The Romani Claim to Non-Territorial Nation Status: Recognition from an International Legal Perspective
27 May 2004
The Romani movement and the international claims to recognition which have issued from various parts of it should be seen in the context of changes in the nature of global society and governance. The term "globalisation", as is frequently noted, is used to describe a wide series of transformations connecting all of us in previously unimaginable ways. A plurality of sites of governance has emerged, at the local, regional, national and global level, and the way in which we are governed is being incrementally transformed, even if this transformation is not necessarily wholly understood. It is in the space created by these changes that an increasing number of identity-based groups are staking a claim to political recognition. In this play of flux and uncertainty there is arguably room for a reassessment of the way in which we recognise and deal with group-based differences. The unusual nature of the Romani claim to non-territorial nation status provides an interesting test case for re-conceptualising international law and participation in the international legal system.2
I. The Claim Being Made
The claim to non-territorial nation status was first clearly articulated by Romani groups in the "Declaration of Nation" produced at the Fifth Romani World Congress held in Prague during the summer of 2000.3 While the Declaration does not explicitly renounce any claim to territory as such - the word territory does not appear anywhere in the document - it is understood that the repeated calls for recognition as a non-state nation should be read as a rejection of the basic unit of the international system: effective control of territory.4 The claim has been repeated in numerous fora since, particularly in the context of the 2001 United Nations World Conference Against Racism, and now forms part of the main ideas being discussed by Romani leaders as a political strategy for gaining recognition.5 Although the current articulation of the concept of a non-territorial nation is the brain-child of the International Romani Union (IRU), the organisers of the Prague Congress, and as such does not necessarily command acceptance from all sections of the Romani Movement, the belief that Roma constitute a nation has been a mainstay of Romani political organisation, at least at the level of organisation in which international claims are being articulated; that there is agreement within the Movement on the fact of Romani nationhood is taken as a given here, although it is acknowledged that this is by no means unproblematic.6
The claim to non-territorial, or non-state, nationhood by members of the international Romani leadership is not quite as radical in terms of its novelty as some appear to believe it to be. The concept has a history, albeit a largely forgotten one. It has its roots in the model of national-cultural autonomy developed by two Austrian statesmen, theorists and socialists at the turn of the last century: Otto Bauer and Karl Renner.7 Although it was developed within a socialist discourse concerned with resolving the national problems bedevilling the Austro-Hungarian empire, the concept was picked up and adopted by the Jewish Bund (or, formally, the General Jewish Workers' Union in Lithuania, Poland and Russia) - an organisation founded in 1897 by young intellectual Marxist Jews to provide a socialist response to the attempted assimilation and repression of Jews within the Russian territories.8 That Roma should be reviving a concept associated with Jewish organisation is not surprising; however, while the situation of Jews and Roma has been similar throughout much of their history, those advocating a non-territorial nation status for Roma have taken the claim one step further. National-cultural autonomy as developed by Renner and Bauer and adopted by the Bund was to function within the borders of existing states or empires. It was not, so it seems, intended to reach out to a global diasporic community nor was it a claim for international recognition. However, this is precisely how the claim articulated in the Declaration of Nation is understood here, as a claim to recognition of Roma as equal to other nations on the international level.9
Moreover, the concept of recognition is understood here within the context of the politics of difference and of the belief, as articulated most popularly by Charles Taylor, in the dialogical nature of identity - the belief that who we are as individuals is shaped by other's reactions to us.10 Briefly, where one's identity is intrinsically bound up with that of the group, the self-respect of the individual is deeply affected by the esteem in which society holds the group. If this identity is denied, denigrated or misrecognised, genuine harm is caused and it is arguably this harm which the call for recognition seeks to mitigate and overcome. I have chosen to understand the concept of misrecognition as a form of oppression in terms of positive freedom - the idea that one aspect of liberty consists in being free to become oneself - a conception that arguably goes beyond the positive/negative dichotomy to form a third pillar of freedom.11 The claim to recognition is thus understood here to be a claim to such a form of positive freedom, to self-government, a claim to be able as a group to determine together one's future in negotiation with others. The ability of a group to determine its own future is understood, furthermore, to be predicated upon full participation in society, which includes inter alia the right to participate in public fora, the right to equality in access to goods and services and the right to freely practise one's own culture, language and to decide upon the education of one's children.12
Fundamental to the understanding of recognition presented here is the work of the political philosopher James Tully, who places at the core of his approach the understanding that culture is "an irreducible and constitutive" component of politics.13 One cannot remove culture from politics or law because it is by definition ever present in the language we use, through the inherent understandings and hidden conventions that govern the way in which we use language.14 Thus, the "conversations" that are politics and from which law springs, while on the face of it neutral, are governed by such layers of cultural understanding.15 Groups seeking recognition do so against institutions and rules governing the way society is structured which are conducted in a language and are the product of a culture other than their own.16 In this way, lack of recognition or misrecognition is the failure to acknowledge the cultural bias of the language we use and the conventions it represents, and to make room for other languages.
