whether there is reason-
able and objective justification for its application to the individuals who claim to be
adversely affected.500
The formulation in the interests of all members of the minority hides that it
is the interest of the group as a whole and/or the majority of the groups mem-
bers that is at stake. If it was really only about the individual interests of all the
members, it is difficult to argue that there could be any adversely affected; the
reference to the previously mentioned case Kitok v. Sweden at the end of the cited
Human Rights Committees view reflects this as well.501 The difference of a strictly
individual rights interpretation is clear; if it was only the individual rights of
persons belonging to a minority that were at stake, only the participation of the
496 Ibid.
497 Kitok v. Sweden, 27 July 1988, HRCee, Communication No. 197/1985, <www1.umn.
edu/humanrts/undocs/197-1985.html>, visited on 22 February 2011.
498 Based on its ratio decidendi in Sandra Lovelace v. Canada, 30 July 1981, HRCee,
Communication No. 24/1977, <www.unhchr.ch/tbs/doc.nsf/0/cc245da4e1c73a55c1
256a16003b21a8?Opendocument>, visited on 22 February 2011, it decided that: a
restriction upon the right of an individual member of a minority must be shown to
have a reasonable and objective justification and to be necessary for the continued
viability and welfare of the minority as a whole. Kitok v. Sweden, supra note 497,
para. 9.8.
499 Apirana Mahuika et al. v. New Zealand, 27 October 2000, HRCee, Communication
No. 547/1993, <www.unhchr.ch/tbs/doc.nsf/(Symbol)/ae41739262a9ca2dc12569ad00
329e41?Opendocument>, visited on 22 February 2011.
500 Ibid., para. 9.6, emphasis added.
501 Ibid.
directly affected minority members could be accepted and other members of the
minority would have to be ignored. The involvement of a whole minority502 in
the decision-making process, although only parts of its members were affected,
could not justify any limitation of the individual rights provided by Article 27
of the CCPR. But this case shows very well how group rights can help to find
pragmatic solutions to difficult questions concerning minority communities. The
state needs a partner to find working solutions, and understanding the rights of
minority members in absolute and individualistic terms would most likely have
made a solution impossible. Hence, again the group as such comes into the pic-
ture for the interpretation of Article 27 of the CCPR if only indirectly.
There is another important aspect which should not be overlooked in this
context: The Human Rights Committee has abandoned its previous stance which
ignored the right of self-determination (Article 1 of the CCPR) in relation to mi-
nority/indigenous groups, and has stated that it could be used to interpret Article
27 of the CCPR when relevant.503 Now, there is no doubt that the right to self-
determination is a group right; hence, it is hard to see how an interpretation of
Article 27 of the CCPR in light of this group right would look if it was understood
as a purely individual right.
When it comes to the Individual Communication Procedure through the
Optional Protocol to the Covenant, the Human Rights Committee has taken a
restrictive view on who is entitled to submit such communications and on which
grounds. In the Lubicon Lake Band case504 it decided: The Optional Protocol
provides a procedure under which individuals can claim that their individual
rights have been violated.505 This means that groups as well as juridical persons
in general are excluded from the procedure under the Optional Protocol. Th is
restrictive interpretation of Article 2 of the Optional Protocol to the CCPR has
502 An interesting aspect of the case was that the Human Rights Committee took all
Maoris together as one group and did not consider the single Maori tribes as such
thinking of the Lubicon Lake Band case where the Human Rights Committee dis-
cussed the culture of the Lubicon Lake Band although this Band was one out of a
large number of bands of Cree Indians, the question of what is the group seems to be
answered on a case-by-case approach. Cf. Lubicon Lake Band, supra note 490, para.
6.2.
503 Cf. e.g., the following statements by the Human Rights Committee: Although the
Committee does not have the competence under the Optional Protocol to consider
a communication alleging violation of the right to self-determination protected in
Article 1 of the Covenant, it may interpret Article 1, when this is relevant, in de-
termining whether rights protected in parts II and III of the Covenant have been
violated. Marie-Hlne Gillot et al. v. France, supra note 261, para. 13.4.; Further-
more, the provisions of Article 1 may be relevant in the interpretation of other rights
protected by the Covenant, in particular Article 27. Apirana Mahuika et al. v. New
Zealand, supra note 499, para. 9.2.
504 Lubicon Lake Band, supra note 490.
505 Ibid., para. 32.1.
116 Chapter 2
clearly become the constant jurisprudence of the Human Rights Committee. It

is not of much comfort for groups that the Human Rights Committee added in
the same case: There is, however, no objection to a group of individuals, who
claim to be similarly affected, collectively to submit a communication about al-
leged breaches of their rights.506 Still, it is only individuals who can claim their
individual rights.
The Human Rights Committees literal interpretation of Article 2 of the
Optional Protocol to the CCPR, individuals who claim that any of their rights
enumerated in the Covenant, has been criticised by a number of authors who
argue for a systematic interpretation which would also allow groups and juridical
persons to submit communications as they have rights under the Covenant which
otherwise cannot be remedied through the Optional Protocol-procedure.507
Although there are good reasons to criticise this result, criticism of the interpre-
tation seems wrong in light of Article 31 of the VCLT as the wording is absolutely
clear with regard to the question of whether groups can submit a communica-
tion. Conversely, it is Article 2 of the Optional Protocol to the CCPR itself that
has to be criticised. It is, in fact, disturbing that this treaty provides rights to
groups and other juridical persons which in turn are excluded from the Optional
Protocol-procedure.
However, it is important to note that while groups are not considered in the
Optional Protocol, this does not change anything as to the question of whether
groups are the bearers of rights provided through the CCPR; the question of
having a right (being the bearer of a right) has to be separated from the question
of enforcing a right.508 In other words, neither the subject nor the legal nature of
the right are affected by the lack of adequate possible enforcement. However, it is
relevant in that sense as it shows the reluctance of states to allow groups to claim
their rights through international procedures.
All in all, it has become clear that Article 27 of the CCPR provides legal
protection also to minority/indigenous groups as such and can therefore be un-
derstood as a group rights provision or to use Ermacoras previously mentioned
less problematical term as a group protection provision as well.
506 Ibid.
507 Cf. generally, with more references, Nowak, U.N. Covenant on Civil and Political
Rights, supra note 271, pp. 829832; and, with regard to Article 1 of the CCPR, ibid.,
pp. 1719; see also Cassese, Self-Determination of Peoples, supra note 180, pp. 6266
and 345346.
508 See the discussion in chapter 1.1.5.
This inquiry is limited to the lex lata on a global level; hence, soft law-docu-
ments, regional treaties509 and regional courts practice510 are outside of its scope.511
Some of these documents have taken a clearer group rights-approach, namely
the UN Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities512 which clearly aims at protecting the exist-
ence of minority groups, as well as the protection and promotion of their identity,
and has had some influence on the interpretation of the above discussed Article
27 of the CCPR.513 However, what has become clear throughout this discussion of
509 The most important regional treaty exclusively on minority rights is the Framework
Convention (Council of Europe: Framework Convention for the Protection of Na-
tional Minorities (FCNM), 1 February 1995, ETS No. 157), applicable in Europe. Ar-
ticle 1 reads: The protection of national minorities and of the rights and freedoms
of persons belonging to those minorities forms an integral part of the international
protection of human rights, and as such falls within the scope of international co-
operation. Ibid. In other words, the Framework Convention provides protection
to the group as such and in this sense contains a group provision as well. However,
the more concrete rights are rights of persons belonging to national minorities and,
hence, no group rights. The protection of the group is, hence, either to be seen indi-
rectly through the provision of individual rights or, in the same way as in Article 27
of the CCPR, as an implied right to existence and maybe a right to identity. All in all,
it can be said that the Framework Convention is even more limited than the CCPR
with regard to its provision of group rights.
510 A rich case law on group rights, especially rights of indigenous peoples, can be
found in the practice of the IACtHR for example. Cf. eg., C. Martin, The Moiwana
Village Case: A New Trend in Approaching the Rights of Ethnic Groups in the Inter-
American System, 19 Leiden Journal of International Law (2006) 491.
511 It is nevertheless interesting to note that the European Union in its Article 7 A iii)
of the Copenhagen criterions for accession takes also minority protection into ac-
count: Membership requires that the candidate country has achieved stability of
institutions guaranteeing democracy, the rule of law, human rights and respect
for and protection of minorities, the existence of a functioning market economy
as well as the capacity to cope with competitive pressure and market forces within
the Union. European Union: Conclusions of the Presidency of the European Council
in Copenhagen, 2122 June 1993, SN 180/1/93 REV 1, p. 13, <www.consilium.europa.
eu/ueDocs/cms_Data/docs/pressdata/en/ec/72921.pdf>, visited on 12 August 2010.
A clearly individualistic approach was taken instead by the NATO: To become a
member of NATO, aspirants have to demonstrate a functioning democratic, po-
litical system and market economy; respect for persons belonging to national mi-
norities in accordance with OSCE standards. North Atlantic Treaty Organisation
(NATO): NATO Transformed, 2004, p. 21, <www.nato.int/docu/nato-trans/nato-
trans-eng.pdf>, visited on 9 March 2011.
512 Declaration on the Rights of Persons Belonging to National of Ethnic, Religious and
Linguistic Minorities, 18 December 1992, UN Doc. A/RES/47/135, <www.un.org/doc-
uments/ga/res/47/a47r135.htm>, visited on 9 March 2011.
513 Article 1 of the Declaration has the following wording: 1. States shall protect the
existence and the national or ethnic, cultural, religious and linguistic identity of
118 Chapter 2
international minority rights is how limited the group rights-approach has been
so far in this field, notwithstanding the clear group-dimension of the topic.
As with peoples there is no universally agreed comprehensive definition
of a minority in international law.514 However, Alfredsson rightly points to the
rather broad consensus on its essential elements in national and international
practices which consist of certain objective characteristics, self-identification,
the numbers, and long-term presence on the territory concerned.515 They relate
to joint affi liation or affinity of the members of a minority as far as national or
ethnic origin, language and/or religion are concerned; moreover, the subjective
element
is a necessary addition to the objective characteristics, acknowledged in some in-

struments. Nobody should be forced to belong to a minority group, but at the same
time individuals must have a free and informed choice to make and a government
must certainly refrain from forced assimilation. The subjective element presumably
comes in two layers. An individual can decide whether he/she is a member of a mi-
nority. Secondarily, the group must accept the individual concerned on the basis of
the facts (common characteristics) and in a non-arbitrary fashion.516
By its very notion, a minority constitutes a numerically inferior group; hence,

the number of its members is another definitional element.517 Furthermore, the
minorities within their respective territories and shall encourage conditions for the
promotion of that identity. 2. States shall adopt appropriate legislative and other
measures to achieve those ends. Ibid., 1; for an analysis of this Declaration, see P.
Thornberry, The UN Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observations,
and an Update, in A. Phillips and A. Rosas (eds.), Universal Minority Rights (Insti-
tute for Human Rights bo Akademi University; Minority Rights Group Interna-
tional, Turku/bo, London 1995).
514 Cf. e.g., Alfredsson, Minorities, Indigenous and Tribal Peoples, and Peoples: Defini-
tions of Terms as a Matter of International Law, supra note 163, p. 163.
515 Ibid., p. 165.
516 Ibid., p. 166. See also his critique of states claims of identification and recognition
of minorities by states as additional elements as not compatible with the self-identi-
fication of minorities and their members. Ibid.
517 This is inherent in the term minority and almost unnecessary for the purposes of
the definition, but a minority group must constitute less than one half of the swtate
population. An actual minority cannot designate and treat the majority as if it were
a minority. A country may be composed of only minorities if no group makes up
more than 50% of the population. Several states around the world meet this char-
acterisation. In such a situation, all the different groups of the country would be
entitled to minority protection in terms of equal rights, non-discrimination and
special measures. Ibid.
perhaps most difficult and controversial component of the definition518 distin-

guishes minorities from immigrants, refugees or migrant workers, as it is the
time element which requires that minorities must have a long-term presence
in the territory concerned. In other words, a group should be well-established
in a country over a significant period of time before it is accorded the status of
a minority.519 Additional elements mentioned have been the vulnerability and
non-dominant position of the group.
In conclusion, Tomuschat writes: It nevertheless remains that the group
as such is not the holder of the rights under Art. 27 so that, for instance, it is
legally prevented from initiating proceedings under the Optional Protocol.520
Most legal scholars seem to agree. However, this needs more discussion than it
seems at first sight. Who is the right-holder of Article 27 of the CCPR? That the
persons belonging to minorities as individuals constitute right-holders of
Article 27 of the CCPR is out of the question, but is the view tenable that also the
minority groups as such are right-holders of this provision? Again, the answer to
this question depends on the understanding of what a right is. Looking to some
more basic understandings of the interest theory, the fact that groups are being
protected by Article 27 of the CCPR could lead to the strand of argumentation
that as it is (among others) the groups interest to existence that the provision
tries to protect, the group is the right-holder of Article 27 of the CCPR. In a more
qualified version of the interest theory, the question would be if the protected
interest is of ultimate value521 which again would be disputed by individualis-
tic liberalists and communitarians; whereas the individualistic liberalists would
claim that the value of groups is derivative from its value for individuals, com-
munitarians would claim that the value of a group is more than the mere sum of
its value for individuals.522 As it becomes a matter of conviction, this point can be
left open. A choice theorist would ask whose agents choice is being protected by
the provision. The requirement of agency could be fulfilled as, according to the
interpretation of the Human Rights Committee and against the first impression,
the provision demands positive measures from the state towards minorities or at
least its members.523 However, the problem here is that persons belonging to
minorities as well as the minorities themselves cannot waive any of the rights
given in Article 27 of the CCPR as it is an inalienable right. Hence, according to
518 Ibid., p. 167.

519 Ibid.
on Civil and Political Rights, supra note 473, p. 966. Footnotes omitted. Cf. also Erma-
cora, The Protection of Minorities before the United Nations, supra note 474, p. 324.
521 Cf. Raz, The Morality of Freedom, supra note 32, p. 177.
523 See its General Comment 23 on Article 27 of the CCPR: Compilation of General
Comments and General Recommendations adopted by Human Rights Treaty Bod-
ies, supra note 289, p. 160.
120 Chapter 2
the choice theory, there is no choice and therefore neither an individual nor a
group right. Turning to a justified-constraint theorists view, the relevant ques-
tion is: which persons feature justified the constraints on states as provided by
Article 27 of the CCPR? The feature of persons belonging to minorities is exactly
their belonging to a minority; however, the feature of minorities as such is their
importance for culture, language, and religion which justified the constraints in
Article 27 of the CCPR. Hence, according to this theory, looking to the collective
dimension (right to existence), the group is a right-holder. All in all, this short
legal analysis has shown that the answer to the question of who is the right-holder
to a large extent depends on which theory of rights is being applied in the case
of one theory, we could not even speak of an individual right at all.
2.4.5. Rights of Indigenous Peoples

Indigenous peoples, as reflected in international law, can arguably be seen as
a special category of minorities.524 They can claim minority rights,525 but at the
same time their rights are much further reaching than the rights of minorities,
and have developed for many decades on a different track than minority rights.
524 Indigenous peoples as well as the international community discussing their rights
have argued against this, that indigenous rights are sui generis; hence, they have
separated the issue of minority rights and indigenous rights. (See e.g. Alfredsson,
Minorities, Indigenous and Tribal Peoples, and Peoples: Definitions of Terms as
a Matter of International Law, supra note 163, pp. 168169.) However, I doubt that
there is such a qualitative difference between these two groups and good reason to
treat the issues together as I will discuss in the following and in Chapter 4. However,
it must be admitted that the presented view is unconvincing with regard to the num-
bers definition element of minorities as indigenous peoples can well be the majority
in a country. (Cf. M. Scheinin, What are Indigenous Peoples?, in N. Ghanea and
A. Xanthaki (eds.), Minorities, Peoples, and Self-Determination: Essays in Honour
of Patrick Thornberry (Martinus Nijhoff Publishers, Leiden 2005), p. 12.) Neverthe-
less, an indigenous majority needs full and equal human rights, not minority or
indigenous rights, as Gudmundur Alfredsson puts it. (See Alfredsson, Minorities,
Indigenous and Tribal Peoples, and Peoples: Definitions of Terms as a Matter of
International Law, supra note 163, p. 169.) Hence, this seems rather an exception
than expression of a substantially different category. Accord e.g., Castellino, The
Protection of Minorities and Indigenous Peoples in International Law: A Compara-
tive Temporal Analysis, supra note 170, p. 396; contra e.g., Makkonen, Identity, Dif-
ference and Otherness, supra note 95, p. 136.
525 In para. 7 of its General Comment 23 the Human Rights Committee emphasised the
applicability of Article 27 in respect with indigenous peoples: With regard to the
exercise of the cultural rights protected under Article 27, the Committee observes
that culture manifests itself in many forms, including a particular way of life associ-
ated with the use of land resources, especially in the case of indigenous peoples.
Compilation of General Comments and General Recommendations adopted by Hu-
man Rights Treaty Bodies, supra note 289, p. 160. See also its para. 3.2, ibid., p. 159.
Indeed, what makes indigenous rights interesting for our work is that they are
much less individualistic than minority rights and include several group rights.
However, their discussion will be kept quite short as this is one of the few areas
where the group rights-nature is not much contested. Nevertheless, it seems in-
teresting that in this specific case, claims for group rights have been accepted to
some degree.
The rights of indigenous peoples526 apart from the above-mentioned minor-
ity rights527 and regional rights528 were first provided through ILO Convention
No. 107529 and then replaced by ILO Convention No. 169.530 After a long struggle,
the recently adopted United Nations Declaration on the Rights of Indigenous
Peoples531 is a soft law document and cannot (yet) be seen as a formulation of the
lex lata discussed here.532 However, the Declaration is of interest as it has been
526 See generally S. J. Anaya, Indigenous Peoples in International Law (2nd edn., Ox-
ford University Press, Oxford 2004); P. Thornberry, Indigenous Peoples and Human
Rights (Juris Publishing; Manchester University Press, Manchester 2002); and A.
Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination,
Culture and Land (Cambridge University Press, Cambridge 2007).
528 See e.g., Thornberry, Indigenous Peoples and Human Rights, supra note 526, pp.
244317.
529 ILO: Convention concerning the Protection and Integration of Indigenous and Oth-
er Tribal and Semi-Tribal Populations in Independent Countries, 26 June 1957, ILO
Convention No. 107.
530 ILO: Convention Concerning Indigenous and Tribal Peoples in Independent Coun-
tries, 27 June 1989, ILO Convention No. 169; however, a few states adopted ILO Con-
vention No. 107 but not No. 169; hence, for those states the ILO Convention No. 107
is still applicable and formulates binding law. For a legal analysis of the two ILO
Conventions, see Thornberry, Indigenous Peoples and Human Rights, supra note
526, pp. 320367; and Xanthaki, Indigenous Rights and United Nations Standards,
531 Declaration on the Rights of Indigenous Peoples, 2 October 2007, UN Doc. A/
RES/61/295, <daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.
pdf?OpenElement>, visited on 9 March 2011; this Declaration was adopted by the
General Assembly on 13 September 2007, following more than two decades of nego-
tiations between governments and indigenous peoples representatives.
532 For a discussion of this important declaration, see the contributions in C. Charters
and R. Stavenhagen (eds.), Making the Declaration Work: The United Nations Decla-
ration of the Rights of Indigenous Peoples (IWGIA, Copenhagen 2009); as well as S.
J. Anaya, The Human Rights of Indigenous Peoples, in Light of the New Declara-
tion, and the Challenge of Making Them Operative: Report of the Special Rappor-
teur on the Situation of Human Rights and Fundamental Freedoms of Indigenous
People, SSRN eLibrary [2008], <ssrn.com/paper=1242451>, visited on 12 March 2011;
G. Gilbert, Indigenous Rights in the Making: The United Nations Declaration on
the Rights of Indigenous Peoples, 14 International Journal on Minority and Group
Rights (2007) 207; T. Koivurova, From High Hopes to Disillusionment: Indigenous
122 Chapter 2
negotiated with the representatives of indigenous peoples directly; hence, indig-

enous peoples have participated in soft law-making and have, to some degree,
changed from objects to subjects with regard to standard-setting in their field.533
In our context it is important to notice that the revision of former ILO
Convention No. 107 brought several important changes: first, ILO Convention
No. 169 provided protection to indigenous and tribal peoples and not to in-
digenous and tribal populations a, at least psychologically, fundamental
change;534 second, the assimilationist and paternalistic approach of the former
Convention was left behind and replaced by a more multiculturalist one;535 third,
the new Convention was more engaged with group rights.536 According to the
Convention, indigenous peoples have a right to be consulted as groups through
their representative institutions in legal matters which concern them,537 they have
Peoples Struggle to (re)Gain Their Right to Self-determination, 15 International

Journal on Minority and Group Rights (2008) 1; for a recent discussion of a possible
future importance of the Declaration and its status in international law, see A. Xan-
thaki, Indigenous Rights in International Law Over the Last 10 Years and Future
Developments, 10 Melbourne Journal of International Law (2009) 27.
533 The unique feature of the standard-setting process within the Working Group was
that it was carried out with the full participation of the intended beneficiaries, the
indigenous peoples, rather than being performed solely by governments and ex-
perts. Nothing comparable has happened in other standard-setting exercises. Eide,
International Cooperation for Group Accomodation through Minority Protection,
supra note 176, p. 162; similar developments can be seen in the context of the creation
of a new Nordic Sami convention. E.g., G. Alfredsson, Minimum Requirements for
a New Nordic Sami Convention, 68 Nordic Journal of International Law (1999) 397.
534 See Thornberry, Indigenous Peoples and Human Rights, supra note 526, pp. 342
344.
535 Cf. R. Wolfrum, The Protection of Indigenous Peoples in International Law, 59
Zeitschrift fr auslndisches ffentliches Recht und Vlkerrecht (1999) 369, p. 372;
Xanthaki, Indigenous Rights and United Nations Standards, supra note 526, pp.
6870.
536 Consonant with the move from populations to peoples, 169 is more strongly en-
gaged with collective rights, incorporating them explicitly. Convention 107 hovered
among the descriptors populations, members of the populations and persons be-
longing to the populations. None the less, the deployment of populations in the
earlier text stands as recognition of collective language in the international law of
human rights. In the statement of coverage of 107, the application of the text was
to members of [indigenous or tribal] populations; in 169 the scope of application
is simply to indigenous or tribal peoples. Thornberry, Indigenous Peoples and
Human Rights, supra note 526, pp. 345346. Note that Patrick Thornberrys uses
the notion of collective rights in a broader sense than group rights as used in this
work.
537 Article 6(1) of the ILO Convention No. 169 reads: In applying the provisions of this
Convention, governments shall: (a) consult the peoples concerned, through appro-
priate procedures and in particular through their representative institutions, when-
the right as groups to retain their own customs and institutions,538 and probably,
most importantly, they have a group right to ownership over their traditional
lands539 which includes the natural resources pertaining to these lands.540 That
these are group rights seems to be well established;541 it is nevertheless important
to notice that these group rights go hand in hand with the individual rights of
group members.542
Apart from the discussed provisions of ILO Convention No. 169, it is to be
mentioned that other bodies like the Committee on Economic, Social, and Cultural
ever consideration is being given to legislative or administrative measures which

may affect them directly. ILO Convention No. 169, supra note 530.
538 Article 8(2) reads: These peoples shall have the right to retain their own customs
and institutions, where these are not incompatible with fundamental rights defi ned
by the national legal system and with internationally recognised human rights. Pro-
cedures shall be established, whenever necessary, to resolve confl icts which may
arise in the application of this principle. Ibid.
539 Article 14 reads: 1. The rights of ownership and possession of the peoples concerned
over the lands which they traditionally occupy shall be recognised. In addition,
measures shall be taken in appropriate cases to safeguard the right of the peoples
concerned to use lands not exclusively occupied by them, but to which they have
traditionally had access for their subsistence and traditional activities. Particular
attention shall be paid to the situation of nomadic peoples and shift ing cultivators
in this respect. 2. Governments shall take steps as necessary to identify the lands
which the peoples concerned traditionally occupy, and to guarantee effective pro-
tection of their rights of ownership and possession. 3. Adequate procedures shall be
established within the national legal system to resolve land claims by the peoples
concerned. Ibid.
540 The land rights are provided in the Articles 1319, the inclusion of natural resources
can be found in Article 15. The probably most interesting recent case in this context
was by a regional institution were a country (Kenya) was ordered to return the an-
cestral land originally belonging to an indigenous people (the Endorois) and to pay
them compensation for losses suffered due to unlawful eviction by the government.
See Centre for Minority Rights Development (Kenya) and Minority Rights Group In-
ternational on behalf of Endorois Welfare Council v. Kenya, 4 February 2010, African
Commission on Human Rights and Peoples Rights, Doc. No. 276/2003, <www.un-
hcr.org/refworld/docid/4b8275a12.html>, visited on 21 January 2011.
541 Cf. also Wenzel, Das Spannungsverhltnis zwischen Gruppenschutz und Individu-
alschutz im Vlkerrecht, supra note 11, pp. 8384.
542 See Thornberry, Indigenous Peoples and Human Rights, supra note 526, pp. 346
347.
124 Chapter 2
Rights543 and the Committee on the Elimination of Racial Discrimination544 play

a significant role with regard to the promotion and implementation of indigenous
rights.
As with peoples and minorities, a universally accepted comprehensive
definition of indigenous peoples (and tribal peoples545) is missing in interna-
tional law.546 The following description of the elements by Alfredsson provides a
very useful summary on the topic:547
As to objective characteristics, the subjective element and the numbers factor, the
definitions of minorities and indigenous peoples overlap. Indigenous peoples have
national, ethnic, linguistic and religious characteristics which distinguish from the
majority population. Self-identification is applicable, as spelled out in Article 1 of
the ILO Convention No. 169 When compared with the minority definition, it is
the time element which is fundamentally different. A crucial factor in the definition
of indigenous peoples is their original inhabitation of the land on which, unlike the
minorities, they have lived from time immemorial or at least from before the ar-
rival of later settlers. In addition, the indigenous ways of life much of the time also
543 In para. 27 of its General Comment No. 14, the Committee considers with regard
to indigenous peoples, that they have the right to specific measures to improve
their access to health services and care. These health services should be culturally
appropriate, taking into account traditional preventive care, healing practices and
medicines. States should provide resources for indigenous peoples to design, deliver
and control such services so that they may enjoy the highest attainable standard of
physical and mental health. The vital medicinal plants, animals and minerals neces-
sary to the full enjoyment of health of indigenous peoples should also be protected.
The Committee notes that, in indigenous communities, the health of the individual
is often linked to the health of the society as a whole and has a collective dimension.
In this respect, the Committee considers that development-related activities that
lead to the displacement of indigenous peoples against their will from their tra-
ditional territories and environment, denying them their sources of nutrition and
breaking their symbiotic relationship with their lands, has a deleterious effect on
their health. Compilation of General Comments and General Recommendations
adopted by Human Rights Treaty Bodies, supra note 289, p. 93.
544 Cf. the discussion in chapter 2.3.3 as well as P. Thornberry, Confronting Racial
Discrimination: A CERD Perspective, 5 Human Rights Law Review (2005) 239, pp.
260262; and Xanthaki, Indigenous Rights in International Law Over the Last 10
Years and Future Developments, supra note 532, pp. 2728.
545 Alfredsson, Minorities, Indigenous and Tribal Peoples, and Peoples: Definitions of
Terms as a Matter of International Law, supra note 163, p. 169.
546 See ibid.
547 For a more detailed discussion see Makkonen, Identity, Difference and Otherness,
supra note 95, pp. 110137; Thornberry, Indigenous Peoples and Human Rights, su-
pra note 526, pp. 3360.
depend on or are closely interwoven with land, including the links of traditional
economies to the land, such as for fishing, gathering, herding or hunting.548
Additionally, one might point to the important difference of indigenous peoples

with regard to their self-perception as peoples, whereas minorities are generally
said not to constitute peoples.549 More importantly, the right of self-determination
in its internal meaning is generally accepted to apply to indigenous peoples.550
2.4.6. Protection of Family

Article 23(1) of the CCPR reads as follows: The family is the natural and fun-
damental group unit of society and is entitled to protection by society and the
State. Consequently, for our purposes, it is interesting to note that the family, as
a collective entity, is entitled to protection. In other words, the family as a specif-
ic group has a right to exist. However, Volio writes: Article 23 protects the family
as a unit, as a legal community, but like other rights in the Covenant the protec-
tion afforded by Article 23 is an individual right to have and enjoy the integrity of
a family.551 This seems to be plausible for most cases in which this Article would
play an important role in front of courts. Nevertheless, the right to exist implies
more than such obligations towards individuals; Nowak writes on this:
States parties are obliged to provide for the existence of the family in their legal
systems (in particular, as an institution of private law) and to vest it [sic!] with cer-
tain rights and duties. For instance, the legal system must contain provisions regu-
lating the relations between parents and children. Far-reaching or total abolition of
family law would in any case violate Art. 23(1).552
548 On the meaning of tribal peoples Gudmundur Alfredsson writes: The definition
situation is less clear when it comes to tribal peoples who are covered by ILO Con-
vention No. 169. article 1 defines them as groups whose social, cultural and eco-
nomic 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. Again, as to objective characteristics, the subjec-
tive element and the numbers factor, the definitions of minorities and indigenous
and tribal peoples overlap. Alfredsson, Minorities, Indigenous and Tribal Peoples,
and Peoples: Definitions of Terms as a Matter of International Law, supra note 163,
p. 169.
549 See Thornberry, Indigenous Peoples and Human Rights, supra note 526, p. 52.
550 See e.g., Xanthaki, Indigenous Rights and United Nations Standards, supra note
526, pp. 131195.
551 F. Volio, Legal Personality, Privacy, and the Family, in L. Henkin (ed.), The Interna-
tional Bill of Rights: The Covenant on Civil and Political Rights (Columbia University
Press, New York 1981), p. 201, footnotes omitted.
552 Nowak, U.N. Covenant on Civil and Political Rights, supra note 271, p. 519.
126 Chapter 2
Hence, in terms of claiming a right of a family to exist, it is convincing to state

that the right is an individual one, but as a matter of legal recognition of the fam-
ily as a subject, it arguably forms a group right as well.553
553 As with the other examples discussed above, disagreements in this regard can follow
from differing views on the concept of rights for example.
3. Features of Existing Group Rights and
Discussions on Group Rights
After the analysis of the lex lata some observations with regard to the difficul-
ties surrounding the issues of rights, right-holders, subjects and legal personality
can now be made. How did the difficulties expected from the preliminary con-
ceptual discussion554 substantiate in reality? As will be shown, the expectations
and reality do not match without restraints; therefore, it is useful to take a closer
look at the philosophical debate on group rights which underlies, to some extent,
also the conceptual discussion.555 It is important to find out if that discussion
adequately takes existing group rights into account in order to understand if the
positions taken regarding group rights are based on solid ground or need to be
reflected critically. This analysis is important in order to assess if a reappraisal of
the concept of group rights in international law is needed.
3.1. Observations Regarding Rights, Subjects and Legal Personality

In 1992 Thornberry wrote that formally speaking minorities as such as holders of
rights and duties are almost ignored in international law.556 He based this find-
ing mainly on missing enforcement procedures in international law. In terms of
substance, however, he went on,
the reality of the existence of minorities is difficult to ignore. Genocide makes little
sense as a concept unless one regards it as the violation of a collective right (formally,
the genocide law consists of a prohibition of certain acts to individuals rather than
an affirmation of rights). The right to identity conceals the collective right behind
the rights of individuals. The group is the unacknowledged presence behind the
individual rights. Collective rights are a substantive, if not a formal aspect of the le-
554 See chapter 1.

