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The Law of International Responsibility edited by Crawford, James; Pellet, Alain; Olleson, Simon; Parlett (Assistant), Kate (20th May 2010)

Part V The Implementation of International Responsibility, Ch.68 Peoples and Minorities

Anne-Laure Vaurs-Chaumette

From: The Law of International Responsibility

Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant)

Subject(s):
Responsibility of states — Responsibility of individuals — Minorities — Actio popularis

(p. 993) Chapter 68  Peoples and Minorities

Grotius remarked that ‘Kings … have a Right to exact Punishments … for Injuries … which are, in any Person whatsoever, grievous Violations of the Law of Nature or Nations’.1 This identified one of the aspects of the modern international law of State responsibility: a subject of international law is empowered to respond to any serious breach of international norms for the protection of other entities.

The appearance in international law of the concepts of peoples and minorities, and of the rights attached to them, is relatively recent. But the definition of these concepts has not been settled. The notion of minority is generally not defined in the instruments for the protection of minority rights.2 However, it is generally accepted that the term refers to a group of individuals with common national, ethnic, cultural, religious, or linguistic links which differ from those of the majority population of the State of residence.3 The multifaceted concept of peoples,4 for its part, remains controversial: international law has failed to give it a convincing meaning in the abstract. Generally, peoples are identified through territorial criteria (eg the people inhabiting a colonial territory). But according to Verhoeven, ‘no definition of peoples or minorities is sufficient to clearly distinguish between the two groups’.5

(p. 994) In the course of the second half of the 20th century, and in parallel with the development of human rights, States adopted rules for the protection of peoples. But the question arises: have States created through these rules an international law mechanism allowing peoples to enforce respect for their rights? In other words, when the rights of a people or a minority are breached by a State, do these groups have the legal capacity to invoke the international responsibility of that State?

While individuals seem to have attained the character of derivative subjects of international law, the status of peoples remains uncertain. According to the International Court, an entity is considered a subject of international law when it ‘is capable of possessing international rights and duties’, and when it has the capacity to ‘maintain its rights by bringing international claims’.6 Although it is unquestionable that certain rights have been granted to peoples and minorities, these two groups have not yet achieved legal capacity to demand respect for those rights. The question then arises whether, due to this deficiency, States are able to act in defence of the injured rights of peoples and minorities.

Peoples and minorities: simple beneficiaries of rights

In 1945 the priority was to safeguard individual rights. But since 1966 the International Covenants introduced a collective dimension to human rights,7 establishing in their first article that the fulfilment of collective rights of peoples is a pre-condition for the effective enjoyment of individual human rights.8 Despite the fact that international law recognizes certain rights to peoples and minorities, however, it does not allow them to claim these rights before international bodies. Groups of individuals thus do not appear as the holders but rather as the addressees of these rights—they are, in this sense, objects of international law.

(a)  The rights recognized to peoples and minorities

Since Ago, the object of the ILC’s project on State responsibility focused on the secondary rules of international law. Nevertheless, as recognized by Crawford, primary obligations have an impact on the secondary rules on State responsibility.9 Thus, the identification of the rights granted to peoples and minorities is an indispensable precondition to the study of their capacity to invoke the responsibility of States for the breach of these rights. According to article 2 ARSIWA, the responsibility of the State arises when there is a breach of an international obligation which is attributable to it. In the case at hand, this State must have breached an international obligation which is binding on it and which is aimed at the protection of peoples or minorities. In this respect, international law does not grant solely rights to these groups but also establishes certain prohibitions in relation to the commission of genocide or the imposition of apartheid or any other form of discrimination.

