CHAPTER 4
Definition of a 'minority' 
Regionally non-dominant titular peoples, autonomies and customary law 
European Charter for Regional or Minority Languages 
Concluding remark 

'Minority' Rights In Autonomies
"The participating States note the efforts undertaken to prated and create conditions for the promotion of the ethnic, cultural linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned" [1] (para. 35, 2nd paragraph, Copenhagen Document)
The Law of Minorities is written in the context of States. While this may satisfy the demands of appropriate groups in the vast majority of cases, as the nation state concept increasingly becomes re-defined, so, I believe, more active consideration will have to be paid to the position of the 'new' minorities (often the majority, titular, people in the State concerned) that arise out of the autonomous formations created. This is the basis for this chapter.
Conflict has 'distorted' the ethnic make-up of the 'three'. Nagorno-Karabakh is, presently, almost entirely ethnic Armenian. In South Ossetia much of the Georgian population has left (apart from those living in 'border' villages) and in Abkhazia (outside Gali District) much of the Georgian population (as well as many Greeks, Armenians and Slavs) has been similarly 'displaced'.
Let us assume, however, for the sake of convenience, that all those refugees/displaced persons, from the 'three', that want to return have returned (see Chapters 9 and 10). I doubt very much that any of the non-'titular' peoples would constitute the percentage of the population that they had done before the respective conflicts. Yet for those that return, what should their rights be in what would, under any 'model', be regions enjoying extensive rights of autonomy?
Undoubtedly, the greatest potential complicating factor would be the classification of Azerbaijanis in Karabakh, and Georgians in South Ossetia and (most dramatic of all) Abkhazia as minorities. For them (apart from its general application/implications), the use of such a term would be 'dynamite'.

DEFINITION OF A 'MINORITY'
The international community has, so far, failed to agree on a standard definition as to what constitutes a minority. However, I will select, for consideration, surely the most 'prominent1: Francesco Capotorti's. In the, so-called, Capotorti Report, he suggested that minorities were groups,
'numerically inferior to the rest of the population of a State, in a non-dominant position, whose members - being nationals of the Slate - possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show if only implicitly a sense of solidarity, directed towards preserving their culture, traditions, religion or language' [2].
In respect of autonomies, I believe, the key phrase here is 'in a non-dominant position'. As the Georgian population of Abkhazia would demonstrate (almost certainly, once again, a plurality), the 'assumption' 'numerically inferior(ity)' would not always be a given. What would separate the respective communities (including the smaller minorities), however, would be the question of 'dominance'.
Does this still render Georgians and Azerbaijanis 'minorities'? I am not sure the word 'minority' is helpful in the context of autonomies. 1 cannot imagine either group classifying themselves as minorities, and the term 'new minorities', in my opinion, 'encapsulates' too disparate and uncoordinated a 'selection' of groups to ease the, singular, bluntness of the general term [3]. I would, therefore, advise that what are in effect 'minorities within minorities' should be termed 'regionally non-dominant titular peoples'.