555 There is some reason to believe that the conceptual discussion is one of the stages at
which the philosophical disputes are being fought; framed, however, in the formal-
ity of conceptual argumentation. See also the discussion in chapter 1.
556 Thornberry, International Law and the Rights of Minorities, supra note 313, p. 395.
128 Chapter 3
gal reality. The greater part of this reality is given over to individual rights. Minority
rights are substantive and indirect, not formal and direct.557
Although he seems to use the term collective rights (as well as minority rights)
to mean group rights in a broader sense than in this work, this describes very
nicely the role of group rights today as discussed here. In fact, they are still a
rather peripheral phenomenon and often covered by individual rights rhetoric;
however, the division of formal and substantive is misleading. Depending on
which theory of rights one applies, there is no doubt that groups can be seen, also
formally, as right-holders.558 The fact that a right cannot be enforced does not, by
and large, also formally change its nature as a right and, accordingly, the question
of right-holders does not depend on the question of legal standing.559
Overall, international law does provide rights and duties to groups. However,
as discussed before,560 the question of who can be understood as the right-holder
depends on what one understands as a right. This is visible by the many exam-
ples provided in the inquiry of the lex lata.561 In fact, from a choice theory per-
spective there are hardly any group rights in international law, whereas from an
interest theory perspective and a justified-constraint theory there are several. In
consequence, it is very important to clarify this question when discussing group
rights, as relying on one theory or another affects ones view on the existence and
importance of group rights. Hence, in such cases, criticism should be directed at
the shortcomings of the underlying rights theories instead of too hastily accusing
such views of collectivism or blind individualism.562
What is maybe surprising from the inquiry of group rights in international
law is that the technically and philosophically as we will see important differ-
ence between individual rights and group rights can be of very low relevance in
practice. As an example, Tomuschat remarkably concludes his analysis of Article
27 of the CCPR by stating that [v]iewed in the perspective of practical impact
the difference between the actual individual right and a truly collective right is a
557 Ibid., p. 396.

558 Unsurprisingly, the choice theory is the most reluctant one when it comes to accept-
ing the presented group rights as legal rights.
559 Cf. the discussion in chapter 1.1.5 and also in chapter 1.3.
561 See for example the discussion on the right-holder of Article 27 of the CCPR in chap-
ter 2.4.4.
562 See on this the following chapter 3.2.2.
Features of Existing Group Rights and Discussions on Group Rights 129
rather slight one.563 The same has been observed for example with regard to the
crime of persecution.564
In international humanitarian law and in the process of state creation,
groups can gain rights and have duties under international law. However, one
can agree that the main feature of recognising groups as legal entities in inter-
national humanitarian law is more so as duty-bearers and less as right-holders.
Nevertheless, in other examples like the rights of minorities, groups can be seen
to have a right to existence (as generally and in a more restrictive sense through
the prohibition of genocide), a right to identity, and a right to participate in mat-
ters concerning them; in the case of indigenous peoples, groups also have a right
to land ownership. Moreover, as has been argued by some authors, groups do
not require a certain degree of organisation to be able to become right-holders.565
Generally, in these cases, the duty-bearers are the states in which the groups re-
side. However, with regard to the enforcement of these rights a crucial deficiency
exists: groups as such have generally no legal standing in any (universal) interna-
tional legal court or similar international law enforcement mechanism.
As to the question of legal personality, answers are less clear than could have
been expected; apart from the additional requirements that may be demanded
of a legal person, in its core legal personality refers to the fact that an entity has
rights and/or duties under a certain legal system.566 Hence, the same problems
based on the different conceptions of rights arise again; according to some theo-
ries the group is the right-holder, according to others not. Hence, also legal per-
sonality is to some degree a matter which depends on ones belief with regard to
the legal philosophy the concept of rights is based on. As far as groups can be
seen as duty-bearers, however, they can be seen as legal persons. It is interesting
to note that in Western Sahara the ICJ left open the question if a group could be a
legal entity distinct from its members, but has regarded the question if an entity
is in such a position that it possesses, in regard to its Members, rights which it is

on Civil and Political Rights, supra note 473, p. 966; accord Wenzel, Das Span-
nungsverhltnis zwischen Gruppenschutz und Individualschutz im Vlkerrecht,
565 See e.g. ibid., pp. 2728; the representation of a group has to be separated from the
question of who is the right-holder. In fact, it seems awkward to argue that an indig-
enous people which lacks an organisation is not able to have land rights. In such a
situation it is hard to see why any member of this people or even a third party should
not be able to claim the right of the indigenous people on its behalf (if there was a in
which court to do so). Or think of the right to existence as protected by the Genocide
Convention: does the question of being a right-holder really matter in the organisa-
tion and representation of such a group?
130 Chapter 3
entitled to ask them to respect567 as the criterion which expresses the essential
test where a group, whether composed of States, of tribes or of individuals, is
claimed to be a legal entity distinct from its members.568
Turning to the issue of the subject of group rights, overall the cursory dis-
cussion has unsurprisingly shown that definitions in this area are largely miss-
ing.569 It can also be said that there are nevertheless elements of possible defini-
tions which are widely accepted. Through a case-by-case approach, objective and
subjective criteria have been used to define groups and depending on the content
one category or the other is weighed as stronger or less; as a tendency, interna-
tional law seems to be moving from mainly objective criteria to a more and more
subjective determination of groups as right-holders.570 Moreover, in practice,
much fewer problems have arisen than could have been expected from the theo-
567 Western Sahara, supra note 267, p. 63. The ICJ was referring to the Reparation for
Injuries case where this was the criterion applied in the special context of the ques-
tion if the UNO had legal personality. See Reparation for Injuries, supra note 135, p.
178.
568 Western Sahara, supra note 267, p. 63.
569 In the area of group rights peoples, minorities, etc., international law has gener-
ally avoided definitions it has not been regarded as necessary for the international
system to define canonically all its components. Thornberry, Indigenous Peoples
and Human Rights, supra note 526, p. 57.
570 There are good reasons for a stronger reliance on subjective criteria. William Scha-
bas, for example, has rightly established the problem of demanding objective crite-
ria to defining the groups protected by the Genocide Convention as a matter of law
as they prove to be social constructs detached of any scientific objectivity; more-
over, he argues that the subjective approach to the definition of the protected groups
seems to function in practice effectively virtually all the time. Trying to fi nd an
objective basis for racist crimes suggests that the perpetrators act rationally, and
this is more credit than they deserve difficulty in definition does not render an
expression useless, particularly from the legal point of view. For example, issue may
be taken with the term racial because the existence of races themselves no lon-
ger corresponds to usage of progressive social science. However, the terms racial
as well as race, racism and racial group remain widely used and are certainly
definable. They are social constructs, not scientific expressions, and were intended
as such by the drafters of the Convention. To many of the delegates attending the
General Assembly session of 1948, Jews, Gypsies and Armenians might all have been
qualified as racial groups, language that would be seen as quaint and perhaps even
offensive a half-century later. Their real intent was to ensure that the Convention
would contemplate crimes of intentional destruction of these and similar groups.
The four terms were chosen in order to convey this message. Schabas, Genocide
in International Law, supra note 363, pp. 128129; in the same vein and interest-
ing enough in his words in contradiction to a Schabass perspective Larry May
pleads for a subjective conception of group identification. See L. May, Identifying
Groups in Genocide Cases, in L. May and Z. Hoskins (eds.), International Criminal
Law and Philosophy (Cambridge University Press, Cambridge UK, New York 2010).
retical difficulties.571 As regarding the right to self-determination for example, in

the admittedly few cases of the ICJ, the claims of a group to constitute a people
went unchallenged.572
The openness of the terms describing the groups as right-holders has in many
cases allowed to find fair solutions in terms of group rights violations. However,
commentators disagree in the evaluation of this openness.573 The arguments range
from questioning the very possibility of a universal formula and applauding the
openness as a guarantee to achieve justice in concrete cases574 to harsh criticism
of the uncertainties harming the rule of law.575 Moreover, Alfredsson comes to the
conclusion that much of the time it is self-evident which groups constitute mi-
norities and what category of groups.576 This is correct and unproblematic in the
571 See also the following chapter 3.2.

573 Additionally, Neus Torbisco Casals warns that disentangling the definition of mi-
nority from the justification of minority rights is misleading. N. Torbisco Casals,
Group Rights as Human Rights: A Liberal Approach to Mulitculturalism (Springer,
Dordrecht 2006), p. 27.
574 Patrick Thornberry, for example, writes on this: To search further for a universal
formula as some governments demand in the context of the draft Declaration is
perhaps misguided. In the area of group rights peoples, minorities, etc., interna-
tional law has generally avoided definitions it has not been regarded as necessary
for the international system to defi ne canonically all its components. The principles
which animate the need for definitions in municipal law and at the level of the com-
munity do not necessarily carry over into international law. Thornberry, Indig-
enous Peoples and Human Rights, supra note 526, p. 57, footnotes omitted. David
Wippman points in the same direction: International lawyers have long struggled
to achieve consensus on the definition of the peoples entitled to self-determination
and the minorities entitled to protection under international human rights norms.
No consensus has emerged in large part because the terms attempt to fi x for inter-
national law purposes aspects of group identity that are inherently contextual and
forever subject to change. Wippman, Introduction, supra note 98, p. 3.
575 See e.g. J. Packer, Problems in Defining Minorities, in D. Fottrell and B. Bowring
(eds.), Minority and Group Rights in the New Millennium (Martinus Nijhoff Publish-
ers, The Hague, Boston 1999); nevertheless, Neus Torbisco Casals argues with regard
to the lack of an agreed definition of minorities that opponents of group rights
cannot justify their position merely by bringing forward the dispute over the defi ni-
tion of minority just as those who oppose democracy cannot legitimately allege,
as a reason against this political system, the conceptual disagreement surrounding
the term. Torbisco Casals, Group Rights as Human Rights, supra note 573, p. 28;
however, this argumentation might be opposed by claiming that there is a difference
between the conceptual ambiguities of the question of who is the right-holder and
the question of what a right contains. Cf. Makinson, On Attributing Rights to All
Peoples: Some Logical Questions, supra note 99.
576 Alfredsson, Minorities, Indigenous and Tribal Peoples, and Peoples: Definitions of
Terms as a Matter of International Law, supra note 163, p. 172; furthermore, Gud-
132 Chapter 3
many cases where the situation is clear. However, the question arises of who will
decide if a group really meets the definitional requirements when there is reason
for doubt. When the (former) OSCE High Commissioner on National Minorities
takes the stand that he knows a minority when he sees it,577 this is also to say that
he is the one to subsume a group to such a category. Being aware of the ambigu-
ity of definitions, this choice would not be free of implications. Agreeably, states
with some interests in this status decision would probably be worse judges in this
matter. However, as a matter of fact, there is no such neutral authority which has
the power to recognise groups as minorities or indigenous peoples. Usually, host
states are being pushed by groups, international organisations, NGOs and some-
times also other states to accept and recognise the groups on their territory and
to give them their according protection.
Still with regard to the subject group, the observation is crucial that peo-
ples, minorities and indigenous peoples are being strictly separated in interna-
tional law;578 the fact that a group can be counted to not only one, but maybe two,
or even all three categories only implies that these categories are not exclusive.
In other words, the rights attached to one category are wholly independent of the
rights attached to the other categories. Again, the attachment of the same rights
to each category, as far as in fact occurring, does not change anything as to their
distinctness in the contemporary conceptualisation in international law. Th is ap-
proach will be critically discussed in chapter 4.3.
3.2. Group Rights in Philosophical Debates

After having laid out the conceptual foundation of group rights and having in-
quired into its role in international law, it is now time to turn to a more elusive
topic and to look behind the scenes into what makes group rights so controver-
sial. This will add contrast to the findings just discussed and put us in a position
to reappraise the concept of group rights in the following Chapter 4.
mundur Alfredsson stresses that the lack of a binding definition does by no means
give states the power to recognize on their behalf which groups are part of a legal
category in international law: States do not have a say on the recognition of groups.
The acceptance or non-acceptance by governments is simply irrelevant if groups in
a given country meet the definition requirements, and non-acceptance should auto-
matically be considered suspect. Calling groups by other names, such as cohabitat-
ing nations or nationalities, is likewise insufficient for depriving them of minority
protection. G. Alfredsson, Non-Discrimination and Minority Rights, in J. C. Jo-
erden (ed.), Diskriminierung Antidiskriminierung (Springer, Berlin et al. 1996), p.
297.
577 Max van der Stoel has been quoted in this sense, cf. Alfredsson, Minorities, Indig-
enous and Tribal Peoples, and Peoples: Defi nitions of Terms as a Matter of Interna-
tional Law, supra note 163, p. 165.
578 E.g. G. Alfredsson, Peoples, Max Planck Encyclopedia of Public International Law
(2007), <www.mpepil.com>, visited on 28 January 2011.
Waldron writes that [i]n certain liberal circles, it is easy to solicit applause
by just denouncing all forms of group-value or group-rights.579 At this point, we
can only wonder what brings certain liberals to such an a priori opposition to
group rights. At the same time, we can read the following in an article on collec-
tive rights (meant as group rights):
There is one evident fact: collective rights exist at least in international law and it of-
fers the most spectacular evidence of their existence. There are many legal and polit-
ical texts, rules and principles, which assert collective rights clearly and directly. The
main reason for this may be that international law is founded by and for certain col-
lective subjects, the States, which are by definition the subjects of international law.
It regulates above all collective obligations and rights. Therefore collective rights are
not a theoretical invention, but they are a legal fact, which is widely delimited and
even conceptualised.580
Why this polemic? If states are considered collectives, why should there be any
doubt that collective rights exist?581 Are there group rights deniers who should
be shown to be wrong? Actually, this example stands prototypically for argu-
mentations in favour, as well as against, group rights. Obviously, group rights are
a highly controversial issue and the starting point and central question of many
writings on the topic seems to be: should we be for or against group rights?
The controversial nature of group rights is visible both in the legislation
process of different legal or soft law-documents, as well as in theoretical discus-
sions on the topic. The focus in the following will be on the theoretical debate on
group rights to find out what the underlying reasons are for its controversial na-
ture. Having the examples of group rights in international law as explored above
in mind, the discussion will reveal that the focus in the theoretical discussion
lies, in some cases, on problems which are of secondary importance in reality,
whereas important issues are being widely neglected.582
579 J. Waldron, The Dignity of Groups (2008), <ssrn.com/paper=1287174>, visited on 12

March 2011, p. 20.
580 Calera, The Concept of Collective Rights, supra note 94, p. 355, footnotes omitted.
581 Even more astonishing is the fact that the books which the author refers to when dis-
cussing the conceptualisation of collective rights only vaguely refer to the topic and
are quite outdated. Nicols Lpez Calera refers to Barberis, Los sujetos del derecho
internacional actual, supra note 153, a book that discusses the legal subjects of con-
temporary international law in the year 1984 in a general way and does not seem to
say much about collective rights specifically; and to Berezowski, Les problmes de
la subjectivit internationale, supra note 139, who speaks of collective rights in the
context of self-determination, clearly in the background of the then actual process
of decolonisation (in the year 1968).
582 This will be further discussed in chapter 4.
134 Chapter 3
Since the mid-1970s there has been a vivid debate on group rights.583
Generally, it is noticeable that the discussion is dominated by scholars of po-
litical science and philosophy rather than by legal scholars.584 The discussion is
rather complex and multilayered. Moreover, there is reason to believe that there
are distinct debates in the background of the discussion on group rights which
influence the views and argumentations on group rights and muddy this debate.
As will be argued, its result is by some means an ideological debate leading to a
very questionable strict dichotomy between individual rights and group rights.
The debates discussed in the following are of course interconnected, as can easily
be taken from the headings; nevertheless, they show some nuances on the issue
which are often also reflected in the controversy on the concept of group rights.
3.2.1. Romanticism/Nationalism versus Liberalism

Free institutions are next to impossible in a country made up of different na-
tionalities. Among a people without fellow-feeling, especially if they read and
speak different languages, the united public opinion necessary to the working
of representative government can not exist.
John Stuart Mill585
The first debate in the background of the group rights discussion is connect-
ed with the prevalence of individualism in society and philosophy since the
Enlightenment. The enlightened philosopher put the individual at the centre of
philosophy and the individual became the basis and the end of the organization
of all collective life of modernity.586 Thus, legitimation of power within a state is
based upon the consent of (rational and independent) people; these individuals
are protected with rights against the state and any other collectivity; the state
has to serve the individual and leave him as much freedom as possible, while
collectivities are seen as artificial constructs of individuals and are therefore of
secondary importance.587 In general, this individualism is interrelated with clas-
sical liberalism with a strong orientation towards cosmopolitanism.588 To cut a
583 Cf. e.g. V. van Dyke, Human Rights and the Rights of Groups, 18 American Journal
of Political Science (1974) 725; and Dinstein, Collective Human Rights of Peoples and
Minorities, supra note 10.
584 Whether the input provided by political philosophers in the on-going debate is,
however, really more substantial, as Miodrag A. Jovanovi claims, is open for dis-
cussion. Cf. Jovanovi, Are There Universal Collective Rights?, supra note 83, p. 24.
585 J. S. Mill, Considerations on Representative Government (Harper & Brothers Pub-
lishers, New York 1862), p. 310.
586 Calera, The Concept of Collective Rights, supra note 94, p. 351.
587 Cf. ibid.
588 Of course, classic liberalism is an overly general and broad category to discuss and
it is not fair for its exponents individually to lump them together in this discus-
long story short, the connection of this philosophical debate with the discussion
of group rights is that (minority) groups claiming their rights are often accused
of nationalism whereas the state and its majority are seen as liberal; this impor-
tant topic has many layers and will be explored in more detail in chapter 4. It is
sufficient to show in the following that these two strands of philosophy, liberal-
ism and nationalism, are rarely separable and that states typically embrace both
at the same time.
In fact, liberal individualism was never that pure. Think of one of the most
important legal products of the Enlightenment and a central document of indi-
vidual rights: the French Declaration of Human Rights and Rights of Citizens of
1789. Article 3 states: Le principe de toute souverainet rside essentiellement
dans la Nation. Nul corps, nul individu ne peut exercer dautorit qui nen mane
expressment.589 In other words, the sovereignty of the state is (essentially) not
built up by the citizens but rather the other way around: like in times of ab-
solutism the citizens are conceptualised as recipients of rights they ordinarily
would not have, but what does change is that this time they receive them from
(their) nation and not from the absolutist monarch. The Declaration continues
in Article 5 stating: La loi na le droit de dfendre que les actions nuisibles la
socit.590 Here as well it is aimed at the protection of society, not the protection
of individuals. And in Article 6: La loi est lexpression de la volont gnrale.591
It is the will of the majority that makes the law, not rationality, which creates inal-
ienable rights that protect individuals from the majority. So, the nation, the so-
cit and the volont gnrale go beyond pure individualism, they represent
somehow a collective; hence, states form collectives that are important regardless
of the prevailing individualist rhetoric of the time.592 As will be shown in the
sion. However, classic liberal theories typically are individualistic and, in conse-
quence, broadly tacit on how to create the political entity, the polity. In this, Gerald
F. Gaus understanding of liberalism will be followed which is based on what he
calls the fundamental liberal principle (G. F. Gaus, Justificatory Liberalism: An Es-
say on Epistemology and Political Theory (Oxford University Press, New York 1996),
pp. 162166) and, according to which, any restriction of individual liberty/freedom
requires a justification; in fact, authority and public law are typically seen as such
restrictions. Hence, the individual human being and his liberty are the basis of lib-
eralism no matter if we understand liberty negatively or positively (cf. I. Berlin,
Four Essays on Liberty (Oxford University Press, London et al. 1969), pp. 118172).
However, the notion of positive liberty needs further clarification in this context
and will be discussed further in chapter 4.
589 Ministre de la Justice de la Rpublique Franaise: Dclaration des droits de lHomme
et du citoyen de 1789, <www.textes.justice.gouv.fr/index.php?rubrique=10086&ssrub
rique=10087&article=10116>, visited on 29 July 2009, Article 3.
590 Ibid., Article 5.
591 Ibid., Article 6.
592 Moreover, it is worth noting in this context that in the Code Civil the rights of for-
eigners were restricted, cf. Damm, Personenrecht, supra note 112, pp. 850851.
136 Chapter 3
following, these examples from the French Declaration do not merely represent
unimportant exceptions or details but a significant development parallel to and
influential on liberalism.
The new political discourse based on the wide acceptance of Article 3 of the
French Declaration (with its view that sovereignty resides essentially with the
nation) promoted equivalence between the nation and the people belonging
to a state as well as between nationalism and patriotism as Torbisco Casals
argues.593 In short, she concludes that ethnos and demos have never been radi-
cally separated, not even in countries such as France or the United States, where
this division is part of the official history.594 In the same vein, but even more far
reaching, Bader states: There is no viable concept of political culture without
history: all civic and democratic cultures are inevitably embedded into specific
ethnic-national histories.595 As Mann has observed, currently, almost all mur-
derous cleansings occur in the less developed global South where the ideal of the
nation-state is spreading and the demos and the ethnos are being confused with
each other.596
There are many historical reasons for this. Indeed, going back to the 18th
century again, one could also think for example of Baron de la Brde et de
Montesquieu (16891755) who, in his famous De lEsprit des lois, wrote about
something quite abstract called nation which he saw as influenced by the climate
in which it resided. Hence, this collective had a spirit (apart from its members)
and was somehow shaped naturally. Actually, what he describes recalls very much
Hobbes picture of the Leviathan, but this time it appears in a more naturalistic
fashion; the state or in this case nation is a body made up of its members, but
in this case it is not merely imagined but becomes rather concrete, objective and
thus open to exploration. In fact, cultural anthropological research of the differ-
ent human descents and races started in that time and attracted a lot of interest
from the public regarding questions about the differences between such nations.
Overall, the political revolution at the end of the 18th century and the industrial
revolution at the beginning of the 19th century brought, on the one hand, politi-
cal and legal equality to all citizens while, on the other hand, the class society of
the feudal system came to an end. As a consequence, this meant a termination of
593 She establishes this as an evolution which radically changed the structures of power
that had previously existed. Torbisco Casals, Group Rights as Human Rights, supra
note 573, p. 104.
594 Ibid., p. 106.
595 V. Bader, The Cultural Conditions of Transnational Citizenship: On the Interpen-
etration of Political and Ethnic Cultures, 25 Political Theory (1997) 771, p. 779; in the
case of multi-ethnic Switzerland, this conclusion is not without doubts as ethnicity
was an unknown concept in Swiss history. Maybe Switzerland is a sole exception in
this regard.
596 M. Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing (Cambridge
University Press, New York 2005), p. 509.
fi xed social hierarchies, however, large parts of society lost their social security
without being able to become proprietors and take part in the economy as equals.
As a result, instead of humans with dignity who built up the state, they became
a deeply displaced mass in an alien system. The upcoming philosophies of the
German Romanticism which reflected on the essence of a common identity that
united nationals, national myths and identities can be seen as a result of this.597
Subsequently, in the second half of the 19th century, pseudo-scientific theories on
the superiority of races and similar started to flourish from the initially harm-
less nationalism. Overall, nationalism became stronger during the 19th century
and was a strong power against most of the cosmopolitan liberalism from the
Enlightenment.598
However, the rise of nationalism along with its counterpart of liberalism
is not a mere historical coincidence; although there is a tension between the two
ideologies, they also complement each other to some extent. In fact, the classi-
cal liberalism of the Enlightenment intended for the liberation of people from
state (/church) paternalism as well as an opening up of economic markets. The
individual autonomy and dignity became the basis of ethics.599 In opposition to
this, nationalism (nationality) is, according to Dalberg-Acton, a confutation of
democracy as is arguably liberalism
because it sets limits to the exercise of the popular will, and substitutes for it a higher
principle. Thus, after surrendering the individual to the collective will, the revolu-
597 In the days of Mazzini it did not matter that, for the great bulk of Italians, the
Risorgimento did not exist so that, as Massimo d Azeglio admitted in the famous
phrase: We have made Italy, now we have to make Italians. It did not even matter
to those who considered the Polish Question that probably most Polish-speaking
peasants (not to mention the third of the population of the old pre-1772 Rzecspo-
polita who spoke other idioms) did not yet feel themselves to be nationalist Poles;
as the eventual liberator of Poland, Colonal Pilsudski recognized in his phrase: It
is the state which makes the nation and not the nation the state. But after 1880 it
increasingly did matter how ordinary common men and women felt about nation-
ality. Hobsbawm, Nations and Nationalism Since 1780, supra note 96, pp. 4445,
footnotes omitted.
598 Cf. on the history of liberalism and nationalism: M. Senn, Rechtsgeschichte, ein kul-
turhistorischer Grundriss: Mit Bildern, Karten, Schemen, Register, Biographien und
Chronologie (4th edn., Schulthess Juristische Medien, Zrich 2007), pp. 355400; M.
Senn and L. Gschwend, Juristische Zeitgeschichte (3rd edn., Schulthess Juristische
Medien, Zrich 2010), pp. 73112.
599 On this and for a discussion of the connections between Kants cosmopolitan the-
ory and its antithetical romanticist theories for which parts of Kants philosophy
became unintentionally and involuntarily fruitful seeds, cf. I. Berlin, Kant as an
Unfamiliar Source of Nationalism, in I. Berlin, The Sense of Reality: Studies in Ideas
and Their History (Chatto & Windus, London 1996).
138 Chapter 3
tionary system makes the collective will subject to conditions which are indepen-
dent of it, and rejects all law, only to be controlled by an accident.600
Nevertheless, the answer liberalism cannot provide was and is where the bound-
aries between political entities should be and what entity had to be understood
as a (sovereign) state;601 in other words, the answer to Ramets question: Whose
democracy?602 Nationalism according to Gellner is primarily a political princi-
ple, which holds that the political and the national unit should be congruent.603
600 J. E. E. Dalberg-Acton, Nationality, in J. E. E. Dalberg-Acton, The History of Free-

dom and other Essays (Macmillan and Co., London 1907), p. 299; he brilliantly de-
scribes the way nationalism (theory of nationality) works: To have a collective
will, unity is necessary, and independence is requisite in order to assert it. Unity
and nationality are still more essential to the notion of the sovereignty of the people
than the cashiering of monarchs, or the revocation of laws. Arbitrary acts of this
kind may be prevented by the happiness of the people or the popularity of the king,
but, a nation inspired by the democratic idea cannot with consistency allow a part
of itself to belong to a foreign State, or the whole to be divided into several native
States. The theory of nationality therefore proceeds from both the principles which
divide the political world,from legitimacy, which ignores its claims, and from the
revolution, which assumes them; and for the same reason it is the chief weapon of
the last against the first. Ibid., pp. 287288.
601 In Anne Marie Slaughters words, [l]iberalism assumes a polity. It offers little guid-
ance for creating oneor holding one together. A.-M. Slaughter, Pushing the Lim-
its of the Liberal Peace: Ethnic Conflict and the Ideal Polity, in D. Wippman (ed.),
International Law and Ethnic Conflict (Cornell University Press, Ithaca NY 1998),
p. 144; however, liberal principles like the important consent of the governed may
guide solution finding, cf. A. Buchanan, The Making and Unmaking of Boundaries:
What Liberalism Has to Say, in A. E. Buchanan and M. Moore (eds.), States, Na-
tions, and Borders: The Ethics of Making Boundaries (Cambridge University Press,
Cambridge et al. 2003); it is astonishing that in her very interesting discussion of
the occultation of the collective dimension of human rights, even Gret Haller ig-
nores that by speaking of la souverainet populaire she takes the people, the unit
which is sovereign, for granted. Cf. G. Haller, La dimension collective des droits de
lhomme et les consquences de son occultation par lindividualisation: Lexemple
de la rconstruction en Bosnie-Herzgovine, in P. van Dijk and S. Granata-Meng-
hini (eds.), Liber amicorum Antonio La Pergola (Juristfrlaget, Lund 2009); for a
recent liberal argumentation embracing the nationalist idea of the unit in Mills
tradition (see the introductory citation of this chapter), see e.g., D. Miller, Liberalism
and Boundaries: A Response to Allen Buchanan, in A. E. Buchanan and M. Moore
(eds.), States, Nations, and Borders: The Ethics of Making Boundaries (Cambridge
University Press, Cambridge et al. 2003).
602 This question is the title of her book about collective rights in post-1989 Eastern
Europe. S. P. Ramet, Whose Democracy?: Nationalism, Religion, and the Doctrine
of Collective Rights in Post-1989 Eastern Europe (Rowman & Littlefield Publishers,
Lanham MD 1997).
603 E. Gellner, Nations and Nationalism (Blackwell, Oxford 1990), p. 1.
Again, ideally, liberalism was orientated towards an individualistic cosmopoli-

tanism; thus, people were considered equal an equality the mass could not find
very comforting, poor and uprooted as it was. Indeed, this is where nationalism
found its importance for states; it was an ideology that united the deeply diver-
gent society within industrial states and became a source of meaning for a mis-
placed mass.604 Hence, liberalism and nationalism coexisted from the beginning
and were united quite often in politics and philosophy.605 Nevertheless, tension
between the two philosophies remained and still does today.606
A traditional line of argumentation against group rights from an individual-
istic liberal perspective comes from the fear of weighing group interest more than
individual interests and rights. [L]iberals consider freedom as an essential hu-
man interest that, as long as it does not offend or threaten the equal liberty of oth-
ers, cannot be overridden simply by considerations of the social good. The princi-
ple of state neutrality, in its modern formulation, follows from this reasoning.607
The prioritisation of individuals in liberal democracies is traditionally based on
the legal principles of equality and non-discrimination as to ethnicity, sex, et al.
Indeed, citizens have to be treated equally; a differentiation regarding the just
mentioned characteristics is therefore prohibited by law.608
Admittedly, this understanding is convincing but it involves many prob-
lems. Indeed, groups are a social reality, and often their different legal treatment
604 Of course, socialism was another ideology with a similar function. However, history
has shown that it was the less influential one. For an early explanation why this was
so, see Dalberg-Acton, Nationality, supra note 600, pp. 299300.
605 [A]s the recent literature on liberal nationalism shows, culture and identity have
been key elements in the construction of liberal democracies and in the works of
major liberal thinkers. Torbisco Casals, Group Rights as Human Rights, supra
note 573, p. 112; indeed, the introductory citation by the liberal philosopher John
Stuart Mill shows exemplarily how nationality, fellow-feeling, and language were
being lumped together to build a culturally uniform base for the liberal state; hence,
nationalism and liberalism are often used in complementary ways.
606 This is also reflected in the discussion on the principle of self-determination. As
Wippman rightly observes: The democratic and romantic features of self-determi-
nation have been uncomfortably intertwined ever since. Wippman, Introduction,
607 Torbisco Casals, Group Rights as Human Rights, supra note 573, p. 91.
608 Cf. Marko, Autonomie und Integration, supra note 264, pp. 206207. However, there
are different views on how we should understand equality and they will be discussed
later on, at this point it is important to understand that liberalism traditionally has
an ideal of neutrality of the state towards its citizens. Cf. e.g. Fernando R. Tesns
remark: Equal rights of citizenship are, for liberals, color-blind (and language-blind
and so on). The assumption behind the political relevance of ethnic identity is that
there is a right to be governed by members of ones own race (or language and so on).
But that cannot be right, notwithstanding rhetoric to the contrary. Tesn, Ethnic-
ity, Human Rights, and Self-Determination, supra note 55, p. 111.
140 Chapter 3
as well. Depending on what kind of group interest is at stake, there is also good
reason for different treatment. A problem arises for liberals when religious, lin-
guistic, ethnic and/or cultural groups are treated differently because of exactly
these features. At the centre is the problem that such differences should not be
reflected in law as the state should be neutral or tolerant in this regard, but in
fact such neutrality is utopian. Galeotti argues that
[t]he naive liberal view conceives of toleration as the principle according to which
everyone should be free to follow his or her ideals and style of life as long as no harm
is done to anyone else. Headscarves do no harm to any third party, and the choice to
wear one for whatever reason rests in the proper domain of personal freedom. This
simplistic approach to the case suggests that toleration is the obvious solution, but,
in doing so, it disguises the raison dtre of the controversy.609
Danchin argues that viewing this issue solely in terms of individual rights (i.e.,
individuals are free to practice their religion provided the practice does not cause
harm to others) obscures the collective religious and cultural implications of
symbols such as the Islamic headscarf.610 As a Swiss citizen, one is forced to add
minarets here as another example.
Members of different national, cultural, and religious groups have differing na-
tional, cultural, and religious identities that is to say, collective identities which
must be carefully factored into interpreting or analyzing rights claims of this kind.
Indeed, what gives rise to confl icts between differently situated subjects are not pri-
marily differences between individuals, but differences and unequal treatment
between groups.611
Moreover, the popular liberal argument to view all groups as associations open to
opt in and out simply does not reflect reality612 as belonging to a group typically
has more to do with mutual recognition than personal will and achievement.613
609 A. E. Galeotti, Toleration as Recognition (Cambridge University Press, Cambridge

