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Toward Participatory Equality: Protecting Minority Rights under International Law

Published online by Cambridge University Press:  19 March 2012

Yousef T. Jabareen
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Abstract

The principal claim made by this Article is that the realization of full and effective equality for all citizens and residents within a multi-ethnic state requires “participatory equality.” Creating a system of participatory equality entails, for most states, making drastic and fundamental changes to the state's legal system, public spaces, social and economic structures, and funding and space provided for ethnic, cultural, and religious institutions; however, this type of transformation is the only means of respecting human dignity and ensuring peace. This claim is first made as a normative moral claim based on principles of justice and dignity; as this Paper will show, a broad and effective interpretation of international law concerning minority rights supports the same normative claim.

This Article first reviews existing international law and other legal frameworks regarding national minority rights, including discussions of the specific case of indigenous peoples'rights and the intersection between individual and collective rights. The bulk of the Paper proposes a universal model, building upon existing legal frameworks, for building participatory equality for all members of a society, which requires the full and equal sharing of its resources in three primary domains: the public, the internal, and the historical domain. The need for such a model is all the more so for indigenous and minority groups of substantial size living under systems that cater to a majority based on ethnicity, religion, race or other dominant traits. Only when a nation's legal system secures the rights of all citizens to share equally in all of these domains can that nation fulfill the purpose of international minority rights legal bodies and deliver substantive equality to majority and minority concerns, both in law and practice.

Type
A Symposium on Constitutional Rights and International Human Rights honoring Professor David Kretzmer
Information
Israel Law Review , Volume 41 , Issue 3 , Winter 2008 , pp. 635 - 676
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2008

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References

1 Vijapur, Abdulrahim P., International Protection of Minority Rights, 43 Int'l Stud. 43, 4 1–2 (2006)Google Scholar.

2 See generally United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, United Nations, G.A. Res. 47/135, U.N. Doc. A/RES/47/135 (Dec. 18, 1992), available at http://www.un.org/documents/ga/res/47/a47r135.htm. See also Thornberry, Patrick, The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observation, and an Update, in Universal Minority Rights 13 (Phillips, A., Rosas, A. eds., 1995)Google Scholar; Thornberry, Patrick, International Law and the Rights of Minorities (1991)Google Scholar; Lerner, Natan, Group Rights and Discrimination in International Law (2001)Google Scholar. For a discussion in the European context, see The Rights of Minorities—A Commentary on the European Framework Convention for the Protection of National Minorities (Weller, Marc ed., 2005)Google Scholar.

3 Kymlicka, Will, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (2001)CrossRefGoogle Scholar [hereinafter Kymlicka, Politics in the Vernacular]; Kymlicka, Will, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995)Google Scholar [hereinafter Kymlicka, Multicultural Citizenship]. Young, Iris, Justice and the Politics of Difference (1990)Google Scholar.

4 See Minority Rights Group International Report: Baldwin, Clive, Chris Chapman, & Zoë Gray, Minority Rights: The Key to Conflict Prevention 2 (2007)Google Scholar.

5 See, id. at 1-5. According to Baldwin, Chapman, & Gray: ‘When minority rights are enshrined in constitutions, and implemented through electoral, justice and education systems before a conflict has the chance to fester, there is a chance that conflict might not occur at all.” Id. at 2.

6 See Thornberry, Patrick, An Unfinished Story of Minority Rights, in Diversity in Action 47 (Bíró, A.M., & Kovács, P. eds., 2001)Google Scholar, available at http://lgi.osi.hu/publications/books/Diversity_in_Action/1_3.PDF (last visited Oct. 22, 2008).

7 For example, one of the primary sources of minority protections in international law, the International Covenant on Civil and Political Rights, art. 27, Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR] is formulated “in an extremely cautious, vague manner” and “leaves many questions open, for which an answer must be found by way of interpretation.” See Nowak, Manfred, UN Covenant on Civil and Political Rights—CPR Commentary 485 (1993)Google Scholar. See also Articles 31 and 32 of the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, reprinted in 8 I.L.M. 679, entered into force Jan. 27, 1980.

8 Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities U.N. Doc. E/CN.4/Sub.2/384/Rev.1 (1979), at 7.

