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Abstract
This paper argues that neither the growth of a stronger regime of human rights, nor the fulfilment of the Millennium Development Goals (MDGs), would automatically guarantee an amelioration of the plight of vulnerable groups. Drawing on examples from Vietnam, Mexico and Ghana, this paper, rather than critique the ‘standards’, endorses each regime/programme with the suggestion of an inclusionary caveat: that both pay special attention to the plight of minorities and indigenous groups, and that the extent to which either process is deemed successful be measured against the extent to which it addresses the plight of vulnerable groups such as indigenous peoples and minorities within states.
Notes
For the historic origins of the legal regime of protection of minorities and indigenous people, including in non-Western legal traditions (mainly Arab and Imperial Chinese traditions), see: N. Rouland, S. Pierré-Caps and J. Poumarède, Droit des Minorités et des Peuples Autochtones (Paris: Presses Universitaires de France, 1996), 35–174. See also C. A. Macartney, National States and National Minorities (London: Oxford University Press, H. Milford, 1934); C. Fernández Liesa, ‘La protección de las minorías en el Derecho International general. Análisis de la evolución y del Estatuto Jurídico Internacional’, in La protección internacional de las minorías, ed. F. M. Mariño Menéndez, C. R. Fernández Liesa and C. M. Díaz Barrado (Madrid: Ministerio de Trabajo y Asuntos Sociales, 2001), 51–217; P. Thornberry, International Law and the Rights of Minorities (Clarendon: Oxford University Press, 1991), see especially 25–37.
For a general reading on the international legal regime against genocide see W. A. Schabas, Genocide in International Law: The Crimes of Crimes (Cambridge: Cambridge University Press, 2000).
For interesting reading about how events in the Middle East continue to act against minorities see R. Fisk, The Great War for Civilisation: The Conquest of the Middle East (London: Harper Collins, 2005).
For a general and most recent analysis of the vulnerabilities of minorities and indigenous peoples see Minority Rights Group International, State of the World's Minorities 2007 (London: Minority Rights Group International, 2007) which focused on events in the last two years and their impact on minorities and indigenous peoples. Also see http://www.minorityrights.org and http://www.minority-rights.org.
F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Add.1–7 (1977). For other definitions see http://minority-rights.org/docs/mn_defs.htm (accessed 30 July 2007).
For a discussion of the term ‘minority’ and the implications of the constituent individuals who fall under this label see P. Ramaga, ‘The Bases of Minority Identity’, Human Rights Quarterly 14, no. 2 (1992): 409–28; Timo Makkonen, ‘Identity, Difference and Otherness: The Concepts of “People”, “Indigenous People” and “Minority” in International Law’ (Helsinki: Erik Castren Institute, University of Helsinki, 2000); John R. Valentine, ‘Toward a Definition of National Minority’, Denver Journal of International Law & Policy 32, (Summer 2004): 445–74; Vernon Van Dyke, ‘Human Rights and the Rights of Groups’, American Journal of Political Science 28, no. 4 (1974): 725–41; Eric J. Mitnick, ‘Three Models Of Group-Differentiated Rights’, Columbia Human Rights Law Review, 35 (Spring 2004): 215–48; J. E. Oestreich, ‘Liberal Theory and Minority Group Rights’, Human Rights Quarterly 21, no. 1 (1999): 108–32; P. Jones, ‘Human Rights, Group Rights and Peoples’ Rights', Human Rights Quarterly 21, no. 1 (1999): 80–97.
For more on this issue of justiciability see Magdalena Sepúlveda, The Nature of Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerp: Intersentia, 2003).
United Nations, International Covenant on Civil and Political Rights, 1966, Article 27.
See especially N. S. Rodley, ‘Conceptual Problems in the Protection of Minorities: International Legal Developments’, Human Rights Quarterly 17, no. 1 (1995): 48–71. Also see note 6 above.
The motivation for the creation of the treaty was the threat seen in the anti-semitism that had begun to emerge in Europe in the 1960s. Having lived through the horrors of World War Two, European leaders decided to make a concerted push for a global standard that would ‘eliminate’ discrimination before it began to grow into a wider, more violent movement with disastrous consequences. Newly independent African and Asian states were keen to sign up to this new standard since they believed in the importance of making a statement against the apartheid regime of South Africa, while at the same time highlighting the plight of their own nationals in Europe and the rest of the Western world, who often lived as second-class citizens in the West. Thus the convention was born with the hope and belief that strong measures put in place in the national laws of each country would provide a bulwark against genocidal movements. For a general reading on the convention see Michael Banton, International Action Against Racial Discrimination (Oxford: Clarendon Press, 1996); also see Theodore Meron, ‘The Meaning and Reach of the International Convention for the Elimination of All Forms of Racial Discrimination’, American Journal of International Law 79, no. 2 (1985): 283–318.
