KIWANUKA, RN (1988) 82 American Journal of international Law 80
… Human rights vs Peoples’
The full title of the Banjul Charter raises the controversial question of the difference and relationship between (individual) human rights and (collective) peoples’ rights. The relationship between the two must clearly be appreciated to avoid compromising either. In this connection, Roland Rich’s three-premise approach could be a particularly helpful starting point:
1) The individual remains the primary subject of international human rights law.
2) International human rights law recognizes the existence of groups.
3) The enjoyment of individual human rights requires certain human right to devolve directly upon groups.
The first is now generally accepted and does not require detailed examination. The individual is the cardinal subject of international human rights law. The second premise is rapidly becoming a well-settled principle, as international human rights law has already extended recognition to groups of persons as such. These include minorities, colonized peoples and indigenous populations. It is the third that requires a closer look, for it is the raison d’etre of collective rights.
Karel Vasak referred to collective rights, similar to those covered in the Banjul Charter, as belonging to the third generation of human rights and termed them ‘solidarity rights’. According to him, rights under this umbrella:
Seek to infuse the human dimension into areas where it has all too often been missing, having been left to the state or states … [T]hey are new in that they may both be invoked against the state and demanded of it; but above all … they can be realized only through the concerted efforts of all the actors on the social scene: the individual, the state, public and private bodies and the international community.
Here we can detect elements of peoples’ sovereignty, not only in the political, but in the economic sphere as well. In addition, and perhaps more importantly, Vasak emphasized the need for concerted action in the effort to deliver certain rights-hence the solidarity tag.
The basic question, however, remains: Are collective rights human rights or not? Part of the problem lies in the terminology itself. This evident, for example, in the following comment:
Can human rights, as opposed to obligations, be vested in states? ... [T]here is no precedent in international law for the vesting of human rights in states. Human rights are vested in the individual. Certain collective rights derive from those individual rights, especially from the right to freedom of association. But does that mean that these rights extend to states or Governments?
On the surface, it appears logical to state that a human right can only be enjoyed by a human being. Louis Sohn perhaps would respond to this observation by reminding us that because collective rights are always ultimately destined for individual, they are ipso facto human rights:
One of the main characteristics of humanity is that human beings are social creatures. Consequently, most individual belong to various units, groups, and communities; they are simultaneously members of such units as a family, religious community, social club, trade union, professional association, racial group, people, nation, and state. It is not surprising, therefore, that international law not only recognizes inalienable rights of individuals, but also recognizes certain collective rights that are exercised jointly by individuals grouped into larger communities, including peoples and nations. These rights are still human rights; the effective exercise of collective rights is a precondition to the exercise of other rights, political or economic or both. If a community is not free, most of its members are also deprived of many important rights.
The drafters of the 1966 international human Rights covenants adopted a similar position. That was why they included the collective right to self-determination in the covenants and gave it pride of place. This strong endorsement, however, did not convince detractors of collective rights. Therefore, I suggest that collective rights be regarded as sui generis. They are not individual, but collective; they belong to groups, communities or peoples. When the group secures the rights in question, then the benefits redound to its individual constituents and are distributed as individual human rights. This concept can be illustrated by taking professor Sohn’s example of the club further: in an interclub tennis tournament, only clubs have the right to participate even though individuals actually play the game. Members as skilled as Navratilova or Lendl would not have an automatic right to play in tournaments. Contestants are entered by their clubs in accordance with the internal arrangements of those clubs. The individual’s right to play can only be expressed in and through the club. This right is actualized, first, by protecting the club’s rights in the wider setting; and then by the individual rights in the club. International and individual rights are no different.
Consequently, the Banjul Charter, by separating peoples’ from human rights, does not obfuscate but progressively develops international human rights Law. It shows, in clear terms, that there is a conceptual difference between collective (peoples’) rights and individual (human) rights.
Furthermore, the Charter approaches the two categories in a balanced manner; it does not give the impression of favoring one category over the other. The fact that individual rights are not as well secured as one would have wished, is due not to a preference for collective rights but to the political realities of the continents and the OAU. Governments were not yet ready in 1981 to have their affairs completely opened to international scrutiny. Moreover, a close examination of the Charter reveals that, in most of the cases, peoples’ rights (as opposed to state rights) do not fare much better than individual rights. However, in its own way, the Banjul character at least theoretically recognizes that all classes of rights (political, economic, individual and collective) are equal and synergetic.
The meaning of ‘people’
The definition of ‘peoples’ has primarily been approached in the context of the right to self-determination, where it has been used to indicate an ethnic community or a community that identifies itself as such because of common interests. Yoram Dinstein, writing with Middle Easter problems in mind, identified subjective and objective quantities of term:
The objective element is that there has to exist an ethnic group linked by common history …
… It is not enough to have an ethnic link in the sense of past genealogy and history. It is essential to have a present ethos or state of mind. A people is both entitled and required to identify it self as such.
