Protection Of Minority Rights Research Articles

Demanding Minority (Linguistic) Rights from the EU: Exploiting Existing Law

This article is intended to provide a contrast to the criticisms raised by the EU in relation to its lack of concrete protection of minority rights. It explores the potentials of the EU’s existing legal framework in this field. Although competence on linguistic diversity (and indeed other aspects of minority rights) remains firmly with the EU Member States, nonetheless there are a variety of ways in which the EU’s ever-expanding activities can affect those rights. This article takes account of both present and potential impacts of EU law on linguistic rights; the assumption being that the scope of legal provisions as they stand need to be understood thoroughly before one can move on to assessing in a more informed manner the necessity for reform and the content of that reform. This article views the EU’s performance as part of the wider international community and thus, for present purposes, compares the EU’s progress on minority linguistic rights, with that of the Council of Europe and the United Nations. This article does not, however, exclude the value of assessing the EU according to other benchmarks, such as national law, and thus recognizes its contribution constitutes only one angle of a much wider, valuable debate.

The U.S. Supreme Court and the judicial review of Congress: two hundred years in the exercise of the Court's most potent power

This book examines, from a behavioral perspective, the U.S. Supreme Court's exercise of the power of judicial review over Congress across two hundred years of the Court's history, testing the major competing theories in political science - the attitudinal model and the strategic approach - through systematic empirical analysis. Exploring the major trends in the Court's use of this power over time, the book examines a broad range of questions concerning the countermajoritarian nature of this power, and provides an analysis of each of the individual justices' behavior along several dimensions of the power, such as the use of judicial review to protect minority rights against majority intrusion. The book concludes that the Court has shown a high level of deference to Congress, with notable historic highs and lows, and generally that the exercise of the power has been less countermajoritarian than is usually assumed. Its analyses find the strongest level of support for the attitudinal approach to judicial decision making, but also concludes that strategic concerns cannot be dismissed, especially for the more recent Courts.

The responsiveness of state legislatures and their agenda concerning gay, lesbian, bisexual and transgender interests

Republicanism, as opposed to direct democracy, has been theorized to protect minority rights. Direct democracy with its majority rule is unlikely to serve the interests of minorities particularly if their interests are perceived to conflict with the majority's interests. However, Republican Institutions vary in features that affect their responsiveness to majoritarian preferences. This article examines whether specific legislative features associated with responsiveness (majoritarian participation, constituent ties and professionalism) affect the gay, lesbian, bisexual and transgender (GLBT) agenda in state legislatures. The findings suggest that the importance of these features is dependent on the ideological leanings of the state. The findings also suggest that some features expand both pro- and anti-GLBT agendas, and the effects of professionalism are ambiguous.

The Making of Minority Rights Norms in the Context of EU Enlargement: The Czech Republic and the Roma

The end of the Cold War, the twin processes of democratisation and European Union enlargement in the Central and East European states, and the desire to prevent inter-ethnic tensions in the region have created new incentives and resources for the promotion and protection of minority rights. Engaging the constructivist approach within international relations theory, this article seeks to understand the domestic impact of international minority rights norms and the actors who promote them by applying a current ‘spiral model’ of human rights norm socialisation concerning the case of the Roma minority in the Czech Republic. By tracing the mechanisms of the norm socialisation process, this article illustrates how minority policy and the domestic salience of minority rights norms regarding the Roma steadily progressed between 1990 and EU accession in 2004. Initial changes in minority policy were made for instrumental reasons, but as the Czech Republic became increasingly enmeshed in the transnational minority rights network, further changes were also made for reasons of belief and identity. Both rationalist and constructivist approaches taken together are best able to explain the outcomes.

