Title: Protecting Minority Rights: Addressing Persecution and En

dissertations

Title: Protecting Minority Rights: Addressing Persecution and Ensuring Equality under International Human Rights Law

Abstract:

This research proposal seeks to explore the intricate dynamics surrounding the protection of minority rights within the framework of international human rights law. The critical issue of safeguarding the rights of minorities necessitates a comprehensive examination to discern and understand the challenges that impede the effective implementation of protections granted under international law. In a globalized world, where diversity is both a strength and a source of potential conflict, it is imperative to scrutinize the shortcomings in existing legal frameworks and devise strategies to overcome them. Furthermore, the research aims to shed light on the multifaceted aspects of minority rights, investigating the complexities that hinder their protection on the international stage. By delving deep into the challenges faced, the study will contribute to a nuanced understanding of the impediments encountered in ensuring equality for minorities. Through a meticulous analysis of international human rights law, the research will identify gaps and weaknesses, providing insights into areas where legal frameworks may fall short in safeguarding minority rights. Furthermore, the proposal underscores the significance of this research in fostering a more inclusive and equitable global society. By addressing the vulnerabilities faced by minorities, the study aspires to offer practical recommendations and policy interventions to enhance the efficacy of international human rights mechanisms. Ultimately, this research seeks to contribute to the ongoing discourse on minority rights, providing a valuable resource for policymakers, legal scholars, and human rights advocates working towards a more just and inclusive world.

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Introduction:

Introduction:

The protection of minority rights within the ambit of international human rights law is a pressing concern that necessitates a thorough exploration, merging the realms of black letter law, doctrinal research, and the philosophical foundations of human rights law. In this research proposal, we embark on a journey that transcends the conventional boundaries of legal analysis, delving into the intricate tapestry of minority rights protection and its intersections with Natural Law Theory and Legal Positivism. Black letter law serves as the bedrock of our legal systems, offering a clear and explicit understanding of legal principles and rules. However, the challenges faced in safeguarding the rights of minorities demand a deeper examination that goes beyond the surface-level prescriptions of statutes and treaties. Doctrinal research, with its focus on legal doctrines and principles, provides a valuable lens through which we can scrutinize the practical applications and interpretations of legal provisions concerning minority rights. In parallel, the philosophical underpinnings of human rights law, specifically the interplay between Natural Law Theory and Legal Positivism, add a layer of complexity to our understanding. The former posits an inherent moral foundation for law, emphasizing universal principles that transcend human legislation. The latter, in contrast, contends that law derives its legitimacy from authoritative sources such as enacted laws and conventions. Navigating through these philosophical paradigms allows us to unravel the conceptual frameworks influencing the discourse on minority rights. Against this backdrop, our research endeavours to harmonize the theoretical and practical dimensions of minority rights protection. By critically examining black letter law and conducting doctrinal research, we aim to uncover the gaps and challenges that impede the effective implementation of international legal provisions. Simultaneously, a philosophical inquiry into Natural Law Theory and Legal Positivism will provide insights into the normative foundations shaping the conception and realization of minority rights. This research aspires not only to contribute to the academic discourse but also to offer pragmatic solutions for policymakers and legal practitioners grappling with the complexities of protecting minority rights within the ever-evolving landscape of international human rights law. Through an interdisciplinary approach that weaves together legal analysis and philosophical inquiry, we seek to advance a nuanced understanding of minority rights, facilitating the development of strategies to address the persistent challenges faced by minority communities worldwide.

Research Design:

Research Method:

The method for data analysis which has to be used in this research is a combination of two techniques: black letter law research method and doctrinal research. The data used in the research is to be analyzed qualitatively with both deductive and inductive approaches. The analysis would be in descriptive form, and, for identification of various patterns among the variables, the method comparative Analysis: case studies and Qualitative method: thematic analysis, have to be used, which is better for revealing the message between the lines in present literature.

Black letter law or research:

The black letter research method would concentrate on formal legal established laws in the area of international human rights law such as Universal Declaration of Human Rights (UDHR). It was adopted by United Nations General Assembly in 1948, a basic instrument that mark the fundamental rights and freedoms of all people irrespective of their back ground. It has become, since 1948, a reference point for human rights treaties and laws. Furthermore, black letter method serves as basis for providing a detail historical analysis of the law related to the issue and helps in analyzing the current status of legal instruments ensuring human rights at international level.

