Tallinn, Estonia. 21-22 August 2004

Mr. Ken-Marti Vaher, Minister of Justice of Estonia

Prospects of Accepting the Universal Declaration of the Rights of Peoples in the Context of International Law

Ladies and Gentlemen, Giving a speech at this international conference organized by the Institute of the Rights of Peoples, the Unrepresented Nations and Peoples Organization, the Estonian Ministry of Justice and the Estonian Public Service Academy is both a great honor and a great challenge, as the issues which the conference has been invited to address are both complex and sensitive. Complex, because the collective rights of peoples have until now received manifoldly less attention than international or human rights, and sensitive above all because when we speak of the rights of peoples, we must often set states and peoples against one another, which in our modern state-centred society is by no means simple.

In my speech today I will try to assess, in the context of international law, the future of the Universal Declaration of the Rights of Peoples, declared five years ago at the UNPO General Assembly in Tartu. To be more exact, I will look at the prospects for the Universal Declaration and the rights contained therein to become accepted in this context.

Ethnic and linguistic diversity in themselves can be considered fundamental values of humankind. Diversity gives value to life, and loss of such diversity would mean the loss of humankinds unique quality -its humanity- to be replaced with a machine-like existence. Everything that threatens diversity must be averted and, if necessary, combated. The protection of national, linguistic and cultural diversity on the global scale means the protection of every people, its language and culture through social, including most certainly legal, regulation. Care for the preservation and national welfare of each nation is the duty not only of the nation in question but of all other nations as well. It is clear that it is far simpler to protect a nation, culture and language within a state. Therefore we must place even greater emphasis on our duty towards those peoples who have yet to achieve statehood. The protection of the rights of people within the international law context must above all translate into the obligation of the subjects of international law to preserve and develop the diversity of which I speak.

If we wish to compare and contrast the rights of peoples and rights under international law, we must first understand what is meant by each. The Universal Declaration of the Rights of Peoples speaks of the rights of peoples as the rights of a group who share a common identity based on a particular origin, language and culture. If human rights are rights conferred on every person simply because they are human, then the rights of peoples can be viewed as collective human rights that belong to a group simply because they share a common identity and are distinguishable from other peoples or nations. And whereas international law is also sometimes termed the law of nations, international law is the label we give to the body of legal norms, principles and customs which regulate the relations among states and among international organizations founded by states. Many nations have been able to forge their own state on their ancestral territory and thus shape their own national legal system, but there are many more peoples who have never been so fortunate or are not so today. Just by looking briefly at these concepts it is obvious it is not easy to recognize the rights of peoples, as they are set out in the Universal Declaration, within the context of international law.

All the while, two fundamental principles of international law are in competition. On the one hand there is the principle of state sovereignty which encompasses both the power of a state over its territory as well as over the persons living on that territory. On the other, there is the principle of equality of nations and the right of self-determination. This latter principle has been recognized both in the UN Charter as well as in the first articles of the International Covenant on Civil and Political rights. The recognition of the rights of peoples and nations within the context of international law will help determine the relationship between the right of self-determination and the right of states to preserve their sovereignty and territorial integrity. To date, international law has sought to strike the balance between these two principles through the enactment of rights for national minorities and their members.

If by people we mean not the population of a state but rather an ethnic group, then the issue of the rights of peoples is often the issue of the rights of national minorities and of how to safeguard the identity of unrepresented peoples who live in states founded by other peoples. Unfortunately, the first obstacle regarding national minorities is also related to their definition. Just as it is impossible to clearly define people or nation, under international law, there is no consensus on the definition of national minority. The most important international instrument to address the issue of minorities is the International Covenant on Civil and Political Rights adopted by the UN General Assembly in 1996. Under Article 27 of the Covenant, In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. Yet the Covenant does not define the term minority. Neither is this concept revealed in the Council of Europes 1995 Framework Convention for the Protection of National Minorities, which leaves the definition of minority up to each state party to the Convention. In acceding to this Convention, Estonia declared that it considers national minorities to be those Estonian citizens who live on the territory of Estonia, have longstanding and ongoing ties with Estonia, are distinguishable from Estonians based on their ethnic origin, culture, religion or language and who desire to collectively preserve the cultural traditions, religion or language that underlie their common identity. In so doing Estonia views national minorities in rather broad terms, but clearly excludes immigrants who do not have longstanding ties. Yet even this broad definition has been subject to criticism.

From the standpoint of the Universal Declaration on the Rights of Peoples and in particular of the issue of unrepresented peoples, it is important to emphasize that protection of the rights of national minorities is still limited by recognition of territorial integrity. Notably, the instruments of international law to which I referred are in the form of inter-state agreements, in which states have undertaken certain obligations with regards to the peoples living on their territories. Thus, for example, the provision set forth in Article 3 of the Universal Declaration of the Rights of Peoples which stipulates that the right of self-determination prevails over the territorial integrity exceeds the framework of obligations undertaken by states under international law.

One of the most important issues in this debate is undoubtedly the status of peoples and nations as subjects of law. Pursuant to Article 8 of the Universal Declaration of the Rights of Peoples, peoples have the right to obtain the status of subjects under international law, through their representative organs. Individuals also can be viewed as subjects of international law in so far as rights and obligations arising from the rules of international are conferred directly on individuals. From this we could conclude that since there exists rules of international law that provide for the rights of peoples, then peoples can be regarded as subjects of international law. However, this immediately gives rise to the question of how to define people or nation. From the perspective of a state it is simplest to define people as the permanent population of the state, whith population in this context being one of the defining characteristics of a state. Yet this definition is not possible considering the topic of todays conference. When we speak of people as a community that shares a common identity based on origin, language and culture, we must inevitable figure out how to delimit this group. If a state is characterized by a defined territory and population and if a state can be defined as a subject of international law based on this territory and population, then definition with regard to a people is not nearly so simple, particularly where a people has no statehood. Evidently this is precisely why peoples and nations have yet to be recognized as subjects of international law.

