Fluent Essays

Content: The initial post clearly and descriptively states the writer’s claim and objective. The overall subject matter and/or material presented is appropriate for a college-level reader. All ideas are developed and supported in manner that accomplishes the writer’s purpose throughout the entire post.MLA Style: All in-text quotations and/or paraphrases are set-up and cited correctly. All Work Cited entries are cited correctly. Grading Scale: week_1.docx the_evolution_and_implementation_of_minority_rights__david_wippman_1_.pdf Unformatted Attachment Preview We are going to start this week with an overview of minority rights within the context of an ever-changing United States of America. In the attached PDF, David Whippmans offer both a concise history of minority rights and solid trajectory for emerging ways of viewing minorities and how they can empower themselves as distinct citizens and members of larger society. As Whippman notes, minorities by both U.S. and international agreement can maintain and grow their own ideology and lives within the confines of the nation. However, such an act is definitely easier said than done. For example, think about your daily lives and your interactions with your family, friends, community, etc. What distinct minority communities do they represent or personify? Now, I ask that you reflect personally because the field of Minority Studies is vast. As your course description makes clear, “topics may include race/ethnicity, gender, socioeconomic class, sexual orientation, national origin, age, disability, and religion” (State of Texas CB), and within those areas, lives, existence, etc., what part of Minority Studies interested you the most and why? As a course, we will endeavor to explore and better understand each type of minority community, but your responses and especially larger projects should focus on your own concerns and ideas about how minorities are represented or not represented in greater society. Does misunderstanding occur within these communities and/or society? Are they fairly characterized? The National Foundation on the Arts and the Humanities Act states that The term ‘humanities’ includes, but is not limited to, the study and interpretation of the following: language, both modern and classical; linguistics; literature; history; jurisprudence; philosophy; archaeology; comparative religion; ethics; the history, criticism and theory of the arts; those aspects of social sciences which have humanistic content and employ humanistic methods; and the study and application of the humanities to the human environment with particular attention to reflecting our diverse heritage, traditions, and history and to the relevance of the humanities to the current conditions of national life (U. S. Congressional Act that created the National Endowment for the Humanities). Thus, in this course, we have the advantage of being able to address various aspects of Minority Studies and, more importantly, respond to the past, present, and future of those peoples we hope to better understand. In other words, the course is more than a simple overview of minorities in the United States; it asks you to comprehend why and how minorities exist or are viewed within the context of the nation and culture. Discussion Board Question: For this week, read the attached Wippman article and comment on a specific sub-topic of his argument. Then offer your classmates a concise direction for your studies in this class. To accomplish these tasks well, note a definite idea or contention by Wippman and explain how it pertains to what you would like to learn in this course. Cite this article appropriately, and ensure that you are NOT simply summarizing his key points. We need to focus on application of the materials, rather than reiteration. Next, explain your area of interest to your classmates. (Yes, this initial notion will probably change, but we need a place to begin.) For example, you might be interested in Chicana/o communities, or you might want to better understand Gender Studies and the LBGT community. It is your choice. When you address this latter question, you must provide evidence for your reasoning and selection--i.e. this is a perfect place for your additionally required secondary source. Fordham Law Review Volume 66 | Issue 2 Article 10 1997 The Evolution and Implementation of Minority Rights David Wippman Recommended Citation David Wippman, The Evolution and Implementation of Minority Rights, 66 Fordham L. Rev. 597 (1997). Available at: http://ir.lawnet.fordham.edu/flr/vol66/iss2/10 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu. THE EVOLUTION AND IMPLEMENTATION OF MINORITY RIGHTS David Wippnzan* INTRODUCTION ]PEW issues in the history of the modern state have proved more X vexing than the relationship between majorities and minorities. Even the definition of minorities is contested-so much so that most contemporary international legal instruments dealing with minority