Recognition Of Specific Rights Research Articles

Obblighi europei, resistenze giurisprudenziali e negazione dei diritti: Contrada è figlio unico

At the operational level, there is a dangerous tendency to coin forms of legal interpretation that limit the recognition of specific rights. Here the judiciary-law relationship is connoted by undue expansionism of the jurisprudence that leads to authoritarian turning points probably generated by special-preventive ideologies not always in line with legal command. And when this happens with reference to rights recognised at European level, also affirmed by the Charter of Values, exegetic freedoms generate insubordination and violation of the obligation of “maximizing” legal protections, leading to an unacceptable single case judgment in violation of the constitutional duty to ensure procedural equality

Derechos de las minorías en el pacto internacional de derechos civiles y poléticos: consideraciones conceptuales

The article discusses the rights of minorities in the system of the International Covenant on Civil and Political Rights.It establishes a conceptual distinction between universal rights, specific rights of minorities in general and specific rights of particular minorities. Universal rights correspond to all individuals (e,g,, “no one shall be subjected to torture”) or all groups of a certain class (e.g., “all families are entitled to protection”). Minority groups and their members are entitled to these rights in the same way as any other individual or group. Specific rights of minorities in general are granted to minority groups (e.g., “minority groups have the right to speak their own language”) or their members (e.g., “persons belonging to a minority group have the right to speak the language of the group”). Finally, specific rights of particular minorities are granted to specific groups identified by their characteristics (e.g., “the linguistic minority X has the right to speak the X language”) or their members (e.g., “any member of the linguistic minority X has the right to speak the X language”).Treaties and international declarations often refer to universal rights and specific rights of minorities in general. However, these rights are usually recognised in broad terms, and their implementation may lead to the recognition of specific rights in favour of particular minorities or their members.Protection of minorities (in the broad sense of the expression) is based on two pillars: on the one hand, the protection against discrimination; on the other hand, the protection of minorities in the strict sense. The first pillar is an aspect of the general principle of nondiscrimination and requires respect for both formal and substantive equalities. The protection of minorities in the strict sense involves the preservation of their particular identity.The purpose of the equality in a formal sense is achieved through universal rights, to the extent that these are granted to minority groups and their members. On the contrary, to achieve equality in a substantive sense, it could be necessary to implement positive measures. The implementation of these measures will usually lead to the recognition of specific rights of minority groups or their members. Finally, the protection of the distinctive characteristics of the minorities will also be done through specific rights.Thus, on the one hand, there are rights, which are intended to protect the minority forms of life (i.e. to protect differences), and, on the other hand, those that are intended to allow minorities equal access to different uniform social goods (i.e. to protect equality). Whereas the former ones seek to protect and promote the particularities of the minority culture (e.g., the right to receive education in their own language), the latter ones are recognised to overcome the disadvantages that minority groups and their members face and are not intended to promote peculiarities, but rather to permit equal access to resources and social opportunities.Article 27 of the International Covenant on Civil and Political Rights enshrines specific rights of minorities intended to protect and promote their own forms of life. Although economic rights are not mentioned (the article refers to the rights “to enjoy their own culture, to profess and practise their own religion, [and] to use their own language”), they may stem from the explicitly recognised rights. The rights recognised by the Covenant are not collective, but individual rights (“in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right [...]”). The rights recognised in the Declaration of the United Nations General Assembly on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities are of the same nature.The principle of equality and non-discrimination is contained in Articles 2.1 and 26 of the Covenant. This principle forbids direct and indirect discrimination, be it de iure or de facto. As this is a universal right, minorities can also benefit from it.According to the Human Rights Committee, Article 27 imposes on States the adoption of positive measures that exceed an attitude of mere abstention. In the same way, positive measures may be necessary to make the principle of equality and non-discrimination effective. Although neither Article 27 nor Articles 2.1 and 26 refer to individuals belonging to a specific minority, the concrete implementation of these articles through positive measures may produce specific rights for persons belonging to particular minority groups.

Foundations of a Theory of Multicultural Justice

In his new book Multicultural Citizenship, Will Kymlicka extends and reinterprets his case – first made in Liberalism, Community, and Culture – for the recognition of specific rights of cultural minorities on the basis of liberal principles. He convincingly argues that we need to find arguments for cultural rights within the framework of a “comprehensive theory of justice in a multicultural state” (6) and he provides the foundations as well as a discussion of the political practice and application of such a theory. More specifically, in the course of his argument he suggests a number of important distinctions between different cultural groups (national vs. ethnic) and the grounds for their different claims to recognition, the corresponding rights they can claim (self-government, “polyethnic,” special representation), and the limits of these claims (external protection vs. internal restriction). These distinctions and the use Kymlicka makes of them are very illuminating and take the complex debate concerning the meaning of multicultural citizenship a decisive step further. In my remarks on Kymlicka’s impressive enterprise, I want to focus on the question of whether the normative basis from which he proceeds is adequate for his attempt to provide a conception of justice for a multicultural society. It seems to me that the notion of personal autonomy which is the cornerstone of his distinctively liberal approach creates problems and internal tensions in his argument. Starting from this question, one can, I think, also shed some light on more specific points in Kymlicka’s theory, such as his conception of toleration and his view of political integration. Let me begin by briefly indicating what I take to be the main normative characteristics of a conception of justice appropriate for a multicultural society. Obviously, such a conception should provide grounds from which to judge which claims to recognition, raised as claims to certain rights and resources, are justifiable among citizens of a multicultural state. Accordingly, the grounds on which this is to be decided have to be “not reasonable to reject” by the different cultural (ethnic or national) groups involved. The basic values and norms of such a multicultural “basic structure” – and the reasons for important political decisions – have to be equally acceptable to all citizens; thus no cultural group may simply generalize its own values and self-understandings and impose them on others. This does not mean that either the basic structure or the political language in general can be culturally “neutral” as a kind of moral Esperanto; rather, it means