International law, Sixth edition
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International Law MALCOLM N. SHAW
Social and Cultural Rights, Oxford, 1995, chapter 4, and see further below, p. 308.
131 Note that this provision constitutes an autonomous or free-standing principle, whereas article 2(1) of that Covenant and articles 2 of the Universal Declaration of Human Rights, 14 of the European Convention on Human Rights and 2(1) of the Convention on the Rights of the Child prohibit discrimination in the context of specific rights and freedoms laid down in the instrument in question: see Bayefsky, ‘Equality’, pp. 3–4, and the Human Rights Committee’s General Comment on Non-Discrimination, paragraph 12. 132 See further below, p. 314. 133 Adopted on 9 November 1989, CCPR/C/Rev.1/Add.1. 134 PCIJ, Series A/B, No. 64, p. 19 (1935); 8 AD, pp. 386, 389–90. 135 See also the Human Rights Committee’s General Comment on Non-Discrimination, paragraph 8. 136 See Judge Tanaka’s Dissenting Opinion in the South-West Africa cases, ICJ Reports, 1966, pp. 3, 306; 37 ILR, pp. 243, 464. 137 See e.g. the Belgian Linguistics case, European Court of Human Rights, Series A, No. 6, 1986, para. 10; 45 ILR, pp. 114, 165. See also the Amendments to the Naturalisation t h e p r o t e c t i o n o f h u m a n r i g h t s 289 introduction of affirmative action measures in order to diminish or elim- inate conditions perpetuating discrimination. Such measures would need to be specifically targeted and neither absolute nor of infinite duration. 138 The principle of self-determination as a human right 139 The right to self-determination has already been examined in so far as it relates to the context of decolonisation. 140 The question arises whether this right, which has been widely proclaimed, has an application beyond the colonial context. Article 1 of both International Covenants on Human Rights provides that ‘all peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’, while the Helsinki Final Act of 1975 141 refers to ‘the principle of equal rights and self-determination . . . all peoples have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their Provisions of the Constitution of Costa Rica case, Inter-American Court of Human Rights, 1984, para. 56; 5 HRLJ, 1984, p. 172, and the Human Rights Committee’s General Com- ment on Non-Discrimination, paragraph 13, which notes that ‘not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are rea- sonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant’. 138 See the Human Rights Committee’s General Comment on Non-Discrimination, para- graph 10. See also article 1(4) of the Racial Discrimination Convention, article 4(1) of the Women’s Discrimination Convention and article 27 of the International Covenant on Civil and Political Rights. 139 See e.g. A. Buchanan, Justice, Legitimacy and Self-Determination, Oxford, 2004; J. Sum- mers, Peoples and International Law, The Hague, 2007; K. Knop, Diversity and Self- Determination in International Law, Cambridge, 2002; T. D. Musgrave, Self-Determination and National Minorities, Oxford, 1997; W. Ofuatey-Kodjoe, ‘Self Determination’ in United Nations Legal Order (eds. O. Schachter and C. C. Joyner), Cambridge, 1995, vol. I, p. 349; A. Cassese, Self-Determination of Peoples, Cambridge, 1995; Modern Law of Self- Download 7.77 Mb. Do'stlaringiz bilan baham: |
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