¹ “We are experiencing on a massively universal scale a convulsive ingathering of men in their numberless groupings of kinds, a great clustering of separatenesses in which people feel they can find the physical and emotional security they find nowhere else. These are the basic group identities that all people possess by virtue of having been born into a particular family at a given time in a given place. They are tribal, racial, religious, national. These elements cluster in each person in endlessly varying ways. Their sources and their power are rooted in physical facts, in history, in language, in systems of belief and values that make up our cultures”: Isaacs, H., “Nationality: ‘End of the Road’?,” (1975) 53 For. Aff. 432.Google Scholar Possony asserts that “ethnos is fate … for a time much longer than a normal span of life”: “Nationalism and the Ethnic Factor,” (1967) 10 Orbis 1Я14, at 1328. Other observers have suggested that overemphasis of the ascriptive element reflected in symbols deflects attention from the significance of choice in determining ethnic allegiance, which is demonstrated through “a structural and contextual viewpoint”: Patterson, O., “Context and Choice in Ethnic Allegiance: A Theoretical Framework and Caribbean Case Study,” in Ethnicity: Theory and Experience 305–49 (Glazer, N. and Moynihan, D. eds., 1975).Google Scholar This book is hereinafter cited as Ethnicity.

² This type of identity is often compartmentalized into components defined by such symbols as race, language, religion and nationality. See, for elaboration, Isaacs, H., Idols of the Tribe: Group Identity and Political Change (1975).Google Scholar Although focus on these discrete elements may be useful for such purposes as classifying and identifying deprivations and claims, describing normative development, and even suggesting policy responses, they are not much more “objective” than the concededly vague “ethnicity,” which has been characterized as “one of the less precise terms in the vocabulary of social science”: Janos, A., “Ethnicity, Communism, and Political Change in Eastern Europe,” (1971) 23 World Politics 493.CrossRefGoogle Scholar See, for instance, in connection with the many different forms of usage of the category of race, van den Berghe, P., Race and Racism 9 (1967).Google Scholar On the difficulty of classifying Jewish identification, see Akzin, B., “Who is a Jew? A Hard Case,” (1970) 4 Is. L. Rev. 259.CrossRefGoogle Scholar Moreover, unless some generic or residual definition is provided in addition to the traditional criteria, certain types of cultural consciousness could be artificially excluded or at least misrepresented. Symbols can alter or disappear without affecting intensity of identification (e.g., the almost total disappearance of the Gaelic language in Ireland); distinctiveness can develop in the absence of discrete characteristics, as exemplified by the “ethnopsy-chical experience of the American colonists, the Afrikaners and the Taiwanese with regard to their former British, Dutch, and Han Chinese identities”: Connor, W., “Nation-Building or Nation-Destroying?,” (1972) World Politics 319, at 337–38.CrossRefGoogle Scholar Finally, there is a need to communicate the generality of the phenomenon of contemporary resurgence: “… there has been a pronounced and sudden increase in tendencies by people in many countries and in many circumstances to insist on the significance of their group distinctiveness and identity and on new rights that derive from this group character”: Glazer, N. and Moynihan, D., Introduction to Ethnicity, supra note 1, at 23.Google Scholar Concise summation is perhaps embodied in the allusion by Moskowitz to the “ethnic aspirations of racial, religious, linguistic or cultural entities”: The Politics and Dynamics of Human Rights 124 (1968). Other generic terms have been suggested, including “communal group,” “basic group identity,” and “sub-national group,” but none has attracted the increasingly widespread acceptance which “ethnicity” is achieving: see Schermerhorn, R., Comparative Ethnic Relations 12 (1970)Google Scholar; Morris, H., “Ethnic Groups,” (1968) 5 Int’l. Ency. Soc. Sci. 167.Google Scholar

³ Throughout this paper the terms “minority” and “group” are used interchangeably and usually denote an ethnic group or minority. It is obvious that a group which enjoys preponderance of power (and usually constitutes a majority of the population) within a particular state may be an ethnic group, but generally the capability to determine fate domestically as an ethnic group flows from power predominance. The contemporary manifestations of ethnicity that are of primary concern involve groups that are subordinate in power or at least not predominant. For this reason the term minority, although imbued with negative connotations, is accurate and generally accepted terminology.

⁴ Canadians are familiar with the concern of indigenous people for maintaining a semblance of a traditional way of life in the face of northern development. Similar situations exist in Brazil with the opening of the Amazon “frontier”: see New York Times, Jan. 6, 1975, at 9; Jan. 9, 1975, at 13.

