General Section
Autonomy for Minorities: Definitions,
Types and Status in International Law
Athanasios Yupsanis*
ABSTRACT: Autonomy for minorities is a recurring issue in legal and political
studies. Adherents of the idea argue that it would offer enhanced protection to
minorities and ensure State and regional peace and stability. Opponents claim
that it could lead to destabilisation and secession, as well as to discrimination
against ‘minorities within minorities’. These concerns have resulted in a refusal so
far to recognise such a right to minorities. Recent developments, however, like the
recognition of a right to autonomy to indigenous peoples in the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), can benefit minorities,
notwithstanding the fact that the UN treats these two kinds of groups as distinct
categories with different sets of rights, because of the several analogies and similarities found between them. In this context, it is argued that recognising a right to
autonomy to minorities in international law upon certain terms, would give them
a better bargaining position for negotiating their rights within States’ borders. In
such a case, a combination of territorial and non-territorial arrangements would
foster minority protection and help prevent ethnic conflict.
KEYWORDS: territorial autonomy, non-territorial/cultural autonomy, minority
rights
1. Introduction
The idea of autonomy, which the Oxford English Dictionary defines as
‘the right of self-government’,1 is ‘a re-emerging topic’2 for minorities in
academic and policy makers’ domestic discussions on the management of
ethno-cultural diversity and the protection of minority rights both in Europe
* LL.M, PhD in International Law, Adjunct Lecturer at the School of Political Sciences of
Aristotle University of Thessaloniki; Contact: thayup2@gmail.com.
1. See Glen Anderson, ‘Secession in International Law and Relations: What Are We Talking
About?’ (2013) 35 Loyola of Los Angeles International and Comparative Law Review
343–88, 385.
2. Péter Kovács, ‘Autonomy and International Law’ [translated by Endre Orbán] (2012) 3
Délkelet Európa – SouthEast Europe International Relations Quarterly 1–3, 1.
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and elsewhere.3 Its proponents include several scholars and certain political
bodies, such as the Parliamentary Assembly (PACE) of the Council of Europe
(CoE), and a few individual States (eg Hungary), which argue that minority autonomy can contribute to minority protection and ethnic conflict
prevention. The PACE, for example, has recently stated in its Resolution 1985
(2014) that ‘[m]inority protection is … a means of conflict prevention’,4 and
that ‘territorial arrangements might play an important role for the effective
protection of the rights of national minorities’.5 The PACE also referred to
non-territorial arrangements in its Resolution 1866 (2012) on the adoption
of an additional protocol to the European Convention on Human Rights
(ECHR) for national minorities, suggesting that such a protocol could
guarantee some minimum standards, ‘including the right to cultural autonomy to preserve national identity’.6 In an analogous context, the Advisory
Committee (ACFC) of the Framework Convention for the Protection of
National Minorities (FCNM) of CoE examined the functioning and impact
of territorial and non-territorial cultural autonomy arrangements in those
States Parties where they exist, and commented that the former ‘can foster
a more effective participation of persons belonging to national minorities in
various areas of life’,7 while the latter can ‘contribute to the preservation and
development of minority cultures’.8
3. Günther Rautz, ‘Exploring Territorial and Cultural Autonomy as a Means of Conflict Resolution and Minority Protection’ in Thomas Benedikter (ed), Solving Ethnic Conflict Through
Self-Government: A Short Guide to Autonomy in Europe and South Asia (Bozen/Bolzano,
EURAC, 2009) 4–5.
4. PACE, Resolution 1985 (2014), The Situation and Rights of National Minorities in Europe,
debate on 8 April 2014 (13th Sitting), para 6 www.assembly.coe.int/nw/xml/XRef/XrefXML2HTML-en.asp?fileid=20772&lang=en (last accessed 10 December 2018). All further
references to online sources are accurate as of that date.
5. Ibid, para 7. See also PACE, Resolution 1333 (2003), Positive Experiences of Autonomous
Regions as a Source of Inspiration for Conflict Resolution in Europe, debate on 24 June 2003
(19th Sitting), para 16 www.assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.
asp?fileid=17120&lang=en.
6. PACE, Resolution 1866 (2012), An Additional Protocol to the European Convention on
Human Rights on National Minorities, text adopted by the Standing Committee, acting on
behalf of the Assembly, on 9 March 2012, para 6.3 www.assembly.coe.int/nw/xml/XRef/
Xref-XML2HTML-EN.asp?fileid=18074&lang=en. For a critical view on the PACE’s
minority autonomy proposal, see Stephanie E Berry, ‘The Siren’s Call? Exploring the
Implications of an Additional Protocol to the European Convention on Human Rights
in National Minorities’ (2016) 23 International Journal on Minority and Group Rights
1–38, 11.
7. ACFC, Commentary on the Effective Participation of Persons Belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs, ACFC/31DOC(2008)001,
Strasbourg, 5 May 2008, para 134.
8. Ibid, para 135.
Autonomy for Minorities
5
The opponents of the idea, on the other hand, include the vast majority of
States, which fear that it would lead to destabilisation and even to secession,
and scholars, who argue that it will result in discrimination against ‘internal
minorities’.9 Due mainly to strong States’ objections to the recognition of a
minority right to autonomy, no such right exists, not only in general public
international law,10 but also in the stricter context of the regional European
legal order, which accords stronger protection to minorities. The FCNM, for
example, the only legally binding multilateral instrument devoted to minority rights, does not provide for a right to autonomy of persons belonging to
minorities, whether territorial or non-territorial/cultural.11 Also, the aforementioned PACE resolutions and recommendations are merely of a political
nature and not legally binding,12 as are the very few, and weakly worded,
relevant provisions found in exclusively ‘soft law’ minority texts, which will
be examined below.
Public international law, however, is not carved in stone, but is constantly
evolving and adapting to new situations, needs and demands. Originally
it mainly governed relations between States, which were the only subjects
that had rights and duties under its norms. Today, however, groups such as
indigenous peoples to a larger degree13 and minorities to a lesser are also
recognised, albeit reluctantly, as minor actors, having some rights and duties
under it.14 Specifically regarding minority rights it should be noted that, until
the late 1980s, most States declined to adopt positive measures of minority
protection, under the argument that this kind of treatment is detrimental
9. Farimah Daftary, ‘Insular Autonomy: A Framework for Conflict Resolution? A Comparative Study of Corsica and the Aaland Islands’ (2001) 1 The Global Review of Ethnopolitics
19–40, 20.
10. See Doris Wydra, ‘The Crimea Conundrum: The Tug of War Between Russia and Ukraine
on the Questions of Autonomy and Self-Determination’ (2004) 10 International Journal
on Minority and Group Rights 111–30, 123; Thomas D Musgrave, Self-Determination and
National Minorities (Oxford, Clarendon Press, 1997) 208; Patrick Thornberry, ‘Minorities
and Europe: The Architecture of Rights’ (1994) XLII European Yearbook 1–19, 10.
11. György Frunda (Rapporteur), An Additional Protocol to the European Convention on
Human Rights on National Minorities, Committee on Legal Affairs and Human Rights,
AS/Jur(2011)46, 8 November 2011, para 58.
12. Tudor Tănăsescu, ‘Council of Europe and the Protection of Minorities’ (2013) 2 AGORA
International Journal of Juridical Sciences 197–203, 202.
13. See Vassilis Grammatikas, ‘Kossovo v. South Osetia? Modern Politics of Secession and
International Law’ (2009) 1 Journal of International Law 26–43, 27.
14. See Prosper Nobirabo Musafiri, ‘Right to Self-Determination in International Law:
Towards Theorisation of the Concept of Indigenous Peoples/National Minority?’ (2012)
19 International Journal on Minority and Group Rights 481–532, 481.
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to national unity since it creates privileges for minorities.15 This attitude
was also in line with the interpretation agreed at the time of the adoption
(1966) of Article 27 of the International Covenant on Civil and Political
Rights (ICCPR), the main universal legally binding minority norm, which
provides that minority members shall not be denied their right to use their
language, to enjoy their culture and to profess and practice their religion.16
Its negative phrasing was construed to imply a passive State duty of noninterference in the exercising of minority rights, rather than a proactive State
role.17 Such an approach, however, has been abandoned since the early 1990s,
and the necessity of State sustaining action in order to realise a full equality
between majority and minority members, as well as to guarantee the necessary preconditions for the protection and promotion of minorities’ identity, is now widely accepted.18 One might also note that, although minority
rights are individual,19 current developments, such as the interpretation given
for Article 15 para 1 (a) of the International Covenant on Economic, Social
and Cultural Rights (ICESCR) on the right to take part in cultural life by
the Committee on Economic, Social and Cultural Rights (CESCR) in its
General Comment No 23 (2009), recognise inter alia the minority per se
as a bearer of the specific right.20 Under the prism, then, of this evolutional
nature of international law, it could be argued that the recent recognition of a
right to autonomy to indigenous peoples in the 2007 UN Declaration on the
Rights of Indigenous Peoples (UNDRIP) can benefit minorities because of
the several analogies and similarities found between them.21 Recognising a
right to autonomy to minorities in international law under certain guarantees,
15. Patrick Thornberry, ‘Is There a Phoenix in the Ashes? International Law and Minority
Rights’ (1980) 15 Texas International Law Journal 421–58, 456.
16. See Athanasios Yupsanis, ‘Article 27 of the ICCPR Revisited: The Right to Culture as a
Normative Source for Indigenous/Minority Participatory Claims in the Case Law of the
Human Rights Committee’ (2013) 26 Hague Yearbook of International Law 358–409.
17. Jean-Paul Schreuder, ‘Minority Protection Within the Concept of Self-Determination’
(1995) 8 Leiden Journal of International Law 53–80, 70.
18. Linos-Alexandros Sicilianos, ‘The Protection of Minorities in Europe: Collective
Aspects of Individual Rights’ in Linos-Alexandros Sicilianos and Antonis Bredimas (eds),
The Protection of Minorities: The Framework Convention of the Council of Europe (Athens,
Sakkoulas, 1997) 93–129, 116, 128 (in Greek).
19. Johanna Gibson, ‘The UDHR and the Group: Individual and Community Rights to
Culture’ (2008–2009) 30 Hamiline Journal of Public Law and Policy 285–317, 295.
20. See Athanasios Yupsanis, ‘The Meaning of ‘Culture’ in Article 15 (1) (a) of the ICESCR –
Positive Aspects of CESCR’s General Comment No. 21 for the Safeguarding of Minority
Cultures’ (2012) 55 German Yearbook of International Law 345–83.
21. Makau Mutua, ‘The Iraq Paradox: Minority and Group Rights in a Viable Constitution’
(2006) 54 Buffalo Law Review 927–55, 938.
Autonomy for Minorities
7
such as a strong commitment on the part of the minority autonomous institutions to the States’ territorial integrity and to the rights of ‘minorities
within minorities’, would mean that its existence, its weakening and its abolishment would not depend exclusively on national legislation as has been the
case until now. Such a development would give minorities added bargaining
strength with which to negotiate their rights within the States’ territory. As
the ACFC has commented, territorial and non-territorial instruments can be
‘fully in line with the international law principle of territorial integrity and
can be a useful tool to promote the enjoyment of minority rights’.22 In this
light, and after analysing the definitions and types of models of autonomy,
this article suggests that territorial settlements are best suited to minorities
that are geographically compact and highly politically motivated, while nonterritorial schemes can be better adapted to the needs of small and scattered
minorities. Also, given that each territorial minority has its own ‘minority
diaspora’ within the State, it would be logical to suggest that a combination
of territorial and non-territorial arrangements would most effectively foster
minority protection and help prevent ethnic conflict.
2. Definitional Issues: Territorial and Non-Territorial
Autonomy
2.1. The Concept of Autonomy
Assessing the definitions given for the meaning of the word ‘autonomy’ and
its main types is a necessary first step towards acquiring a more or less clear
picture of its basic elements and the scope of protection it may provide to
minority groups. The definitional approaches suggest that territorial settlements are more suitable for the satisfaction of the claims of geographically
concentrated minorities, while non-territorial arrangements correspond
better to the needs of scattered minorities. Also, given the broader scope of
devolved powers enjoyed by territorial regimes, it is fair to argue that they provide stronger protection to minority identities than non-territorial schemes.
Beginning, then, with the meaning of the notion, Hannum and Lillich
noted in their seminal essay 35 years ago that ‘[a]utonomy is not a term of art
or a concept that has a generally accepted definition in international law’.23
22. ACFC, The Framework Convention: A Key Tool to Managing Diversity Through Minority
Rights, Thematic Commentary No 4, ACFC/56DOC(2016)001, Strasburg, 27 May
2016, para 78.
23. Hurst Hannum and Richard B Lillich, ‘The Concept of Autonomy in International Law’
(1980) 74 American Journal of International Law 858–89, 858.
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A similar approach is presented by Légaré and Suksi in their introductory
note to the 15th volume of the 2008 International Journal on Minority and
Group Rights dedicated to the issue.24 In the same vein, Cassese points out
that the concept is ‘still vague and imprecise’.25 The first remark to be made
on the topic, then, is that there is still no commonly agreed definition of
autonomy in international law.26
Etymologically, the notion derives from the Greek words αυτο (self ) and
νόμος (law), thus literally meaning the right to make one’s own laws.27 Today,
the term is used in various scientific fields, its content differing depending on the context. In philosophy, for example, it signifies an individual’s
power to determine alone, through his/her own rational will, a ‘positive
liberty’; in the natural sciences, it means organic independence or the condition of a phenomenon conforming only to its own laws and not subject
to higher rules;28 in legal-political vocabulary it stands for self-government,
a term that is often intermixed or used interchangeably with ‘autonomy’,
as synonymous with it.29 Other concepts used in legal and political studies are ‘self-management’, ‘self-rule’, ‘self-administration’, ‘home rule’ and
‘self-legislation’.30 This multiplicity of terms reflects inter alia the variety of
the typology of autonomy arrangements. Indeed, there is no uniform model
of autonomy, since each case depends on such factors as ‘history, traditions
of governance, the size of territory, the size and number of communities,
24. André Légaré and Markku Suksi, ‘Introduction: Rethinking the Forms of Autonomy at
the Dawn of the 21st Century’ (2008) 15 International Journal on Minority and Group
Rights 143–55, 143.
25. Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge,
Cambridge University Press, 1995) 355.
26. Samuel De Jaegere, ‘The Belgian Thesis Revisited: United Nations Member States’
Obligation to Develop Autonomy for Indigenous Peoples’ (2003) XIV Finnish Yearbook
of International Law 159–204, 198.