Rethinking the boundaries of democratic secession: Liberalism, nationalism, and the right of minorities to self-determination

Whereas secession has been dealt with extensively in international law, in connection with the creation and recognition of states, it has received little attention as a possible tool in the constitutional protection of minority rights. This paper examines the more frequent uses and invocations of secession and assesses their potential adaptability as means of promoting minority group rights. It argues that international law and the international community have never provided coherent guidance for responding to nationalistic minority aspirations or, specifi cally, to secessionist challenges. At the same time, constitutional models regarding the management of national diversity have also failed to reconcile liberal democracy and nationalism. From a substantive point of view, there is probably no solution to such diffi culties. Neither available model of “ constitutional coexistence ” nor of secession is likely, ultimately, to be satisfactory. Nonetheless, the adoption of an explicit constitutional procedural approach to secession provides the best means of averting the worst dangers and excesses.

Imagining the Community: Perspectives on Ukraine's Ethno-cultural Diversity

The conventional approach to describing ethno-cultural relations in a particular nation-state is in terms of the majority/minority dichotomy, that is, a representation of a society as consisting of the core nation and a minority or number of minorities alongside it. The minorities are usually of different ethnic origin, possess distinct linguistic-cultural characteristics and tend to be represented as groups that, owing to their minority status, are discriminated against. This approach has been adopted in Ukraine where in official discourse and state documents the core nation co-exists with national minorities. Ethno-cultural diversity is addressed by policy makers and the academic community, most often in terms of “national minorities,” “protection of minority rights,” “provision of schooling for minorities” and so forth. Ukrainian scholars and policy makers tend to use the same concepts as their counterparts in the West, albeit often modifying them to Ukrainian circumstances. However, as will be argued, this dichotomous treatment of the titular majority and the minority is ill-suited to Ukraine's circumstances as even the very concept of “minority” is unclear owing to the blurred sense of identity amongst many Ukrainians and Russians.

India’s Improbable Success

India’s Improbable Success Sumit Ganguly (bio) India After Gandhi: The History of the World’s Largest Democracy. By Ramachandra Guha. London: Macmillan, 2007. 893 pp. The Clash Within: Democracy, Religious Violence India’s Future. By Martha C. Nussbaum. Cambridge, Mass.: Belknap, 2007. 403 pp. A decade ago, the eminent Indian sociologist M.N. Srinivas called Indian democracy "a secular miracle of the modern world and a model for other developing countries," but went on to worry that the quality of this democracy was "poor." Six decades after independence, Indian democracy is clearly a success, but just as clearly also still a work in progress. India has long defied the proposition—held with near-canonical certitude by those who make their living studying comparative politics—that democratic consolidation simply does not happen in countries where annual per-capita income is less than US$1,000 a year (according to India's central bank, in 2006 to 2007 the annual per-capita income in the country was only $797). India has long been host to free and fair elections leading to peaceful changeovers of power; has a vibrant, spirited press and independent judiciary; has spawned political parties all over the ideological spectrum; and has been defended by a military establishment that has remained firmly under civilian control. Apart from a 21-month interlude of authoritarian "emergency" rule from 1975 to 1977 under a civilian prime minister, India has never formally suspended democratic procedures. Alongside these attributes of a thriving democracy, however, are other and less salubrious features. The Indian state has frequently, especially in the last two decades, failed to serve as a neutral arbiter of [End Page 170] Hindu-Muslim discord. On one occasion in 2002, it became a blatantly partisan actor, allowing Hindu zealots to slaughter innocent Muslims in the western state of Gujarat. The failure to uphold and protect minority rights is not the only shortcoming of India's democracy. A host of other ills plague the nation. Despite nearly sixty years of formal commitment to social equality and justice, India's lower castes still face routine discrimination and sometimes vicious prejudice in both public and private institutions. Honest and upright public figures are dismayingly rare (vast numbers of elected officials have faced criminal indictments); bureaucratic procedures are often rigid and slow; and many government programs are ineffective. Does this legion of woes mean that India's democracy, however successful it may look on the surface, is rotting from within and that all is lost? Two important, carefully crafted, cogently argued, and judiciously reasoned books suggest that the answer is no. Ramachandra Guha's massive narrative account of history since Mahatma Gandhi (d. 1949) is nothing short of magisterial. No other historical work since independence has even tried to tackle this mammoth subject. This is a work of monumental scholarship, lucid prose, and tempered judgments. Guha's central argument is that India's nationalist leaders—in the face of stubborn colonialist opposition—managed to adopt certain key Western liberal principles of representative government from their British colonial masters as the British Raj waned. Many top Britons, most notable among them that irascible imperialist Winston Churchill, publicly questioned Indians' ability to fashion a viable polity, let alone nurture democratic and representative institutions. Yet despite the trauma of violent partition (one million killed, ten million displaced) amid which independence came in 1947, these same Indian leaders managed to build the liberal-democratic institutions that have formed the basis for Indian political life ever since. Guha thoroughly documents and engagingly recounts this tale, surely one of the most extraordinary in the entire history of human governance. Within three years of independence, India's nationalist leaders had endowed their country with a basic law that to this day provides the framework for a robust parliamentary democracy. The Indian Constitution of 1950 guarantees the freedoms of religion and the press, and provides for a federal structure of governance, an independent judiciary, universal suffrage, and free and fair elections. Just two years after adopting this document, India embarked on the grand spectacle of a national election in which there were as many as 176 million eligible voters, the vast majority of whom were poor...

