This article discusses how the magistrates of the Constitutional Tribunal of Peru have interpreted the right to prior consultation and examines whether and/or to what extent these magistrates have been consistent with the case-law of the Inter-American Court of Human Rights (IACtHR). Taking into account that the jurisprudence of the Constitutional Tribunal has provided the first guidelines on how to legislate and how to conduct the prior consultation processes in Peru, this analysis is relevant to determine if these guidelines have been elaborated according to the IACtHR’s standards.
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The concept of procedural justice has been promoted as a potential solution in the contest for resources involving indigenous peoples and others. It seeks the formulation of processes that are fair and just both to indigenous peoples and to the other parties affected. Using a comparative approach, this paper analyses processes and mechanisms adopted in some selected common law jurisdictions against the ideal of procedural justice. It seeks to consider mechanisms which conform to the principle of procedural justice to address the issue of indigenous peoples’ rights to land and resources in Malaysia. The principle is relevant in Malaysian common law which also subjects matters affecting fundamental liberties to procedural justice. Comparative perspectives provide models for practical applications of indigenous peoples’ rights. They assist policy analysis through learning from the successes and failures of other jurisdictions in improving legal reform.
Ebenezer Durojaye and Mariam Wallet Med Aboubakrine
This article examines non-communicable diseases (ncds) as a challenge among indigenous population in Africa. From a rights-based perspective, the article considers some of the social determinants of health and other challenges that can aggravate ncds among indigenous groups in Africa. It further examines the recognition of the right to health of indigenous populations under international law. This is followed by a discussion on some of the barriers to addressing ncds among indigenous peoples in the region. It concludes by urging African governments to be more proactive in adopting measures grounded in human rights standards to address the rising incidence of ncds among indigenous peoples in the region.
Hungary has been praised by international monitoring bodies and scholars specializing in minority rights for being a pioneer in establishing a sophisticated cultural autonomy regime for the safeguarding of the cultural rights of its minorities, which could serve as a salient example for other countries too. However, after nearly twenty-five years of implementation, during which a major amendment of the original Act lxxvii of 1993 on the Rights of National and Ethnic Minorities (2005) took place, followed further by the adoption of a new Act clxxix on the Rights of Nationalities (2011), there continue to exist serious problems in the operation of the whole arrangement, putting in question its efficacy to adequately address the cultural needs of Hungary’s minorities and to serve as a model for exportation.
Naomi Birdthistle, Antoinette Flynn and Susan Rushworth
Ethnic entrepreneurship has emerged as an economic, societal, and political panacea to the growing number of refugees on the move across the globe. Employing the 2014 World Economic Forum framework, this article seeks to explore the Australian entrepreneurship ecosystem, to determine whether it is enabling migrants and/or refugees to become entrepreneurs with a focus on Syrian refugees. At its core, the Australian entrepreneurship ecosystem is comparatively strong in terms of human capital, accessible markets, and finance. Even within the three ‘core’ characteristics of the ecosystem, the Australian ecosystem falls short when examined through the lens of refugee entrepreneurs. Recommendations under the 2014 World Economic Forum framework are made that will assist key stakeholders in developing an entrepreneurial ecosystem.
Minority protection under the League of Nations (LoN) generated an unprecedented level of activity and debate on the topic, which in turn contributed to the general advancement of human rights. Nevertheless, it is also important to note that the League’s Secretariat developed rather conservative practices regarding the receivability of minorities’ petitions as well as on some important related decisions. Our perspective here contrasts with what is commonly found in the associated historiography, i.e. that the part played by the Minorities Section was rather neutral. Without downplaying the importance of some states’ resistance to the protection of minorities and its supervision, the Section’s narrow interpretation of the LoN jurisdiction is noteworthy, as is the absence of serious attempts to take advantage of the decisions in favour of minorities made by the LoN Assembly. The way the Section constructed the non-receivability of petitions, especially those which were ‘outside treaties’, illustrates our argument.
A. Aslı Bilgin
The foundation of European Integration is based on economic objectives from the beginning of the 1950s. The founding treaties did not include provisions regarding minority rights. Minority rights have been a foundational value since the entry into force of the Lisbon Treaty, but there is no legislation related to minority rights or internal minority policy at the European Union (eu) level, because of the absence of competence given to eu institutions. This study analyses how issues relating to minority protection are handled vis-a-vis internal market objectives under eu law in the light of primary, secondary and eu case-law. While determining the legal framework on minority rights in the eu, not only the impact of the case-law of the cjeu on minority protection, but also the possibility of the cjeu’s power to establish an internal minority policy and the Member States’ approaches to an internal minority policy have been taken into consideration.
Social and economic backwardness of Muslims in India in various fields, such as employment, education, housing and access to infrastructure, is well-documented, particularly in the Sachar Committee Report. Despite the constitutional promise of equality and non-discrimination, discrimination in various forms is the lived reality of Indian Muslims. Growing anti-Muslim prejudice in society and in the institutions of the State is responsible for Muslims’ inability to realise their rights to equality and non-discrimination. Often there is a struggle to enforce constitutionally guaranteed rights and access benefits in welfare schemes. This article discusses the legal struggle to access the pre-matric scholarship under the Prime Minister’s 15 Point Programme when the State of Gujarat refused to implement the scheme.
Mirza Satria Buana
This article examines the hypothesis that the developmental priorities of Indonesia in the post-Suharto era, in particular three legislative Acts that purport to protect indigenous peoples’ rights, in fact serve to undermine these rights. These Acts are: the Basic Agrarian Act, the Forestry Act, and the Plantation Act, and relate to land use for development purposes and also affect the autonomy of indigenous peoples. Despite being crucially important, these Acts have had detrimental effects on indigenous peoples’ lives. This article, using a qualitative socio-legal approach, analyses the historical and political contexts of the Acts to determine whether they enhance or undermine indigenous peoples’ rights, and how the government uses the Acts for suppression. This analysis identifies reasons for the weak regime, notably that the legislative Acts on land-related sectors are used as a political tool to suppress local communities, while allowing the government’s land market businesses to exploit natural resources.