UK, New York 2002), p. 118.
610 P. G. Danchin, Who Is the Human In Human Rights?: The Claims of Culture and
Religion, 24 Maryland Journal of International Law (2009) 99, p. 110.
611 Ibid.
612 But integration into another societal culture often involves enormous difficulties
and this is a burden that cannot be legitimately imposed on minorities. This idea
is crucial to the correct understanding of the implications of Kymlickas theory of
minority rights. Torbisco Casals, Group Rights as Human Rights, supra note 573,
p. 174.
613 Thus, Raz and Margalit emphasise that belonging to a culture is a question of mu-
tual recognition, and that we cannot control the factors that lead others to see us as
members of the group. In this respect, effective integration does not depend only on
Again, liberal theory was not consistent in its reflection of cultural differ-
ence either. Torbisco Casals argues that the the tendency in the liberal tradition
has not been to relegate the cultural question to the private realm. Quite the op-
posite: the alleged need of cultural homogeneity was invoked to justify policies
of assimilation of cultural minorities into the dominant national culture.614 And
the practice of such policies was real as Wippman reminds us: Ostensibly, the
state was to treat ethnicity with benign neutrality, but in practice ethnic minori-
ties were expected to assimilate into the dominant political culture. Within the
limits imposed by individual human rights norms, democratically elected politi-
cal majorities were free to govern as they saw fit.615 Moreover, Kymlicka argues
that [l]iberal thinking on minority rights has too often been guilty of ethnocen-
tric assumptions, but adds also or of over-generalizing particular cases, or of
conflating contingent political strategy with enduring moral principle.616 In his
view, this is reflected by the wide range of policies liberal states have historically
adopted regarding ethnic and national groups, ranging from coercive assimila-
tion to coercive segregation, from conquest and colonization to federalism and
self-government.617
Furthermore, the state is not culturally void either; in fact, this would be
impossible. As soon as a state has an official language it is not neutral anymore.618
By contrast, Torbisco Casals argues that [e]thnocultural factors have played a
central role in the political praxis and, in general, liberal states have not adopt-
ed the hands-off attitude to culture and identity that underlies the tolerance
approach.619 Berman agrees that, from a historical point of view, it is simply not
possible to construct a neutral approach innocent of differential cultural projec-
tions and unimplicated in the partisan imposition of power.620 Overall, the often
ourselves, which is why acceptance as a full member will normally be a matter of

belonging, not of achievement. Ibid.
614 Ibid., p. 109.
615 D. Wippman, Practical and Legal Constraints on Internal Power Sharing, in D.
Wippman (ed.), International Law and Ethnic Conflict (Cornell University Press,
Ithaca NY 1998), p. 214, footnotes omitted.
616 W. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Clar-
endon Press, Oxford 1995), p. 195.
617 Ibid.
618 If Esperanto would be a neutral alternative is doubtful but open for discussion.
620 Berman, The International Law of Nationalism: Group Identity and Legal History,
supra note 97, p. 57. Nathaniel Berman continues: Rather, the legacy of internation-
al laws troubling efforts to engage with nationalism should be the vigilant aware-
ness of the possibilities and dangers implicit in all the approaches and the willing-
ness to deploy them tactically to prevent the horrors that have, more often than not,
followed even the noblest of legal dreams. Ibid.; cf. also the discussion by Walker
Connor, who argues that the promotion of a common sense of nationhood often
142 Chapter 3
cited cultural neutrality of liberal states is therefore an illusion both historically

and today.621
An expression of the common cultural bias is Mnchs remarkable talk of
a Sonderrecht (a special right) where minorities are given a right that the ma-
jority does not have, e.g. the right to speak another language than the official
one.622 In other words, special rights for substate groups are, from a conscious or
not nationalist view, unjustified privileges.623 Hence, liberalism seems to ignore
the implications of nationalism in reality and tends to uphold its principles in
a biased way to the detriment of minority groups.624 Therefore, Torbisco Casals
concludes that the idea that cultural diversity involves no significant challenges
for integration and justice in democratic states has been a widespread, even if
came at the price of destroying cultural pluralism. W. Connor, Nation-Building or

Nation-Destroying?, in W. Connor, Ethnonationalism: The Quest for Understanding
(Princeton University Press, Princeton NJ 1994).
621 Accord Marko, The Law and Politics of Diversity Management: A Neo-Institutional
Approach, supra note 101, p. 259.
622 Und fr Fritz MNCH handelt es sich dann um ein Sonderrecht, wenn An-
gehrigen von Minderheiten ein Recht eingerumt wird, das der Angehrige der
Mehrheit nicht hat, wie beispielsweise den Gebrauch einer anderen Sprache als der
Staatssprache vor Behrden und Gerichten, ohne da er sich des nationalstaatli-
chen bias dieser Aussage berhaupt bewut zu sein scheint. Eine kritische Reflexion
des Vergleichsmastabs, der hier unterstellt wird htte wohl schon bei der Frage
ansetzen knnen, ob es ein solches Recht eines Angehrigen der Mehrheit sinn-
vollerweise berhaupt gibt. Marko, Autonomie und Integration, supra note 264,
pp. 206207, footnotes omitted.
623 See Marko, The Law and Politics of Diversity Management: A Neo-Institutional
Approach, supra note 101, p. 274; to see group rights as potential privileges does
not necessarily involve a nationalist perspective, see e.g. Pogge, Gruppenrechte von
Minderheiten, supra note 104, p. 190; however, to point at this possible abuse of
group rights when discussing its most basic features is in the background of nation-
states, as discussed above, at least misleading as it implies a non-existing equality
between groups which could be disturbed by the provision of such rights.
624 Summing up, law and politics both have an intrinsic cultural dimension that
should be acknowledged. Terms such as non-intervention or benign neglect are
thus misleading: they reinforce the illusion that, if only neutrality was strictly ap-
plied through a strategy of privatisation of cultural conflict, cultural minorities
would be able to survive at the states margins. Surely, if this were the case, there
would be no need for a theory of group rights, or for a model of multicultural citi-
zenship. But, for the reasons described, a general principle of non-interference by
the state in the cultural realm is untenable in the modern world and can only lead,
by omission, to privileging a status quo that, in most cases, only reinforces the privi-
leges of the dominant group. If this is accepted, proponents of the different versions
of the tolerance approach analysed before should be equally troubled by the results
of their argument.Torbisco Casals, Group Rights as Human Rights, supra note
573, p. 124, footnotes omitted.
implicit, supposition. This is, in part, the reason why the Western political tradi-
tion has been, until very recently, silent on issues related to minority rights.625
In conclusion, the common allegation made, consciously or not, openly or im-
plicitly, that states are liberal and defend liberal values while substate groups are
nationalist and illiberal is biased and in this generality wrong.
3.2.2. Collectivism versus Individualism

The reproach against group rights of being anti-individualist is even stronger
in the line of argumentation that group rights are part of collective ideologies,
racist as well as socialist, which caused historical disasters and for this reason
besmirched with their failures. This view seems to be justified prima facie as
many have the vague remembrance that the Soviet states supported the concept
of group rights for minorities whereas liberal Western democracies opposed it.
More importantly, a further step is taken with the equation of incompatibility of
democratic and autocratic governance along with the incompatibility of group
rights and individual rights. In conclusion, such an interpretation leads to a strict
dichotomy of individual rights and group rights.626
There are many flaws in the whole argumentation and they need clarifica-
tion. The confusion of collective rights (or group rights) with collective ideologies
could be compared to the confusion of a national social security system with the
German Nationalsozialismus even if one could find some relations between the
two, there is still no basis for lumping the two together, yet unfortunately this
connection is still being insinuated.627 As we have seen above, group rights are a
form of rights; their content is open. Conversely, it is open for discussion whether
the previously mentioned collective ideologies caused such terrible damage to
humanity mainly because they referred to a collective (their collectivism), be-
cause they were fundamentalist, because of an unlucky combination of the two,
or because of other reasons. Moreover, it should be mentioned that religion was
also often used as an ideology to justify grave human rights violations and still
it is not convincing to look at religion as such as a threat against human rights
or humanity. As for the common racist organicist view of groups, it needs to be
added that reference to groups in international law lacks any such admittedly
highly problematic organicist dimension; indeed, group personality does in no
way preclude that groups are organisms.628 Such views would in fact be highly
problematical as they tend to see the group as an end in itself, while the human
625 Ibid., p. 114.

626 Cf. Marko, Autonomie und Integration, supra note 264, pp. 199200.
627 Wenn auch entsprechend der Renaissance des Nationalismus ideologisch adap-
tiert, hlt sich trotz des Zusammenbruchs des kommunistischen Herrschaftssys-
tems in Osteuropa diese Auffassung eines angeblich kollektivistischen Inhalts von
Gruppenrechten auch weiterhin Ibid., p. 205.
628 See Vincent, Can Groups be Persons?, supra note 110, pp. 688693.
144 Chapter 3
beings would seem to be nothing but a means to this end;629 this would in fact
question a great many achievements since the Enlightenment for individuals, not
least human rights.630 As Marko has shown, also the view that communism pro-
moted and protected ethnic groups through group rights is incorrect.631 Anyway,
even if it had been otherwise, this would not be of much importance for discus-
sion of the question if group rights are desirable as legal tools.
Nonetheless, the subliminal assertion that group rights are connected his-
torically and ideologically to collectivist ideologies of racism or socialism needs
a closer look. As far as a historical connection is made, it is clear that something
similar to group rights existed much earlier than these collectivist ideologies.
Think for example of the Jews or merchants from Cahors who were granted spe-
cial rights to charge interest and capitalise from loans, and were therefore able
to provide banking services in medieval Europe whereas Christians were not
allowed to do so. Think of the religious groups in general which were granted
certain autonomies after the Reformation and the religious wars in Europe, espe-
cially in international contracts referring to cessions of territories between states
of different religious beliefs.632 Hence, group rights existed long before the birth of
racism and socialism in the second part of the 19th century and if so the question
remains if the concept of group rights could not be connected in spirit with col-
lectivist ideologies. In general, both ideologies were based on groups a race or a
629 See ibid., p. 690.

630 See ibid., pp. 692693; the same author notes, however, that using the term organic
in this context, as an analogy, is not as problematic as often criticised. See ibid., pp.
695700.
631 See Marko, Autonomie und Integration, supra note 264, p. 201.
632 Cf. Natan Lerners discussion on the history of group rights: International human
rights law actually began, rather timidly, as an attempt to protect discriminated
groups, particularly religious minorities, through initial emphasis on tolerance
more than on rights. The efforts of some of the early Spanish international lawyers
in favor of the American indigenous populations and the measures taken to ensure
some guarantees for the inhabitants of territories that underwent changes in their
legal status as a result of the European wars of religion, belong to that period. At
first not the individual, but groups of individuals, minorities, within one political
community appeared to the conscience of civilized nations as in need of protection
at the international level. Since the seventeenth century, several treaties incorpo-
rated clauses ensuring certain rights to individuals or groups with a religion dif-
ferent from that of the majority. Among them were the Treaty of Westphalia (1648),
granting religious rights to the Protestants in Germany; the Treaty of Oliva (1660),
in favor of the Roman Catholics in Livonia, ceded by Poland to Sweden; the Treaty
of Nimeguen (1678), between France and Spain; the Treaty of Ryswick (1697), pro-
tecting Catholics in territories ceded by France to Holland; and the Treaty of Paris
(1763), between France, Spain and Great Britain, in favor of Roman Catholics in
Canadian territories ceded by France. Lerner, Group Rights and Discrimination
in International Law, supra note 5, p. 7.
class. Both ideologies excluded groups they considered as different and discrimi-
nated against them, also through law. However, it was through a biased use of law
and a revocation of rights rather than through group rights that they discrimi-
nated against these groups. Hence, group rights cannot be seen as an important
means of these ideologies in order to discriminate against groups. Nevertheless,
the shadows of the Cold War still seem to reach international legislation as Anaya
shows by his evaluation of the United States position on group rights:
In going against prevailing trends, the United States appears to be captive to a lin-
gering Cold War opposition to group rights, an opposition that resulted from the
linkage of collective rights with the system of social and economic rights champi-
oned by the former Soviet Union. The struggle for the primacy of individual rights
over collective rights was part of the ideological struggle for the primacy of the U.S.
model of the state over the Soviet model. That struggle is now, of course, over, and
whatever intellectual merit the U.S. position had in that Cold War debate is hardly
relevant to the discussion over the articulation of indigenous rights.633
or of group rights in general.

Still, there could be (and there is) the argument that the view of human
beings not as individuals but as members of groups is implied in the concept of
group rights as well as in collectivist ideologies and that this is the source of evil.
In fact, we can agree that group rights and collective ideologies both refer to some
kind of collective. As we shall see later, communitarians disagree on the negative
valuation of this. However, for cosmopolitan liberalists, this criticism is strong
and one can reasonably agree on the strength of their argument against group
rights in theory. To many it is a positive imagination of the world if there were
no groups and people would look at each other as equal individuals. However,
biblically speaking, we should not forget that there was Babel or that there are
promised lands or that God seems to have preferences when it comes to peoples.
To put it another way, people have thought ever since in terms of groups, they
disagree on the most basic values and speak in different languages; these barriers
are real and reflected in contemporary law, also in our liberal laws as discussed
above. Hence, as long as states exist and an individualistic cosmopolitanism has
not prevailed, as long as people feel that they belong to different groups and look
at other people as parts of different groups, as long as they are not united into one
single group, history teaches us that there will be groups which are disadvantaged
and discriminated against.
Again, group rights are only a form of rights and do not implicate their con-
tent; what role they can play depends to a great part on their content and the con-
text. Therefore, to argue implicitly that the concept of group rights brings groups
633 Anaya, Superpower Attitudes toward Indigenous Peoples and Group Rights, supra
note 179, p. 257. Of course, the United States is not alone in this regard; many (West-
ern) states take similar positions.
146 Chapter 3
into existence who would otherwise be seen only as individuals could sometimes
be true but not as a matter of principle and has furthermore to be qualified by the
fact that the world is not that individualist either. However, Minow has described
it as the dilemma of difference that [t]he stigma of difference may be recreated
both by ignoring and by focusing on it.634 This is an important dilemma to keep
in mind when reflecting on the provision of group rights. There is a danger to
strengthening the differences between groups by providing rights alongside their
boundaries. However, the dilemma points at the opposite side as well: it could be
a danger not to acknowledge existing differences and, hence, not to provide some
rights according to group belonging (which could mean from time to time also
the provision of group rights).
In this context, and in the previously mentioned claim that group rights
are in opposition to individualism, it seems useful to take up the prohibition
of genocide as an example.635 What is the reason for the broad recognition of
the prohibition of genocide in international law? The existence and importance
of this group right to exist arguably proves that the antagonism-thesis of group
rights and individual rights is simply wrong. Actually, genocide is prohibited for
many reasons; a central one is the absolute ignorance of the existence of human
individuality. We do not even have to call it human dignity; it is even a step
less as genocide degrades human beings to an impersonalised worthless mass.
Thus, there is no individual personality at all because it is covered by a veil of a
somehow created group which is chosen to be liquidated. Ironically, from this
perspective, it is exactly this denial of the very basis of individualism that creates
the need for this group right to secure individualism.636 The same is true muta-
tis mutandis for the protection of the civilian population as discussed above.637
Moreover, the very problem of viewing the world through collective categories
creates the need for these group rights. Thus, it seems to be quite the opposite of
what the antagonism thesis wants to make us believe and also the opposite of the
thesis that only collectivists could claim group rights; individualists claim this
right, while some collectivists fight against it. Additionally, the crime of genocide
covers what would not be covered when taking all single crimes committed as
single cases. The quality of crimes reflects a new dimension which is criminal-
634 M. Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Cor-
nell University Press, Ithaca NY 1990), p. 20.
635 For a legal analysis of this topic, see chapter 2.4.2.
636 A similar understanding led Leo Kupers inquiry on genocide: Genocide, in terms
of the perspective of this study, is a crime against a collectivity As a crime against
a collectivity, it sets aside the whole question of individual responsibility; it is a de-
nial of individuality. L. Kuper, Genocide (Penguin Books, Harmondsworth 1981), p.
86; see also Warwick McKean who discusses genocide as an extreme form of denial
of the principle of equality of individuals. McKean, Equality and Discrimination
under International Law, supra note 280, p. 282.
ised by the crime of genocide. This, however, does not mean that a single crime
committed in the conduct of genocide cannot be treated as an individual crime
as well;638 on the contrary, the crime of genocide exists beside other criminal of-
fences and does not trump them. Hence, the antagonism thesis is also wrong
from this perspective as it is not either the group or the individual who gets the
right; instead, the individuals rights and the groups rights cover different cases
(Sachverhalte) and, hence, are not competing. This construction gives interna-
tional law the possibility to stay out of the internal affairs of criminal matters
while making the crime of crimes, also legally, a matter of international concern.
A more current debate along the collectivism-individualism divide is that
between communitarians and liberals, one which is actually very diverse and
complex.639 Generally, the debate is in fact not taking place between liberals
and communitarians, but between liberals on the meaning of liberalism.640 At
its core, this debate is on the question if groups can be seen as moral agents or
not.641 More importantly, communitarianism focuses on collectives and often
treats (some of) them as moral agents. Being moral agents, groups are seen as
capable of bearing rights.642 Hence, communitarianism is often seen as linked
to the concept of group rights. On the other hand, liberalists acknowledge only
individuals as moral agents and are therefore seen as connected to the concept of
individual rights.643 In a wholly reductionist interpretation of this debate, com-
munitarian and liberal views, as well as group rights and individual rights, are
seen as radically opposite and exclusive. Moreover, the individual and the com-
munity are suddenly found in a competition of who has priority over the other
one and the question if group rights can be reduced to individual rights becomes
638 But cf. de Vito, Rape as Genocide: The Group/Individual Schism, supra note 5.
639 Cf. on the whole and a discussion on its importance for the discussion of group
rights: Torbisco Casals, Group Rights as Human Rights, supra note 573, pp. 1942.
640 E.g. H. Bielefeldt, Carl Schmitts Critique of Liberalism: Systematic Reconstruction
and Countercriticism, in D. Dyzenhaus (ed.), Law as Politics: Carl Schmitts Critique
of Liberalism (Duke University Press, Durham NC 1998), p. 23.
641 However, the communitarian and the liberal traditions are equally amorphous and
heterogeneous which makes it difficult to generalise. Cf. also Jones, Cultures, Group
Rights, and Group-Differentiated Rights, supra note 4, pp. 4243.
642 In Jovanovis words, for example, [t]aking into consideration the protection of the
crime of genocidenational, ethnic, racial, or religious groupsone may conclude
that the existence of relevant collectives is a moral good, which is protected by the
respective legal right. Jovanovi, Recognizing Minority Identities through Collec-
tive Rights, supra note 11, p. 633, footnotes omitted.
643 There is a widespread perception that liberalism and group rights do not mix: the
moral assumptions underlying one are at odds with those underlying the other.
There is also a widely shared belief that group rights will function in a way that
threatens values that liberals hold dear. Jones, Cultures, Group Rights, and Group-
Differentiated Rights, supra note 4, p. 41.
148 Chapter 3
crucial. Thus, the debate over group rights seems to lead to a controversy among
opposed philosophical theories of value, identity and moral agency.644
However, group rights can be conceptualised in different ways and also in
ways that do not touch upon the question of moral agency of groups. This is best
illustrated by Jones distinction of a corporate and a collective conception of
group rights:645 a corporate conception of group rights conceives the right-hold-
ing group as a unitary entity with moral status analogous to that of an individual
person, whereas the collective conception conceives group rights as rights that
are shared in, and held jointly by, those who make up the right-holding group646
without ascribing any independent moral standing to the group.647
In other words, different conceptions of group rights are possible648 so that
the ascription of moral standing to individuals or groups does not depend on the
question of who is the right-holder. Jones provides a rather enlightening insight
since many articles on group rights found their argumentation upon the ques-
tion of where the moral standing correctly lies in order to justify or reject group
rights. All in all, we can agree with Torbisco Casals that the framework of liberal-
ism versus communitarianism is, hence, completely inadequate for the discus-
sion of group rights and leads to quite some confusion.649 Furthermore, thinking
of the provided examples of groups protected by international law, the provision
of rights in international humanitarian law can hardly be based on the argument
that belligerents or the civilian population are moral agents with an inherent
dignity that would require recognition from law; instead, it is much more con-
vincing that international humanitarian law is neutral toward these actors and
provides them with rights and duties in order to serve its own aim of reducing
suffering from wars a highly important moral aim. Again, it is hard to see what
is the added value of discussing groups protected by the Genocide Convention as
645 Jones, Group Rights and Group Oppression, supra note 12; and Jones, Human
Rights, Group Rights, and Peoples Rights, supra note 12.
646 Jones, Cultures, Group Rights, and Group-Differentiated Rights, supra note 4, pp.
4344.
647 For such approaches to explain group autonomy without rejecting value-individu-
alism, e.g. C. H. Wellman, The Paradox of Group Autonomy, 20 Social Philosophy
and Policy (2003) 265; A. Moltchanova, Collective Agents and Group Moral Rights,
17 Journal of Political Philosophy (2009) 23.
648 By and large, this is also Neus Torbisco Casals central point throughout her book:
Torbisco Casals, Group Rights as Human Rights, supra note 573.
649 On this background, the above-mentioned antagonism between the liberal and
communitarian picturesthe equation of liberalism with individual rights and
communitarianism with group rightsoversimplifies both theories and thereby
trivialises the discussion. Ibid., p. 34; see also B. Bowring, The Degradation of the
International Legal Order?: The Rehabilitation of Law and the Possibility of Politics
(Routledge-Cavendish, Abington 2008), p. 163.
moral agents as claimed before, it is arguably the morally reprehensible denial

of individuality which justifies this group right rather than the moral quality of
the protected groups. Somehow the argumentations on moral agency, important
as they may be in the discussion of individual rights, seem awkward in the con-
text of group rights.650 As regarding the question of legal personality of groups, it
should be noted that moral agency is no precondition for the attribution of that
label either.651
In connection with the dichotomies of liberalism and collectivism as well as
liberalism and communitarianism discussed above, it is interesting to note that
similar ideologically inspired arguments have been made with regard to differ-
ent understandings of equality; indeed, formal equality before the law is then
construed as opposing substantive equality through the law.652 Whereas formal
equality is connected with individualistic liberalism, substantive equality is con-
nected to collectivism as groups, not individuals, are to be compared. Formal
equality mainly demands from the state not to discriminate against people,
whereas substantive equality demands that groups within a state reach equality
in the political, economic, social and cultural spheres which might require meas-
ures of affirmative action as well as special rights for groups. Marko rightly points
to the basic problem of the dichotomous understanding of formal and substan-
tive equality: it cannot establish beyond dispute what fundamental liberties are
in contrast to special rights or even mere privileges.653
3.2.3. Group Rights versus Individual Rights

The only feature which makes group rights a distinct category of rights is that a
collective, a group, is its bearer. Therefore, it is only natural to come at some point
of the discussion to the distinction of individual and collective bearers of rights;
unfortunately, this discussion often leads in literature to an exaggeration of the
differences. This brings us to another strand of argumentation against group
rights which claims incompatibility of individual rights with group rights and
rejects group rights for the sake of the individual beings. Also, this philosophi-
cal discussion has affected international legislation directly as governments
have used such argumentation to explain their reluctance to sign international
contracts which include group rights.654 Thus, it is assumed that the categories
650 See also the remarks in the following chapter 3.2.3.

651 In fact, in the words of Andrew Vincent the theory of juristic personality does not
claim that the state or group is a subject of ultimate moral worth and respect. Vin-
cent, Can Groups be Persons?, supra note 110, p. 714.
652 See Marko, The Law and Politics of Diversity Management: A Neo-Institutional
Approach, supra note 101, pp. 259264.
653 Ibid., p. 262.
654 For an example of reservations regarding group rights based on such argumenta-
tion (in this case made by the United States in the context of the UN Draft Declara-
150 Chapter 3
of group rights and individual rights contradict each other or are at least funda-
mentally in conflict with each other.
Views on the relationship between group rights and individual rights vary.
On a very general level, Rodriguez-Abascal claims as a condition for the admis-
sibility of group rights that [a] group right must be indivisible into individu-
al rights. In other words, rights that can be understood as arrays of individual
rights are not group rights.655 He continues his argumentation as follows: If
group rights were only sets of individual rights, then, the concept of group rights
would be redundant. If we are to use the concept of group rights at all, we need
to apply it to group rights that cannot be broken up into individual rights.656
There are two claims in this citation, the more uninteresting one is that group
rights refer to a specific kind of rights which differ in a substantial way from
individual rights,657 and the other is that if a group right can be divided into in-
dividual rights, it is not a group right. We can agree on the first one without any
doubt. The second one needs some more discussion.
Let us think of rights understood as protected interests.658 The claim would
accordingly be that the interest of a group can only be protected by a group right
if this interest is not just the sum of the interests of the groups members and,
therefore, could be protected by individual rights. Or, in the case that such in-
dividual rights of the groups members were already protected, they could not
additionally be protected by a group right as defined in this work. While this
claim is very common, some doubts remain. Actually, there are different ways of
questioning this view; at least two ways come to mind. First, are protected inter-
tion on the Rights of Indigenous Peoples), see UN Doc. E/CN.4/Sub.2/1993/29, para.