Ian Brownlie expanded on that definition but laid more emphasis on identity:
No doubt there has been continuing doubt over the definition of what is a ‘people’ for the purpose of applying the principle of self-determination. Nonetheless, the principle appears to have a core of reasonable certainty. This core consists in the right of a community which has a distinct character to have this character reflected in the institutions of government under which it lives. The concept of distinct character depends on a number of criteria which it lives. The concept of distinct character depends on a number of criteria which may appear in combination. Race (or nationality) is one of more important of the relevant criteria, but the concept of race can only be expressed scientifically in terms of more specific features, in which matters of culture, Language, religious and group Psychology predominate.
In a report written for the United Nations, Aureliu Cristescu offered a limited definition of the term ‘people’ for the purposes of the right to self-determination. He preceded it by explaining that the United Nations had proceeded cautiously, albeit firmly, in the struggle against colonialism and it would not be possible to produce a definition covering all possible situations. From the specific situations already witnessed, he believed the following elements had emerged:
a) The term ‘people’ denotes a social entity possessing a clear identity and its own characteristics;
b) It implies a relationship with a territory, even if the people in question has been wrongfully expelled from it and artificially replaced by another population;
c) A people should not be confused with ethnic, religious or linguistic minorities, whose existence and rights are recognized in article 27 of the International Covenant on Civil and Political Rights.
Among these three writers, the main attributes of peoplehood are presented, namely commonality of interests, group identity, distinctiveness and a territorial link. It is clear, there fore, that ‘people’ could refer to a group of persons within a specific geographical entity.
Both these references are common, but that does not make their use unambiguous. Christescu’s exclusion of minorities depended on certain assumptions that, as we shall soon see, are no longer tenable.
‘people’ as possessors of the right to political self-determination
Under article 20 of the Banjul Charter, the right to self-determination is guaranteed to all peoples. However, paragraph 2 of article 20 singles out colonized and oppressed peoples as the possessors of that right. This is the least problematic of the uses of ‘people’. Under current international Law, as evidenced, for example, by the practice of the United Nations, the Organization of African Unity and individual states, political self-determination is generally equated with freedom from colonial-type rule. It does not extend to insistence by one sector of the population of an independent (or majority – ruled) state on its own form of self- determination, culminating, perhaps, in secession.
Following this line of reasoning, Eisuke Suzuki suggested that, in reality, there are only three remaining opportunities for the exercise of this right in Africa: The dismantling of minority rule in South Africa, the achievement of independence for Namibia and the resolution of the problem of the Western Sahara. International Law has chosen to deny such groups as the Eritreans the right (privilege?) of designating their struggle as one for the attainment of the right to self-determination.
International Law already treats the right to self –determination as tied to a specific geographically defined territory. Further subdivision would not be consistent with that position. Moreover, a people wishing to go its separate way would have to renounce the authority of the liberation movement representing it.
From the foregoing, we can conclude that the first meaning of ‘people’ is all the different communities (peoples), in fact, all persons within the boundaries of a country or geographical entity that has yet to achieve independence or majority rule. Once independence (or majority rule) is achieved, no further independence is permissible. The rights of the different peoples would thereafter be protected as minority rights.
Before leaving this point, I should observe that the rule against secession as an exercise of the right to self-determination is only a general one. Although it is backed by a solid body of UN, AU and state practice, it can still admit a few exceptions. The independence of Bangladesh was one. Ved Nanda, in a definitive article on the subject, demonstrated the existence of a set of circumstances that combined to lend a clock of legitimacy to what would otherwise have been impermissible in international Law. These were the physical separation of East from West Pakistan and the total domination of the former by the latter; the nature of their ethnic and cultural differences; the disparity in their economic growth to the disadvantage of East Pakistan; the electoral mandate to secede; the brutal suppression of dissent in East Pakistan and the viability of both regions as separate entities. The fact that the United Nations was presented with a fait accompli was also significant.
Although many of the secession claims in various parts of Africa have been characterized some of the elements of the Bengali struggle, few have come close to matching it. For example: The secessionist activities in Katanga and Biafra were roundly condemned by the United Nations and the OAU as threats to sovereignty and territorial integrity. The conflict in Eritrea has practically been shoved into a closet despite Eritrea’s illegal absorption into the Ethiopia Empire in 1962. Finally, the unilateral declaration of independence by the Saharan Arab Democratic Republic (SADR), as well as its subsequent admission into the OAU in 1982, was not an exercise in secession. Moroccan and Mauritanian claims to the territory of Western Sahara had been rejected by the International Court of Justice.