Randy S. Clemons, Mark K. McBeth, Rolfe Daus Peterson and Carl L. Palmer
Our study focuses on Islamophobia and the power of facts versus the power of a narrative in shaping individual opinion toward Muslims. We utilise an experimental design to explore three research questions: (1) Is Islamophobia and anti-Muslim sentiment lowered in narrative or factual treatments?; (2) What are the differential effects of the treatments by ideological orientation?; and (3) Is Islamophobia a predictor of policy stances? We find that neither the narrative or factual treatments lowered Islamophobia or anti-Muslim sentiment. However, moderates were significantly influenced by the Facts Treatment, expressing lower levels of anti-Muslim sentiment. Finally, the treatments significantly influenced policy positions for individuals in the Facts Treatment group, who were less likely to support funding increases for border security than subjects in the narrative treatment. Our findings have implications for understanding persuasion, identity protection cognition, and the persistence of Islamophobia within the context of the power of narrative.
Advocates of government-led efforts to preserve endangered languages point to a range of benefits that are, allegedly, thereby fostered. In this article, I analyse six such arguments for preserving endangered languages, with the aim of ascertaining whether language preservation can be expected to help secure the various putative benefits. I evaluate, in turn, the claims that governments should strive to preserve languages because doing so will help to: maintain the unique worldviews of endangered linguistic groups; save scientific or cultural knowledge from being lost; preserve the aesthetic value that a diversity of languages represents; ensure minority language speakers are secure in their ability to connect emotionally with members of subsequent generations; secure for all citizens the cultural preconditions of autonomy; or resolve collective action problems. I conclude that the benefits of preserving endangered languages are considerably more modest, and more speculative, than is alleged by proponents of these preservationist arguments.
Much of the debate around requirements for the free, prior, and informed consent of indigenous peoples has focused on enabling indigenous communities to participate in various forms of democratic decision-making alongside the state and other actors. Against this backdrop, this article sets out to defend three claims. The first two of these claims are conceptual in nature: (i) Giving (collective) consent and participating in the making of (collective) decisions are distinct activities; (ii) Despite some scepticism, there is a coherent conception of collective consent available to us, continuous with the notion of individual consent familiar from discussions in medical and sexual ethics. The third claim is normative: (iii) Participants in debates about free, prior, and informed consent must keep this distinction in view. That is because a group’s ability to give or withhold consent, and not only participate in making decisions, will play an important role in realising that collectives’ right to self-determination.
The public’s grievances with long-drawn incessant bloody clashes between the Fulani herdsmen and local farmers in all parts of Nigeria, together with economic recession or national economic slowdown, climatic change, anti-grazing laws, the religious crisis, and the strains of electoral campaign politics in the country – thus, convoluting efforts for the country’s long-term stabilisation. High poverty levels and dwindling financial assistance have added to the Nigerian states’ anxieties of being discarded once again. This article illuminates the contradictory perceptions among the main stakeholders in Nigeria and global world on the trajectory of the Fulani herdsmen insurgency stage. The article contends that the farmers’ and herdsmen’s clashes are substantially a war of perceptions on the progress made thus far. This broadening divergence in perception will result in making a long-term stabilisation strategy difficult.
Martin Papillon and Thierry Rodon
While it is increasingly recognised as a core element of the emerging international Indigenous rights regime, the implementation of the principle of free, prior and informed consent (fpic) remains contested. As the comparative literature shows, if and how fpic is implemented depend both on the institutional context and on the agency of actors involved. Faced with deep power asymmetries and strong institutional resistance to their understanding of fpic as a decision-making right, a number of Indigenous groups in Canada have taken advantage of the uncertain legal context to unilaterally operationalise fpic through the development of their own decision-making mechanisms. Building on two case studies, a mining policy adopted by the Cree Nation of James Bay and a community-driven impact assessment process established by the Squamish Nation, this article argues Indigenous-driven mechanisms can be powerful instruments to shape how fpic is defined and translated in practice.
Abebe Gizachew Abate
In the burgeoning literature on land rights, relatively little attention is offered to urban land grabs and indigenous peoples’ territorial claims. Certainly, the current Addis Ababa master plan and the envisaged land grabs represent both continuity in and change from previous historical episodes of territorialisation. The new master plan is not only a niche where ‘civilization mission’ meets ‘wilderness’ or indigenous peoples are also arenas wherein hegemonies and sovereignties of the earlier period have been challenged by new authority and territorialisation. This article investigates the ethnography of indigenous people-state relations animated by notions of cultural and ethnic difference, legal tradition, power, and history. Framing indigenous peoples land rights in the context of a multidimensional understanding of rights, this analysis focuses on the necessity of protecting the territorial rights of indigenous peoples. From this perspective, this article contributes new knowledge of historical narratives, land claims and current debates around minority rights.
Bertus De Villiers
The Aboriginal People of Australia are arguably the oldest uninterrupted community of indigenous peoples in the world, but they have not yet been heard in the corridors of power. Recently, a proposal arose from Aboriginal People to give them a ‘voice’ that would be elected to give advice to the federal government and promote their rights and interests. Several attempts have been made in the past to create an advisory body for Aboriginal People, but they have all failed. The question considered in this article is what lessons can be learnt from previous failed attempts, and what can be done to ensure the success of the proposed Voice.
