Human Rights for Minority Groups

Following the definition of Schaeffer, a minority group is a subordinate cluster of people who have considerably less independence or power over their lives as opposed to the stronger, group in the same society. In his definition, he noted that such a status was not delimited by numbers. This was evident for the Blacks in South Africa. Despite being a majority population-wise, they were accorded minority status. Such a group would then be noted to be the victims of disproportionate opportunities in relation to their numbers. This was also the case for Blacks in the US states of Mississippi and South Carolina[1].

Further, examining what may lead a group to become a minority, certain factors exude themselves rampantly in the differential treatment of such groups. Physical distinctions, such as skin color and cultural traits such as language have been a major cause of the labeling of one people a minority. For example in the case of persons with disabilities, distinctive features – or lack thereof – have led to a specialized treatment of people in the said category. In addition, high in-group marriage of a people may lead them to be a minority group in the region, a perfect example being the Aborigines of Australia[2].

As earlier said, cultural peculiarities may form the basis of a differential treatment for a particular group. Culture is defined as the distinct ways in which people who lived differently classified and delineated their lives[3]. The glaring differences in cultural practices may lead to the differential treatment of one group as opposed to another. Taking, for instance, the Maasai of Kenya and Tanzania, where raw meat is a regular dish, as well as the fresh blood, from livestock and female circumcision is still a widely accepted rite of passage. Such practices that are not “regular” make them a minority group[4].

In this paper then, I seek to find middle ground in so far as the free enjoyment of minority rights is proposed as well as statutes and other legal instruments. In instituting this balance, one must ask themselves what the law says about discrimination and the place of culture in the law. The United States Constitution states:

The grant by statute of particular privileges to a class arbitrarily designated from a sizable number of persons, where no reasonable distinction exists between the favored and disfavored classes. Federal laws, supplemented by court decisions, prohibit discrimination in such areas as employment, housing, voting rights, education, and access to public facilities. They also proscribe discrimination on the basis of race, age, sex, nationality, disability, or religion. In addition, state and local laws can prohibit discrimination in these areas and in others not covered by federal laws[5].

Discrimination can thus be said to be the differential treatment of two parties under the same set of circumstances on whatever basis including culture, which is prohibited under law, both local and ratified international statutes.

European law through the Copenhagen Criteria of 1992[6] has left powers regarding linguistic and ethnic minorities to the discretion of the internal affairs of a country. However, Article 27 of the International Declaration of Human Rights[7] states:

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (IDHR, 1999)

Similarly, Article 15 of the International Covenant on Economic, Social and Cultural Rights further gives freedoms on the free enjoyment and participation in cultural life. It is evident that international instruments propound the freedoms of individuals to enjoy, within reasonable boundaries, the gist and essence of their culture[8].

The issue of discrimination.

Can we argue that, in fact, the accordance of individual rights to the enjoyment of cultural rights provided under the Constitution and various international instruments is discriminatory against other majority members of the society? Indeed, discrimination has been seen to occur where parties are in a similar circumstance, and where two receive specialized treatment undue to one or both of them.

In the case of minority groups, there can be analysis of differences to meet the “similar circumstance” criterion set out by the U.S. constitution among other international instruments. Owing to cultural or physiological differences, members of a minority group will experience a difference in the range of opportunities provided for them. Taking the disabled, for example, evidently opportunities requiring the capability to walk will automatically disqualify lame applicants. Driving opportunities may as well disqualify those who don’t have 20-20 vision.

Furthermore, in recent cases gay rights[9] and freedoms having been addressed and members labeled as a minority group, they are still open to differential treatment as was the case in Boys Scouts of America V Dale of 2000[10], where the Supreme Court ruled in favor of the BSA, that as a private entity, it could bar homosexual troops and leaders from the association. Thus, minority groups for the same reason that all people are created different and are only equalized before the law are susceptible to the creation of uneven competition and/or playing ground with their partners from the majorities. As such, the discrimination test fails on the basis that the set of circumstance is not the same for the member of the minority as for the member of the majority.