REGIONALLY NON-DOMINANT TITULAR PEOPLES, AUTONOMIES AND CUSTOMARY LAW
It is one thing to separate 'dominance' from 'non-dominance', but this does not address the rights of titular peoples in autonomies. There are many international instruments detailing the rights of minorities (see the Useful Documents section at the end of this chapter). While most are of a generally 'soft' law nature, I think it is fair to say that many of the entitlements contained within them have/are coming to assume customary law qualities. So, I would assume, equally, that these same entitlements should prevail as, non-emerging, customary rules in 'autonomies'. It would, surely, be absurd (apart from questions of equity) to suggest that 'positive' obligations imposed, by way of customary law (if not even through ratification), on States were not similarly applicable within their own autonomous structures. While I appreciate that, in effect, this, therefore, encodes the rights of regionally non-dominant titular peoples,
in customary international law, to a far greater extent than the, 'regular', rights of minorities, this can only assist in the process of solidification of minority rights as customary rules.
If 'persons belonging to national minorities' have the 'right' not to be discriminated against [4] and a right to participation (see Chapter 3), then, according to the methodology applied above, regionally non-dominant titular peoples in autonomies should enjoy the same rights. Here, non-discrimination and participation act as a natural corollary and additional guarantee to standard minority rights. Consider section III of the Report of the CSCE Meeting of Experts on National Minorities (1991). It provides:
The participating States consider that respect for human rights and fundamental freedoms must be accorded on a non-discriminatory basis throughout society. In areas inhabited mainly by persons belonging to a national minority, the human rights and fundamental freedoms of persons belonging to that minority, of persons belonging to the majority population of the respective State, and of persons belonging to other national minorities residing in these areas will be equally protected' [5].
Section IV continues:
'In accordance with paragraph 31 of the Copenhagen Document, the participating States will take the necessary measures to prevent discrimination against individuals, particularly in respect of employment, housing and education, on the grounds of belonging to a national minority. In that context, they will make provision, if they have not yet done so, for effective recourse to redress for individuals who have experienced discriminatory treatment on the grounds of their belonging or not belonging to a national minority, including by making available to individual victims of discrimination a broad array of administrative and judicial remedies' [6].
Sections III and IV are important here for their 'enunciation' of the rights of 'non-minorities' to be protected from discrimination within, I would suggest, a territorial and non-territorial framework respectively. Section III protects the rights 'of persons belonging to the majority population of the respective State': the use of the definite article before the word 'majority' appears to delimit the 'dominant' (I suspect 'titular') population of the State outside an area (territorially defined or not) 'inhabited mainly by persons belonging to a national minority', from those 'areas' where the group does not form a majority. Even in Section IV, which does not allude to 'areas inhabited mainly by ...' (therefore(?), 'non-territorial'), those 'not belonging to a national minority' are still protected.
Article 15 of the Framework Convention for the Protection of National Minorities states: 'The Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them' [7]. The right to participation enshrined, also, in para. 35 of the Copenhagen Document (1990) [8] and in 'para. 24' of the Concluding Document of the Helsinki Follow-Up Meeting (1992) (under the heading: 'Enhanced Commitments and Cooperation in the Human Dimension) [9], I would venture, has assumed the quality of a customary rule. Once again, I believe it would be absurd to deny regionally non-dominant titular peoples (in autonomies) rights which could be 'enforced' by minorities in the 'wider' framework of the State.

EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES
The European Charter for Regional or Minority Languages, approved by the Committee of Ministers of the Council of Europe in June 1992, and opened for signature on 2 October 1992, provides a comprehensive account of the modes of protection/development of 'regional or minority languages' (see Parts II and III). The Preamble to the Charter declares that 'the right to use a regional or minority language in private and public life is an inalienable right'. However, the non-mandatoriness of the more comprehensive modes, in Part III, gives the Charter a 'Book Club'esque quality [10].
The Charter is of interest here for the purposes of its possible application for the benefit of the Georgian/Azerbaijani population in the 'three'. However, 'perversely', a reading of the Charter demonstrates that although it could be applied for the benefit of Abkhazians, Ossetians, and Armenians in the 'three', themselves, its terms ('entitlements') could not be applied to the non-titular Georgian/Azerbaijani population living there.
Article 1 (a) of the Charter provides:
'(a) [For the purposes of this text] the term 'regional or minority languages1 means languages that are (i) traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State's population, and (ii) different from the official language(s) of that Slate' [11].
Before I explain the meaning of Article 1(a), I feel I should, first, draw attention to Article 3(2). It states:
'Any Party may decide that the application of this Charter shall also be extended to official languages which are less widely used on the whole or part of its territory' [12].
If one takes Article 1(a) and Article 3(2) together, the key words are 'official language(s)' (in 1(a)(ii), for example). Article 1(a) quite clearly provides that a 'regional or minority language' may not be an 'official language(s)' of the State. While Article 3(2) may allude to the possibility of the inclusion of 'official languages' as beneficiaries to the Charter, any ambiguity as to the type of these official languages are dispelled in the Explanatory Report to the Charter. Paragraph 51 states: 'The wording of Article 3 takes account of the position in certain member states whereby a national language which has the status of an official language of the state, either on the whole or part of its territory, may in other respects be in a comparable situation to regional or minority languages as defined in Article 1(a), because it is used by a group numerically smaller than the population using the other official language(s). If a state wishes such a less widely used official language to benefit from the measures of protection and promotion provided for by the Charter, it is therefore enabled to determine that the Charter shall apply to it' [13]. The Georgian and Azerbaijani languages, irrespective of any potential settlement, would not be classified as 'a less widely used official language' and so, therefore, the Charter cannot apply to them. This is, surely, a missed opportunity. However, perhaps the very identity of the Charter, through its use of the term 'regional or minority languages', was always going to preclude regionally non-dominant 'titular' (official) languages anyway.