rights fail to include a definition of the rights holders. Some theorists emphasize objective markers of identity, such as race, language, or religion, that distinguish members of minorities from other sub-state communities. Others focus on subjective characteristics, such as belief in common descent or possession of a shared culture.2 Most theorists insist that minorities can only be defined by a 3 combination of objective and subjective elements. For purposes of this essay, a precise definition is unimportant. It is necessary only to recognize that the defining characteristics of minorities, whatever they may be in a particular case, are sufficient to set the group apart from the rest of the society in the eyes of both the groups members and outsiders.4 This perception of difference lends itself to political mobilization, whether on behalf of minorities or against them, and therein lies the central difficulty of minority-majority relations.5 * Associate Professor, Cornell Law School. 1. See John Packer, On the Definition of Minorities, in The Protection of Ethnic and Linguistic Minorities in Europe 23, 24-27 (John Packer & Kristian Myntti eds., 1993). 2. See Louis B. Sohn, The Rights of Minorities, in The International Bill of Rights: The Covenant on Civil and Political Rights 270, 276-80 (Louis Henkin ed., 1981). 3. A widely-cited definition combining objective and subjective characteristics defines a minority as a: group numerically inferior to the rest of the population of a State, in a nondominant position, whose members-being nationals of the State-possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language. Francesco Capotorti, Study of the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, Sub-Commission on Prevention of Discriminationand Protection of Minorities, U.N. ESCOR, 30th Sess., para. 568, U.N. Doc. EJCN.41Sub. 2/3841 REV. 1 (1979). 4. Ted Robert Gurr, Minorities at Risk: A Global View of Ethnopolitical Conflicts 3 (1993). 5. Cf Inis L. Claude, Jr., National Minorities: An International Problem 1 (1955) (Whenever a political society comprises a group of persons who exhibit characteristics which differentiate them from the bulk of the members of that society in any respect which is felt to be politically relevant, a minority problem arises.). FORDHAM LAW REVIEW [Vol. 66 Throughout the history of the modem nation-state, governments have had a tendency to view minorities, especially politically self-conscious minorities, as a potential threat to the political unity or territorial integrity of the states in which they reside. When governing elites perceive such a threat, they tend to react in one of two ways. One response is to try to contain the perceived threat by eliminating or lessening the differences between majorities and minorities. This approach may entail policies of assimilation, coercive or induced, or more drastic measures, such as population exchanges, ethnic cleansing, and even genocide.6 A second response also seeks to contain the perceived threat posed by minority groups, but attempts to do so by protecting and promoting the rights of minorities. The theory is that if this is done, it may be possible to eliminate, or at least lessen, the incentives minorities might have to mobilize politically in ways that endanger the unity of the state.7 Within each response category the list of policy options is long. Some policy options are clearly barred by the most basic notions of human rights. Even eliminating such options, however, leaves a broad range of possibilities. Most of these have been tried at one time or another, but the conditions under which specific policy options have been attempted vary so widely that a particular policys success or failure in one context says little about its likely utility in another. The resultant difficulty in drawing historical lessons may help explain why international lawyers and decision-makers have long been deeply ambivalent about the content of international instruments designed to protect minority rights. For the most part, international laws normative response to questions of minority-majority relations has tended to oscillate between an individual rights focus that implicitly favors assimilation of minorities into the larger society of their states, and a quasi-collective rights focus that stresses protection and promotion of minority identities. Accompanying this normative dichotomy are a host of enduring practical issues, such as the relative roles to be played by universal, regional, and local actors, and the appropriate balance between judicial and political responses to minority rights issues. This essay briefly canvasses the different approaches to minority rights taken since World War I, and considers the means now available to implement existing and proposed legal protections for minorities. My conclusion from this review is that minority rights questions are so inherently context-sensitive that it is impractical (and counterproductive) to pursue detailed, judicially enforceable normative codes of universal applicability. Instead, it is better to press for broad acceptance of a limited set of general principles, some of which, like the non6. See Milton J. Esman, Ethnic Politics 40-45 (1995). 