Doctrinal Research:

Whereas The focus of doctrinal research is, basically, to interpret qualitatively statutes, case laws and other existing documents of laws to build an understanding of the impact of law in reaching at its end. It aims at analyzing legal rules which have been developed, applied, and interpreted overtime. First, it requires identification of legal sources, then, requires a comparative analysis. The case studies of four countries are to be investigated, to compare legal frameworks for protection of minority rights and addressing persecution, thus, making comparative analysis relevant.

Data Collection:

The data for the research have to be collected from both primary and secondary sources. Primary sources includes International Conventions from respectable legal database and acceptable resources and case laws: court decisions and judgments on international human rights at international level as well as at domestic level. Moreover, secondary data, such as journals of law and relevant formal legal books: below is the detailed list.

List of Sources:

1. Human Rights Quarterly (HRQ).

2. International Journal of Human Rights.

3. European Union Human Rights Law Review.

4. Human Rights Law Review, Oxford.

5. Harvard Human Rights Journal

6. Journal of International Humanitarian Legal Studies

Philosophical basis of Human Rights Law:

The philosophical basis of this research has to be drawn from the combination of two theories, such as legal positivism and natural law theory. The amalgamation of both theories provides us the foundation of this research, acknowledging both legal recognition and intrinsic moral principles in

1. Natural Law Theory:

It states that certain rights are intrinsic to human nature and can be distinguished through reasoning. The principles of natural law are cited to formalize the universality of human rights, surpassing borders and legal systems.

2. Legal Positivism:

It provides a philosophical foundation by acknowledging that rights derive their validation and authorization from recognized and codified legal system. With this perspective in mind, it is plausible to deduce the establishment of human rights through positive law: international conventions, treaties and legislations, and constitutions.

Research Aim:

To investigate and analyze the United Nations Declaration on the rights of persons belonging to Ethnic, religious, national and linguistics minorities, and its effectiveness in protection and promotion of minorities across the globe.

Literature Review:

The research paper Religious Minorities in Pakistan: Identities, Citizenship and Belonging finds that Pakistan is not only a hard place for its religious minorities but also for many other people. But, it’s heavy hand falls on the religious minorities that are disproportionately affected by the menace of manhandling incidents. The article has identified some problems which has been responsible for the dismal plight of religious minorities in Pakistan. First of all, owing to the highly Islamization of legal system they receive less protection of legal and constitutional structure in contrast to majority Muslims, who are regarded as first class citizens of the state with protected rights. Additionally, the persecution patterns show the homogeneity of problems. It does not matter much, from which minority religion a person belongs because at the end of the day he/she would be victim of collective discrimination of state and society. Moreover, although the religious minorities may have other strong linkages in the form of ethnicity, linguistics, culture, occupation etc with the rest of the society, the discourse of victimhood obscure these linkages. Consequently, the religious minorities find themselves in isolation. Another major issue recognized by the author is the representation of minorities in official statistical records. The caste system which is very much prevalent institution embodied in the social fabric of Pakistan, sometimes intersects with religious identity. The official categorization of the schedule castes as religious minorities in census is interesting in the sense that primarily they do not constitute a religious category. In the same way Dalits who have a long history of struggle against high caste Hindus has been categorized as Hindus in census. Another issues with statistics is underreporting of their population in census which renders their existence unacknowledged. Lastly, the persecution of religious minorities in Pakistan also has some historical linkages as well. The bad memories of Muslim mistreatment and suppression at the hands of Christian Imperialists and Hindu and Sikh communalism in undivided India led to mistreatment of these religions in Muslim majority Pakistan.

Antonija Petricusic, in paper The Rights of Minorities in International law recognizes the issue of minority rights as an international concern that has the potential to disrupt the peace and stability of the world. The author has pointed out that, although, the issue of minority rights is widely debated but scarcely defined. Even there is no universally recognized definition of what constitutes the term “minority”. Consequently, it lacks a proper definition. As a result, the ambiguity in proper definition of a minority has rendered in failure of legal framework to establish a set of codes of minority rights. Thus, minority rights differ from state to state. The author has also acknowledged the existing international minority rights protection mechanisms. The international framework encompasses of instruments of Universal Declaration of 1948, minority rights provisions under the ECHR, legislation by European Union, judgments of European court of human rights, Framework convention for the protection of national minorities. The author is critical of the thing that most of these carefully worded instruments have equated the minority rights with human rights through the principle of non-discrimination. At the same time, the non-binding nature of these instruments makes the problem inadequately addressed. Consequently, leaves the issue to the discretion of states.

