Protection Of Minority Rights Research Articles

Religious Freedom and Majority Rule: Marsilius of Padua “on” Abdullahi Ahmed an-Na‘im and the “Secular” Islamic State

AbstractThis article discusses Abdullahi Ahmed an-Na‘im's Islam and the Secular State from the perspective of Marsilius of Padua's political theory. Both authors share similar concepts of the relationship between religion, state policy, and the state, and allow for the integration of religious doctrines into state law. Nonetheless, the Marsilian conception provides stronger protection of unbelievers' and religious dissenters' civic rights. In the broader discourse on political theory of rights, Marsilius argues in favors of individual rights and a protection of minority rights, while an-Na‘im's theory of Shari‘a reform suggests a preference for a people's self-determination.

Dispersed Constituency Democracy

In multiethnic and multi-religious democracies, the chronic danger is that candidates will engage in “identity politics,” appealing to one locally preponderant ethnic group against other groups. The usual formulas for composing multiethnic democracies—ethnic federalism and/or proportional representation—often exacerbate the problem, ethnicizing political campaigns and carving up the national legislature into ethnic blocs, each beholden only to its own group. An alternative approach—what I call “dispersed constituency democracy”—is to match each legislative seat with a constituency that reflects the overall ethnic composition of the society in question, so as to encourage candidates to reach across ethnic divisions rather than play to locally preponderant ones. I propose a simple way to do this, and explore the likely consequences for national electoral campaigns and legislative dynamics over a range of demographic circumstances. I also consider supplemental devices for protecting minority rights that would be made possible by the proposed constituency system.

Towards cultural citizenship? Cultural rights and cultural policy in Taiwan

This article reviews existing literature on the construction of cultural citizenship, and argues that cultural citizenship expands the concept of ‘citizenship’, promotes citizens' consciousness and ensures the protection of minority rights. Since the 1990s, three cultural policies have arisen related to cultural citizenship in Taiwan: ‘Community Renaissance’, ‘Multicultural Policy’ and the ‘Announcement of Cultural Citizenship’. ‘Cultural citizenship’ has expanded the concept of citizenship in two ways. First, it has led to the consideration of the minority rights of Taiwanese indigenous peoples, the Hakkas, foreign brides and migrant workers in ‘citizenship’; and second, it has placed emphasis on ‘cultural rights’ in addition to civil rights, political rights and social rights. This article begins by exploring what approach to cultural citizenship is used in cultural policy, and what approach is suitable for practising cultural citizenship in Taiwan. I argue that minority groups practise their cultural rights with the public participation of Community Renaissance. Taiwan's case bears out Stevenson's view: a society of actively engaged citizens requires both the protection offered by rights and opportunities to participate. Finally, this article shows the challenges and contradictions of cultural citizenship in Taiwan: the loss of autonomy and the continuation of cultural inequality.

Rendering (Once More) the Financial Assistance Regime More Flexible

Directive 2006/68/EC eliminated the ban on financial assistance imposed by Article 23 of Directive 77/91/EEC. The new formulation of article 23 allows Member States the possibility of authorising public limited liability companies to undertake financial assistance transactions provided they give adequate safeguards to the (minority) shareholders and to third parties. Various Member States have not exercised this possibility and prevalent doctrine has given a negative evaluation of the text of article 23 of the second Directive. The conditions set forth in article 23 aimed at protecting minority rights and rights of creditors have been considered to be excessively rigid and constituting an obstacle to the effective simplification of the regulations governing financial assistance. This article suggests possible modifications to article 23 of the second Directive which could render financial assistance regime more flexible without prejudicing the interests of shareholders and creditors. This compromise solution ensures an adequate balance between flexibility and certainty and appears preferable to the proposed elimination of financial assistance regulation.

Progress and Caution: Indonesia's Democracy

Indonesians have political power, freedom of voice, and an array of civil and political rights that fifteen years ago would have been unimaginable. It is undeniable how much positive change has occurred in such a short amount of time. Indonesia's experience, like other countries in Asia, serves as an example of both the successes in democratization and the difficulties and challenges in consolidating democracy. This article looks at the status of democracy in Indonesia today. It asks how well democracy has been consolidated in Indonesia and what the continued challenges are. It focuses specifically on four significant challenges: corruption, military abuses, protection of minority rights, and Islamic radicalism.