27. Matti Wiberg, ‘Ambiguities and Clarifications of the Concept of Autonomy’ in Zelim
A Skurbaty (ed), Beyond a One Dimensional State: An Emerging Right to Autonomy?
(Leiden/Boston, Martinus Nijhoff Publishers, 2005) 177–90, 181.
28. Ruth Lapidoth, Autonomy: Flexible Solutions to Ethnic Conflicts (Washington, DC, United
States Institute of Peace Press, 1996) 29.
29. Lauri Hannikainen, ‘Self-Determination and Autonomy in International Law’ in
Markku Suksi (ed), Autonomy: Applications and Implications (The Hague/London/Boston,
Kluwer Law International, 1998) 79–95, 79.
30. Natalia Loukacheva, ‘On Autonomy and Law’, Institute on Globalization and the
Human Condition, Working Paper Series GHC 05/3 (2005) 2 www.crunch.mcmaster.ca/
institute-on-globalization-and-the-human-condition/documents/IGHC-WPS_05-3_
Loukacheva.pdf.
Autonomy for Minorities
9
and internal and external pressures’.31 Broadly speaking, however, autonomy
is generally seen in legal and political theory as either territorial or nonterritorial. In the first case, the autonomy is rooted in the principle of territoriality, meaning that the rules to be applied depend mainly on the specific
geographical area in question. In the second, it is based on the personality
principle, namely that the application of the relevant norms depends on the
ethnic affiliation of the persons concerned, irrespective of their place of residence within the state.32
2.2. Basic Elements of Territorial Autonomy
A common feature of the several definitions given for the notion of territorial autonomy is that of an institutional arrangement for establishing a legal
regime marked by the transfer of certain executive, legislative and judicial
powers in one or more specified fields of governmental competence33 from
the central authorities to a region of the State without its being detached from
the State of which it is a part.34 That region usually possesses some ethnic or
cultural distinctiveness,35 which the majority or a large part of its inhabitants
want to preserve and develop.
Thus, territorial autonomy firstly presupposes a clearly identifiable territory where a minority or an indigenous people lives in a fairly concentrated
way, constituting a regional majority, because it then becomes easier to
delineate the jurisdiction within which the specific self-government will be
exercised.36 It is within this territory that the principle of territoriality, on
which territorial autonomy is based, applies; this means ‘that the local autonomous legislative body should be elected and the administrative body selected
by the inhabitants of the autonomous area’.37
31. Mark Bennett, ‘Indigenous Autonomy and Justice in North America’ (2004) 2
New Zealand Journal of Public and International Law 203–16, 207.
32. Kenneth D McRae, ‘The Principle of Territoriality and the Principle of Personality in
Multilingual States’ (1975) 4 International Journal of the Sociology of Language 33–54,
33, 40.
33. Stefan Wolff, ‘Conflict Management in Divided Societies: The Many Uses of Territorial
Self-Governance’ (2013) 20 International Journal on Minority and Group Rights
27–50, 32.
34. James Crawford, The Creation of States in International Law, 2nd edn (Oxford, Oxford
University Press,2006) 323.
35. Lars Adam Rehof, ‘Human Rights and Self-Government for Indigenous Peoples’ (1994)
61/62 Nordic Journal of International Law 10–41, 19.
36. Markku Suksi, ‘Concluding Remarks’ in Suksi (n 29) 357–63, 359.
37. Kristian Myntti, ‘The Beneficiaries of Autonomy Arrangements – With Special Reference
to Indigenous Peoples in General and the Sami in Finland in Particular’ in Suksi (n 29)
277–94, 278.
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The second element, which is inseparable from the first, is the existence of
a specific minority group (or indigenous people) which is officially recognised
by the government concerned. As Myntti comments, ‘[e]ven if it is true that
the exercise of far-reaching autonomous powers requires that the authority
and jurisdiction of the autonomous bodies be territorially defined, people, not
territories, need and demand autonomy’.38
Finally, a third constituent aspect of territorial autonomy regimes is
their subjection to State sovereignty. As Hannum observes, ‘[a]utonomy is
not equivalent to independence, and autonomous governments should not
expect to be immune from the influence of central governments’.39 Under
this perception, the areas in which the territorial self-government may assume
primary or significant authority include, according to the ‘Organization for
Security and Cooperation in Europe’s (OSCE) Lund Recommendations on
the Effective Participation of National Minorities in Public Life’, ‘education, culture, use of minority language, environment, local planning, natural
resources, economic development, local policing functions, housing, health
and other social services’.40 The central government, for its part, retains its
exclusive jurisdiction in the fields of defence, foreign affairs, immigration
and customs, macroeconomic policies and monetary affairs.41 Further,
depending on the range of matters delegated and the scope and depth of
the devolved powers, territorial regimes are divided into those entities that
i) enjoy legislative powers (often called ‘political autonomies’) like Catalonia,
Euskadi, Galicia, Scotland, Gagauzia, Greenland, South Tyrol, the Åland
Islands etc, or ii) hold regulatory/administrative powers, like Corsica, Wales,
Nunavut, etc.42
From the above description one may conclude that territorial autonomy
seems to be a workable means of protection for minorities that are politically
conscious of their ethnic distinctiveness and are geographically compact in
38. Ibid (emphasis added).
39. Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of
Conflicting Rights (Philadelphia, University of Pennsylvania Press, 1990) 468.
40. ‘The Lund Recommendations on the Effective Participation of National Minorities in
Public Life and Explanatory Note’ (2000) 11 Helsinki Monitor 47–61, 50 (Chap III,
para 20).
41. Ibid, 49, 59 (Chap III, para 15); See also Hans-Joachim Heintze, ‘Implementation of
Minority Rights Through the Devolution of Powers – The Concept of Autonomy
Reconsidered’ (2002) 9 International Journal on Minority and Group Rights 325–43, 332.
42. Roger Suso, ‘Territorial Autonomy and Self-Determination Conflicts: Opportunity and
Willingness Cases from Bolivia, Niger and Thailand’, Institut Catala International per
la Pau, ICIP Working Papers, 2010/01, Barcelona (2010) 12, http://icip.gencat.cat/
web/.content/continguts/publicacions/workingpapers/arxius/wp10_1_ang.pdf.
Autonomy for Minorities
11
a way that permits the effective exercise of the delegated powers in their area
of inhabitancy. This model gives minority institutions a broad jurisdiction in
several fields that are crucial for the protection and promotion of minority
identity, while at the same time it does not endanger States’ stability and
territorial integrity, since autonomy can by its very nature be exercised only
within States’ borders. Thus, it seems to be a practical mode of mutual compromise between minority bodies and State governments.
2.3. Non-Territorial Forms of Autonomy
Non-territorial autonomy is usually understood in legal and political
studies as ‘personal’, ‘cultural’ and ‘functional’.43 Other terms also in use are
‘national cultural autonomy’, ‘extraterritorial’, ‘corporate’ and ‘segmental’.44
As Henrard notes, a common denominator of all these non-territorial forms
of autonomy ‘is that the competences are transferred not in relation to a
certain specific territory but in relation to a certain community, irrespective
of size and place of residence in the State’.45 Beyond this general observation, one may note that the differences and distinctions between the three
main types of non-territorial autonomy are not perfectly clear, but partly
overlap and intertwine, which explains why a certain term may have different
meanings for different scholars and officials. For example, there are scholars
who use the terms ‘personal’ and ‘cultural’ autonomy interchangeably, considering ‘that this type of autonomy applies to all the members of a certain
group within the state, regardless of the place of their residence’.46 Others do
the same with the terms ‘functional’ and ‘cultural’ autonomy.47 A third view
holds that cultural autonomy is confined to cultural matters, such as language, education and so on, while personal autonomy is autonomy granted
to a group as a legal person irrespective of the territorial principle. Under this
understanding, cultural autonomy is personal autonomy limited to cultural
affairs.48 Finally, there are authors for whom personal autonomy refers more
43. Tatiana Rudneva, ‘Non-Territorial Autonomy in Russia: Practical Implications of
Theoretical Approaches’ (2012) 7 The Romanian Journal of Society and Politics 27–47, 30.
44. John Coakley, ‘Introduction: Dispersed Minorities and Non-Territorial Autonomy’
(2016) 15 Ethnopolitics 1–23, 11.
45. Kristin Henrard, ‘Participation, Representation and Autonomy in the Lund Recommendations and their Reflections in the Supervision of the FCNM and Several Human Rights
Conventions’ (2005) 12 International Journal on Minority and Group Rights 133–68, 141.
46. Lapidoth (n 28) 37.
47. Sherrill Stroschein, ‘What Belgium Can Teach Bosnia: The Uses of Autonomy in
Divided House States’ (2003) Issue 3 Journal of Ethnopolitics and Minority Issues in Europe
1–30, 10.
48. Rudneva (n 43) 30.
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to a guarantee of certain basic civil liberties and rights to all individuals, irrespective of their belonging or not to a specific group.49
Regarding functional autonomy, Suksi argues that it is possible to speak
about this type of autonomy when private subjects of law are vested with
public functions and powers.50 In the same vein, Malloy points out that while
non-territorial autonomies are generally agreed to be public law instruments,
functional autonomies ‘need not be adopted as public law instruments’
but operate through private establishments regulated by the law on private
associations.51 Finally, for Henrard, ‘the only difference between the three
types of non-territorial autonomy seems to be the type of body/corporation
that exercises the competences transferred’.52
2.4. Concluding Remarks
The above analysis leads to the conclusion that there are at least three main
differences between the non-territorial/cultural and the territorial autonomy
model, namely, that i) the administration is assigned to a culturally rather
than territorially defined group, ii) the scope of self-government is limited
to cultural aspects, and iii) cultural authority can be exercised only over
those individuals who voluntarily opt for the cultural group.53 On this basis,
it seems reasonable to argue that the territorial autonomy model provides
for stronger minority protection, since it covers a broader range of areas of
minority interest than the non-territorial one, which is more focused on specific items, mostly in the cultural sphere. In this regard, it could be claimed
that territorial autonomy is more appropriate for the case of minorities that
are highly politically motivated, usually in connection with the national identity of another ‘kin’ state, and thus are not probably satisfied with rights of an
exclusively cultural nature.
49. Michael Tkacik, ‘Characteristics of Forms of Autonomy’ (2008) 15 International Journal
of Minority and Group Rights 369–401, 370–71, 374.
50. Markku Suksi, ‘Functional Autonomy: The Case of Finland with Some Notes on the
Basis of International Human Rights Law and Comparisons with Other Cases’ (2008) 15
International Journal on Minority and Group Rights 195–225, 197.
51. Tove H Malloy, ‘The Lund Recommendations and Non-Territorial Arrangements:
Progressive De-territorialization of Minority Politics’ (2009) 16 International Journal on
Minority and Group Rights 665–79, 667–68, 672.
52. Henrard (n 45) 141.
53. Yvonne Donders, ‘The UN Declaration on the Rights of Indigenous Peoples – A Victory
for Cultural Autonomy?’ in I Boerefijn and J Goldschmidt (eds), Changing Perceptions of
Sovereignty and Human Rights: Essays in Honour of Cees Flinterman (Antwerp, Intersentia,
2008) 99–122, 100.
Autonomy for Minorities
13
3. The Battle of Autonomies: Non-Territorial Autonomy
v Territorial and Vice Versa
3.1. Arguments in Favour of Non-Territorial Arrangements
In legal and political theory there is a confrontation between those who argue
that territorial settlements can offer enhanced protection to minorities and
those who claim that non-territorial forms of autonomy can be of more functional value as regards the safeguarding of minority cultures. Given, however,
that each geographically compact minority has its own ‘minority diaspora’,
which lives outside the autonomous area and thus does not enjoy the minority protection that the autonomy regime provides, it is logical to suggest that
a combination of these two basic forms of autonomy can provide a more
holistic protection to all members of the minorities concerned.
To begin with the non-territorial autonomy model, its proponents argue
that it has additional benefits that allegedly make it a more attractive choice
than the territorial one. First, as has been recognised by monitoring bodies (ACFC), intergovernmental committees (Venice Commission) and
independent experts (OSCE Lund Recommendations),54 it may prove particularly useful for the maintenance and development of minority identities
in situations where the territorial model is, for practical reasons, unable to
do so, such as in the case of minorities dispersed over the State territory.55
An analogous argument has for similar reasons been made by some scholars
for non-territorial minorities such as the Roma,56 as well as for several indigenous peoples who have been victims of alien and violent invasion that made
them scattered minorities in their own ancestral lands.57
Second, it is claimed that it can offer viable compromises in cases of ethnically mixed areas over which more than one ethno-national group have
54. See respectively ACFC/31DOC(2008)001 (n 7), para 135; Venice Commission,
A General Legal Reference Framework to Facilitate the Settlement of Ethno-Political
Conflicts in Europe, adopted at the 44th Plenary Meeting (13–14 October 2000),
CDL-INF(2000)16, Strasbourg, 3 November 2000, 8; ‘The Lund Recommendations …
and Explanatory Note’ (n 40) 50, 60 (Chap III, para 17).
55. Henry J Steiner, ‘Ideals and Counter-Ideals in the Struggle Over Autonomy Regimes for
Minorities’ (1991) 66 Notre Dame Law Review 1539–60, 1542.
56. See Illona Klimova-Alexander, ‘Transnational Romani and Indigenous Non-Territorial
Self-Determination Claims’ in David J Smith and Karl Cordell (eds), Cultural Autonomy
in Contemporary Europe (London and New York, Routledge, 2008) 59–80.
57. Ephraim Nimni, ‘Nationalist Multiculturalism in Late Imperial Austria as a Critique of
Contemporary Liberalism: The Case of Bauer and Renner’ (1999) 4 Journal of Political
Ideologies 289–314, 297.
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‘inherited’ competing claims, by granting a certain degree of non-territorial
self-rule to all the ethno-national groups without assigning exclusive control
over the contested common territory to any of them, thus avoiding interethnic frictions.58
Third, it guarantees enjoyment of the minority rights to all members of a
minority, irrespective of where they live within the national territory, whereas
the territorial model covers only those residing in a given region, leaving those
who live dispersed across the rest of the country (‘minority diaspora’) outside
its field of protection.59
Moreover, it enjoys stronger individual legitimacy, for it applies only to
those members who voluntarily identify with the group for whose benefit it
is established, whereas territorial autonomy applies to all inhabitants of a specific region regardless of their will, thus including those who are not members
of the group or do not want to identify with it.60
Furthermore, it avoids the creation of ‘minorities within minorities’, since
the members of the national majority population and of minorities other
than the one which is regionally dominant (‘internal minorities’) will not find
themselves in a vulnerable position in a particular region, as in the case of
territorial autonomy.61 Lastly, non-territorial autonomy is supposed to pose
a lesser danger for States’ territorial integrity – since it can satisfy the cultural
needs of the minorities without compromising State sovereignty – than territorial autonomy, which is considered by many governments as a first step to
secession,62 thus making the adoption of this model more pragmatic.63 For all
58. Asbjørn Eide, ‘Good Governance, Human Rights, and the Rights of Minorities and
Indigenous Peoples’ in Hans-Oto Sano and Gudmundur Alfredsson with the collaboration of Robin Clapp (eds), Human Rights and Good Governance – Building Bridges
(The Hague/London/New York, Martinus Nijhoff Publishers, 2002) 47–71, 67.