II. Recognition Claims in International Law: a Right to Self-Determination?
The right to recognition exists on the individual level; indeed, the preamble to the Universal Declaration of Human Rights opens with the paragraph, "…recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world".17 As human beings, Roma are of course entitled to the protection offered to all under individual human rights measures, without discrimination; equality and non-discrimination are considered the foundations of the human rights regime and as principles have clearly attainted the status of custom and are thus binding on all. Moreover, a range of human rights treaty provisions apply to minority groups.18 Individual and minority rights are not, however, considered here; rather, it is simply asserted that both are unable to provide in full the recognition being sought, and the claim shall be considered solely in terms of self-determination.
The Romani Movement chose to take on the language of self-determination surprisingly late in its history - surprising as the combination of vague legal status and emotive power has made it the claim of choice for embattled groups seeking a voice on the international stage. The author is at a loss to explain this but it is perhaps the failure of individual and minority rights to deliver that has nonetheless witnessed widespread agreement in recent years among the Romani leadership on the need to stake a claim to self-determination.19
No principle of international law is more contested or controversial than, nor perhaps as important as, that of self-determination. Short of the agreement on the fact that the principle of self-determination has forced its way into the lexicon of international law, there is no consensus on whether in the post-colonial world it constitutes the law as it exists (lex lata), the law as one thinks it should be (lex feranda), or special law (lex specialis), i.e. not a general principle of international law.20 Part of the confusion arises from the overlap between two disciplines and the different criteria they apply. The sketch presented here is not, however, concerned with the work of political scientists but rather with the current status of self-determination as a legal principle. The crucial issue is whether the principle may be held to apply in post-colonial situations and, if so, when and to whom.
Article 2 of the 1960 Declaration on the Granting of Independence to Colonial Territories (G.A. Res. 1514) famously provides: "All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." However, later clauses determine that it is applicable only for colonial peoples within existing colonial boundaries, the so-called principle of uti possidetis. The 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (G.A. Res. 2625) repeats almost exactly the wording of the earlier resolution but famously provides three legitimate outcomes in the exercise of the right to self-determination: "The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status determined by a people…".21 The other much quoted part of the 1970 Declaration concerns a limitation clause offering protection to the territorial and political unity of "…States conducting themselves in compliance with the principle of equal rights and self-determination of peoples … and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour." The inclusion of this clause, as Crawford points out, would have been superfluous if self-determination applied solely to colonies and colonial people.22
The interpretation that self-determination applies beyond the colonial context is supported by Article 1(1) of the 1966 International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 1(1) of which states that "All peoples have the right to self-determination". Ordinary treaty interpretation ensures that it cannot be considered limited to colonial peoples nor simply to those subject to subjugation or alien domination. There is no attempt to limit the provision thus and the singling out of the peoples of colonial territories in Article 1(3) suggests that the "all peoples" of Article 1(1) is intended to mean just that.23 Thus, there is a strong case for suggesting that self-determination is applicable in situations other than those of decolonisation; indeed, the ICJ ruled in 1995 that self-determination "is one of the essential principles of international law".24
However, it is precisely when self-determination is taken out of the colonial context that much of the uncertainty arises. While the principle of non-intervention, as found in Article 2(7) of the UN Charter, is not applicable in situations of colonial oppression25, the ordering of international legal principles becomes much less clear outside the certainties of decolonisation. Simply stated, the right of self-determination conflicts with a number of well-established and much cherished principles, such as those of territorial integrity and of non-interference.26 It is the de-stabilising potential of self-determination and the obsession with the fear of secession that has seen States determined to limit its application in the post-colonial world.