Almut Schilling-Vacaflor and Riccarda Flemmer
Based on rich empirical data from Bolivia, Colombia, and Peru – the three Latin American countries where the implementation of prior consultation processes is most advanced – we present a typology of indigenous peoples’ agency surrounding prior consultation processes and the principle of free, prior and informed consent (fpic). The typology distinguishes between indigenous actors (1) mobilising for a strong legal interpretation of fpic, (2) mobilising for meaningful and influential fpic processes, (3) mobilising against prior consultation processes, and (4) blockading prior consultation processes for discussing broader grievances. We identify the most prominent indigenous strategies related to those four types, based on emblematic cases. Finally, we critically discuss the inherent shortcomings of the consultation approach as a model for indigenous participation in public decision-making and discuss the broader implications of our findings with regard to indigenous rights and natural resource governance.
‘Low-end population’, which refers to people working in low-paid industries in China, has become a taboo word for public discussions and in official documents due to the inconvenient truth it indicates. To look into the ‘low-end’ society, this study uses intersectionality theory to analyse how the social categories of gender, social origin and occupation creates overlapped disadvantages for migrant women workers as domestic helpers in China. Before, little attention has been paid to these invisible building blocks of the great economic success of China, hence the multiple inequalities they have experienced in their lives and work are untold stories. Using intersectionality analysis, the study describes in detail the status of migrant women workers as domestic helpers. It further introduces Chinese laws and policies on Hukou regulation, on women’s rights and on regulating the domestic service market, with a conclusion of the concrete problems faced by this group of people.
What are the institutional arrangements required to implement a genuine process of free, prior and informed consent (fpic)? This article provides a comparative perspective on the politics of consent in the context of relations between Indigenous peoples, states and extractive industries in Canada and Latin America. The case of Ecuador is presented as an emblematic example of a hybrid regime in which Indigenous communities have the right to free, prior and informed consultation, not consent, concerning planned measures affecting them, such as mineral, oil and gas exploitation. In the case of Yukon, Canada, the settlement of a comprehensive land claim with sub-surface mineral rights has provided the institutional basis for the implementation of a genuine fpic process, one that includes participatory decision-making power over natural resource development projects. The article concludes with a discussion on the necessary conditions for moving governments from a consultation to a consent regime.
Eric Herman Ngwa Nfobin
The February 2015 crisis whether both official languages, French and English, be used in proceedings in the Anglophone jurisdiction practicing common law, was a reminder that the Cameroon concept of bilingualism still requires definition. At the simplest and most obvious level, the lawyers of the minority English-speaking jurisdiction were protesting against the introduction of a rival language, unfamiliar to their community. A second look unveils proofs of deeper malaise behind what is only the thin end of the wedge. In fact, there are conjoining components originating from misunderstandings traceable back to 1961 when the English-speaking Southern Cameroons and independent French-speaking Cameroon reunited. It is far from the dream that drove them to form a common entity. This article goes below the surface of these dissensions that amount to a veritable ‘Anglophone problem’, which if not properly understood and handled, and allowed to fester, can be the harbinger of disintegration.
This article investigates the economic status of Christians in Syria and Egypt during the era of Presidents Hosni Mubarak (1981–2011) and Hafez al-Assad (1971–2000). As they were discriminated against politically, socially, religiously and culturally, this article answers the puzzle of why the Christians in Syria and Egypt did not face any discrimination at the economic level in the era of the aforementioned authoritarian regimes.
Nthomeni Dora Ndou, Azwihangwisi Helen Mavhandu-Mudzusi, Mesgane Girmai Asgedom and Rafiat Anokwuru
Immigrants in the United States of America (usa) face challenges regarding the utilisation of healthcare services. Issues include difficulty to access healthcare services. Qualitative descriptive phenomenological design was used in the analysis. Data were collected using a semi-structured interview format with eight conveniently selected Eritrean immigrants living in Indianapolis. Data were analysed using Interpretive Phenomenological Analysis Framework for data analysis. The findings indicate that the cultural beliefs, socioeconomic status, immigration status of Eritrean emigrants and the policies related to financing healthcare services for migrants in Indianapolis have a huge impact on determining the utilisation of healthcare services by Eritrean immigrants in Indianapolis. It is concluded that there is limited access by Eritrean immigrants in Indianapolis to healthcare services. There is a need for policy revision regarding the financing of healthcare services for immigrants and the provision of services to improve access and accommodate cultural diversity.
Stefania Errico and Priscilla Claeys
Worldwide, 2.5 billion people today depend on lands managed through customary, community-based tenure systems. Although land and natural resources are recognised as essential elements for the realisation of many human rights, international human rights law does not recognise a human right to land, except for indigenous peoples. With the recent adoption of the UN Declaration on the Rights of Peasants and other people working in rural areas (undrop), the right to land is now recognised for new categories of rural workers. This article explores the governance of land and natural resources beyond the case of indigenous peoples’ rights. It argues that undrop contains key and mutually reinforcing elements of the human rights and collective action approaches to the governance of land and natural resources, and therefore has the potential to ensure the social and environmental ‘viability’ of the commons.
Thomas James Phillips
The aim of this article is to examine Turkey’s reservation to Article 27 of the International Covenant on Civil and Political Rights (iccpr) and to advance a plausible argument for its invalidity based upon the relevant secondary rules of international law.
Bertus De Villiers
Self-determination for Aboriginal people in Australia has been a long sought after yet difficult objective to reach. The recently concluded Noongar Settlement in the state of Western Australia opens new opportunities and could potentially set a new benchmark for non-territorial autonomy and self-government for an Aboriginal community. The Noongar Settlement exceeds the more traditional settlements of a native title claim since it provides elaborate institutions for self-government albeit by way of private bodies corporate. The bodies corporate for the Noongar people would enable them to make and administer decisions; offer services; undertake management of public conservation areas; and advocate for the best interests of their community. This privatised form of self-government may not only provide new impetus to other land claim processes in Australia, it may also address the often-heard demands from Aboriginal people for a treaty to be entered into between themselves and the government of Australia.