(p. 995) On the one hand, peoples and minorities enjoy clearly defined rights established in international and regional instruments. In conformity with articles 1(2) and 55 of the UN Charter,10 peoples have the right to self-determination. This principle is reaffirmed by General Assembly Resolutions 1514 (XV)11 and 2625(XXV).12 These texts expressly affirm that the right to self-determination belongs to peoples: according to paragraph 2 of Resolution 1514 (XV), it is ‘all peoples’ who ‘have the right to self-determination’. Equally, the texts affirm that States must respect this right and have the correlative obligation to abstain from recurring to ‘any forcible action which deprives peoples … of their right to self-determination and freedom and independence’.13 In consequence, if peoples are the recipients of this right, then States have the correlative duty to ensure its effectiveness. In 1981, the adoption of the African Charter on Human and Peoples’ Rights14 expanded the rights granted to peoples: in addition to the consecration of the right to self-determination, the Charter also recognizes their right to existence,15 permanent sovereignty over natural resources,16 and an environment favourable to their socio-economic and cultural development.17 These peoples’ rights are systematically associated to a State obligation to undertake measures necessary to ensure their effective exercise.

Minorities similarly appear to benefit from numerous rights defined in article 27 of the International Covenant on Civil and Political Rights (ICCPR), pursuant to which:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Nonetheless, it appears from the provision that the holders of the rights are not the minorities qua groups of individuals but the individuals comprising the minority. This imperfection is repeated in the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.18 The Declaration affirms to minorities the right to the protection of their existence and identity,19 which prohibits the elimination of minorities from the territory of a State either through expulsion or extermination (ie genocide) as well as any cultural destruction or ethnocide; the right to participate in decisions which affect the group,20 and the right to establish and maintain their own associations. This text introduces new collective rights and purports to impose on the State certain obligations of means. Equally, international law grants to peoples and to individual members of a minority rights which are opposable to States.

Peoples and minorities are also protected against the commission of certain unlawful acts. Article II of the Convention on the Prevention and Punishment of the Crime of Genocide establishes as one of the constitutive elements of the crime of genocide ‘the intention to destroy, in whole or in part, a national, ethnic, racial or religious group as such’.21 This wording thus protects groups of individuals against genocide, a crime that violates the most fundamental right of minorities: their right to existence. The ICJ interpreted the obligations following from this Convention widely: if the literal text of the 1948 Convention only required States to adopt measures for the prevention and punishment of genocide by individuals, the Court considered that:

(p. 996) the reference in Article IX to ‘the responsibility of a State for genocide or for any of the other acts enumerated in Article III’, does not exclude any form of State responsibility. Nor is the responsibility of a State for acts of its organs excluded by Article IV of the Convention, which contemplates the commission of an act of genocide by ‘rulers’ or ‘public officials’.22

Equally, the concept of apartheid aims at the protection of a racial group that exists within the population of a State. Article II of the Convention on the Suppression and Punishment of the Crime of Apartheid establishes that any act for the establishment and maintenance of ‘domination by one racial group of persons over any other racial group of persons and systematically oppressing them’ constitutes apartheid.23 It must be highlighted that although this Convention is addressed to States, it only imposes on them, if need be, the duty to prosecute those responsible. Other international instruments protect peoples against any form of discrimination, in particular, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,24 and the 1969 United Nations Convention on the Elimination of all Forms of Racial Discrimination, which imposes on States the obligation to eliminate all forms of racial discrimination.25

The international protection of peoples and minorities is thus characterized by the existence of rules of incentive and rules of prohibition imposed on States. But what does international law say when the rights of these groups are breached?

(b)  The limited legal capacity of injured peoples and minorities

States have obligations vis-à-vis groups of individuals. Nevertheless, peoples and minorities seem not to have a mechanism at their disposal allowing them to invoke their rights by States before international jurisdictions. It must be noted, at first, that in accordance with article 34(1) of the ICJ Statute, only States have access to the Court. It follows that minorities and peoples do not have the capacity to act before the judicial organ of the United Nations. It must thus be asked whether they can have recourse to other international instances in case of breach of their rights by a State.