⁵ “The famous Three Generations Law governing the behaviour of immigrants into America — the grandson tries to remember what the son tried to forget — now operates in many parts of the world on populations that have not migrated at all: the son, who arduously acquires a new idiom at school, has no desire to play at being a tribesman, but his son in turn, securely urbanised, may do so”: Gelmer, E., Thought and Change 163 (1964).Google Scholar

⁶ This form of selfgovernment may be espoused in situations where the lack of territorial concentration of group members renders political selfgovernment a practical impossibility. It may be broad in scope or limited to, for example, matters pertaining to the family.

⁷ Reference might be made to the communal landholding practices of the Hut-terites in North America, which enable them to attain a large measure of economic selfsufficiency and social selfcontainment.

⁸ For a variety of reasons, it is not always easy for an observer to distinguish a demand for independence from one for a large measure of autonomy, or to ascertain whether group elites calling for independence reflect the wishes of a majority of group members or even of the leaders. The struggles of Moslems in the Philippines and Eritreans in Ethiopia are contemporary cases in point. See New York Times, Mar. 19, 1975, sec. 1, at 1, 23 (Moslems); New York Times, Dec. 8, 1974, sec. 4, at 5 (Eritreans).

⁹ See Reisman, M., Puerto Rico and the International Process: New Roles in Association (1975).Google Scholar

¹⁰ The establishment of a federal state is an example.

¹¹ Such an accretion might involve, for instance, the claim of a unit in a federal state to participate in international relations.

¹² Professor Connor has listed more than sixty states as “currently or recently troubled by internal discord predicated upon ethnic diversity” and directed toward the achievement of “self-determination”: “The Politics of Ethno-nationalism”, (1973) 27 J. Int’l. Aff. 1, at 2.

¹³ Northern Ireland is an example. During the late 1960’s, Catholics challenged discrimination in public employment and housing and in participation in political processes, employing tactics that had been used in the civil rights movement in the United States.

¹⁴ See McDougal, M., Lasswell, H., Chen, L., “The Protection of Respect and Human Rights: Freedom of Choice and World Public Order,” (1975) 24 Am. U. L. Rev. 919, at 930–31.Google Scholar

¹⁵ For instance, members of ethnic minorities may seek to leave a state in order to join their coethnics. The ongoing attempts of Jews to leave the Soviet Union have achieved recent prominence. Moreover, it has been reported that recently Poland and Germany have reached an agreement whereby Poland will permit 120,000 Germans to emigrate to West Germany in return for financial considerations: see the Ottawa Citizen, Oct. 11, 1975, at 22.

¹⁶ Membership in a political community, whether or not deriving formally from citizenship, would constitute a more inclusive basis for allocation. For discussion of “corporate” pluralism in these terms, see the essays by Parsons, Gordon, Bell, and Porter in Ethnicity, supra note 1.

¹⁷ The constitutional structure in Cyprus prior to the Turkish intervention is an extreme example. For a survey of the literature, see Daalder, H., “The Consociational Democracy Theme,” (1974) 36 World Politics 604.CrossRefGoogle Scholar

¹⁸ For example, Scots in the United Kingdom (New York Times, Mar. 23, 1975) at so) and Kurds in Iraq (New York Times, Sept. 27, 1974, at 4) are claiming at least a share in the revenues from oil deposits located on their territory or under adjacent waters.

¹⁹ Nondiscrimination and basic share claims, on the other hand, are premised on the essential irrelevance of ethnicity as the basis for distribution.

²⁰ Care must be taken to distinguish among the potential uses of quotas. At one end of a spectrum, quotas are employed, usually as a last resort, as a strategy for effectuating nondiscrimination. Thus, it has been reported that a new British Race Relations bill will require businesses and government agencies which do not have minorities represented in management ranks in the same proportion as their percentage of the general population to prove that this situation is not because of discrimination. Globe and Mail, Sept. 12, 1975, at 2, 3. At the other end of a spectrum, quotas are indispensable components of proportionate share arrangements. Yet there is a middle range, in which programmes characterized by such terms as “affirmative action” accord preferential treatment to members of ethnic minorities as a strategy of imple-menting basic share goals through recognition that, often as a result of past discrimination, members of ethnic groups may be in a particularly disad-vantaged competitive position even though nondiscrimination is effective. However, it is often difficult to distinguish basic share from proportionate share arrangements, especially in cases where the preferences appear permanent and ethnicity alone is the test of disadvantage. Because of the inevitable variation in programmes of this type, the dividing line will not be static.

²¹ Lador-Lederer, J., International Group Protection 28 (1968).Google Scholar

²² Association may be crucial to protection against discrimination by enabling effective recourse to state and transnational political and legal arenas. A characteristic feature of proportionate share systems is the functioning of interest groups to articulate demands and press them in the face of competition from other groups.