What then is the right of minorities to enjoy their rights? Paragraph 32 of the Beijing Declaration[11] states:

“We are determined to … ensure equal enjoyment of all human rights … for all women and girls who face multiple barriers to their empowerment and advancement because of such factors as their race, age, language, ethnicity, culture, religion, or disability, or because they are indigenous people….” (PDHRE, 2014)

While this covers only one of the many groups under minorities, it gives the basis upon which all manner of discrimination shall be removed, and the clause upon which all culture is open to free practices with the freedoms it deserves.

Statutory law.

Constitutional law in many countries provides the sources of law for that specific state. Taking Kenya, for example, the sources of law include the Constitution, Acts of Parliament, Common Law and Customary Law[12]. One must note that in the accordance of rights to practice one’s culture, it falls squarely under the customary law section. As such, we look at the constitutional provision on customary law which states that customary law shall be applicable so long as it is “not repugnant to the Constitution, or contravenes justice”[13]. This is inadvertently the case in various other supreme legal documents if we choose to pursue the Copenhagen Criteria.

Thus, though customary law is a source of law, it must adhere to statutory limitation. In conclusion then, so long as an individual has the right to freely practice customs and beliefs that are entitled to him under instruments protecting minority rights, they are also imposed upon restrictions to which they would enjoy these rights. Such restrictions include that their personal benefit of rights does not infringe upon another’s enjoyment of rights. For example, should the Maasai decide that they would like to enjoy their cultural practice of eating raw meat then they should ensure that such livestock is not obtained by conversion.

However, the question of contravention of international principles in the pursuit of minority rights arises in the case that members of the minority practice rites that have received international disapproval. Such rites include violence against women and wild animals, unequal treatment of members in the society and so on. International law in the advocacy for minority rights has adequately addressed issues of discrimination based o gender especially in the fields of education and the job market. Similarly, laws have been enacted to provide international bodies such as the UN whose branches have been instrumental in the fight against cultural vices such as female genital mutilation, poaching, gay rights and freedoms among others.

Striking a balance.

What then can be a middle ground for equal treatment of persons and groups as well as the free enjoyment of minority rights to minority groups in society? The principle of equality before the law[14] reigns supreme here.. This principle stands the test of time even since the development of equitable legal systems. Equality before the law seeks to put both claimant and defendant on a similar scale to which both are measured.

As such, the equality principle seeks to recompense any form of discrimination before evaluating other rights that have been infringed upon. Remember that the right to enjoy one’s cultural practices is guaranteed under various legal instruments. Under the principle “ubi jus ibi remedium”[15]  (where a right doesn’t exist, there is no remedy), it is an actionable civil wrong to infringe upon an individual’s such rights, to the extent that his enjoyment of such rights has not caused any manner of infringement to one’s rights.

In essence, all groups are equal before the law. However, due to the sensitive state of some factors in one group above others, the law necessitates an equally sensitive change to address the grievances of such groups. It is not unequal treatment, rather the due consideration of groups that are not covered in the majority who is addressed by the greater part of the law[16]. By putting in place provisions for such groups, it is, in fact, an act of equal treatment – the failure to which would amount to general injustice against minority groups, subjecting them to discrimination.

 

Reference List.

A, Kroeber & C. Kluckhohn, Culture: A Critical Review of Concepts and Definitions, 1952, https://web.archive.org/web/20131213013557/http://www.bodylanguagecards.com/culture/31-what-is-culture, (accessed 28 September 2014)

Boy Scouts of America V Dale, U.S. Supreme Court, 530th Ed., at p. 640.

California Appeal Court, Riley V Fitzgerald, 1986, 178th Edition, at 871.

Claiming Human Rights, International Covenant on Civil and Political Rights, http://www.claiminghumanrights.org/equality_before_law_definition.html, (accessed 28 September, 2014.)