For a general reading on this system see Phillip Alston and James Crawford, eds., The Future of UN Human Rights Treaty Monitoring (Cambridge: Cambridge University Press, 2000).
See Gay McDougall, ‘Achieving the Millennium Development Goals (MDGs) for Minorities: A Review of MDG Country Reports’, Report of the Independent Expert on Minority Issues, submitted to the Human Rights Council, UN Doc. A/HRC/4/9/Add.1, 2 March 2007, para. 36.
Ibid., UN Doc. A/HRC/4/9/Add.1, Table, 13.
See UN Doc. CCPR/C/VNM/2001/2, 14 May 2001.
For more on China see Joshua Castellino and Elvira Domínguez Redondo, ‘Minority Rights in China: A Legal Overview’, European Yearbook of Minority Issues 4 (2004/2005): 51–83.
See UN Doc. CERD/C/357/Add.2., para. 1.
This includes: Decision No. 35/TTg of 13 January 1997 of the Prime Minister approving the programme to build cluster centres for mountainous and highland communes; Decree No. 20/1998/ND-CP of 31 March 1998 of the Government on the development of commerce in the mountainous islands and ethnic regions; Decision No. 135/1998/QD-TTg of 31 July 1998 of the Prime Minister on the programme of socio-economic development in certain remote communes facing special difficulties (called Programme 135); Decision No. 133/1998/QD-TTg of 23 July 1998 of the Prime Minister approving the programme of support to ethnic areas facing special difficulties, known as Programme 133 (within the framework of the National Target Programme on Hunger Elimination and Poverty Reduction); and Decision No. 727/TTg of 9 November 1995 of the Prime Minister approving the master plan for investment in socio-economic development in Muong Te district, Lai Chau province, for the 1996–2000 period. For more on each of these programmes see CERD/C/357/Add.2.
For a general analysis of minority rights in Asia see Joshua Castellino and Elvira Domínguez Redondo, Minority Rights in Asia: A Comparative Legal Analysis (Oxford: Oxford University Press, 2006).
Maurice Bryn, ‘Americas’, in State of the World's Minorities 2007, Minority Rights Group International (London: Minority Rights Group International, 2007), 63.
Except in the autonomous Mexican region of Oaxaca where the local indigenous government has granted them this status. For more on this regime see Alejandro Anaya Muñoz, ‘Multicultural Legislation and Indigenous Autonomy in Oaxaca, Mexico’, in International Law & Indigenous Peoples, ed. Joshua Castellino and Niamh Walsh (Leiden: Martinus Nijhoff, 2005).
United Nations, State Report of Ghana to the CERD, UN Doc. CERD/C/431/Add.3, 10 October 2002, para. 1.
For detailed statistics see Ghana Statistical Service, ‘Key Social, Economic and Demographic Indicators’, <http://www.statsghana.gov.gh/KeySocial.html> (accessed 27 November 2008).
Ibid.
See UN Doc. CERD/C/62/CO/4. (Concluding observations/comments), sixty-second session 3–21 March 2003, para. 9.
For more see ibid., paras 10–12 CERD concluding observations/comments.
MacDougall, ‘Achieving the Millennium Development Goals (MDGs) for Minorities’, UN Doc. A/HRC/4/9/Add.1, 2 March 2007, para. 44.
Ibid. See Box 5, ‘Good Practice on Poverty Reduction’.
E.g. The report states, ‘The ethnic minorities have been provided with initial health care services, dangerous diseases have been controlled and stamped out, especially HIV/AIDS prevention and control activities are informed even to the grassroots level.’ United Nationa, ‘Vietnam Report’, UN Doc. CCPR/C/VNM/2001/2, 14 May 2001, 53.
Ibid., 53.
Ibid.
Ibid., 53–4.
Ibid., 53.
For a similar example see the discussion on ‘minority rights’ in China in Castellino and Domínguez Redondo, Minority Rights in Asia, 104–8 and 113–7.
See CERD General Recommendation VIII Identification with a Particular Racial or Ethnic Group (Article 1, paras 1 and 4), 22 August 1990.
Fourth Periodic State Party Report of Mexico to CESCR UN Doc. E/C.12/4/Add.16, 25 February 2005, para. 638.
MacDougall, ‘Achieving the Millennium Development Goals (MDGs) for Minorities’, UN Doc. A/HRC/4/9/Add.1, 2 March 2007, para. 46.
According to the Mexican Governmental report these are identified as: ‘young persons, older persons, handicapped persons, sufferers from HIV/AIDS, day-wage labourers, members of indigenous groups, persons deprived of liberty and other groups’: see The Fourth Periodic Report submitted by Mexico to the UN CESCR UN Doc. E/C. 12/4/Add. 16 (25 February 2005) para. 71.
