Ethnicity, Law, and Human Rights: The English Experience

By Sebastian Poulter | Go to book overview

3
Human Rights and Minority Rights

In each of the 'case studies' presented in the chapters which comprise Part II of this work, consideration is given to the human rights dimension of the particular issue being addressed. In this way it is hoped that the analysis can be afforded greater depth through a comparison of English legal provisions with principles operating in international human rights law.

The present chapter begins with a justification of the choice of international human rights law as constituting the major comparative frame of reference, supplementing those comparisons which are drawn in Part II with the domestic laws of selected individual countries. Next there is an analysis of the system of minority protection operated by the League of Nations from 1919 to 1939, a scheme which may be regarded as embodying the first modem regime on the subject. This is followed by an examination of the shift away from explicit concern for minorities towards greater concentration upon the notion of human rights for all under the United Nations system. Despite this change of focus, the International Covenant on Civil and Political Rights, which is sponsored by the United Nations, does possess an article on minority rights, and this is subjected to detailed analysis, together with subsequent UN declarations. Developments within the Council of Europe are then explored, including the omission of any specific minority rights article from the European Convention on Human Rights and recent attempts to make good this deficiency through the Framework Convention for the Protection of National Minorities in 1995 and the drafting of a new Protocol to the European Convention itself.

Subsequently, an attempt is made to grapple with some of the major philosophical problems posed by any legal recognition of special rights for minority communities and their members. How can any differential treatment for minorities be reconciled with the principles of equality and non-discrimination? Does such treatment involve according privileges to minorities and how does it differ from the doctrine of apartheid? Can cultural pluralism and equality of opportunity be promoted simultaneously, as Roy Jenkins proposed in his definition of 'integration'? 1 International human rights law should be able to offer some answers

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1
See above, ch 1.

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