68; see also Anaya, Superpower Attitudes toward Indigenous Peoples and Group
Rights, supra note 179, p. 257; J. Corntassel, Partnership in Action? Indigenous
Political Mobilization and Co-optation During the First UN Indigenous Decade
(19952004), 29 Human Rights Quarterly (2007) 137, p. 151; and N. Wenzel, Minority
Rights as Group-Protective Rights: A challenge for the International Law of Human
Rights, in D. Knig and R. Wolfrum (eds.), International Law Today: New Chal-
lenges and the Need for Reform? (Springer, Berlin 2008), pp. 255 and 257.
655 L. Rodrguez-Abascal, On the Admissibility of Group Rights, 9 Annual Survey of
International and Comparative Law (2003) 101, p. 104.
656 Ibid., p. 105.
657 If it was congruent with individual rights we could agree with his further argu-
mentation: Suppose that this requirement of indivisibility was not in place. Then
all individual rights would also qualify as group rights and the difference between
individual and group rights would vanish individual and group rights would be
just two possible ways of referring to the same thing. Ibid., p. 104. Put this way, it is
a non-issue. However, group rights could, theoretically speaking, still refer to only
a part of individual rights and in this way be a non-redundant category of more
specific individual rights. Still, we can agree that individual rights and group rights
differ in a substantive way as has been discussed above in chapter 1.1.1.
658 On the conceptions of rights, see chapter 1.1.2.
ests per definition restricted to single persons? In other words, could it not be that
the interest of an individual was at the same time the interest of a group and vice
versa? Second, why should individual rights be preferred as a matter of principle
to a group right in the case that they were mere substitutes for one another? It is
the position of substantive individualism about rights which is at stake here, the
view that rights must always attach to individuals.659 Opposed to that position
ethical individualism about rights is the view that we should defend rights by
showing what they do for individualssocial individuals, to be sure, living in
families and communities, usually, but still individuals.660 Such a position may
allow group rights.661
Following the choice theory we had to ask who could wield the right in prin-
ciple. According to the presented logic, it was either the group (through some
collective procedure or through an agent) or the individual.662 However, accord-
ing to Buchanan, some group rights have what may be called dual standing: Any
individual who is a member of the group can wield the right, either on his own
behalf or on that of any other members of the group.663 As an example he dis-
cusses the right to engage in cultural or religious ceremonies or rituals where
[a]n individual who is a member of the group might invoke the right if his partici-
pation in cultural or religious ceremonies or that of others in the group was being
interfered with, or official representatives of the group (say, members of the priest-
hood) might invoke it on behalf of the group.664
Let us put this counterexample of the above mentioned indivisibility or irreduc-

ibility claim in terms of the interest theory: the protected interest would seem to
be the interest of the individual as well as the group. Hence, the strict and prin-
cipled dichotomy between individual rights and group rights becomes a myth.665
659 A. Appiah, The Ethics of Identity (Princeton University Press, Princeton NJ 2005), p.
72.
660 Ibid.
661 This is one of the issues discussed by Kwame Anthony Appiah throughout his book,
see ibid.
662 Cf. A. Buchanan, Liberalism and Group Rights, in J. L. Coleman and A. E. Buchan-
an (eds.), In Harms Way: Essays in Honor of Joel Feinberg (Cambridge University
Press, Cambridge UK, New York 1994), p. 3.
663 Ibid.
664 Ibid.
665 Similarly, Joseph Marko writes: Nun hatte schon Adolf MERKL an dieser ideo-
logischen Dichotomisierung seine Zweifel geuert und wohl zu Recht festgehal-
ten, da die rechtliche Technik von der sozialen Teleologie unterschieden werden
mu, will man nicht juristische und politisch-soziologische Problemstellungen
konfundieren Marko, Autonomie und Integration, supra note 264, pp. 199200.
152 Chapter 3
The underlying reasoning of what could be called the irreducibility thesis

is not fully clear, but it may be related to e.g. Razs notion of right-holders as
moral agents with interests of ultimate value.666 Accordingly, the argumentation
would go as follows: if a group right can be reduced to an individual right, only
the individual has an interest of ultimate value and therefore only the individual
can be the right-holder of this right. Again, Razs understanding of right-holders
is questionable.667 Who should decide on who can be a right-holder? From the
above said, it is clear that this is not a conceptual question but a substantive one;
hence, it is the legislator who has to decide on this. Moreover, if the legislator de-
cides that a certain group should be granted a certain right, would it really matter
if this right covers one of his interests of ultimate value? Even if we could agree on
what these rights of ultimate value are, which can seriously be doubted, it is hard
to believe that this leaves us with only one possibility of who would be its right-
holder. Think of air pollution; is the interest in clean air an interest of ultimate
value? Would it be the interest of the environment, humanity, states or individu-
als? Does this really matter in the end? Imagine a legal system where the right is
conceptualised as a right of nature and certain environmental organisations are
appointed to take care of cases of air pollution. Imagine that you had polluted the
air and were accused of this crime against nature and are now standing before
the judge with the lawyer of the environmental organisations as complainant.
Imagine now a different situation; imagine you did the same, but in a state where
the right is one of individuals. How would the scene look now? Pretty similar
probably, but the lawyer would now be representing some neighbours or other
individuals. If the right was conceptualised as a crime against the state, then the
lawyer would represent the state. All in all, there would not be much difference
at this stage. You might ask if it really makes sense to create this right as a right
of nature and admittedly there can be doubts about this; however, by and large
this is a political/substantive question, a question that the legislator has to an-
swer, and surely there are better and worse answers to this question but no right
or wrong, or even conceptually possible or impossible, answers.668 Maybe Razs
discussion could help to give a better answer in this regard. Overall, the irreduc-
666 The same goes for Carl Wellmans theory, where right-holders are moral agents,
holding the moral as well as the legal rights, and where group rights can be reduced
to individual rights: Because the actions we ascribe to groups are really actions of
the individuals who make up those groups, no group as such could possess a moral
right Not everyone, of course, agrees with me that moral agency is a necessary
condition for the possession of moral rights. I have tried to show that the most plau-
sible lines of reasoning used to extend the range of right-holders beyond the class of
moral agents are inadequate My conclusions regarding moral right-holders can
and should be generalized to apply, mutatis mutandis, to all species of possible right-
holders. Wellman, Real Rights, supra note 22, pp. 176177.
668 See generally the discussion in chapter 1.1.2.
ibility theory is not convincing as it treats the question of who could be a right-
holder as a conceptual one whereas in fact it is a substantial one.
This is taken a step further when the relationship of individual rights and
group rights is even presented as an antagonism.669 Anaya has explained that
[o]ne effort at principled argument offered by the United States in its resistance
to group rights is that such rights may come into conflict with the rights of the
individual.670 He rightly argues that this argument presents what amounts to a
nonissue, since implicit in any affirmation of a right, be it collective or individual,
is the need to balance it in its application against any competing right.671 In fact,
it is questionable that the conflict between group rights and individual rights can
be solved at this abstract and formal level independent of the values which are
protected by them and their respective weight.
Instead, an analysis of the underlying norm structures as well as the func-
tion and social effects reveals, as Marko shows, that there is no such dichotomy
between individual rights and group rights but rather a continuum from individ-
ual freedom of choice and action on the one hand and factual equality of groups
on the other.672 This continuum is reflected in the form rights take from indi-
vidual rights to collective and group-related rights to group rights. Furthermore,
he holds that [t]hese two forms of rights not only can, but even must, be used
cumulatively when organising equality on the basis of difference, in order to
counteract the assimilative consequences of the nation-state concept.673
3.2.4. Group Rights, Fundamental Rights and Human Rights

Group rights are often discussed as a specific category of human rights. For ex-
ample, Brownlie begins his article on peoples rights in a way which is typical
for group rights: The subject of this article is essentially that of human rights,
with particular reference to the rights of groups and indigenous populations.674
669 Cf. Marko, Autonomie und Integration, supra note 264, pp. 523524.
note 179, p. 257.
671 Ibid.
672 Durch eine Analyse der Normstrukturen individueller wie kollektiver Rechte und
ihrer rechtlichen Funktionen wie sozialen Wirkungen lt sich jedoch zeigen, da
es sich an Stelle der ideologisch bedingten Dichotomie vielmehr um unterschiedli-
che Abstufungen von Gruppenbezgen im Sinne einer Reihenordnung zwischen den
Grundwerten individueller Wahl- und Handlungsfreiheit einerseits und der fakti-
schen Gleichheit von Gruppen andererseits handelt. Marko, Autonomie und Inte-
gration, supra note 264, pp. 523524.
673 Marko, The Law and Politics of Diversity Management: A Neo-Institutional Ap-
proach, supra note 101, p. 274.
674 Brownlie, The Rights of Peoples in Modern International Law, supra note 257, p. 1.
This approach can be called classical as many think of it in this way. Among others,
154 Chapter 3
Similarly, Kingsbury writes that the principles of human rights are a major
source of legitimation for claims by non-state groups.675 Moreover, Anaya argues
that claims of indigenous peoples are either to sovereignty or more successfully
to (collective) human rights.676 Again, Beitz categorises human rights: 1. Rights
of the person 2. Rights associated with the rule of law 3. Political rights
4. Economic and social rights 5. Rights of communities include self-determi-
nation and protection of minority cultures.677 In other words, what we discuss
as group rights is, in his view, part of his fift h category of human rights. Hence,
what has to be discussed here more generally is another important issue in the
discussion on group rights: it is the question of how group rights relate to hu-
man rights; if, for example, all group rights are to be considered human rights.678
The different views on this vary from categorical denial of the very possibil-
ity to clear support of it; however, various more moderate approaches between
these extremes exist as well which distinguish the two categories of rights but
view group rights as a close complement to human rights.679 Also this philosophi-
cal discussion has direct influence on international legislation as states like the
United States traditionally oppose group rights by stressing that the individual
human being is the central subject of human rights and by pointing out that in-
ternational human rights instruments generally are framed in terms of individ-
ual rights.680 There is reason to believe that the opposition against group rights
as human rights is even stronger than if they are not treated as human rights
Peter Danchin has recently referred to group rights in the same way when he called
them a generally under-theorized and contested area of international human rights
law. Danchin, Who Is the Human In Human Rights?, supra note 610, p. 112.
675 B. Kingsbury, Claims by Non-State Groups in International Law, 25 Cornell Inter-
national Law Journal (1992) 481, p. 494.
note 179, pp. 252253.
677 C. R. Beitz, Human Rights as a Common Concern, 95 American Political Science
Review (2001) 269, p. 271.
678 Cf. with reference to literature on the topic Jones, Human Rights, Group Rights,
and Peoples Rights, supra note 12.
679 Cf. ibid., pp. 8082. Some approach the topic of group rights with reference to the
three (or four) generations of human rights, cf. e.g. J. Griffin, Group Rights, in L.
H. Meyer et al. (eds.), Rights, Culture and the Law: Themes from the Legal and Politi-
cal Philosophy of Joseph Raz (1st edn., Oxford University Press, Oxford 2003). Th is
approach will not be followed in this work as that categorisation is unconvincing
and, in our context, strongly misleading. For a critique of the categorisation of hu-
man rights in generations, see e.g. M. Scheinin, Characteristics of Human Rights
Norms, in C. Krause and M. Scheinin (eds.), International Protection of Human
Rights: A Textbook (Institute for Human Rights bo Akademi University, Turku
2009), pp. 2225.
note 179, p. 256.
from the perspective of states681 as well as from scholars.682 And in fact, as Holder
has rightly argued with regard to a universal human right to self-determination,
states standing would be undermined in two ways:
First, it implies that indigenous peoples, national, ethnic, and linguistic minori-
ties, and other substate groupings have independent status under international law.
Second, it implies that such groups ought to be given independent status because of
their constitutive role in human dignity. Collective actors other than states get in-
dependent legal status; and they get this status through international human rights
law. This undermines states standing as the ultimate representative and authority
within an internationally delimited jurisdiction.683
In consequence, the issue is of some significance. Nevertheless, this discussion

will be kept very short as it is convincing to see group rights and human rights as
681 The strong opposition of states against collective human rights (or group human
rights as they are called in this work) can be exemplified by the votes and comments
made by them in the discussion of the draft resolution of the United Nations Decla-
ration on the Rights of Indigenous Peoples in the General Assembly on 13 September
2007. The representative of Japan stated: While the Declaration stipulates that some
rights are collective rights, it seems that the concept of collective human rights is not
widely recognized as a well-established concept in general international law, and
most States do not accept it. UN Doc. A/61/PV.107, p. 20. The representative of the
United Kingdom stated: I would like to recall here that, since equality and univer-
sality are the fundamental principles underpinning human rights, we do not accept
that some groups in society should benefit from human rights that are not available
to others. With the exception of the right to self-determination, we therefore do not
accept the concept of collective human rights in international law. UN Doc. A/61/
PV.107, p. 21. The representative of Sweden stated: The Declaration includes several
references to collective rights. The Swedish Government has no difficulty in recog-
nizing collective rights outside the framework of human rights law. However, it is
the firm opinion of the Swedish Government that individual human rights prevail
over the collective rights mentioned in the Declaration. UN Doc. A/61/PV.107, p.
24. Cf. also UN Doc. E/CN.4/Sub.2/1993/29, paras. 6869.
682 See e.g. J. Donnelly, Universal Human Rights in Theory and Practice (2nd edn., Cor-
nell University Press, Ithaca NY 2003), pp. 204224; cf. also J. Waldron, Can Com-
munal Goods be Human Rights?, in J. Waldron, Liberal Rights: Collected Papers
19811991 (Cambridge University Press, Cambridge 1993); considerable doubts are
also expressed by David Miller, see Miller, Group Rights, Human Rights and Citi-
zenship, supra note 5; but see e.g. Torbisco Casals, Group Rights as Human Rights,
supra note 573; M. Freeman, Are There Collective Human Rights?, 43 Political Stud-
ies (1995) 25; and B. Mello, Recasting the Right to Self-Determination: Group Rights
and Political Participation, 30 Social Theory & Practice (2004) 193.
683 Holder, Self-Determination as a Universal Human Right, supra note 210, p. 10.
156 Chapter 3
two distinct categories of rights;684 in other words, group rights are conceptually
unrelated to human rights and could still exist if there were no human rights.
Furthermore, providing group rights does not mean at the same time to provide
human rights or vice versa, there is no basis for such a conceptual connection.
Thus, as the topic of this work is the concept of group rights, conceptually there
is no need to investigate if group rights are (partly) at the same time also human
rights. In fact, it is argued here that the discussion would gain a lot from clearly
distinguishing the two topics although there might arguably be some overlap
between the two.685
Admittedly, a source of the confusion can be found in Article 1 of both hu-
man rights covenants, the CCPR and the CESCR, where the right to self-de-
termination is included; however, if this really means that this group right is a
human right is open for discussion.686 Moreover, to discuss group rights as if they
were all group human rights means to unjustifiably narrow the topic of group
rights and to focus exclusively on the exceptionally strongly contested subsump-
tion of some group rights to human rights; basically, the confusion between
group human rights and group rights is widespread.687 In fact, there is reason to
believe that this is the main reason for the emotionally loaded discussions and
the categorical opposition against group rights by many authors.
Although conceptually there is no need for further discussion of the topic,
some clarifications have to be made in this context in order to avoid pitfalls. First,
group rights are the general category and the part of it which overlaps with hu-
man rights is called group human rights.688 Second, rights in international law
can be of a very fundamental sort without being human rights; thus, to argue
that group rights are fundamental rights, it is then unnecessary to hold that they
are human rights at the same time.689 Third, it is true that human rights are fun-
damental rights qua human rights, but when discussing group rights we have
to acknowledge that only some group rights can be seen as fundamental rights;
hence, it is important not to discuss this topic from a categorical perspective,
but from the perspective of a concrete example of a group right like the groups
right to existence in the sense of the Genocide Convention.690 Possibly, some of
the controversy derives from the ignorance of this point, because to hold that the
684 Accord P. Jones, Group Rights, Stanford Encyclopedia of Philosophy (2008), <plato.
stanford.edu/entries/rights-group>, visited on 20 June 2010.
685 See generally e.g. Torbisco Casals, Group Rights as Human Rights, supra note 573.
686 and has been discussed: in favour, see e.g. Holder, Self-Determination as a Uni-
versal Human Right, supra note 210; against, see e.g. Donnelly, Universal Human
Rights in Theory and Practice, supra note 682, pp. 204224.
687 However, Jack Donnelly is a good example of distinguishing group rights and group
human rights and criticising exclusively the second one. See ibid.
689 For instance, not all jus cogens can be subsumed to human rights either.
just mentioned right to existence constitutes a human right would probably be

less controversial than to hold that the right to self-determination, or the right
to autonomy, or group rights in general, or some (not specifically named) group
rights, are human rights.691 However, it is open for discussion what should be un-
derstood as human rights too; is it just the rights as provided in the International
Bill of Rights? Is it just a part of it or even more? Or is there a kind of rationale,
like Kants categorical imperative, which might disclose human rights and in
consequence could mean that they do or do not cover the human rights accepted
by international law today? What should lead the interpretation, the letter of the
law or the spirit/philosophy of human rights? Arguments on group human rights
tend to switch easily between the levels of philosophy and law; in consequence, it
is very difficult to find common ground on the question of which group rights are
to be seen as human rights, if at all. Hence, not distinguishing these two topics
runs a high risk to get lost in metaphysical discussions which in fact add little to
the understanding of the legal category of group rights.
However, this should not lead to the conclusion that group rights which are
provided in international human rights treaties, not being accepted as apper-
taining to the category of group human rights, should not be monitored by the
respective treaty body(-ies).692 The discussion here is a philosophical and con-
ceptual one. The point is that one can disagree philosophically on whether an
existing group right is a human right and still accept that that right is provided
by a human rights treaty and, thus, subject to its provided implementation proce-
dure. In conclusion, the additional qualification of group rights as human rights
(group human rights) seems to be of minor legal importance.693
3.3. Concluding Remarks

The research question of this work is if the reluctance to provide group rights
in international law is justified. From what has been said so far, the reasons for
rejecting group rights in international law are often based on questionable ar-
guments and often only weakly connected to the realities of the existing group
rights in international law that we have discussed. Th is clearly implies ideological
reasoning which is unjustified according to our understanding of what justified
shall mean.694 In fact, the decision to provide group rights or not should, from a
pragmatic point of view, be based on an evaluation of which legal means would
691 For a more differentiated philosophical approach, cf. Torbisco Casals, Group Rights
as Human Rights, supra note 573.
692 I would like to thank Gudmundur Alfredsson for drawing my attention to this
point.
693 More essential will be the qualification of a specific group right as a fundamental
right, maybe even belonging to jus cogens and having erga omnes character.
694 See introduction.
158 Chapter 3
best tackle a problem rather than prejudices against such a means. Nevertheless,
although based on weak arguments, the resulting low provision of group rights
could itself still be justified but for other reasons. Be that as it may, in chapter 4,
it will not be the aim to find other reasons to justify the international law regime
as it stands; instead, the aim will be to outline an approach of international law to
groups which is more coherent and more sensitive to the needs of groups. Indeed,
this de lege ferenda proposal will be based on the legal principles of contemporary
law and will take the limitations of law in general and of international law specifi-
cally into account. Hence, instead of answering the question of the justification
for the reluctance to provide group rights in contemporary law or for their low
provision, the following de lege ferenda approach shall provide a more adequate
framework which would facilitate a more reasonable use of group rights in inter-
national law.
4. Reappraising the Concept of Group Rights in
International Law
For international lawyers, the challenge now is to rethink the most funda-
mental norms of our craft in order to devise appropriate legal responses to
the competing claims of states, ethnic groups, and individuals. In particular,
international lawyers must continue to debate the meaning and scope of self-
determination, the distinction between peoples and minorities and the rights
of each, and the proper role of outside actors in shaping the future of political
communities.
David Wippman695
After having discussed existing group rights in international law and their role
in chapter 2 and the general theoretical background in chapter 3, it is now time
to turn from the is to the ought, the desirability of certain group rights in in-
ternational law. The aim in this chapter will be to provide the framework for a
more pragmatic approach to the use of such rights which could significantly raise
the capability of problem-solving of international law. The discussion will take
place in light of the role and possibilities of law in general and of international
law more specifically; thereby experiences with the current system, as well as po-
sitions in the group rights discussion, will be taken into account which will help
to understand underlying needs and fears connected with the concept of group
rights. This will be important in order to establish, and in the long run to realise,
a more rational use of this legal means in international law. Hence, what follows
is neither free from problems nor does it fully reflect the lex lata; it is rather a de
lege ferenda inquiry based on the values protected by contemporary international
law as well as experiences with current approaches. It points towards one possible
strategy for reappraising group rights in international law in order to enhance the
capacity of the international community to handle challenges of group diversity
within states.
The focus will be on group rights related to governance, that is, on the ques-
tion of how state authority has to be applied with regard to different groups. This
limitation is mainly philosophical as arguably all discussed group rights existing
in international law are related to governance. However, the distinction needs
to be mentioned as conceptually group rights are not limited to such issues. The
reason for this focus is that group rights could possibly be of importance in inter-
national law, especially in this field.
Although it is correctly claimed that groups are constructs, they form part
of the social and political reality. Having the dilemma of difference in mind, the
question arises of how international law should treat groups as both focusing on
695 Wippman, Introduction, supra note 98, p. 7, footnotes omitted.

160 Chapter 4
them as well as ignoring them are approaches which inherently bear the danger
of serious drawbacks.696 Traditionally, international law emphasised state sov-
ereignty which meant that groups were an internal matter for states and thus
ignored. Indeed, states were black boxes represented by their governments and
sovereignty was, in reality, a right of governments to be on an equal footing with
other governments as well as to be free to treat their own populations how they
wanted. In consequence, international law was largely tacit about groups and did
not provide any group rights. Yet, substate groups gained some importance in
international law in situations where the sovereignty of a state was critical, as
well as in situations where a sovereign kin-state took up an issue for a specific
group and secured certain rights for it through an international agreement with
other states.697 The situation has changed to some extent as shown in chapter 2;
even so, on different levels, groups face opposition when claiming their rights
in international law. In the following section underlying reasons connected with
political and legal philosophy will be discussed and answers searched, or at least a
framework for answers, as to the role of international law with regard to substate
groups.
This focus on political and legal philosophy is for the following reason:
many commentators argue that group rights in international law are rare mainly
because states were reluctant to lose power and give up their dominant position
in international law.698 This may be true to some extent, but it falls short of ex-
plaining why states have given up some of their power with regard to individual
human rights. In fact, not much of comparable value has happened in the case of
group rights.699 From the general overview of the discussions surrounding and
696 Governmental neutrality may be the best way to assure equality, yet governmental
neutrality may also freeze in place the past consequences of differences These
controversies enact the political dramas of a diverse society committed to equality
and to pluralism. Minow, Making All the Difference, supra note 634, p. 21.
697 As such agreements are bilateral or regionally limited multilateral agreements
they have not been discussed in this work which focuses on the universal rights of
groups. For a discussion of two such examples, South Tyrol and the land Islands,
see e.g., P. Hilpold, South Tyrol: Arrangements in International and Constitutional
Law, in D. Threr and Z. Kedzia (eds.), Managing Diversity: Protection of Minori-
ties in International Law (Schulthess Juristische Medien, Zrich 2009); and Suksi,
What Can We Learn From the land Islands Case?, supra note 278.
698 Cf. also G. Alfredsson, Minority Rights: Norms and Institutions, in C. K. Boyle
(ed.), New Institutions for Human Rights Protection (Oxford University Press, Ox-
ford 2009), p. 176.
699 For a useful discussion of the different phases from 1940 to 2001 in which peoples
rights were provided or not, see P. Alston, Peoples Rights: Their Rise and Fall, in P.
Alston (ed.), Peoples Rights (Oxford University Press, Oxford 2002). Although just
one category of group rights, this development seems representative for other group
rights as well; in fact, the difference to the development of individual human rights
in the same period of time seems obvious.
Reappraising the Concept of Group Rights in International Law 161
influencing the group rights debate, the support for group rights is not even close
to as strong and uniform as that for individual human rights. Indeed, the debate
reveals that group rights touch upon deeply rooted fears which are expressed
in many contemporary theories of law, society and the state.700 Hence, if group
rights should ever get a stronger place in international law, these concerns need to
be dispelled on a theoretical level first. A first step in that direction is attempted
in the following on the basis of mainly pragmatic reasons.
4.1. Some Key Issues

Let us start with some issues which have turned out to be of special significance
in the context of group rights in international law. It will be important to con-
sider them when reappraising the concept of group rights in international law in
order to take the main criticisms into account and enable broader support for the
proposal.
4.1.1. The Inadequacy of A Priori Approaches

Empirical evidence tends to support the view that the recognition of group
rights can in certain situations be an adequate and even an indispensable in-
strument to promote the welfare of certain vulnerable groups and their mem-
bers.
Rainer Grote701
This first issue can be seen as a preliminary remark based on the discussion in
chapter 3.2 which is a precondition for the following discussion. The aim of re-
appraising the concept of group rights in international law discussed in the fol-
lowing is a more pragmatic approach of international law to group rights, an
approach which is led by reason rather than ideology. By contrast, claims for
a purely individualistic or collectivistic approach of international law give an a
priori answer to the question of which category of rights would best handle any
situation where a legal answer is required. Such a priori approaches must be re-
jected for the pragmatic reason that it is the specific situation with its specific
demands of law that should be the guiding principle rather than an ideologically
inspired conceptual restraint. Accordingly, the legislator should be open to solu-
tions through individual rights as well as group rights.
In such a vein, Anderson for example has criticised the biased focus of inter-
national law on international criminal law and the criminal liability of individu-
als at the expense of the insight that war is a corporate activity, fought between
700 See also chapter 3.2.4.

701 Grote, Minority Rights: Trends and Challenges, supra note 172, p. 227.
162 Chapter 4
political communities and by groups.702 In his words: Overemphasis upon liabil-

ity as the mechanism of enforcement risks losing the connection to legitimacy
upon which the law of armed conflict, and adherence to it, perhaps mostly rests.
Tribunals are, however, about liability.703 He goes on: Moreover, apart from li-
ability and legitimacy, the emphasis upon individual liability takes the emphasis
away from where it properly should be, at least insofar as understanding the na-
ture of the social activity is concerned upon groups.704 And Anderson firmly
advocates for a more realistic view of the phenomenon of war and, consequently,
a more adequate approach to the laws of war:
Converted as they have been over the course of the human rights epoch into a spe-
cies of individual human rights, portable by human beings individually rather than
as an assignment and concession of group membership, the laws of war have both
gained and lost. Gained because, well, rights to life and liberty are surely individual
endowments, even in their expression in the lex specialis of war. Lost, however, be-
cause war is an activity between groups, not individuals, and a law predicated upon
individual rights misapprehends something when it moves to disregard the ques-
tion of sides, groups, and parties to a conflict in favour of seeing it as a matter of
individual rights and individual liability. It is a legal and moral construction which
arises from our conception of rights valuable and right for many reasons but one
which leads to a misgauging of the nature of war and the activity in the way that,
in fact, many if not most of the participants, including the civilians, understand
themselves to be engaged upon.705
In fact, with regard to the events during the dissolution of Yugoslavia, Vrady
holds that it is abundantly clear that the targeted victims are precisely the mi-
nority groups, rather than the citizens as individuals.706 And in a more general
way he comes to the conclusion that [t]he denial of bilingual road signs, place
names, and minority schools can hardly be conceived as anything but an attitude
and a gesture towards a group; it would be quite difficult to structure opposition
against such denial on the basis of individual rights.707
Such examples are an expression of the weaknesses of a purely individu-
alistic approach when it comes to groups, their rights and needs. Again, if we
think of the reparations for mass crimes in front of the ICC, they can only be
702 See K. Anderson, The Rise of International Criminal Law: Intended and Unintend-
ed Consequences, 20 European Journal of International Law (2009) 331, p. 346.
703 Ibid., p. 348.
704 Ibid.
705 Ibid., pp. 348349.
706 T. Vrady, Minorities, Majorities, Law, and Ethnicity: Reflections of the Yugoslav
Case, 19 Human Rights Quarterly (1997) 9, p. 38.
707 Ibid., p. 39.
made against a convicted person708 which, as Ferstman and Goetz rightly ar-
gue, may prove to be limiting, as it will often be collectives or other groupings
(e.g., governments, rebel movements, criminal enterprises, companies) that have
benefited financially from the commission of certain crimes carried out by the
defendants.709 Furthermore, the exclusion of group claims even in cases of viola-
tions of group rights do not seem to be based on rational grounds.710 If these are
examples of a priori approaches does not have to be established here, as they show
at least that there are situations which seem to suggest the use of group rights
and where an a priori decision to use only individual rights would therefore be
inadequate.711
4.1.2. Exclusive Nationalism

Nationalism is a key issue in understanding a large set of objections against group
rights. Two important issues need to be briefly discussed here: first, the problem-
atic nationalist politicisation of language, culture and religion; second, the ques-
tionable distinction between nationalism of groups and nationalism of states.
Nationalism politicises such things as culture, language and religion,712 at
which claims of groups typically aim. In fact, sometimes groups claim not to be
discriminated against for such reasons, sometimes they want to have rights to
organise themselves with regard to such issues, and sometimes they want to be
able to authoritatively make decisions on such matters. Typically, such claims of
groups are understood as claims to (political) power and in this regard, the ap-
proach taken by international law does not constitute an exception. However, to
treat general claims to political power the same as claims to have a say on issues
concerning ones own religion, language or culture is to follow this nationalist
708 C. Ferstman and M. Goetz, Reparations before the International Criminal Court:
The Early Jurisprudence on Victim Participation and its Impact on Future Repara-
tions Proceedings, in C. Ferstman et al. (eds.), Reparations for Victims of Genocide,
War Crimes and Crimes against Humanity: Systems in Place and Systems in the Mak-
ing (Martinus Nijhoff Publishers, Leiden 2009), p. 316.
709 Ibid.; of course, these persons will often not have the requisite fi nancial resources
to make good on the awards, see ibid.
710 See also chapter 4.2.4.
711 An a priori rejection of individual rights seems to be unrealistic today; however, it
would have to be subjected to the same criticism.
712 These ideas on nations and nationalism, which still predominate in the current dis-
cussion, have many evident affinities with Webers political-sociological approach.
Although B. Anderson and Hobsbawm are Neo-Marxists in their theoretical pre-
dilections, and Gellner is Durkheimian or Parsonian thinker, they all share with
(late) Weber the basic idea of culturalist thinking on nationalism that nationalism
politicizes the culture by striving to establish a territorial political framework for
people a with shared higher (literary) culture. Norkus, Max Weber on Nations and
Nationalism, supra note 102, pp. 410411, footnotes omitted.
164 Chapter 4
logic. In fact, it is this logic which lies at the root of so many conflicts today, and it
is highly regrettable that international law has not distinguished these claims in
its approach to groups.713 Hence, the most important question for pluralist states
to answer is: who should decide on cultural, religious and linguistic issues?714
In the previous discussion on nationalism and liberalism it was argued that
contemporary states do not only live up to liberal ideals but are also shaped by na-
tionalist ones;715 indeed, the choice of the polity in which liberalism shall flour-
ish is typically based on nationalism. Thus, it is disputably biased to argue against
substate groups that they are nationalist separatists, whereas the ones who agree
with the choice of polity are liberals.
As mentioned before, nationalism according to Gellner is primarily a
political principle, which holds that the political and the national unit should
be congruent.716 This definition has been largely accepted and reflects a main
feature of nationalism.717 However, Norkus has argued that this understanding
is arbitrary in the way that nationalism is only used for nations without states
(substate groups): Characteristically, the author of one of the recent modernist
works on nationalism stipulates that in the cases where boundaries of the na-
tion and governance unit are already congruent, there is no nationalism, but
patriotism.718 Norkus concludes that,
[i]n this way, American, French or other nationalisms of great nations are ruled
out of reality by a feat of definition, and the concepts of nation and nationalism
are turned into conceptual tools, which are relevant only to explain happenings in
all kinds of new Ruritanias (in the Balkans) to be looked upon with enormous
condescension.719
Indeed, it is unconvincing to argue that it is morally better to defend borders on

national reasoning than to claim new borders on the same reasoning. Moreover,
as Ramet rightly argues, there are hardly any good reasons to base boundaries on:
[O]ne might propose to draw state borders on the basis of more practical consid-
erations, for example, natural economic zones, traditional or historical or existing
borders, dynastic claims, and so forth. But even that project is still founded on the
713 This issue will be addressed in chapter 4.2.3 in more detail.