Ibid.
Ibid. para. 76.
E.g. see the Constitution of Mexico, which ‘prohibits discrimination on grounds of ethnic or national origin, gender, age, difference in abilities, social condition, state of health, religion, opinions, sexual preferences, civil status or any other grounds deleterious to human dignity and having as its object the annulment or restriction of individual rights and freedoms…’, Article 1 of the Political Constitution of the United Mexican States. Also see the Federal Act for the Prevention and Elimination of Discrimination as reported in The Fourth Periodic Report submitted by Mexico to the UN CESCR UN Doc. E/C. 12/4/Add. 16 (25 February 2005) para. 140. This report also lists as Appendix I a series of legal instruments in Federal law that enshrine the right against discrimination.
See e.g. Act Covering Religious Association and Public Worship 1992; Act Concerning the Rights of Older Persons 2002; General Social Development Act 2004; and the Act Concerning the National Institute for Women, among others.
E.g. Act Concerning the National Commission for the Development of Indigenous Peoples 2003 and the General Act on the Linguistic Rights of Indigenous Peoples 2003 among others.
The Fourth Periodic Report submitted by Mexico to the UN CESCR UN Doc. E/C. 12/4/Add. 16 (25 February 2005) para. 143 (5).
Ibid.
Ibid.
Ibid., para. 252.
Ibid.
Ibid.
See Gillette Hall and Harry Anthony Patrinos, eds., Indigenous Peoples, Poverty and Human Development in Latin America: 1994–2004 (London: Palgrave Macmillan, 2005). According to figures provided by the government by 2002, the total proportion of those affected by nutritional poverty has dropped to 20.3% (from 24.2 in 2000); those living below the capacities development threshold improved to 26.5% (31.9); and those below the patrimony development threshold fell to 51.7% (53.7). The fact that these are such high numbers is indicative of the scale of inequality that nonetheless remains in Mexican society.
According to Mexican government figures the average life expectancy at birth is now 74.9 years; the rate of illiteracy stands at 8.5%; there is 100% enrolment in primacy school; drinking water is accessible to 89.2% of the population, 76.9% can access sewage disposal systems and polio and diphtheria have been eradicated (in 1990 and 1991 respectively). See The Fourth Periodic Report submitted by Mexico to the UN CESCR UN Doc. E/C. 12/4/Add. 16 (25 February 2005) para. 409.
The Fourth Periodic Report submitted by Mexico to the UN CESCR UN Doc. E/C. 12/4/Add. 16 (25 February 2005) para. 405.
The measures undertaken to tackle the issue of housing could also be argued as falling under this heading, though it is outside the scope of this particular discussion. For more on the measures adopted in Mexico see ibid. paras 456–92.
Ibid., para. 424.
Ibid., para. 446.
Among these are: National Development Plan 2001–2006, 2001; Sustainable Rural Development Act, 2001, Sectarian Agrarian Programme 2001–2006, 2002; National Agreement for Rural Areas, 2003.
Information about this regime can be had at www.sra.gob.mx (accessed 29 July 2007); also see The Fourth Periodic Report submitted by Mexico to the UN CESCR UN Doc. E/C. 12/4/Add. 16 (25 February 2005) para. 454.
Since Ghana has not ratified the International Covenant on Civil and Political Rights (ICCPR) nor the International Covenant on Economic and Social Rights, it does not have the same data set as Vietnam and Mexico. Additionally the lack of an express minority rights provision in documents other than the ICCPR means that at no time is Ghana expressly required to report on its minorities. The material used here is taken from Ghana's last report under the International Convention for the Elimination of All Forms of Racial Discrimination viz. Seventeenth Periodic Report of Ghana to CERD UN Doc. CERD/C/431/Add.3, 10 October 2002.
Hence its colonial name, ‘Gold Coast’. It is interesting to note that, contrary to the usual pattern of decolonisation, the state of Ghana was formed by the merging of two former colonies: that of the Gold Coast and Upper Volta. For more on this process see Rigo Sureda, The United Nations and Self-determination (Leiden: Sijhoff, 1973)
Report of Ghana to the Committee for the Elimination of Racial Discrimination, UN Doc CERD/C/431/Add.3.
Constitution of Ghana 1992, Article 12 (2).
Constitution of Ghana 1992, chap. 5 (e).
Constitution of Ghana 1992, chap. 5 (f).
Constitution of Ghana 1992, chap. 5 (h).
Constitution of Ghana 1992, chap. 5 (l).