²³ Shibutani has expressed this point strongly, drawing on the insights of Dewey: “… society exists in and through communication; common perspectives — common cultures — emerge through participation in common communication channels. It is through social participation that perspectives shared in a group are internalized …”: quoted in Strauss, A. L., Mirrors and Masks: The Search for Identity 162 (1959).Google Scholar

²⁴ For instance, the minority treaties system under the League of Nations technically granted benefits mainly to individuals rather than to corporate entities as such: see Claude, I., National Minorities: An International Problem 19–20 (1955).Google Scholar However, as Tore Modeen points out, this approach proved to be “unrealistic,” especially in cases where public funds were provided for educational and social needs: such provisions “… presupposed an organized minority as the receiver of support. In practice ‘natural spokesmen’ for the minority were recognized, either outstanding figures from minority circles or certain local authorities in the minority areas”: The International Protection of National Minorities in Europe 56–57 (1969).

²⁵ In a broader sense, of course, the numbers of a group also constitute a base for the accomplishment of group goals in the same way that the population of a state should be viewed as one of its resources.

²⁶ Reisman, M., “Private Armies in a Global War System: Prologue to Decision,” (1973) 14 Va. J. Int’l. L. 1, at 18.Google Scholar

²⁷ The record of the United Nations in this area has prompted one commentator to label the international protection of minorities a “neglected field”: Bruegel, J., “A Neglected Field: The Protection of Minorities, (1971) 4 Hum. Rts. J. 413.Google Scholar Another, writing in 1971, has called for a review of “the issue of minorities protection, an item virtually absent from international discussion for twenty years”: Hauser, R., “The International Protection of Minorities and the Right of Self-Determination,” (1971) 1 Is. Ybk. Hum. Rts. 92, at 102.Google Scholar See generally on developments in the United Nations, Green, L., “Protection of Minorities in the League of Nations and the United Nations,” in Human Rights, Federalism, and Minorities 180 (Gotlieb, A. ed., 1970)Google Scholar; Humphrey, J., “The United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities,” (1968) 62 Am. J. Int.’l L. 869.CrossRefGoogle Scholar In order to maintain perspective, it is necessary to keep in mind the important international lawmaking initiatives taken in the area of human rights generally, though their application has been at best sporadic. For a reference to special prescriptions dealing with other minority claims, see infra note 112.

²⁸ One commentator noted not too many years ago that only a small proportion of the major works dealing with nation-building has considered seriously the role of ethnic identity in processes of integration and modernization: W. Connor, supra note 2, at 319–20, fn. 1. Similar neglect has plagued, until recently, the study of techniques for accommodating group interests in pluralistic societies. On the failure of the discipline of political science generally to deal with problems arising from ethnic consciousness (a situation that is now changing, however) and for a characterization of response to them as “a task which will confront both scholars of international relations and policymakers in the decade ahead,” see Dougherty, J. and Pfaltzgraff, R. Jr., Contending Theories of International Relations 388–89 (1971).Google Scholar

²⁹ See the Progress Reports on the Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, U.N. Docs. E/CN.4/Sub. 2/L. 582 (June, 1973), E/CN.4/Sub. 2/L. 595 (July, 1974), E/CN.4/Sub.2/L.621 (July, 1975); Progress Reports on the Study of the Problem of Discrimination Against Indigenous Populations, U.N. Docs. E/CN-4/Sub. 2/L. 584 (June, 1973), E/CN-4/Sub. 2/L. 596 (June, 1974), E/CN.4/Sub. 2/L.622 (July, 1975).

³⁰ Of course, a comprehensive and systematic taxonomy of claims must be developed; the preceding outline of claims is only impressionistic.

³¹ Erickson, E., “Psychosocial Identity,” 7 Int’l. Ency. Soc. Sci. 61, at 65 (1968).Google Scholar See also Lasswell, H., “Future Systems of Identity in the World Community,” Ch. 1 in 4 The Future of the International Legal Order (Black, C. and Falk, R. eds., 1972).Google Scholar

³² See van den Berghe, P., “Ethnicity: The African Experience,” (1971) 23 Int’l. Soc. Sci. J. 507, at 511.Google Scholar

³³ See New York Times, Mar. 2, 1975, sec. 1.

³⁴ Treaty of the Economic Community of West African States, May 28, 1975, reproduced in (1975) 14 Int’l. Leg. Mat. 1200.

³⁵ See Connor, W., “Myths of Hemispheric, Continental, Regional, and State Unity,” (1969) 84 Pol. Sci. Q. 555, at 578–81CrossRefGoogle Scholar; W. Connor, supra note 2, at 329–30. See also H. Isaacs, supra note 1, at 447.

³⁶ Isaacs, H., “Basic Group Identity: The Idols of the Tribe,” in Ethnicity, supra note 1, at 30.Google Scholar

³⁷ Schaar, John, “The Case for Patriotism,” (1973) 17 American Review 59, at 93–95Google Scholar For Schaar the major manifestations of contemporary internationalization are the multinational corporation, propaganda, “neocolonialist development and exploitation of weak countries,” military systems, the global expan-sion of technology, “ruthless destruction of ‘backward’ peoples and cultures, increasing standardization of life, and meaningless tourism.”