714 It deliberately ignored here that these issues would need clarification and that it is
another question, who should have the authority to clarify them.
716 Gellner, Nations and Nationalism, supra note 603, p. 1.
717 Cf. Norkus, Max Weber on Nations and Nationalism, supra note 102, p. 412.
718 Ibid.; he refers to M. Hechter, Containing Nationalism (1st edn., Oxford University
Press, Oxford 2001), p. 17; for Michael Hechters discussion of types of national-
isms, see ibid., pp. 1517.
719 Norkus, Max Weber on Nations and Nationalism, supra note 102, p. 412.
assumption that the drawing of boundaries dividing states is in and of itself not
merely an unavoidable practical matter but positively desirableand the latter has
(as far as I know) never been proved.720
In fact, nationalism is as weak a basis for claims of groups as it is for states. Hence,
from a philosophical point of view, there is no convincing argument to base the
importance of state borders as boundaries between entities on neither to create
new ones nor to keep the old ones.721 In consequence, there is no convincing basis
as to treat the people of a state as a unit when parts of this unit are trapped in a
constant minority situation and systematically discriminated against. Of course
there are political and structural reasons for the international state community
to treat state sovereignty and territorial integrity as crucial matters, the most im-
portant being the stability of the international system. Nevertheless, state nation-
alism that goes so far as to systematically discriminate against groups can in fact
amount to a threat to the international community and, as such, is not tolerable
either.
4.1.3. Group Rights and the Public-Private Distinction

That group exercise of authoritative powers entails loss of individual autonomy
is undeniable. If the United States Congress decides whether human cloning
is permissible, individuals are denied that choice That group power is exer-
cised in derogation of individual autonomy is tautologically true. It is equal-
ly obvious, however, that we have no problem with governmental authority
and group rule in a myriad of contexts. Philosophical hand-wringing over
the inevitable loss of individual autonomy to group power is, thus, beside the
point. In an organized society, groups will prevail in some circumstances. The
question, thus, is not whether individual autonomy should, in some idealized
sense, be lost but whether a particular group in a particular context should
be afforded this power.
Laura S. Underkuffler722
One thing that has become clear from the discussion on group rights is that it
focuses to a large extent on group human rights (group rights as human rights),
and accordingly, has mainly paid attention to the relation between individual
rights and group rights. For this reason, the major problem was the question of
how to prevent groups from oppressing individuals. The broader background of
this has already been shown and discussed above. However, as seen from the ex-
720 Ramet, Whose Democracy?, supra note 602, p. 176.

721 For a discussion of some input from liberalism as to this question, see however Bu-
chanan, The Making and Unmaking of Boundaries, supra note 601.
722 L. S. Underkuffler, Human Genetics Studies: The Case for Group Rights, 35 The
Journal of Law, Medicine & Ethics (2007) 383, p. 390.
166 Chapter 4
amples of the arguably 723 existing group rights in international law, group rights
are in most cases constituted to protect groups against suppression from states
and other groups. Hence, despite its general importance, the reduction of the
problem of group rights to its relation to individual rights seems misconceived
in most cases. In fact, genital mutilation can be used as an argument in discuss-
ing the weaknesses in the implementation of human rights and has hardly any
value in the discussion on group rights.724
Traditionally, human rights and liberalisms as well as common laws focus
on individuals have had a huge influence on international law. Indeed, the liberal
idea that the state serves the interests of its citizens has become more and more
accepted. Classically, liberal states are imagined to be built on a social contract
between their citizens, which explains how it could be that individuals gave up
some of their powers to the state; as such, it constitutes an expression of the hi-
erarchy between individuals and society/state.725 Human rights can also be un-
derstood in this way as the ground on which it is forbidden for states to enter.726
Common law actually shares this focus and was criticised already by Pound as it
723 In this work, different views on what rights and group rights are have been dis-
cussed. In the following, a broad understanding which includes all group rights if
justifiable by at least one of the discussed conceptions of rights. The reason is that
none of these conceptions has reached such a broad acceptance that it would be
justified to exclude the other theories. However, as showed in the previous chapter,
the will theory of rights only exceptionally would accept that the group rights dis-
cussed in this work are really rights.
724 In this sense, Neus Torbisco Casals argues that it is inconsistent to argue that since
there are certain profoundly non-liberal groups that maintain practices in conflict
with human rights, we should reject the idea of group rights altogether. Th is argu-
ment assumes that our capacity for reasoning is extremely limited. In other words, it
presupposes, even before starting the discussion, our inability to draw the pertinent
distinctions between different kinds of demandsthose that are more and those
that are less justified. On the other hand, the common habit of invoking the most
suspicious and controversial practices (genital mutilation, polygamy and so on) as
paradigmatic examples of the demands of ethnic or religious minorities is not only
reductionist, but also symptomatic of the lack of consideration for the claims of the
most moderate members of those groups. The existence of dubious customs, clearly
incompatible with all possible interpretations of basic human values, and the need
to fight them should not be used as a reason to reject the legitimacy of all claims for
cultural group rights. Torbisco Casals, Group Rights as Human Rights, supra note
573, p. 231.
725 Cf. Radbruch, Rechtsphilosophie, supra note 284, p. 226.
726 Similarly, Jeremy Waldron argues that [f]irst and second generation rights both
stand in complicated relation to the idea of community and collective action; but
at bottom both express the importance of individual interests in relation to those
ideas. J. Waldron, Communal Goods as Human Rights, in J. Waldron, Liberal
Rights: Collected Papers 19811991 (Cambridge University Press, Cambridge 1993), p.
344.
is concerned, not with social righteousness, but with individual rights. It tries
questions of the highest social import as mere private controversies between John
Doe and Richard Roe. And this compels a narrow and one-sided view.727
Thinking of the distinction between public law and private law, this focus
of liberalism on individuals has entailed a dominance of private law which goes
hand in hand with the idea of a minimal state and public law as a very limited
legal frame. That the distinction between public law and private law has never
been strict neither temporary nor substantively becomes clear from the just men-
tioned human rights which are, to a large extent, considered part of public law.728
Nevertheless, this distinction might add to the discussion of group rights as will
be argued next.
In the above discussion on nationalism and liberalism it was argued that
the choice of the polity in which liberalism shall flourish is based on national-
ism and that it is biased to argue against substate groups that they are nationalist
separatists, whereas the ones who agree with the choice of polity are liberals. Now
yet another, however connected, argument can be introduced. In short, it is that
our focus on human rights matters, and on liberalism as well, as the common
law background of many international lawyers has led us to neglect the public
law sphere in international law which may be the main field of group rights. This
needs more explanation.
Radbruch has presented the distinction between public law and private law
as conceptually inherent in the notion of law and, hence, called them a priori le-
gal terms (apriorische Rechtsbegriffe).729 But what should be understood as public
law and what as private law? Answers to these questions will mainly depend
727 R. Pound, Do We Need a Philosophy of Law?, 5 Columbia Law Review (1905) 339,
p. 346. In another article he argues that this common law-approach is limited when
it comes to broader social questions, see R. Pound, The Causes of Popular Dissatis-
faction with the Administration of Justice, 29 Annual Report of the American Bar
Association (1906) 395, pp. 403404.
728 For an interesting discussion of changing understandings of public and private in
the context of the transition from formerly communist states to democracies, see S.
Ramet, Reconfiguring the Polis, Reconceptualizing Rights: Individual Rights and
the Irony of History in Central and Southeastern Europe, 10 Perspectives on Euro-
pean Politics and Society (2009) 87.
729 Apriorische Rechtsbegriffe mssen aber aus dem apriorischen Begriff des Rechts
ableitbar sein. In der Tat ist die Unterscheidung privaten und ffentlichen Rechts im
Rechtsbegriff selber verankert. Mit dem Recht als einem Inbegriff positiver Normen
ist das Vorhandensein einer normsetzenden Stelle vorausgesetzt. Sollen aber die von
ihr fr das Zusammenleben der Einzelnen gesetzten, also privatrechtlichen Stze
dem Daseinsgrunde alles positiven Rechtes: der Rechtssicherheit wirklich Genge
tun, so mu auch die normsetzende Stelle selber an sie gebunden sein diese Bin-
dung der normsetzenden Stelle gegenber den Normadressaten, eine Bindung im
Verhltnis der ber- und Unterordnung, ist aber notwendig ffentlichen Rechts.
Radbruch, Rechtsphilosophie, supra note 284, p. 225.
168 Chapter 4
on how collectivist or individualist ones political views are; generally, social-

ists and fascists will predominantly introduce public law whereas liberals will,
as argued above, predominantly turn to private law.730 Today, however, the large
part of states are somewhere in between the extreme positions just presented, as
even very liberal states are far from being as minimalist as they might appear in
theory.
Now what does this have to do with group rights? Th inking of the examples
of existing group rights in international law as discussed in chapter 2, it can be ar-
gued that these group rights mainly belong to the public law-sphere, as these ex-
amples set minimal standards for states on how to treat groups on their territory,
as well as filling gaps when state powers have decreased and groups have started
to act as (partial) sovereigns. In other words, group rights appear to be relevant
with regard to who should be sovereign and how the public power should be
distributed within a state.731 The argument here is that, although having omitted
clear criteria on how to decide what should be understood as public and what
as private, we probably would agree on these issues as being part of public law.
It is this which is irritating when reading papers on group rights which discuss
at length if groups have moral value and if they are compatible with individual
human rights, only to conclude by generalisation that group rights are a miscon-
ception and the provision of group rights is potentially dangerous. Of course, if
a specific group right would be a threat to individual human rights it should not
be provided, but the same is true for individual rights. In fact, it is disturbing that
the distribution of rights from the central state to substate groups is countered on
a philosophical level with this kind of argument as the state, arguably a collective,
already has these rights. Hence, the rights are, in such cases, taken away from
states and not from individuals; or, to put it another way, group rights are often
on the distribution of existing state power and not on creating new collective
powers in substitution of individual powers. Indeed, in such cases, individuals
can still defend their individual rights against the collective, but the collective
now may, to some extent, be the group instead of the state.
730 Cf. ibid., pp. 224228.

731 In the same vein, with regard to the right of self-determination, Cindy Holder criti-
cises that derivative interpretations of that right do not take into account that at
its heart, self-determination is about governance, and about the scope of state-
level authority and the range of activities in which state-level decisions may override
community-level ones. Holder, Self-Determination as a Universal Human Right,
supra note 210, p. 9. She is in favour of a universal view which does not, as she
argues, inflate the rights of groups to match those of states but instead it deflates
the rights of states to make room for groups. Ibid., p. 10.
4.1.4. The Need for Locally-Designed Solutions: Political versus

Legal Sphere
There is no simple formula to write into a code of international law that will
solve all problems One may ask whether the language of rights, with its his-
torical associations of the absolute and uncompromising, with its abstraction
from all question of balancing competing interests, is at all suitable for guiding
the adjustments and compromises needed in any realization of the ideal of the
preservation of cultural identities.
David Makinson732
What if claims made in the name of group rights are not the best way to protect
groups and individuals?733 Although such questions are anathema to the activ-
ists promoting group rights, the global ascendancy of the rights idiom demands
careful scrutiny.734 Hence, the focus in the following will be on criticisms against
group rights being legal and not political; basically, one of the main underly-
ing claims is that the need of groups is typically a locally-designed solution in-
stead of a right to a rather abstract universal legal solution for any situation of
any group worldwide. In their inquiry on the establishment of the rule of law
in states following military interventions, Stromseth/Wippman/Brooks came to
the conclusion that one-size-fits-all approaches are undesirable and most likely
to fail.735 What they argue in terms of process is arguably true mutatis mutandis
for finding long-term solutions for group governance in general. However, inter-
732 Makinson, On Attributing Rights to All Peoples: Some Logical Questions, supra
note 99, p. 62.
733 I am paraphrasing Kenneth Cmiel writing: What if claims made in the name of
universal rights are not the best way to protect people? K. Cmiel, The Recent His-
tory of Human Rights, 109 The American Historical Review (2004) 117, p. 134.
734 In this sense with regard to human rights, see E. Hafner-Burton and J. Ron, See-
ing Double: Human Rights Impact through Qualitative and Quantitative Eyes, 61
World Politics (2009) 360, p. 362.
735 They argue that [e]very society is different, and there is no one size fits all approach
to creating rule of law cultures. Building on traditional dispute-resolution mecha-
nisms may be an excellent idea in societies in which such mechanisms are popular
and seen as credible and fair; in another society, however, traditional mechanisms
may be viewed by many as part of an unjust hierarchy, and interveners who become
associated with these mechanisms may quickly lose credibility. Similarly, support-
ing a judges association may be just the right approach in a society with capable,
ethical judges who are respected by other stakeholders, but it may backfire if judges
are viewed as corrupt, incompetent, or complicit in abuses we wont conclude
by offering a list of best practices; what is best in one context may be a disaster in
another setting. J. E. Stromseth et al., Can Might Make Rights?: Building the Rule of
Law after Military Interventions (Cambridge University Press, Cambridge 2006), p.
340.
170 Chapter 4
national treaties, as well as most of the literature, arguably concentrate on uni-

versal prototypical solutions which are often static, one-size-fits-all, and usually
formulated in terms of rights.736 The use of law to internationally frame group
governance within states needs critical discussion.
The question arises if claiming group rights does not narrow possible so-
lutions too much by framing it in terms of rights. This criticism is relevant as
there is some evidence that non-legal approaches can be quite successful.737 For
instance, Slaughter writes that claims of group rights could be understood as the
further colonization of the political by the legal.738 In other words, legal tools are
being used instead of approaching the topic in its more natural political way.739
736 However, international courts have been more willing to reflect concrete cultural
circumstances in more recent cases, cf. J. Ringelheim, Integrating Cultural Con-
cerns in the Interpretation of General Individual Rights: Lessons from the Inter-
national Human Rights Case Law (2008) UN Doc. E/C.12/40/4, <www2.ohchr.org/
english/bodies/cescr/docs/discussion/JulieRingelheim1.pdf>, visited on 27 April
2009.
737 In this sense, Jane Wright argues that [a] more constructive dialogue between ma-
jority and minority may be achieved if attention is focused upon the nature of plu-
ralistic democracy and the measures required to achieve it, rather than pursuing the
recognition of collective minority rights as part of international human rights law.
Sometimes there is no alternative to hard law, but the soft approach exemplified by
the OSCE with its emphasis on partnership, dialogue, and cooperation may be the
better way forward in what is an extremely troublesome issue in the realm of minor-
ity rights. To focus on the states obligation, rather than the individuals rights, may
be the political expedient demanded here; whichever perspective is adopted, the
result achieved should, in fact, be the same. Wright, Minority Groups, Autonomy,
and Self-Determination, supra note 270, p. 629; for a study on how social norms can
develop and gain importance similar to legal norms, sometimes with even greater
impact, see e.g. R. C. Ellickson, Order Without Law: How Neighbors Settle Disputes
(Harvard University Press, Cambridge MA 1991); similarly, it was stated that in
situations after a military intervention, the rule of law in its broad sense is also
strengthened by programs that offer conflict resolution services such as mediation to
enable people to resolve disputes without using formal legal institutions. In societies
with strong preexisting traditions of informal dispute resolution, these programs
may often be most effective if they can be tied into credible existing dispute resolu-
tion methods, involving, as appropriate, religious or tribal figures, for instance.
Stromseth, Wippman and Brooks, Can Might Make Rights?, supra note 735, p. 341.
738 Slaughter, Pushing the Limits of the Liberal Peace: Ethnic Confl ict and the Ideal
Polity, supra note 601, p. 129.
739 Similarly, Fernando R. Tesn comes in a critical article about group rights on a
classical liberal analysis of the concept of right to the conclusion that collective
rights are not rights but aggregative social policies considered particularly weighty
by their supporters. Tesn, Ethnicity, Human Rights, and Self-Determination, su-
pra note 55, p. 105. (Fernando R. Tesn is using the expressions group rights and
collective rights as synonyms, cf. ibid., p. 101) Although he reduces the discussion
It is clear that the boundary between the legal and the political spheres is
fluid, one could even discuss whether boundary is an adequate term in this con-
text, as the political and the legal spheres overlap and by far are not strictly dis-
tinct from each other. Law ideally grows and develops on a political (democratic)
ground and can often be understood as political itself.740 After all, law is a tool
that is intended to realize social goals.741 In some ways, law is the strongest politi-
cal language, and rights are its (valid)742 claims.
In fact, there is a tension between the extremes of democracy on the one side
and non-negotiable rights (meant as guarantees or trumps) on the other.743 This
becomes apparent when it comes to direct democracy744 or radical democracy.745
Liberal thinkers tend to uphold the importance of such (individual) guarantees
and to secure them through the legal system, especially courts. The same can be
said for many lawyers who reflect on problems arising for minority groups their
answers may be open in some way, but at the same time they are often restricted
on rights quite a lot and coming close to a tautological conclusion, he also points to
the sticking out of group rights into the political sphere.
740 Cf. M. Koskenniemi, The Effect of Rights on Political Culture, in P. Alston (ed.), The
EU and Human Rights (Oxford University Press, Oxford 1999).
741 A. Barak, The Role of a Judge in a Democracy, in S. Breitenmoser et al. (eds.), Hu-
man Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber
(Dike Verlag; Nomos, Zrich, Baden-Baden 2007), p. 958.
742 Cf. on rights as valid claims J. Feinberg, The Nature and Value of Rights, in J. Fein-
berg, Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princ-
eton University Press, Princeton NJ 1980).
743 In an interesting article Jeremy Waldron has discussed problems arising from dis-
agreements of society about what is to be done. He has criticised the emphasis of
political philosophy on rights and justice given the inevitability of disagreement
a theory of justice and rights needs to be complemented by a theory of authority.
Since people disagree about what justice requires and what rights we have, we must
ask: who is to have the power to make decisions, or by what processes are decisions
to be taken, on the practical issues that the competing theories of justice and rights
purport to address? J. Waldron, A Right-Based Critique of Constitutional Rights,
13 Oxford Journal of Legal Studies (1993) 18, pp. 3132. He discusses in the following
the possible dissonance between what one takes to be the just choice and what one
takes to be the authoritative choice in political decision-making (ibid., p. 33) and
pleads to trust in a (democratic) political decision-making.
744 For instance, think of the limiting role of fundamental rights, as e.g. protected by the
ECHR, for the Swiss (semi-)direct democracy.
745 Cf. Chantal Mouffe: There is, no doubt, a need to secure pluralism, individual
rights and minorities against a possible majority tyranny. But the opposite danger
also exists, of thereby naturalizing a given set of liberties and existing rights, and at
the same time buttressing many relations of inequality. The search for guarantees
can lead to the very destruction of pluralist democracy. C. Mouffe, The Return of
the Political (Verso, London, New York 2005), p. 151.
172 Chapter 4
to the legal framework as their solutions are usually rights.746 All in all, the choice
of a judge in a court instead of a political process of giving and taking is not a
politically neutral one747 and may not always be the best one either.748
Let us discuss criticisms which were made against rights in general, and hu-
man rights in particular, and which seem to be applicable to the group rights dis-
cussion as well, if not even more strongly. For instance, in his short list of prag-
matic worries and polemical charges Kennedy argues that by occupying certain
fields, human rights might implicitly or explicitly delegitimise other emancipa-
tory strategies and that [t]o the extent emancipatory projects must be expressed
in the vocabulary of rights to be heard, good policies that are not framed that
way go unattended.749 The impoverishment of rights talk was already criticised
746 Though the shortest, the League of Nations period is significant due to the impor-
tance given to the discourse, and the legalistic manner in which protection was pro-
vided to clearly defined minority groups. Castellino, The Protection of Minorities
and Indigenous Peoples in International Law: A Comparative Temporal Analysis,
supra note 170, p. 397. We can agree on the importance of the League of Nations pe-
riod for the discussion of minority rights; however, is the legalistic manner of the
provision of minority protection a value in itself?
747 Judges play an essential role in human rights law, because human rights norms
tend to be formulated in general terms, and in case of a conflict between the par-
ties on how a norm should be interpreted in a specific case, the judge will have the
final say giving a key role to judges is not a politically neutral choice, and the
ideal judge that human rights law has in mind, may not materialise in reality. K.
d. Feyter, In Defence of a Multidisciplinary Approach to Human Rights, in K. d.
Feyter (ed.), The Tension Between Group Rights and Human Rights: A Multidisci-
plinary Approach (Hart, Oxford 2008), p. 18.
748 To provide a democratic justification for the judges prevailing, one has to show
not only that they have democratic credentials but that they have a better demo-
cratic claim than that asserted in the legislative action in question. Waldron, A
Right-Based Critique of Constitutional Rights, supra note 743, p. 44; again, with
regard to problematic cultural practices, Helen Stacy argues that tools other than
just criminal law should be used if the result should be sustainable. Cf. H. Stacy,
Criminalizing Culture, in L. May and Z. Hoskins (eds.), International Criminal
Law and Philosophy (Cambridge University Press, Cambridge UK, New York 2010).
749 D. Kennedy, The International Human Rights Movement: Part of the Problem?,
15 Harvard Human Rights Journal (2002) 101, p. 108. This finding is supported by
results of recent studies in international law; discussing research findings on the
topic, Emilie Hafner-Burton and James Ron conclude that the spread of rights
language among activists in the global South is remarkable, as qualitative scholars
such as Bob, Merry, Hertel, and others document. International relations theorists
often focus on state discourse, but these three key studies highlight the popularity
of rights language at the activist grass roots. Social justice advocates are increasingly
framing their struggles in terms of human rights Importantly, analysts should
refrain from criticizing on normative grounds activists who instrumentalize rights
talk; after all, they are merely responding rationally to incentives created by well-
intentioned foundations, government aid agencies, and activists in the global North.
by Glendon who argues that talk of rights in its absoluteness risks becoming a
mere substitute for trust and mutual accommodation,750 issues which are crucial
in the context of group governance. In a similar vein and also similarly to the
above mentioned citation by Slaughter, Koskenniemi argues that human rights
As Bob, Merry, and Hertel all note after close engagement with ngos in the global
South, activists who ignore the latest international fashion risk being outstripped
by their more norm-savvy counterparts. Since international attention can make or
break an organization, the ability to skillfully deploy rights language may be cru-
cial to a groups continued survival. The global diff usion of human rights, in other
words, is produced both by Southern demands for justice and by Northern supplies
of funds, attention, and legitimacy. Hafner-Burton and Ron, Seeing Double: Hu-
man Rights Impact through Qualitative and Quantitative Eyes, supra note 734, pp.
369370, footnotes omitted. The studies referred to are C. Bob, The Marketing of Re-
bellion: Insurgents, Media, and International Activism (Cambridge University Press,
Cambridge UK, New York 2005); S. E. Merry, Human Rights and Gender Violence:
Translating International Law into Local Justice (University of Chicago Press, Chi-
cago 2006); and S. Hertel, Unexpected Power: Conflict and Change among Transna-
tional Activists (Cornell University Press, Ithaca NY 2006).
750 She reasons that [o]ur rights talk, in its absoluteness, promotes unrealistic expecta-
tions, heightens social conflict, and inhibits dialogue that might lead toward con-
sensus, accommodation, or at least the discovery of common ground. In its silence
concerning responsibilities, it seems to condone acceptance of the benefits of living
in a democratic social welfare state, without accepting the corresponding personal
and civic obligations. In its relentless individualism, it fosters a climate that is in-
hospitable to societys losers, and that systematically disadvantages caretakers and
dependents, young and old. In its neglect of civil society, it undermines the princi-
pal seedbeds of civic and personal virtue. In its insularity, it shuts out potentially
important aids to the process of self-correcting learning. All of these traits promote
mere assertion over reason-giving. M. A. Glendon, Rights Talk: The Impoverish-
ment of Political Discourse (Free Press, New York 1991), p. 14; in a similar vein with
regard to human rights, David Kennedy argues that the human rights movement
intensifies the sense of entitlement in individuals and groups at great cost to their
ability to participate in collective political life and to their understanding of own
lives as part of a more diverse community. Hence, in the end human rights confl ict
and discourage politics among right-holders: Encouraging each person and group
wishing to be free to tally the rights he/she/it holds in preparation for their assertion
against the state reduces inter-group and inter-individual sensitivity. In emancipat-
ing itself, the right holder is, in effect, queue jumping. Recognizing, implementing,
enforcing rights is distributional work. Encouraging people to imagine themselves
as right holders, and rights as absolute, makes the negotiation of distributive ar-
rangements among individuals and groups less likely and less tenable. There is no
one to triage among rights and right holders-except the state. The absolutist legal
vocabulary of rights makes it hard to assess distribution among favored and less
favored right holders and forecloses development of a political process for tradeoffs
among them, leaving only the vague suspicion that the more privileged got theirs
at the expense of the less privileged. Kennedy, The International Human Rights
Movement: Part of the Problem?, supra note 749, pp. 112113.
174 Chapter 4
might often change to something quite technocratic and opposite from political
culture.751 Again, Kennedy criticises that human rights generalise too much and
provide one-size-fits-all solutions instead of trying to find particularised suitable
solutions, a particularly weighty argument in the context of group rights after
what has been discussed so far.752 He goes on to claim that instead of articulat-
ing problems in political terms and solutions in legal terms, the opposite should
be the case:753 As liberal Western intellectuals, we think of the move to rights as
an escape from the unfreedom of social conditions into the freedom of citizen-
ship, but we repeatedly forget that there is also a loss.754 The loss he sees is in the
lacking experience of belonging, of the habit of willing in conditions of inde-
terminacy, innovating collectively in the absence of knowledge, unchanneled by
751 In fact, he concludes that while the rhetoric of human rights has historically had a
positive and liberating effect on societies, once rights become institutionalized as a
central part of political and administrative culture, they lose their transformative
effect and are petrified into a legalistic paradigm that marginalizes values or inter-
ests that resist translation into rights-language. In this way, the liberal principle of
the priority of the right over the good results in a colonization of political culture
by a technocratic language that leaves no room for the articulation or realization of
conceptions of the good. Koskenniemi, The Effect of Rights on Political Culture,
supra note 740, p. 99. Again, the political sphere seems to be invaded by the legal
which appears as a formalistic and absolute creation.
752 The vocabulary and institutional practice of human rights promotion propagates
an unduly abstract idea about people, politics and society. A one-size-fits-all eman-
cipatory practice underrecognizes and reduces the instance and possibility for par-
ticularity and variation. Th is claim is not that human rights are too individualistic.
Rather, the claim is that the person, as well as the group, imagined and brought
to life by human rights agitation is both abstract and general in ways that have bad
consequences As an emancipatory vocabulary, it offers answers rather than ques-
tions, answers that are not only outside political, ideological and cultural differ-
ences, but also beyond the human experience of specificity and against the human
capacity to hope for more, in denial of the tawdry and uncertain quality of our avail-
able dreams about and experience with justice and injustice. Rather than enabling
a discussion of what it means to be human, of who is human, of how humans might
relate to one another, it crushes this discussion under the weight of moral condem-
nation, legal adjudication, textual certainty and political power. Kennedy, The In-
ternational Human Rights Movement: Part of the Problem?, supra note 749, p. 111.
753 The urgent need to develop a more vigorous human politics is sidelined by the ef-
fort to throw thin but plausible nets of legal articulation across the globe. Work to
develop law comes to be seen as an emancipatory end in itself, leaving the human
rights movement too ready to articulate problems in political terms and solutions
in legal terms. Precisely the reverse would be more useful. The posture of human
rights as an emancipatory political project that extends and operates within a do-
main above or outside politics-a political project repackaged as a form of knowl-
edge-delegitimates other political voices and makes less visible the local, cultural,
and political dimensions of the human rights movement itself. Ibid., p. 115.
754 Ibid.
an available list of rights,755 all topics which are central for group governance.
He concludes that [t]he attachment to rights as a measure of the authenticity,
universality, and above all as the knowledge we have of social justice binds our
professional feet, and places social justice issues under the governance of the least
effective institutional forms available.756
Overall, rights in these criticisms have been presented as absolutes, as un-
specific solutions (one-size-fits-all), technocratic, and static. Unfortunately,
group rights are often discussed in such a way.757 These attributes would doubt-
lessly be problematic when thinking of the complex and sensitive situations
which should be governed by group rights, especially in the typical situation
where groups lack trust and social recognition, where reconciliation of a trau-
matic past is most needed. However, group rights can be understood in differing
ways as will be discussed below, ways which are much more accommodative and
open for political discussion, open for different solutions fitting local needs, and
open for transformation.758
755 Ibid.
756 Ibid., p. 122.
757 With regard to the right of self-determination, Benedict Kingsbury has similarly
argued that while rights might be trumps, they are not absolute. The discourse of
proponents of the right to self-determination has often had an absolutist overtone.
Kingsbury, Claims by Non-State Groups in International Law, supra note 675, p.
504.
758 Overall, it is of limited use to question all rights from a political perspective, not
making any distinction between fundamental rights securing the core of every hu-
man being and any other rights. However, the strategy of many activist lawyers to
declare everything a human right, a consequence (the only rationally possible)
of taking human dignity seriously and everything will be solved in a legal way, is
highly problematic. Such a strategy evades democratic opinion building, the build-
ing up of a broad consensus. It is efficient as it can be taken into action immediately,
but in the long run, probably not effective as the consensus of the involved is miss-
ing. Actually, we can agree that torture, genocide and so on can only be illegal,
there is no need to search in a democratic way for a broad consensus for this (see A.
Gutmann and D. Thompson, Why Deliberative Democracy? (Princeton University
Press, Princeton NJ 2004), pp. 1213) and when the political system is not democratic
or fails at all, it is good that human rights are secured and not questionable out of
political reasons.
176 Chapter 4
4.1.5. The Limits of Norms on Group Governance in International Law