The means by which States have primarily chosen to justify the limitation is, as is well known, through a restricted interpretation of those entitled to it, so that a 'people' is understood only in terms of the population of an already constituted State.27 As one leading international lawyer has stated emphatically, "[self-determination] does not extend to claims for independence by minority groups in a non-colonial context."28 There is one possible exception, however, to this seemingly clear-cut solution. The 1970 Declaration on Friendly Relations has, as noted above, specified other peoples beyond the colonial context as being entitled to self-determination: it includes those subjected to alien subjugation, domination or exploitation. There is an on-going debate about whether oppressed minority groups could come within these terms and thus be entitled to independence, so that where they are prevented from a meaningful exercise of their right to self-determination as part of a larger unit, they become bearers in their own right - the so-called 'positive' aspect of the safeguard clause.29 Most commentators, however, suggest a high threshold of abuse before a group or 'people' could be considered 'internally colonised' and thus entitled to invoke the provisions of G.A. Resolutions 1541 or 2625.30
Thus, the right to self-determination, as established by the 1966 Covenants, applies outside the colonial context only to peoples defined as the whole people of a given state. Self-determination has arguably emerged as a continuing entitlement of a people "to freely pursue their economic, social and cultural status".31 This is the aspect of self-determination which has come to be known as 'internal' and has taken inspiration from other provisions in the human rights stable, which guarantee to all the right to choose their government.32 To summarise, self-determination is both a principle of customary international law, where it applies to colonial-like situations, as well as a right enshrined in treaty, although of course applicable only to parties to them. Where it is applicable in post-colonial situations, it is a continuing entitlement of peoples and is understood to offer the bearers the freedom to choose both their external and internal political status. The accepted practice of the last forty years has been, however, that a 'people' can only be understood as referring to the people of a state in its entirety. Minority groups are not included within the definition of a people in this context and are hence not entitled to self-determination except as part of the larger population of which they form a constituent part.33 There is a possibility that groups within a state that are oppressed and thus prevented from exercising so-called internal self-determination may have the right to external self-determination, and the right to secede; this is, however, not well-established, if at all.
It is clear, therefore, that Romani groups within state boundaries are not entitled to self-determination, but only recognition as individual Roma as citizens of a country. Furthermore, internal self-determination provides no answer to the claims that have been made, being unable to provide for recognition of a transnational group as one entity. Thus, self-determination in its current form, whether external or internal, is incapable of providing the recognition sought.
III. Re-Conceiving Self-Determination as Participation
It is in realising how far the Romani claim to non-state nationhood is outside the bounds of established international law that it becomes most interesting. Those making the claim are thus not mistaken in the potential they see in their claim for radicalising the principle of self-determination and, through it, offering up an alternative vision of the international system.
Despite the efforts of lawyers to find a way in which to modernise the concept of self-determination, nearly all have felt forced to attempt to reconcile the conflicting principles of self-determination and territorial integrity.34 My work, however, rather seeks to re-examine self-determination not through the lens of democracy35 or of participation, although the latter may be the outcome, but from the perspective of freedom. Underpinning the notion of positive freedom is the belief that human nature has an essence and that "we are free if and only if we succeed in realising that essence in our lives".36 As noted earlier, if we determine our identity, our essence, in dialogue with others - both privately and publicly - the positive recognition of others in the public sphere is thus crucial in enabling one to be free. A consequence of such an understanding of liberty is that even if all the rights set down as 'human rights' were to be realised in our everyday lives, we still may not be free where public recognition of a fundamental aspect of our identity is withheld. Moreover, we are not free where we are dependent upon the arbitrary power of others, which is the case where the decision to recognise a group is the whim of those who hold power in society. Such withholding of recognition arguably constitutes a form of domination.37 The denial of recognition also denies one a voice in the apparatus of society and thus the ability to govern oneself. By seeing self-determination as intimately tied to freedom, it becomes clear that it is not a right to democracy - simply being able to vote in periodic elections does not make one free - and nor is it subsumed by existing rights. It should perhaps be seen instead rather as a right to recognition. So if a crucial part of realising one's essence is recognition, what would recognition look like?38
Crucial in this re-conceptualisation of self-determination is the notion that recognition is active and continual. It is not, for example, a reserved seat in a parliament, a title of status laid down in an agreement, or the right to positive discrimination, but rather the right of one's culture or identity to participate as an equal in society with others. For the political philosopher James Tully, a people can only attain freedom by following two principles: the rule of law, by which all are equally subject to the law, and self-rule. Self-rule is only achievable where all are what he terms 'free citizens'. A 'free people' achieves the status of 'free citizens' only in so far as all have a voice in government. The key element of citizenship is participation and freedom is to be found in the act of participation itself.39 The legitimacy of any system of governance thus depends upon both the rule of law and self-rule being applied equally. Where a group in society, either national or international society, are equally subject to the law, but do not have the opportunity for an equal say in the formation of those laws, they are not free. They cannot be citizens, if citizenship is achieved only through engagement in the process. Thus, democracy in itself is not enough and can actually perpetuate a system of unfreedom where not all participate as equals in the democratic system.