Intolerance Toward Gays and Lesbians in Poland

The protection of rights of freedom of speech and assembly for gays and lesbians in Poland has come under greater international scrutiny because of the mismanagement of peaceful demonstrations throughout Poland in 2005. An overview and context of the political, economic, and social transformation of Poland in the 1990s shows a flourish of activity among gays and lesbians as the economic and political spheres open, as well as weaker law enforcement during the rapid change to capitalism and democracy. Although society has opened dramatically and tolerance has grown recently, the concept of protecting minority rights for gays and lesbians in Poland continues to be weak in public opinion, laws, and the top sources of opinion.

Toward Participatory Equality: Protecting Minority Rights under International Law

The principal claim made by this Article is that the realization of full and effective equality for all citizens and residents within a multi-ethnic state requires “participatory equality.” Creating a system of participatory equality entails, for most states, making drastic and fundamental changes to the state's legal system, public spaces, social and economic structures, and funding and space provided for ethnic, cultural, and religious institutions; however, this type of transformation is the only means of respecting human dignity and ensuring peace. This claim is first made as a normative moral claim based on principles of justice and dignity; as this Paper will show, a broad and effective interpretation of international law concerning minority rights supports the same normative claim.This Article first reviews existing international law and other legal frameworks regarding national minority rights, including discussions of the specific case of indigenous peoples'rights and the intersection between individual and collective rights. The bulk of the Paper proposes a universal model, building upon existing legal frameworks, for building participatory equality for all members of a society, which requires the full and equal sharing of its resources in three primary domains: the public, the internal, and the historical domain. The need for such a model is all the more so for indigenous and minority groups of substantial size living under systems that cater to a majority based on ethnicity, religion, race or other dominant traits. Only when a nation's legal system secures the rights of all citizens to share equally in all of these domains can that nation fulfill the purpose of international minority rights legal bodies and deliver substantive equality to majority and minority concerns, both in law and practice.

Globalising liberalism or multiculturalism? The Durban agenda and the role of local human rights education in the implementation of global norms

This article critically evaluates recent attempts to globalise norms on improving policy responses to the increasing existence of multicultural societies by the United Nations conference widely referred to as the Durban agenda. The article, first, sets out the context for and the content of the Durban agenda. It then discusses whether a liberal model of minority rights based on a principle of toleration should be the basis for global norms or whether a model of multiculturalism based on the idea of recognition should form the starting‐point. After reflecting on the drawbacks of either model, a defence of a balance between liberal minority rights and multicultural group rights is developed. The argument acknowledges the need to reform individualist liberalism, while warning of the dangers of human rights violations condoned in the extreme versions of the multicultural model. The process of globalising norms governing multiculturalism risks failure if implemented top‐down only. The second question is therefore what the role should be for local human rights organisations in implementing these global norms. The article shows the high importance of local human rights education by reference to a recent project in post‐communist Europe. The assessment of current campaigns in Bosnia‐Herzegovina, Croatia, Serbia‐Montenegro and Bulgaria shows that neither the implementation of the Durban agenda nor the protection of minority rights emphasised in the process of enlargement of the European Union can create sustainable change without engaging with teachers, community leaders and young people in non‐formal education. Moreover, these examples also illustrate the importance of a sensitive balance between liberalism and multiculturalism, strengthening the argument that global norms ought to include both concerns.