The research paper Minority Rights as an International Question has explored the historical evolution of protection minority rights. According to the paper the debate on minority rights is not a recent one. It has its origin in the establishment of modern state system in 1648. The Treaty of Westphalia along with territorial alterations, accorded protection to religious minorities that were transferred from one rule to another. Since it was impractical to create homogenous state so it was the collective international interest of peace and stability to guarantee protection to vulnerable groups under their rule. The political and territorial turbulences of nineteenth century further necessitated the minorities’ protection. The Congress of Vienna enhanced the scope by including the national groups to the principle of minority rights. These instruments paved the way for the protection of Polish minority in Austria, Russia, and Prussia and Jewish rights in Germany. With the dawn of twentieth century and the upheaval brought by the First World War the political motives and war propaganda put the cause of protection of minorities to backburner. It was superseded by the issue of self-determination. Nevertheless, the subsequent establishment of League of Nations provided a silver lining to this cause. The ‘‘big three’’ apart from territorial, economic, and social changes also deliberated for first minority treaties. The post-World War II era and the subsequent creation of United Nations saw the zenith of protection of minority rights in the form of universal declaration of human rights, prevention of crime of genocide which aimed at protection of endangered people, especially minorities. In last decade of twentieth century, the disintegration of Soviet Union and the subsequent creation of new states proved another turning point in the history of protection of minority rights. Since the new states lacked democratic experience and capacity faced with the unsettling complaints of persecution and violence against the minorities. The international community and international institutions responded and came to their rescue. Thus, 1990s produced new corpus of international legislation blending humanitarianism and pragmatism

Aftab Alam made an in depth study into the minority rights under International law. The article has focused on three main areas. Initially he opines that modern states are multi-ethnic in nature, the numerically majority communities inherently enjoy a dominant place in socio-political structure of the states. Thus the exclusion poses an identity crisis for minorities. Additionally, the author has identified the prominent historical events that has led to the expansion of minority protection laws at international arena. The most significant events occurred in second half of the twentieth century. The deliberations made under the ambit of United Nations provided the first academic definition of the term “minority”. It led to the major breakthrough in the form of insertion of Article 27 in the draft of International Covenant on Civil and Political Rights (ICCPR). While, in 1992 United Nations General Assembly adopted Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic minorities, the first exclusive document to address minority rights at the international level. Finally, the author proposed some of the rights which must constitute the body of rights granted to minorities. These rights include, the right to physical existence, enjoy one’s own culture, profess and practice religion and protection of their language. In the light of these stark realities, a consensus has been reached at the national and international level that minorities need exclusive protections.

Problem Statement: Research Problem

Rights of minorities is a critical issue that research has to emphasise under international human rights law. Furthermore, to delve deep into the issue, analysing the challenges faced in protecting the rights of minorities by the international human rights law have become must in globalized world, to understand shortcomings in legal frameworks and devising ways that counter them.

Research Questions:

• How minorities are defined under international human rights, and how their rights are recognized?

• What are case studies of different instances where minorities are persecuted in the light of historical as well as contemporary lens?

• How much effective is the legal instruments for protection of minorities at international level: treatise, conventions, and declarations in protecting rights of minority?

• What are the recommendations for strengthening the protection of minority rights and ensuring equality?

Hypothesis:

If legal provisions of international human rights law are robust and proactive measures with the help of international cooperation are provided, there would be significant reduction in persecution, marginalization and discrimination of minorities, resultantly, promoting greater equality.

Contribution to knowledge: Significance

The significance of research to the field of International Human Rights law is its focus on protection of minority rights, addressing persecution, and ensuring equality. Furthermore, by going through research methodology and techniques, such as instruments of international human rights, treaties, conventions, case laws, it seeks to illuminate pros and cons of existing framework in protecting rights and promoting equality of minorities.

Bibliography:

1. Petricuslc, A. (2005). The Rights of Minorities in International Law. Croatian International Law Review, January-June, 47-57.

2. Fink, C. (2000). Minority rights as an international question. Contemporary European History, 9(3), 385-400.

3. Barelli, M. (2009). The role of soft law in the international legal system: the case of the United Nations Declaration on the Rights of Indigenous Peoples. International & Comparative Law Quarterly, 58(4), 957-983.

4. Alam, A. (2015). Minority Rights Under International Law. Journal of the Indian Law Institute, 376-400.

5. Sen, Amartya. (2006). Identity and Violence: The Illusion of Destiny. W. W. Norton & Company.

6. Dworkin, Ronald. (1977). Taking Rights Seriously. Harvard University Press.