³⁸ A similar description of contemporary trends, coupled with an analysis of their implications for the international legal system generally, is provided in Falk, R., “A New Paradigm for International Legal Studies: Prospects and Proposals,” (1975) 84 Yale L.J. 969,CrossRefGoogle Scholar which also provides the reference to Schaar’s views. See also Falk, R., A Study of Future Worlds 56–149 (1975).Google Scholar

³⁹ It is instructive to note that an element of many of the European movements for greater regional political autonomy is its enjoyment within a federal or confederal Europe, or at least a strong orientation toward the concept of a European community. See Feld, W., “Subnational Regionalism and the European Community,” (1975)18 Orbis 1176 Google Scholar; Contre les Etats, les Regions d’Europe (Marc, A. and Heraud, G. eds., 1973).Google Scholar

⁴⁰ Examples are the Catholic Church and, on a more official level, la francophonie, a linguistic community encompassing French-speaking people in both developed and developing countries. See Canada and “La Francophonie”, Department of External Affairs Reference Paper No. 137.

⁴¹ Neighbourhood, friendship, sex, and age groups are examples of others which could be added to this list.

⁴² A. L. Strauss, op. cit. supra note 23, at 86.

⁴³ The rebel fighting for secession has resolved a loyalty dilemma against his existing state. Religion may produce loyalty conflicts, as in the case where the citizenship duty of participation in military activities is contrary to religious beliefs. Conflict is not, however, an allpervasive condition of multiple identifications, and there exist personal as well as social mechanisms for ameliorating it. See generally Guetzkow, H., Multiple Loyalties 39–45 (1955)Google Scholar; Grodzins, M., The Loyal and the Disloyal, ch. 1 (1956).Google Scholar

⁴⁴ It is also important to understand the significance of culture for the individual; while ascriptiveness may have much to do with discrimination, it does not explain alone why people wish to preserve their culture. Moreover, information is needed about the prospects for success of various methods for preserving culture.

⁴⁵ Bell, D., “Ethnicity and Social Change,” in Ethnicity, supra note 1, at 159, fn. 9.Google Scholar

⁴⁶ Patterson, , “Context and Choice in Ethnic Allegiance,” in Ethnicity, supra note 1, at 311–13Google Scholar; Bell, ibid., at 172–73 and fn. 19.

⁴⁷ Less than 10% of the states in the contemporary world are ethnically homogenous. For further elaboration, see Connor, supra note 2, at 320–21.

⁴⁸ See Morris, supra note 2, at 167; Possony, supra note 1, at 1224.

⁴⁹ W. Connor, supra note 12, at 3.

⁵⁰ For a general model, see McDougal, M., Lasswell, H., Vlasic, I., Law and Public Order in Space 3–85 (1963).Google Scholar The following introduction stresses the role of ethnic groups as participants.

⁵¹ See Horowitz, D., in Ethnicity, supra note 1, at 111.Google ScholarPubMed

⁵² The treatment of people of Japanese ancestry in Canada and the United States during the Second World War illustrates this point. Crises may also be ongoing, perceived by state elites as persisting until modernization and even “national unity” have been achieved.

⁵³ Of course, the power of a minority may be nearly as great as that of the predominant group; indeed, there may be no single predominant group.

⁵⁴ See supra note 15.

⁵⁵ Thus the United States has supported Jews in the Soviet Union.

⁵⁶ This has been true of the Chinese communities in various Asian states and of the Asian communities in various African states.

⁵⁷ See generally Conquest, R., The Soviet Deportation of Nationalities (1960)Google Scholar; Radomir, L., The Transfer of the Sudeten Germans: A Study of Czech-German Relations, 1933–62 (1964)Google Scholar; Schechtman, J., European Population Transfers, 1939–1945 (1946).Google Scholar

⁵⁸ See generally M. McDougal, H. Lasswell, L. Chen, supra note 14.

⁵⁹ Examples are the recognition of only some religions for conscientious objector status.

⁶⁰ Moskowitz, supra note 2, at 125.

⁶¹ Some aspects of the link between context and policy will be dealt with in the next section.

⁶² For example, the relative situations may differ in terms of voluntariness of position, duration of status, territorial concentration, numbers, and so on.

⁶³ The issue of decision-making competence will be alluded to toward the end of the next section.