First, peoples and minorities had, until 2006, access to a particular procedure established by Resolution 1503 (XLVIII)26 of the Economic, Cultural and Social Council of the United Nations, and modified by Resolution 2003/3.27 The Sub-Commission for the Promotion and Protection of Human Rights was competent to investigate complaints submitted by individuals or groups of individuals. Although it would appear that minorities had a means to protect their rights, it must be emphasized that it was not, stricto sensu, an international judicial protection of these rights capable of engaging the State’s responsibility. Moreover, this subsidiary organ of the Human Rights Commission was suppressed in 2006 when the Human Rights Council was established and was replaced by the Advisory Committee of the Human Rights Council.28 This new organ, composed of experts, has only an advisory function, as its name suggests. It did not inherit the competence to investigate claims that was entrusted to the Sub-Commission. In addition, in December 2007, the Human Rights (p. 997) Council decided to create an Expert Mechanism on the Rights of Indigenous Peoples.29 This mechanism does not constitute a system of judicial protection (any more than that of the Sub-Commission). It is only entrusted with the competence to engage in studies and research on indigenous peoples and to make proposals to the Council.30

Second, the analysis of international instruments recognizing rights to peoples results in a peculiar paradox: while these texts establish guarantees for peoples as such, the international judicial procedures allowing invocation of a State’s responsibility for the breach of these rights is only open to members of the people, that is to the individuals composing the group. Thus only individual victims of discriminatory measures can bring claims under the Racial Discrimination Convention. Equally, article 1 of the Optional Protocol to the ICCPR31 does not allow peoples to address to the Human Rights Committee communications related to breaches of their right to self-determination, guaranteed by article 1 of the Covenant.32 As for breaches of article 27 of the Covenant granting certain rights to minorities, it is once more only the members of these minority groups that can seize the Committee. Finally, the case of the African Commission on Human Rights must be emphasized: although the Commission recognizes the justiciability of peoples’ rights, peoples as such are not allowed to invoke it.33 Recently, the Commission has also accepted the ‘actio popularis’ of two human rights NGOs acting on behalf of the Ogoni People in Social and Economic Rights Action Center, Center for Economic and Social Rights v Nigeria.34

Third, a people which is the addressee of a right is sometimes incapable of enforcing this right. Thus, if groups are protected against genocide by the 1948 Convention, there is no mechanism at their disposal to ensure respect of this prohibition by States. Similarly, pursuant to the Racial Discrimination Convention, only States can bring claims before the Committee established to examine violation of the Convention’s obligations.

It follows that international law does not grant peoples, as groups, the possibility to bring claims where their rights are violated. Thus, in default of judicial mechanisms to ensure their respect, the rights of peoples risk becoming purely theoretical. This is the reason why the possibility of individual claims or collective claims by States on behalf of injured peoples must be envisaged.

An actio popularis by States on behalf of injured peoples?

The international law of State responsibility distinguishes two regimes: one that applies in relation to the breach of obligations ‘whose fulfilment is of fundamental importance to the international community as a whole’, and one that applies ‘in cases where the State had merely failed to fulfil an obligation of lesser and less general importance’.35 The regime of (p. 998) responsibility thus depends on the object of the international obligation breached. And yet, by creating obligations for the protection of non-State entities, in particular peoples and minorities, States have articulated ‘extra-State interests’ that have priority over the individual interests of States. By virtue of article 48 ARSIWA, all States have thus an interest in the respect of peoples and minorities’ rights.

(a)  The peremptory character of the norms for the protection of peoples

The prohibition of ‘serious breaches’ constitutes a standard of protection for groups as such. The unlawful act attributable to the State is of such gravity that it constitutes a violation of peremptory norms owed to the international community as a whole. By virtue of article 48, all States other than the injured State may invoke responsibility. The concept of peremptory norm is defined by the Vienna Convention on the Law of Treaties as a rule ‘accepted and recognized as such by the international community of States as a whole’.36 Are the right to self-determination, the prohibition of genocide and apartheid peremptory rules whose violation entails a specific regime of State responsibility?

During the second half of the 20th century, international case law recognized that the rights of which peoples and minorities are the addressees are rules opposable erga omnes and even norms of jus cogens. The International Court has recognized the erga omnes character of the prohibition of genocide and racial discrimination, which may include apartheid. Since 1951, the Court has considered ‘genocide as “a crime under international law” involving a denial of the right of existence of entire human groups’.37 The Court confirmed its position in 1970 by announcing, among examples of obligations erga omnes, the prohibition of genocide and racial discrimination.38 Finally, in 2006, the Court recognized that ‘the norms codified in the substantive provisions of the Genocide Convention have the status of jus cogens and create rights and obligations erga omnes’.39 Similarly, international forums have progressively recognized that the right of peoples to self-determination is a peremptory norm. The Arbitration Commission of the Conference for Peace in Yugoslavia, in 1991, also explicitly stated respect of minorities and the right to self-determination of peoples to be peremptory norms of international law.40