CONCLUDING REMARK
In light of the increased scholarly interest on the question of autonomy in international law and in the context of the very considerable interest in minority rights, I have to say I have been disappointed by the seeming 'disregard' for the rights of 'regionally non-dominant titular peoples' in autonomies. The present chapter has had to rely, very much, on the 'good offices' of customary international law in order to provide some semblance of an international law framework for a very 'significant', sometimes vocal (even militant), but often 'vulnerable' group. Although international law appears to have 'shyed away' from concretising a right to autonomy, I do believe it should enshrine certain duties of autonomies. The 'presumed' framework outlined above, cannot be preferable.

NOTES
[1] International Legal Materials, 29 (1990) pp. 1305-1321 at 1319.
[2] F. Capotorti, Study on the Right* of Persons Belonging to Ethnic, Religious and
Linguistic Minorities (Geneva, United Nations Center for Human Rights, 1991),
UN Doc E/CN.4/Sub. 2/384/Add. 1-7.
[3] The term 'new minorities1 is increasingly being used in the context, both separately and as a collectivity, of 'addressing' the following: migrant workers, women and homosexuals.
[4] See, for example, the first paragraph of paragraph 31 of the Copenhagen Document. It states: 'Persons belonging to national minorities have the right to exercise fully and effectively their human rights and fundamental freedoms without any discrimination and in full equality before the law1. International Legal Materials, 29 (1990) pp. 1305-1321 at 1318.
[5] International Legal Materials, 30 (1991) pp. 1692-1702 at 1696.
[6] Ibid, pp.1697.
Note, the second paragraph of paragraph 31 of the Copenhagen Document provides: The participating States will adopt, where necessary, special measures for the purpose of ensuring to persons belonging to national minorities full equality with the other citizens in the exercise and enjoyment of human rights and fundamental freedoms'. International Legal Materials, 29 (1990) pp. 1305-1321 at 1318.
[7] International Legal Materials, 34 (1995) pp. 351-359 at 356.
[8] Paragraph 35 slates: '(first paragraph) The participating States will respect the right of persons belonging to national minorities to effective participation in public affairs, including participation in the affairs relating to the protection and promotion of the identity of such minorities'. International Legal Materials, 29 (1990) pp. 1305-1321 at 1319.
[9] Paragraph 24 states: "Will intensify in this context their efforts to ensure the free exercise by persons belonging to national minorities, individually or in community with others, of their human rights and fundamental freedoms, including the right to participate fully, in accordance with the democratic decision-making procedures of each State, in the political, economic, social and cultural life of their countries including through democratic participation in decision-making and consultative bodies at the national regional and loca! level, inter alia, through political parties and associations". International Legal Materials, 31 (1992) pp. 1385-1420 at 1411.
[10] The text of the Charter is very unspecific and clumsily ordered, on the matter of a State's 'ratification1 and acceptance of the provisions contained within Part III (entitled: Measures to Promote the Use of Regional or Minority Languages in Public Life in Accordance with the Undertakings Entered into Under Article 2, Paragraph 2). I will 'begin' with Article 3(1) - 'Each contracting State shall specify in its instrument of ratification, acceptance or approval, each regional or minority language to which the paragraphs chosen in accordance with Article 2, paragraph 2, shall apply'. Article 