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-
Determination
(ed. C. Tomuschat), Dordrecht, 1993; Higgins,
Problems and Process
,
chapter 7; T. Franck,
The Power of Legitimacy Among Nations
, Oxford, 1990, pp. 153
ff.; Franck, ‘Fairness in the International and Institutional System’, 240 HR, 1993 III,
pp. 13, 125 ff.;
The Rights of Peoples
(ed. J. Crawford), Oxford, 1988;
Peoples and Mi-
norities in International Law
(eds. C. Br¨olmann, R. Lefeber and M. Zieck), Dordrecht,
1993, and P. Thornberry, ‘Self-Determination, Minorities, Human Rights: A Review of
International Instruments’, 38 ICLQ, 1989, p. 867. See also M. Koskenniemi, ‘National
Self-Determination Today: Problems of Legal Theory and Practice’, 43 ICLQ, 1994, p.
241; G. Simpson, ‘The Diffusion of Sovereignty: Self-Determination in the Post-Colonial
Age’, 32
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