This article highlights the main conclusions of a recent study within the World Bank Group project that is based on April-May 2017 fieldwork and looks at the labour market integration of indigenous youth in the Republic of Karelia, northwest of Russia. The main purpose of the study is the better understanding of the social inclusion or exclusion of indigenous youth in the Republic of Karelia by examining their integration into the labour market in the short and long terms.
Although not traditionally thought of as a particularly important piece of the UN machinery for the protection of minorities, the International Court of Justice (icj) has made in this area important jurisprudential contributions. The icj can also take a more immediate step towards protecting minority rights by indicating provisional measures, as it did in the Bosnian Genocide case, in both cases of a racial discrimination lawsuit filed against Russia and, most recently, in Qatar v. United Arab Emirates. The purpose of this article is twofold: (1) by critically analysing the selected cases in which provisional measures were requested, to assess the contribution of the icj’s rulings (and appended judicial opinions) on such measures to interpreting, defining the content and developing the law of genocide, racial discrimination and equal treatment of minorities, and (2) to examine the potential for the icj to enhance the protection of minorities by indicating provisional measures.
Saba Hanif, Majid Hassan Ali and Janelle Carlson
Although Pakistan is listed as a highly intolerant country, this intolerance has rarely been investigated in the context of Pakistan. The current study aims to provide a contextual account of religious tolerance in Pakistan with a special focus on schools (including madrasas) and religiosity. Building on the pre-existing literature we tested to what extent madrasas, secular (worldly) education schools, and individual religiosity explain religious tolerance among students. We measured four dimensions of religious tolerance: freedom, respect, discrimination, and acceptance. Random sampling techniques were used to collect data from students (N = 937) of madrasas and mainstream schools. Structural equational modelling analyses revealed that madrasa students were least tolerant of religious minorities and private school students were the most tolerant. The study also found that the higher the religiosity of an individual, the lower their levels of religious tolerance, particularly, among private school students. Implications for research and policy are discussed.
Jean-Claude N. Ashukem
Despite the constitutional and legislative guarantee to land in Uganda, customary land tenure seems to suffer from inadequate legal protection, a situation that is analogous to that in the colonial and the immediate post-independence era. This article critically examines the normative content of the constitutional and legislative right to land in Uganda and argues that the customary land right is not adequately protected as the other categories of land tenure, in which land is owned and legally recognised in Uganda. It also serves to illustrate that the inadequate protection of customary land rights is analogous to the situation in the colonial and immediate post-independence era, and that weak customary land rights could be susceptible to the occupants’ deprivation during land grabbing. There is a need to address this situation in order to holistically ensure and promote an effective land governance regime that respects and protect customary land tenure.
State accommodation of plural identity has remained very much subject to the contestations of a majority/minority paradigm, through which autonomy and tolerance are still negotiated and filtered. These social reconfigurations, including those oriented towards internal self-determination and minority rights regimes, reveal glimpses of a dark neo-colonial underbelly to state rule. A comparison between the Ottoman millet system and the Israeli control system illustrates that imperial modes of ‘divide and rule’, or ‘segmented pluralism’, continue to operate, and are sometimes even enhanced, through the deployment of minority rights. Using a selective Marxist reading, this paper will initially explore the parallels between imperial and modern state rule in the face of pluralism before discussing the methods used for hegemony-maintenance, including: segmentation; dependence; and cooptation. Finally, a socio-legal discussion on the ways in which the forces of hegemony are heavily guised and sustained will follow.
More than 75 per cent of the world’s known stateless belong to minorities. Building upon ethnographic research conducted between 2008–2017, this paper considers the case of ethnic Vietnamese minority populations in Cambodia. Members of this group are long-term residents, having been born and raised in the country for generations, with the exception of the period during the Khmer Rouge regime when they were forcibly deported to Vietnam. Since their return to Cambodia in the early 1980s, individuals from this group have been regarded by Cambodian authorities as ‘immigrants’. This paper examines how discriminatory policies, laws and administrative practices regulate individual and collective identities, while creating categories that determine social inclusion and exclusion. In doing so, this paper makes visible the ambivalence of law and rights – both as tools for the construction of exclusionary citizenship, but also as instruments which minorities to contest their social exclusion.
Belachew Girma Degefie
The Constitution of Ethiopia takes diversity seriously as a response to the country’s history. On the other hand, the Constitution does not protect minority groups to the extent that it promised in its Preamble, as has been observed for many years. This necessitates a system that at best fosters the interests of minorities and thereby contributes to establishing a legitimate government. This article recommends that a consociational arrangement protects minorities by enabling them to exercise autonomy at the municipal level and be represented in the federal government, thereby allowing them to participate in the federal law-making process. Executive power sharing allows ethnic groups to participate in the federal executive and feel that they are part of the government. Finally, minority veto allows them to veto laws that affect their vital interests such as language rights.
M. Ya’kub Aiyub Kadir
This article investigates the problem of defining ‘people’ and ‘indigenous people’ under the International Human Rights Covenants and their application in the Indonesian context. Using analyses based on the Third World Approach to International Law (twail), this article shows the problems facing Indonesia in identifying indigenous peoples as traditional peoples, in terms of being isolated peoples (Masyarakat Hukum Adat, hereafter mha), and the non-isolated indigenous peoples who were sovereign before the independence of Indonesia. This interpretation has been confusing in relation to the entitlement to natural resources. Therefore, this article proposes a new understanding of indigenous peoples, in order to arrive at better treatment and recognition and in terms of sharing power and the benefits of natural resources in the Indonesian system.