59. David J Smith, ‘Minority Territorial and Non-Territorial Autonomy in Europe: Theoretical Perspectives and Practical Challenges’ in Zoltán Kántor (ed), Autonomies in Europe:
Solutions and Challenges (Budapest, L’ Harmattan, 2009) 15–23, 18.
60. Ruth Lapidoth, ‘Autonomy: Potential and Limitations’ (1994) 1 International Journal on
Group Rights 269–90, 282.
61. Athanasios Yupsanis, ‘Cultural Autonomy’ in Andreas Wiesand, Kalliopi Chainoglou,
Anna Śledzińska-Simon with Yvonne Donders (eds), Culture and Human Rights:
The Wroclaw Commentaries (Berlin/Boston, De Gruyter, Cologne, ARCult Media, 2016)
124–26, 125.
62. See Svante E Cornell, ‘Autonomy as a Source of Conflict: Caucasian Conflicts in Theoretical Perspective’ (2002) 54 World Politics 245–76, 246.
63. See Max van der Stoel, ‘Reflections on the Role of the OSCE High Commissioner on
National Minorities as an Instrument of Conflict Prevention’ in Institute for Peace
Research and Security Policy at the University of Hamburg and IFSH (eds), OSCE
Yearbook 1999 (Baden-Baden, 2000) 381–91, 385–86.
Autonomy for Minorities
15
these reasons, non-territorial/cultural autonomy is presented as ‘a promising
alternative’64 to territorial autonomy.
3.2. Pro Territorial Autonomy Arguments
Adherents of the territorial autonomy version, though agreeing that nonterritorial/cultural autonomy ‘may be the best on offer for dispersed and
intermixed populations’65 as well as for the Roma and perhaps for some indigenous peoples,66 strongly doubt its adequacy to address the needs and claims
of mobilised, sizeable, and territorially concentrated national minorities. First
of all, they point out that confining non-territorial/cultural autonomy to the
cultural sphere does not satisfy the demands of the kinds of minorities that,
in addition to cultural rights, also want ‘to control local or regional governments, police forces, courts, economic and social welfare policies’.67 Also,
they argue that while de-territorialising national minority identities seems
more promising at first glance, it is largely unrealistic in the real world, where
very often there is a deep link between national minorities and their territory,
which is central to their self-understanding, histories and aspirations.68 This
emotional attachment is unlikely to be satisfied by the non-territorial cultural
approach, since these minorities ‘seek not simply self-government, but selfgovernment in and over their national homeland’.69
In addition, it is said that non-territorial/cultural autonomy regimes cannot guarantee the preservation of the minority language in the long term.70
As Bauböck emphasises, dispersed minority enclaves are not likely to survive
64. Aviel Roshwald, ‘Between Balkanization and Banalization: Dilemmas of Ethnocultural
Diversity’ (2007) 3 Ethnopolitics 365–78, 373.
65. John McGarry and Margaret Moore, ‘Karl Renner, Power Sharing and Non-Territorial
Autonomy’ in Ephraim Nimni (ed), National Cultural Autonomy and its Contemporary Critics (London and New York, Routledge [Taylor and Francis e-Library], 2005)
64–81, 86.
66. Will Kymlicka, ‘Renner and the Accommodation of Sub-State Nationalisms’ in Nimni,
ibid 117–27, 125.
67. Rainer Bauböck, ‘Political Autonomy or Cultural Minority Rights? A Conceptual
Critique of Renner’s Model’ in Nimni (n 65) 83–95, 88.
68. Will Kymlicka, ‘National Cultural Autonomy and International Minority Rights Norms’
(2007) 6 Ethnopolitics 379–93, 388.
69. Margaret Moore, ‘Sub-State Nationalism and International Law’ (2004) 25 Michigan
Journal of International Law 1319–40, 1335.
70. Rainer Bauböck, ‘Multinational Federalism: Territorial or Cultural Autonomy?’, Willy
Brandt Series of Working Papers in International Migration and Ethnic Relations, 2/01
(2001) 33 https://dspace.mah.se/bitstream/handle/2043/690/Workingpaper201.pdf;
jsessionid=CDAE45DB7F0100B723B0E0752E9308A1?sequence=1.
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linguistically even when their members have the right to establish and maintain educational institutions, if their language is not a useful resource in the
larger environment.71 This is because, ‘a language may prosper best if it has
a territorial statutory basis in which it is the primary medium of social and
economic exchange and a principal medium for work, business and social
interaction’.72 It is mainly for these reasons that most of the geographically
compact national minorities opt for territorial autonomy much more than
for non-territorial cultural autonomy.
Furthermore, proponents of the territorial autonomy model claim that the
suggestion inherent in the non-territorial/cultural autonomy scheme, ie that,
by inevitably creating internal minorities, territorial settlements may produce
ethnic tensions and lead to further oppression and reactionary secessionist
demands, thus making the choice of cultural autonomy more attractive, has
not been shown to be solid in practice. On the contrary, territorial arrangements have ‘arguably helped reduce the risks of violence, oppression and
secession’, as several of the Western States that have adopted it would have
faced much greater threats of ethnic mobilisation and destabilisation had they
not accommodated the desire for territorial autonomy.73
From such perspectives, then, non-territorial cultural autonomy is best
understood not as an alternative to the territorial model, but rather as a
potential supplement to it as regards the case of territorially concentrated
mobilised national minorities.74
3.3. Concluding Thoughts
To conclude, it seems that territorial forms of self-government are more suitable for the needs of those minorities that are sizeable and live compactly in
a specific area, while non-territorial settlements appear to serve better the
interests of those minorities that are small and dispersed across a country.75
It should be noted, however, that the distinction between the two models
71. Bauböck (n 67) 88.
72. John McGarry and Brendan O’ Leary, ‘Territorial Pluralism: Taxinomizing its Forms,
Virtues and Flaws’ in Carlo Basta, John McGarry and Richard Simeon (eds), Territorial
Pluralism: Managing Difference in Multinational States (Vancouver/Toronto, UBC Press,
2015) 13–53, 33.
73. Kymlicka (n 66) 119.
74. Bauböck (n 67) 84; Kymlicka (n 66) 118.
75. Ferenc Kalmár (Rapporteur), The Situation and Rights of Traditional National Minorities
in Europe, Report of the Committee on Equality and Non-Discrimination, Doc 13445,
24 March 2014, para 64.
Autonomy for Minorities
17
does not mean that these are mutually exclusive or contradictory. Territorial
autonomy regimes, for example, may recognise personality-based cultural
rights to ‘internal minorities’ within their territory, as is the case with the
national minority councils in the Autonomous Province of Vojvodina in
Serbia.76 There are also settlements where territorial self-government is combined with non-territorial forms of cultural autonomy for members of the
minority who live outside the autonomous region, such as the Francophones
who live outside Quebec and the members of indigenous peoples who live
outside their autonomous territory in Canada.77 These examples show that in
practice territorial and non-territorial forms of autonomy can be complementary, providing for a more holistic protection for all members of the minority
group or indigenous people concerned.78
4. Territorial and Non-Territorial Autonomy
in International Law
4.1. Territorial Autonomy Norms in Non-Legally Binding
Minority Instruments
In several countries there exist both territorial and non-territorial/cultural
autonomy regimes for minorities. Well-known instances of minority territorial autonomy include inter alia those of the German- and Ladin-speaking
minorities of the Trentino-Alto Adige (South Tyrol) in Italy, the Swedishspeaking minority of the Åland Islands in Finland, the Gagauzian minority
in Moldova, the Hungarian minority of Vojvodina in Serbia, etc.79 Examples
of non-territorial/cultural arrangements include, but are not limited to,
Estonia, the Russian Federation, Hungary and Slovenia.80 Most often their
76. José-María Arraiza, ‘The Management of Linguistic Diversity Through Territorial and
Non-Territorial Autonomy’ (2015) 8 Europäisches Journal für Minderheitenfragen
7–33, 11.
77. Johanne Poirier, ‘Autonomy and Diversity’ in Ronald L Watts and Rupak Chattopadhyay
(eds), Building on and Accommodating Diversities (New Delhi, Viva Books, 2008) 37–53,
51; Kymlicka (n 68) 385; Lapidoth (n 60) 281.
78. See José-María Arraiza, Making Home Rules for Mother Tongues – The Legal Implications
of Linguistic Diversity in the Design of Autonomy Regimes (Åbo, Åbo Akademi University,
2015) 107.
79. See Thomas Benedikter, The World’s Modern Autonomy Systems: Concepts and Experiences of
Regional Territorial Autonomy (Bolzano/Bozen, EURAC, 2009) 66–81 (for South Tyrol),
107–112 (for the Åland Islands), 122–29 (for the Gagauzia), 135 (for Vojvodina).
80. Yash Ghai, ‘Public Participation, Autonomy and Minorities’ in Skurbaty (n 27) 3–45, 41.
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legal basis is domestic, since a right of minorities to autonomy in treaty and
customary international law is at best under question.81 A careful reading
of the major international and regional minority norms and instruments,
such as Article 27 of the ICCPR, the relevant 1992 UN Declaration and the
FCNM, clearly show that there is no explicit reference to autonomy, whether
territorial, non-territorial/cultural, or in any other form.82 The very few and
weakly worded specific references to (mostly territorial) autonomy are found
exclusively in the minority texts of so-called ‘soft law’83 and occur in the first
half of the 1990s, when the minority issue was at the top of the international
(mainly European) community’s agenda.
In this context, the first provision to refer expressis verbis to (territorial)
autonomy for minorities is found in Chapter IV, paragraph 35.2, of the most
far-reaching document of its time, the 1990 Copenhagen Document of the
then Conference on Security and Co-operation in Europe (CSCE), which
states that:
The Participating States note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of
certain national minorities by establishing, as one of the possible means, appropriate local or autonomous administrations corresponding to the specific historical
and territorial circumstances of such minorities and in accordance with the policies
of the State concerned.84
This ‘rather ambiguous and somewhat confused’85 stipulation does not create legal obligations for the States, since the Copenhagen Document is not
81. JA Frowein and Roland Bank, The Participation of Minorities in Decision Making
Processes, Expert Study submitted on Request of the Committee of Experts on Issues
Relating to the Protection of National Minorities (DH-MIN) of the Council of Europe,
DH-MIN(2000)1, November 2000, 18.
82. Regarding the observation that there is no explicit reference to autonomy in Art 27
ICCPR and the relevant UN Declaration, see Yousef T Jabareen, ‘Toward Participatory
Equality: Protecting Minority Rights Under International Law’ (2008) 41 Israel Law
Review 635–76, 672. Regarding the same observation for the FCNM see Alan Phillips,
‘Participation and the Council of Europe’s Framework Convention for the Protection of
National Minorities (FCNM)’ in Skurbaty (n 27) 305–20, 305, 310.
83. See Steven Wheatley, ‘Deliberative Democracy and Minorities’ (2003) 14 European
Journal of International Law 507–27, 522 (fn 98); Henrard (n 45) 141 (fn 48).
84. ‘Document of the Copenhagen Meeting of the Conference on the Human Dimension of
the CSCE, 29 June 1990’ (1990) 11 Human Rights Law Journal 232–45, 243. See also
Malcolm N Shaw, ‘Peoples, Territorialism and Boundaries’ (1997) 3 European Journal of
International Law 478–507, 486.
85. Thomas Buergenthal, ‘The Copenhagen OSCE Meeting: A New Public Order for Europe’
(1990) 11 Human Rights Law Journal 217–32, 228.
Autonomy for Minorities
19
legally binding.86 It certainly has moral and political force,87 which means
that it ‘implies, and should give rise to, an internal legislative or administrative response’.88 Even in this case its ‘extremely feeble wording’,89 in conjunction with the excessive requirements for its fulfilment,90 which leave a wide
margin of discretion to the States, make it sound more like a vague general
recommendation for the adoption of best practice policies than a right.91 In
the words of Pentassuglia, ‘it simply highlights a possibility, not a mandatory
outcome’.92
A similar attitude towards (territorial) autonomy was manifested in the
few subsequent CSCE/OSCE documents that refer explicitly to the concept.
Thus, in the 1991 Geneva Report of experts on national minorities, the participating States just noted with interest (sic) that positive results have been
obtained by some of them by inter alia ‘local autonomous administration,
as well as autonomy on a territorial basis, including the existence of consultative, legislative and executive bodies chosen through free and periodic
elections’.93 Also, in the 1999 Lund Recommendations, it is inter alia simply
stated that ‘[a]ppropriate local, regional or autonomous administrations that
correspond to the specific historical and territorial circumstances of national
minorities may undertake a number of functions in order to respond more
effectively to the concerns of these minorities’.94 In this respect, the Explanatory Note to the Recommendations adds that ‘[t]erritorial self-government
can help preserve the unity of the States while increasing the level of participation and involvement of minorities by giving them a greater role in a
level of government that reflects their geographic concentration’.95 As Packer
86. Janusz Symonides, ‘The Legal Nature of Commitments Relating to the Question of
Minorities’ (1996) 3 International Journal on Group Rights 301–23, 322.
87. Arie Bloed, ‘Institutional Aspects of the Helsinki Process After the Follow-Up Meeting of
Vienna’ (1989) 36 Netherlands International Law Review 342–63, 345.
88. Oscar Schachter, ‘The Twilight Existence of Nonbinding International Agreements’
(1977) 71 American Journal of International Law 296–304, 303.
89. Aristoteles Constantinides, ‘The Involvement of the Organization for Security and Cooperation in Europe in Issues of Minority Protection’ (1996) 9 Leiden Journal of International Law 373–95, 383.
90. Yoram Dinstein, ‘Autonomy Regimes and International Law’ (2011) 56 Villanova Law
Review 437–53, 442.
