A Human Rights Treaty for the Protection of Minorities: A Draft Proposal

(Author's note: The following is a draft document that I developed with a group of colleagues while studying international human rights law at the University of Oxford in 2002. It reflects a proposed international standard for minority group rights on the basis of race, gender, sexual orientation, religion, culture, language, etc., and also demonstrates the inadequacies of current documents such as the United States Constitution in protecting the rights of vulnerable, oppressed and disenfranchised groups.)

Preamble

Recalling the rights that are set forth in the Universal Declaration of Human Rights

Recognizing the inherent dignity of all people[s], and in particular, persons who are the object of discrimination based upon characteristics which [persons] cannot or should not change by virtue of their cultural, linguistic, religious, gender identification or [other status]

Considering the developments and protections of international human rights instruments have furthered these important objectives but require articulation and bolstering by the international community in greater specificity and commitment,

Calling attention to the distinctive contributions of all [people and in particular marginalized groups] to the cultural diversity and social and ecological harmony of humankind and to international cooperation and understanding,

Recognizing that legal institutions and treaty bodies can have a cultural bias in procedural issues, should not be a barrier to any of the rights guaranteed,

Insisting that use of the term minorities in this instrument [is meant in the most inclusive way] and shall not prejudice the use of this instrument for its application by indigenous [peoples], women, refugees [gays and lesbians],

Further noting that the protections set forth herein and invoked by [people] shall not be deemed to detract or disparage the rights of other minority groups present within the territorial boundaries of States Parties,

Adopts the following treaty the twenty-sixth day of July 2002, with the understanding that state parties shall take affirmative steps to promote equality of minority groups consistent with the groups’ conception of self [and their goals and desires],

Section I

Article 1

1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited.
2. The Parties will adopt, where necessary adequate measures in order to [ensure or] promote, in all areas of economic, social, political and cultural life, [full] equality between members of a minority group and the majority society. In this respect, they shall take account of the specific conditions of persons belonging to minority groups.
3. No one shall be denied opportunities on the basis of his or her minority status.

Article 2

1. Minority groups shall have a right to determine the representation of their group in educational materials. The state shall make efforts to insure a proportional representation in teaching faculty so that all members of society may benefit from a diverse learning environment.
2. Members of minority groups shall have the right to establish separate educational institutions, in conformity with state standards. Such institutions shall have access to the same proportionate level of resources as institutions of the majority culture. This provision shall be interpreted as consistent with the state’s nondiscrimination policies [such as the separation of church and state].
3. Minority groups shall have the right to meaningful participation in the establishment of educational standards and curricula.
4. The state has an obligation to promote education in the general population which facilitates understanding and awareness of minority groups, and validation of their histories and cultures.
5. Members of minority groups have the right to learn and use their mother tongue.
6. States Parties are mindful that discrimination against minorities can and is often compounded by gender discrimination and shall undertake to promote equal opportunity in access to the same education at all levels for all persons, and further, that the state shall provide effective redress for claims of discrimination.

Article 3

1. States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human freedoms and fundamental rights without any discrimination and in full equality before the law.
2. [defining discrimination, discrimination can be against minorities, compounded by gender]

Article 4

1. Members belonging to minority groups shall have the right to work and enjoy the benefits of prosperity in common with other members of society. Further, State Parties shall undertake to ensure that minority members are compensated on par with members of the society as a whole in the same occupation and at comparable levels of experience.
2. States Parties shall undertake to remove barriers which prevent minority members who choose to participate [in the economic mainstream] from realizing their potential on par with other members of society.
3. States shall make available institutional and capital development support for culturally specific occupations.

Article 5

1. Every person within the territory of a state party has the right to security and liberty of person and shall not be deprived of such without due process of law. All persons shall be equal before the tribunals and have the right to be informed of the specific nature of the charge against them in a language they can understand.
2. Every person has the right to a fair hearing before a competent and independent tribunal established by law and free of prejudice. Cultural differences can be taken into account as a mitigating factor in determining the proper punishment.
3. Disparity in sentencing and incarceration between minority and majority groups can be considered as evidence of de facto discrimination and measures shall be taken to correct such disparate treatment.
4. Efforts by the state parties shall be made to increase the representation of minority members in the legal and judicial professions in proportion with their numbers in the society as a whole.

Article 6

1. Negative media images have a profound effect on the negative stereotyping of minority groups. Therefore, members of minority groups have a right to full participation in the mass media of the nation in which they reside. Minority groups have a right to play an active role in creating positive images of their group [including inter alia the ownership of media organizations and corporations]. The state shall aid members of minority groups in their efforts to establish their presence in broadcast, print, electronic and other forms of media.

Article 7

1. States shall respect the right to privacy and family of minorities, and shall act in ways that affirm cultural sensitivity. Further, minority groups have a right to self-identification in society, without the interference of arbitrary and discriminatory state policies.

Article 8

1. States and their actors are prohibited from encouraging or engaging in hate speech [hate speech which incites violence against minority groups, or encourages acts or policies that further their oppression] and other discriminatory acts directed towards minority groups. Further, states must take all actions to create an environment which is not conducive to the perpetration of crimes against minorities. The tribunals of the individual states shall prosecute with vigor all hate crimes committed against members of minority groups.

Article 9

1. Members of minority groups shall enjoy full political rights, including the right to vote in national and local elections. States shall not engage in any practices that hinder the ability of minority groups to exercise their voting rights. Further, states shall make efforts to ensure [proportional representation] minority group representation in legislative assemblies.

Article 10

1. States and corporations operating within the boundaries of such states shall be prohibited from engaging in discriminatory economic practices against members of minority groups. Such practices include inter alia predatory lending practices, the charging of exorbitantly high interest rates, policies which bar access to capital, and the redlining of minority communities.

Section II

Article 11

1. There will be a non-political Minorities Protection Committee consisting of experts of high moral character and recognized competence in the field of human rights protections, serving in their personal capacities.
2. The committee shall be composed of 18 members, of which no less than half shall be women. Further, no less than half of the members shall be representatives of self-identified minority groups.
3. Members shall be elected by secret ballot after nomination by the states’ parties to the treaty.
4. Attention shall be paid to ensuring a fair geographical representation.

Article 12

1. The committee shall receive communications from individuals, states, Non Governmental Organizations with United Nations consultative status or special recognition with the Committee, and other bodies of the United Nations.
2. Each state party, in cooperation with Non Governmental Organizations, or national human rights commissions of the state where they exist, shall issue a joint report on a periodic basis. The report shall detail the state’s compliance with all relevant articles of this treaty.

Article 13

1. The committee has the power to appoint special mediators to work toward the resolution of disputes between states parties and aggrieved minority groups.
2. Where mediation fails, the committee shall have adjudicative powers and the ability to release advisory opinions on general questions referred to it.
3. The committee has the ability to work in cooperation with other United Nations entities on issues of common concern.