If citizenship is an activity, then one can only fully become a citizen through discussion, with disagreement flowing throughout and at every level of politics. Agonistic negotiation40 is the only means by which all voices can be heard, through which one can experience the others' position, and through which genuine participation can be realised and thus the principle of quod omnes tangit, of self-rule, be fulfilled. The crucial guiding principle in these negotiations is that of audi alteram partem, that one must listen to the other side and treat identity- and culturally-related differences with respect. Nothing is fixed or pre-decided before the parties come to the negotiating table. Instead, even the rules of the game, indeed especially the rules of the game, are open to discussion and dissent. Such necessary flexibility flows from Tully's understanding of citizenship as something one 'does' and not something that one 'is', as well as from the belief, discussed above, that culture permeates everything we touch through the conventions of communication; to negotiate in the dominant culture is to establish a monologue and to deny groups the opportunity of genuine participation. Thus, there is no definitive form of recognition sought in negotiation, no fixed telos, so that true dialogue is not a means to a consensus, but rather the end in itself. Agreements are understood as links in a chain, permanently open to negotiation through interpretation. The lack of a search for consensus is predicated on the understanding that there are no shared norms and no universal principles to which either side can appeal and the purpose of negotiations are to bring the different sides together to uncover the differences and similarities and to find institutions and processes together which can accommodate both.41 As one definitive meaning of a term is forever unobtainable, understanding through connections created in the dialogical contrast and comparison of concrete examples is sought. We negotiate from the position of our own experience in the knowledge that it is unique to us. Viewed in this light, self-determination is not an outcome but a place in a continual dialogue; through participation in the process of negotiation one achieves self-government.
Conceiving self-determination as the achievement of recognition through the right to participation in an agonistic process removes the need for distinctions between peoples, nations and ethnic groups; rather all those who claim recognition will be deserving of the right to negotiate their status and rights with those around them. In practice, self-determination thus considered could grant all groups the right to the political institutions necessary to govern their own affairs, but it is the place at the table and not the institutions themselves that constitute self-determination.
IV. The Impact on International Law
If self-determination is re-conceptualised as a claim to the freedom to express our ontological self in the public political arena, while the impact at the national level is radical but relatively straightforward, its application to the disparate nature of international law and society is much less clear.
While states are the traditional subjects of international law and in classical international law sovereignty has traditionally meant independence42, in the proceeding eighty or so years, and particularly since World War II, the international community has moved on considerably from Oppenheim's famous position in 1912 that states constitute the sole and exclusive actors in international legal society. The last fifty years has seen a proliferation in the numbers and types of entities considered as bearing international personality. The international community is now more heterogeneous than it has ever been, incorporating a plurality of non-states entities, such as dependent territories, international organisations43, insurgents and national liberation movements, individuals, non-governmental organisations44 and others that defy simple classification. The international legal system has long coped with a variety of subjects, all with differing rights and duties, all interacting with one another. Moreover, although it would be foolish to deny the continuing dominance of states, the power of states relative to other actors in the international system is undergoing considerable change. While the theory underpinning the international order is still very much predicated upon the principle of non-interference - the traditional interpretation of self-determination - it can be argued that notions of independence, indeed of sovereignty, are themselves undergoing radical re-conceptualisation.45
It is within the above context that the recon-ceptualised principle of self-determination must play a role and where an attempt to establish a genuine 'multilogue' must be made. Self-determination understood as the right of participation and not non-interference46 would acknowledge the inter-connectedness of all actors in the international system and reflect the relational nature of our identity. In this way, self-determination as participation is concerned with inclusion rather than the exclusionary nature of sovereign independence. Moreover, it could serve to liberate identity-based international personality from territory, opening up the possibility for granting groups varying forms of autonomy as actors in the international system defined by their identity-sustaining function and not by their territorial base. This would arguably continue a trend in this late- or post-sovereign era in which a wide variety of non-territorial entities are laying claim to the ultimate authority to determine the boundaries of their own legal personality without deference to and alongside states.47
The implications of an agonistic system of international order for Roma, would be to listen to their claim for self-determination without pre-conceptions of the defining characteristics of 'nations' or 'peoples', and without pre-determining the outcome of the status itself. Rather, Roma themselves would be allowed to determine the nature of their status at the table according to the terms of their own culture, through negotiation with other members of the world community. Hence, no solution is imposed and no concessions sought. Moreover, the continual nature of agonistic negotiations dictates that any status agreed could not be the end-stage - a settling for a form of official acknowledgement from the United Nations, a seat in the Parliamentary Assembly of the Council of Europe, the European Parliament and/or in other pan-European fora. Rather, recognition, whether one terms it non-territorial nation status or not, is the means to effective Romani citizenship at any level. To be satisfied with a title and its accompanying concessions would be to become bound to a single agreement and to its interpretation by others, and, it is contended here, would not see Roma achieve recognition and thus realise freedom and their unique essence.
- The author, a former intern at the ERRC, is writing her Ph.D. in Law on the concept of a non-territorial nation at the European University Institute, Florence. The ideas and understandings expressed here represent work in progress and comments would be very welcome: firstname.lastname@example.org.
- This article will attempt to sketch the international legal implications of making such a claim and is very much the author’s own idea about how non-territorial nationhood should be conceived and rendered in the international system. The resentment by many within the Movement of so-called “authoritative” pronouncements by gadje “experts” on Romani issues is duly noted; the author is neither Romani nor an expert and the ideas contained within are merely offered up to the debate. Moreover, a number of key assumptions are made in the arguments that follow which the space accorded here does not allow to be discussed with anything approaching the usual academic rigour; this is done, however, in order to present a piece that it is hoped offers some interesting points for discussion.