This article concerns ensuring national minorities’ interests while establishing electoral boundaries in Ukraine. Special attention is paid to the areas with a concentrated minority settlement. A Hungarian national minority resident in Transcarpathia is the subject of the research. Among the three basic laws of Ukraine that regulate presidential, local and parliamentary elections, only the law regulating parliamentary elections complies with the international requirements regarding the consideration of national minorities’ interests during delimitation of electoral borders. An electoral district in which majority of voters were Hungarians had been established before the 1998 parliamentary elections. But later, the Hungarian community was divided between three constituencies. Some comments and recommendations from the reports of observers from different international organizations have been elucidated. A review of law enforcement practice revealed that the long-lasting problem concerning the drawing of electoral boundaries in Transcarpathia has not yet been solved.
Discrimination against the Roma minority has been a subject of continuous debate. Despite the ‘conditionality’ to acquis communautaire on anti-discrimination, the role of the accession States remains questionable regarding implementation and compliance on the ground. This article critiques the lack of competence of institutions including the Court of Justice (ecj), and the Court of Human Rights (ECtHR) in areas such as mainstream education and employment. The issue demands a more robust approach both from the concerned States and the European Union (eu). The imbalance between the protection of the economic freedoms and fundamental rights of the Roma need to be addressed in line with the influencing factors emerging from an empirical study conducted in Hungary.
Tamara Hoch and Sebahattin Abdurrahman
The issue of national minorities has never ranked high on the European Union’s (eu’s) agenda. No legal or policy measures to protect Europe’s national minorities have been developed, reducing scholarly attention on the potential of Europeanisation of national minority politics to the minimum. This article addresses this misconception and argues that Europeanisation of national minority politics does occur, however, not where originally expected. By shifting attention to a poorly studied area - minority actors and their activities at the eu level – the article illustrates how minority actors create own change, how they are influenced by their own ‘usages of Europe’ and how this process helps to advance our knowledge of Europeanisation of today’s national minority politics.
Mahanam Bhattacharjee Mithun
The number of Bangladeshi Hindu religious minorities have been dropping rapidly during the last few decades. Bangladesh shares a long border with India, and due to linguistic and cultural similarities, many Bangladeshi religious minorities choose to take refuge in India. This research explores the reasons forcing Hindu minorities to leave Bangladesh. It also provides an overview of the situation in Bangladesh with regard to minority protection, law enforcement and government actions. The findings of this research also illustrate why forced migration is an ongoing process and the main factors behind that exodus.
Md. Al-Ifran Hossain Mollah
Hindu women’s limited right to inheritance in Bangladesh is a story of state-sponsored deprivation; a frustrating legacy of the political authority’s systematic indifference and failure in protecting minority women’s right to property for nearly half a century. Bangladesh, from its early decades, has experienced the resurgence of religion as one of the driving factors behind gender and minority-sensitive policy formulation and implementation. Under the veil of constitutional secularism, religion has become one of the most pervasive tools in the hands of the political authorities for methodical marginalisation of religious minority groups especially of Hindu community. Consequently, Bangladesh has failed to move forward with appropriate legislative measures for improving the present status of Hindu women’s right to property. This article argues that the underlying reasons behind such failure is intrinsically intertwined with power-centric electoral politics rather than normative socio-religious practices.
Eduardo J. Ruiz Vieytez
The Spanish 1978 Constitution establishes a complex state. In constitutional terms, it is not defined as a federal state, but rather as a unitary state with significant scope for political decentralization. This complex constitutional arrangement is in response to both internal and cultural features, and to a search for greater administrative efficiency. The pluri-national character of the state is the subject of fierce debate in Spain, while the way in which certain minority nations (Catalonia and the Basque Country) are accommodated is a permanent source of friction. This paper seeks to provide an overview of this complex political/constitutional situation by analysing the historical, political and legal developments that have occurred during the last 40 years, with a focus on the last developments of the Catalan crisis. Although Spain is markedly asymmetric in political and identity terms, this asymmetry is not adequately reflected in Constitutional Law. In addition, the ongoing tension between unionism and separatism in some regions poses significant challenges to the Spanish constitutional system as a whole, in particular, through the pro-independence process in the autonomous region of Catalonia.
This article explores the main political developments taking place in Kurdish politics in Syria and Turkey in 2017. It first focusses on the developments taking place in Syria and provides an account of the Kurds’ ascendency there, including the establishment of a de facto Kurdish-led autonomous region in Syria’s north and northeast. Then an account of Turkey’s Kurdish conflict is provided, highlighting the positive developments during the 2000s and the first half of the 2010s that transformed it. However, since the summer of 2015 these positive developments have been reversed with an acceleration of violence in the conflict. In conclusion, I briefly assess the future prospects for the Kurds in Syria and Turkey in light of the developments connected to the ongoing Syrian conflict and the wider region.
Bojana Kostić and Tarlach McGonagle
Understanding the transformation of digital communication gives important insights into how new media, including social media, affect the ability of persons belonging to national minorities to exercise their rights to freedom of expression and participation in society. Thus, the new media ecosystem calls for greater attention for minority-related issues. The Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC) has already observed that the media ecosystem is increasingly used for the expression of intolerance and hostility towards minorities, but that it also provides them with valuable expressive opportunities. This article starts with an analysis of how the advent and growing dominance of social media are causing farreaching changes in how we communicate in the new media ecosystem. The potential and drawbacks of new and social media for national minorities is the next focus. The article then analyses the ACFC’s monitoring work regarding new and social media. The article’s conclusions are supplemented by a set of recommendations that may guide the ACFC’s future monitoring work on relevant issues.