9 Id. at ¶ 568. The subjective elements of defining a group as a minority were well described by the Permanent Court of International Justice as early as 1930, when it referred to minorities or communities as:

a group of persons living in a given country or locality, having a race, religion, language and traditions of their own and united by this identity of race, religion, language and traditions in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, ensuring the instruction and upbringing of their children in accordance with the spirit and traditions of their race and rendering mutual assistance to each other.

The Greco-Bulgarian Convention on Emigration, Advisory Opinion, 1930 P.C.I.J. (ser. B) No. 17, at 19 (July 31).

10 Capotorti, Francesco, Minorities, 8 Encyclopedia of Public International Law 385 (Bernhardt, R. ed., 1985)Google Scholar.

11 Human Rights Committee, General Comment 23, The Rights of Minorities (Art. 27), U.N. DOC. HRI/GEN/1/Rev.1 at 38 (1994)Google Scholar Human Rights Committee, General Comment 23, The Rights of Minorities (Art. 27), U.N. Doc. HRI/GEN/1/Rev.1 at 38 (1994)Google Scholar [hereinafter General Comment 23].

12 Kymlicka, Will, The Internationalization of Minority Rights, 6 Int'l J Con L. 1 (2008)Google Scholar. See also McGarry, John, O'Leary, Brendan, & Simeon, Richard, Integration or Accommodation? The Enduring Debate in Conflict Regulation, in Constitutional Design for Divided Societies: Integration or Accommodation? (Choudhry, Sujit ed., 2008)Google Scholar.

13 Hayman, Robert L. Jr., & Levit, Nancy, The Constitutional Ghetto, 1993 Wisc. L. Rev. 627, 674 (1993)Google Scholar. The author treated this argument broadly in another work: Jabareen, Yousef T., Law, Minority and Transformation: A Critique and Rethinking of Civil Rights Doctrines, 46 Santa Clara L. Rev. 513 (2006)Google Scholar. See generally Derrick Bell, Race, Racism and American Law (2004)Google Scholar.

14 Kymlicka, Will, A Crossroads in Race Relations, in Politics in the Vernacular, supra note 3, at 177Google Scholar.

15 See Kymlicka, Multicultural Citizenship, supra note 3 at ch. 6.

16 Kymlicka, The Internationalization of Minority Rights, supra note 12.

17 Thornberry remarks that in many states, the culture, history, and traditions of minority groups are subject to “distorted representations, producing low self-esteem in the groups and negative stereotypes in the wider community.” Thornberry, Patrick, The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observations, and an Update, supra note 2, at 49Google Scholar.

18 See, e.g., Stavenhagen, R., Cultural Rights and Universal Human Rights, in Economic, Social and Cultural Rights 63 (Eide, A., Krause, C., & Rosas, A., eds., 1995)Google Scholar.

19 Jabareen, , Law, Minority and transformation, supra note 13, at 526–27Google Scholar. See Margalit, Avishai & Halbertal, Moshe, Liberalism and the Right to Culture, 61 SOC. RESEARCH, 491, 492 (Fall 1994)Google Scholar:

[A] liberal state may not be neutral with respect to the cultures of minorities, especially those in danger of dwindling or even disappearing. The state is obligated to abjure its neutrality, in our view, not for the sake of the good of the majority, but in order to make it possible for members of minority groups to retain their identity.

20 See Lerner, supra note 2, at 24.

21 Obviously in such a situation the legitimacy required to establish the basic legal framework is undermined, both at the local level and at the international level. For an in-depth comparative discussion of the important insights arising from the South African experience in establishing a new democratic constitution, see Gross, Aeyal, The Constitution Reconciliation and Transitional Justice: Lessons from South Africa and Israel, 20 Stan. J. Int'l L. 47 (2004)Google Scholar.

22 See General Comment 23, supra note 11; See generally Anaya, S. James, Indigenous Peoples, in International Law 95–215 (2nd ed. 2004)Google Scholar; Universal Minority Rights, supra note 2; Bloch, Ann Christine, Minorities and Indigenous Peoples, in Economic, Social and Cultural Rights 373–88 (Eide, A., Krause, C., & Rosas, A. eds., 2001)Google Scholar. Lerner, Natan, The Evolution of Minority Rights in International Law, in Peoples and Minorities in International Law 77 (Brolmann, Catherine et al. eds., 1993)Google Scholar.