This case law has been confirmed by UN resolutions and by reports of the ILC. UN General Assembly resolutions insist on the point that the commission of acts of genocide, the maintenance of a system of apartheid or colonial domination constitute grave violations of international law. Since 11 December 1946, genocide has been considered by the General Assembly as an ‘international crime’.41 Twenty years later, the General Assembly characterized apartheid as a ‘crime against humanity’,42 confirmed by the Security Council in 1984.43 The Assembly equally condemned violations of the right to self-determination, (p. 999) declaring ‘the continuation of colonialism … [as] a crime’.44 As for the ILC, it has referred to the prohibition of genocide,45 the prohibition of apartheid,46 and the obligation to respect the right of self-determination of peoples47 as examples of peremptory norms (whose breach constitutes an international crime).48

Not only have the rules for the protection of peoples and minorities acquired the character of erga omnes rules and even jus cogens, but their breach has also been systematically qualified as an international crime, that is, as a serious breach of an obligation owed to the international community as a whole. For these reasons, according to article 48 ARSIWA a serious breach of universal principles gives rise to special consequences in the field of State responsibility.

(b)  Towards actio popularis by States on behalf of peoples and minorities

Traditionally a State suffers injury when another subject of international law has, through an internationally unlawful act, breached one of its subjective rights. From that moment, the injured State is allowed to bring a claim for international responsibility against the injuring State and to request reparation of the damage suffered. However, since the 19th century, certain authors, such as Blüntschli, maintained that if the violation threatens the international community, then all States have the capacity to react to re-establish the respect for international law.

In the case of rights of peoples and minorities, the status of ‘injured State’ does not ex hypothesi derive from any individual damage caused to the State itself, but rather from its membership in the international community. In fact, the right of self-determination, the prohibition of genocide and apartheid all concern groups: it is the groups themselves who suffer direct injury when the rules are breached. But, since these rights are guaranteed by rules which are opposable erga omnes, all States have an interest in seeing these rights respected; and when a primary rule of international law envisages the protection of extra-State interests and invites States to participate in the application of this rule, it must be admitted that States have an interest to act to request respect for said rule. However, if States must act on behalf of the specially affected victim,49 they should not be identified with the groups concerned: they do not become the holders of the rights of peoples and minorities.

The recognition of the concept of a State other than the injured State provides different responses to the international wrongful act which breaches a peremptory norm for the protection of groups of individuals. If collective sanctions can be adopted by an international organization, equally States may act individually by virtue of articles 41, 48, and 54 ARSIWA.

(i)  Institutionalized State action

The protection of groups of individuals threatened by the violation of an obligation owed to the international community as a whole can entail a collective State reaction. The (p. 1000) Security Council has considered that the breach to peremptory norms for the protection of peoples and minorities constitutes a threat to international peace and security, which justifies intervention on the basis of Chapter VII of the Charter. Thus, the Council considered that the breach of the right of self-determination of peoples in Southern Rhodesia was a threat to international peace,50 and that apartheid and racial discrimination in South Africa constituted a threat to international security.51 In addition, in accordance with article 41(1) ARSIWA, States must ‘cooperate to bring to an end’ breaches of peremptory norms. In 1991, States members of the European Union agreed to first suspend and to then denounce the Cooperation Agreement with Yugoslavia because the humanitarian crisis in Kosovo breached peremptory norms and constituted a threat to international peace and security.52

Under the direction of Ago, the Commission seems to have considered that collective actions are preferable to unilateral actions,53 for they allowed a centralized and institutionalized characterization of the breach and the adoption of coercive measures. On the basis of the Namibia advisory opinion of 1971,54 Riphagen considered that the reaction of a State other than the injured State should be based on a ‘collective decision’, generally, a UN decision.55 However, the Commission not only refused to specify the modalities of the intervention of an international organization,56 it also allowed decentralized reactions by States as a response to a breach of a peremptory norm for the protection of groups of individuals.

