Minority Protection Flashcards
What is a fundamental issue with minority rights?
The lack of a clear definition of what a minority is
- by recognising what a minority is they will have to give extra rights so they are trying to minimise their obligations
But what is a positive from the lack of definition
- minority groups change over time so it can allow for new minorities to fit under the category and adapt
- sometimes when you point a group out as being a minority you are just highlighting that they are different as opposed to letting them decide whether they want to be a minority or integrated into the community
We need some sort of objective criteria to give some human rights protection
= capatori definition 1981 (starting basis)
- A group
- Numerically inferior to the rest of the population of the state
- In a non-dominant position
- Whose members being nationals of the state
- possess ethnic, religious or linguistic characteristics differing from those of the rest of the population
- and show even if only implicitly a sense of solidarity, directed towards preserving their: culture, traditions, religion or language
Numerically inferior
What happens in South Africa for example where black people are inferior? Not necessarily numerically
Non-dominant position
How do we know whether the group is in a non-dominant position?
They could be politically non dominant but economically dominant and vice Verda
Nationals of the state
Discredited now = whilst states still continue to defend this criteria we don’t talk about minorities as having to be nationals of the state
- for example how can the minorities invoke their access to rights under international law to fund education or houses without a passport
- but then can we really expect people who have been in the country for 5 minutes to get funding for education or housing ?
What are minorities then?
Migrants who come to the territory and live there usually for generations and are not foreigners anymore
- part of the society and contribute towards it
UN HRC general comment 23
It’s not relevant to determine the degree of permanence that “exists” implies
- just like they need not be nationals or citizens, need not be permanent residents
- migrant workers or even visitors to the state party constituting such minorities are entitled not to be denied the exercise of the rights
State has the positive obligation to do what?
Ensure those members of a minority group are included in the vision of society
What are the rights of minorities
Article 27 ICCPR
- states where ethnic, linguistic or religious minorities exist
- members alongside others in their group shall not be denied the right
- to enjoy their own culture
- to profess and practice their own religion
- or to use their own language
Problem with the ICCPR art 27
Negative protection
- and is a collective right
Soft law - UN declaration on the rights of Persons belonging to National or Ethnic, Reigious and Linguistic Minorities
Preamble: minorities contribute to the political stability of the state’s
Article 2: right to participate effectively in cultural, religious, social, economic and public life and in matters that effect them
Art 3: no discrimination or disadvantage for being part of the minority
Art 4: states shall take measures “when required” for the protection of minority rights, to create favourable conditions for them to be able to exercise this right”
- right to learn their mothers tongue wherever possible
- education that encourages the knowledge, the history, traditions, language and culture
Example of positive protection
Macphareson report - based on the Stephen Lawrence case - institutional racism and having people from different cultures on the police force as a positive measure
HRC general comment 23
Right to self determination - article 1 of the ICCPR
Encourages and protects positive measures alongside ICERD general
Comment number 32 (2009)
Sandra Lovelace v Canada
- SL was maliseet Indian in Tobique reservation lived with her parents until she married a non-Indian man
- marriage ended: went to live back with her parents
- couldn’t purchase home on the reserve as council reserved houses for members of the group
- Canadian Indian act states that a woman married to a non-Indian man loses her Indian status which also means lack of access to federal programs for Indians in education, housing and social assistance as well as right to own home on reserve,
- to borrow funds from Band council, to traditional hunting and fishing rights and cultural benefits from living with friends and family on the reserve