⁶⁴ For example, the content of the human rights policy is spelled out in such prescriptions as the Charter of the United Nations, the Universal Declaration of Human Rights, the Genocide and Racial Discrimination Conventions, and the 1966 Covenants on Civil and Political Rights and Social, Economic, and Cultural Rights. For the texts of these and other expressions of the human rights policy, see Basic Documents on Human Rights (I. Brownlie ed. 2d rev. ed., 1972). The interpenetrating nature of these policies and the necessity to have recourse to them initially in high level form is demonstrated by the case of India’s “intervention” in East Pakistan in 1971. There all four policies were at stake, and it may be argued that only careful scrutiny of the entire context of events could enable a scholar or decision-maker to choose which to accord priority to. There are those who would argue that some of these policies (e.g. no use of force except in self-defense, territorial integrity, and political independence) enjoy higher authoritative status than others (e.g. human rights, selfdetermination). And, of course, some commentators would reject this whole approach on the ground that specific prescriptions (e.g. the prohibition of the use of force contained in Article 2 (4) of the Charter) are clear and absolute. For a compendium of perspectives on this problem, see Humanitarian Intervention and the United Nations (Lillich, R. ed., 1973).Google Scholar

⁶⁵ Specified in resolutions of the United Nations, in bilateral and multilateral treaties, judicial decisions, general principles and custom, this law must be described systematically in any comprehensive study on the transnational protection of minorities. A useful, if limited, source is the United Nations compilation entitled Protection of Minorities: Special Protective Measures of an International Character for Ethnic, Religious or Linguistic Groups, U.N. Docs. E/CN-4/Sub. 2/214/Rev. 1, 221/Rev. 1; Sales No: 67. SIV.3 (1967).

⁶⁶ McDougal, M., “Human Rights and World Public Order: Principles of Content and Procedure for Clarifying General Community Policies,” (1974) 14 Va. J. Int’l. L. 387, at 401, fn. 29.Google Scholar

⁶⁷ M. McDougal, H. Lasswell, L. Chen, supra note 14, at 928–29.

⁶⁸ Ibid., 931.

⁶⁹ There is much evidence that none of the ethnic classifications — race, colour, religion, language, culture, national origin, and so on — “has any invariable and uniform relevance to capability for performing roles in modern society”: ibid., 934.

⁷⁰ Humphrey, J., “The International Law of Human Rights in the Middle Twentieth Century,” in The Present State of International Law 101 (Bos, M. ed. 1973).Google Scholar

⁷¹ “Like the human rights provisions of the Charter, the rules contained in the [Universal] Declaration are probably part of the jus cogens. It would be unthinkable for a convention sponsored by the United Nations or a resolution adopted by it to derogate from them”: Humphrey, J., “The International Protection of Human Rights: Present Realities and Prospects for the Future,” in Proceedings of the Second Annual Conference of the Canadian Council on International Law 15 (1973).Google Scholar

⁷² The common Article I of the two 1966 covenants on human rights provides: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” See Humphrey, supra note 70, at 103, where the author states that denial of the right to secede, once independence from colonial rule has been accomplished, undermines the above provision. He notes further that the restriction of self-determination to colonial settings “… is tantamount to saying that, while all peoples have the right to self-determination, only colonial countries are peoples.”

⁷³ Note, “The United Nations, Self-Determination and the Namibia Opinions,” (1973) 82 Yale L.J. 533, at 555.

⁷⁴ Fisher, R., “The Participation of Microstates in International Affairs,” (1968) Proc. Am. Soc. Int’l. L. 164, at 166.Google Scholar The one-shot approach is encouraged by the sequence of perceptions and actions involved in the formation and maintenance of territorial entities: “Nation-states form from the unification of disparate groups which feel such a configuration maximizes the protection of their values. Once formed, however, the state exists in dialectic opposition to further group formation, governing elites jealously preserving their existence against the formation of groups which do not find the state supportive of their needs”: Note, supra note 73, at 533.

⁷⁵ Such solutions as regional autonomy and federalism are illustrative of other potential outcomes. An even broader range of outcomes is postulated in a definition of “internal” selfdetermination as “… the freedom of the people of an entity, with respect to their own government, to participate in the choice of authority structures and institutions and to share in the values of society”: Moore, J., “The Control of Foreign Intervention in Internal Conflict,” (1969) 9 Va. J. Int’l. L. 205, at 247.Google Scholar Presumably this perspective could involve according a group “greater economic equality or more political participation”: Note, supra note 73, at 556. While solutions of this nature are categorized in this paper under the equality heading of claims, they cannot be analyzed in the absence of recognition of their selfdetermination ramifications: see infra, note 89. It is suggested, moreover, that because of the association of the term “selfdetermination” with the outcome of secession, it might be advisable to avoid it altogether in emphasizing the availability of such lesser political community outcomes as regional autonomy and federalism.

⁷⁶ A concise statement of this form of state competence is provided in The International Legal System 210–14 (Holder, W. and Brennan, G. eds., 1972).Google Scholar

⁷⁷ J. Moore, supra note 75, at 252.