(ii)  Decentralized State action

Sicilianos considers that when a ‘breach concerns the international community; the reaction to it can be decentralized’.57 Individual State action in case of serious breaches of peoples and minorities’ rights is characterized by the requirements of article 41(2) of the ARS; by the possibility to adopt ‘lawful measures … to ensure cessation of the breach and reparation in the interest of … the beneficiaries of the obligation breached’ (article 54); and even by an eventual actio popularis by States based on article 48.

According to article 41(2), States must not recognize situations created by a serious breach of peremptory norms guaranteeing peoples and minorities’ rights and they must not contribute to the maintenance of the situation. This obligation requires a prior characterization of the situation. Both the characterization as well as the prohibition of recognition of to recognize the situation may be carried out by the Security Council,58 by the General Assembly,59 or by the ICJ.60 Nevertheless, an institutional characterization does not exclude unilateral characterization by States.

(p. 1001) In order to obtain respect for peoples and minorities’ rights, article 54 envisages the adoption by a State other than the injured State of ‘lawful measures’ to bring to an end the breach of the obligations owed to the international community.61 Similarly, certain States have preferred to act unilaterally. Thus the United States adopted measures against Uganda for the commission of genocide by its government62 and against South Africa in order to oblige it to bring to an end the apartheid regime.63

Finally, as Riphagen submitted in 1982:

the introduction of extra-State interests as the object of protection by rules of international law tends towards the recognition of an actio popularis of every State having participated in the creation of such extra-State interest, the other possibilities of enforcement being either only self-enforcement, or enforcement by the subject to which this extra-State interest is allocated for this purpose.64

Since peoples and minorities cannot bring claims for the responsibility of a State which breaches their rights, enforcement by the addressees of the rights is excluded. Similarly, enforcement by one of the States which participated in the creation of the norm is not envisaged by the rights in question: indeed, only the State which engages in genocide, apartheid, continuation of colonialism is able to put an end to the breach. Consequently, only the actio popularis is capable of ensuring respect for peremptory norms granting rights to peoples and minorities.

This mechanism was initially excluded by the International Court. In 1966, the Court considered that only the State who was the direct victim of the breach could claim the international responsibility of the State author of the internationally wrongful act: the Court considered that international law did not recognize actio popularis and in consequence ‘a right resident in any member of a community to take legal action in vindication of a public interest’65 did not exist. The Court has not yet recognized the capacity of the community of States in cases of breach of jus cogens norms. And yet, by definition, one such norm is owed ‘to the international community of States as a whole’.66 It follows that even if States do not suffer a direct injury from the breach of a peremptory norm, they have a legal interest in seeing and ensuring that the rule is respected.

However, an analysis of the subsequent case-law demonstrates that the Court does not explicitly reject the actio popularis. First, in Barcelona Traction the Court seems to implicitly accept the existence of one such action in cases where a jus cogens norm has been breached or an international crime has been committed. In 1970, the Court considered that:

an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.67

(p. 1002) The Court recognized that each State has a legal interest in the respect of erga omnes rules and, a fortiori, of peremptory norms including those for the protection of peoples and minorities.

Second, in two subsequent judgments concerning States not directly injured, the Court dismissed their claim on bases other than the non-existence of an actio popularis, thus leaving the question open. On the one hand, in Nuclear Tests New Zealand and Australia considered that atmospheric testing in the Pacific breached the collective interests of the international community. But the refusal of the Court to continue the proceedings in 1974 was due to the dispute having become moot after the statements of President Chirac, and not because it considered the claim to be inadmissible.68 On the other hand, in the East Timor case Portugal invoked the right of the East Timorese people to selfdetermination. The Court confirmed that the right of self-determination of peoples was a right ‘opposable erga omnes’ but, given the absence of Indonesia from the proceedings, the Court declared itself incompetent on the basis of the Monetary Gold principle.69 What may seem paradoxical about this conclusion may be explained by the fact that the Court in East Timor referred to erga omnes rights and not to erga omnes obligations.