23 Vijapur, supra note 1, at 368.

24 Id.

25 Id.

26 Id. at 369.

27 Covenant of the League of Nations, Versailles, June 28, 1919, entered into force Jan. 10, 1920, 112 B.F.S.P. 13.

28 U.N. Charter.

29 See Vijapur supra note 1, at 369.

30 Thornberry, , An Unfinished Story of Minority Rights, supra note 6, at 53Google Scholar.

31 Vijapur, supra note 1, at 370.

32 Universal Declaration of Human Rights, G.A. Res. 217A(III), art. 13, ¶ 1, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948).

33 European Convention on the Protection of Human Rights and Fundamental Freedoms, art. 14, Nov. 4, 1950, 213 U.N.T.S. 222.

34 ICCPR, supra note 7, art. 27.

35 General Comment 23, supra note 11, at ¶ 5.2

36 Id. ¶ 6.1.

37 See the writings of Thornberry, Eide and Capotorti for discussions on the positive rights that must be concluded from the text of the General Comment 23, supra note 11 and the spirit of the Covenant as a whole.

38 Currently, 160 states are party to the Covenant.

39 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, supra note 2.

40 It should be noted that although the Declaration on Minorities, id., calls for collective minority rights, it, too, remains silent on the issue of granting minorities “self-determination.” The term has become in many ways an international taboo, not because it, in and of itself, means secession, but because states parties have been fearful that granting the right to groups, rather than non-sovereign nations under colonial control, could have a snowball effect that is yet understood fully.

41 The European Framework Convention for the Protection of National Minorities, Feb. 1995, E.T.S. 157, entered into force Jan. 2, 1998 [hereinafter the Framework Convention].

42 See Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, supra note 8; Thornberry, An Unfinished Story of Minority Rights, supra note 6.

43 Jus cogens is a peremptory principle of international rule, rendering it customary international law, from which no derogation is allowed. In Brownlie, Ian, Principles of Internattonal Law 513 (1979)Google Scholar, Brownlie includes the prohibition of racial discrimination among the least controversial examples of jus cogens.

44 See, e.g., the Convention on the Prevention and Punishment of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, entered into force Jan. 12, 1951 [hereinafter Genocide Prevention Convention] granting some minority rights via its national, ethnic, racial and religious criteria (not including linguistic minorities). This convention is also significant in that it defines “genocide” broadly to include cultural, as well as biological and physical harm; in other words, a population does not have to be eliminated in order to have undergone a form of genocide under the Convention. Furthermore, as Vijapur suggests, the right to exist as a group is generally inferred through the Convention. Vijapur, supra note 1, at 373. See also the International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195 [hereinafter ICERD] (providing special measures for the advancement of racial and ethnic groups); the Convention on the Rights of the Child, art. 30, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC], children of minority and indigenous populations shall not be denied the right to enjoy their culture, practice their religion, or use their own languag—similar wording to Article 27 of the ICCPR, supra note 7); International Covenant on Economic, Social, and Cultural Rights, arts. 13-15, Dec. 16, 1966, 993 U.N.T.S. 3 [hereinafter ICESCR] (Articles 13, 14 and 15, and the Committee guidelines on Article 15 requiring states parties to report on the “promotion of cultural identities as a factor of mutual appreciation among individuals, groups, nations and regions as well as promotion of awareness and enjoyment of the cultural heritage of national ethnic groups and minorities of indigenous peoples”); the 1960 UNESCO Convention against Discrimination in Education, Dec. 14, 1960, entered into force May 22, 1962; and the 1978 UNESCO Declaration on Race and Racial Prejudice, U.N. Doc. E/CN.4/Sub.2/1982/2/Add.1, annex V (1982).

45 See Eide, Asbjørn, Minority Protection and World Order: Towards a Framework for Law and Policy, in Universal Minority Rights, supra note 2, at 87Google Scholar, see especially 105.

46 See, e.g., the South African Constitution, particularly art. 31 on Cultural, religious and linguistic communities; the Northern Ireland “Good Friday” or “Belfast” Agreement of 1998; and the several Canadian laws protecting the rights of the French-speaking minority passed over the last few decades. For a discussion of the Northern Ireland experience, see Alcock, Antony, From Conflict to Agreement in Northern Ireland: Lessons from Europe, in Northern Ireland and the Divided World: The Northern Ireland Conflict and the Good Friday Agreement in Comparative Perspective 169 (McGarry, John ed., 2001)Google Scholar; Thompson, Brian. Transcending Territory: Towards an Agreed Northern Ireland?, 6 Int'l J. On Minority & Group Rts. 235 (1999)CrossRefGoogle Scholar.