⁷⁸ The psychological benefits to the individual that are provided through freedom to choose group affiliation also must be stressed. On this level association itself is the goal, fulfilling a wide variety of personal needs. These may include: serving as the source of an individual’s values, or to support a person’s preexisting value system; providing friendship and prestige, and generally inculcating a sense of personal worth; contributing to reducing anxiety. See generally on these types of benefits deriving from association: H. Guetzkow, op. cit. supra note 43, at 17–26; Schachter, S., The Psychology of Affiliation (1959)Google Scholar; Secord, P. and Backman, C., Social Psychology 237–44 (2nd ed., 1974)Google Scholar; Turner, R. and Killian, L., Collective Behavior 414–21 (1957).Google Scholar

⁷⁹ See generally Emerson, T., “Freedom of Association and Freedom of Expression,” (1964) 74 Yale L.J. 1.CrossRefGoogle Scholar

⁸⁰ See Bischoff, R., Nazi Conquest Through German Culture (1942).Google Scholar

⁸¹ The following are examples in the international sphere. Article 29 of the Universal Declaration of Human Rights first stipulates that the rights of member-ship in a political community entail corresponding duties to that community and then provides for limitations to individual rights “… determined by law solely for the purpose of securing due recognition and respect for the rights of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” The same article declares that the rights contained in the Declaration “… may in no case be exercised contrary to the purposes and principles of the United Nations.” Article 30 denies to states, groups and individuals “… any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” Article 22 of the International Covenant on Civil and Political Rights deals explicitly with freedom of association and subjects it to similar restrictions. On the regional level, article 15 (1) of the European Convention on Human Rights permits parties, in “times of war or other public emergency threatening the life of the nation,” to “… take measures derogating from its obligations … to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.”

The implications for decision-makers of this complementarity are described in McDougal, supra note 66, at 390–95.

⁸² On the relationship between “minimum welfare” and “equality”, see Michaelman, F., “Foreword to The Supreme Court: 1968 Term,” (1969) 83 Harv. L. Rev. 7.CrossRefGoogle Scholar For a concise survey of various perspectives on equality in political and social theory, see “Developments in the Law: Equal Protection,” (1969) 82 Harv. L. Rev. 1065, at 1160–69.

⁸³ A typical statement of this nexus is contained in the General Assembly’s 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, which considered respect for human rights to be “… of the greatest importance for the maintenance of international peace and security …”: G. A. Res. 2625 (XXV) GAOR, XXV, Supp. 28, at 132, U.N. Doc. A/8028 (1971).

⁸⁴ Others also potentially disadvantaged might include the poor, people from rural areas, women, and so on. In order to minimize the detriment to others, efforts should be made, of course, to increase the benefits available for distribution. See generally Wexler, S., “Special Preferences for Oppressed Minorities,” (1972) 7 U.B.C. L. Rev. 71.Google Scholar

⁸⁵ Even if ethnicity is considered as only one criterion of disadvantaged status, a particular individual claiming the benefit of preferential treatment because he comes within that classification may conceivably, as an individual, in fact not be in the disadvantaged position common to members of his group.

⁸⁶ Capability is, of course, a flexible and ambiguous concept, and its operation varies with different claims. In connection with university admissions, for example, there may exist formal requirements which are exceeded by everyone, including candidates from ethnic groups who may be at a disadvantage because actual competition occurs on a much higher plane owing to the limited availability of places. It could also be argued that the established criteria of capability are culturally biased or fail to reflect the value of minority background as an element of capability. Moreover, concern for fairness to others — for rewarding their socially beneficial activity — could be counterbalanced by considerations of need; for example, groups with distinctive cultures may have few lawyers to handle their problems, which are perhaps unique. In areas such as health care and housing the gap between reality and basic share may be so great that the need factor becomes overwhelming, sweeping aside any competing basis for distribution. And there might not appear to exist, in connection with special measures in such areas, the strong reason for (or administrative feasibility of) individual treatment of cases that the problem of jobs or education might entail. This diversity suggests the implementation of many different types of preferential treatment programmes and deferring considerably to the competence of individual states in formulating and operating them. Of primary importance, however, is to avoid rendering ethnic differences relevant for any of these purposes on a permanent and institutionalized basis. This basic approach is articulated in article 1(4) of the Racial Discrimination Convention: “Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved”: see Brownlie, op. cit. supra note 64, at 239.

⁸⁷ See Daalder, supra note 17.

⁸⁸ For example, its application to differentation based on sex, if not already underway in some of the developed countries, can be foreseen.