EU Influence on the Citizenship Policies of the Candidate Countries: The Case of the Roma Exclusion in the Czech Republic

Although the persons of Roma ethnicity who were deprived of the Czech citizenship upon the split of the Czech and Slovak Federation by controversial law No. 40/1993 were not in the end left stateless, the Commission can be reproached for not using the influential position it enjoyed in the course of the pre-accession process preceding the fifth enlargement of the European Union (1 May 2004) in order to insist that the Czech Republic alter its ethnically-biased citizenship policy. Although some steps in this direction were taken by the Commission, they fell short of addressing the whole range of discriminatory provisions of this Czech legislation preventing the former Czecho-Slovak citizens of Roma ethnicity from becoming citizens of the Czech Republic. In Addition to the overall ineffectiveness of its pre-accession promotion of equal access to Czech citizenship of all permanent residents of the Czech Republic their ethnic origin notwithstanding, the Commission made a controversial decision to treat the exclusion from citizenship which was de facto based on ethnicity as a ‘civil and political’ rights issue, rather than a minority rights issue. This dubious decision, allowed the Commission to distinguish its pre-accession involvement in the reforms in the Czech Republic on the one hand, and in Latvia and Estonia on the other, where the exclusion of ethnic minorities from the access to citizenship was regarded as a key issue pertaining to the protection of minority rights. The ill-articulated position of the Commission is due, this paper suggests, mainly to the limitations on the EU’s involvement in the Member States’ citizenship domain and de facto comes down to the application of different pre-accession standards to different minority groups in the candidate countries. To ensure genuine protection of ethnic minorities in the Member States-to-be, the EU has to alter its approach to the issues of ethnicity-based exclusion from citizenship in the course of the future expansions of the Union.

Reassessing Madison's Diversity Hypothesis: The Case of Same-Sex Marriage

Scholars have long suggested that population diversity should serve as a check on majority tyranny, but empirical evidence for this diversity hypothesis is inconclusive. This essay suggests that mixed findings arise because of the way in which scholars have translated Madisonian writings into statistical tests. It argues that the Federalist papers actually suggest an interactive relationship, where diversity moderates the effectiveness of representative institutions in protecting minority rights, rather than a direct relationship between population homogeneity and repression. The article tests for this moderating effect via a mixed methods approach, which includes a quantitative analysis of the passage of same-sex marriage bans in the American states, as well as a qualitative examination of legislative activity in four states.

International Protection of Minority Rights

The twentieth century began, well after the First World War, to focus on the rights of minorities and their linkages with general peace and welfare. The record of the League of Nations, however, was not very encouraging. This is perhaps why, in the post-Second World War period, the international community adopted a more cautious approach to minority rights than before. This is manifested in the reluctance to agree on a definition of minorities, and also a clear preference for perceiving minority rights as being inseparable from human rights. The growing body of international legal instruments for the protection of human rights has, nevertheless, a discernible bearing on minority rights. The international covenants on human rights best exemplify this. Further, the monitoring mechanisms of the UN have also contributed to minority rights through progressive interpretations and rulings. Alongside, regional initiatives, as in Europe, have also helped the cause of minority rights after the end of the Cold War. Shortcomings in the international protection of minority rights are due to the apprehensions of state actors. They fear the abuse of the right to self-determination and the rights of indigenous peoples—as part of minority/human rights—will endanger the existing socio-political order.