The next problem we face is the binding force of rights and obligations, and the actual opportunities for exercising them. When discussing rights it is always important to scrutinize how the exercise of the rights is guaranteed in practice. This question arises both with regard to rights arising from natural law, as well as those accorded by states through legislation. Therefore, declaring a right is but half the battle. The Preamble to the Universal Declaration of the Rights of Peoples begins by stating that the Universal Declaration of Human Rights is not yet universally respected in all parts of the world. Yet this Declaration was adopted by the most influential international organization in the world, the United Nations. There is no implementing mechanism by which the declared rights can be guaranteed in actual fact. On a parallel note, regarding human rights, the system established by the European Convention for the Protection of Human Rights and Fundamental Freedoms is rightly deemed to be their most effective guarantor. The rights contained in the Convention are guaranteed through the right of every person whose rights have been violated to address a specially established international body, the European Court of Human Rights. It would, however, be far more complicated to create a similar system to defend the collective rights of peoples, as this raises the question of how to define people as the holder of collective rights, as well as of who has the right to represent a people in the protection of such rights. According to Article 6 of the Universal Declaration of the Rights of Peoples, all peoples have the right to organize and to form legitimate representative bodies. In practice, however, we must still decide how to judge weather such representative bodies are truly legitimate.

The Unrepresented Peoples and Nations Organization represents peoples and nations who are not represented in the United Nations or who consider their representation to be inadequate. Thus, the Universal Declaration summarizes in concentrated form the desires and aspirations of the individuals who are members of such peoples and nations, as well as their concerns and the injustice they have suffered or continue to suffer. The Universal Declaration with its wishes, aspirations, concerns and protest is of considerable significance on the international scene. The question is whether the declaration actually has any legal force and whether and to what degree the rights is lists are binding, the rights and principles set forth in the declaration must be accepted by states. Formally, this would be possible by means of a convention. Unfortunately, it is unlikely that the states of the world would be willing to adopt a convention that recognizes something to be superior to their sovereignty and territorial integrity. The greatest obstacles to international acceptance are therefore Articles 4 and 5 of the Declaration, which establish that the right of self-determination is superior to the principle of territorial integrity. As I said earlier, recognition of peoples and nations as subjects of international law is foremost complicated by the difficulties of definition and the legitimacy of a peoples representative organs. Acceptance of the rights provided for in Article 13 would also mean the surrender of state sovereignty.

It is undoubtedly right that, by nature, every people and nation has the right to its own state, and every community has the right to self-determination and self-government as it sees fit. But it would be too much to presume that others will agree to this. The territorial integrity and sovereignty of states are not necessarily goals in and of themselves. Just as in existing states there are often conflicts between the people with statehood and the peoples without, such conflicts also arise when states disintegrate, divide or unite or when new states are created. Thus, in preserving their integrity, states may also be protecting the rights and interests of a people of peoples.

It is also noteworthy that the preamble to the Universal Declaration of the Rights of Peoples recognizes that in the history of humankind, peoples have endued longer that the states of the world. Lets take the closest example. The Estonian nation, like many other small European nations, won its statehood for the first time only in the 20th century. The duration of our statehood is negligible when compared to the thousands of years that our people have lived on this land. Achievement of statehood in 1918 and restoration of this statehood in 1991 both required the existence of a strong nation. A strong nation means a strong common identity. A common identity in turn requires a common culture and language, as well as the opportunity to preserve them and, most importantly, develop them further. Culture is not what we find on display in a museum. Culture must live within people.

Whereas in the context of international law it is problematic to accept the rights of peoples which may threaten the current sovereignty and territorial integrity of states, the other rights set out in the Declaration have already been accepted on the international level. The cultural and social human rights conferred on all persons by birth as human beings amount, in the aggregate, to the collective rights of peoples. For these to be exercise, however, a nation above all needs a strong sense of unity and systematic efforts.

If we speak of rights, we could say that what is needed is the active exercise of the right of association. The right of association is one of the most important elements of democracy, without which there cannot be political democracy and no civil state. On the individual level, this right is one from of every persons right of self realization and freedom of expression. As such, the freedom of association is a vital precondition for each persons and every peoples unhindered development as well as for the protection of their rights. For the right of association to be realized, the will of every person and the unanimity of the nation are needed. At todays conference as well as a couple of days ago at the Finno-Ugric World Congress, I have witnessed the speeches and opinions of many nations and peoples who do not have statehood. From witnessing these I am convinced that such will exists.

For the reason I mentioned earlier it is unlikely that, in this stage of development in international relations and international law, the Universal Declaration of the Rights of Peoples or, more precisely, the rights contained therein, will become part of the written international law. Nevertheless, these rights may become part of the so-called voluntary international law, which is recognized in international practice and jurisprudence, but which is distinguished from treaty law due to its unilateral and autonomous nature. It is possible that statements, such as the universal Declaration, will become common in international practice and, in the long term and with wide recognition, perhaps even part of international customary law. The desire of human society and above all of todays unrepresented nations and peoples will be key in shaping international law in this direction. Therefore- I wish you all a lot of persistence and wisdom on your way.