⁸⁹ As far as proportionate group shares to political power are concerned, somewhat different considerations are present. Power reflected in proportional representation in the legislative, executive, and judicial branches of government, or in various arrangements providing for a minority veto on certain matters, may be viewed as essential for protecting other rights. Often interests not defined by ethnicity will enjoy parallel representation. Nor is it always easy to establish a particular form of representation as clearly ethnic and not, for instance, regional or oriented toward providing expertise in certain areas (e.g. the representation of different legal systems on a central court which decides matters pertaining to them). Furthermore, even if the claims are clearly for group shares of political power premised on ethnicity, it must be recognized that there exists a close analogy to political community claims, thereby complicating the policy problem by pointing to the applicability of political community as well as equality policies (see supra note 75); this may be the case where the absence of territorial concentration renders the establishment of such a community impossible. Finally, there is the unique importance of political representation in avoiding or tempering intergroup conflict. All of these factors suggest that while in states that guarantee to the individual the political rights of effective voting and officeholding, group claims to share in political power should be evaluated on one level in the same manner as group social claims, on another level they are closer to political community claims and should be assessed accordingly. Again, choice can only be made by a careful inquiry into context, and individual states should be accorded considerable competence to work out the political arrangements best suited to their own conditions.

⁹⁰ The basic situation in Africa has been described well by van den Berghe, supra note 32, at 515:

A policy of universalism based on merit is resented by the ’backward’ groups as a cloak to maintain the head start of the ’advanced’ groups. … Given this restricted opportunity structure, and the existence of ethnic cleavages, it can be expected that competition within the privileged classes would be along ethnic lines. In the scramble for salaried positions in the civil service, the army, the schools and universities, the State corporations, and the private bureaucracies, the easiest way to eliminate the majority of one’s competitors is by making an ethnic claim to the job, and by mobilizing political support on an ethnic basis. Once the practice of ethnic conflict is established it becomes an almost inescapable vicious circle. Everyone expects everybody else to be a ’tribalist’, and thus finds it easy to justify his own ethnic particularism on defensive or pre-emptive grounds, or ostensibly to re-establish the balance destroyed by the ‘tribalism’ of others.”

This was cited in Bell, “Ethnicity and Social Change,” in Ethnicity, supra note I, at 172. See also Esman, M., “Communal Conflict in Southeast Asia,” in Ethnicity, 391.Google Scholar

⁹¹ In some cases claims for independence have been advanced as a consequence of failure to achieve autonomy within the state, or simply as a starting point for negotiations with no expectation (or perhaps even desire) of such outcome. For example, there is evidence that the Kurdish rebellion in Iraq reached largescale warfare, resulting in defeat for the Kurds at least for the present, as a result of the Kurdish belief that Iraq failed to keep a longstanding promise to grant autonomy: see Toronto Globe and Mail, March 18, 1974, at 4. The Rwenzururu movement in Uganda in the early ninteen-sixties originally aimed at autonomy, and attempted secession only when it became apparent that the original aspiration would not be realized; the Sebei tribe in the same country succeeded in obtaining autonomy and was satisfied: see Kasfir, N., “Cultural Sub-Nationalism in Uganda,” in The Politics of Cultural Sub-Nationalism in Africa 94–103 (Olorunsola, V. ed., 1972).Google Scholar See generally supra 44–45 and notes thereto.

⁹² In his Study of Future Worlds (supra note 38, at 214), Professor Falk foresees some of the more moderate governments, including France, the United States, and the Soviet Union, eventually moving toward internal power sharing that could provide some measure of governmental autonomy for subnational groups. The current proposal of the British government to grant limited selfgovernment to Scotland and Wales is a case in point: see Toronto Globe and Mail, November 28, 1975, at 12.

⁹³ See generally Dahl, R., After the Revolution? (1970).Google Scholar

⁹⁴ Thus Gellner makes the point that literacy and some technological competence must be achieved by an individual, for “only a person possessing these can really claim and exercise his rights, can attain a level of affluence and style of life compatible with current notions of human dignity. …” It is necessary, therefore, for a political unit to be large enough to provide the resources necessary for supporting a fairly sophisticated educational system. “Time was, when the minimal political unit was determined by the preconditions of defence or economy; it is now determined by the preconditions of education”: supra note 5, at 159. See generally Cobban, A., The Nation-State and National S elf-Determination 144–9, 247–309 (1969).Google Scholar

⁹⁵ For the elaboration of criteria relevant for making selfdetermination decisions in cases outside the decolonization paradigm, see L. Chen, Self-Determination as a Human Right (forthcoming); Mensah, T., Self-Determination under United Nations’ Auspices (Yale Law School J.S.D. dissertation, 1963)Google Scholar; Nanda, V., “Self-Determination in International Law,” (1972) 66 Am. J. Int’l Law 321, at 327.CrossRefGoogle Scholar See also Umozurike, U., Self-Determination in International Law 225–74 (1972).Google Scholar

While these criteria are relevant to both secession claims and political community claims below the independence threshold, it would take a cumulatively strong positive thrust to undermine the territorial integrity policy by permitting secession.