Making Democracy Under Communist and European Rule

Europe Undivided: Democracy, Leverage, and Integration After Communism. By Milada Anna Vachudova. Oxford: Oxford University Press, 2005. 360 pp., $95.00 cloth (ISBN: 0-19-924118-X), $29.95 paper (ISBN: 0-19-924119-8). At the end of the Cold War, Francis Fukuyama (1989) captured the watershed change in international politics with the metaphor of the “end of history,” by which he meant “the universalization of Western liberal democracy as the final form of human government” (Fukuyama 1989:3). Despite Fukuyama's confident claim, the process of convergence toward liberal democracy has been—and still is—far from being straightforward for those countries that emerged from communist rule. Milada Anna Vachudova offers an indepth analysis of the process toward liberal democracy in Eastern and Central Europe. Europe Undivided , indeed, traces the political and economic trajectories of six East–Central European countries, recording their successes and failures with regard to a number of issues—ranging from the establishment of open democratic institutions to the protection of minority rights—within a 15-year time horizon. The aim is to explain patterns of variation or convergence across the six case studies, which are grouped in countries that embarked on either a “liberal” (Poland, Hungary, and the Czech Republic) or an “illiberal” (Romania, Bulgaria, and Slovakia) “pattern of political change” after the collapse of communist rule. In order to account for the variety of political and economic outcomes that have occurred since 1989, Vachudova builds a two-level model combining domestic factors (the …

National Constitutional Concepts in the New Constitution for Europe

Precedents in European Union member states for the negative referenda in France and The Netherlands on the Constitution for Europe. Evolution of the investiture of the Commission: parallel with France under Third and Fourth Republic. Double headed executive (President of the European Council and President of the Commission) and ‘double hats’ (Union Minister for Foreign Affairs) in line of the European constitutional tradition. The unborn ‘Legislative Council’ and its Austrian and German counterparts. The aborted ‘Congress of the Peoples of Europe’: forum for ‘State of the Union’ speech, not a electoral body. Protection of minority rights in the Constitution for Europe due to insistence of the Hungarian government; foreign to the dominant Western constitutional concepts. Representative democracy and the formal concept of law: European Laws and Framework Laws as ‘Acts of Parliament’. Strict limits on the possibility to delegate legislation: German, Italian, French roots. European Laws and Regulations: unachieved hierarchy and French precedent. Judiciary as a relative minor branch of government as in the British and French traditions. No German Verfassungsbeschwerde or Spanish recurso de amparo, but probably more annulment procedures and preliminary questions on legality and constitutionality than before. Parallels with German federal concepts: Union Law über Alles; no rigid Kompetenzkatolog and joint competences; distribution of competences not limited to law-making. More than lip service to decentralisation. Constitutional ping-pong and intertwined constitutionalism: territories d'outre- mer and outermost regions.

Exploring the Politics of Identity and Ethnicity in State Reconstruction in Cameroon

The Cameroon nation thrives on a dicey patchwork of national unity and integration that have become nebulous concepts. Though traceable to the Ahidjo era and adopted by the Biya regime, ethnic jingoism became rife with the re-introduction of multiparty politics in the 1990s. Evidently, the political and economic equation is marked by divide et impera policies leading to the proliferation and fragmentation of stark ethno-regional cleavages. This article recasts the debates on ethnic hegemony with the political elite occupying centre stage of the discourses and ideologies on regionalism, orchestrated by the phenomenal search for political inclusion. In the process, the state machinery is rendered fluid with ethnocentrism, ethno linguistic regionalism; separatism and the bifurcation of regional groupings and minorities as the order of the day. It is argued that the state reconstruction roadmap hinges, inter alia, on devolving greater administrative power to provinces or regions, protecting minority rights; enhancing citizen participation; promoting meritocracy, lessening bureaucratization and fighting endemic corruption; fostering the greater participation of civil society in nation building and the democratization process, prima facie for toning down the negative fall-outs of the politics of ethnic divisionism, that has engrossed the polity.