International law cannot be a source of instant solutions to problems of con-
flict and confrontation because of its own inherent weaknesses in structure
and content. To fail to recognise this encourages a utopian approach which,
when faced with reality, will fail.
Malcolm N. Shaw759
It is important to be aware of the limitations of international law when discuss-

ing the provision of group rights within this legal system. The point here is that
international law is distant from group governance in two interrelated ways: first,
being aware of the previously mentioned need for locally designed solutions of
group governance, it is clear that international law is restricted in substance in
the provision of concrete rights (substantial distance); second, for legitimacy
reasons, international law should leave it to the concretely involved to find suit-
able solutions (structural distance).
The first point seems to be self-evident. International law, when providing
universally applicable rights, needs to find the lowest common denominator; in
the field of group governance, this is a difficult task indeed as groups, claims and
context can vary and be intertwined in a myriad of ways. In fact, international
law being committed to the rule of law cannot escape into an ad hoc-approach,
but has to provide a legal framework which fits all these concrete cases. Hence,
rights on group governance in international law will probably have to be very
general, and international law will hardly give groups rights to specific solutions
and often have to focus on procedure instead. This again amounts to what is
called a substantial distance here.
The second point, the structural distance, is connected with the idea of
international law as higher law and its weaker legitimacy basis. Under the influ-
ence of the evolution of jus cogens, the UN Charter, and international human
rights law more generally, legal scholars have started to think about international
law in terms of constitutionalisation.760 Limits on how governments can treat
759 Shaw, International Law, supra note 71, pp. 1213, footnotes omitted.
760 For a recent overview on constitutionalization, see e.g. S. Gardbaum, Human
Rights as International Constitutional Rights, 19 European Journal of International
Law (2008) 749; Stephen Gardbaum argues that the human rights system can be
thought of as a further stage in the historical development of the idea of consti-
tutionalism. In the pre-constitutionalist order, sovereignty was conceptualized as
absolute and indivisible, and located in the person of the monarch (letat, cest moi).
In the first stage of constitutionalist thought, sovereignty is still conceptualized as
absolute and indivisible, but is now located in the people and delegated to their rep-
resentatives (popular sovereignty). This in turn implies certain moral and/or politi-
cal limits on the exercise of power, most famously enforced through Lockes right of
rebellion. In the second stage of constitutionalism, limits on the exercise of power
are legalized and also often both judicialized and constitutionalized, but all such
groups under their jurisdiction can clearly be understood as constitutional in

nature;761 however, thinking of constitutional international law as a level above
state constitutions involves a generalisation of its norms in comparison to state
norms, as they are higher norms. Legitimacy of such norms can in fact be very
high and itself exert a pull towards compliance as Franck has put it.762 If we val-
ue the importance of consent in the context of the legitimacy of rights,763 interna-
tional law runs into legitimacy problems when it starts to legislate on groups in a
concrete and far-reaching manner, as the affected are most likely largely excluded
from this legislation process. The same conclusion can be reached on the basis of
limits and enforcement mechanisms are internally generated (domestic constitu-

tionalism). In the new, third stage, legal limits are now imposed by international
law and may also be interpreted and applied by or in the shadow of international
rather than domestic state actors (global constitutionalism). Ibid., pp. 766767; cf.
generally J. A. Frowein, Konstitutionalisierung des Vlkerrechts, in K. Dicke et al.
(eds.), Vlkerrecht und internationales Privatrecht in einem sich globalisierenden
internationalen System: Auswirkungen der Entstaatlichung transnationaler Rechts-
beziehungen. Referate und Thesen (C. F. Mller, Heidelberg 2000); and J. Klabbers et
al. (eds.), The Constitutionalization of International Law (Oxford University Press,
Oxford, New York 2009).
761 Again Stephen Gardbaum asks what, if anything, is constitutional about the major
international human rights instruments? They undoubtedly perform the basic con-
stitutional function of specifying limits on how governments treat people within
their jurisdictions. At a more specific level, there are plausible arguments that they
satisfy at least some of the conditions for being considered international constitu-
tional (or quasi-constitutional) law, particularly those of constituent power and en-
trenchment. Moreover, there is an ongoing process of implicit constitutionalization
in both the human rights system itself and international law as a whole, although
both continue to be constrained by the still important role of state consent and the
failure of human rights generally to bind international organizations. Gardbaum,
Human Rights as International Constitutional Rights, supra note 760, p. 768; for
the interrelatedness of national and international constitutional law with regard to
self-determination confl icts, see Weller, Settling Self-determination Conflicts, su-
pra note 67.
762 Thomas M. Francks working definition of legitimacy is the following: Legitimacy is
a property of a rule or rule-making institution which itself exerts a pull toward com-
pliance on those addressed normatively because those addressed believe that the rule
or institution has come into being and operates in accordance with generally accepted
principles of right process. Franck, The Power of Legitimacy among Nations, supra
note 80, p. 24.
763 See e.g. J. Klabbers, Law-Making and Constitutionalism, in J. Klabbers et al. (eds.),
The Constitutionalization of International Law (Oxford University Press, Oxford,
New York 2009).
178 Chapter 4
the subsidiarity principle as well.764 In this sense, international law is structurally

distant and, hence, restricted in legislating on the topic.
Any proposal for a more principled approach of international law to (sub-
state) group governance needs to take the substantial, as well as the structural,
distance of international law into account in order not to become utopian and not
to fail already at this very general level.765
4.2. Rights: Elements of a Principled Approach of International Law

[T]he modern world is not simply a world of sovereign states, and the states,
engaged in endless negotiations with one another to defi ne their rights and
duties, often within the context of supranational institutions, do not live in
anything resembling a state of nature. Today, this Vattelian set of assump-
tions has become untenable. States are constrained, in law and practice, by the
need to live in a community of states that requires them to act not naturally
but predictably: which is to say, normatively.
Thomas M. Franck766
After having mentioned some key issues which the approach of international
law to groups has to take into account, we will now turn to a discussion of a de
lege ferenda-approach to group governance through international law. It is use-
ful to be reminded of the weaknesses of the current approach, namely in the
context of minority protection. In a recent article, Kymlicka for instance has
analysed the internationalization of minority rights and has come to the sober-
ing conclusion that the international communitys approach to minority rights
is at an impasse.767 He describes the international legal framework as wholly
inadequate and disapproves of the consequential sharp dichotomy between
an accommodationist approach to indigenous peoples and an integrationist ap-
proach to minorities.768 Moreover, he criticises that when it comes to real-world
conflicts, intergovernmental organisations have to supplement legal norms with
case-specific and more accommodationist approaches to support autonomy of-
764 The subsidiarity principle is often used to guide the allocation of public authority,
also when discussing the appropriateness of rules in international law. Its preference
for the lowest level of governance in this context can be understood as an attempt to
enable the most direct consent of the affected in matters concerning them. Cf. gen-
erally P. G. Carozza, Subsidiarity as a Structural Principle of International Human
Rights Law, 97 American Journal of International Law (2003) 38.
765 Cf. the introductory quotation of this subchapter by Malcolm N. Shaw.
766 T. M. Franck, The Empowered Self: Law and Society in the Age of Individualism (Ox-
ford University Press, Oxford, New York 1999), p. 5.
767 Kymlicka, The Internationalization of Minority Rights, supra note 470, p. 31.
768 Ibid.
ten in an arbitrary and ad hoc way.769 In other words, in the context of minor-
ity rights, the rule of law is weak.770 In the same vein, Bowring holds that the law
on minorities and indigenous peoples and its implementation mechanisms are
often perceived irrelevant by precisely the persons to whom it is addressed,771
he argues that there are theoretical reasons for this which need solutions outside
of the current (legal) framework.772 Taking the above discussed key issues into
consideration, the proposed approach should better reflect the rule of law and
provide a more coherent reflection of groups in international law. A more coher-
ent (principled) approach to groups is needed which is more general, but at the
same time also more differentiated and concrete, than the current one. The pro-
posed approach should be based on the accepted legal principles of the current
approach but more sensitive to process and inclusion of groups in finding suiting
solutions to their needs.
4.2.1. Principles on Substate Groups

Balance, among competing rights and interests, is never easy to achieve. It does
not lend itself to ringing slogans extolling the virtues of yesterdays national
identity or todays modern state. However, recognising and accommodating
conflicting rights is the only way in which the world and the states within
it can respond to diametrically opposed appeals in a politically and morally
principled manner.
Hurst Hannum773
From the above discussed one can conclude that international law is best suited
to provide general guidance in finding suitable legal and political solutions to
group governance within states. Generally, this would mean that international
law should provide principles774 on which to base group governance rather than
rights to certain solutions for certain groups against the state. It should provide
guidance on the process of finding solutions rather than fi xed one-size-fits-all
solutions for all those groups belonging to a certain legal category like minority
or indigenous people, and international law should provide for effective mecha-
769 Ibid.
770 At least if we agree that the rule of law would lead to some predictability and to an
approach based on equal treatment of equal groups/situations or similar treatment
of similar groups/situations.
771 Bowring, The Degradation of the International Legal Order?, supra note 649, p. 149.
772 Ibid.
773 H. Hannum, A Principled Response to Ethnic Self-Determination Claims, in G.
Alfredsson (ed.), Justice Pending: Indigenous Peoples and Other Good Causes: Essays
in Honour of Erica-Irene A. Daes (Martinus Nijhoff Publishers, The Hague 2002), p.
274.
774 On rights as rules and principles, see chapter 1.1.4.
180 Chapter 4
nisms to ensure compliance with these provisions.775 In this way, international

law would be able to strike a balance between treating similar situations equally
(rule of law) while still allowing locally-designed solutions, also by involving the
actually concerned groups. In consequence, the legitimacy of solutions would be
high and therefore more sustainable.
There are several possible arguments against such an approach. One such
argument is that such an abstract approach would be a step back in the pro-
tection of minorities for example, as principles are more general than rules (in
the sense of absolutes, trumps) and as such much weaker claims for minority
groups. However, minority protection today is very weak regardless of its rights
as rules-rhetoric. Moreover, such rights rhetoric runs the risk of putting respon-
sibility too much on others instead of forcing groups and the state to search for
and find common ground for solutions, as was discussed above.776 Moreover, the
perception that the law provides double standards could easily arise when abso-
lute rights rhetoric matches only rarely with reality.777
Second, and most importantly, there could be the argument that this de lege
ferenda-approach is too open and too general. This might be true to some extent
as there is some doubt if states would feel more obliged to treat groups according
to these legal principles, rather than knowing which treatment would breach a
clearly defined way they had to treat groups. However, the crude categorisation of
groups778 as it stands today makes it even very difficult to find rights in the form
of rules which would fit most of the claims of groups within one such category.
Indeed, as was argued before, international law cannot provide specific solutions
for all the self-determination disputes of all the kinds of groups worldwide; they
are too different in nature, legal solutions may be useful or not, the situation
775 Apart from this, it will be claimed that linguistic, religious, and cultural rights
should systematically be separated from political ones and that these non-political
rights should be developed much further and concretely than the more problematic
political ones. This will be discussed in chapter 4.3.
777 In the same vein, David Makinson argues that [t]he language of rights tends to
sharpen contradictions rather than resolve them Now confl icts between general
normative principles are resolvable when they are advanced as considerations to
be balanced alongside others, as defeasible rules, or as prima facie judgments. But
when the language used carries associations in the public arena of absoluteness and
inalienability, and of validity in all circumstances regardless of special features,
then the resolution of confl ict presents an acute problem. By virtue of the generality
of their manifesto-like formulations, rights tend to give rise to contradictions; by
virtue of the absolutist nature of their deployment, the contradictions are not read-
ily resolved. For this reason, the language of rights tends to give rise to confusing
double standards. In moments of exalted declaration, a rights principle is conceived
as indefeasible; in everyday life exceptions are constantly admitted. Makinson, On
Attributing Rights to All Peoples: Some Logical Questions, supra note 99, pp. 6162.
could change and so on. Hence, the clearly defined one-size-fits-all legal solu-
tion to group governance provided by international law is simply an illusion, and
not even a desirable one.779 Instead, there is reason to believe that in many cases
where groups are systematically discriminated against, a principle in interna-
tional law, general as it may be, would be enough to conclude that the states
group governance is in conflict with international law. In cases where groups are
disadvantaged on a low level and less systematically and in consequence are
not in conflict with the principles it is very questionable if such a matter should
become an issue of international law. By and large, international law should not
prescribe in detail how a state should organise itself the legitimacy of interna-
tional law in this field is especially weak it seems much more important that
the few principles which reflect the most basic values agreed on in international
law and which secure the fundamental rights of groups are also put into effect
within states.
Third, it could be argued that this de lege ferenda-proposal does not take
the reality of international relations/law into enough consideration. This is, of
course, always disputable; however, state practice is not so far from what is being
proposed here. In fact, the problem today is that many solutions to self-deter-
mination disputes can be seen as based on the same principles and, hence, help
to understand how these principles can be adequately put into reality; but at the
same time, states have traditionally opposed the development of customary law
by emphasising the sui generis-nature of such solutions.780 The argument here is
that, yes, the solutions are rightly seen as sui generis, however, the underlying
principles are not. Moreover, the sui generis argumentation cannot be used to
deny the evolution of customary rules as far as they clarify what measures would
be needed to live up to these principles in specific circumstances. Any other view
would lead to a denial of these principles and of the rule of law in such situations.
This would not only be contrary to what can be wished for from a philosophical
point of view, but it would also be contrary to the legal principles of contempo-
rary international law and the values it is built on.
779 In the same vein, Hurst Hannum has argued that [o]ne goal upon which all could
agree is that of protecting human rights, including minority rights, and promoting
democracy for all those within a state. Stated differently, these norms would include
the protection and promotion of minority identity and their right to effective par-
ticipation in government, and certain forms of autonomy may well respond to these
goals. At the same time, however, it should not be the goal of outside advocates to
resolve internal debates over the disposition of political and economic power ac-
cording to the outsiders own autonomy as a one-size-fits-all compromise solution is
unlikely to respond to the needs either of the concerned parties or the international
community. H. Hannum, Conceptual Issues Pertaining to Autonomy, in Z. A.
Skurbaty (ed.), Beyond a One-Dimensional State: An Emerging Right to Autonomy?
(Martinus Nijhoff Publishers, Leiden, Boston 2005), p. 159.
780 See generally Mllerson, Precedents in the Mountains, supra note 243.
182 Chapter 4
Fourth, the argument could be made that the focus on process fails to ad-
equately take into account the importance of the end result (the solution) as
this is what ultimately counts. Focusing on the result would easily allow con-
sideration of whether the state complies with its obligations, and this is true in
theory. All in all, this approach, popular as it may be, seems flawed, ignorant
to the groups will and ignorant of legal principles of international law. Again,
it is doubtful that the needs of all groups could ever be adequately covered by a
one-size-fits-all solution and more importantly groups would not even have to
be involved or have to formulate their actual needs, the decisive factor of any so-
lution.781 In the following, we turn to the legal principles in international law on
which any approach to groups should be based.
4.2.2. Equality and Self-Determination as Principles

[I]t cannot be denied that too many ethnic and other groups are currently suf-
fering from unbearable discrimination and oppression: their demands must
be met. The fundamental tenet enshrined in the preamble of the Universal
Declaration of Human Rights (it is essential, if man is not to be compelled to
have recourse, as a last resort, to rebellion against tyranny and oppression, that
human rights should be protected by the rule of law) also applies, mutatis mu-
tandis, to ethnic and other groups. It is therefore imperative to suggest solu-
tions that reconcile full respect for group rights with a modicum of peace and
stability and the maintenance of the present system of multinational States.
Antonio Cassese782
The main argument here is that, basically, the way that states govern groups is
limited by international law through the principles of equality and self-determi-
nation and the rules derived from them. Admittedly, this approach is out-of-the-
box and the liberties of a de lege ferenda-discussion have to be used in order to
argue for it. However, this approach does not leave the lex lata as far behind as it
might first appear. In fact, the main point where the accepted realm of hard law
is being left is with the claim that the two principles are not only applicable to
peoples, but to all groups if to a different extent.783
The principles of equality and self-determination are legally binding prin-
ciples and both apply to peoples; indeed, Article 1(2) of the UN Charter states
that the purpose of the UN is the development of friendly relations among na-
tions based on respect for the principle of equal rights and self-determination of
peoples.784 Wolfrum has rightly pointed to the fact that equality was meant with
781 See also chapter 4.4.

783 On this, see chapter 4.3.
784 Looking at justifications of the principle of self-determination, theoretically, inter-
pretations can be divided into two groups: universal and derivative. The universal
regard to peoples.785 Hence, this can be seen as part of the lex lata. Moreover,
as this formulation also shows, the two principles go together and it seems con-
vincing that they not only limit but also inform each other.786 We will turn to
this soon. However, the argumentation that these principles are applicable to
all groups to some extent is less straightforward and will be discussed in the
following.
The reason for seeing these principles as applicable to all kinds of groups has
to do with the understanding expressed by Brownlie that
the issues of self-determination, the treatment of minorities, and the status of indig-
enous populations, are the same, and the segregation of topics is an impediment to
fruitful work. The rights and claims of groups with their own cultural histories and
identities are in principle the samethey must be. It is the problems of implementa-
tion of principles and standards which vary, simply because the facts will vary.787
Similarly, Cassese argues that the fundamental and sharp dichotomy between the
self-determination of peoples on the one side and the protection of minorities, on
interpretation understands self-determination as a right of all peoples regardless

of their circumstances, whereas derivative interpretations present it as a special
right that peoples acquire as subjects of past injustice, or by special arrangement
because of special circumstances, historical accident, or a negotiated compromise.
See Holder, Self-Determination as a Universal Human Right, supra note 210, p. 7;
the approach to all peoples as expressed in the UN Charter clearly indicates that
the universal justification is correct.
785 Wolfrum, Chapter I, supra note 290, p. 44, margin no. 21; see the discussion in
chapter 2.3.3.
786 [T]he principle of equality of peoples and the right to self-determination are united.
With this, it is assured that no peoples can be denied the right to self-determination
on the basis of any alleged inferiority. Ibid.
787 Brownlie, The Rights of Peoples in Modern International Law, supra note 257, pp.
1516. Ian Brownlie argues: I have been speaking of dividing the law, and the debate,
into compartments. This process is visible also in the institutional structuring of the
debate about the rights of groups. Thus the United Nations Commission on Human
Rights has commissioned separate studies, with different special rapporteurs, on
the rights of persons belonging to ethnic, religious and linguistic minorities (Ca-
potorti), the problem of discrimination against indigenous populations (Martinez
Cobo and Asbjorn Eide), the implementation of United Nations resolutions relating
to the right of peoples under colonial and alien domination to self-determination
(Gros Espiell), and the right of self-determination (Cristescu). Ibid.; in the same
vein, Jane Wright states that [d]istinctions drawn between minorities and peo-
ples are more apparent than real and are self-evidently driven by political consid-
erations rather than functional reality. Wright, Minority Groups, Autonomy, and
Self-Determination, supra note 270, p. 607.
184 Chapter 4
the other,788 in the major international instruments adopted and the approach
taken so far by states and international organisations is wrong.789 In fact, it is
hard to plausibly argue that each of these group categories is sui generis and,
hence, the reasons for protecting them qualitatively different. Indeed, if there is
to be some consistency in international laws approach to groups, any protection
of a group has to be based on the accepted and binding legal principles of equality
and self-determination.790 This is, of course, more lex ferenda than lex lata and
needs further examination.
To draw with an overly broad brush, international law knows a kind of cas-
cade of rights where states have most of the rights, followed by peoples (poten-
tially with the right to external self-determination) , indigenous peoples (minor-
ity rights plus land rights), minorities (certain special rights), and then migrant
groups or new minorities (basically restricted to individual human rights). Th is
cascade of rights could be connected to the notion of sovereignty. Indeed, as we
are discussing issues of governance and of power distribution, this notion fits
well. However, this will not be pursued in more detail as it does not add much
to the points to be made here. In fact, the point is that these categories of groups
are all based on the principles of equality and self-determination,791 and that they
are not sui generis and qualitatively different; in other words, their rights are of
the same kind but to a rather different degree. Hence, going against the gen-
eral view today, from the category of states to migrant groups there appears to
be a continuum of where groups can lie;792 instead of understanding the exist-
ing group categories as blocks, they rather mark the presumed minimal rights
an idealised group has on the specific point of the continuum. In other words,
groups can in fact lie between the points which mark the agreed categories of
today and, accordingly, their minimal rights can vary with regard to the existing
ideal categories.
The proposed approach is both more general and more sensitive to concrete
situations. It is more general as it relies more on abstract principles and includes

789 Ibid., p. 349; Antonio Cassese claims that it is possible to take an alternative ap-
proach consisting of rethinking and constructively welding together the two notions of
the self-determination of peoples and the protection of minorities and ethnic groups.
Ibid., p. 350. In fact, this is the aim here.
790 The claim for a dynamic and broad understanding of self-determination can also
be found in the position paper Minorities and Majorities: Managing Diversity on
which several renowned experts on minority rights agreed upon. See D. Threr, Mi-
norities and Majorities: Managing Diversity, 5 Schweizerische Zeitschrift fr inter-
nationales und europisches Recht (2005) 659, pp. 659663.
791 The sovereignty of states can also be seen as based on these two principles as is re-
flected e.g. in the equality of states.
792 This continuum arguably goes further down to all kinds of collectivities where the
principles mainly become apparent in the freedom of association.
more groups, but at the same time it is more differentiated as groups are not
treated as an exemplary of the idealised category they belong to. This differentia-
tion could be troublesome as the question of what rights a group has cannot be
reduced to the question of which category the group belongs to. However, in light
of the inadequacies of the current prototypical approach, this seems manageable
and with regard of the fact that the proposed approach is more needs-oriented,
it is preferable from a legal and political point of view. Indeed, it is worth noting
that while law traditionally focuses on the outcome, fairness is to a large extent
connected with procedure, being taken seriously in finding a fair outcome is
crucial.793 Furthermore, international law gives us some ideas of what group fea-
tures strengthen a groups claims; this will be explored in chapter 4.3.2.
There are different instances which point to such an understanding already
in the current practice of international law. Indeed, it is worth noting that in the
European context, although being excluded or ignored from minority protection
agreements, migrants increasingly enjoy some protection from these agreements,
for example with regard to their languages, thanks to a reinterpretation in recent
years.794 The qualitative difference between the prototypical groups implied by
the current approach seems to lose credibility in light of such developments.
The Principle of Equality

As mentioned, the principle of equality generally applies to groups as well.
However, its concretisation is far from that of equality of individuals; in fact, it
remains rather general. Moreover, the combination of the principles of equality
and self-determination does not necessarily lead to a claim for political indepen-
dence as the politicisation of the constituting elements of a group is inherently
nationalistic and by no means the most adequate way of reaching what the prin-
ciples demand.
The international non-discrimination law has moved from a formal com-
parison of individual cases to a broader substantive understanding of the aim
of equality. With regard to the enjoyment of human rights, the CERD prescribes
that racial/ethnic groups have to be treated equally.795 This is also in line with the
more general principle of equality of peoples as stated in Article 1(2) of the UN
793 See also chapter 4.3 and 4.4. For a discussion of the importance of being taken seri-
ously, in the context of criminal procedure, cf. S. Trechsel, Why Must Trials be
Fair?, 31 Israel Law Review (1997) 94, pp. 114115.
794 For a discussion of these developments with regard to language rights in Europe,
see S. Burch Elias, Regional Minorities, Immigrants, and Migrants: The Refraiming
of Minority Language Rights in Europe, 28 Berkeley Journal of International Law
(2010) 261.
186 Chapter 4
Charter.796 Apart from this example, the right of non-discrimination is still char-
acteristically individualistic and is a means to reach equality between individuals
and, only in the just mentioned cases, equality between groups. Nevertheless, the
aim of substantive equality, as well as the prohibition of indirect and structural
discrimination, bring the principles of non-discrimination and self-determina-
tion much closer in the individualist context than may be expected: to live up
to their duties under international non-discrimination law, states have to take
measures to advance the position of members of disadvantaged groups in or-
der to reach equality between all individuals notwithstanding their group mem-
bership. What kind of measures should be taken is open, but could also include
group rights. Overall, the focus of non-discrimination is equality; usually equal-
ity of individuals, and increasingly factual substantive equality rather than only
formal legal equality.
By contrast, the principle of self-determination switches the focus from the
result of equality between individuals to the question of who decides. Equally, in
cases where a disadvantaged group wishes to be treated equally, the two princi-
ples may cover the same ground.
The Principle of Self-Determination

Crawford writes that
the language of self-determination came to be fi xed in the international debate and

in authoritative texts, and that language was universal in its terms. In a way this
anticipated, as it now valuably reinforces, new emphases on internal self-determi-
nation, on democratic, indigenous and minority rights. But it did not, and does not,
solve the problems produced by the artificiality of many state structures, the lack
of regard for ethnic and national identities in boundary drawing, and above all the
mixed and overlapping character of human communities in so many states. Hence
lex lata, lex obscura.797
Some of the obscurity may be lost when understanding self-determination with

Klabbers as a procedural right to be heard and be taken seriously.798 Against the
view that this would mean that self-determination was emptied of all contents,
he argues that the reality is far from it. Instead, the courts have contributed
to political thought by turning self-determination into a procedural guarantee.
796 The term equality of peoples was meant to underline that no hierarchy existed
between the various peoples. To this extent, the prohibition of racial discrimination
was transferred from the national level to the level of international relations. Wol-
frum, Chapter I, supra note 290, p. 44, margin no. 21.
797 Crawford, The Right of Self-Determination in International Law: Its Development
and Future, supra note 180, p. 26.
798 See Klabbers, The Right to be Taken Seriously, supra note 180, p. 202.
Because even democracy, however valuable, can lapse into the tyranny of the
majority, a procedural right to be heard is invaluable.799
Moreover, Weller concludes his review of the practice on the assignment of
public authority that it reflects an increasing recognition that, ultimately, the
authority to govern is based on the will of the people and that we are, in this re-
spect, witnessing a gradual recognition of self-determination as a genuine, gen-
eralized principle for the construction of states and governance, with a number
of layers of meaning attaching.800 He points to the many ways self-determination
disputes have been solved and how they reflect the principle of self-determina-
tion. Examples include constitutional rights of groups or entities to secede801 and
conditional constitutional rights to self-determination802 whereby the popula-
tions concerned are increasingly self-constituting having options to opt in or
out of units of self-determination.803 According to his view [t]he contextual re-
striction of external self-determination and the sharp division between external
799 Ibid., p. 205.

800 Weller, Settling Self-determination Conflicts, supra note 67, p. 164.
801 Article 39(5) of the [Ethiopian] constitution of 8 December 1994 declares with the
greatest clarity. [e]very Nation, Nationality and People in Ethiopia has an uncon-
ditional right to self-determination, including the right to secession. Paragraph 5
adds an unusual definition: A Nation, Nationality or People for the purpose of this
Constitution, is a group of people who have or share a large measure of a common
culture or similar customs, mutual intelligibility of language, belief in a common or
related identities, a common psychological make-up, and who inhabit an identifi-
able, predominantly contiguous territory. Another example is furnished by the con-
stitution of the Principality of Liechtenstein. Article 4(2) permits each municipality
to remove itself from the state-community. Ibid., p. 158.
802 In relation to Gagauzia, the identity of this conditional constitutional self-determi-
nation unit is defined in an unusual way too. Localities in which (ethnic) Gagauzes
constitute less than 50 per cent of the population may be included in the autonomous
territorial unit on the basis of the freely expressed will of a majority of the electorate
revealed during a local referendum (Article 5(2)). Accordingly, this would be one of
the more recent examples where the will of the people does, after all, triumph over
previous administrative/territorial arrangements. This is an interesting departure
from the classical colonial self-determination practice, including the doctrine of uti
possidetis. Ibid., p. 153.
803 Moreover, the populations concerned are increasingly self-constituting. While
settlements will generally concern territorially defi ned entities, this definition is no
longer static. Instead of rigid adherence to the uti possidetis principle, several settle-
ments allow populations in certain areas to opt into, or out of, proposed units of
self-government (Gagauzia, Philippines, South Sudan). Units of self-governance are
given open options to form larger regions or establish regional cooperation (Iraq,
Darfur, Eastern Sudan, Bosnia). M. Weller, Escaping the Self-Determination Trap
(Martinus Nijhoff Publishers, Leiden, Boston 2008), p. 155.
188 Chapter 4
and internal self-determination appear to be dissolving, however gradually and

hesitantly.804
Indeed, a more important issue lies somewhere else; the main issue is that
the principle of self-determination has two souls:805 a democratic (based on the
demos)806 and a nationalist (based on the ethnos).807
Nationalist Self-Determination
As a nationalist principle, self-determination is preoccupied with the political
unit and claims one state, on nation. Muldoon has rightly pointed to the connec-
tion of minority group rights with the development of the majority rule in the
18th century, and with the generally accepted view that came about at that time
of the state as the political expression of a culturally homogeneous society.808
This nationalist view has lost a lot of its strength in international law. That this
is a highly problematic understanding of the principle should be clear by now.809
The underlying problem is that nationalism (nationality) is a chimera810 as
Dalberg-Acton has called it. The nationalist self-determination is either destruc-
tive or some adjustment needs to be done. A very useful adjustment has been
proposed by Dalberg-Acton himself:
The settlement at which it [nationality] aims is impossible. As it can never be sat-

isfied and exhausted, and always continues to assert itself, it prevents the govern-
ment from ever relapsing into the condition which provoked its rise. The danger is
too threatening, and the power over mens minds too great, to allow any system to
endure which justifies the resistance of nationality. It must contribute, therefore, to
804 Weller, Settling Self-determination Conflicts, supra note 67, p. 164.