These are described, including: ‘the right to enjoy, practice, profess, maintain and promote any culture, language, tradition or religion, so long as they conform to the provisions of the Constitution and do not dehumanise or are injurious to the physical or mental well-being of persons’, Constitution of Ghana 1992, chap. 5 (m).
Constitution of Ghana 1992, chap. 5 (k).
According to Article 17(3) ‘to discriminate’ is defined as: [giving] different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are made subject to disabilities or restrictions to which persons of another description are not made subject, or are granted privileges or advantages which are not granted to persons of another description'.
Constitution of Ghana 1992, Article 17.
This is a legal obligation under article 2(2) for all states that are party to the International Convention for the Elimination of All Forms of Racial Discrimination 1969.
Report of Ghana to CERD, para. 53.
This is attributed to the British use of the northerners as the labour reserve, as well as the southerners benefiting from an education system, ibid.
Ibid.
Ibid., paras 54–66.
Ibid., para. 72 (a). The state makes similar submissions under article the right to join and form trade unions (paragraph 72(b)); housing (72(3)); public health (72(4)); education (72(5) and participation in cultural activities (72(6)). In each case the state points to existing laws guaranteeing equality.
The Independent Expert on Minorities, Gay McDougall reviewed a sample of 50 state reports and selected Poverty Reduction Strategy Papers submitted to the World Bank and found that only 19 of these reports made any mention of ethnic or linguistic minorities. The range of countries reviewed was broad: Afghanistan; Bangladesh; Belize; Bhutan; Bolivia; Botswana; Brazil; Bulgaria; China; Denmark; Dominican Republic; Ecuador; Ethiopia; Finland; Honduras; Hungary; Indonesia; Iran; Kazakhstan; Kenya; Kosovo; Lao; Lebanon; Malaysia; Mexico; Namibia; Nepal; Netherlands; Nicaragua; Nigeria; Norway; Occupied Territories of Palestine; Pakistan; Peru; Philippines; Romania; Rwanda; Senegal; South Africa; Sudan; Sweden; Switzerland; Tanzania; Thailand; Turkey; Uganda; United Kingdom; Uruguay; Venezuela; and Vietnam.
Thus the Romanian MDG report under Goal 2 has an additional target entitled ‘Reduce Illiteracy among the Roma’.
See Box 4 ‘MDG Plus Targets and Indicators’, MacDougall, ‘Achieving the Millennium Development Goals (MDGs) for Minorities’, UN Doc. A/HRC/4/9/Add.1 2 March 2007, para. 19.
See Reporting Guidelines to CESCR, para. 5(b).
See Reporting Guidelines, article 15 question 1(d).
See Reporting Guidelines, article 15 question 1(d).
See Reporting Guidelines, article 11, question 2 (right to adequate food) 2(a)(i), which lists vulnerable groups but does not include minorities.
See Article 1, International Convention for the Elimination of All Forms of Racial Discrimination, 1969.
E.g. India engaged in a battle with the Committee on whether caste-based discrimination could come within the terms of the Convention. While there is no express mention of caste, the committee determined that this was covered under the provision for ‘descent’ and subsequently also issued a general Recommendation on ‘descent based discrimination’; see CERD General Recommendation 29: Article 1, paragraph 1 of the Convention (Descent), 1 November 2001. For a discussion of this episode see Patrick Tornberry, ‘The Convention on the Elimination of Racial Discrimination, Indigenous Peoples and Caste/Descent-Based Discrimination’, in International Law & Indigenous People, ed. Joshua Castellino and Niamh Walsh (Leiden: Martinus Nijhoff, 2005), 17–52.
E.g. each of the following general recommendations' target group: CERD General Recommendation 22 Regarding Refugees and Displaced Persons, 49th session 1996; General Recommendation 23 on the Rights of Indigenous Peoples, 51st session 1997; General Recommendation 25 on Gender Related Dimensions of Racial Discrimination, 56th session, 2000; General Recommendation 27 On Discrimination against Roma, 57th session 2000; General Recommendation 29 On Article 1, par. 1, Descent, 61st session 2002; and General Recommendation No.30: Discrimination Against Non Citizens, 2004.
For a basic explanation of this mechanism see Joshua Castellino, ‘A Re-Examination of the International Convention for the Elimination of All Forms of Racial Discrimination’, Revista Iberoamericana de Derechos Humanos 2, no. 1 (2006): 1–29.
E.g. in our select case studies Mexico has issues such as an open permanent invitation to all the UN Special Procedures. Arguably, this indicates a voluntary submission to international scrutiny, and a genuine political willingness to tackle the issue of human rights violations. See The Fourth Periodic Report submitted by Mexico to the UN CESCR UN Doc. E/C. 12/4/Add. 16 (25 February 2005) (2004) para. 7.