Protecting Minority Rights through an Individual Rights Mechanism: The Strasbourg Court and some Significant Developments to June 2012

Book synopsis: The European Yearbook of Minority Issues provides a critical and timely review of contemporary developments in minority-majority relations in Europe. It combines analysis, commentary and documentation in relation to conflict management, international legal developments and domestic legislation affecting minorities in Europe. Part I contains scholarly articles and, in the 2011 volume, features a special focus section on Roma. Part II contains reports on national and international developments. Apart from providing a unique annual overview of minority issues for both scholars and practitioners in this field, the Yearbook is an indispensable reference tool for libraries, research institutes as well as governments and international organisations.

Expropriation of Minority Investors in Chinese Listed Firms: The Role of Internal and External Corporate Governance Mechanisms

ABSTRACTManuscript Type: EmpiricalResearch Question/Issue: We investigate how ownership structure, board characteristics, and regional differences in law enforcement and stock market development affect the conflict of interest between majority and minority investors in Chinese listed firms. For this purpose, we study related‐party transactions as well as labor redundancy, and classify firms as either state‐ or private‐controlled.Research Findings/Insights: We find that related‐party transactions grow more extensive as the wedge between the controlling shareholder's control rights and cash flow rights increases. Related‐party transactions also rise with voting rights held by the government in state‐controlled firms. Next, the state as controlling shareholder exacerbates labor redundancy. The control rights of the second to tenth largest investors can offset expropriation. Regarding board characteristics, we find that a larger fraction of directors affiliated with the dominant owner enlarges related‐party transactions, while large boards also increase labor redundancy in state‐controlled firms. We find only weak evidence that higher‐quality institutions help to restrain expropriation of minority investors.Theoretical/Academic Implications: In Chinese listed firms, a major conflict of interest arises between majority and minority investors. Also, the state may exercise its control rights to achieve imperative social and political objectives, to the detriment of external investors. Yet, as the stock market valuation and financial performance of state‐controlled firms rise with the fraction of shares held by the state, future research should better delineate the conditions under which state ownership is either detrimental or beneficial to firms. Next, the results indicate that governance mechanisms suggested by conventional agency theory are deficient in Chinese listed firms. Future research could therefore establish more clearly when internal and external governance mechanisms are likely to work, thereby also taking into account the identity of the controlling shareholder.Practitioner/Policy Implications: Investors should be aware that expropriation in Chinese listed firms has specific implications when the state is the controlling owner. Also, at this stage of development, independent directors and external governance mechanisms can hardly protect the best interests of minority investors. Rather, expropriation is counterbalanced when voting rights are concentrated in the hands of other large block holders. Policy makers should work on ownership restructuring, board independence, and institutional quality to better protect minority rights in Chinese listed firms.

The Northern Ireland Peace Agreement: Evolving the Principle of Self-Determination

Central to this article is the evolution of the nature of the principle of self-determination. The main focus will be on the examination of a recent instance of state practice — the Northern Ireland Peace Agreement. In particular, the way in which the Northern Ireland Peace Agreement has given effect to the primary elements of self-determination, including democratic self-government, the protection of human rights, and the protection of minority rights will be discussed.

Protection of Minority Rights in the EU System

Minority rights protection system was developed as a reaction to the persecution of this group throughout history and can be revealed as a number of factors, legislations and institutional mechanisms that are interdependent and constantly evolving. In other words, 'creating the international system of protection of minority rights is an expression of the will to shield trends of persecution or repression of national minorities'. Therefore, national minorities are a special group requiring particular protection measures which have been taken in the activity of international organizations. International organizations have demonstrated their important role in the system of international relations especially in economic, social, and the protection of human rights field. They are not only instruments of cooperation between states, but also tools used to raise awareness on the realities of a globalizing world. International organizations have an internal legal personality, but also an international one, and their capacity as subjects of public international law is recognized by the doctrine and by international treaties.