‘We are not asking you to hug each other, but we ask you to co-exist’:1 the Kosovo assembly and the politics of co-existence

This article examines the role of parliament in the promotion of co-existence in post-war Kosovo. The vast majority of Kosovans are ethnic Albanians who aspire to independence; Serbs constitute the largest minority and are opposed to independence so Kosovo's politics are deeply divided. It considers Kosovo's social divisions, the political consequences thereof and the institutional measures put in place by the United Nations to try and moderate the influence of the divisions in the legislative process. The principles and objectives underpinning the Assembly, including those derived from Yugoslav constitutional history, are explored via the problem of ‘constitutional nationalism’ and its consequences. The Assembly has a range of complex procedures that are designed to promote the protection of minority rights and encourage power-sharing between the various communities. The article examines their operation and effectiveness in a political context of deep mistrust and, as the events of March 2004 demonstrated, continued violence.

Collective Rights and Reconciliation in the Constitutional Process: The Case of Israel

Mr. Altschuler was a secular Jew who lived in Tel Aviv during the British Mandate. The Tel Aviv Municipality fined him for opening his restaurant on the Sabbath. He appealed to the Mandatory court against the fine and asked for the cancellation of the Tel Aviv Ordinance relating to working on the Sabbath. Following his action, Tel Aviv officials, most of whom were secular, raised an outcry against Mr. Altschuler, claiming that he had harmed the cultural autonomy of Tel Aviv and the national uniqueness of the “Yishuv,” the pre-state Jewish settlement. The officials’ response was similar to the political behavior of religious, national, and cultural minorities who seek to emphasize their difference and preserve their uniqueness in order to ensure recognition of their collective rights. Indeed, in pursuit of the protection of minority rights of this kind, many democratic states have recognized the right of these minorities to manage their internal cultural affairs without interference from the courts, even where their cultural autonomy infringes individual rights.

A Bargaining Theory of Minority Demands: Explaining the Dog that Did not Bite in 1990s Yugoslavia

This article develops a general theory of bargaining between a minority, its host state, and outside lobby actor to explain why minorities shift their demands from affirmative action to cultural autonomy to secessionism and back, often in the absence of clear economic or security incentives. This paper uses a simple game tree model to show that if a minority believes that it enjoys significant support from a powerful national homeland or other external actor, it radicalized its demands against the host state, even if the center has credibly committed to protect minority rights . Conversely, if a minority believes that it enjoys no external support, then it will accommodate the host state, even in the presence of significant majority repression . As a general theory of claim-making, this model challenges structural theories of demands that rely on static economic differences or historical grievances to explain claim-making. It also challenges security dilemma arguments that hold that minority radicalization is mainly a function of ethnic fears. The model's hypotheses are tested using longitudinal analysis of Hungarians in Vojvodina during the 1990s, as the Yugoslav dog that “barked but did not bite.” Careful examination of claim-making in this case demonstrates the superior explanatory power of the ethnic bargaining model as compared with dominant theories of minority mobilization in the literature.

THE STRANGE TRIUMPH OF HUMAN RIGHTS, 1933–1950

This article explores the origins of the UN's commitment to human rights and links this to the wartime decision to abandon the interwar system of an international regime for the protection of minority rights. After 1918, the League of Nations developed a comprehensive machinery for guaranteeing the national minorities of eastern Europe. But by 1940 the League's policies were widely regarded as a failure and the coalition of forces which had supported them after the First World War had disintegrated. German abuse of the system after 1933, and the Third Reich's use of ethnic German groups as fifth columns to undermine the Versailles settlement were cited by east European politicians as sufficient justification for a new approach which would combine mass expulsion, on the one hand, with a new international doctrine of individual human rights on the other. The Great Powers supported this because they thereby escaped the specific commitments which the previous arrangements had imposed on them, and which Russian control over post-war eastern Europe rendered no longer practicable. But they also supported it because the new rights regime had no binding legal force. In respect, therefore, of the degree to which the principle of absolute state sovereignty was threatened by these arrangements, the rights regime of the new UN represented a considerable weakening of international will compared with the interwar League. But acquiescing in a weaker international organization was probably the price necessary for US and Soviet participation.