Friday, February 1, 2013

Minority Rights and the Right to Self-determination

In Lao's Perspective
Minority Rights and the Right to Self-determination
        Minority rights and self-determination have been discussed among international community since 1948 at The Declaration of Human Rights. There are many conventions that mention minority rights and self-determination. But the problems is no convention that describe either minority rights or self-determination in detail, included the definition of the terms of “people” that used in conventions. This make the conventions are not effective to be applied to solve minority rights and self-determination problems. In other hand, the minority rights and self-determination are still debatable. Minority rights and self-determination clashed with sovereignty of the states.
        Having established that in the current status of international law minorities are not entitled to the state of their own to guarantee the survival of their cultural identity. Democratic theory stated that the principle decisions in a democratic country should be made by the greater number of citizens in any political unit. Although the majority possesses the right and the power to govern, democratic theory also demand that minority rights be protected and the minority permitted to criticize and offer alternatives to policies of the majority.[1] This theory became the basic thought to promote minority rights.
        In existing conventions, one issue which was not addressed before is the terms of national minority. Therefore, states able to decide whether the different groups inhabiting in their territory can be concluded as national minorities or not, and mostly states do not recognizing the de facto existence on its territory of the respective minority. In the framework UN it was expected will not reach on the binding convention due to different background of the states. The current international instrument protecting minority right are either soft law instruments or they did not formulate rights in a way which would be directly applicable in the member states.
        Self-determination recognized as derivative from minority rights. The biggest obstacle to apply self-determination is the possibility of the minorities to do secession from the territory of the existing border of the states and potentially causing internal instability. Self-determination itself was championed by European liberals from French Revolution[2]. However, the right of self-determination was officially introduced by Woodrow Wilson in his “fourteen-point’s speech. The rights of self-determination also was incorporated in the International Covenant on Civil and Political rights and the Covenant on Economic, Social, and cultural rights. ICJ noted that the right of self-determination had become applicable to non-self governing territories, such as Namibia[3]. On article 27 of the International Covenant on Civil and Political Rights proclaims that:
        “[…] persons belonging to such minorities shall not be denied the right, in the community with other members of their groups, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”
        The inadequacy of this article is this article only point out only certain individual rights are guaranteed to members of minority groups and not the rights of the group as a whole. Moreover, article 27 seems to contain an obligation for state parties to covenant, namely to not deny to members of minorities certain rights. The question arises whether the states also have a positive duty to act, thus being responsible for omission in case they do not guarantee those rights, or only the negative obligation not to obstruct minorities in the exercise of the rights guaranteed by article 27[4].
        Lao PDR recognize the minority rights. Regarding that Lao PDR consist of 49 recognized ethnicity, rights of ethnicity also must be recognized. In article 8 of Lao PDR’s constitution stated that:
        “The States pursues the policy of promoting unity and equality among all ethnic groups. All ethnic groups have the right to protect, preserve and promote the fine costumes[5] and cultures of their own tribes and of the nation. All acts creating and discrimination among ethnic groups are prohibited.”  
        All lands are stated on by Laos. However, communal use rights are recognized under the Constitution and various national laws. But, in Lao PDR’s law, land and forest granted to indigenous people without documentation or implementation of legal process. If certain group within the country will be resettled due to government project, the government of Lao PDR gave compensation toward the groups that will be resettled.
        Lao PDR policy stated that the ethnic minority children have a right to education in their first language. But it does not mean Lao PDR endorse Multilanguage policy within the country. The Lao language and Lao script officially used[6].
        Lao PDR recognize the importance of minority rights and self-determination as long as still within the framework of Lao’s sovereignty. Lao’s government policy stated that: “[…] to develop the right of self-determination of the people and to protect the legitimate rights and interest of members of their respective organizations”. Even though Lao’s constitution recognize the right of self-determination, in the case of secession by minorities groups, Lao PDR do not acknowledge secession action within their territory.  In Jan Klabber’s opinion, currently people can take a right of external self-determination (which might included secession) only if the states fails to give self-determination internal self-determination. Other theory, remedial secession theory, stated that there is a right to secession if the states or central government persistently and systemically represses a territorial organized of the population.

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