The Failures of Liberal Constitutionalism in Israel

Notions of equality have long posed a normative problem for liberal theory. What stance should the liberal take toward the failure of the political system to remedy the seemingly inevitable inequitable distribution of socioeconomic wealth and resources? This question squarely highlights one of the ironic paradoxes associated with the confluence of liberalism and constitutionalism, because both are simultaneously necessary and incompatible with each other for at least one germane reason — collective self-government, representative institutions, and individualism can operate to produce unegalitarian relationships between disparately situated groups in a given society, which can in turn substantially harm the project of political (as well as economic) equality.Israel presents a remarkable examination on the relationship between liberal theory and equality. First, Israel is commonly described as the only democracy in the Middle East. Because the common assumption is that Israel’s political system holds natural affinities with Western democratic tradition, it would seem safe to assume that what is meant is Israel’s liberal democracy. Yet the tension between its contradictory values — a “Jewish” state and a “liberal state — has continue to generate intense controversy. This essay proceeds from the contention that Israel embodies an ethnic “democracy,” in which the dominant Jewish majority control State functions with the aim of advancing peculiar demographic, religious, security and cultural norms, often at odds with the rights and freedoms of its Arab minority population.Second, the status of this Arab minority in Israel continues to present one of the most intense and intricate issues in Israeli society. The reality is that 1.2 million Arab citizens of Israel (18.5% of the population) do not enjoy equal access with Jewish citizens to state resources. Geographical inequality in the distribution of services follows ethnic lines, negatively affecting Arab communities which tend to be disadvantaged in relation to the rights and economic security enjoyed by relatively well-off Jewish communities. Governmental policies also continue to offer preferential treatment for residents of some of the Jewish settlements on West Bank territory. Although The Basic Law: Human Dignity and Liberty is widely considered a mini-bill of rights by Israeli legal scholars, it does not enumerate a right to equality; on the contrary, it exclusively emphasizes the character of the state as a Jewish state. This can partly be attributed to the lack of “constitutional” (i.e., legal) guarantees for economic and social rights to minorities in Israel. Part I examines Israel’s democratic and legal structure. Ultimately, the discussion concludes that the idea of a Jewish state is squarely incompatible with protection of minority rights — a central tenet of constitutionalism. This discussion thus suggests why Israel cannot claim to comply with democratic liberal norms while simultaneously privileging one ethic group over another. The pairing “Jewish” and “democratic” both codifies discrimination against non-Jewish citizens and impedes realization of full guarantees for political and socioeconomic equality.The political implications of this argument are substantial. First, as mentioned, it critically calls into question the democratic nature of the State of Israel. Second, it strongly questions popular Western conception that views Palestinians and Israelis as equal, symmetrically balanced parties. To this end, Part II analyzes three important Israeli High Court decisions that grapple with complex issues relating to discrimination and (in)equality. In short, the so-called Israeli “constitutional” structure has largely remained unresponsive to its Arab minority. Because the peculiar “liberal” form of Israeli governance long praised by liberal scholars has not resolved the troubling divergence between a rights-based jurisprudence and continued economic and institutional discrimination against Arab-Israelis,entrenching civil liberties and socioeconomic equality in Israel requires not only formal legal codification but also the creation of the conditions for political willingness.

Rendering (Once More) the Financial Assistance Regime More Flexible

Directive 2006/68/EC eliminated the ban on financial assistance imposed by article 23 of Directive 77/91/EEC. The new formulation of article 23 allows Member States to authorize public limited liability companies to undertake financial assistance transactions, provided that they provide adequate safeguards to the (minority) shareholders and to third parties. Various Member States have not exercised this option and many authors have criticised the text of article 23 of the second Directive. The conditions set forth in article 23 aim to protect minority rights and creditor rights are considered excessively rigid and create an obstacle to the effective simplification of the regulations governing financial assistance. This article suggests possible modifications to article 23 of the second directive which could render the financial assistance regime more flexible without prejudicing the interests of both shareholders and creditors. This compromise solution ensures an adequate balance between flexibility and certainty and appears preferable to the proposed elimination of all financial assistance regulation.

Muslim Personal Law and Citizens' Rights: The Case of Singapore

AbstractPrevailing discourse on multiculturalismi tend to focus on its merits in protecting the cultures and traditions of minority groups within the framework of the politics of accommodation. Less discussed are its implications on the rights and autonomy of members of the groups themselves who may be adversely affected by the arrangement. This paper attempts to fill the lacunae. It focuses on the problems arising from autonomy granted to the Muslim community of Singapore to determine its personal law, on some segments of the community. Unlike the rest of the citizens of Singapore, the Muslims are bound by their personal law in the domain of the family which they cannot relinquish as long as they remain Muslims. The system which began during the period of British colonial administration has remained ever since. Differences in the mechanisms as well as the orientation of social agencies in determining the Muslim law from those affecting the nonMuslims, invite unwarranted implications on the rights of Muslims, specifically. The problem is reinforced by the strong tendency of state actors to over-rely on dominant groups within the Muslim community in determining matters of Muslim law at the expense of competing ideas and orientation. The absence of choice of law for Muslims poses a predicament to those who do not wish to renounce their religion but maintain differences in perceptions of the Muslim law. This paper analyzes these problems in the arena of the Muslim law on marriage, divorce and inheritance. It also highlights how the arrangement has, in some instances, resulted in the exclusion of Muslims as a whole from the purview of specific national laws and influence policies affecting them against the preferences of the group's members. These issues have generally received scant attention, if at all, eclipsed perhaps by the greater focus on the merits of multiculturalism in protecting minority rights. Some plausible ways, in which the unwitting implications of legal pluralism on the members of the Muslim community can be addressed, taking into consideration both their right as members of the group as well as citizens of the state, are also discussed.