47 See broader discussion at Section IV infra.

48 See, e.g., Young, Iris, Inclusion and Democracy (2000)Google Scholar, especially at 148; Keith Banting, Thomas J. Courchene, & F. Leslie Seidle, The Art of the State III: Belonging? Diversity, Recognition and Shared Citizenship in Canada (2007);

Choudhry, Sujit (ed.), Constitutional Design for Divided Societies: Integration or Accommodation? (2008)Google Scholar;

49 Lawrence, Charles R. III, Race, Multiculturalism, and the Jurisprudence of Transformation, 47 Stan. L. Rev. 819, 836 (1995)Google Scholar.

50 Id. at 825.

51 Of course, the minority group's relationship to participation may be a complex one. Some members of minority groups would prefer not to take part in the majority society at all. But the point of enshrining a right of participatory equality is that minorities must be given the opportunity to participate if they choose. Furthermore, there is reason to think that if a group is made to feel included by the majority, members of the group will come to feel more inclined to participate.

52 General Comment 23, supra note 11, at ¶ 7. “With regard to the exercise of the cultural rights protected under article 27.… The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.”

53 Framework Convention, supra note 41, art. 15.

54 See the Declaration on Minorities, supra note 2, ¶¶ 2.2 & 2.3.

55 The Lund Recommendations, available at http://www.osce.org/documents/hcnm/1999/09/2698_en.pdf (last visited Oct. 26, 2008).

56 The OSCE's 56 current member states include the United States, the UK, France, Germany, Russian Federation, Canada, Denmark, Finland, Georgia, Ukraine, Tajikistan, Uzbekistan, Turkmenistan, among others. For a complete list see http://www.osce.org/about/13131.html (last visited Oct. 26, 2008).

57 The Lund Recommendations, supra note 55, at 5, ¶ 1.

58 See ICCPR, supra note 7.

59 See ICESCR, supra note 44.

60 Equal application of rights will sometimes require initiation of a temporary policy of affirmative (preferential) action, the aim of which is to benefit those suffering from discrimination (in a manner that appears to detract from equality) in order to achieve substantial equality and to close gaps created as a result of such discrimination.

61 See General Comment 23 supra note 11, at ¶¶ 6.2 and 9, distinguishing the individual and personal freedoms granted to every person from the minority's right, in community with its other members, to enjoy and practice its religion, language, and culture, and to preserve and develop its unique “cultural, religious and social identity” (¶ 9).

62 See Kymlicka, Multicultural Citizenship, supra note 3, chs. 6-7. See also, Kymlicka, Politics in the Vernacular, supra note 43.

63 See Kymlicka, Multicultural Citizenship, supra note 3, chs. 6-7. See also Kymlicka, Politics in the Vernacular, supra note 3.

69 See Jamal, Amal, On the Morality of Arab Collective Rights in Israel, 12 Adalah Newsletter (2005)Google Scholar, available (in English) at http://www.adalah.org/newsletter/eng/apr05/ar2.pdf.

The demand for collective rights does not replace the demand for full citizenship equality, but rather complements it. Collective rights are increasingly viewed as a precondition for guaranteeing individual equality. They entail the demand for self-government in several aspects of [public life] in [a state] such as education, communication, planning, control over resources, social welfare and development.

Id. at 1.

65 On women's rights, see Okin, Susan M. (with respondents), Is Multiculturalism Bad for Women? (Cohen, Joshua, Howard, Matthew, & Nussbaum, Martha eds., 1999)Google Scholar; Shachar, Ayelet, Multicultural Jurisdictions: Cultural Differences and Women's Rights (2001)CrossRefGoogle Scholar; on minority issues, see Kymlicka, Multicultural Citizenship, supra note 3, at chs. 3 & 5.

66 Will Kymlicka asserts that this balance has been maintained in Western Europe:

the consolidation of robust legal mechanisms for protecting human rights and the development of a human rights culture, generally, have provided guarantees that the accommodation of minority claims to self-government would not result in islands of tyranny in which the basic security or rights of citizens would be in jeopardy.