- This document was reproduced as an appendix to the article by Acton and Klimová detailing the events of the Prague congress. Acton, Thomas and Ilona Klimová. “The International Romani Union: An East European answer to West European questions?” In Guy, Will (ed.), Between Past and Future: the Roma of Central and Eastern Europe. Great Britain: University of Hertfordshire Press, 2001.
- Such an interpretation is borne out by the subsequent meeting of the Romani leadership at Jadwisin, Poland, 15-16 April 2002. Project on Ethnic Relations (PER). Roma and the Question of Self-Determination: Fiction and Reality. Available on-line at: http://www.per-usa.org/Jadwisin1_12_03.pdf. The paper by Nazerali, Sean. “Democracy Unrealised – The Roma – A Nation Without a State” also offers this understanding; paper delivered at the ‘Democracy Unrealized’ conference. Academy of Fine Arts. Vienna, 23 March 2001 (on file with the author).
- For example, the following paragraph formed part of the statement of recommendations by nongovernmental organisations from Central and Eastern Europe, including the countries of the former Soviet Union, addressed to the United Nations World Conference Against Racism, produced at the meeting in Warsaw, 15-18 November 2000. Part of Article 5 of the statement reads: “…we recommend that the UN confers the status of a non-territorial nation to the Romani people, providing for adequate representation in relevant international governmental organizations. The Roma should, inter alia, receive a seat in the United Nations, participate as elected officials in the European parliament, the Parliamentary Assembly of the Council of Europe and in the constitutive organs of these organizations…” The statement is reprinted in full in Roma Rights 4/ 2000, available at http://errc.org/rr_nr4_2000/advo1.shtml.
- The influence on the Movement of the discourse of nationalism is clear and on the international level Romani political organisation has been concerned with claims to nationhood throughout its brief history, from the designing of a flag to attempts at standardising the Romani language, as well as clearly repeated statements of demands for recognition as a nation. For a history of Romani political mobilisation on the international level, see Klimová, Ilona. The Romani Voice in World Politics, unpublished thesis. University of Cambridge, 2003. Moreover, that the assertion that Roma constitute a nation is accepted by all sides of what can loosely be described as the Romani leadership is suggested by its acceptance by all participants in the Jadwisin seminar, supra n. 4. However, the sheer diversity of groups coming under the umbrella “Roma” suggests the need for caution in any attempt to articulate a unified identity, a point that has been well made by several members of the Movement.
- For a useful summary of the relation between the thought of Bauer and Renner and ideas similar to “nonterritorial nationalism”, see Nimni, Ephraim. “Nationalist Multiculturalism in Late Imperial Austria as a Critique of Contemporary Liberalism: The Case of Bauer and Renner”. In Journal of Political Ideologies Vol. 4 No 289, (1999). Although it was Renner who first developed the concept, Bauer adopted it and integrated it into his theory of nation, advancing a model for its implementation.
- On the history of the Bund, see Tobias, Henry J. The Jewish Bund in Russia. From Its Origins to 1905. California: Stanford University Press, 1972. According to Tobias, the tension between the two aims of resisting assimilation and of being true to socialist ideals, and the consequent threat the tension posed to the unity of the movement, led the Bund to consider and adopt the compromise ideology of non-territorial nationalism. This view has been contested and some have seen the organisation, despite being a Marxistsocial-democratic movement, as being committed from the outset to Jewish cultural autonomy based on the Yiddish language. Cf. Gitelman, Zvi. “A Century of Jewish Politics in Eastern Europe”. In Gitelman (ed.). The Emergence of Modern Jewish Politics. Bundism and Zionism in Eastern Europe. University of Pittsburgh Press, 2003, p. 4.
- The debate within the Movement as to the various strategies and levels at which to pitch the claim for recognition is acknowledged – the most interesting of the current alternatives being the originally Finnish (now Franco-Finnish) initiative to form a pan-European Romani consultative assembly – and the concern of this article solely with the international level is not to suggest that there are not better approaches nor that claims at the different levels (including the national) cannot co-exist; indeed, it is the contention of the author that a form must be found in which claims to recognition at different levels of governance are not competing but can co-exist. For details on recent developments with the European Roma Forum, see Miranda Vuolasranta at http://errc.org/rr_nr4_2003/noteb5.shtml. The similarity of claims by the RNC in terms of recognition of nationhood at the international level in the European Charter of Romani Rights should be noted. Report on the Condition of Roma in the OSCE Region, OSCE/ODIHR, Warsaw, October 2000; available online: http://www.romnews.com/a/RKreport.htm#_Toc496896328. Rudko Kawczynski¸ Speaker of the Roma National Congress (RNC), is the author of the report and uses it to outline the concept of the Charter.