Finally, since 1970, the question of an actio popularis in the hypothesis of a breach of erga omnes rules remains an open question. Under article 48, any State of the international community is capable of claiming the responsibility of another State, whose conduct has breached a peremptory norm for the protection of groups of individuals. In consequence, it is perfectly possible that through an actio popularis, injured peoples and minorities may obtain respect for the most fundamental rights granted to them by international law. Nevertheless, groups of individuals remain incapable, as such, to invoke the international responsibility of States for the violation of their rights.

Further reading

  • F Bataillier-Demichel, ‘Droits de l’homme et droits des peuples dans l’ordre international’, in Le Droit des peuples à disposer d’eux-mêmes: méthodes d’analyse du droit international; mélanges offerts à Charles Chaumont (Paris, Pedone, 1984), 23
  • A Beaudouin, ‘Le maintien par la force d’une domination coloniale’, in H Ascencio, E Decaux, & A Pellet, Droit international pénal (Paris, Pedone, 2000), 427
  • Y Ben Achour, ‘Souveraineté étatique et protection internationale des minorités’ (1994-I) 245 Recueil des cours 321
  • IO Bokatola, ‘La Déclaration des Nations Unies sur le droit des personnes appartenant à des minorités nationales ou ethniques, religieuses et linguistiques’ (1993) 97 RGDIP 745
  • A Cassese, Self-Determination of Peoples—A Legal Reappraisal (Cambridge, CUP, 1995)
  • A Cassese, ‘Self-determination Revisited’, in M Rama Montaldo (ed), El derecho internacional en un mundo en transformación en homenaje al profesor Eduardo Jiménez de Aréchaga (Montevideo, Fundación de Cultura Universitaria, 1994), Vol I, 229
  • J Charpentier, ‘Autodétermination et decolonisation’, in Le Droit des peuples à disposer d’eux-mêmes: méthodes d’analyse du droit international; mélanges offerts à Charles Chaumont (Paris, Pedone, 1984), 117
  • Y Dinstein, ‘Self-determination Revisited’, in Le Droit des peuples à disposer d’eux-mêmes: méthodes d’analyse du droit international; mélanges offerts à Charles Chaumont (Paris, Pedone, 1984), 241
  • (p. 1003) L Favoreu, ‘Affaire du Sud-Ouest Africain’ (1966) 11 AFDI 123
  • V Gowlland-Debbas (ed), United Nations Sanctions and International Law (The Hague, Kluwer Law International, 2001)
  • V Gowlland-Debbas, Collective Responses to Illegal Acts in International Law—United Nations Action in the Question of Southern Rhodesia (Dordrecht, Martinus Nijhoff Publishers, 1990)
  • AJJ de Hoogh, Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of International Responsibility of States (Nijmegen, Kluwer Law International, 1995)
  • K Kawazaki, ‘The “Injured State” in the International Law of State Responsibility’ (2000) 28 Hitosubasi Journal of Law and Politics 17
  • N Lerner & M Nowak, ‘The Evolution of Minority Rights in International Law’, in C Brölmann, R Lefeber, & M Zieck (eds), Peoples and Minorities in International Law (Dordrecht, Martinus Nijhoff Publishers, 1993), 77
  • L Matarasso, ‘A propos d’initiatives de caractère non étatique en faveur du droit des peoples’, Le Droit des peuples à disposer d’eux-mêmes: méthodes d’analyse du droit international; mélanges offerts à Charles Chaumont (Paris, Pedone, 1984), 397
  • R Monaco, ‘Observations sur le droit des peuples dans la communauté internationale’, in M Rama Montaldo (ed), El derecho internacional en un mundo en transformación en homenaje al profesor Eduardo Jiménez de Aréchaga (Montevideo, Fundación de Cultura Universitaria, 1994), Vol I, 217
  • G Perrin, ‘La détermination de l’Etat lésé. Les régimes dissociables et les régimes indissociables’, in J Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century—Essays in Honour of Krzystof Skubiszewski (The Hague, Kluwer, 1996), 243
  • J-F Prévost, ‘Observations sur l’avis consultatif de la CIJ relatif au Sahara occidental (“terra nullius” et autodétermination)’ (1976) 103 JDI 831
  • F Rigaux (ed), Le concept de peuple (Brussels, Story-Scientia, 1988)
  • H Ruiz Fabri & J-M Sorel, ‘Chronique de jurisprudence de la C.I.J. (1995)—Affaire relative au Timor oriental (Portugal/Australie): arrêt du 30 juin 1995’ (1996) 123 JDI 756
  • K Sachariew, ‘State Responsibility for Multilateral Treaty Violations: Identifying the “Injured State” and its Legal Status’ (1988) 35 NILR 273
  • L-A Sicilianos, Les réactions décentralisées à l’illicite—Des contre-mesures à la légitime défense (Paris, LGDJ, 1990)
  • B Stern, ‘Chronique de jurisprudence de la C.I.J. (1991); Affaire du Timor oriental (Portugal-Australie)’ (1991) 118 JDI 740
  • J-M Thouvenin, ‘L’arrêt de la Cour internationale de Justice du 30 juin 1995 rendu dans l’affaire du Timor oriental (Portugal c. Australie)’ (1995) 41 AFDI 328
  • F Voeffray, L’actio popularis ou la défense de l’intérêt collectif devant les jurisdictions internationals (Paris, PUF, 2004)
  • A-M de Zayas, ‘The International Judicial Protection of Peoples and Minorities’, in C Brölmann, R Lefeber, & M Zieck (eds), Peoples and Minorities in International Law (Dordrecht, Martinus Nijhoff Publishers, 1993), 253
  • J Zourek, ‘La lutte d’un peuple en vue de faire prévaloir son droit à l’autodétermination constitue-elle au regard du droit international un conflit interne ou un conflit de caractère international?’, in Diritto internazionale: storia delle relazioni internazionali—Studi in onore di Manlio Udina (Milan, Giuffrè, 1975), 897(p. 1004)