2(2) states: 'In respect of each language specified at the time of ratification, acceptance or approval, in accordance with Article 3, each Party undertakes to apply, in addition to Article 8 [entitled: Elimination of Discrimination], a minimum of thirty-five paragraphs or sub-paragraphs chosen from among the provisions of Part III of the Charter, including at least three chosen from each of the Articles 9 and 13 and one from each of the Articles 10, 11, 12, and 14'. Actually, what this is trying to say is that, in the event of any 'contracting State' ratifying, accepting or approving the Charter, while Part II (entitled: Objectives and Principles Pursued in Accordance with Article 2, Paragraph 1) is obligatory on the 'contracting State' 'in respect of all regional or minority languages' (Article 2(1)), Part III is not. Indeed, any 'contracting State' may ratify, accept or approve the Charter without specifying any 'regional or minority language' to which the provisions contained in Part III apply and may thereby disregard it. See H.Hannum (ed.), Documents on Autonomy and Minority Rights, Dordrecht. Martinus Nijhoff, 1993, pp. 86-101 at 88.
Elucidation is only provided in the Explanatory Report to the Charter. Paragraph 49 states: The Charter, in its Article 2, does not compel acceptance of both Parts II and III, since a State could confine itself to ratifying the Convention without selecting any language for the purposes of the application of Part III. In such a case, only Part II would apply. In general, the spirit of the Charter would require that States make use of the possibilities offered by Part III, which constitutes the essence of the protection afforded by the Charter'. European Charter for Regional or Minority Languages, Explanatory Report (Strasbourg, Council of Europe, 7 July 1992), Provisional Edition. DELA (92) 2, p. 12.
It is the opportunity for the contracting States to 'select' (Article 2(2)), if at all, the paragraphs in Part III they want to be bound by, that I feel gives the Charter a 'Book Club'esque quality.
[11] See: H. Hannum (ed.). Documents on Autonomy and Minority Rights, Dordrecht, Martinus Nijhoff, 1993, pp. 86-101 at 87.
[12] Ibid, p. 88.
[13] European Charter for Regional or Minority Languages, Explanatory Report (Strasbourg, Council of Europe, 7 July 1992), Provisional Edition, DELA (92) 2, p. 12.

USEFUL DOCUMENTS
Although I would not claim that the following is an exhaustive list, I do think it provides a very useful start. These are, without question, the key documents.
(CSCE) Document of the Copenhagen Meeting of the Conference on the Human
Dimension (29 June 1990), International Legal Materials, 29 (1990) pp. 1305-1321. Report of the CSCE Meeting of Experts on National Minorities (19 July 1991),
International Legal Materials, 30 (1991) pp. 1692-1702. (CSCE) Concluding Document of the Helsinki Follow-Up Meeting (10 July 1992),
International Legal Materials, 31 (1992) pp. 1385-1420. (Council of Europe) European Charter for Regional or Minority Languages (2 October
1992), in H. Hannum (ed.), Documents on Autonomy and Minority Rights,
Dordrecht, Martinus Nijhoff, 1993, pp. 86-101. (United Nations) General Assembly Resolution and Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (18
December 1992), International Legal Materials, 32 (1993) pp. 911-916. (Council of Europe) Framework Convention for the Protection of National Minorities
(1 February 1995), International Legal Materials, 34 (1995) pp. 351-359.
Note: numerous books/articles contain the text of Article 27 of the International Covenant on Civil and Political Rights (16 December 1966). For convenience's sake, it can be found on p. 35 of Hannum's Documents on Autonomy and Minority Rights.

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