91. John Packer, ‘Autonomy and the Effective Participation of Minorities in Public Life:
Developments in the OSCE’ in Skurbaty (n 27) 321–35, 325.
92. Gaetano Pentassuglia, ‘The EU and the Protection of Minorities: The Case of Eastern
Europe’ (2001) 12 European Journal of International Law 3–38, 5.
93. ‘Report of the CSCE Meeting of Experts on National Minorities, Geneva, 19 July 1991’
(1991) 12 Human Rights Law Journal 332–34, 333 (Chap IV).
94. ‘The Lund Recommendations … and Explanatory Note’ (n 40) 50, para 20.
95. The Lund Recommendations … and Explanatory Note’ (n 40) 60, para 19.
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points out, the Lund Recommendations are just ‘recommendations [emphasis
in the original] of independent experts and enjoy so far no official status in
international relations’; but since they are the product of a team of internationally recognised experts acting independently and pro bono, they could be
seen as an authoritative interpretation of the relevant international minority
standards, serving as helpful reference points for policy and law makers.96
However, it should be emphasised, as Palermo indicates, that unlike all
other fields covered by the Lund Recommendations, ‘virtually nothing has
changed in regard to territorial autonomy in the OSCE region’. This means,
he explains, that neither has a new territorial settlement been set up nor has
much changed in the legislative framework of the existing autonomy regimes
in Europe.97
A stronger statement on (territorial) autonomy came in 1993, in
Article 11 of the PACE Recommendation 1201, which provided that:
In the regions where they are in majority, the persons belonging to minorities shall
have the right to have at their disposal appropriate local or autonomous authorities
or to have a special status, matching their specific historical and territorial situation
and in accordance with the domestic legislation of the state.98
As Kymlicka comments, this recommendation – which was also not legally
binding – recognised territorial autonomy as a right and not merely as a best
practice as the Copenhagen Document did; this reflects the high-water mark
of support for territorial autonomy within European organisations, as since
then there has been a marked movement away from it.99 Thus, while reference was made – albeit in a toothless way – to Article 11 in Hungary’s
bilateral treaties with the Slovak Republic (1995) and Romania (1995),100 the
96. John Packer, ‘The Origin and Nature of the Lund Recommendations on the Effective
Participation of National Minorities in Public Life’ (2000) 11 Helsinki Monitor 29–45,
41, 44.
97. Francesco Palermo, ‘When the Lund Recommendations Are Ignored. Effective Participation of National Minorities Through Territorial Autonomy’ (2009) 16 International
Journal on Minority and Group Rights 653–63, 654–55.
98. PACE, ‘Recommendation 1201 (1993) on an Additional Protocol on the Rights of
National Minorities to the European Convention on Human Rights’ (1995) 16 Human
Rights Law Journal 108–13, 112.
99. Will Kymlicka, ‘The Internationalization of Minority Rights’ (2008) 6 International
Journal of Constitutional Law 1–32, 22–23.
100. For the treaty of Hungary with Slovakia, see Nicole VT Lugosi, ‘The Hungarian Minority Question in Slovakia and Romania’ (2011) Issue 2 Review of Applied Socio-Economic
Research 111–20, 115; For the treaty with Romania, see Geoff Gilbert, ‘Autonomy and
Minority Groups: A Right in International Law?’ (2001–2002) 35 Cornell International
Law Journal 307–53, 323.
Autonomy for Minorities
21
whole proposal of the Recommendation for an additional protocol to ECHR
was finally abandoned by the Heads of State and Government of the CoE.101
Instead, priority was given to the adoption of the FCNM, which does not
explicitly contain a right to autonomy, whether territorial or non-territorial.
Indeed, the Venice Committee, which was requested by the Committee of
Legal Affairs and Human Rights of the PACE to prepare an opinion on the
interpretation of the Draft Protocol, with particular reference to Article 11,
opined that, given the absence of an explicit reference to a right to autonomy
in the FCNM and in the case law of the ECHR, ‘international law cannot in
principle impose on States any territorial solutions to the problem of minorities and that States are not in principle required to introduce any forms of
decentralization for minorities’.102 As the same Committee observed:
States seem in fact to be afraid that the right to have appropriate local or autonomous administrations … may promote secessionist tendencies. Even those States
which, while adhering to the principle of unitarity have granted a large degree of
regional autonomy, hesitate to accept binding international instruments on the
right of minorities to a certain autonomy.103
4.2. Non-Territorial Autonomy Provisions in Minority Texts
The aforementioned situation does not differ even as regards the establishment of non-territorial/cultural autonomy arrangements, despite the fact
that autonomy of dispersed minorities appears, in theory at least, less threatening to the integrity of the states than autonomy of territorially concentrated minorities.104 As Klebes points out, the State’s sensitivity with regard
to autonomy in any form is very strong, and governments see even nonterritorial/cultural autonomy as a first step leading to administrative autonomy and finally to secession.105 Thus, explicit references to ‘non-territorial
101. Stephen Deets, ‘Reimagining the Boundaries of the Nation: Politics and Development
of Ideas on Minority Rights’ (2006) 20 East European Politics and Societies 419–46,
435–37.
102. Opinion of the European Commission for Democracy Through Law on the Interpretation of Article 11 of the Draft Protocol to the European Convention on Human
Rights Appended to Recommendation 1201 of the Parliamentary Assembly, CDLMIN(1996)004e-rev-restr, Strasbourg, 11 March 1996, para 2 (b).
103. Ibid, para 2 (c); See also Gaetano Pentassuglia, ‘State Sovereignty, Minorities and
Self-Determination: A Comprehensive Legal View’ (2002) 9 International Journal on
Minority and Group Rights 303–24, 321–22.
104. William Safran, ‘Spatial and Functional Dimensions of Autonomy: Cross-National and
Theoretical Perspectives’ (1999) 5 Nationalism and Ethnic Politics 11–34, 11.
105. Heinrich Klebes, ‘The Council of Europe’s Framework Convention for the Protection of
National Minorities’ (1995) 16 Human Rights Law Journal 92–98, 96.
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arrangements’ (in the wording of the CSCE/OSCE documents)/‘cultural
autonomy’ (in the phrasing of the CoE texts) are also rare.
Starting, then, chronologically with the 1991 CSCE Geneva Report,
the participating States noted with interest that positive results had been
obtained by some of them by, inter alia, ‘self-administration by a national
minority of aspects concerning its identity in situations where autonomy on
a territorial basis does not apply’.106 Further, the Lund Recommendations
declare that ‘[n]on-territorial forms of governance are useful for the maintenance and development of the identity and culture of national minorities’.107
In the same spirit the UN’s informative pamphlet on minority rights of the
Human Rights Office of the High Commissioner states that ‘[t]he promotion of [minority] rights, identity and culture can be strengthened through
the introduction and promotion of certain forms of self-governance, including … cultural autonomy’.108 Finally, in the ACFC’s Commentary on effective minority participation, the Committee simply comments, with regard
to the cultural autonomies that exist in some States Parties, that ‘these are
granted collectively to members of a particular national minority, regardless
of a territory’ aiming inter alia ‘to delegate to national minority organizations
important competencies in the area of minority culture, language and education and can, in this regard, contribute to the preservation and development
of minority cultures’109 as well as ‘in increased participation of minorities in
cultural life’110 and in public affairs.111 As Osipov observes, all the references
to non-territorial autonomy in the CSCE/OSCE and the CoE documents
[besides not being legally binding] are broad in nature and vague as to their
interpretation, creating – instead of answering – questions regarding the beneficiaries and the content of autonomy.112
4.3. Concluding Observations
Given, then, the absence of an explicit right for minorities to either
territorial or non-territorial/cultural autonomy in the international and
106. ‘Report of the CSCE Meeting’ (n 93) 333 (Chap IV); See Jane Wright, ‘Minority
Groups, Autonomy, and Self-Determination’ (1999) 19 Oxford Journal of Legal Studies
605–29, 621–22.
107. See ‘The Lund Recommendations … and Explanatory Note’ (n 40) 50, para 17.
108. UN Human Rights Office of the High Commissioner, Minority Rights: International
Standards and Guidance for Implementation, HR/PUB/10/3, New York and Geneva,
2010, 41.
109. ACFC/31DOC(2008)001 (n 7), para 135.
110. ACFC/31DOC(2008)001 (n 7), para 67.
111. ACFC/31DOC(2008)001 (n 7), para 72.
112. Alexander Osipov, ‘Non-Territorial Autonomy and International Law’ (2011) 13
International Community Law Review 393–411, 400.
Autonomy for Minorities
23
regional minority texts, the dominant position in legal theory is that minorities do not enjoy a positive right of territorial or non-territorial/cultural
autonomy in public international law.113 As Thornberry puts it, ‘[a]utonomy
is seen as a grant, not a right’.114 In this light the legal basis for the creation of autonomy regimes rests primarily, if not exclusively, on the ad hoc
arrangements of the national legislations.115 Establishing a right to autonomy
for minorities in international law is, then, necessary, so that its existence,
weakening or abolition will not depend exclusively on national legislation,
as was the case for example in Kosovo under the Milosevic regime. Such a
development would give them a better bargaining position to negotiate their
rights within the States’ borders. After all, international law is not static but
continually evolves, responding to the times and to peoples’ needs, as the case
of indigenous peoples indicates, so that one should not a priori preclude the
gradual recognition of such a right to minorities under the argumentation
explored below.
5. Possible Modes of Recognition of a Minority Right
to Autonomy in International Law
5.1. Preliminary Remarks
Although the current reality in public international law regarding the
(non-) existence of a right of minorities to autonomy stands as described
above, there exist some avenues on which minorities could work in order to
reverse this situation, namely a) through the claiming of their peoplehood,
b) via invoking an analogical implementation of the relevant provisions of the
UNDRIP, and c) by asking for a dynamic interpretation of their participatory rights. Achieving the recognition of a right to autonomy in international
law is crucial because it would offer them a permanent and more secure basis
113. Zelim A Skurbaty, ‘Introduction’ in Skurbaty (n 27) xxxi–Iviii, xxxvii, xIiii; Roberta
Medda-Windischer, ‘New Minorities, Old Instruments? A Common but Differentiated
System of Minority Protection’ (2011) 13 International Community Law Review
361–91 376, 379; Palermo(n 97) 656–57; Dinstein (n 90) 438–42; Shaw (n 84) 488–89;
Wheatley (n 83) 522; Packer (n 91) 329; Pentassuglia (n 103) 320–21; Loukacheva
(n 30) 5; Heintze (n 41) 329; Henrard (n 45) 141. For a different view, arguing that
territorially concentrated minorities may perhaps have a right to autonomy within the
existing state structures, see Douglas Sanders, ‘Is Autonomy a Principle of International
Law?’ (1986) 55 Nordic Journal of International Law 17–21, 17.
114. Patrick Thornberry, ‘Images of Autonomy and Individual and Collective Rights in International Instruments on the Rights of Minorities’ in Suksi (n 29) 97–124, 123.
115. Zelim A Skurbaty, ‘Is There an Emerging Right to Autonomy? Summary Reflections,
Conclusions and Recommendations’ in Skurbaty (n 27) 565–68, 565.
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for deciding on their own issues, fulfilling their rights and promoting their
identity.116 The present situation, where such a grant depends exclusively on
the goodwill of the States, meaning that it is an entirely internal national matter subject to States’ discretionary power, is unsatisfactory. Even the strongest
constitutional stipulations can be altered or repealed and the most progressive
governments can change their policies or lose power to more conservative
and anti-minorities ones.117 An international law guarantee can certainly provide better protection against the weakening or abolition of an autonomous
regime against the will of the minority concerned.118 It is essential, then, to
examine how such a development could possibly take place. It should be
noted a priori that all three options offered to minorities for seeking recognition of a right to autonomy in international law are hard to realise in the near
future due to strong State reluctance to such a development. However, as
Hilpold rightly observes, ‘what presently appears as illusionary and utopian
can become a hard fact in reality in the next future’.119
5.2. Claiming Autonomy through Peoplehood
The first path by which minorities could achieve a right to autonomy is by
asserting their peoplehood. Under current international law only ‘peoples’,120
and more specifically ‘peoples under colonial domination’, ‘peoples subject
to alien occupation’, and ‘peoples under racist regimes’, have a right to selfdetermination.121 To these categories the recent UNDRIP added ‘indigenous
peoples’ as bearers of a right to ‘internal self-determination’ (autonomy).122
116. Frederik Harhoff, ‘Institutions of Autonomy’ (1986) 55 Nordic Journal of International
Law 31–40, 39–40.
117. Athanasios Yupsanis, ‘ILO Convention No. 169 Concerning Indigenous and Tribal
Peoples in Independent Countries 1989-2009: An Overview’ (2010) 79 Nordic Journal
of International Law 433–56, 449.
118. Markku Suksi, ‘Keeping the Lid on the Secession Kettle – A Review of Legal Interpretations Concerning Claims of Self- Determination by Minority Populations’ (2005) 12
International Journal on Minority and Group Rights 189–226, 200.
119. Peter Hilpold, ‘Self-Determination and Autonomy: Between Secession and Internal SelfDetermination’ (2017) 24 International Journal on Minority and Group Rights 302–35,
334–35.
120. Gudmundur Alfredsson, ‘The Faroese People as a Subject of International Law’ (2001) 1
Faroese Law Review 45–57, 48.
121. Jean Salmon, ‘Internal Aspects of the Right to Self-Determination: Towards
A Democratic Legitimacy Principle?’ in Christian Tomuschat (ed), Modern Law of
Self-Determination (Dordrecht/Boston/London, Martinus Nijhoff Publishers, 1993)
253–82, 256.
122. Timo Koivurova and Adam Stepien, ‘How International Law Has Influenced the
National Policy and Law Related to Indigenous Peoples in the Arctic’ (2011) 19 Waikato
Law Review 123–43, 128.
Autonomy for Minorities
25
‘Minorities’ are not considered ‘peoples’123 for the purpose of international
law and consequently do not enjoy that right.124 The problem is that there is
no generally accepted official definition of the terms ‘peoples’,125 ‘indigenous
peoples’126 and ‘minority’127 in international law. The issue is a very important one, since each designation carries different legal consequences.