A Tale of Two States: Territoriality and Minority Rights in Kosovo and Georgia

Over the past decade, violent secessionist struggles have taken place in Kosovo and in South Ossetia and Abkhazia. Whereas Kosovo successfully declared independence from its mother state, Serbia, in 2008, South Ossetia and Abkhazia have officially remained an integral part of their mother state, Georgia. The two conflicts highlight the tension between the principle of territorial integrity on the one hand, and the need to protect minority rights on the other. Preserving the territorial integrity of mother states would lead toward denying remedial secession to struggling minority groups and arguably thereby refusing to respect minority rights. Allowing minorities to secede, in the goal of having their rights to self-determination fulfilled, would lead toward disrupting the territorial integrity of mother states. How can we reconcile the principle of territorial integrity with minority rights, and in particular, with the idea of self-determination – that every “people” ought to have a nation-state? This Article will argue that territoriality and minority rights can work in tandem, because most secessionist claims by minority groups involve claims to territory. Thus, territoriality and minority rights are both about land, and the relevant inquiry should be whether to alter the status quo, at the expense of a mother state’s territory and in order to accommodate minority rights. This paper seeks to answer this difficult question in the context of recent secessionist struggles in Kosovo and in Georgia. Part II will discuss the principle of territorial integrity under international law, before turning to a discussion of minority rights, and in particular, the principle of self-determination. Part III will focus on Kosovo and will describe the recent war in this region, leading toward the Kosovar unilateral declaration of independence in 2008. Part IV will similarly focus on Georgia, and will describe the recent conflicts in South Ossetia and Abkhazia. Part V will attempt to propose a reconciliation between territoriality and minority rights, by comparing the conflicts in Kosovo and Georgia, by arguing that the conflicts have produced different results because of politics, not because of law, and by outlining principles which could be relevant in examining future secessionist struggles. This Article concludes that the international community should rely on objective legal criteria in judging the validity of secessionist struggles, rather than drawing conclusions based on political calculus.

On appreciating Congress: the people's branch

Preface Chapter 1: Popular Government Chapter 2: Facing Executive Power Chapter 3: Interpreting the Constitution Chapter 4: Protecting Minority Rights Chapter 5: Congress at Risk Chapter 6: Safeguarding Democracy Notes Index About the Author

Promotion and Protection of Minority Rights by the UN Office of the High Commissioner for Human Rights and the Independent Expert on Minority Issues

Promotion and Protection of Minority Rights by the UN Office of the High Commissioner for Human Rights and the Independent Expert on Minority Issues

The Framework Convention for the Protection of National Minorities and the Development of a 'Generic' Approach to the Protection of Minority Rights in Europe?

AbstractThis article considers some of the debates that have taken place in recent years about the Framework Convention's potential application to 'new minorities' or 'immigrant' groups. It explores the relevance of the work of Will Kymlicka to these debates as well as the stance adopted by the Framework Convention's Advisory Committee and State responses. The article argues that the protection of 'new' minorities under the Framework Convention should continue to be encouraged by the Advisory Committee and that this is an approach supported not only by Kymlicka's work but also on a more pragmatic level by State experiences to date.

A Critical Appraisal of EU Governance for the Protection of Minority Rights

AbstractThe European Union (EU) has increasing regulatory capacity and capability for minority rights protection. A combination of old and new governance measures have been useful in affording the EU that capacity. Both modes of governance impact on EU migrant groups, particularly where they are free movers of a different nationality, race or ethnic orgin to the (dominant) members of the states to which they have migrated. In addition, new governance measures also allow a degree of impact on other minority groups, such as national minorities, whether or not individuals from these groups exercise free movement rights. Together, old and new governance measures offer certain extents of 'respect' for, 'protection' of and 'promotion' of minority rights.

The Protection of Minorities and Indigenous Peoples in International Law: A Comparative Temporal Analysis

AbstractIt is easy to detect a sense of achievement with the extent to which the human rights regime has progressed 60 years after the Universal Declaration of Human Rights. The relative international successes suggest a bright outlook for the future of the human rights regime. However, an important lacuna remains in the attention that ought to be paid to minorities, indigenous peoples and others in vulnerable situations, including in some instances, women. This paper argues that despite the creation of sophisticated systems of international human rights law, the regimes for the protection of minority rights were stronger before the United Nations (UN) era. In support of this argument it seeks to assess regimes that existed at three different times, attempting to extrapolate and analyse the snapshots presented by these through the lens of evolving human rights law.

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.