Kristin Henrard

in International Law

ISBN: 9780199796953
Published online March 2012 | | DOI:

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Although there is still no generally agreed-upon definition of the concept “minority,” it has become clear that most indigenous peoples also qualify as minorities (while having some extra characteristics). Immigrant minorities are increasingly accepted as new minorities, while there are still states and academics that do not fully embrace this understanding. In essence, minority protection is about the accommodation of population diversity, which is less sensitive for states that tend to relate minorities to irredentist movements. The foundational principles of minority protection are related to its underlying justifications: the right to identity and substantive equality. A central debate concerns the relationship between general fundamental rights (not only civil and political but also socioeconomic and cultural rights) and minority-specific rights. Throughout this article it is emphasized that all fundamental rights are just as much determined by the interpretation of the standards as by the standards themselves, including the clauses on “legitimate” limitations. It is exactly the interpretation of general and minority-specific rights that determines their relative weight for an adequate minority protection in terms of the right to identity and substantive equality. Hence, a great deal of attention is given to the supervisory practice. Furthermore, the specificities of monitoring systems of minority-specific rights are highlighted in a separate section. This article combines a thematic focus with a more organizational one for two reasons: accessibility of information in both respects (the use of cross-references remedies the imperfections in terms of a thematic approach), and the fact that the minority-specific rights are only developed at the level of the United Nations, the Council of Europe, and the Organization for Security and Co-operation in Europe. The African and Inter-American systems confirm how the interpretation of general human rights can provide a meaningful protection to minorities, including and specifically indigenous peoples. The thematic parts focusing on the right to identity are structured by identity characteristics, while the “equality” parts highlight that the prohibition of discrimination constitutes one of the pillars of minority protection and is increasingly opening toward substantive equality. Because several philosophical debates are closely intertwined with ongoing debates concerning minorities and their (collective) rights, reference is also made to multiculturalism and communitarianism. In the final sections, several themes are referenced with a special connection to minorities: diversity management, integration, the prevention of ethnic conflict, self-determination (autonomy), and the World Bank’s policies on indigenous peoples. Special attention is given to Roma, the pan-European and severely disadvantaged minority.

Article.  32195 words. 

Subjects: International Law ; International Courts and Tribunals ; Private International Law and Conflict of Laws ; Public International Law

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