The ‘peoples’ who have a right to self-determination in international law
have been defined at different times and according to different interests
and needs in significantly different ways. In the Wilsonian era such peoples
were identified with the ‘nations’ as ethno-national communities (‘ethnic
self-determination’), whereas in the decolonisation era the right to selfdetermination was recognised to colonial peoples defined not in ethnic but in
territorial terms (‘territorial self-determination’).128 It was the entire colonial
population conceived as a single entity, and not each separate ethnic group
living within a colonial territory, that had the right to self-determination
(‘one people per colony’).129 The exercise of this right could result, according
to the 1541/1960 Resolution of the UN General Assembly, in the following
outcomes: a) establishment of a sovereign and independent State, b) free association with an independent State, and c) integration with an independent
State.130 To these options the 1970 UN Declaration on Friendly Relations131
123. See Aureliu Critescu, The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments, UN Doc E/CN.4/Sub.2/404/Rev.1
(New York, United Nations Publications, 1981), para 279.
124. Jure Vidmar, ‘International Legal Responses to Kosovo’s Declaration of Independence’
(2009) 42 Vanderbilt Journal of Transnational Law 779–851, 809.
125. See James Crawford, ‘The Rights of Peoples: Some Conclusions’ in James Crawford (ed),
The Rights of Peoples (Oxford, Clarendon Press, 1988) 159–75, 168–70.
126. See Abdullah Al Faruque and Najnin Begum, ‘Conceptualising Indigenous Peoples’
Rights: An Emerging New Category of Third-Generation Rights’ (2004) 2 Asia-Pacific
Journal on Human Rights and the Law 1–29, 3–6.
127. See Abdulrahim P Vijapur, ‘International Protection of Minority Rights’ (2006) 43
International Studies 367–94, 370–72.
128. Susanna Mancini, ‘Rethinking the Boundaries of Democratic Secession: Liberalism,
Nationalism, and the Right of Minorities to Self-Determination’ (2008) 6 International
Journal of Constitutional Law 553–84, 555–56.
129. Ulrike Barten, ‘What’s In a Name? Peoples, Minorities, Indigenous Peoples, Tribal
Peoples and Nations’ (2015) 14 Journal on Ethnopolitics and Minority Issues in Europe
1–25, 3.
130. See Principles Which Should Guide Members in Determining Whether or not an
Obligation Exists to Transmit the Information Called for under Article 73 c of the
Charter, UN Doc A/RES/15/1541 (15 December 1960) Annex, Principle VI.
131. See Declaration on Principles of International Law Concerning Friendly Relations
and Co-operation Among States in Accordance with the Charter of the United Nations,
UN Doc A/RES/25/2625 (24 October 1970) Principle 5.4.
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added the choice of any other political status freely decided.132 The fourth
alternative could certainly lead, as Suksi notes, to ‘a “middle ground” between
independence on the one hand and integration on the other’,133 that is, to
various forms of autonomy. However, despite the fact that the relevant
texts provided for several modes of implementation of the right, the
UN practice largely equated the right of self-determination with independence (the so-called ‘external self-determination’) by showing a preference for
the first option for almost all former colonial territories.134
Beyond the decolonisation context, the right to self-determination was
recognised first and foremost to the inhabitants of the existing independent states as a whole.135 In essence this perception arbitrarily equated the
‘people’ with the state as spokesman of the entire population.136 This meant
that sub-state ethnic groups such as minorities were not recognised separately
as holders of the right to their own self-determination.137 With the end of
decolonisation and the granting of independence to almost all former colonies, several scholars pointed out that in order for the right to continue
to have some substance it should be interpreted as the right of a people to
freely choose its form of governance through a democratic process138 ‘within
the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states’139 (the so-called ‘internal
self-determination’). This distinction, which partially echoes the aforementioned fourth choice given for the exercise of self-determination by the
132. Jens Elo Rytter, ‘Self-Determination of Colonial Peoples – The Case of Greenland
Revisited’ (2008) 77 Nordic Journal of International Law 365–400, 367.
133. Suksi (n 118) 195–96, 209, 225.
134. Kavus Abushov, ‘Autonomy as a Possible Solution to Self-Determination Disputes:
Does it Really Work?’ (2015) 22 International Journal on Minority and Group Rights
182–201, 185.
135. Simone F van den Driest, ‘Crimea’s Separation from Ukraine: An Analysis of the
Right to Self-Determination and (Remedial) Secession in International Law’ (2015) 62
Netherlands International Law Review 329–63, 338.
136. See David Makinson, ‘Rights of Peoples: Point of View of a Logician’ in Crawford,
The Rights of Peoples (n 125) 69–92, 73.
137. Tina Kempin Reuter, ‘The Right to Self-Determination of Ethnic Groups: The Canton
of Jura in Switzerland’ (2016) 23 International Journal on Minority and Group Rights
250–69, 251.
138. Surendra Bhandari, ‘From External to the Internal Application of the Right to SelfDetermination: The Case of Nepal’ (2014) 21 International Journal on Minority and
Group Rights 330–70, 350–51.
139. Zoilo A Velasco, ‘Self-Determination and Secession: Human Rights-Based Conflict
Resolution’ (2014) 16 International Community Law Review 75–105, 82.
Autonomy for Minorities
27
1970 UN Declaration on Friendly Relations, has found great acceptance in
legal theory and has been adopted by some human rights bodies.140
For example, in the Katangese Peoples’ Congress v Zaire case, where
Mr Gerard Moke, President of the Katangese Peoples’ Congress, speaking as
representative of the Katangese, who constitute part of the Zaireoise people,
invoked violation of Article 20 para 1 of the African Charter on Human
and Peoples’ Rights (ACHPR) on the right of peoples to self-determination,
the African Commission on Human and Peoples’ Rights (AComHPR) stated
that:
self-determination may be exercised in any of the following ways independence, selfgovernment, local government, federalism, confederalism, unitarism or
any other form of relations that accords with the wishes of the people but fully
cognizant of other recognized principles such as sovereignty and territorial
integrity.141
In this context, it has been suggested that minority claims to autonomy
might be brought as part of the ‘internal’ right to self-determination.142
In order for such a suggestion to gain a solid legal basis, it would first have
to be accepted that the term ‘people’ should not be equated with a States’
population and thus with the State itself, since the majority of States are
in reality multinational. As Crawford has emphasised ‘[i]f the phrase “rights
of peoples” has any independent meaning, it must confer rights on peoples
against their own governments’.143
A meaningful contribution in this direction came in the late 1990s from
the Constitutional Court of Canada. In the case of Reference re Secession of
Quebec regarding the right of the legislature or the Government of Quebec to
effect the secession of Quebec from Canada unilaterally, the Constitutional
140. See Committee on the Elimination of Racial Discrimination, General Recommendation No 21, Right to Self-Determination, 23/08/1996, para 4, contained in Report of the
CERD – Fifty First Session, UN Doc A/51/18, Supplement No 18.
141. Katangese Peoples’ Congress v Zaire, Communication No 75/92, African Commission
on Human and Peoples’ Rights (1995), para 4; See Mtendeweka Owen Mhango,
‘Recognizing a Right to Autonomy for Ethnic Groups Under the African Charter on
Human and Peoples’ Rights: Katangese Peoples Congress v. Zaire’ (2007) 14 Human Rights
Brief 11–15, 12.
142. Miodrag A Jovanović, ‘Territorial Autonomy in Eastern Europe – Legacies of the Past’
(2002) Issue 4 Journal of Ethnopolitics and Minority Issues in Europe 1–16, 4.
143. James Crawford, ‘The Rights of Peoples: “Peoples” or “Governments”?’ in Crawford,
The Rights of Peoples (n 125) 55–67, 56.
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Court of Canada, after noting that the precise meaning of the term ‘people’
remains somewhat uncertain, opined that:
It is clear that ‘a people’ may include only a portion of the population of an
existing state. The right to self-determination has developed largely as a human
right and is generally used in documents that simultaneously contain references
to ‘nation’ and ‘state’. The juxtaposition of these terms is indicative that the reference to ‘people’ does not necessarily mean the entirety of a state’s population.144
This judgment is not legally binding in international law but can be used,
according to Article 38 para 1 (d) of the International Court of Justice’s Statute, as a subsidiary means for the determination of its rules of law, and has
also had great influence on legal theory. It makes perfectly clear that a ‘people’
does not have to coincide with the whole population of an existing State, but
there can be several peoples in one State.145
The next step, then, is to see whether minorities can be considered ‘a people’ constituting part of the whole population of a State. Here the semijurisprudence of the AComHPR proves to be particularly helpful. In a series
of cases brought before it regarding inter alia violations of Article 20 of the
ACHPR on the right to self-determination, the Commission relied explicitly for guidance on the definition of the term ‘people’ given by the international meeting of experts held by the United Nations Economic, Social
and Cultural Organization (UNESCO) in 1989. According to them, a
‘people’ is a group of individual human beings who share some or all of the
following characteristics: a) a common historical tradition, b) racial or ethnic identity, c) cultural homogeneity, d) linguistic unity, e) religious or ideological affinity, f ) territorial connection, and g) common economic life.146
Adopting this approach the AComHPR has found in the Kevin Mgwanga
Gunme v Cameroon case, considering the violation of inter alia Article 20 of
the ACHPR concerning the right to self-determination of the anglophone
Southern Cameroonians within the francophone Republic of Cameroon,
that the Southern Cameroonians constitute a ‘people’ based on their numerous characteristics, ‘which include a common history, linguistic tradition,
144. Reference re Secession of Quebec [1998] 2 SCR 217, para 124; See Peter Radan, ‘Constitutional Law and Secession: The Case of Quebec’ (1998) 2 Macarthur Law Review
69–85, 76.
145. Timo Koivurova, ‘Sovereign States and Self-Determining Peoples: Carving Out a Place
for Transnational Indigenous Peoples in a World of Sovereign States’ (2010) 12 International Community Law Review 191–212, 198.
146. International Meeting of Experts on Further Study of the Concept of the Rights of
Peoples, UNESCO, Paris, 27–30 November 1989, SHS – 89/CONF.602/7, Paris,
22 February 1990,7–8.
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29
territorial connection and political outlook’ as well as a self-perception as
a people with a separate and distinct identity.147 The Commission made its
position even clearer in the Sudan Human Rights Organization v Sudan and
Center on Housing Rights and Evictions v Sudan cases, opining that:
An important aspect of this process of defining ‘a people’ is the characteristics,
which a particular people may use to identify themselves, through the principle of
self identification, or be used by other people to identify them. These characteristics, include the language, religion, culture, the territory they occupy in a state,
common history, ethno-anthropological factors, to mention but a few. In States
with mixed racial composition, race becomes a determinant of groups of ‘peoples’,
just as ethnic identity can also be a factor. In some cases groups of ‘a people’ might
be a majority or a minority in a particular State.148
The Commission has, therefore, embraced a very broad understanding of
the term ‘people’, which could certainly cover indigenous and tribal peoples, minorities, descendants of the European colonial settlers, Asian immigrant communities and nomadic societies.149 Although in a more global
context there is reluctance to adopt such a broad conception of the term
‘peoples’, the AComHPR’s semi-jurisdiction could gradually contribute to
further development of the right to internal self-determination.150 Especially
as regards the case of minorities, this reading enhances the position of those
scholars who strongly and convincingly argue that minorities undoubtedly
fulfill the subjective and objective criteria of peoplehood in its ethnic sense
(self-perception, common history, language, culture and historical presence
in a specific territory) and should accordingly be recognised as peoples in
international law.151
The UN, however, has yet to adopt such an approach. The quasi-judicial
body most competent, according to Article 40 of the ICCPR and Article 1
147. Kevin Mgwanga Gunme v Cameroon, Communication No 266/2003, African Commission on Human and Peoples’ Rights, paras 170, 179; See Simon M Weldehaimanot, ‘The
ACHPR in the Case of the Southern Cameroons’ (2012) 9 SUR – International Journal
on Human Rights 85–107, 90–91.
148. Sudan Human Rights Organization v Sudan, Communication No 279/2003 and Center
on Housing Rights and Evictions v Sudan, Communication No 269/05, African Commission on Human and Peoples’ Rights, para 220.
149. Dinah Shelton, ‘Self-Determination in Regional Human Rights Law: From Kosovo to
Cameroon’ (2011) 105 American Journal of International Law 60–81, 69.
150. Kalana Senaratne, ‘Internal Self-Determination in International Law: A Critical Third
World Perspective’ (2013) 3 Asian Journal of International Law 305–39, 321.
151. Felix Ermacora, ‘The Protection of Minorities Before the UN’ (1983, IV) 182 Recueil des
Cours 247–370, 327; Nirmala Chandrahasan, ‘Minorities, Autonomy and the Intervention of Third States’ (1993) 23 Israel Yearbook on Human Rights 129–45, 135.
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of its Optional Protocol, to interpret Article 1 of the Covenant on the right
to self-determination, the Human Rights Committee (HRC), has so far
declined to clearly recognise minorities as peoples with a right to internal
self-determination. Specifically, the HRC has carefully avoided, in its semijuridical jurisprudence, determining whether an indigenous people, such
as the Lubicon Band of Canada, or a minority, such as the ethnic-German
population living in South Tyrol, constitute ‘peoples’ within the meaning
of Article 1 of the Covenant.152 Indeed, the Committee initially appeared
to sustain the differentiation between peoples and minorities by stating in
its 1994 General Comment No 23 that ‘[t]he Covenant draws a distinction between the right to self-determination and the rights protected under
Article 27. The former expresses a right belonging to peoples … Article 27,
on the other hand, relates to rights conferred on individuals as such’.153
Later, though, the Committee seemed to recognise [albeit in cases concerning indigenous peoples and not sensu stricto minorities] a certain interaction between Articles 1 and 27 of the Covenant,154 by stating that ‘the
provisions of article 1 may be relevant in the interpretation of other rights
protected by the Covenant, in particular article 27’.155 However, in its latest
relevant decision, the Committee omitted to make such a connection, recalling instead its constant adherence to the principle that ‘the Optional Protocol
provides a procedure under which individuals can claim that their individual
rights have been violated, but that these rights do not include those set out in
article 1 of the Covenant’.156 Thus, ‘in the case of minorities, even “internal”
self-determination is open to question’.157
152. See respectively Chief Bernard Ominayak and the Lubicon Lake Band v Canada, Communication No 167/1984, Human Rights Committee, UN Doc CCPR/C/38/167/1984
(1990) para 32.1; A.B. et. al. v Italy, Communication No 413/1990, Human Rights
Committee, UN Doc CCPR/C/40/413/1990 (1990) para 3.2.
153. Human Rights Committee, General Comment No 23: The Rights of Minorities
(Art. 27), UN Doc CCPR/C/21/Rev.1/Add.5 (08/04/1994) para 3.1. See Frances
Radey, ‘Self-Determination and Minority Rights’ (2002) 26 Fordham International Law
Journal 453–99, 459.