This paper presents an outline of the circumstances surrounding the current political stalemate in Northern Ireland. It considers the role of language as a key justification for the unravelling of the complex political arrangements formulated by The Belfast Agreement or Good Friday Agreement (GFA). The discussion begins by problematizing the notions of “identity” and “minority” in the Irish / Northern Irish context as an important backdrop and within the framework of the European commitment to, and Charter for, Regional or Minority Languages (ECRML). In particular it looks at historical memory, constructed history, ideology and notions of nationalism, as well as the role of politics and manipulation of language.
Szymon Jankiewicz and Nadezhda Knyaginina
This article analyses changes to the language policy in Russia in 2017, and their effects on the state (national) languages of Russia’s republics within the education system. In July 2017, Russian President Vladimir Putin gave a speech at the Council on Interethnic Relations, addressing the language rights of the Russian-speaking population and stressing the existing limit of the power of Russia’s 22 ethnic republics to introduce compulsory study of their official languages. The President’s statements provoked widespread prosecutorial inspections in the republics’ schools and a new round of public discussion about language policy. Public discontent in Tatarstan, Bashkortostan and Komi led to protests against both ethnic Russians and the native speakers of languages recognised as co-official with Russian (‘state languages of the republics’). The authorities of some republics publicly disagreed with the position taken by the federal government. In other republics, however, the President’s speech did not trigger any public discussion. In many republics, it looks like the regional authorities will ultimately accept the decision of the federal government and speakers of republican languages will not actively defend their languages. Effectively, the balance of rights of the federation and the republics for the establishment of state languages, achieved in the 1990s, was violated.
This section overviews the 2017 situation of the language rights of European minorities in the fields of education, the administration of justice and public administration. The author presents the relevant legal developments in the activities of the major international organizations, i.e. the United Nations, the Organization for Security and Cooperation in Europe, the European Union, and the Council of Europe including the case law of the European Court of Human Rights, and the implementation of the European Charter for Regional and Minority Languages as well as the Framework Convention for the Protection of National Minorities. In the concluding remarks, tendencies and common patterns are emphasized.
Editors European Yearbook of Minority Issues Online
This article provides an update on the protection of minorities in Europe during 2017, in the areas of participation, citizenship and transfrontier exchanges. It will summarize developments at the United Nations level as well as regional information from the Organization for Security and Cooperation in Europe (OSCE), the Council of Europe (CoE) and the European Union (EU) and identify trends.
Editors European Yearbook of Minority Issues Online
This article provides an overview of international developments in the area of the sociocultural and economic rights of European minorities, including access to and portrayal in the media, throughout 2017. The year brought several significant advancements in these areas. The adoption of the 2017 UNESCO Declaration of Ethical Principles in Relation to Climate Change acknowledged the role of indigenous knowledge in counteracting the challenge of climate change. Protection and integration of Roma was addressed in the activities of the human rights organizations and bodies at the level of the UN, the Council of Europe, the OSCE and the EU. The European Court of Human Rights (ECtHR) delivered a series of significant judgments specifying the factors that would allow a court to classify an act as a hate crime. The ECtHR also instituted procedural rules protecting people from violence based on ethnic and racial motives.
Though the Ukrainian state has not had sovereign rights over Crimea since 2014, Crimean Tatars have continued to repeatedly and emphatically assert their rights to self-determination. In March 2014, the Ukrainian Parliament (Verkhovna Rada) adopted a resolution on guarantees of the rights of the Crimean Tatar people as a part of the state of Ukraine. The resolution formally recognized the UN Declaration on the Rights of Indigenous Peoples. The resolution proposes that the Verkhovna Rada of Ukraine instructs the Cabinet of Ministers of Ukraine to urgently submit draft laws on status of the Crimean Tatar people as indigenous people of Ukraine. However, at the end of 2017, no such draft law or regulatory legal act has been seen. The purpose of this article is to analyse the situation of the Crimean Tatars in the Ukrainian legislation.
Shirin Gul Sadozai and Hina Anwar Ali
Bianca Rutherford Iglesias and Concepción Travesedo de Castilla
Natividad Ferri Carreres
Edited by Sophie Croisy
Edited by Sophie Croisy
Karla Janiré Avilés González and Angela Ixkic Bastian Duarte
Edited by Sophie Croisy
Pauline Oosterhoff, Arno Peeters and Iris Honderdos
This article argues that there are both practical and conceptual reasons for relaxing the prevailing state-centric frameworks for minority protection in the global arena. The article discusses two example cases: the indigenous Sami and the Roma travellers. It draws on analyses of the kinds of rights protected by the key international minority rights documents, and the kinds of goods these rights provide access to. The article argues that the cross-border nature of certain minorities poses specific challenges to the prevailing system of distributing responsibilities for protecting minorities across individual states, each of which has territorially limited obligations. It concludes by paving the way towards a more cosmopolitan institutional approach to cross-border minority protections.
This article explores ways to realize minority over-representation through elections without pre-determination, and presents new options in designing electoral systems for consociational democracy. Specifically, the article considers seat-cap imposition and regressive representation, which are compatible with the principle of self-determination in deciding what ethnic groups should participate in power sharing, to overcome pre-determination-related problems in consociationalism. The pertinent questions to be discussed include how minority over-representation can be justified, how it can be balanced with the principle of ‘one person, one vote, one value’, and how to prevent possible collusive strategies by parties to artificially increase seats.
Korea has experienced ideological changes in the political sphere since society experienced ethnic diversity in the 1990s. The government urgently introduced new policy agenda ‘Damunhwa’ – multicultural – in the wake of up-surging social problems such as embracing cultural differences and human rights of foreigners as a salient issue following multicultural explosion with a large number of foreigners. As a result, many scholars argue that the Korean state response to cultural diversity has shifted from differential exclusion to assimilation toward immigrants in current society. However, it should be mentioned that it is implausible to link assimilation with a successful political ideology to manage ethnic diversity effectively. In this article, I argue that it is time to present a new political ideology for future directions in order to integrate ethnic minorities into a universally acceptable manner through consideration of the theory of group-differentiated rights in the context of Korean society.