Peoples as the different minorities
One of these problems was to work out an acceptable definition of who constituted a minority. Several definitions were essayed with varying degrees of success. The most satisfactory and acceptable was the one proffered by Francesco Capotorti in a report commissioned by the UN Sub-Commission on prevention of discrimination and protection of Minorities. He suggested that:
A minority is a group numerically inferior to the reset of the population of a state, in a non-dominant position whose members – being nationals of the state-possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or Language.
The pertinent question, for present purpose, is whether or not a minority, thus defined, can be referred to as a ‘people’ entitled to enjoy the peoples rights contained in the Banjul Charter. If we do not confine ourselves within the straitjacket of assuming that peoplehood and the right to self-determination automatically lead to independent statehood, it is not difficult to appreciate that, indeed, a minority can fulfill all the requirements of a ‘peoples’. As Felix Ermacora correctly argued:
Unless the United Nations has not developed clear-cut ideas about the holder of the right to self-determination my opinion is that minorities also can be considered as people. They must live also in a territory or they must have been living in a territory which is now occupied; they must have cultural or religious characteristics; they must be politically organized that so that they can be represented; and they must be capable of an economic independence. It does not depend on governments as to how they are describing an entity as a people; it depends on objective and subjective criteria of a group. It depends also on the self-consciousness of identify. I think therefore, that national and racial, perhaps also religious, minorities could be considered peoples in the sense of an autonomous concept of the United Nations instruments. For them self-determination is inalienable.
It must be emphasized that total independence is not the exclusive form in which the right to self-determination is realizable. What is important is that the right of the group and its members receive recognition and protection.
Since secession is generally impermissible in current international law, all references to political self-determination, in relation to independent states, should mean respect for minority rights. By the injunction of article 19 that ‘[n]othing shall justify the domination of a people by another’, the Banjul Charter proscribes external and internal forms of colonialism. Minorities are entitled not to lose their identity and interests in the aggression-of the whole
The right to existence in Article 20 addresses the problem of genocide perhaps the single worst threat to minorities. In other cases involving self-determination, a people within a state should be sufficiently protected by respect for both its minority rights (for example language, culture, religion) and the human rights of its members. That this protection may break down and that minorities everywhere, especially in the Third World, are constantly in fear of repression are actualities that cannot be assured an unequivocal collective solution by international Law. Such violations are regarded as violations of individual and minority rights and treated accordingly. The International Covenant on Civil and Political Rights of 1966 adopted a similar approach. In addition to individual rights and liberties, it made room for the protection of minority rights in article 27.
Where minority and individual rights arte respected, there will not be many motives for secession. The concept of ‘people’, in this sense, is designed to achieve that objective.
In sum, the apparently progressive introduction of the concept of ‘peoples’ into the Benjul Charter could actually turn out to be counterproductive in some respects, that is, where the rights and interests of the people are not respected by the state. In such situations, peoples’ rights might initially be treated as state rights and then degenerate into sectarian, class, government, regime and clique rights. In the extreme, they could become certain individuals’ rights. This ultimate perversion has already come to pass in many Africa countries, such as Zaire, where the incumbents have unfettered control over the disposal of natural resources and state wealth. In situations of despotic misrule, one of the first casualties is usually the economy, as the governors embark on orgies of personal enrichment. The outrageous exploits of such dictators as Amin, Bokassa and Nguema are Legendary. Indeed, politics in Africa and the developing world generally, sometimes seems like a business venture.
There is no necessary contradiction between the third meanings noted above, which equates ‘people’ with the state, as long as the state acts for the benefit of all the people, and professor Cassese’s view, which underlines the need for democracy in the economic realm. This third meaning refers to the external application of the right to economic self-determination. The state would control the commanding heights of the economy so as to minimize leakage and benefit the people, that is, all the peoples. Under present circumstances, however, to achieve this goal, it is imperative that the state sall be controlled by the people in the democratic sense. This is the message of the Algiers Declaration. It deals seriously with the relationship between peoples and their state in a way the Banjul Charter does not. This omission needs urgent correction otherwise the whole basis of peoples’ rights in the economic sense will hang in doubt.
The Banjul Charter provides for a set of individual rights and liberties, which should complement and reinforce the right of peoples. However, the timorous approach to the protection of individual rights (or, indeed, any rights claimable against a state party) does not offer much hope for this meaning of peoples to be significantly asserted.
Provide the Commission is allowed to function effectively; it could redeem some of the grounds apparently conceded to states and governments. It will be in the interest of all African countries and their peoples for popular democracy to be given a chance. The lofty ideals of the peopls’ rights in the Banjul Charter-such as peace and development depend, in a large measure, on respect for individual. Peoples’ rights can not be a substitute for individual human rights.