154. See Gaetano Pentassuglia, ‘Indigenous Groups and the Developing Jurisprudence of the
African Commission on Human and Peoples’ Rights: Some Reflections’ (2010) 3 UCL
Human Rights Review 150–63, 155.
155. Apirana Mahuika et al v New Zealand, Communication No 547/1993, Human Rights
Committee, UN Doc CCPR/C/70/547/1993 (2000), para 9.2.
156. Angela Poma Poma v Peru, Communication No 1457/2006, Human Rights Committee,
UN Doc CCPR/C/95/D/1457/2006 (2009), para 6.3.
157. Joshua Castellino and Jeremie Gilbert, ‘Self-Determination, Indigenous Peoples and
Minorities’ (2003) 3 Macquarie Law Journal 155–78, 161.
Autonomy for Minorities
31
While, then, at present it seems highly unlikely that minorities will be recognised as peoples proper in international law, one should not forget that this
was also true for indigenous peoples some years ago.158 Due to governments’
resistance, for example, to the designation of indigenous nations as ‘peoples’,
it was only possible to employ the term in the legally binding ILO Convention No 169 under the compromised disclaimer of Article 1 para 3, clarifying
that ‘its use shall not be construed as having any implications as regards as the
rights which may attach to the term under international law’.159 Also, during
the drafting process of the UNDRIP, several States were vehemently opposed
to the use of the concept ‘peoples’ in the text, proposing instead terms such
as ‘indigenous populations’ and ‘persons belonging to indigenous groups’.160
Even well-established democracies with high human rights profiles such as
Canada and Sweden refused to accept the Indian and Sami groups on their
territories as ‘peoples’ with a right to self-determination under Article 1 of the
ICCPR.161 In fact, until the adoption of the 2007 Declaration it was heavily
disputed whether indigenous nations could be classified as ‘peoples’ under
international law.162 It was the advocacy of indigenous peoples that brought
about the desired result, not the goodwill of the States.163 Minorities could
press, as indigenous peoples did, for the revision of the arbitrary distinction
between ‘peoples’, as the entire population of sovereign States, which possess
the right to self-determination, and ‘minorities’, which do not.164
158. Brad R Roth, ‘Secessions, Coups and the International Rule of Law: Assessing the
Decline of the Effective Control Doctrine’ (2010) 11 Melbourne Journal of International
Law 11–48, 14.
159. Asbjørn Eide, ‘International Cooperation for Group Accommodation Through Minority Protection: A Review of Standard Setting and Institution Building at Regional
and Global Levels’ (2006) 13 International Journal on Minority and Group Rights
153–70, 162.
160. Linzhu Wang, ‘The Definition of Indigenous Peoples and its Applicability in China’
(2015) 22 International Journal on Minority and Group Rights 232–58, 240.
161. Erica-Irene Daes, ‘The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections of the
UN Declaration on the Rights of Indigenous Peoples (Portland, Hart Publishing, 2011)
11–40, 27.
162. Katja Göcke, ‘The Case of Angela Poma Poma v. Peru before the Human Rights Committee – The Concept of Free Prior and Informed Consent and the Application of the
International Covenant on Civil and Political Rights to the Protection and Promotion
of Indigenous Peoples’ Rights’ (2010) 14 Max Planck Yearbook of United Nations Law
337–70, 350.
163. Julian Burger, ‘The UN Declaration on the Rights of Indigenous Peoples: From Advocacy to Implementation’ in Allen and Xanthaki (n 161) 41–59, 42.
164. Stephen Allen, ‘Recreating ‘One China’: Internal Self-Determination, Autonomy and
the Future of Taiwan’ (2003) 1 Asia-Pacific Journal on Human Rights and the Law
21–51, 31.
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In this effort minorities should bear in mind that indigenous peoples
gained recognition of their peoplehood by the international community not
because they are culturally and physically ‘endangered peoples’ or because
they are formerly sovereign ‘first nations’ who have been wrongfully deprived
of their sovereignty and were victims of major historical injustices, although
such arguments have a certain moral gravity, but because they constitute a
non-significant threat for States’ territorial integrity and sovereignty. As Daes
has noted, they are vulnerable, are mostly small and with limited resources,165
and most importantly they usually do not have ‘kin states’.166 Many ‘kin
states’ to minorities act provocatively, trying to use them in an inappropriate
way that violates the rule of non-intervention in the internal affairs of other
States.167 This intrusive attitude makes host States suspicious towards their
minorities because of fears for their national unity and stability.168 Minorities then have to offer clear and absolute guarantees towards their host States
against any improper intervention from their ‘kin states’, on the one hand
denying any role that would destabilise the internal order of their host States
and on the other acting as a bridge of friendship between the two. This is
an essential prerequisite in order for States to positively reconsider their
attitude towards the recognition of minorities as peoples entitled to internal
self-determination (autonomy).
5.3. Minority Autonomy via an Analogical Use of the UNDRIP
After two and a half decades of heated discussions and contested deliberations in the UN, indigenous peoples have succeeded in gaining recognition
of their right to autonomy. Specifically, as Article 4 of the relevant 2007 UN
Declaration proclaims: ‘[i]ndigenous peoples, in exercising their right to
self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for
financing their autonomous functions’.169 Although the Declaration carries
165. Erica-Irene A Daes, ‘An Overview of the History of Indigenous Peoples: SelfDetermination and the United Nations’ (2008) 21 Cambridge Review of International
Affairs 7–26, 24.
166. Miriam J Aukerman, ‘Definitions and Justifications: Minority and Indigenous Rights in
a Central/East European Context’ (2000) 22 Human Rights Quarterly 1011–50, 1045.
167. See Sia Spiliopoulou Åkermark, ‘Internal Self-Determination and the Role of Territorial
Autonomy as a Tool for the Resolution of Ethno-Political Disputes’ (2013) 20 International Journal on Minority and Group Rights 5–25, 22.
168. Gillian Triggs, ‘The Rights of “Peoples” and Individual Rights: Conflict or Harmony?’ in
Crawford The Rights of Peoples (n 125) 141–57, 146.
169. UN Declaration on the Rights of Indigenous Peoples, UN Doc A/RES/61/295, Annex,
13 September 2007. See Fabiana de Oliveira Godinho, ‘The United Nations Declaration
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legal significance for the development of customary international law,170 it is
not a legally binding instrument and therefore imposes no legal obligations
upon States.171 Conversely, it has been argued by Wiessner, based on a widespread study of state practice combined with the necessary opinio juris, that
indigenous peoples’ right to autonomy has achieved the status of customary
international law.172 Consequently, according to this approach, the Declaration reflects pre-existing customary international law as regards this specific
right.173 A more modest position implies that indigenous peoples’ right to
autonomy is emerging but is not yet crystallised.174 In this regard, Xanthaki
has claimed that to view ‘the Declaration or substantial parts of it [and indeed
that of autonomy one may say] as customary international law may be rather
premature’.175 This view does not dismiss the specific Declaration or the ‘soft’
law instruments in general as non-law, nor overlooks the growing importance
of non-binding instruments in the international legal system,176 but addresses
indigenous peoples’ right to autonomy as an issue that clearly requires further
debate and clarification.177
on the Rights of Indigenous Peoples and the Protection of Indigenous Rights in Brazil’
(2008) 12 Max Planck Yearbook of United Nations Law 247–86, 257–58.
170. Timo Koivurova, ‘From High Hopes to Disillusionment: Indigenous Peoples’ Struggle to (re)Gain Their Right to Self- Determination’ (2008) 15 International Journal on
Minority and Group Rights 1–26, 3.
171. Bradford W Morse, ‘Indigenous Peoples and Water Rights: Does the United Nations’
Adoption of the Declaration on the Rights of Indigenous Peoples Help?’ (2010) 20
Journal of Water Law 254–67, 255; Shaw (n 84) 488.
172. See Siegfried Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights Journal
57–128, 127.
173. See Marc Weller, ‘Settling Self-Determination Conflicts: Recent Developments’ (2009)
20 European Journal of International Law 111–65, 116–17, who seems to imply such
a position. See also Siegfried Wiessner, ‘The Cultural Rights of Indigenous Peoples:
Achievements and Continuing Challenges’ (2011) 22 European Journal of International
Law 121–40, 135–136 (fn 85).
174. See Heather A Northcott, ‘Realisation of the Right of Indigenous Peoples to Natural
Resources Under International Law Through the Emerging Right to Autonomy’ (2012)
16 The International Journal of Human Rights 73–99.
175. Alexandra Xanthaki, ‘Indigenous Rights in International Law Over the Last 10 Years and
Future Developments’ (2009) 10 Melbourne Journal of International Law 27–37, 36.
176. See Mauro Barelli, ‘The Role of Soft Law in the International Legal System: The Case of
the United Nations Declaration on the Rights of Indigenous Peoples’ (2009) 58 International and Comparative Law Quarterly 957–83, 959–60.
177. Steven C Roach, ‘Minority Rights and an Emergent International Right to Autonomy:
A Historical and Normative Assessment’ (2004) 11 International Journal on Minority and
Group Rights 411–32, 429. See also Osipov (n 112) 402; Loukacheva (n 30) 14.
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The recognition of a right to internal self-determination (autonomy) for
indigenous peoples in the UNDRIP has been hailed, notwithstanding its
vagueness, as ‘the most important advance in the law of self-determination’
since the adoption of the common Article 1 of the ICCPR and ICESCR.178
Indeed, it is the first international legal text, even of a ‘soft law’ nature, to
explicitly extend the right to internal self-determination to a sub-national
group.179 This development may have major implications for the scope of
the right to self-determination, empowering the autonomy claims of other
sub-national groups, such as minorities.180 There are certainly good arguments to support this case, since besides their differences several commonalities between the two population categories exist, as analysed below.
Starting adversely with the current legal reality, one can note that although
in almost all situations indigenous peoples constitute minorities within the
States where they live,181 Bolivia and Guatemala being the two best known
exceptions to that rule, contemporary international law treats the two groups
separately and accords them different sets of legal protection.182
Thus, beyond the recognition of a right to internal self-determination
(autonomy) to indigenous peoples only, international law also accords them
a series of rights whose nature and content differ considerably from those
of minorities, establishing a stronger status for the former.183 Specifically,
indigenous instruments are typically worded in the form ‘indigenous peoples
have’, meaning that the rights accorded are collective, whereas minority texts
recognise rights mainly, if not exclusively, to ‘persons belonging to minorities’, that is they are individual rights.184 This emphasis on collective rights
178. Robert T Coulter, ‘The U.N. Declaration on the Rights of Indigenous Peoples: A Historic Change in International Law’ (2008–2009) 45 Idaho Law Review 539–53, 548.
179. Mauro Barelli, ‘Shaping Indigenous Self-Determination: Promising or Unsatisfactory
Solutions?’ (2011) 13 International Community Law Review 413–36, 422.
180. Stephen Allen, ‘The Consequences of Modernity for Indigenous Peoples: An International Appraisal’ (2006) 13 International Journal on Minority and Group Rights 315–40,
335–36.
181. Alessandro Fodella, ‘International Law and the Diversity of Indigenous Peoples’ (2006)
30 Vermont Law Review 565–94, 572.
182. Yousef T Jabareen, ‘Redefining Minority Rights: Successes and Shortcomings of the
UN Declaration on the Rights of Indigenous Peoples’ (2011) 18 UC Davis Journal of
International Law and Policy 119–61, 125.
183. Dieter Kugelman, ‘The Protection of Minorities and Indigenous Peoples Respecting
Cultural Diversity’ (2007) 11 Max Planck Yearbook of United Nations Law 233–63, 236.
184. Patrick Thornberry, Cultural Rights and Universality of Human Rights, Day of General
Discussion, Right to Take Part in Cultural Life (article 15 (1) (a) of the Covenant,
UN Doc E/C.12/40/15 (9 May 2008) 9.
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corresponds to indigenous societal needs and structures, which are centered
on the community rather than the individual. It is the community, for example, that holds rights to the lands,185 traditional knowledge,186 etc. Second,
rights to land and natural resources are core elements of the ILO Convention No 169 and the UNDRIP, while minority provisions contain no such
rights.187 This differentiation is due to the fact that land rights are crucial for
the cultural and physical survival of indigenous societies, because they rely
upon their lands to provide them with the natural resources that are necessary for their subsistence and because they are also spiritually tied to their
ancestral territories.188 Third, indigenous norms aim at providing an environment in which indigenous peoples shall have the right to preserve their
communities outside the dominant society, while minority stipulations aim
at ensuring respect for minority rights within the majority society.189 This
difference is attributed to the assumption that minorities want to be part of
the national society as a whole while preserving their distinct characteristics,
whereas indigenous peoples tend to maintain a different way of life.190
In general, the special status of indigenous peoples is justified on the ground
that the indigenous societies are the original holders of their traditional
lands, retain substantial distinct cultural characteristics,191 and additionally are
peoples on the brink of extinction (‘endangered peoples’).192 The implication
185. CG Benedict, ‘The Status and Rights of Indigenous Peoples in Canada’ (1999) 59
Heidelberg Journal of International Law (ZaöRV) 405–42, 428–29.
186. Kerrin Schillhorn, ‘The Status and Rights of Indigenous Peoples in Australia’ (1999) 59
Heidelberg Journal of International Law (ZaöRV) 443–62, 461.
187. Asbjørn Eide, Working Paper on the Relationship and Distinction Between the Rights
of Persons Belonging to Minorities and Those of Indigenous Peoples, UN Doc E/CN.4/
Sub.2/2000/10 (19 July 2000), para 9.
188. Rainer Grote, ‘The Status and Rights of Indigenous Peoples in Latin America’ (1999) 59
Heidelberg Journal of International Law (ZaöRV) 497–528, 511.
189. Mattias Åhrén, ‘The Provisions on Lands, Territories and Natural Resources in the
UN Declaration on the Rights of Indigenous Peoples: An Introduction’ in Claire
Chartes and Rodolfo Stavenhagen (eds), Making the Declaration Work: The United
Nations Declaration on the Rights of Indigenous Peoples (Copenhagen, International Work
Group for Indigenous Affairs, 2009) 200–15, 201–202.
190. Asbjørn Eide and Rianne Letschert, ‘Institutional Developments in the United Nations
and at the Regional Level’ (2007) 14 International Journal on Minority and Group Rights
299–332, 319.
191. René Kuppe, ‘The Three Dimensions of the Rights of Indigenous Peoples’ (2009) 11
International Community Law Review 103–18, 105, 110–11.
192. Lauri Hannikainen, ‘The Status of Minorities, Indigenous Peoples and Immigrant and
Refugee Groups in Four Nordic States’ (1996) 65 Nordic Journal of International Law
1–71, 3.
