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.