805 See the discussion in chapter 2.2.
806 See e.g. Franck, The Emerging Right to Democratic Governance, supra note 250.
807 Self-determination and nationalism are closely linked as Benedict Kingsbury has
rightly remarked. See Kingsbury, Claims by Non-State Groups in International
Law, supra note 675, p. 486.
808 See Muldoon, The Development of Group Rights, supra note 168, p. 31; see also the
discussion in chapter 3.2.1.
809 Nathaniel Berman has observed that the history of the international law of nation-
alism demonstrates that it is simply not possible to construct a neutral approach
innocent of differential cultural projections and unimplicated in the partisan impo-
sition of power. And argued that the legacy of international laws troubling efforts
to engage with nationalism should be the vigilant awareness of the possibilities and
dangers implicit in all the approaches and the willingness to deploy them tactically
to prevent the horrors that have, more often than not, followed even the noblest of
legal dreams. Berman, The International Law of Nationalism: Group Identity and
Legal History, supra note 97, p. 57.
810 Dalberg-Acton, Nationality, supra note 600, p. 298.
obtain that which in theory it condemns, the liberty of different nationalities as

members of one sovereign community.811
Additionally, and in opposition to Mill, he points to the importance of diversity

within a state for liberty in general812 and rightly notes that [w]hile the theory
of unity makes the nation a source of despotism and revolution, the theory of
liberty regards it as the bulwark of self-government, and the foremost limit to
the excessive power of the State.813 Hence, in such a reading, nationalist self-
determination becomes a principle that claims as much independence for any
group within a state as possible in light of all other groups rights. Again, this
follows also from the principle of equality, groups have to be treated equally.
However, equality is to be achieved with regard to equal groups, significantly
different groups have to be treated differently if no objective and reasonable jus-
tification exists.814 Understood in this way, nationalist self-determination is being
reinterpreted for the sake of its realisation into a principle of subsidiarity where
groups are the basic units and smallest entities of the system.815 In fact, think-
ing of Kingsburys view that the charismatic principle of self-determination
gives operational expression to nationalism,816 and having in mind its evolution
in contemporary international law,817 it seems convincing that this principle has
changed to mean a principle of pluralist democracies rather than culturally ho-
mogenous states of whatever structure. Nonetheless, some tension with regard to
the democratic understanding of self-determination remains.
811 Ibid.; he goes on: Th is is a service which no other force could accomplish; for it is
a corrective alike of absolute monarchy, of democracy, and of constitutionalism, as
well as of the centralisation which is common to all three. Neither the monarchical,
nor the revolutionary, nor the parliamentary system can do this; all the ideas which
have excited enthusiasm in past times are impotent for the purpose except national-
ity alone. Ibid.
812 Liberty provokes diversity, and diversity preserves liberty by supplying the means
of organisation. Ibid., p. 289.
813 Ibid.
814 In this sense, e.g., Th limmenos v. Greece, supra note 305, para. 44. Which aspects
are relevant to establish the scope of rights a group should have according to inter-
national law will be discussed in chapter 4.3.
815 The principle of subsidiarity was namely included in the Lund Recommendations,
see OSCE: The Lund Recommendations on the Effective Participation of National Mi-
norities in Public Life & Explanatory Note, September 1999, para. 19, <www.osce.
org/hcnm/32240>, visited on 9 March 2011.
816 Kingsbury, Claims by Non-State Groups in International Law, supra note 675, p.
486.
817 See generally chapter 2.2.
190 Chapter 4
Democratic Self-Determination
Democratic self-determination818 emphasises the will of the governed within a
unit (state) as the source of legitimate sovereign power. In this sense, the principle
of self-determination claims that the power ultimately rests in the people (dem-
os) and that it is not to be subjected to a foreign power or a tyrannical regime.
According to this understanding, self-determination applies to all citizens alike;
the unit (the polity) is the state and taken for granted.
From what has been discussed so far, it is clear that both the democratic as
well as the nationalist self-determination cover important aspects of this princi-
ple and need to be considered in an adequate approach to groups. However, it is
also clear that the two sides are in tension with each other. Hence, reducing this
tension between the two sides requires an additional step. Such a step could be
that groups themselves need to be democratically legitimised, or in other words,
they need to be internally democratic. However, this is a problematic precondi-
tion for self-determination as Waldron has rightly argued when discussing the
possibility of group dignity, although being very sceptical to such a thing:819
[W]hat I suggest we do is separate the two issuesseparate the element of group

dignity from any assessment of the group based on our commitment to individual
dignity. They are distinct issues and the second should not be treated as a precondi-
tion for the first. Even if we criticize a group for its violation of individual dignity,
we may still think it important to have regard to its group dignity. We may still
818 It is interesting to note in this context that Jan De Meyer has brought the right to
self-determination in its internal democratic meaning as a possible right to rely on
in the discussion of the ECHR as well, when he writes that [t]his right [the right of
self-determination] is, of course, not mentioned in article 3 of protocol No.1 [of the
ECHR]; but does not this provision, indeed the whole Convention, presuppose it? Is
it not the very foundation of what the Preamble of that instrument describes as an
effective political democracy? J. de Meyer, Electoral Rights, in R. J. St. Macdon-
ald et al. (eds.), The European System for the Protection of Human Rights (Martinus
Nijhoff Publishers, Dordrecht, Boston 1993), p. 556.
819 In fact, he argues: It has long been a standard criticism of group rights that group
rights are a sort of Trojan horse that has the potential to insinuate inequality back
into the heart of an accommodating liberal jurisprudence. That danger takes on
a particular poignancy in the context of dignity, as I understand it here is the
thought that troubles me: the groups to which dignity might be accorded are not
always egalitarian in their internal structures; they are often structured according
to the very ideas of rank which the egalitarian transvaluation of dignity was sup-
posed to overcome. This is by no means a necessary truth, but it is a common truth.
So, if we accord dignity to groups, it is possible that we may be dignifying the very
structures of rank and privilege that egalitarian dignity-talk aims to transcend. We
may be undermining the transvaluation that lies at the heart of the association of
dignity with human rights. We may be revalidating the very hierarchies we sought
to transvaluate. Waldron, The Dignity of Groups, supra note 579, pp. 2425.
want to insist, for example, that Islamic religious groupings have as much right to
be respected as Christian groups and Jewish groups, even though we wish they were
organized in a more egalitarian way.820
Instead, the nationalist self-determination could be further reduced to issues

which are inherently connected with the groupness of a specific group.
For instance, if a linguistic group claims the right of self-determination,
this claim would be restricted only to issues connected with its language. In fact,
politicising groupness is inherently nationalistic and one of the main bases for
the problems surrounding self-determination disputes; hence, restricting group
claims to such issues could depoliticise and take away some potential problems
from this principle. However, it has to be admitted that this might fail where the
politicisation has already taken place and is hard to reverse probably the most
typical case where self-determination claims arise.
Solutions to self-determination claims have to be settled within this frame-
work provided by international law, hence, based on the principles of equality
and (nationalist and democratic) self-determination. Primarily, it is the princi-
ples of sovereignty and territorial integrity of states which need to be reconciled
with the self-determination of groups.821
4.2.3. A Substantive Distinction of Claims

A more general failure of the current approach is to distinguish between political
claims and claims regarding issues connected with language, culture and reli-
820 Ibid., pp. 2728.

821 There is a plausible argument, evidenced by such documents and other unofficial
ones, that, in terms of the policies of States, the emphasis on assimilation of minori-
ties is not now as important as integration, and there is some movement towards
recognition of cultural pluralism as a desirable goal. This is to be combined with
strict respect for the sovereignty and territorial integrity of States. Cultural plural-
ism implies a measure of differential treatment of minority groups to meet their
particular circumstances and to ensure genuine equality in law with respect for dif-
ferent traditions. It needs to be said that there is only a trend or direction to favour
such a policy. Thornberry, International Law and the Rights of Minorities, supra
note 313, p. 391, footnotes omitted.
192 Chapter 4
gion.822 In fact, although they might come together more often than not,823 there is
a significant difference between these two categories of claims.824
Claims to Political Power

Dalberg-Acton has come to the conclusion that the state is the only entity which
has political claims;825 there are good reasons to come to this conclusion and to
restrict the political claims of groups. In fact, claims of groups to political power
are a highly problematical category of claims for international law.
The problem with such claims is that they are likely to destabilise states and
to create problems which can become a threat to international peace and secu-
rity. However, the stability argument works on the opposite side as well, as the
destabilisation will typically take place if states exclude groups systematically
and in this way lay the foundation for such claims which they then do not fulfi l.
Nevertheless, if such claims are to secession, they are a potential threat to inter-
national peace and security.826 But if we understand the principles of equality
and self-determination as applicable also to such groups as claimed here this
cannot be the end of the story. In fact, sovereignty and sovereign equality of states
822 Of course, such claims can also be seen as political the distinction is not meant
between political and apolitical, but between claims to political power and claims to
maintain what is at the core of a group.
823 This is also reflected in the well-known aphorism that a language is a dialect with
an army; however, I just want to remind that many dialects have remained dialects
notwithstanding having an army.
824 I have also argued for such a distinction in C. Bisaz, Minority Protection the
Neglected Importance of Authority: A Fundamental Challenge from Group Rights,
in D. Threr (ed.), From Minority Protection towards Managing Diversity [working
title] (Schulthess Juristische Medien, Zrich 2012 [forthcoming]).
825 The nationality formed by the State, then, is the only one to which we owe political
duties, and it is, therefore, the only one which has political rights. Dalberg-Acton,
Nationality, supra note 600, p. 294.
826 In this context, however, it is important to remind that international law protects
sovereignty and territorial integrity of states in relation to each other, but does
not protect state unity and governments from movements from within the state.
This has recently been clarified with regard to territorial integrity in the Advisory
Opinion on Kosovos Declaration of Independence of the ICJ in which the Court has
held that the scope of the principle of territorial integrity is confined to the sphere
of relations between States. See Accordance with International Law of the Unilat-
eral Declaration of Independence in Respect of Kosovo, 22 July 2010, ICJ, Advisory
Opinion, <www.icj-cij.org/docket/fi les/141/15987.pdf>, visited on 13 January 2011.
Only Judge Koroma dissented on this issue, see Koroma (Dissenting Opinion), Ac-
cordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, 22 July 2010, ICJ, Advisory Opinion, paras. 2122, <www.icj-cij.
org/docket/fi les/141/15991.pdf>, visited on 15 March 2011.
arguably derive their legitimacy from the same principles. Hence, if a territori-
ally concentrated group which has been present long-term expresses the wish to
form a politically independent entity, it can be justified for the same reasons as
the sovereignty of the state; from a principle perspective, the case does not easily
fall on one side or the other. Secession is the most extreme case here and inter-
national law is, for reasons of stability, justifiably reluctant to provide a right to
it. However, when claims to political power are short of secession, the two legal
principles of international law indicate that the state has to take them seriously
and find viable arrangements (legal and/or political) with such groups. A failure
to do so could amount to non-compliance with international law.
It is clear that political claims pose the biggest challenges to internation-
al law, are much broader and complex in content, and meet with the greatest
resistance from states. Moreover, empirically, the danger is always present that
populist politicians could simply use groups as vehicles to reach power827 and,
hence, this field is highly political and resistant to detailed legalisation with pre-
formulated solutions for all possible situations. Instead, international laws role
is restricted to providing and securing the normative and procedural framework
within which the involved parties have to find solutions, as was discussed above.
Linguistic, Cultural and Religious Claims

A very different issue is that of group rights regarding their language, culture
and religion. Here, a development of rights is theoretically possible and politi-
cally much more probable. Indeed, if groups are to be taken seriously and treated
equally, it seems rather convincing to argue that religious groups could demand
rights connected to the exercise and maintenance of their religion and related
issues, cultural groups could demand rights connected to the exercise and main-
tenance of their culture and related issues, and linguistic groups could demand
rights connected to the exercise and maintenance of their language and related
issues. All these claims would be restricted to the topic which is at the centre of
such a group and it would not politicise groups.828 Moreover, this is also the field
827 Il faut enfin quil sagisse vraiment dune collectivit anime dune volont relle
et non point soit dun caprice motiv par quelquune de ces circonstances fcheuses
mais passagres, qui sont insparables de la vie politique, soit de lapparition dune
bande de politiciens avides de places et de puissance, capables dgarer, de fanati-
ser les groupes humains en dissimulant leurs ambitions sous le couvert dun pa-
triotisme exacerb. Scelle, Quelques rflexions sur le droit des peuples disposer
deux-mmes, supra note 201, p. 387.
828 Suffice to remind that the politicisation of such things like culture, language, and
identity is based on nationalism and at the root of many of the minority problems.
See discussion in chapter 4.1.2.
194 Chapter 4
where more concrete rights (rules) could be established as demands of groups in

this field probably share many aspects.829
Many such rights can be seen as covered indirectly through existing laws;830
however, the development and clarification in this field is much needed and has
arguably been blocked due to fears of its connection with political claims.831 By
and large, claims to have a say on ones identity need not question political order
at all, and it seems convincing that depoliticising these issues could defuse the
explosiveness of such claims. A first step in this direction would be the distinc-
tion of these issues in international law. Whereas international law could provide
groups a voice (maybe even claiming rights) with regard to their linguistic, cul-
tural and religious affairs, international law would only assist in finding ways in
general terms with regard to group claims to political power.
Of course, there are different obstacles to such an approach. Namely, a major
difficulty arises when it is not self-evident if an issue can or cannot be subsumed
to language, culture or religion. However, much would be gained from an ac-
knowledgement that it is, in principle, the group and not the state which has to
decide on such issues. This would at least mean that where a state legislates in
these fields, the burden of proof is with the state that is acting on behalf of the
affected groups and that it does not discriminate against these groups.
Restrictions from Individual Rights

This issue has been discussed before and will thus be addressed only briefly
here.832 Generally, promoting self-determination for peoples and protecting the
human rights of individuals are not competing priorities many international
documents treat peoples rights and the rights of individuals as not only mutually
829 Religious claims will typically include rights to create the infrastructure needed to
pursue the religious belief also in community with other believers, and the owner-
ship and/or use of certain religiously important sites. Meanwhile, linguistic claims
will typically include rights to the use of the language (in administration, media,
schools) and to means for this purpose. Cultural claims will typically include rights
which enable people to live their cultural life, own/use culturally important sites,
education on the culture, and in some cases, land rights and economical rights if
strongly connected with the culture.
830 Think of Article 27 of the CCPR for example, see chapter 2.4.4; with regard to the
right to identity, e.g., Thornberry, International Law and the Rights of Minorities,
supra note 313, pp. 141254; with regard to political participation, e.g., Y. Ghai, Par-
ticipation as Self-Governance, in M. Weller (ed.), Political Participation of Minori-
ties: A Commentary on International Standards and Practice (Oxford University
Press, Oxford 2010); cf. generally also K. Henrard, The Protection of Minorities
through the Equality Provisions in the UN Human Rights Treaties: The UN Treaty
Bodies, 14 International Journal on Minority and Group Rights (2007) 141.
831 Accord Ghai, Participation as Self-Governance, supra note 830, p. 623.
supporting but also mutually necessary.833 Group rights may set the framework
in which human rights can flourish and, at the same time, individual human
rights set a limit on group rights as well. Many authors have expressed major con-
cerns with regard to conflicts between group rights and individual rights,834 and
some have tried to provide a framework with which to resolve such conflicts.835
However, the main issue in this context is to understand that the question if a
group right prevails in a concrete situation when competing with an individual
right or not cannot reasonably be answered based on the fact that it is a group
right. Indeed, a conflict between a group right and an individual right can only
be decided based on how they are legally protected (rule or principle) and on the
weight of the protected value in the concrete case. Overall, the situation is not
any different for a conflict between an individual right and the right of the state,
hence, the solving rationale is the same.
4.2.4. The Lack of International Enforcement Mechanisms

By and large, it has been argued in this work that groups have rights, are right-
holders of international rights, and that having no legal standing in a court of in-
ternational law is of no relevance with regard to them being right-holders, having
group rights. In the last few years, the idea of remedies in international law has
grown stronger and could not ignore the question if groups could claim remedies
for damage to the group. Of course, the issue is controversial as can also be seen
by the extremely cautious formulations in the UN Resolution of Basic Principles
on Reparations;836 however, the court praxis of the IACtHR has answered the
833 See the examples provided in Holder, Self-Determination as a Universal Human

Right, supra note 210, p. 5; see also Cassese, Self-Determination of Peoples, supra
note 180, p. 337.
834 See e.g., Waldron, Taking Group Rights Carefully, supra note 34.
835 See e.g., Wenzel, Das Spannungsverhltnis zwischen Gruppenschutz und Individu-
alschutz im Vlkerrecht, supra note 11.
836 With regard to victims it notes that contemporary forms of victimization, while
essentially directed against persons, may nevertheless also be directed against
groups of persons who are targeted collectively Basic Principles and Guidelines on
the Right to a Remedy and Reparation for Victims of Gross Violations of Internation-
al Human Rights Law and Serious Violations of International Humanitarian Law,
21 March 2006, UN Doc. A/RES/60/147, p. 4, <www.un.org/ga/search/view_doc.
asp?symbol=A/RES/60/147>, visited on 22 August 2010; with regard to access to jus-
tice: In addition to individual access to justice, States should endeavour to develop
procedures to allow groups of victims to present [collective] claims for reparation
and to receive reparation [collectively], as appropriate. Ibid., p. 6. The additions in
brackets collective and collectively were included in the draft but deleted in the
final resolution text. See D. Shelton, Remedies in International Human Rights Law
(2nd edn., Oxford University Press, Oxford 2005), p. 246. Nevertheless, the formu-
196 Chapter 4
question positively.837 In fact, it is hard to see who else if not the group should
be granted remedies for damages to the group in violation of their group rights
(think for example of collective land ownership of indigenous peoples).838 Hence,
the question of remedies reveals that the protection of certain groups by states
does in fact provide them a right, notwithstanding rhetoric to the contrary. All
in all, the fact that groups are largely denied legal standing in (universal) inter-
national courts or similar international law enforcement mechanisms839 seems
problematic with regard to the enforcement of their rights (and not with regard
to their nature as right-holders).
However, as can be seen from the discussion of existing group rights in
international law, several group rights are accepted as peremptory norms.
Consequently, a breach of these norms can amount to a threat to international
peace and security which justifies intervention on the basis of Chapter VII of the
UN Charter.840 Moreover, states must not recognise situations created by a serious
breach of peremptory norms and they must not contribute to the maintenance of
the situation.841 Furthermore, it is being argued that international law, although
reluctantly, may recognise the concept of the actio popularis and allow claims of
lation in addition to individual access still seems to imply a collective access to

justice and does at least not exclude the access of groups if appropriate.
837 Cf. L. Oette, Bringing Justice to Victims? Responses of Regional and International
Human Rights Courts and Treaty Bodies to Mass Violations, in C. Ferstman et al.
(eds.), Reparations for Victims of Genocide, War Crimes and Crimes against Human-
ity: Systems in Place and Systems in the Making (Martinus Nijhoff Publishers, Leiden
2009), p. 221; and Shelton, Remedies in International Human Rights Law, supra
note 836, pp. 246247.
838 Reparations for groups can take different forms and can be added to reparations
to individuals when the group was the target of violations; e.g. funds can be used
for educational, housing, or health projects for the benefit of the community as the
IACtHR has decided. See Oette, Bringing Justice to Victims? Responses of Regional
and International Human Rights Courts and Treaty Bodies to Mass Violations, su-
pra note 837, pp. 235237.
840 Historical examples of such a view taken by the Security Council are the declara-
tion of independence of Southern Rhodesia in breach of the right of self-determi-
nation which constituted a threat to international peace and security, see UN Se-
curity Council Resolution 217 (1965), 20 November 1965, UN Doc. S/RES/217 (1965),
<daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/222/88/IMG/NR022288.
pdf?OpenElement>, visited on 22 September 2010; and the policies of apartheid and
racial discrimination of the South African Government which were seen as fraught
with danger to international peace and security, see UN Security Council Resolution
418 (1977), 4 November 1977, UN Doc. S/RES/418 (1977), <daccess-dds-ny.un.org/
doc/RESOLUTION/GEN/NR0/297/01/IMG/NR029701.pdf?OpenElement>, visited
on 22 September 2010.
841 See Israeli Wall, supra note 205, p. 200; and generally chapter 2.2.2.
states only affected as a member of the international community.842 Hence, the

rights of groups which are part of jus cogens could be claimed by any state before
an international legal court.843 Nevertheless, it is in fact a serious deficiency of
contemporary international law that groups cannot claim even their rights which
are accepted as jus cogens in any international court. The Westphalian state-cen-
tricity of international law seems to have survived in this regard.
The same conclusion has to be drawn with regard to concrete group rights,
namely in the field of culture, language and religion. The case law of the Human
Rights Committee has shown that it is impossible, and in fact not useful, to ig-
nore the group right dimension when judging a possible breach of an individual
right.844 Hence, the fact that groups as such have no legal standing is a serious
deficiency of the system.
With regard to political claims, non-legal approaches seem in most cases
much more promising than court procedures and the lack of legal standing of
groups in this context seems accordingly unproblematic.845 The process, as well
as the solution for conflicts on political power, should be based on the principles
of equality and self-determination, the right of self-determination in this context
means mainly a procedural guarantee.846 The international community needs to
assist and enable this in an adequate way typically diplomatically.847 Hence, this
field as inherently political and (international) law can arguably only give very
general guidance procedurally and substantively.848
842 See A. Orakhelashvili, Peremptory Norms in International Law (Oxford University

Press, Oxford, New York 2006), pp. 518527; and A.-L. Vaurs-Chaumette, Peoples
and Minorities, in J. Crawford et al. (eds.), The Law of International Responsibility
(Oxford University Press, Oxford 2010); for a general discussion of the actio popu-
laris in international law, see F. Voeff ray, Lactio popularis ou la dfense de lintrt
collectif devant les jurisdictions internationales (Presses Universit de France, Paris
2004).
843 In this sense, in case of a serious breach of such a right, see Article 48(1)(b) of the ILC
Draft Articles on Responsibility of States for Internationally Wrongful Acts, supra
note 353.
845 Cf. also Klabbers, The Right to be Taken Seriously, supra note 180.
846 By and large, I agree with Jan Klabbers view on this. Cf. ibid., p. 202.
847 In the OSCE this has been the role of the HCNM, known for his silent diplomacy
which most commentators assess as success.
848 Additionally, the monitoring system of the Human Rights Committee through its
state reports could contribute to conflict prevention (especially in the early stages of
the conflict) if it takes a groups claims and needs seriously and pushes states and
groups alike to find an agreement. However, the system should be strengthened and
backed up with a sanction system in cases of non-compliance.
198 Chapter 4
4.3. Subjects
Throughout this work the subject of group rights, the group, has been an issue
of interest. Its importance has caused problems which need to be addressed in
the following.
4.3.1. Categorising Groups or Claims?

Legal structure the preoccupation with peoples or minorities inter-
acts with social science and media classification to artificially reduce a great
many claims and conflicts to single categories. In particular, there is a clear
preoccupation with ethnic claims and ethnic confl icts (taking ethnicity to
include religious and linguistic elements). These classifications are often sim-
plistic, and miss important parts of identities, and of the structure of claims
and conflicts, including their territorial, historical, resource, and class aspects.
The power of the lexicon shapes the way in which claims are formulated and
groups define themselves
Benedict Kingsbury 849
Historically, when it comes to the protection of substate groups, international law

is curtailed. After World War II, there was a concern that minority protection
might endanger international peace and security a concern gradually replaced
by a more nuanced view which accepts that failure to protect minority rights
might also exacerbate ethnic and cultural tensions between majorities and mi-
norities and lead to the splintering of political communities.850 However, the UN
approach took all ethnic, national, racial, religious and linguistic minorities
together and treated them as if they all wished for integration rather than ac-
commodation851 and European institutions followed this example, all references
to self-government or autonomy were dropped during the legislation process.852
497, footnotes omitted.
850 P. Macklem, Minority Rights in International Law, 6 International Journal of Con-
stitutional Law (2008) 531, p. 541.
851 See on this Will Kymlicka who criticises that approach: This is, at best, a drastic
overgeneralization, and at worst a serious misinterpretation of the issues. Kym-
licka, The Internationalization of Minority Rights, supra note 470, p. 6.
852 Predictably, then, when the European standards for national minority rights were
finally codified, all references to self-government or autonomy were dropped, and a
much weaker set of norms were proposed. Indeed, the Council of Europes frame-
work convention and the OSCEs recommendations are essentially updated versions
of the UNs minorities declaration, founded on a clear integrationist approach.
However as with the UN this integrationist legal framework coexists alongside a
political practice of case-specific interventions more supportive of autonomy. Ibid.,
p. 30.
Accordingly, the cry for definitions of the categories of groups is understandable

as it is the category of groups which rights are attached to. However, this might
not be the best way to tackle the issue as will be argued in the following.
International law actually has to answer a whole bundle of questions with
regard to groups: what kind of demands from what kind of groups need to be
matched in what kind of situations and in which way. Basically, international law
tries to answer these questions by attaching rights to categorised groups such as
peoples, minorities and indigenous peoples without much more differentia-
tion within these groups. Admittedly, law needs to abstract from the complexities
of reality in order to become predictable and practicable.853 However, interna-
tional laws reflection of groups through such a categorisation is inadequate. As
Kingsbury has rightly noticed in the introductory quotation of this subchapter,
the current categorisations of groups in international law are simplistic and hard-
ly useful when trying to handle the complexities inherent to this issue. For this
reason, there have been proposals to add categories and to better define existing
categories. However, such proposals overlook that at its core the problem with
such categorisations is that they try to objectify something which is by its very
nature impossible to objectify.854 In fact, the best definition of the shape of a cloud
is not useful to describe what a cloud really is. Moreover, international law gives
too much weight to the categorisation and does not pay enough attention to the
other important questions. In the same vein, Kingsbury claims that
what is needed is to get beyond the arid assumption that in the field of self-determi-
nation, the act of classification by reference to one or other of the socio-referential
labels used to identify rightholders is itself determinative of virtually all questions
as to the precise rights involved and their concrete application.855
Moreover, in light of the difficulties in really drawing a line between the cat-
egory of minorities and indigenous peoples, the opposing approaches of inter-
national law, accommodationist and integrationist, are inadequate as applied to
853 Nevertheless, Thomas M. Franck has titled his discussion of this issue suggestively
The Definitional Categories and the Realities They Obscure. See T. M. Franck,
Clan and Superclan: Loyalty, Identity and Community in Law and Practice, 90
American Journal of International Law (1996) 359, p. 365.
500. Furthermore, he concludes: As this article has pointed out, however, defi nition
of rightholders is only one aspect of the analysis of self-determination, minority
rights, and equality provisions. The further questions of the meaning of the right,
the justification of the right, and the consequences of the right, are at least as impor-
tant. Ibid., p. 511. By and large, this seems true.
200 Chapter 4
these groups.856 Even more so if we agree with Brownlie that the heterogeneous
terminology which has been used over the years the references to nationalities,
peoples, minorities, and indigenous populations involves essentially the
same idea.857
4.3.2. Claimants Attributes Strengthening Its Claims

As the current categorisation of groups is rather inadequate, a reinterpretation
may be useful. The suggestion here is to use the main elements of the categori-
sation to express the importance of certain attributes of the claimant with re-
gard to his/her claims. Indeed, although international law does not provide any
definition of its group categories, some defining elements are agreed upon and
present the following general picture:858 a) only groups which are permanent and
defined by ethnic, cultural, linguistic and/or religious characteristics are taken
into consideration; b) the time in which such a group has resided within a ter-
ritory matters (groups which have only recently moved to a state generally have
weak claims, groups with a long-term presence in the territory concerned have
stronger claims, while groups residing in the territory from immemorial times
have the strongest claims); c) the numerical inferiority to the whole state popula-
tion matters. Additionally, the case of indigenous peoples could also be read as
meaning that d) groups with a very strong affi liation with a culture (maybe also
religion) may have stronger claims to protect this important aspect central to
them being a group (groupness); and e) groups which have factual power over a
substantial part of a states territory may have some claims as well.
Not all of these attributes are really useful in order to develop a principled
approach to groups, especially the numerical inferiority within a state (c), a defin-
856 The sharp distinction in rights between the two types of groups is morally incon-
sistent, because whatever arguments exist for recognizing the rights of indigenous
peoples to self-government also apply to the claims for self-government by other
vulnerable and historically disadvantaged homeland groups. Kymlicka, The In-
ternationalization of Minority Rights, supra note 470, p. 11. It is also conceptually
unstable The very distinction between indigenous peoples and other homeland
minorities is difficult to draw outside the original core cases of Europe and Euro-
pean settler states. Ibid., p. 12. In the postcolonial world, however, any attempt to
distinguish indigenous peoples from national minorities on the basis of their rela-
tive levels of vulnerability or exclusion can only track differences of degree, not the
difference in kind implied by international law. Ibid., p. 16.
857 Brownlie, The Rights of Peoples in Modern International Law, supra note 257, p. 5;
in the same vein, Jane Wright argues: Distinctions drawn between minorities and
peoples are more apparent than real and are self-evidently driven by political con-
siderations rather than functional reality. Wright, Minority Groups, Autonomy,
and Self-Determination, supra note 270, p. 607; see also chapter 4.2.2.
858 Again concentrating on current issues and thus leaving entities from the decoloni-
sation process aside.
ing element of minorities, which might be better interpreted as reflecting a non-

dominant position and vulnerability of a group rather than merely a numerical
precondition to become a right-holder.
The importance of a defining element for a group (d) could be relevant with
regard to linguistic, religious and/or cultural claims. Indeed, if a group claims
cultural rights, the claim might be strengthened due to its importance for the
group.
The advantage of this interpretation is that it would be closer to the groups
claims and less preoccupied with categorising groups. Moreover, international
law could develop legislation on group governance in less problematic fields (lin-
guistic, cultural and religious claims) and would not be stuck in such fields be-
cause of the more problematical political claims which resist more general legal
solutions. However, the approach is only tentative and reflects a general impres-
sion; nevertheless, it might be useful to constructively think of a more adequate
approach of international law to groups.
Overall, concentrating on claims and giving them different weight accord-
ing to group attributes would only change the focus of international law from the
question of who is the right-holder to claims of groups in concrete situations; in
fact, this would only result in taking a difference perspective, the right-holder
would still be the group. Nevertheless, such a different approach would allow
much more differentiated concrete solutions and, in this way, clarify underlying
principles also for other kinds of groups.
4.3.3. Definition Requirements: Projected Groups and Identity Groups

Le Juif est un homme que les autres hommes tiennent pour Juif: voil la vrit
simple do il faut partir. En ce sens le dmocrate raison contre lantismite:
cest lantismite qui fait le Juif.
Jean-Paul Sartre 859
In addition to the discussion of the general approach to groups, we turn now to

the definition of groups. The argument is that the requirements law attaches to
the definition of groups should depend on who defines the group.
Grouping people means to include and exclude people according to cer-
tain features; it means to create certain homogeneity within and heterogeneity
outside of the groups. But who is it who creates these boundaries? With regard to
ethnic and racial groups, Bulmer and Solomos write: Race and ethnic groups,
like nations, are imagined communities. People are socially defined as belong-
ing to particular ethnic or racial groups, either in terms of definitions employed
by others, or definitions which members of particular ethnic groups develop for
themselves.860 Hence, group boundaries can be constructed from the outside as
859 J.-P. Sartre, Rflexions sur la question juive (Gallimard, Paris 1954), pp. 8384.
860 Bulmer and Solomos, Introduction, supra note 101, p. 822.
202 Chapter 4
well as the inside. The importance of this distinction should not be underesti-
mated as the two categories bear different sets of problems. However, these two
categories are not exclusive at all in most cases they largely overlap.
Projected Groups
Projected groups are those which are largely and more often than not, against
their will perceived/defined by others rather than by their members. To some
extent, the Jews could be an example as they were often perceived especially
in Europe as a distinct group, whereas many Jews did see themselves as inte-
gral parts of the respective society; for example, as they are seen in the United
States.861 Of course, they were connected with each other in some way, be it ethnic
origin, religion, language, lifestyle, or some combination of these, but they did
not see this connection as substantive to form a distinct group.862 The view that
this was decisive was the view of outsiders of the group.
In cases of mass atrocities where groups as such become the victims, it is
mainly the perpetrator who decides who belongs to groups and caricaturises it.
This can also happen mutually. The case of the Hutus and the Tutsis in Rwanda
is very illustrative in this regard. According to their ethnicity, religion, language
and lifestyle, they hardly differed. The group boundaries were fluid and basically
irrelevant until extremists decided that this distinction was between good and
bad and by defaming the other group inflamed masses of people to kill members
of the other group.863
What becomes clear from such examples is that the right to exit a group as
typically proposed by liberals is, in such situations, simply pointless.864 In fact,
even if a Jew theoretically had the right to exit the Jewish community, it was the
Nazis who decisively disagreed in this regard.
Identity Groups
In its absoluteness Sartres introductory quote is not right. It can well be that a
group defines itself, defines certain commonalities as substantive connections;
this might even be the most common way groups are defined. Usually, being
connected in a substantive way is referred to as identity. According to Appiah,
for identity to exist there must first be a social conception of a group, then an (at
least partial) internalisation of such labels as parts of the individual identities of
861 Thomas Pogge mentions the example of the Jews who were often treated as a minor-
ity against their will. See Pogge, Gruppenrechte von Minderheiten, supra note 104,
p. 188.
862 See chapter 1.2 for the working definition of a group and its discussion.
863 Cf. e.g. Schabas, Genocide in International Law, supra note 363, p. 125.
864 For a more balanced and detailed discussion of the short-comings of a right to exit,
see Appiah, The Ethics of Identity, supra note 659, pp. 7779.
the groups members (identification as a groups member), and finally patterns of

behaviour towards members of such groups (who are then treated as members
of that group).865
Relevance of the Distinction

As a general principle with regard to the specificity of the definition of groups,
the definition of the group in the case of projected groups should have to meet
much lower requirements than in the case of identity groups while gradually
varying in cases between these two poles. In fact, this seems plausible since if
people are treated as a group against their will, it would be much more prob-
lematic if protection would fail for reasons of the group definition than the non-
protection of groups which define themselves through attributes which are not
protected by international law.
4.4. Legal Personality as Recognition

I may feel unfree in the sense of not being recognized as a self-governing indi-
vidual human being; but I may feel it also as a member of an unrecognized or
insufficiently respected group: then I wish for the emancipation of my entire
class, or community, or nation, or race or profession. So much can I desire this,
that I may, in my bitter longing for status, prefer to be bullied and misgoverned
by some members of my own race or social class, by whom I am, nevertheless,
recognized as a man and a rivalthat is as an equalto being well and toler-
antly treated by someone from some higher and remoter group, who does not
recognize me for what I wish to feel myself to be It is this desire for recipro-
cal recognition that leads the most authoritarian democracies to be, at times,
consciously preferred by its members to the most enlightened oligarchies, or
sometimes causes a member of some newly liberated Asian or African state
to complain less today, when he is rudely treated by members of his own race
or nation, than when he was governed by some cautious, just, gentle, well-
meaning administrator from outside. Unless this phenomenon is grasped, the
ideals and behaviour of entire peoples who, in Mills sense of the word, suffer
deprivation of elementary human rights, and who, with every appearance of
sincerity, speak of enjoying more freedom than when they possessed a wider
measure of these rights, becomes an unintelligible paradox.
Isaiah Berlin866
Recognition is as was so brilliantly described in this introductory quotation by

Berlin a key issue in the context of group governance. Recognition is at the heart
865 Cf. ibid., pp. 6571.