- Taylor, Charles. “The Politics of Recognition”. In A. Gutmann (ed.). Multiculturalism: examining the politics of recognition. New Jersey: Princeton University Press, 1992. For the vital importance of the wellbeing of the identity of the group on the ability of the individual to flourish, see also Margalit and Raz. “National Self-Determination”. Journal of Philosophy 87/1990, p. 439.
- Berlin, Isaiah. Liberty. Edited by Henry Hardy. Oxford: Oxford University Press, 2002. Skinner, Q. “A Third Concept of Liberty”. London Review of Books, Vol. 24 No. 7, 4 April 2002.
- United Nations, Study by the Secretary-General on Popular Participation in its Various Forms as an Important Factor in Development and in the Full Realization of Human Rights, UN Doc. E/CN.4/1985/10 (1984).
- Tully, James. Strange Multiplicity. Cambridge: CUP, 1995. Politics is used in its more comprehensive meaning, so as to include the basic laws and governing institutions of society.
- The use of the term “language” throughout refers to this thick conception of language.
- In Tully’s own account, his thinking is based on applying Wittgenstein’s method of resolving philosophical dilemmas by revealing the unseen conventions that govern language and arise in any discussion of a problem and its possible solutions. Tully explores this in Strange Multiplicity, supra n. 13, pp. 35-57.
- The dominance of European culture is illustrated by attitudes towards those Romani leaders that tread the international stage; leaders whom governments and international organisations feel they can do business with, who ‘speak their language’, are sought out and feted at international conferences and workshops, irrespective of their level of support at the grassroots level. There is little attempt to understand the traditional position of leaders in Romani culture and if such leaders wish to be taken seriously they are expected to conform to the image of western politicians; those who have consciously adopted the language of internationalism have experienced quite different degrees of acceptance by the international community as a consequence. This is also true of wide sections of the international NGO community and a number of academic commentators; for example, Bárány’s hostility to Romani leaders whom he brands militant is marked in comparison with his clear admiration for soft-spoken, multilingual Romani academics. Hence, what those who condemn as the “Gypsy industry” are objecting in part to is arguably this insistence on spending millions of dollars teaching Roma our rules of participation. Rudko Kawczynski’s comment when faced with a lecture by western experts flown in for an American-funded seminar in Stupava in 1992 is insightful: “Roma are sitting, gadje are speaking. They are telling us what to do, which language to speak. They want to teach us how to speak our own language.” (cited in Fonseca, Isabel. Bury Me Standing: The Gypsies and Their Journey. New York: Alfred A. Knopf, 1995, p.298.) Perhaps more insightful is that Bárány cites this quotation as an illustration of what is purportedly wrong with most Romani leaders (Bárány, Zoltan. The East European Gypsies: Regime Change, Marginality and Ethnopolitics. Cambridge: CUP, 2002, p. 264.).
- The non-binding nature of the UDHR is acknowledged, although there is perhaps a case for suggesting that such a provision constitutes customary international law.
- Notably, Article 27 ICCPR as well as the non-binding 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. Article 27 recognises and guarantees the right to an identity that is not that of the majority. It has been described by Thornberry as a hybrid right, which benefits only individuals but can yet only have meaning through collective exercise. (See Thornberry, Patrick. International Law and the Rights of Minorities. Oxford: Clarendon Press, 1991, p. 135 and p. 173.) However, the Human Rights Committee has been clear that the article does not grant collective rights, and communities have been denied locus standi under the optional protocol. (See General Comment No. 23 (50) (art. 27) (Fifteenth Session, 1994), IHRR Vol. 1, No. 3 (1994), para. 1.) In denying a collective interpretation, the substance of Article 27 is virtually indistinguishable from the rights enjoyed by all. The 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities goes further on the issue of representation and control over issues of importance to minority groups. The most important advance for considering claims to recognition is to be found inArticle 2 of the Declaration. Article 2(2) provides the right “to participate effectively in cultural, religious, social, economic and public life.” Moreover, Article 2(3) grants minorities the right “to participate effectively in decisions on the national and, where appropriate, regional level”; it is however somewhat undermined by the sub-clause that follows, “… in a manner not incompatible with national legislation”. Article 5 furthermore states that national policies be designed and implemented with “due regard” for the interests of members of the minority. It does not, however, provide a right of minorities to be consulted in the drawing up of policies and programmes effecting them, even where the programme specifically concerns them. Nothing in the Declaration provides for the right of a group to determine their own future, and although the rights of participation represent an advance on Article 27 ICCPR, even putting its legal status to one side, the right to participate at the bidding of the majority and according to majority rules does not compensate for the inability of minority groups to take decisions in regard to their own vital interests. Moreover, even the modest advances the Declaration represents are of little value to a group claiming the participation rights therein; while it may constitute soft law, its nonlegal status means that groups cannot make a claim against it.