⁹⁶ M. Moskowitz, supra note 2, at 167–70.

⁹⁷ McDougal, M., Lasswell, H., Chen, L., The Right to Religious Freedom and World Public Order: The Emerging Norm of Non-Discrimination (forthcoming).Google Scholar

⁹⁸ Lord Acton emphasized one aspect of this link in more general terms over a hundred years ago when, in commenting on the impact of the French Revolution on the nationalism of the nineteenth century, he observed that “where all liberties were repressed, the desires of national independence were necessarily ignored, and a princess, in the words of Fenelon, carried a monarchy in her wedding portion”: “Nationality,” reprinted in Acton, Lord, Essays on Freedom and Power 166 (1949).Google Scholar

⁹⁹ H. Isaacs, supra note 1, at 447.

¹⁰⁰ M. McDougal, H. Lasswell, L. Chen, op. cit. supra note 97. The compatibility between linguistic diversity and Indian national integration and development has been stressed by J. Gupta: see “Ethnicity in India,” in Ethnicity, supra note 1, at 466–88.

¹⁰¹ See generally Connor, supra note 2.

¹⁰² A good statement of this viewpoint is furnished by Conor Cruise O’Brien: “When we are asked to respect the culture of a group we may be asked to respect, for example, the Hindu caste system, the treatment of women in Islam and in a number of other cultures, ostracism of twins in others, and so on. To speak in terms of group rights — as we do when we speak of minority rights — may thus involve connivance in the actual denial of rights to stigmatized members of the groups in question”: “On the Rights of Minorities,” (1973) 55 Commentary 46, at 49 (no. 6.).

¹⁰³ See supra 47–48 for criteria useful for evaluation. These criteria are relevant to the cultural claims of groups as well as to the assessment of group control of members in pursuance of noncultural goals.

¹⁰⁴ See ECOSOC Res. 1503, 48 ESCOR, Supp. 1A, at 8–9, UN Doc. Е/4832/ Add. 1 (1970). This resolution sets out the relevant procedures.

¹⁰⁵ See generally Lador-Lederer, J., International Non-Governmental Organizations (1963)Google Scholar; Clark, R. and Nevas, L., The First Twenty-five Years of the Universal Declaration of Human Rights — and the Next (Work paper for the Abidjan Conference on World Peace through Law, 1973).Google Scholar

¹⁰⁶ For example, toleration of religious diversity might not be extended to traditional native belief systems, which may be viewed as inferior to the world’s “major established religions” or as not religions at all. Also, special protection may have to be accorded burial grounds and sacred places. In the housing area, unique problems are posed by the ways of life of native people. See the 1974 Progress Report on the Study of the Problem of Discrimination Against Indigenous Populations, supra note 29, at 27–30, 41–49.

¹⁰⁷ An example is the multi-agency Andean Indian Program. See the 1973 Progress Report on the Study of the Problem of Discrimination Against Indigenous Populations, supra note 29, at 49–50.

¹⁰⁸ See generally Holborn, L., “International Organization for Migration of European Nationals and Refugees,” (1965) 20 Int’l J. 331.Google Scholar A recent United Nations study has described vividly the plight of millions of migrant workers in Africa, Latin America, and Western Europe: The Welfare of Migrant Workers and their Families, U.N. Doc. E/CN.5/515 (1974).

¹⁰⁹ Recognition of nonformal decision-making autonomy is important. As outlined earlier, groups should be permitted to manage their own affairs within certain limits. In so doing they establish and maintain an internal “legal” system in which “law” is made and applied. For an elaboration of this characterization, see Pospisil, L., “Legal Levels and Multiplicity of Legal Systems in Human Societies,” (1967) 11 J. Confi. Resol. 2.CrossRefGoogle Scholar It is also necessary to designate and protect similar autonomous spheres for individuals, within which their own decisions should be paramount and free from any interference. Choice of religion or private use of language are illustrative of matters which would be included in this zone.

¹¹⁰ See generally Allport, G., The Nature of Prjudice (1954)Google Scholar; Berkowitz, L. and Green, J., “The Stimulus Qualities of the Scapegoat, (1962) 64 J. of Abnormal and Social Psychology 293.CrossRefGoogle ScholarPubMed

¹¹¹ Moskowitz, supra note 2, at 156, 168.

¹¹² See generally the sources listed in supra notes 29 and 65 and Brownlie, op. cit. supra note 64.

¹¹³ Gellner, supra note 5, at 147.

¹¹⁴ Reisman, M., “Responses to Crimes of Discrimination and Genocide: An Appraisal of the Convention on the Elimination of Racial Discrimination, (1971) 1 Denver J. Int’l L. and Policy 29, at 42.Google Scholar