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is thus that the problems faced by indigenous peoples are in many ways a
‘special category’ deserving special legal status and protection.193
While the case of indigenous peoples is certainly one of tears, blood,
horror, exploitation and extermination, some of the aforementioned assumptions justifying their differential treatment in comparison to minorities are
partially misleading. Thus, although several characteristics of indigenous
peoples’ attachment to their lands, such as the traditional patterns of land
usage, collective ownership and spiritual or religious ties to them, are not to be
found in the case of minorities, which are mostly adapted to Western notions
of economy and private property and practice major world religions,194 it is
at the same time true that the latter also have a strong emotional attachment
to their historical homelands.195 Also, regarding the argument that indigenous peoples do not just seek measures for their integration, but claim a long
term differential status as distinct peoples in order to pursue an autonomous
development of their cultures,196 one could note that this is not absolutely
true for all of them, since there are indigenous peoples who want to participate fully in the material and cultural life of the societies around them.197
Similarly, there are minorities which give great emphasis to the preservation
of their distinctive cultures.198 On this point, Musafiri correctly notes that the
difference between indigenous peoples and minorities is a matter of degree,
not of kind.199
Indeed, if one compares the two most widely cited UN working definitions for the concepts of ‘minority’ and ‘indigenous peoples’, namely those
of Capotorti200 and Cobo201 respectively, one would have to conclude that
193. Marianne Van Den Bosch and Willem Van Genugten, ‘International Legal Protection of
Migrant Workers, National Minorities and Indigenous Peoples – Comparing Underlying Concepts’ (2002) 9 International Journal on Minority and Group Rights 195–233,
230–31.
194. Aukerman (n 166) 1039.
195. Will Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy’ in Allen and Xanthaki
(n 161) 183–208, 200; Aukerman (n 166) 1038–39.
196. Garth Nettheim, ‘“Peoples” and “Populations” – Indigenous Peoples and the Rights of
Peoples’ in Crawford, The Rights of Peoples (n 125) 107–26, 126.
197. Anna Meijknecht, ‘The (Re-)emergence of Indigenous Peoples as Actors in International
Law’ (2002–2003) 10 Tilburg Foreign Law Review 315–24, 316.
198. Aukerman (n 166) 1014, 1022–23.
199. Musafiri (n 14) 507–508.
200. See Francisco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and
Linguistic Minorities, UN Doc E/CN.4/Sub.2/384/Rev.1 (New York, United Nations
Publications, 1979), para 568.
201. See José Martinez Cobo, Study of the Problem of Discrimination Against Indigenous
Populations, Volume V, Conclusions, Proposals and Recommendations, UN Doc E/CN.4/
Sub.2/1986/7/Add.4 (New York, United Nations Publications, 1987), para 379.
Autonomy for Minorities
37
they do not differ by much. The main difference is that only those groups
that are connected with a specific territory which their ancestors inhabited
prior to its colonisation or invasion can be regarded as indigenous peoples.202
Barring this difference, minorities and indigenous peoples are comparable
groups in the sense that both have in the past been victims of gross violations
of their human rights,203 and in the present share a common experience of
discrimination and lack of access to the whole range of human rights law.204
They belong to non-dominant,205 vulnerable, politically and economically
marginalised groups206 that are ethnically distinct from the majority population as regards their language, religion, culture and traditions.207 They are
conscious of their different cultures208 and want to preserve and transmit
them to their future generations.209
Thus, there is a good deal of overlap between these two kinds of groups
and many of their concerns are in practice broadly similar,210 especially those
issues concerning non-discrimination and cultural integrity.211 As Daes
noted, ‘no definition or list of characteristics can eliminate overlaps between
the concepts of minority and indigenous peoples. Cases will continue to arise
202. Malgosia Fitzmaurice, ‘The New Developments Regarding the Saami Peoples of the
North’ (2009) 16 International Journal on Minority and Group Rights 67–156, 132.
203. Joshua Castellino, ‘The MDGs and International Human Rights Law: A View from the
Perspective of Minorities and Vulnerable Groups’ (2009) 13 The International Journal of
Human Rights 1–28, 11.
204. Joshua Castellino, ‘Indigenous Rights and the Right to Development: Emerging Synergies or Collusion?’ in Allen and Xanthaki (n 161) 367–86, 368.
205. Budislav Vukas, ‘International Protection of Minorities: Limits of Growth’ (2000) XXIX
Thesaurus Acroasium 21–36, 26.
206. Snežana Trifunovska, ‘One Theme in Two Variations – Self-Determination for Minorities and Indigenous Peoples’ (1997) 5 International Journal on Minority and Group Rights
175–97, 178.
207. Borhan Uddin Khan and Muhammad Mahbubur Rahman, Protection of Minorities:
Regimes, Norms and Issues in South Asia (Cambridge Scholars Publishing, 2012) 16.
208. Bent Ole Gram Mortensen, ‘The Greenland Self-Government Act: The Pitfall for the
Inuit in Greenland to Remain an Indigenous People?’ (2016) VIII The Yearbook of Polar
Law 103–28, 110.
209. Alexandra Xanthaki, ‘Indigenous Rights in the Russian Federation: The Case of Numerically Small Peoples of the Russian North, Siberia, and Far East’ (2004) 26 Human Rights
Quarterly 74–105, 77.
210. Tom Hadden, ‘The United Nations Group on Minorities’ (2007) 14 International
Journal on Minority and Group Rights 285–97, 296.
211. S James Anaya, ‘International Human Rights and Indigenous Peoples: The Move Toward
the Multicultural State’ (2004) 21 Arizona Journal of International and Comparative Law
13–61, 21.
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that defy any simple, clear-cut attempt at classification’.212 Brownlie also
critically comments on the separate treatment of minorities and indigenous
peoples as an impediment to fruitful work, on the grounds that the rights
and claims of groups with their own cultural histories and identities are in
principle the same.213
In this vein, the UNDRIP could set a precedent that minorities could
invoke to strengthen their rights by attaining inter alia a right to autonomy. After all, since whatever arguments exist for recognising a right to
self-government to indigenous peoples also apply to a significant degree to
minorities, it would be morally inconsistent to deny it to the latter.214 One
has, however, to accept that such a transformative potential of the UNDRIP
seems unlikely to take place in the near future, as for reasons of security
States have adopted the Declaration under an understanding of its sui generis
character. Even so, such an approach is short-sighted, since it is conceptually
unstable, as Kymlicka warns.215 The present situation, in which it is more
advantageous to be labeled an indigenous people than a minority,216 is very
likely to lead to tensions over the issue of definitions, making many or even
all minorities claim indigenous status.217 Thus, States will sooner or later
have to face the reality and give functional responses to minority autonomy
claims.
5.4. Minority Autonomy through Effective Participation
A third way through which minorities could gradually succeed in gaining
a recognition of a right to autonomy without having to argue that they either
constitute ‘peoples’ or that they are entitled to the analogical implementation of the UNDRIP as regards its autonomy element, is via the road of
participatory rights. The right of every citizen to take part in the conduct of
public affairs, to vote and to be elected, stated in Article 25 of the ICCPR,
is related to the right of self-determination of peoples, but it is also distinct
212. Erica-Irene Daes, Working Paper on the Relationship and Distinction Between the Rights
of Persons Belonging to Minorities and Those of Indigenous Peoples, UN Doc E/CN.4/
Sub.2/2000/10 (19 July 2000), para 41.
213. Ian Brownlie, ‘The Rights of Peoples in Modern International Law’ in Crawford,
The Rights of Peoples (n 125) 1–16,16.
214. Kymlicka (n 195) 199–201.
215. Kymlicka (n 195) 203–207.
216. See Russel Lawrence Barsh, ‘Indigenous Peoples in the 1990s: From Object to Subject of
International Law?’ (1994) 7 Harvard Human Rights Journal 33–86, 81–82.
217. Aukerman (n 166) 1013, 1020; Kymlicka (n 195) 205–206.
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39
from it.218 It is well established in international law as a freestanding right.219
A progressive approach of the specific provision beyond its individualistic
orientation, such as the one suggested below by Scheinin, in combination
with a dynamic interpretation220 of Article 2, paras 2 and 3 of the minority
UN Declaration and Article 15 of the FCNM, which call for the effective
participation of minority members in the cultural, religious, social, economic
and public life as well as in the decisions at national and regional level that
affect them, could open the door to minority autonomy structures.221
Under this prism, it is critical to question whether simple majority rule can
fully secure effective participation of minority members in public affairs.222
Reality proves that, read restrictively, the ‘one man, one vote’ democratic
principle can deprive minorities of any real opportunity to improve their
situation.223 This happens simply because minorities are outvoted in the
‘winner takes all’ context and are unable to protect their interests.224 Thus,
absolute democracy can lead to minority oppression (‘majority tyranny’).225
Another approach, then, is needed, which could make the right of minority members to participation truly effective, in order to generate space for
the maintenance and promotion of their identities.226 Such an innovative
218. Human Rights Committee, The Right to Participate in Public Affairs, Voting Rights, and
the Right of Equal Access to Public Service, Article 25, General Comment No 25, UN Doc
CCPR/C/21/Rev.1/Add.7 (12 July 1996), para 2.
219. Patrick 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 Alan Phillips and Allan Rosas (eds), Universal Minority Rights (Turku/Abo
and London, Abo Akademi University Institute of Human Rights and Minority Rights
Group International, 1995) 13–76, 42–43.
220. See Gudmundur Alfredsson, ‘Minority Rights: A Summary of Existing Practice’ in
Phillips and Rosas, ibid, 77–86, 81.
221. Anne-Christine Bloch, ‘Minorities and Indigenous Peoples’ in Asbjørn Eide, Catarina
Krause and Allan Rosas (eds), Economic, Social and Cultural Rights (Dordrecht/Boston/
London, Martinus Nijhoff Publishers, 1995) 309–21, 316–17.
222. Jungwon Park, ‘Integration of Peoples and Minorities; An Approach to the Conceptual
Problem of Peoples and Minorities with Reference to Self-Determination Under International Law’ (2006) 13 International Journal on Minority and Group Rights 69–93, 77.
223. Joshua Castellino, ‘The Protection of Minorities and Indigenous Peoples in International
Law: A Comparative Temporal Analysis’ (2010) 17 International Journal on Minority and
Group Rights 393–422, 401–402.
224. Katerina Tsotroudi, ‘Ethnic Minorities and Collective Rights in the New Europe: Some
Observations’ (1993) 46 Revue Hellenique de Droit International 225–49, 233–34.
225. Daniel Thürer, ‘National Minorities: A Global, European and Swiss Perspective’ (1995)
19 Fletcher Forum of World Affairs 53–69, 67–68.
226. Marc Weller, ‘Creating the Conditions Necessary for the Effective Participation of Persons Belonging to National Minorities’ (2004) 10 International Journal on Minority and
Group Rights 265–90, 267.
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approach is found in the concurring individual opinion of Scheinin in the
case JGA Diergaardt (late Captain of the Renoboth Bater Community) et al
v Namibia. In his view there are situations where the right of participation
of Article 25 of the ICCPR calls for special arrangements for members of
minorities and indigenous peoples. In such cases, it is not sufficient to give
individual members of these communities the individual right to vote in
general elections. ‘Some forms of local, regional or cultural autonomy may
be called for in order to comply with the requirement of effective rights of
participation.’227 This reading of Article 25 of the ICCPR, which goes beyond
the individualistic orientation of the right of political participation, in combination with Articles 2, paras 2 and 3 of the relevant UN Declaration and
para 15 of the FCNM, could lead to minority autonomy.228 The UN Forum
on Minority Issues has taken such a view by suggesting that the right to effective political participation can be ensured through many different means,
including ‘forms of territorial or personal autonomy’.229 A similar position
has been adopted by the chairperson of the former UN Working Group on
Minorities, Asbjørn Eide, in his Commentary on the UN Declaration on the
rights of persons belonging to minorities.230 Also, the Explanatory Report of
the FCNM encourages governments to consider, for instance, ‘decentralized or
local forms of government’ as a means of achieving effective participation.231
It should also be noted that from a practical perspective the separation of the
provisions on effective participation from the more politically sensitive right
to self-determination, in either its external or its internal dimension, may
227. Individual Opinion by Martin Scheinin, UN Doc CCPR/C/69/D/760/1997
(6 September 2000) 17–18. See Annelies Verstichel, ‘Recent Developments in the UN
Human Rights Committee’s Approach to Minorities, with a Focus on Effective Participation’ (2005) 12 International Journal on Minority and Group Rights 25–41, 27, 35, 41.
228. See Balázs Vizi, ‘Does European Integration Support the Minority Quest for Autonomy?
Minority Claims for Self-Government and Devolution Processes in Europe’ in Zoltán
Kántor (ed), Autonomies in Europe: Solutions and Challenges (Budapest, L’HarmattanNPKI, 2014) 25–35, 27; Patrick Thornberry, ‘The Democratic or Internal Aspect
of Self-Determination With Some Remarks on Federalism’ in Tomuschat (n 121)
101–38, 134.
229. Human Rights Council, Recommendations of the Second Session of the Forum on Minority
Issues on Minorities and Effective Political Participation (12 and 13 November 2009),
UN Doc A/HRC/13/25 (2 February 2010), para 9.
230. Asbjørn Eide, Commentary to the Declaration on the Rights of Persons Belonging to National
or Ethnic, Religious and Linguistic Minorities, UN Doc E/CN.4/Sub.2/AC.5/2001/2
(2 April 2001), paras 20, 38 and 39.
231. Framework Convention for the Protection of National Minorities and Explanatory
Report, H(95)10 (1995), para 80 https://rm.coe.int/CoERMPublicCommonSearch
Services/DisplayDCTMContent?documentId=09000016800c10cf.
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41
have some advantages, making them more politically acceptable to States
and possibly increasing the prospects of their successful implementation.232
However, the ACFC has so far tacitly declined such an approach in its
supervision of Article 15 of the FCNM. Specifically, despite commenting
positively on the States that by their own initiative have established autonomous arrangements, the Committee does not go so far as to imply that
Article 15 encompasses a right to autonomy for minorities in order to obtain
effective participation.233 In this regard, Houten and Wolff note that the
autonomy solutions ‘are not part of the official CoE “agenda”’234 at least for
now. Still, it is a potential that minorities can explore to the extent possible,
using it as a starting point to the way to autonomy.
5.5. Concluding Views
Current international law does not entail a right to autonomy for minorities.