Kymlicka, The Internationalization of Minority Rights, supra note 12. In international law, most of the minority rights texts include a provision subjecting group rights to association to national and international human rights norms. See, e.g., Working Group on Minorities of the Sub-Commission on the Promotion and Protection of Human Rights, Commentary to the U.N. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, U.N. Doc. E/CN.4/Sub.2/AC.5/2001/2 (Apr. 2, 2001) (prepared by Eide, Asbjørn)Google Scholar [hereinafter Commentary on the Declaration of Minorities].

67 Finding the proper balance of collective rights and individual rights in hard cases may defy a clear theoretical solution and depend on a careful analysis of context in particular situations. In order to balance these rights, the nature of both individual and collective rights must be fully described; given this Paper's contention that collective rights are still not fully described, the question of balancing falls outside the scope of the present project of describing those rights.

68 Interestingly, Thornberry suggests that states have been reluctant to read collective minority rights into international law for three main reasons: First, they fear that collective rights will create separate legal entities with authority that could surpass their state and territorial sovereignty. Second, sovereign states worry that collective rights will lead to separatist movements, threatening territorial and social cohesion. Third, Thornberry points to “cultural relativism,” the notion that majority groups worry that allowing minorities autonomy over their lives will give them a carte blanche to oppress women, children, non-believers, political dissenters and the like. (Thornberry notes the irony here, “as if no government ever oppressed its people.”) Thornberry, , An Unfinished Story of Minority Rights, supra note 6, at 71Google Scholar.

69 This inclusion is perhaps also in order to ensure that states do not decide that cultural, religious, linguistic and other rights should only be practiced in private or in group forums.

70 In fact, the right to identity as a collective right may be derived from several bodies of international law, including: the UNESCO Constitution, Nov. 16, 1945, 4 U.N.T.S. 275; the Genocide Prevention Convention, supra note 44 (via granting the right to exist as a group), and the U.N. Declaration of Indigenous Rights of Indigenous Peoples, G.A. Res., 61st Sess., 107th & 108th plen. mtg. U.N. Doc, A/61/L.67 (Sept. 2007) [hereinafter Declaration on Indigenous People]. The Draft Declaration on Indigenous Peoples was adopted in 1994 but was never adopted by the General Assembly. Only following decades of negotiations did the General Assembly finally adopt on September 13, 2007. For further discussion on sources of collective rights, see Vijapur, supra note 1, at 375 ff.

71 Minority Rights Group Report of 2007 at 2.

72 Special Rapporteur to the U..N Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination against Indigenous Populations, U.N. Doc. E/CN.4/Sub.2/1986/7 and Add. 1-4 (1986) (prepared by Jose Martinez-Cobo).

73 Contrary to indigenous minorities, immigrant minorities are generated by the transition of individual immigrants from their native land to another country. It is customary to view this voluntary transfer as a kind of consent by the individual immigrants to integrate and be absorbed into the new society.

Some have critiqued granting special indigenous people's rights because they threaten the sovereignty of the new nation state. However, Jamal argues that while indigeneity “challenges the legitimacy of the colonial state,” it does not justify secession. Rather, the purpose of acknowledging the indigeneity of a minority group is to “secur[e] patterns of shared sovereign accommodation in ways that preserve and enhance indigenous cultural autonomy and territorial groundedness, while guaranteeing an inherent and collective right to self-determination over land, identity and political voice.” See Jamal, supra note 64, particularly at 6. See also General Comment 23. supra note 11, ¶ 3.2.

74 Abolition of Forced Labour Convention (ILO No. 105), June 25, 1957, 320 U.N.T.S. 291, Can. T.S. 1960 No. 21 entered into force Jan. 17, 1959 [hereinafter AFLC].

75 Indigenous and Tribal Peoples in Independent Countries (ILO No. 169) 72 ILO Official Bull. 59; reprinted in 28 I.L.M. 1382 (1989)Google Scholar [hereinafter ILO No. 169].

76 Kymlicka, , The Internationalization of Minority Rights, supra note 12, at 2–4Google Scholar. For a broader discussion of the differences in international law between indigenous groups and national minorities, see Kymlicka, , Theorizing Indigenous Rights, in Politics in the Vernacular, supra note 3, at 120–32Google Scholar.