7. See id. 1997] HUMAN RIGHTS IMPLEMENTATION discrimination norm, are already well established, and to use those principles as a guide for pursuing political resolutions of minority-majority disputes in societies polarized along those lines. I. A BRIEF HISTORY OF MINORITY RIGHTS IN THE MODERN ERA The history of minority rights in the twentieth century does not show a linear evolution towards a consensus position. To the contrary, the contemporary approach to minority rights more closely resembles post-World War I attitudes than post-World War II views in manythough by no means all-respects. A. The League of Nations Approach In the aftermath of World War I, the claims of national groups both large and small dominated the international legal agenda. Those claims, which ranged from demands for equal treatment with majority populations to independent statehood, varied in accordance with the historical, territorial, political, and ideological positions of the states and minorities concerned. In addressing the demands of both majorities and minorities in the states reconfigured as a result of the war, the post-war decisionmakers, led by Woodrow Wilson, largely accepted the prevailing logic of nationalism, the notion that the boundaries of the nation and the state should coincide.8 To a considerable but inconsistent extent, they embedded that logic within the principl of self-determination and applied it to the task of redrawing the map of Europe. To a surprising degree, the framers of the Peace of Versailles succeeded in rearranging state boundaries in Eastern and Central Europe so that most members of self-conscious national groups found themselves within states dominated by their co-nationals.9 But the vagaries of history, geography, and politics made it impossible to give every nation a state of its own. As a result, some 20-30 million people found themselves continuing in, or newly cast in, the role of national minorities. 10 The states heading up the 1919 Paris Peace Conference feared that in many cases their newly drawn boundaries might perpetuate-or even accentuate-tensions between majorities and minorities, particularly in those states in which members of previously separate ethnic groups were joined together in a new or reconfigured state. In the view of the Conference participants, the stability of the new states, and therefore international peace, might be jeopardized either as a 8. See Packer, supra note 1, at 35-36. 9. See Claude, supra note 5, at 12 (The principle of one nation, one state was not realized to the full extent permitted by the ethnographic configuration of Europe, but it was approximated more closely than ever before.). 10. See id. at 13; Edmund C. Mower, International Government 455 (1931). 11. See Claude, supra note 5, at 13-15. FORDHAM LAW REVIEW [Vol. 66 result of discriminatory or arbitrary treatment of national minorities by national by majorities, or because of unreasonable demands made 12 minorities who wished to shed their minority status. To preserve international peace, and, to a lesser extent, to protect the legitimate interests of members of national minorities, the Peace Conference insisted that the defeated or newly reconfigured states accept a set of treaty obligations designed to protect the interests of minority group members and thus to minimize the significance of territorial boundaries for the individuals and groups concerned. 13 The minorities treaties that resulted included protections designed to insure formal equality for all individuals through provisions mandating non-discrimination and equal treatment under the law, and protections designed to ensure factual equality for members of minority groups. This was to be accomplished through provisions mandating positive steps to enable minorities to maintain the cultural, linguistic, religious, and other differences that distinguished them from the rest 14 of the states population. With some exceptions, the minorities treaties did not formally establish collective rights; instead, they offered protections to members of minorities as individuals. 5 Nonetheless, special measures designed to enhance the ability of minorities to enjoy group-specific interests, including language, religion, and culture, had the practical effect of advancing the interests of minorities as collectivities. Moreover, associations formed by minorities were on many occasions declared capable of exercising the right of petition. 6 Thus, as a practical matter, the League of Nations protection regime superimposed some elements of collective rights on a formally individual rights approach to moderating majority-minority tensions. This innovative system for the protection of minorities was guaranteed by the League of Nations through treaty arrangements with the affected states that combined political oversight by the League Council with rights to refer certain issues to adjudication by the Permanent Court of International Justice. 