In Afghanistan, minorities are subjected to harassment, intimidation and even death by Islamic fanatics and conservative leaders as they try to impose their own interpretation of religious scriptures and punish those who do not agree with their interpretation of religious precepts and follow their rulings. Application of such measures has impacted the safety and security of the gender-minority community, as its members are forced to hide their identities, and cannot speak about their sexual orientation. Government agencies and civil society organizations do not advocate for the rights of this community, and deliberately avoid any discussion about them, fearing a backlash from religious vigilantes, conservative religious leaders and clerics. A lack of public education and social awareness programs about the gender-minority community has contributed to the perpetuation of discrimination, hatred and bigotry toward them − a community that is part and parcel of the social fabric of modern Afghanistan.
This article explores how property rights have informed the peoples’ right to resources in Article 1(2) of the Human Rights Covenants. It examines practice in the interpretation of Article 1, as well as jurisprudence from the Inter-American and African human rights systems linking peoples’ rights and the right to property. It also highlights the pivotal role of protection of subsistence in making this connection. The right to resources can draw from different forms of property, including private, public, communal and traditional forms. Property rights under Article 1 have also applied to a broad range of communities, including indigenous peoples, subsistence farmers, traditional property owners, ethnic minorities, as well as the general population of a state. The common feature of these communities is their vulnerability in the protection of their means of subsistence, and this has linked property rights with Article 1.
The Inter-American system of human rights is hailed as being progressive in terms of the rights of Indigenous communities. Yet, an important economic activity in the Americas has a significant negative impact on such communities, without receiving the same international attention and resulting outcry as the activities of extractive industries: mass tourism. In October 2015, the Inter-American Court of Human Rights (iachr) issued its decision on the merits in the Comunidad Garífuna Triunfo de la Cruz y sus miembros v. Honduras case. Among other violations, one concerns the failure of the Honduran state to consult with and obtain free, prior and informed consent from the Afro-Indigenous community when it comes to the planning and implementation of tourism projects. Can the Court be more innovative and progressive with regard to the rights of Indigenous peoples of the Americas in the context of the multifaceted manifestations of tourism development?
Edited by Marianne Bøe
Non-territorial autonomy (NTA) has acquired a variety of meanings ranging from a vague principle (a ‘thin’ approach) to a distinct structural feature of an organization (a ‘thick’ approach). Almost all these interpretations rest on an uncritical reification of such notions as ‘group’ and ‘community’. It leads to an uncritical categorization as NTA of numerous different arrangements and practices, that duplicates the existing terminology and brings no added value to the study of these phenomena. Attempts to outline institutional settings for communal self-organization based on the same premises involve negligence of potential scenarios and outcomes. The author concludes that the interpretations of NTA based on groupist assumptions significantly limit analytic perspectives. Interpretations resting on a non-groupist approach can serve analytical purposes, but their application is optional and barely instrumental. Beyond this, NTA shall be regarded and studied as a category of practice and a matrix for framing diversity issues among policy-makers.
Bertus De Villiers
Decentralisation in its different forms is often associated with territorial governments, be it regional or local governments. There is a close correlation between decentralisation to territorial entities and the protection of minorities that live concentrated in those areas. This article challenges the presumption that decentralisation must by necessity require a territorial element. It is argued that if minorities establish corporate legal entities, various forms of decentralisation could be used to empower language, cultural and religious communities to look after their own affairs. Several case studies are referred to in order to illustrate how in practice non-territorial forms of self-government have been developed. Finally, recommendations are made for establishment of community government in different forms.
Mahanam Bhattacharjee Mithun
Since independence, different minority groups in Myanmar have experienced ethnic conflicts and violence. Among them, the Rohingya community face the worst challenges. Due to government-imposed restrictions and the denial of the government to grant them citizenship and constitutional rights, the Rohingya face many problems in their everyday life. This article aims at revealing the main reasons behind the ethnic conflicts in Rakhine state of Myanmar and the reasons that force the Rohingya people to flee the country to such a huge extent.
Belen Olmos Giupponi
This article highlights the advances and drawbacks in the recognition and implementation of the right to free, prior and informed consent (FPIC) of indigenous peoples in light of international litigation. Although a certain amount of progress has been achieved, this article demonstrates that a normative gap subsists between the international norms applicable and state practice. In exploring the topic, the article brings together diverse legal and theoretical components from several areas of law, some of which are not usually regarded as associated with FPIC. In particular, the article considers the interpretation of case law decided by international human rights bodies, regional human rights courts and investment tribunals, critically examining the constraints on their interpretation. The article concludes by analysing the various strategies followed to implement FPIC, and argues for an understanding of FPIC that reaches beyond the human rights arena.
Recent years have seen increases in demands for secession via referenda. Catalonia, Kurdistan, Quebec, Scotland, South Sudan and other polities have seen this process as a means of resolving sovereignty disputes. There is however, considerable academic, political and legal argument against secession and this study will explore these objections and shall ask if secession is an automatic right. It shall also investigate such referenda, comparing how they are convoked and ratified, and the legal and political aftermath once they have been held – if indeed they have been permitted.