- For the agreement of nearly all the participants at Jadwisin on self-determination as the frame within which to conceive their claims, see PER, supra n. 4. While Pietrosanti has very recently in this journal denied the relevance of self-determination, his understanding that self-determination “is less important than the freedom to choose the democratic organisation of co-habitation with others” is itself a good description of the principle he seeks to deny. Pietrosanti, Paolo. “The Romani Nation or: ‘Ich Bin Ein Zigeuner’”. In Roma Rights 4/2003, at: http://www.errc.org/rr_nr4_2003/noteb6.shtml.
- White, Robin C.A. “Self-Determination: Time for Re-Assessment?” In Netherlands International Law Review 28/1981, p. 147. It has been proclaimed a right erga omnes and probably constitutes a peremptory norm of international law, for all the light that such an observation sheds upon it. Barcelona Traction, Light and Power Co. Case, ICJ Reports (1970), 32. Brownlie appears to be the accepted cite for the contention that self-determination constitutes a peremptory norm of international law (jus cogens).
(Principles of Public International Law. Oxford University Press, 4th edition, 1990).
- United Nations G.A. Res. 2625 (XXV), 1970. Res. 2625 was adopted without a vote. While most former colonies opted for independence, examples of integration with another state include the decision of North Cameroons to join Nigeria; an example of free association could be the Cook Islands and New Zealand. Some dependent territories chose to remain so; for example, Gibraltar with the United Kingdom.
- Crawford, James. “The Right of Self-Determination in International Law: Its Development and Future”. In Alston (ed.). Peoples’ Rights. Oxford: OUP, 2001, p. 31. The inclusion of this phrase suggests by 1970 it was already accepted that self-determination was applicable outside the context of salt-water colonialism.
- For more details, see Crawford, Ibid., p. 27.
- Case concerning East Timor. ICJ Reports (1995), p. 102. It is however worth noting that this case, as all the others considered by the ICJ, concerned the situation and status of a former colonial territory.
- See, G.A. Res. 2625.
- It can also be seen as possibly conflicting with the right of others within a state to self-determination; for example, Article 1(2) of the ICCPR/ICESCR, provides for the right of a people to freely dispose of its wealth and natural resources.
- The link of self-determination with equal rights in Article 1(2) of the UN Charter is generally interpreted as implying only that the right of self-determination belongs to the peoples of states as it is the equal rights of states which are being referred to and not of individuals. Higgins, Rosalyn. Problems and Processes. International Law and How We Use It. Oxford: Clarendon Press, 1994, p. 112.
- Harris, David J. Cases and Materials on International Law. London: Sweet & Maxwell, 1998 (5th edition), p. 113.
- Weight has been lent to this theory by the actions of the UN, authorised by Security Council Resolution 688, to intervene in Iraq on behalf of the Kurdish population in May 1991 in a clear breach of Iraq’s territorial integrity and political unity. Moreover, the establishment of the so-called ‘safe havens’ by the United States and the UK could constitute further evidence in this direction. In addition, there is evidence that some states encouraged secession from the former Yugoslavia. Such examples, however, suggest that an already existing situation of instability and upheaval may be required to persuade the international community that secession is an option.
- For example, White, supra n. 20. Moreover, several commentators have also noted the possibility that recognition of the different groups within a territory may actually constitute a breach of the safeguard clause in the Declaration on Friendly Relations, which requires states “to represent […] the whole people belonging to the territory without distinction as to race, creed or colour.” Hence, the existence of the right to self-determination under such circumstances remains highly controversial; see for example, Nazerali, supra n.3, where he suggests a right to secession.
- Article 1(1) of the 1966 Covenants.
- For example, Article 21(3) UDHR commanding that “the will of the people shall be the basis of the authority of the government; this will be expressed in periodic and genuine elections which shall be by universal and equal suffrage…” Article 25 ICCPR translates this into a legally binding obligation and right. The seeming duplication of Articles 1 and 25 ICCPR is normally considered resolved by asserting that Article 25 provides the detail of the free choice guaranteed by Article 1 (see Higgins, supra n. 27, p.121). The equating of self-determination and democracy was apparently the philosophical underpinning of President Wilson’s understanding of self-determination; see Hannum, Huirst. “Rethinking Self-Determination”. Virginia J. Int’l L. 1, 34/1993, p. 8.
- Moreover, the clear definition of a ‘people’ solely as the whole of a given state means that a transnational Romani grouping does not constitute a people in international law. See, for example, Nazerali’s claim that GA Res. 2625 provides Roma with the right to freely determine their own political status; this is not the case.