Footnotes:

H Grotius, De Iure Bellis ac Pacis, 1646, (R Tuck (ed), Hugo Grotius’ De Iure Bellis ac Pacis (reprinted, Indianapolis, Liberty Fund, 2005)), 1021, Book II, Chapter XX, para XL.

Due to lack of consensus within the UN, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res 47/135, 18 December 1992, contains no definition of ‘minority’.

Greco-Bulgarian Communities, 1930, PCIJ Reports, Series B, No 17, p 4, 21; F Capotorti, ‘Minority’, in R Bernhardt et al (eds), Encyclopaedia of Public International Law (Amsterdam, North Holland, 1985), vol 8, 385.

F Rigaux (ed), Le concept de peuple (Brussels, Story-Scientia, 1988), IV.

J Verhoeven, ‘Peuples et droit international’, in F Rigaux (ed), Le concept de peuple (Brussels, Story-Scientia, 1988), 52.

Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p 174, 179. For a challenge to this definition in the field of international criminal law, see A-L Vaurs-Chaumette, Les sujets du droit international pénal. Vers une nouvelle définition de la personnalité juridique internationale? (Paris, Pedone, 2009).

International Covenant on Civil and Political Rights, 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3.

The dichotomy between general protection of individuals through human rights and protection of minorities through collective rights had already been envisaged by the PCIJ in the advisory opinion on Minority Schools in Albania, PCIJ Reports, Series A/B, No 64, 17.

ARSIWA, Introductory Commentary, para 4(a).

10  1 UNTS 1.

11  GA Res 1514 (XV), 14 December 1960.

12  GA Res 2625 (XXV), 24 October 1970.

13  Ibid.

14  1520 UNTS 217.

15  Ibid, art 20(1).

16  Ibid, art 21.

17  Ibid, arts 22 and 24.

18  GA Res 47/135, 18 December 1992.

19  Ibid, art 1(1).

20  Ibid, art 2(4).

21  78 UNTS 277.

22  Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, ICJ Reports 1996, p 595, 616 (para 32); confirmed in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia), Merits, Judgment, 26 February 2007, 63 (paras 166–167).

23  1015 UNTS 243.

24  GA Res 36/55, 25 November 1981.

25  660 UNTS 195, art 2.