Constitution of Kenya, 2010, Article 2 & 3, Constitution of Kenya (2010) at p 17-18, 19-20.

  1. Hodgkinson, Protection of Minority Rights in the Australia: the Present Legal Regime, 1997, L.A. International & Co., USA.

Duhaim.org, Legal Dictionary, http://www.duhaime.org/LegalDictionary/U/UbiJusIbiRemedium.aspx, (accessed 28 September, 2014.)

PDHRE: Minorities – Beijing Declaration, Para 32, http://www.pdhre.org/rights/minorities.html, (accessed 28 September, 2014.)

PDHRE: Minorities – Copenhagen Criteria (1992), Commitment 4, http://www.pdhre.org/rights/minorities.html, (accessed 28 September, 2014.)

PDHRE: Minorities – International Covenant on Economic, Social and Cultural Rights, Article 15, http://www.pdhre.org/rights/minorities.html, (accessed 28 September, 2014.)

PDHRE: Minorities – International Declaration of Human Rights, Article 27, http://www.pdhre.org/rights/minorities.html, (accessed 28 September, 2014.)

  1. Schaeffer, Racial and Ethnic Groups: What is a Minority Group?http://academic.udayton.edu/race/01race/minor01.htm on 28-09-2014, 1993, (accessed 28 September 2014).

United States constitution on the rights of minorities,  http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389×60683, (accessed 28 September 2014).

  1. Kymlyca, a Liberal Theory of Minority Rights, June 1, 1995, Oxford University Press.

[1] R. Schaeffer, Racial and Ethnic Groups: What is a Minority Group?http://academic.udayton.edu/race/01race/minor01.htm on 28-09-2014, 1993, (accessed 28 September 2014).

[2]D. Hodgkinson, Protection of Minority Rights in the Australia: the Present Legal Regime, 1997, L.A. International & Co., USA.

[3]A. Kroeber & C. Kluckhohn,Culture: A Critical Review of Concepts and Definitions, 1952, https://web.archive.org/web/20131213013557/http://www.bodylanguagecards.com/culture/31-what-is-culture, (accessed 28 September 2014)

[4]Ibid, Schaeffer.

[5]PDHRE: Minorities – People’s Movement for Human Rights Education, http://www.pdhre.org/rights/minorities.html, accessed 28 September, 2014.

[6]PDHRE: Minorities – Copenhagen Criteria (1992), Commitment 4, http://www.pdhre.org/rights/minorities.html, (accessed 28 September, 2014.)

[7]PDHRE: Minorities – International Declaration of Human Rights, Article 27, http://www.pdhre.org/rights/minorities.html, (accessed 28 September, 2014.)

 

[8]PDHRE: Minorities – International Covenant on Economic, Social and Cultural Rights, Article 15, http://www.pdhre.org/rights/minorities.html, (accessed 28 September, 2014.)

[9] California Appeal Court, Riley V Fitzgerald, 1986, 178th Edition, at 871.

[10]Boy Scouts of America V Dale, U.S. Supreme Court, 530th Ed., at p. 640.

[11]PDHRE: Minorities – Beijing Declaration, Para 32, http://www.pdhre.org/rights/minorities.html, (accessed 28 September, 2014.)

[12]Constitution of Kenya, 2010, Article 2 & 3, Constitution of Kenya (2010) at p 17-18, 19-20.

[13]Ibid, Constitution of Kenya.

[14]Claiming Human Rights, International Covenant on Civil and Political Rights, http://www.claiminghumanrights.org/equality_before_law_definition.html, (accessed 28 September, 2014.)

[15]Duhaim.org, Legal Dictionary, http://www.duhaime.org/LegalDictionary/U/UbiJusIbiRemedium.aspx, (accessed 28 September, 2014.)

[16]W. Kymlyca, a Liberal Theory of Minority Rights, June 1, 1995, Oxford University Press.

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