- For example, by re-developing ideas of territorial autonomy. In the words of Benedict Kingsbury, “[f]undamental conflicts exist between values of justice and the hitherto dominant values of order”. Kingsbury, Benedict. “Claims by Non-State Groups in International Law”. In Cornell International Law Journal 25/1992, p. 481. In terms of self-determination, autonomy is understood as stemming from the “any other political status” stipulation in the 1970 Declaration. Hannum has gone so far as to suggest that a new norm of international law has already been created from the intersection of sovereignty, selfdetermination and human rights, guaranteeing minority groups and indigenous peoples the right of meaningful control over their own affairs, what he has termed “less-than-sovereign self-determination”. (Hannum, Huirst. Autonomy, Sovereignty and Self-Determination. Philadelphia: University of Pennsylvania Press, 1996). There is moreover evidence that governments are taking a more nuanced approach to the problem. For example, the statement by the Minister of State at the Foreign Commonwealth Office to the House of Lords in 1993 concerning the position of the UK Government on the status of Tibet; Baroness Chalker declared that, “The Government’s view is that all peoples have a right to self-determination but that this right can be expressed in several different ways”. (Hansard, H.L., Vol. 542, col. 5, (1993); emphasis mine.) Hannum’s suggestion is, however. purely aspirational and no right of autonomy can be said to exist. Moreover, even were this not to be the case, territorial autonomy is not suitable for a transnational group, where possession of territory and geographical concentration is clearly required.
- Most of the recent attempts at breathing new life into self-determination have sought to bring it more firmly within the human rights stable, under the so-called emerging right to democratic government. See Hannum. “Rethinking”, supra n. 32, p. 58; Franck, Thomas. “The Emerging Right to Democratic Governance”. American Journal of International Law, 86/1992, p.6.
- Skinner. “A Third Concept of Liberty”, supra n. 11, p. 16.
- Pettit, Philip. Republicanism: A Theory of Freedom and Government. Oxford: OUP, 1997.
- It is also true however that there are as many different ‘essences’ as there are moral standpoints, so that where Aristotle viewed man as a political animal, for others, as Skinner points out, man’s essence may be religious. (Skinner, n. 10). This suggests the need for considerable flexibility in how one visualises recognition and thus self-determination.
- Tully’s conception of self-rule is based upon the principle of ancient constitutionalism, quod omnes tangit – that what touches all must be approved by all. Tully, James. “The Unfreedom of the Moderns in Comparison to Their ideals of Constitutional Democracy”. Modern Law Review 65/2002, p. 204.
- An agonistic theory of politics is one that sees disagreement as irreducible and the nature of politics as essentially combative. Agonistic negotiation differs though from antagonism. The latter, according to Chantal Mouffe, takes place between enemies who share no common symbolic space; agonism, however, takes place between “friendly enemies” who share a common symbolic space, but who wish to see this space organised in a different way. Mouffe, Chantal. The Democratic Paradox. London: Verso, 2000, p. 13. Agonism is a radical theory of politics that cannot be accommodated within liberal theory, including recent attempts to reformulate it via theories of multiculturalism; in this regard, see the work of Will Kymlicka among others.
- In this way, agonism differs significantly from the Habermasian presumption that different groups can agree on shared constitutional principles and unite under a constitutional patriotism. Habermas, Jurgen. The Inclusion of the Other. Cronin and de Greiff (eds.). Cambridge: MIT Press, 1996. As Tully succinctly puts it, the search for universality is a dead-end alley; the world is a multiverse, and hence dialogue on the organisation of society must also be. Tully, supra n. 13.
- Crawford, James. The Creation of States in International Law. Oxford: Clarendon Press, 1979.
- There is no doubting the international personality of international organisations; see Reparations for Injuries, Advisory Opinion, ICJ Reports (1948).
- For example, the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organisations (1986).
- The literature concerning the apparent demise of sovereignty and of attempts to breathe new life into it is huge; for one of the most interesting, Walker, Neil. “Late Sovereignty in the European Union”. In Walker (ed.). Sovereignty in Transition. Oxford: Hart, 2003.
- Iris Marion Young has suggested that our understanding of independence can be re-conceptualised not as non-interference, but in terms of non-domination. Young, Iris Marion. Inclusion and Democracy. Oxford: OUP, 2000, pp. 255–264.
- One thinks particularly of the European Court of Justice’s (ECJ) well-known doctrine of the supremacy of EU law over the national law of EU Member States and of apparent moves in the same direction by the World Trade Organisation Appellate Body. There have, however, always been international actors whose personality has not been connected to territory – the Knights of Malta (see Nanni v. Pace and the Sovereign Order of Malta (1935-37) 8 A.D. 2. Italian Court of Cassation), for example – and legal systems unattached to either state or territory – international commercial law (lex mercatoria) being the best examples.