77 Alternatively, one could follow the approach of Will Kymlicka and argue that international law should simply give all national minorities the same rights currently given to indigenous groups. As Kymlicka points out, the distinction between the two categories is conceptually ambiguous, since both indigenous groups and national minorities are part of the larger category of “homeland minorities,” or groups that “have been historically settled within a particular part of a country for a long period of time and, as a result of that historical settlement, have come to see that part of the country as their historic homeland.” Kymlicka, The Internationalization of Minority Rights, supra note 12, at 5. Because of this commonality, “whatever arguments exist for recognizing the rights of indigenous peoples to self-government also apply to the claims for self-government by other vulnerable and historically disadvantaged homeland groups.” Id. at 7. The present Article retains the distinction between indigenous groups and national minorities because it is central to existing international law, but Kymlicka's approach deserves further attention.

78 See the Declaration on Minorities, supra note 2, art. 4; the ICCPR, supra note 7, art. 2. See also Thornberry, , An Unfinished Story of Minority Rights, supra note 6, at 48Google Scholar.

79 See, e.g., the Declaration on Minorities, supra note 2, art. 1.1; Framework Convention, supra note 41, art. 5; and the Genocide Prevention Convention, supra note 44. See also Commentary on the Declaration on Minorities, supra note 66, at commentary on Article 1.

80 Jabareen, supra note 13, at 513-34.

81 General Comment 23, supra note 11, ¶ 6.1.

82 Commentary on the Declaration on Minorities, supra note 66, commentary on Article 5.1.

83 Id. at commentary on Article 4.5.

84 See Jamal, supra note 64, for more discussion, especially at 1 & 6.

85 The Declaration on Indigenous Peoples, supra note 70, art. 32.1.

86 See, e.g., the Framework Convention, supra note 41, art. 5; the Declaration on Minorities, supra note 3, art. 1.1; the ICCPR, supra note 8, art. 27; among others.

87 See Commentary on the Declaration on Minorities, supra note 66, at commentary on Article 1.1, at 2-3, in which he explains how the right to preserve one's identity innately includes the right to be free from assimilation.

88 A prime example of the feasibility of this idea comes from Canada, where

[o]n one side, the celebration of diversity has become a feature of the counry's very conception of itself, part of the conception of the “nation” that newcomers are invited to join. On the other side, the celebration of shared traditions, history, values and identity represents a decidedly secondary element in the glue that holds the country together.

Banting, Courchene, & Seidle, , The Art of the State III: Belonging? Diversity, Recognition and Shared Citizenship in Canada, supra note 48, at 654Google Scholar.

89 See Jamal, supra note 64, especially at 3.

90 See the ICCPR, supra note 7, art. 27; the Declaration on Minorities, supra note 2, art. 1.1; the Framework Convention, supra note 41, art. 5.1; The Declaration on Indigenous Peoples, supra note 70, arts. 11 & 12; CRC, supra note 44, arts. 29 & 30; International Convention on the Protection of the Rights of All Migrant Workers and Their Families, art. 31, Dec. 18, 1990, G.A.Res. 45/158 (annex), reprinted in 30 I.L.M. 1521 (1991)Google Scholar; ILO No. 169, supra note 75, art. 2(2)(b); as well as in regional instruments such as the OSCE 1990 Copenhagen Human Dimension Conference and the Geneva Meeting of Experts on National Minorities 1991. For an overview of rights concerning a group's cultural practices, see Kymlicka, , Multicultural Citizenship, supra note 3, at 30–31Google Scholar.

91 See General Comment 23, supra note 11, ¶¶ 6.1 & 7; the Declaration on Minorities, supra note 2, art. 2.1; see also Eide commentary on Article 2.

92 Again, Canada provides an example of an implementation of some of these policies: the Canadian government has “provided tangible support in various forms, including financial support for ethnocultural programs; funding for minority language instruction in schools; and affirmative action through the federal government's employment equity program.” Banting, Courchene, & Seidle, supra note 48, at 651.

93 See Kymlicka, , Multicultural Citizenship, supra note 3, at 111Google Scholar: “one of the most important determinants of whether a culture survives is whether its language is the language of government.”

94 Interestingly, the opposite point was made in the June 20, 2004, session of the Knesset Constitution, Law and Justice Committee concerning “The Jewish State and Minority Rights” in which a Jewish member of the committee, Nissim Zeiev, claimed that “the majority feels that it belongs less to the State when it sees the writing [on signs, etc.] in Arabic.”

95 Such public services include, e.g., public health clinics, national post offices, public modes of transportation, and government offices such as the tax administration, social security, and the ministry of interior.