Nora Ho Tu Nam and Yonatan Fessha
Increasingly, territorial autonomy features centrally in constitutions that seek to accommodate minority groups. What is not clear, however, is the place of territorial autonomy under international law. While often lauded as a means to manage ethnicity and increasingly recognised as an institutional solution by the constitutions of many countries, the question remains as to whether territorial autonomy has a basis under international law. The quest for the basis of territorial autonomy under international law begins with Article 27 of the ICCPR, followed by a discussion on Article 25 of the ICCPR, common Article 1 of the ICCPR and ICESCR and finally customary international law. The article argues that international law does not provide the basis for minority groups to claim territorial autonomy. It does not, however, exclude the state from providing territorial autonomy as one positive measure it can take to ensure the protection of the rights of the minority.
Md. Kamrul Hasan Arif
The problems concerning the Bihari community is one of the oldest long-standing issues between Bangladesh and Pakistan. In 1971, after the independence of Bangladesh, the Bihari lost their citizenship. Presently, they are stateless and living in various camps in different parts of Bangladesh. This community wanted to be repatriated to their own country, Pakistan, but it denied them citizenship status, although a large number have been repatriated to Pakistan as their country of origin. Recently, in March 2015 the Supreme Court of Pakistan rejected the issue of stranded Pakistanis in Bangladesh regarding repatriation or taking these people back. This article has tried to determine the status of the Bihari community, what a lasting solution might be, and what the role is of international organisations in helping this community under domestic and international law.
Sylvanus Gbendazhi Barnabas
There is no agreed definition of indigenous peoples (IPs) as the international community has not agreed to any. However, an examination of international instruments and literature on the subject presents a picture. This article examines the definition of IPs and its relevance to Africa. The case study of Abuja, Nigeria is used as a vehicle to challenge the existing descriptions of IPs. It argues that international law should expand its definition of IPs to include collectives of peoples with diverse cultures in Africa. Analogical insights are drawn from international child rights law to advance the argument that international law on IPs’ rights can learn from the evolution of international children’s rights law.
Key to Ethiopia’s remarkable political and economic changes is its transformation from highly homogenising and centrist rule to a federal system aiming at managing its complex diversity. The post-1991 dispensation has ended years of civil war, and served as a foundation for the impressive economic performance. Lately the country has continued to face wide-spread protests. How does one explain the paradox between an impressive economic performance versus growing political instability? Development is centrally designed and managed along with the identification of poverty as an existential threat against which all resources must be mobilised. This means that development takes overriding priority and a central role, compromising the constitutional autonomy of the states. The outcome as witnessed in the protests is new mobilisation and conflict unleashed by growing ethno-nationalism. The absolute dominance of a single vanguard party that monopolised power has also overshadowed institutions and sidelined political opposition while emboldening hardliners.
The article examines the case law of the ECtHR on immigration and asylum cases under ‘family life’ under ECHR Article 8. It argues that certain criteria of the Court in both admission and in expulsion cases do not appear to be particularly relevant to the actual notion of family life. We argue that besides its being scarcely relevant to the nature of family life, the ‘elsewhere approach’ applied by the Court in these cases is indirectly discriminatory for certain categories of aliens. Certain of the criteria taken into consideration in expulsion cases do not aim at measuring family life, but rather the level of integration that the immigrant enjoys in the hosting country. Rather recently, the Court seems to have even taken into account ‘financial considerations’ in its case law on family life. The article argues that a different approach in Article 8 admission and expulsion cases is necessary.
Among the main conditions for joining the European Union (EU) is the protection of human rights, and particularly the protection of minority rights. In this way, the EU has become an important external dynamic that changes domestic policies. In this article, the limits of Europeanization are analysed at two different levels: at the legal and at the societal level. In recent years, Serbia has adopted legislative changes that have increased the protection level granted to minorities in the country. However, its implementation/internalization is considered to be one of the biggest post-conflict problems in Serbia. This article argues that Europeanization has strong limitations regarding minority rights in Serbia. Looking to the situation of the Roma minority in the country, we try to access the limits of Europeanization at the societal level, arguing that they are still victims of discrimination, segregation and limited participation in public life.
Caecilia Alexandre and Konstantia Koutouki
If home is where the heart is, then home for the Chagossian people is the Chagos archipelago. The story of the Chagos people is not very well known, but it is a story of injustice and of a legal and political battle to bring an end to this injustice. Evicted from their homes following a decision by the British and American Governments to construct an Anglo-American military base on one of the archipelago’s islands, Diego Garcia, the Chagossians have fought in political and legal arenas for the right to return home for nearly 50 years. The basis for their demand to return home is well-founded under national and international legal principles. However, despite political and legal gains made throughout the years, the right to return home, remains elusive.
This article will discuss the extent to which legislation is effective in terms of changing individual and group behaviours. The specific focus of this article will be to argue that legislation pertaining to the use of the Welsh language in Wales, despite having expanded the domains of language use in an important way, has not shifted the cycle of language non-use that may be identified.
The size of the Muslim population in the United States is growing, while the number of hate groups also continues to increase across the states. Based on the social dominance theory and group threat theory, there may be a link between these two dynamics as social dominators become concerned about their group status, i.e. white Christian males. This potential relationship is explored in this article. Although there were significant positive correlations between the number of hate groups and the size of the Muslim population, a panelled negative binomial regression with a number of relevant control variables found that there was not a significant relationship between these variables at the 0.05 probability level. The article further explores these findings and future research in this area.
The article looks at the different facets of the on-going conflict in the Indian Northeast. After some background information, the article looks at the current political situation. There is a special focus on the voices of students. In the Indian Northeast, students have been actively involved in the insurgency and protest movements. Thus, the primary data for the purposes of this article was collected from students of Northeastern origin in the city of Kolkata. Although Kolkata is not in north-eastern India, it is seen as the gateway to the Indian Northeast and the nearest large city in the region, where people of Northeastern descent often come for their education and employment. The article also argues that out of all the Northeastern states, Manipur is currently the most troubled one. Finally, at the end of the article methods of peace building have been suggested as the way forward.