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.
Thornberry 1991 undoubtedly provides an important basis or starting point, despite its age. Thio 2005 may not cover new ground or present new or unusual insights, but it offers a meticulous and detailed description and analysis of the distinctive important phases in the history of minority protection in the 20th century. The fact that it also includes regional perspectives adds to its value. Pentassuglia 2009 nicely fits into the debates about the relative importance of general human rights, on the one hand, and minority specific rights, on the other, as it aptly shows how the supervisory bodies of general human rights conventions, both at the United Nations and at the regional level, increasingly adopt minority-sensitive interpretations of these non-minority-specific rights. The edited volumes Weller 2007 and Henrard and Dunbar 2008 both provide an analysis of the supervisory practice of general human rights and minority-specific rights. Weller 2007 is structured on a thematic basis, while Henrard and Dunbar 2008 is structured by international instrument. The added value of the latter is that it allows a more in-depth analysis of each instrument, while the use of a common template of themes by the authors ensures that particular development lines across these instruments are highlighted. The Council of Europe deserves special attention in terms of minority protection, as it is the only organization with a legally binding instrument dedicated to minorities as well as another legally binding instrument with measures aimed at minority languages. Finally, it is often claimed that minority problems can only be properly assessed and addressed in an interdisciplinary fashion. Hence, it seems appropriate to include a volume that strives to approach minority issues in such a way. The edited volume May, et al. 2004 does exactly that, and it shows how many debates within social and political theory concern minorities and minority protection. Central themes that are discussed in this volume include ethnicity, nationalism, self-determination, and policies of recognition.
Henrard, Kristin, and Robert Dunbar, eds. Synergies in Minority Protection: European and International Law Perspectives. Cambridge, UK: Cambridge University Press, 2008.
In addition to providing an up-to-date account of the relevant standards and the developments in supervisory practice, this collection breaks new ground by seeking to identify the extent to which some integration and coherence (synergy) is emerging as a result of the work of the treaty-monitoring bodies and other international institutions. The authors are leading experts on the respective instruments and institutions.
May, Stephen, Tariq Modood, and Judith Squires, eds. Ethnicity, Nationalism and Minority Rights. Cambridge, UK: Cambridge University Press, 2004.
This interdisciplinary collection addresses the position of minorities in democratic societies, with a particular focus on minority rights and recognition. Topics addressed include the constructed nature of ethnicity, its relation to class and to “new racism,” different forms of nationalism, self-determination and indigenous politics, the politics of recognition versus the politics of redistribution, and the reemergence of cosmopolitanism.
Pentassuglia, Gaetano. Minority Groups and Judicial Discourse in International Law: A Comparative Perspective. Dordrecht, The Netherlands: Martinus Nijhoff, 2009.
Set against previous stages of minority protection, this book discusses the current role of (quasi)judicial organs, particularly in the Americas, Africa, and Europe, in articulating and accommodating the interests and needs of minority groups in terms of general human rights. It exposes the expansion of procedural avenues within litigation (labeled by the author as recognition, elaboration, mediation, and access to justice).
Thio, Li-ann. Managing Babel: The International Legal Protection of Minorities in the Twentieth Century. Dordrecht, The Netherlands: Martinus Nijhoff, 2005.
Offers a comprehensive overview and assessment of minority protection in the 20th century. The League of Nations period is thoroughly discussed, including the institutional framework and its actual operation. In addition to the UN system, regional perspectives are also included. For Europe the focus is on the minority-specific instruments, while for the Americas and Africa the general human rights conventions are analyzed.
Thornberry, Patrick. International Law and the Rights of Minorities. Oxford: Oxford University Press, 1991.
Although it is an “older” book, it still provides an important starting point for a legal analysis of minority protection. Following a discussion of the concept and history of minority protection, Thornberry’s analysis is structured along three angles: the right to existence, the right to identity, and the right not to be discriminated against. The rights of indigenous peoples are also analyzed.
Weller, Marc, ed. Universal Minority Rights: A Commentary on the Jurisprudence of the International Courts and Treaty Bodies. Oxford: Oxford University Press, 2007.
This commentary is arranged around ten thematic areas of investigation, including religious rights, education, cultural rights, political participation, and equality. For each of these themes a full overview is provided of the relevant standards, not only at the UN level but also at the regional level, against the background of the main issues of relevance to minorities. Additionally, the most prominent (quasi)jurisprudence is discussed and evaluated.
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