866 Berlin, Four Essays on Liberty, supra note 588, pp. 157158.
204 Chapter 4
of many group claims.867 However, it is arguably the feeling rather than the legal
status which counts. Nevertheless, legal recognition may be relevant with regard
to the groups feeling of being recognised, although not necessarily so. On the con-
nection between personality and recognition of groups, Klabbers writes that
the most general purpose of personality is to suggest that the human group is
worthy of recognition (in the broadest sense of the word) in itself. Human beings
tend to live and act in groups Whatever the reason, much of what people do, they
do in groups; and those groups will (more likely than not) strive for some form of
recognition.868
Legal recognition of groups and the corresponding label of legal personality of

a group can be a way of such recognition. However, it can be questioned whether
this is rational. For instance, Kennedy argues that
[e]ven very broad social movements of emancipation-for women, for minorities of

various sorts, for the poor have their vision blinkered by the promise of recognition
in the vocabulary and institutional apparatus of human rights. They will be led away
from the economy and toward the state, away from political/social conditions and
toward the forms of legal recognition.869
In his view, the resulting legal machinery can become an end in itself (analogous
to the way in which holding elections can come to substitute for popular engage-
ment in the political process).870 The important problem area of solving problems
legally instead of choosing alternative approaches has been discussed before;871
however, along with the logic of the principle of self-determination the question
867 Again, Isaiah Berlin has reflected on this, starting from the individual as a social
being: Moreover, I am a social being in a deeper sense than that of interaction with
others. For am I not what I am, to some degree, in virtue of what others think and
feel me to be? When I ask myself what I am, and answer: an Englishman, a Chinese,
a merchant, a man of no importance, a millionaire, a convict I find upon analysis
that to possess these attributes entails being recognized as belonging to a particular
group or class by other persons in my society, and that this recognition is part of
the meaning of most of the terms that denote some of my most personal and per-
manent characteristics the lack of freedom about which men or groups complain
amounts, as often as not, to the lack of proper recognition. Ibid., p. 155.
868 Klabbers, The Concept of Legal Personality, supra note 113, p. 61, footnotes omitted.
869 Kennedy, The International Human Rights Movement: Part of the Problem?, supra
note 749, p. 110; It has been claimed, for example, that promoting a neutral right to
religious expression in Africa without acknowledging the unequal background cul-
tural, economic and political authority of traditional religions and imported evan-
gelical sects will dramatically affect the distribution of religious practice. Ibid.
870 Ibid.
here may not be what is more rational, but what the will of the group is.872 In this
context it is worth noting Weilers discussion of international laws lack of legiti-
macy, particularly in the field of human rights and the environment, because of
an absence of true polity:873
Situating human rights along side the environment is helpful. For, seen through the
prism of political theory, international law deals with humans the way it deals with
whales and trees. Precious objects which require very special regimes for their pro-
tection The surface language of international legal rights discourse may be neo-
Kantian. Its deep structure is utterly pre-modern. It is a rights notion that resembles
the Roman Empire which regards individuals as an object on which to bestow or
recognize rights, not as agents from whom emanates the power to do such bestow-
ing. It is a vision of the individual as an object or, at best, as a consumer of outcomes,
but not as an agent of process.874
What Weiler criticises here more generally about international laws approach to
individuals is even truer for its approach to substate groups. Indeed, what seems
to be problematic is that with the development of international law, new objects
are being subjected to it without being adequately represented during the crea-
tion of the laws affecting them. Taking groups seriously, as was claimed to be the
legal obligation of states according to the principle of self-determination, means
involving groups in answering questions concerning their groupness. Indeed,
recognising that the principle of self-determination applies to groups and that re-
ligious groups have a say on political decisions affecting their exercise of religion,
means to recognise them as legitimate partners of a state in this context. Lack
of internal democracy or procedurally fair representation has not prevented rec-
ognition of associations in the common-law tradition, as Bowring reasons, the
Inns of Court and the gentlemens clubs have not been notoriously democratic
institutions, thus he argues that it is now somewhat anomalous that ethnic or
linguistic groups, national minorities or homosexuals, should be denied recog-
872 See also Bisaz, Minority Protection the Neglected Importance of Authority, supra
note 824.
873 J. H. H. Weiler, The Geology of International Law Governance, Democracy and
Legitimacy, 64 Zeitschrift fr auslndisches ffentliches Recht und Vlkerrecht
(2004) 547, p. 558; cf. also Kennedy, The International Human Rights Movement:
Part of the Problem?, supra note 749, p. 117.
874 Weiler, The Geology of International Law Governance, Democracy and Legitima-
cy, supra note 873, p. 558; he goes on: In one respect the international legal system
is even worse than the Roman Empire: International law generates norms. But there
are no, and cannot be, a polity and citizens by whom these norms are generated.
Ibid.
206 Chapter 4
nition as groups.875 After what has been said so far, it may be added if they so
wish.
Again, international legal personality means to have rights and/or duties in
international law, legal recognition by accepting groups as legal persons would
accordingly mean that such groups are provided international rights and/or du-
ties. However, more important than this is a more basic issue which counts also
on its own: groups have to be taken seriously even if they do not wish to be-
come bearers of (international) rights and/or duties, they have a certain authority
which states also have to respect. By and large, the view that a state has absolute
authority over individuals and groups does not reflect contemporary internation-
al law; there are realms where individuals and/or groups have authority to at least
be taken seriously.876
The argument by Wenzel in this context to make groups a direct party to
international human rights instruments is too far-reaching;877 groups are gener-
ally bound by the international treaties of the states they live in as long as the
procedural requirements for its coming into force are met; in other words, the
international rule of law requires that groups have to be seen as represented by
the state as long as they are part of the state. The principle of self-determination
may although require a procedural participation of groups in the ratification
process of international contracts affecting them and, hence, may enable groups
to make reservations on issues concerning them. However, international trea-
ties generally have to be seen as applicable to groups, and only the most extreme
cases of ignorance of their rights (where good faith of the international contract
partners cannot be seen as given) seem to justify the non-enforceability of an
international contract; in cases where international treaties are protected by the
rule of law and the good faith of contracting parties, groups may have a claim to
internal reparations by the state.
4.5 Some Remarks on the Implications

Pluralism within states has entered the realm of international law. The percep-
tion of cultural pluralism within states has shifted in the United Nations over the
last few decades, and the political aim of assimilation was replaced by cultural
875 Bowring, The Degradation of the International Legal Order?, supra note 649, p. 158.
876 By and large, Jan Klabbers account of the right of self-determination as a right to
be taken seriously seems convincing and adequate. See Klabbers, The Right to be
Taken Seriously, supra note 180.
877 Wenzel, Minority Rights as Group-Protective Rights: A challenge for the Interna-
tional Law of Human Rights, supra note 654, p. 258; Wenzel, Das Spannungsver-
hltnis zwischen Gruppenschutz und Individualschutz im Vlkerrecht, supra note
11, pp. 485499.
diversity.878 This work on the concept of group rights has also reflected such a
move. From what has been argued in this work, some very general remarks can
be made on the implications of group rights in international law for states and
their governance of groups, as well as on the implications which this discussion
of the concept of group rights could have for the concept itself.
4.5.1 Implications for States and Groups

A special challenge for emerging non-unitary orders is to create and then
maintain overarching identities while also protecting or creating sub-unit
identities among groups often characterised by deep cleavages.
Andreas Fllesdal/Nils Butenschn 879
International law provides groups with some minimal standards, and pluralist
states with principled guidance on group governance. By contrast, international
law is far from accepting what Tams calls ethnarchy 880 which would basi-
cally mean that power is not vested in all the citizens of a state but in substate
groups defined by ethnic, racial, cultural, linguistic and/or religious homogenei-
ty.881 Instead, states as well as the international community have to take groups
seriously,882 some more, some less, and some of their claims more so than others;
which ones more and which ones less has been discussed above. Furthermore,
the way the state does so is correctly not prescribed by international law; political
as well as legal solutions may be possible and also subject to changes.883 Typically
878 See J. van Aggelen, The Shift in the Perception of Multiculturalism at the United
Nations since 1945, in S. Yee and J.-Y. Morin (eds.), Multiculturalism and Interna-
tional Law: Essays in Honour of Edward McWhinney (Martinus Nijhoff Publishers,
879 N. Butenschn and A. Fllesdal, Do Minority and Group Rights Promote Just Sta-
bility in Non-Unitary Political Orders?: A Research Agenda, 13 International Jour-
nal on Minority and Group Rights (2006) 141, p. 149.
880 G. M. Tams, Ethnarchy and Ethno-Anarchism, 63 Social Research (1996) 147.
881 Cf. ibid., p. 172; in fact, a political system mainly based on group belonging is
discriminatory, see e.g. Sejdi and Finci v. Bosnia and Herzegovina, 22 December
2009, ECtHR, nos. 27996/06 and 34836/06, <cmiskp.echr.coe.int/tkp197/view.
asp?item=1&portal=hbkm&action=html&highlight=27996/06&sessionid=6690493
5&skin=hudoc-en>, visited on 21 February 2010.
882 This should arguably include that ad hoc tribunals have to write names of the ac-
cused in the way (and with the letters) they are used in the respective region and by
the cultural group these names derive from, especially if not only written in a minor
document, but in a final judgement. But see e.g. Prosecutor v. Kupreki et al., supra
note 447; in newer cases this has fortunately changed, see e.g. Prosecutor v. Popovi
et al., supra note 421.
883 It is therefore not possible, as yet, to claim that certain types of situation must
trigger, by right, a certain specific solution. Hence, it would be premature to assert
208 Chapter 4
in the context of political claims, in order to comply with the international re-
quirements, solutions will be based on the idea of power-sharing and include
federal structures,884 decentralisation, different kinds of autonomy, positive ac-
tion, participatory rights which will be helpful to reach arrangements, and in
the context of linguistic, religious and cultural claims, solutions may include a
limited autonomy arrangement.885 Actually, the point where relevant groups are
adequately included in issues affecting them is decisive, hence also in finding
such a solution.886
International law provides some groups with some rights, sometimes quite
directly in the form of a legal rule, sometimes more indirectly in the form of a
legal principle; the result in a concrete situation may be the same: a legal obliga-
tion of the state towards a group. Indeed, general legal principles which aim at
the protection of a group can, in concrete cases, crystallise a legal entitlement
of a group to a certain action or omission of a certain action by the state.887
Moreover, it seems important to note that some of the international legal obliga-
tions of states towards groups may require the provision of group rights within
states, whereas others may only require political arrangements or the provision
of individual, maybe group-related, rights. It is hard to generalise on the issue of
that ethnic movements of a certain kind will now always have a right to autonomy,
or that the solution in certain circumstances has to be asymmetric federation or
full independence. The key conclusion is, instead, rather more general. Self-deter-
mination claims are now being settled in a variety of ways. Self-governance within
existing states remains an important solution, but interim settlements with a view to
a referendum on self-determination are becoming increasingly accepted. The range
of possible solutions has been significantly enhanced. Weller, Settling Self-deter-
mination Conflicts, supra note 67, p. 165.
884 The distribution of public authority through federal structures has the advantage
that territorially concentrated groups participate in public authority without that
the state has to recognise the group politically. However, where groups are every-
where in a minority position and/or not territorially concentrated over a longer peri-
od of time, this approach is limited. For a recent collection of articles on federalism,
see J. Erk and L. M. Anderson (eds.), The Paradox of Federalism (Routledge, London
2010).
885 See generally S. Choudhry (ed.), Constitutional Design for Divided Societies: Integra-
tion or Accommodation? (Oxford University Press, Oxford 2008); T. Fleiner and L.
R. Basta Fleiner, Constitutional Democracy in a Multicultural and Globalised World
(Springer, Berlin, London 2009); Weller and Metzger (eds.), Settling Self-Determi-
nation Disputes, supra note 180.
886 Cf. Cassese, Self-Determination of Peoples, supra note 180, p. 352.
887 This is connected with the view that a complete ignorance of an international legal
principle where it should be applied, as well as an unjustified outweighing of the le-
gal principle in the same situation amounting to largely the same, would constitute
a breach of an international legal obligation. See also chapter 1.1.4.
implications for states; much depends on the situation and concrete problems as
explained above.
In conclusion, the historical reduction of states to their governments and the
complete ignorance of their inner life seem increasingly inadequate, and inter-
national law has accordingly moved to more nuanced understandings of states.
Indeed, just as states authority is not unlimited with regard to other states, it is
not with regard to its citizens and substate groups either; states are obliged to find
viable arrangements between these three levels and to include them in so doing,
but groups have an obligation towards the state as well to constructively partici-
pate in the states efforts to adequately include them.888
4.5.2 Implications for the Legal Concept Itself

When victims become mass victims, people are killed, imprisoned, raped, dis-
placed from their territories, discriminated against as group, as a category.
Adolfo Ceretti889
Many authors have been tempted to question whether group is a meaningful

category for legal analysis. Indeed, the focus on the question of who is the right-
holder has been criticised throughout this work; at the same time, the practical
importance of group rights for international law and its importance for prescrib-
ing certain basic codes of conduct with regard to group governance seem to jus-
tify such a focus. In support of this, it can also be argued that group rights legally
reflect the social reality and importance of groups. Moreover, the categorisation
allows comparisons of the substantial similarities and differences of groups and
their legal treatment, whereas the typical approach focuses on one type of group
only, missing many of the substantial links to other groups.
Nevertheless, as a legal category, group rights have been largely mislead-
ing. Its implied spectacular uniqueness which justifies a separate categorisation
is unconvincing. In fact, as has been argued before, group rights are rights of a
single legal entity, the group, and as such nothing spectacular.890 The main dif-
ference from classical juristic persons is that there is no special part (Besonderer
Teil) which prescribes certain organisational traits and legal acts of founding.
In this sense, group rights are in fact quite unique within the category of juristic
persons. However, when we are discussing rights in international law which basi-
888 Thomas Franck speaks of a New Triad state-groups-individuals that should be

rebalanced. See Franck, Individuals and Groups of Individuals as Subjects of Inter-
national Law, supra note 12, pp. 109113; see generally also Franck, The Empowered
Self, supra note 766, pp. 224254.
889 A. Ceretti, Collective Violence and International Crimes, in A. Cassese (ed.), The
Oxford Companion to International Criminal Justice (Oxford University Press, Ox-
ford, New York 2009), p. 11.
890 This has been called the group rights-paradox, see chapter 1.1.6.
210 Chapter 4
cally prescribe states to take certain groups seriously, not to destroy them, and to
allow them to organise certain cultural aspects, this unique feature loses much
of its alleged weight.
Still, group rights may on occasion presuppose some kind of organisation
to a degree; however, this is not a threshold for a group to be a right-holder.
Moreover, it seems very reasonable that international law does not prescribe how
a group has to be organised in order to be protected from genocide for example.
Overall, it seems convincing to hold that group rights are interesting mainly for
their function and role rather than their special features as a legal category.
As regarding the argument that it would be better to categorise claims in-
stead of groups,891 as well as the new legal doctrine of discussing legal relation-
ships instead of legal personality,892 one critical remark has to be made at the end
of this discussion: the complexity of reality cannot be easily reduced with this
more differentiated view on international (legal) relations. Nevertheless, it is the
view taken here that their advantages outweigh their disadvantages in light of the
traditional views which have proven to be inadequate and misleading.

Conclusions
The main research question which led this work was if the reluctance to provide
group rights in international law is justified. A straightforward answer to this
question has been expectedly difficult to find. However, many instances of gen-
eral and more concrete debates on group rights, be it by legislators or by philoso-
phers, as well as the inquiry of existing group rights suggest that the reluctance
to provide group rights in international law is more often than not based on ideo-
logical reasons instead of a realistic evaluation of such rights and the usefulness
of their application in a concrete situation. Hence, generally the reluctance to
provide group rights has often been unjustified.
However, this does not mean that the low provision of group rights itself
could not be justified for reasons other than the unconvincing ideological ones.
Nor does it mean that a general reluctance towards group rights could not be
justified for more convincing reasons. By and large, this research has shown that
it is inadequate in most of the cases to evaluate group rights generally (they are
all useful, they are all dangerous) instead of specific concrete examples as we
are talking about a highly diverse category of rights; therefore, generalisations
on the need of group rights should be made very cautiously. Moreover, the main
research question did not aim at exhaustively answering such questions; instead,
it should and did guide the unfolding of the many layers of the complex topic of
group rights. The result is a very broad conceptual map of the problematique
which includes issues of political, moral and legal philosophy as well as issues of
historical, political and legal practice. Overall, it has guided us towards several
insights.
Most importantly, group rights has turned out to be an inherently paradox
legal category in the way it is traditionally presented, but is less mind-triggering
than first expected and usually acknowledged. In fact, when law accepts a group
as a right-holder, it does so the same way as it treats any other juristic person:
by ignoring the collective inner life of it and treating the group as if it is a sin-
gle person. Hence, the mind-triggering collective becomes a quite common sort
of right-holder under the corporate veil with which the law covers it. However,
throughout this work we have seen that the subject covered by the corporate veil
212 Conclusions
is often hard to define which raises the question of the coverage of such rights,
but, against the common view, does not affect the legal nature of such rights.
Indeed, many examples of group rights have shown that there are situations in
which these inherent difficulties of group rights with its coverage affect neither its
applicability nor its importance in any way.
Another point which is only rarely discussed with regard to group rights is
that group rights are conceptually distinct from human rights. Throughout this
work, it has been argued that this is the case and that it would be of great impor-
tance to discuss these issues separately. In fact, by treating the category of group
rights as if it only consisted of group human rights means to inappropriately re-
duce it to only one single and highly controversial aspect which is not representa-
tive for the category as a whole and adds little to its understanding. Moreover,
the fact that group rights are typically on governance has led to criticism of the
widespread private law and individual human rights critique as being beside the
point in most of the cases.
Another issue which has been raised throughout this work is that the con-
tested existence or non-existence of group rights in international law is often
connected with differing understandings of the concept of rights. Indeed, by
referring to the main schools on the concept of rights it has been shown that de-
pending on which view one takes, there are in fact quite many or nearly no group
rights in international law. The truth about group rights is accordingly relative.
Similar conclusions had to be drawn from the concept of legal personality which
did not amount to much more than a questioning of who was the right-holder
or duty bearer which, in turn, was based on the same theoretical debates related
with the concept of rights, or which was conceptualised in ways that made the
outcome of who was considered a legal person more or less a matter of the per-
sonal beliefs and inclinations of its supporters.
The concentration on the question of who is the right-holder has been criti-
cally discussed throughout this work. However, the perspective on how interna-
tional law treats (substate) groups has been considered useful as it shows incon-
sistencies of its approach and lays the foundation for a more coherent approach
to groups. A tentative framework of such a coherent approach has been provided.
Its basis was the principles of self-determination and non-discrimination (equal-
ity), its scope open for legal as well as political solutions while restricted by the
realistically limited role of international law in this field. Additionally, a distinc-
tion of two categories of substantially differing sorts of rights was introduced
which could help to find a more differentiated, adequate and politically feasible
approach to group claims in international law.
However, much remains to be done in this regard. The likely most important
questions which demand further inquiry include among others the application of
(international) group rights in concrete cases. As such, they include the question
of how the values they protect should weigh in comparison to values protected by
rights which compete with them in such instances a discussion which has been
argued to be relevant, but not useful, on such a general level because it would
Conclusions 213
simplistically be based on the dichotomy of group rights versus individual rights

which arguably says little about the importance of the underlying protected val-
ues.
In conclusion, this work has shown that group rights are a legal means which
can be used pragmatically and could have a place in a principled approach to
substate groups through international law, even without ignoring the limitations
of international law. This is a finding which could make them highly relevant in
the search for new and better answers of international law to group governance
within states.
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Index
A substantive 45, 71, 149, 186

affirmative action 73, 74, 75, 149 erga omnes obligations 9, 36, 53, 54, 69, 97,
and non-discrimination 11 106, 107, 157
apartheid 65, 102, 103, 104, 196
autonomy 29, 56, 59, 107, 144, 157, 178, 181, F
187, 198, 208 federalism 40, 57, 60, 141, 208
B G
Bentham, Jeremy 15 genocide 20, 32, 85, 97, 98, 101, 127, 129,
146, 147, 148, 156, 210
C obligation to prevent 107
choice theory 14, 15, 16, 19, 20, 21, 84, 120, protected groups 96
128, 151 Gierke, Otto Friedrich von 34
collectivism 128, 149, 161, 168 group rights 12
communitarianism 10, 119, 145, 147, 148, and collective rights 9, 11, 26, 143
149 and general philosophical controversies
concept of rights 157
Hohfeldian analysis 13, 14, 15, 84 and group-differentiated rights 8, 9, 10
rights and coercion 25, 36, 116, 127, 128, and human rights 11, 157, 166, 212
129, 195, 196, 197 and individual rights 153, 163, 195
rules and principles 22 and juristic persons 29
crime of persecution 100, 101, 102, 129 and non-discrimination 9
and the public-private distinction 168
D as a legal category 28, 210, 212
Dalberg-Acton, John Emerich Edward 137, concept 12, 28, 210
139, 188, 192 collective and corporate conception
democracy 47, 60, 107, 136, 137, 138, 139, 10, 26, 148
141, 142, 143, 171, 187, 188, 189, 190, 205 limits of international law 178
dilemma of difference 146, 159, 160 politics versus law 175
group right to existence 11, 86, 96, 97, 114,
E 117, 120, 125, 129, 146, 156
equality 67, 68 groups
as a principle 185 and equality 11, 77, 153, 186, 189, 192
formal 45, 149, 186 and international law 45
of individuals 136, 139, 186 as subjects 32, 132, 183, 184, 185, 203
242 Index
belligerents 84, 148 K

civilian population 100, 146, 148 Kant, Immanuel 14, 25, 137, 157, 205
family 126 Kelsen, Hans 15, 24, 35, 37, 41, 62
indigenous peoples 28, 29, 59, 76, 103,
111, 112, 125, 129, 132, 154, 155, 178, L
179, 199, 200 legal personality 84, 127, 129, 130, 149,
minorities 29, 37, 39, 62, 76, 87, 94, 103, 206, 210, 212
125, 127, 132, 141, 142, 162, 165, 171, concept 42
178, 179, 180, 184, 198, 199, 200, 201, Lemkin, Raphael 86, 87, 94
205 liberalism 68, 119, 149, 164, 166, 167, 168,
minorities and peoples 66 171, 174, 202
national liberation movements 84
national minorities 29, 59, 62, 76, 94, 96, M
108, 117, 198, 200 Mill, John Stuart 134, 138, 139, 189, 203
peoples 29, 37, 44, 47, 66, 69, 70, 118, minority protection 44, 66, 87, 108, 117,
132, 145, 182, 183, 184, 185, 194, 199, 132, 172, 180, 198
200 minority rights 44, 45, 59, 66, 93, 125,
projected groups and identity groups 128, 141, 143, 162, 178, 179, 180, 184,
203 185, 186, 188, 198
substantive connection 28, 32, 202 Montesquieu, Baron de la Brde et de 136
substantive distinction of claims 194
N
H nationalism 44, 143, 165, 167, 188, 189,
Hart, H.L.A. 14, 21, 22, 24 193
Hobbes, Thomas 34, 136 non-discrimination 43, 57, 77, 139, 185,
humanitarian law 85, 129, 148 186, 212
and equality 67, 68
I Nuremberg Trials 85, 86, 97
ICC 85, 86, 88, 92, 97, 100, 162
ICJ 37, 39, 51, 54, 64, 69, 96, 97, 105, 129, P
130, 131, 192 Pufendorf, Samuel von 34
ICTR 90, 92, 93
ICTY 92, 94, 95, 98, 101 R
indigenous rights 125, 184, 196 Radbruch, Gustav 67, 68, 166, 167, 168
individualism 70, 73, 101, 108, 115, 119, recognition 59, 140, 175, 206
121, 128, 136, 139, 151, 161, 162, 168, legal 27, 29, 75, 76, 80, 126, 148, 206
186 right-holder
and collectivism 149 as moral agent 17, 18, 20, 147, 148, 149,
interest theory 15, 16, 19, 20, 22, 83, 119, 152
128, 150, 151 in criminal law 22
international criminal law 20, 22, 86, 161 in third-party beneficiary case 21
irreducibility thesis 153 right to secession 59, 60, 192, 193
J S
Jhering, Rudolf von 15 Savigny, Friedrich Carl von 14, 34
jus cogens 36, 52, 69, 97, 156, 157, 176, 197 self-determination 44, 66, 181, 194, 204,
justified-constraint theory 16, 18, 20, 21, 205, 206
22, 128 and equality as guiding principles 191,
192, 197, 212
Index 243
and minority/indigenous groups 115 nationalist 47, 189

as a group right 46 rule and principle 22, 43, 61
as a human right 154, 155, 156, 157 subject 66
as a legal right 48, 49, 50, 51
as a political claim 46, 47 W
democratic 47, 191 war crimes 99, 100
external component 59 Windscheid, Bernhard 14
internal component 61

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The Concept of Group Rights in International Law

The Raoul Wallenberg Institute

The titles published in this series are listed at brill.nl/rawa

Groups as Contested Right-Holders,

Copyright 2012 by Koninklijke Brill nv, Leiden, The Netherlands.

This book is printed on acid-free paper.

Table of Treaties, Declarations and Other Documents xi

1. Group Rights: Rights, Subjects and Legal Personality 7

2. Group Rights in Contemporary International Law 43

2.4.2. International Criminal Law 85

3. Features of Existing Group Rights and Discussions on

4. Reappraising the Concept of Group Rights in International Law 159

Application of the Convention on the Prevention and Punishment of the Crime

ACHPR African Commission on Human and Peoples Rights

OSCE Organisation for Security and Co-operation in Europe, former

Interest in the Topic

Main Research Question

Aim of the Work

base their provision or non-provision of group rights on more rational grounds

Structure and Methods

in reality. Supporters and detractors of the concept cannot be convinced by the

This chapter concentrates on the conceptual dimension of group rights. The

1.1. Rights and Groups as Their Bearers

1.1.1. Defining and Delimiting Group Rights

3 Right-holders and bearers of rights will be used synonymously.

4 Cf. P. Jones, Cultures, Group Rights, and Group-Differentiated Rights, in M. Di-

case he describes could amount to a violation of the principle of non-discrimina-

8 See chapter 2.3.3.

Proceedings of an International Symposium of the Kiel Walther-Schcking-Institu-

found in the discussion of right-holders when applying certain theories on the

16 On the principle of non-discrimination, see chapter 2.3.

1.1.2. Group Rights and the Concept of Rights

The Hohfeldian Analysis

The Choice Theory

The Interest Theory

The Justified-Constraint Theory

Conceptions with Additional Requirements

35 In fact, as George W. Rainbolt argues, structurally there is a parallel between the

artificial person (e.g. a corporation).40 Accordingly, the Razian right-holders are

40 Raz, The Morality of Freedom, supra note 32, p. 166.

47 See generally ibid., p. 40.

1.1.3. The Third-Party Beneficiary and the Criminal Law Problem

56 Rainbolt, The Concept of Rights, supra note 25, p. 153.

Consequently, his justified-constraint theory

is neutral on the third-party beneficiary case. It is perfectly possible to write a legal

1.1.4. Rights as Rules and Principles

61 See ibid., p. 102.

1.1.5. Rights and the Problem of Coercion in International Law

64 Cf. ibid., p. 88.

68 A locus classicus of this argumentation is J. Austin, The Province of Jurisprudence

demands for compensation, but reprisals and counter-measures.75 Moreover, he

1.1.6. Group Rights as a Legal Category A Paradox?

81 Peter Jones distinction of a corporate and a collective conception of group rights

1.2. The Subjects

to claim the artificial personality or the legal personality of (certain) groups.90

90 This is the group rights-paradox discussed above in chapter 1.1.6.

95 For a general discussion of the difficulties with definitions in international law in

1.3. The Concept of Legal Personality

tions lacking these features; ultimately, legally recognised associations became

120 Cf. Damm, Personenrecht, supra note 112, pp. 865866.

son is controversial. Some scholars think it sufficient,130 having the classical

It is accepted today that legal personality is a matter of degree rather than

Nevertheless, it is obvious that the concept of legal personality cannot adequately