96 See Articles 16-23 in the Canadian Charter of Rights and Freedoms. Article 16(1) stipulates generally that “English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the parliament and government of Canada.” In the 1970s and 80s, Canada undertook a comprehensive conversion to bilingualism, including all governmental and public service authorities. See Magnet, Joseph Eliot, The Official Languages of Canada (Blais, Y. ed., 1995)Google Scholar; compare to the status of Hebrew and Arabic in Israel: Saban, Ilan & Amara, Muhammad, The Status of Arabic in Israel: Reflections on the Power of Law to Produce Social Change, 36 Isr. L. Rev. 5 (2002)CrossRefGoogle Scholar.

97 See, e.g., the Framework Convention, supra note 41, arts. 10 & 11; the Declaration on Minorities, supra note 2, art. 4; ICCPR, supra note 7, art. 27.

98 See, e.g., General Comment 23 supra note 11, at ¶ 5.3.

99 See Thornberry, , An Unfinished Story of Minority Rights, supra note 6, at 64Google Scholar.

100 See Commentary on the Declaration on Minorities, supra note 66, at commentary on Articles 2.2. & 4.3.

101 On the importance of education for civic integration, see Kymlicka, Will, Education for Citizenship, in Politics in the Vernacular, supra note 3, at 293Google Scholar.

102 This requirement is found in the Declaration on Minorities, supra note 2, art. 4.4, as well as in the ICERCD, supra note 44, art. 7, and CRC, supra note 44 art. 29.

103 See Van Dyke, Vernon, Human Rights, Ethnicity, and Discrimination, 10 Contributions in Ethnic Stud. 245 (1985)Google Scholar; See also introduction by Palley, Clair, Introduction, Minorities and Autonomy in Western Europe: Minority Rights Group Report 5 (1991)Google Scholar.

104 Young, Inclusion and Democracy, supra note 48. For a discussion of the importance of group representation see Kymlicka, Multicultural Citizenship, supra note 3, at ch. 7 (“Ensuring a Voice for Minorities.”) For recommendations of other strategies to increase minority representation in the Canadian context, see Banting, Courchene, & Seidle, supra note 48, at 676-79.

105 See id. at 143: “the right to self-government in certain areas does seem to entail the right to representation on any bodies which can intrude on those areas.”

106 For an interesting comparative discussion on what has been done in this field in Canada, see Saban, Ilan, Appropriate Representation of Minorities: Canada's Two Types Structure and the Arab-Palestinian Minority in Israel, 24 Penn State Int'l L. Rev. 563–94 (2006)Google Scholar. For a discussion of the dynamics of Quebec's veto power in Canada, see Hogg, Peter W., Meech Lake Constitution Accord Annotated 13 (1988)Google Scholar; Hogg, Peter W., Constitutional Law of Canada 53–77 (2nd ed. 1985)Google Scholar.

107 The Framework Convention, supra note 40, art. 4.2; the Declaration on Minorities, supra note 2, arts. 1-7.

108 Additionally, the Declaration on Minorities, supra note 2, arts. 1.2,2.2,2.3,4.5 and others, stipulates that states must enact special measures to ensure the full participation of minorities in public life. Professor Eide notes that it is essential that the state consult with minority representatives in deciding what those appropriate measures will entail. See Commentary on the Declaration on Minorities, supra note 66 at commentary on Articles 1.2, 5.2, 6, & 7 require that the legitimate interests of minorities be adequately considered not only within national decisions, but also in the realm of international cooperation and relations, with the intent of promoting understanding and confidence among the minority at both the national and international levels.

109 See Commentary on the Declaration on Minorities, supra note 66, at commentary on Articles 2.2. & 2.3.

110 See Kymlicka, , Multicultural Citizenship, supra note 3, at 137–38Google Scholar.

111 Packer, John, The Origin and Nature of the Lund Recommendations on the Effective Participation of National Minorities, 4 Public Life (Helsinki Monitor) 38 (2000)Google Scholar.

112 The ICCPR, supra note 8, arts. 17, 23, & 24; Articles 10 and 23 of the ICESR; European Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 33, arts. 8 & 12.