However, it does offer, as has been analysed, some avenues on which minorities could work on to gain its recognition. While such a development seems
unlikely to happen in the near future, due mainly to State anxieties, much
will depend on the broadening and deepening of the concept of democracy
in society at large. In a living and functional democratic society all issues,
even the most ‘sensitive’ such as minority autonomy rights, should freely be
put into open dialogue and discussion. Minority representatives should have
a real opportunity, meaning available time and space and adequate access
to all kinds of media and public fora, to articulate in detail their arguments
and make them known to the dominant ethnic majority in order to clarify
that autonomy on the one hand does not mean secession and on the other
constitutes an inherent element of the democratic principle and a valuable
instrument for minority citizens to pursue their cultural development in
the same way that citizens of the ethnic majority do. Convincing then the
dominant ethnic majority and gaining its neutrality or even its understanding towards the autonomy issue is a necessary prerequisite for State governments to be more receptive to the relative minority demand. In this context,
232. See Helen Quane, ‘The UN Declaration on the Rights of Indigenous Peoples: New
Directions for Self-Determination and Participatory Rights?’ in Allen and Xanthaki
(n 161) 259–87, 273, 281.
233. Julie Ringelheim, ‘Minority Rights in a Time of Multiculturalism – The Evolving Scope
of the Framework Convention on the Protection of National Minorities’ (2010) 10
Human Rights Law Review 99–128, 126 (fn 122).
234. Pieter van Houten and Stefan Wolff, ‘The Dynamics of Ethnopolitical Conflict Management by International and Regional Organizations in Europe’ (2008) 7 Journal of
Ethnopolitics and Minority Issues in Europe 1–31, 12.
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an agenda which would be based not on a nationalistic but on a civic style
rhetoric in the spirit of goodwill would have more chances of success.
After all, recognising a right to autonomy to minorities could lead to enhancement of the democratic structures of the society, both at international and
national level, since autonomy in its original literary meaning in the Greek
language, refers, as mentioned, to the right to make ones’ laws and take decisions on matters of direct concern. Minority populations would be more
satisfied in the State they reside if they themselves instead of State officials
of different ethnic background are in the position to take decisions in areas
of minority interest such as education, culture, language, etc. In this way
autonomy can contribute to minority satisfaction and State stability at the
same time.
6. Anti-Autonomy Critics and Counter-Arguments
Critical voices against the recognition of a right to autonomy, territorial or
non-territorial/cultural, to minorities, note that the co-existence in a State
territory of different laws embodying a diversity of legal traditions may not
only create legal antinomies but also political conflicts in terms of values
protected by the law.235 In the same context, it has been claimed that these
kinds of settlements enhance ethnic separation and reinforce the isolation of
minorities, thus undermining on the one hand the common public sphere
bridging the different communities and favouring on the other the centrifugal forces that threaten the stability of the State.236 Indeed, most States are
very uncomfortable with the idea of minority autonomy as they fear that
it will bring destabilisation, which can even escalate to secession. Others
argue that granting autonomy to minorities on the one hand ‘may threaten
norms of equality and individual rights at the within-group level’237 by sustaining for example traditional practices that violate the rights of women or
by legitimising policies that restrict the right of minority members to exit
from their group, and on the other, in the case of territorial arrangements,
could subject the other minorities that live in the autonomous area to policies
235. Giovanni Matteo Quer and Sara Memo, ‘Releasing Minorities from the “Nationalist
Trap”: From Territorial to Personal Autonomy in a “Multiple Demoi Europe”’ (2012) 47
Cuadernos Europeos de Deusto 149–75, 166.
236. Emmanuel Dalle Mulle, ‘Belgium and the Brussels Question: The Role of the NonTerritorial Autonomy’ (2016) 15 Ethnopolitics 105–24, 120–21.
237. Jan Muś and Mirella Korzeniewska-Wiszniewska, ‘Divide et Impera Principle. Minority
Oriented State Policy in the Balkans’ (2013) 13 New Balkan Politics 73–89, 79.
Autonomy for Minorities
43
of discrimination and assimilation.238 Also, on the level of implementation
and especially as regards the non-territorial/cultural autonomy experiments
that have taken place almost exclusively in Eastern Europe, it has been
pointed out that these are not working properly.239 On the one hand the
relative instruments imply only a minimalist action on the part of the States
and lack strong requirements for financial support,240 and on the other the
cultural councils/self-governments have neither clear status and competences
nor decisive powers in their field.241
Replying to the aforementioned concerns, it could be argued, first, that the
existence of different cultural values in a society can contribute to its strengthening as a whole than to its fragmentation and disruption.242 To this end,
certain educational and social policy programmes promoting integration and
cultivating mutual understanding between majority and minority members,
as well as a sense of citizen’s common civil identity could help.
Considering the States’ fears, Gross accepted in his report that autonomy
is certainly a concept that can have negative connotations, since it can be seen
as a threat to the State’s territorial integrity and a first step towards secession.
However, he added, ‘there is frequently little evidence to sustain this view’.243
Indeed, as Murswiek notes, autonomy could be the best prevention against
secession, if only granted in a timely fashion.244 In this light, there is in theory
238. Stephen Deets and Sherrill Stroschein, ‘Dilemmas of Autonomy and Liberal Pluralism:
Examples Involving Hungarians in Central Europe’ (2005) 11 Nations and Nationalism
285–305, 293.
239. Kaan Namli, ‘De-Territorializing Minority Rights: The Application of NonTerritorial Autonomy for Dispersed Minority Communities’ (Master’s thesis, İhsan
Doğramacı Bilkent University, 2016) 29 http://repository.bilkent.edu.tr/bitstream/
handle/11693/30165/10113480.pdf.pdf?sequence=1.
240. Jala Garibova, ‘Cultural Autonomy: The Perceived vs. Realistic Scope’ (2012) 213
International Journal of the Sociology of Language 105–109, 106.
241. Liliya Aliyeva, ‘Tove H. Malloy, Alexander Osipov, and Balazs Vizi (2015) Managing
Diversity Through Non-Territorial Autonomy: Assessing Advantages, Deficiencies, and
Risks. Oxford: Oxford University Press (Book Review)’ (2016) 2 Intersections. EastEuropean Journal of Society and Politics 135–37, 137.
242. See Laura Pineschi, ‘Cultural Diversity as a Human Right? General Comment No. 21 of
the Committee on Economic, Social and Cultural Rights’ in Silvia Borelli and Federico
Lenzerini (eds), Cultural Heritage, Cultural Rights, Cultural Diversity – New Developments in International Law (Leiden/Boston, Martinus Nijhoff Publishers, 2012) 27–53,
29, 36.
243. Andreas Gross (Rapporteur), Positive Experiences of Autonomous Regions as a Source of
Inspiration for Conflict Resolution in Europe, Committee on Political Affairs and Democracy, Doc 9824, 3 June 2003, para 9.
244. Dietrich Murswiek, ‘The Issue of a Right of Secession – Reconsidered’ in Tomuschat
(n 121) 21–39, 39.
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strong support for the view that autonomy arrangements carry benefits that
overcome the aforementioned anti-autonomy argument, focusing mainly
on examples where the autonomy settlements led to a decrease in violence
in a series of ethnic conflicts (eg in the Basque Country, Corsica, Northern
Ireland).245 In any case, in order to ease a State’s reasonable anxiety it would
be wise to have clear and sincere guarantees from the representatives of the
minorities concerned that they will not engage in activities contrary to State
sovereignty. This requirement does not emanate from an absolute respect for
States’ integrity, since human history has repeatedly seen the disintegration
of various types of polities that have claimed they would last forever,246 but
from acknowledgement of the fact that there is no mono-ethnic territory in
the world. Thus, any separation from a State and creation of a new one would
inevitably lead to the formation of new minorities subjected to the dominance of their new masters,247 as the case of the marginalised Serbian and
Roma minorities in independent Kosovo clearly shows. After all, minority
members should not only have rights guaranteeing real and full equality with
the members of the ethnically dominant majority but also duties as citizens
of the State.
Second, any autonomy settlement must respect the principles of equality and non-discrimination.248 The autonomous government authorities
should fully guarantee the enjoyment of human rights by all the members
of the State’s dominant majority who constitute a numerical minority in the
autonomous territory, as well as of the members of other minorities.249 No
minority autonomy right can be used as a pretext to suppress or infringe
non-minority members’ rights.250 They must also wholly safeguard the rights
245. Daniel Rodrigues, ‘Considerations of the Role of Federalism in Managing Ethnic
Plurality in Multinational States in Conflict Prevention’ (2014) 4 Janus.Net e-Journal
of International Relations 104–17, 108–109.
246. Christian Tomuschat, ‘Self-Determination in a Post-Colonial World’ in Tomuschat
(n 121) 1–20, 6.
247. Sia Spiliopoulou Åkermark and Sarah Stephan, ‘Editorial: Rethinking Territorial
Arrangements in Conflict Resolution – Introduction to the Special Issue of the International Journal on Minority and Group Rights’ (2013) 20 International Journal on Minority
and Group Rights 1–3, 2.
248. Gross (n 243) para 17. See also Layos Arday, ‘Self-determination, Self-government,
Regionalization, Autonomy’ (translated by Zsofia Csuti) (2012) 3 Délkelet Európa –
SouthEast Europe International Relations Quarterly 1–8, 5–6.
249. Gudmundur Alfredsson, ‘The Rights of Indigenous Peoples with a Focus on the National
Performance and Foreign Policies of the Nordic Countries’ (1999) 59 Heidelberg Journal
of International Law (ZaöRV) 529–42, 535.
250. See Marco Odello, ‘The Right to Take Part in Cultural Life: General Comment No. 21
of the United Nations Committee on Economic, Social and Cultural Rights’ (2011) 27
Anuario Espanol de Derecho International 493–521, 505–506.
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45
of the members of their own group who do not wish to identify with it.251
Finally, they have to combat any traditional practices that violate the human
rights and fundamental freedoms under the banner of cultural relativism.252
Next, the failures of some autonomy regimes should not necessarily be
blamed on them, but on the conditions under which they were applied.253
Majtényi, for example, has argued that Hungary’s cultural autonomy has
failed not because of the supposed or real deficiencies of the idea, but because
of the inappropriate implementation and malfunctions of the legislation.254
The same conclusion ensues from the poor functioning of the cultural autonomy arrangements in other countries, such as in Estonia and the Russian
Federation, where the establishment of the relevant regimes seems primarily
to serve hidden political agendas rather than minority protection, resulting
in toothless minority cultural self-governments.255 Such cases illustrate that
when goodwill on the part of State authorities is lacking, there can be no substantive autonomy. Thus, a true spirit of meaningful collaboration between
the State authorities, the ethnic majority and the minority/minorities living
in a State is a prerequisite for the different models of autonomy to become an
effective instrument of minority protection and conflict prevention.
7. Final Thoughts
Autonomy for minorities is not and cannot be a panacea, since there is a
wide variety of minority situations around the world that are in need of different treatment.256 In general, however, it can be one of the best vehicles
for minority protection,257 and for the prevention of ethnic conflicts.258
251. See Timor Varady, ‘Minorities, Majorities, Law and Ethnicity: Reflections of the
Yugoslav Case’ (1997) 19 Human Rights Quarterly 9–54, 46.
252. See the relevant discussion in Federico Lenzerini, The Culturalization of Human Rights
Law (Oxford, Oxford University Press, 2014) 127–28.
253. Gross (n 243) para 15. See also Csaba Máté Sarnyai and Pap Tibor, ‘Individual,
Community, Identity’ (2015) 1 West Bohemian Historical Review 167–76, 173–74.
254. Balázs Majtényi, ‘What has Happened to our Model Child? The Creation and Evolution
of the Hungarian Minority Act’ (2005–2006) 5 European Yearbook of Minority Issues
397–443, 419.
255. See Athanasios Yupsanis, ‘Cultural Autonomy for Minorities in the Baltic States,
Ukraine, and the Russian Federation; A Dead Letter’ (2016) XXXVI Polish Yearbook of
International Law 109–35.
256. Hurst Hannum, ‘Contemporary Developments in the International Protection of the
Rights of Minorities’ (1991) 66 Notre Dame Law Review 1431–48, 1442.
257. Kay Hailbronner, ‘The Legal Status of Population Groups in a Multinational State Under
Public International Law’ (1990) 20 Israel Yearbook on Human Rights 127–54, 140.
258. Mtendeweka Mhango, ‘Governance, Peace and Human Rights Violations in Africa:
Addressing the Application of the Right to Self-Determination in Post-Independence
Africa’ (2012) 5 African Journal of Legal Studies 199–214, 213.
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It can accommodate population diversity and enhance integration without
assimilation,259 as well as provide minorities with the necessary space and
control over the development of their culture, language and religion, without
jeopardising State integrity, as it is exclusively oriented towards internal structures and arrangements.260 Given its positive potentials it is sad that such a
right exists only for indigenous peoples in contemporary international law.
Developments like the ACHPR’s broad conception of the term ‘people’, in a
way that certainly includes ‘minorities’, in combination with the application
to them of the legal doctrine of internal self-determination, which includes
forms of autonomy/self-government, could lead to the recognition of such a
right to minorities in international law. Also, given the several commonalities
between minorities and indigenous peoples, an analogical implementation of
the relevant UNDRIP provisions on autonomy could have the same result.
Indeed such a development is morally and practically justified. A dynamic
interpretation of the minority participatory rights found in the relevant
UN Declaration and the FCNM could additionally contribute in this
direction.
In order for such a right not to become a tool of oppression of internal
minorities, its recognition should be conditional on the absolute respect of
their human rights. Moreover, in order to avoid any attempt by ‘kin states’,
where these exist, to manipulate autonomous minority institutions with the
aim of serving their own political agenda, any recognition should be made
dependent on the full respect of the States’ territorial integrity, and the
minorities should give strong commitments in this direction. An unreasonable disloyalty should incur the penalty of the unilateral repeal by the State
government of the autonomy regime. Autonomy can work only if there is a
spirit of goodwill on all sides concerned. In such a context, a combination of
territorial and non-territorial schemes could offer stronger minority protection and ensure peace and stability.
259. Kristin Henrard, ‘The Interrelationship Between Individual Human Rights, Minority
Rights and the Right to Self-Determination and its Importance for the Adequate Protection of Linguistic Minorities’ (2001) 1 The Global Review of Ethnopolitics 41–61, 57.
260. Kelley Loper, ‘Substantive Equality in International Human Rights Law and its
Relevance for the Resolution of Tibetan Autonomy Claims’ (2011) 37 North Carolina
Journal of International Law and Commercial Regulation 1–46, 31.