26  ECOSOC Res 1503 (XLVIII), 27 May 1970.

27  ECOSOC Res 2000/3, 16 June 2000.

28  GA Res 60/251, 3 April 2006.

29  Human Rights Council Res 6/36, 14 December 2007.

30  Ibid, para 1.

31  999 UNTS 302.

32  As R Errera regretted in his separate opinion, the Mikmaq case did not allow determination of whether an individual could act on behalf or a people and seize the Committee with violations of art 1(1) of the Covenant: The Mikmaq Tribal Society v Canada, HRC, Communication No 78/1980, 29 July 1984, UN Doc Supp No 40 (A/39/40), 200; 79 ILR 261, 266.

33  See Sir Dawda K Jawara/Gambie, ACHPR, Communications No.147/95 and 149/96, 11 May 2000, in relation to article 26 of the African Charter on the right to internal self-determination; Social and Economic Rights Action Center, Center for Economic and Social Rights v Nigeria, ACHPR, Communication No 155/96, 13–27 October 2001, in relation to article 24 of the African Charter on the right to a satisfactory environment.

34  Ibid (para 49).

35  Commentary to draft art 19, para 6, Report of the ILC, 28th Session, ILC Yearbook 1976, Vol II(2), 97.

36  1155 UNTS 331, art 53.

37  Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p 15, 23.

38  Barcelona Traction Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3, 33 (para 34).

39  Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction of the Court and Admissibility of the Application, ICJ Reports 2006, p 6, 28 (para 60).

40  Opinion No 1, 29 November 1991, (1992) 31 ILM 1494, 1494–1496 (para 1-e).

41  GA Res 96(I), 11 December 1946.

42  GA Res 2202A(XXI), 16 December 1966.

43  SC Res 556 (1984), 23 October 1984.

44  GA Res 2621(XXV), 12 October 1970.

45  Commentary to draft art 19, para 6, Report of the ILC, 28th Session, ILC Yearbook 1976, Vol II(2), 97.

46  Ibid.

47  Commentary to draft art 19, para 18, ibid, 102. See also J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 94.

48  See draft art 19(3) as adopted on first reading, ILC Yearbook 1976, Vol II(2), 95.

49  Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 33 (para 140).

50  SC Res 217, 20 November 1965.

51  SC Res 418, 4 November 1977, through which the Council also imposed an embargo on South Africa.

52  Common positions adopted on 7 May and 29 June 1998, Official Journal of the EC, 1998, L 143, 1, and L 190, 3.

53  Cf ILC Yearbook 1976, Vol I, 67ff.

54  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p 16.

55  W Riphagen, Preliminary Report on State Responsibility, ILC Yearbook 1980, Vol II(1), 121 (para 68).

56  Commentary to art 54, para 2.

57  L-A Sicilianos, Les réactions décentralisées à l’illicite—Des contre-mesures à la légitime défense (Paris, LGDJ, 1990), 135.

58  See eg SC Res 216, 12 November 1965, requiring States not to recognize Southern Rhodesia.

59  See eg GA Res 31/6A, 27 October 1976, calling on States not to recognize Transkei.

60  See eg Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p 136, 200 (paras 159–160): the Court considered that, faced with the breach of obligations erga omnes, in particular the right of self-determination, all States have an obligation not to recognize the unlawful situation and not to lend support to the creation of this situation. The Court invited the Security Council and the General Assembly to adopt the necessary measures to bring the situation to an end.

61  Commentary to art 54, para 7.

62  Uganda Embargo Act, 22 USC s. 2151 (1978).

63  Comprehensive Anti-Apartheid Act (1987) 26 ILM 79.

64  W Riphagen, Third Report on State Responsibility, ILC Yearbook 1982, Vol II(1), 37 (para 94).

65  South West Africa (Liberia/Ethiopia v South Africa), Second Phase, ICJ Reports 1966, p 6, 47 (para 88).

66  Art 48, ARSIWA.

67  Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Second Phase, ICJ Reports 1970, p 3.

68  Nuclear Tests (Australia/New Zealand v France), ICJ Reports 1974, p 253.

69  East Timor (Portugal v Australia), ICJ Reports 1995, p 90.