Steven Wheatley, Democracy, Minorities and International Law

Extract

The present global environment of cultural malaise makes it timely to revisit the international law aspects of intra-State cultural conflicts. Concerned with ‘the extent to which international law supports the claims of culture’ (p. 5), Steven Wheatley offers within this short book a detailed account of the array of international instruments that deal with the rights of ethno-cultural groups and reveals, in so doing, the limitations of the current legal regime. Wheatley has a special interest in both minority¹ and democracy² issues, and this book contributes to the current conceptual debate on the emergence of a norm of democracy in international law.³ It defends a model of deliberative democracy specifically adapted to issues affecting ethno-cultural groups, arguing that this model can deal more ably with the social tensions generated by the concept of difference—whether imagined, construed or imposed.

Wheatley's argument is spread over three chapters: ‘The Rights of Minorities’, ‘The Self-Determination of Peoples’ and ‘Democracy’. All three contain an historical account of the relevant international legal instruments. The first chapter, which deals with the rights of ethno-cultural groups, offers a survey of the minorities regime set up by the League of Nations and an overview of the UN Charter, the Universal Declaration of Human Rights and the two International Covenants. This is followed by a detailed analysis of the scope of Article 27 of the International Covenant on Civil and Political Rights 1966 (ICCPR),⁴ the self-standing provision concerning the protection of ethnic, religious and linguistic minorities. Wheatley argues that this provision ‘may be regarded as a rule of general international law’ (p. 15), but not a norm of ius cogens. He tries to identify the criteria required for the application of the Article 27 by means of a detailed examination of the five components of the Capotorti definition of minorities (p. 18). He observes that ‘minorities are imagined communities’ which the ICCPR does not recognise ‘as a subject of international law’: holders of rights or possessors of international ius standi (p. 31). The rest of the analysis in this chapter interprets the text of this Article with the aid of dicta of the Human Rights Committee in order to ascertain whether it might extend to ground an obligation on States to adopt positive measures to ensure that individuals belonging to minorities are not denied the right to enjoy their own culture, to profess and practice their own religion or to use their own language. Leaving the realm of the ICCPR, the author also examines, first, the UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities 1992⁵ and, second, the European regime for the protection of national minorities (particularly the Council of Europe's Framework Convention for the Protection of National Minorities 1995⁶ and the 1990 OSCE Copenhagen Document).