Ulrike Barten

The Greenland Self-Government Act: The Pitfall for the Inuit in Greenland to Remain an Indigenous People?

Are the Inuit in Greenland an indigenous people under international law? And what are the consequences of that categorization? This article focuses on the right to self-determination as the Inuit are recognized as an indigenous people; however, the Greenlanders have the explicit right to independence. The article concludes that the Self-Government Act can be regarded as the pitfall for the Inuit as an indigenous people. So far, nobody has fallen in; however, independence may mean an end to the status as an indigenous people. While the law might be considered relatively clear on this, the self-identification as an indigenous people will most likely not stop overnight.

Minority Rights and Internal Self-Determination

Minority rights in general and the content of self-determination have been examined and discussed. Now, it is time to take a step further and analyse if minority rights are legitimate and just and secondly whether they correspond to rights under internal self-determination.

Minority Rights in the European Union after Lisbon

Abstract: The Treaty of Lisbon introduced some profound changes in the European Union. Those of highest relevance for national minorities will be considered in this contribution. First, the fact that minorities for the first time entered primary law is addressed. Secondly, the new legal status of the Charter of Fundamental Rights is scrutinised in order to determine whether this has special implications for minorities. Thirdly, the accession of the European Union to the European Convention of Human Rights is addressed, as minorities have a special interest in this. Similarly, citizen initiatives are not changes exclusive to minorities; however, using the Minority Safepack as an example, it is shown how minorities can at least potentially profit from this change in the treaties. Five years after entering into force, the Lisbon Treaty does not seem to have made much of a difference for national minorities.

Non-State Actors and Non-Binding Instruments

This chapter provides a basis for the following analysis. It paints a picture of relevant actors and instruments. Recognizing that states and the instruments originating from the sources of art. 38 (1) ICJ-S do not lead to a comprehensive picture, there is a need for the view to be broadened. An overview over the actors will show the complexity of the framework that stakes out the analysis. It is necessary to know which role and position the different non-state actors have and what they have contributed to the discussion so far. The part on non-binding instruments is of similar character. Knowing which instruments exist and what their content is provides a common basis and the starting point for further discussions.

Minority, People, Nation

Scholars involved in minority rights and those actively working for minorities at international organizations and non-governmental organizations can sometimes be overheard saying that definitions are not important at all. The important thing is that the groups actually get their rights, no matter how these groups are defined in detail. Gudmundur Alfredsson offers two reasons as to why there is no binding definition. Firstly, they feel threatened by minorities’ separatist claims that they expect when minority rights are enforced. Secondly, by continuously discussing a definition, substantive issues are avoided. The first reason shows the value of the original position. Within the framework of liberal states in Europe, separatist claims do not appear in the original position. While the second reason cannot be disproved, the original position is about agreeing on fundamental principles. Hiding behind definitional questions is not part of the strategy.

Minorities, Minority Rights and Internal Self-Determination

Part I: Introduction.- The international relations framework.- Classic sources on minority rights and self-determination.- Non-state actors and non-binding instruments.- Legitimacy and justice.- Legitimacy and justice of non-binding instruments.- Part II: Minority rights.- Minority, people, nation.- Understanding self-determination.- Part III: Minority rights and internal self-determination.- Putting together the pieces.- Part IV: Conclusion.- Summary.

Legitimacy and Justice of Non-Binding Instruments

Legitimacy and Justice allow for a more inclusive view on the international field compared to legal positivism and the sources doctrine. While the sources doctrine only lets us see certain aspects of international relations and international law, legitimacy and justice let us see more. They let us see, if not all, at least more of the actors and instruments that exist in the field of minority rights and self-determination. International law treats these two categories of actors and instruments differently. While international law has come to accept that states are not the only actors in international law, it has much more difficulty accepting classically non-binding instruments.

The International Relations Framework

International law neither exists nor is it made in a political vacuum. It would probably often make life easier for those making and interpreting international law if this were the case. However, circumstances have it that international relations are important and as this project seeks to at least consider circumstances in the real world, if not work with them, a word on the underlying international framework is necessary. Allen Buchanan has given a short reason as to the necessity of an underlying international relations framework. Paraphrasing, it is ‘an exercise in futility’ if the international relations theory one adheres to does not support the approach one has to international law. By agreeing to international relations realism, meaning that law is simply irrelevant to international politics, this project would be reduced to a hypothetical exercise of the mind with no relevance. If one accepts that international law has some sort of meaningful relationship with international relations, the starting point is very different. This is what is done in this chapter.

Legitimacy and Justice

International law can be considered from many viewpoints. The diverse literature on theoretical approaches bears witness to that. Legal positivism is deemed to be too restrictive as it does not take into account the vast amount of actors and instruments introduced in the preceding chapter. Nevertheless, it is still one of the leading theories in international law and even though it has its shortcomings, it wields much influence. I do not seek to disregard legal positivism completely but I consider a complementary approach, which I have found in legitimacy and justice.

Putting Together the Pieces

Each of the foregoing chapters focuses on a certain subject—a piece—that plays a role in the discussion on internal self-determination for minorities. The chapters are partly based on each other as is the case of Chaps. 5 and 10 being based on Chap. 4. They also refer to each other. Chapter 3 contains information on the actors and non-binding instruments important in this discussion. Chapter 6 contributes with a presentation on relevant treaties that appear in the discussion in Chap. 10. These are only examples and there are many more such links between the chapters.