113 Gilbert, Geoff, Autonomy and Minority Groups: A Right in International Law?, 35 Cornell Int'l L.J. 307, 308 (2002)Google Scholar; Hannum, Hurst, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (rev. ed. 1996)CrossRefGoogle Scholar. For an overview of minority groups' demands for self-government, see Kymlicka, , Multicultural Citizenship, supra note 3, at 27–30Google Scholar. But cf. Okin, Susan Moller, Is Multiculturalism Bad for Women?, in Is Multiculturalism Bad for Women, supra note 65, at 9–24 (1999)Google Scholar.

114 See Raday, Frances, Self-Determination and Minority Rights, 26 Fordham Int'l L.J. 453, 479–97 (2003)Google Scholar; for a defense of self-government rights, see Kymlicka, , Multicultural Citizenship, supra note 3, at 108–15Google Scholar.

115 See, Gavison, Ruth, Does Equality Require Integration? A Case Study, 3 Democratic Culture 37 (2000)Google Scholar.

116 The Declaration on Minorities, supra note 2, art. 2.4.

117 Thornberry has rightly made it clear that there is a clear connection between effective participation, on the one hand, and autonomy, on the other. “Effective participation through local and national organization may”, as he explains, “necessitate the creation of autonomies to achieve the Declaration's standard.” Thornberry, , An Unfinished Story of Minority Rights, supra note 6, at 43Google Scholar.

118 It should be noted that the right to such self-determination was neither intended, nor may it be interpreted, as granting indigenous minorities the right to secede from the nation under whose sovereignty they live. See General Comment 23, supra note 11, at ¶ 3.1. As Professor Eide comments, the right to independence is not found in minority rights, but rather comes from a different set of rules and norms. Commentary on the Declaration on Minorities, supra note 66, at commentary on Article 8.4.

119 Lund Recommendations, supra note 55, ¶¶ 19 & 20.

120 The Declaration on Minorities, supra note 2, arts. 1.1, 2.5, & 4; Declaration on Indigenous People, supra note 70, art. 36.

121 It should go without saying that minorities—just like the majority population—must not use their institutions or connections outside the state for unlawful purposes. However, it is neither morally nor legally justifiable to prevent such internal or external contacts and gatherings based on the fear of illegal activities or sabotage. Taking such an approach disproportionately toward minorities constitutes unlawful discrimination.

122 See Kymlicka, , The New Debate Over Minority Rights, in Politics in the Vernacular, supra note 3, at 17-38, 36Google Scholar: “We could predict, then, that recognizing minority rights would actually strengthen solidarity and promote political stability, by removing the barriers and exclusions which prevent minorities from wholeheartedly embracing political institutions.”

123 Jamal notes that even in cases where the indigenous population is itself guilty of previous misappropriation of the prior population, the claim to the historical domain remains justified. Jamal, supra note 64, at 3. See in this context the ruling of the Australian court in Mabo v. Queesland [No. 2]. 175 CLR 1, 82: “The nation as a whole would remain diminished until there is an acknowledgement of, and retreat from, those past injustices.”

124 See generally, Working Paper: Prevention of Discrimination and Protection of Indigenous Peoples and Minorities: Indigenous Peoples and Their Relationship to Land, U.N. Doc. E/CN.4/Sub.2/AC.4/1996/2 (June 10, 1996) (prepared by Erica-Irene, A. Daes)Google Scholar. For an acknowledgement of the role of history in claims of self-determination, see Kymlicka, , Multicultural Citizenship, supra note 4, at 117Google Scholar: “If incorporation was involuntary (e.g. colonization), then the national minority might have a claim of self-determination under international law.” See also, Anaya, S. James, Indigenous Peoples, in International Law 95–215 (2d ed. 2004)Google Scholar. For further reading, see Minow, Martha, Historical Justice, in A Companion to Contemporary Political Philosophy 621 (Goodin, Robert, Pettit, Philip, & Pogge, Thomas eds., 2nd ed. 2007)Google Scholar.

125 It is important to recognize that compensation alone, rather than returning land, cannot satisfy the demands of corrective justice because it ignores the importance of the land itself and the population's ties to it. In cases where the state would have to displace new populations in order to return the land, it must be made clear to the minority that all feasible efforts were made to return as much of the land as possible in addition to the compensation given for loss of its use and the psychological damages caused by the disenfranchisement.

126 Commentary on the Declaration on Minorities, supra note 66, at commentary on Article 4.4. Eide notes that the same concern is expressed in Article 7 of the ICERD (supra note 44) and Article 29 of the CRC (supra note 44).