7 In addition, the League Council sup12. See id.; see also Capotorti, supra note 3, para. 92 ([A]rbitrary treatment of minorities on the part of the states with whose populations they had been joined would have endangered world peace.). 13. Claude, supra note 5, at 14-15. 14. See, e.g., Advisory Opinion, Minority Schools in Albania, 1935 P.C.I.J. (ser. A/ B) No. 62, at 17 (April 6) (stating that one goal of the treaty at issue was to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions, their national characteristics, including race, language, and reli- gion); Capotorti, supra note 3, para. 100 ([Plrovision was made for special measures deriving from the idea of safeguarding the values peculiar to each minority group, namely, language, religion and culture.). 15. Capotorti, supra note 3, para. 101. 16. Id. 17. Id. para. 104. In addition to the international guarantees offered by the League, affected states agreed that treaty provisions pertaining to minorities shall be 19971 HUMAN RIGHTS IMPLEMENTATION plemented the treaty mechanisms with a right of petition, which enabled minorities as well as Council members to advise the League of Nations of any infraction or danger of infraction of rights protected by treaty. The League also established Minorities Committees to examine petitions; in many cases these Committees negotiated with the governments concerned on behalf of the affected minorities.1 9 Despite some successes, this system suffered from a number of serious flaws. Two stand out. First, the League system by design applied only a carefully circumscribed set of rights to a small number of states.2 The League quite deliberately did not establish a general jurisprudence applicable wherever racial, linguistic or religious minorities existed 2 Instead, it relied on country-specific treaties and declarations designed to facilitate the solution of minority problems in countries where owing to special circumstances, these problems might present particular difficulties. Countries singled out by the great powers for the special restrictions of the League system bitterly resented what they viewed as a violation of sovereign equality and an affront to their status as independent, sovereign states.23 A second problem with the Leagues system was that the terms of the minorities treaties satisfied no one. Many of the affected minorities viewed the protections as inadequate, and resented the fact that they lacked legal standing as corporate entities to challenge infractions directly before the League Council.24 The minority states feared recognized as fundamental laws, and that no law, regulation or official action shall conflict or interfere with these stipulations, nor shall any law, regulation or official action prevail over them. Id. para. 103 (quoting Protection of Linguistic, Racial or Religious Minorities by the League of Nations: Provisions Contained in the Various InternationalInstruments at Present Force, Series of League of Nations Publications, I.B. Minorities, 1927 I.B.2 (C.L.110. 1927.1, annex) 42). 18. See id. para. 108 (quoting Protection of Linguistic, Racial or Religious Minorities by the League of Nations: Provisions Contained in the Various InternationalInstruments at Present Force, Series of League of Nations Publications, I.B. Minorities, 1927 I.B.2 (C.L.110. 1927.1, annex) 7 (quoting the report of Special Rapporteur Tittoni)). 19. Id. para. 122. 20. The limited geographic scope of the minorities treaties stems directly from the fact that it was not humanitarian principle, but political necessity in certain regions, that was the basis and the origin of the League minority protection s)stem. Capotorti, supra note 3, para. 131 (quoting T. H. Bagley, General Principles and Problems in the Protection of Minorities 68 (1950)). 21. Claude, supra note 5, at 16-17 (quoting Information Section, LN Secretariat, The League of Nations and the Protectionof Minorities of Race, Language and Religion 16 (1927)). 22. 1i. 23. Id. at 30-35. The affected states demanded that the minorities treaty system be made generally applicable to all states, knowing that no such demand would be accepted, and hoping it might hasten the termination of the restrictions applying to them. Id. 24. Although minorities did have a right of petition, they could only present information to the League Council. They did not have standing to appear before the Council to argue their case. Id. at 41. Moreover, any state accused of an infraction FORDHAM LAW REVIEW [Vol. 66 that the protections offered to minorities would impede[ ] the process of natural assimilation, sharpen internal political and social divisions, create states within the state, an ... 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