Toward a Political Conception of Minority Rights: Reconciling Sovereignty, Human Rights and Minority Claims

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Toward a Political Conception of Minority Rights: Reconciling Sovereignty, Human Rights and Minority Claims TOWARD A POLITICAL CONCEPTION OF MINORITY RIGHTS: RECONCILING SOVEREIGNTY, HUMAN RIGHTS AND MINORITY CLAIMS by Omid Mousavi Hejazi A thesis submitted to the Department of Philosophy In conformity with the requirements for the degree of Doctor of Philosophy Queen’s University Kingston, Ontario, Canada (November, 2016) Copyright ©Omid Mousavi Hejazi, 2016 Abstract The question that I will explore in this research dissertation is whether one can defend the rights of homeland minorities as a progressive extension of the existing norms of human rights. This question calls for several deeper inquiries about the nature, the function and the underlying justifications for both human rights and minority rights. In particular, this research project will examine the following issues: on what normative grounds the available norms of human rights and minority rights are justified; if there is any methodic way to use the normative logic of human rights to support substantial forms of minority claims, such as the right to self- determination; whether human rights can take the form of group rights; and finally, whether there is any non-sectarian basis for justifying the minority norms, which can be acceptable from both liberal and non-liberal perspectives. This research project has some implications for both theories of minority rights and human rights. On the one hand, the research employs the topic of minority rights to shed light on deficiencies of the existing political theories of human rights. On the other hand, it uses the political theory to shed light on how existing theories of minority rights could be improved and amended. The inquiry will ultimately clarify how to judge the merit of the claim that minority rights are or should be a part of human rights norms. ii Acknowledgements First of all, I would like to express my sincere gratitude to my supervisor, Will Kymlicka, for his invaluable guidance, tremendous patience and continuous support throughout this research project. I also wish to thank Margaret Moore and Patrick Macklem and other members of the examination committee for their insightful comments and criticisms. Finally, I am incredibly grateful to my loving parents, Monir and Hosein, and my wonderful partner, Pegah, for being supportive at every stage of my graduate studies. Without them, none of this would have been possible. iii Table of Contents Abstract ......................................................................................................................................................... ii Acknowledgements ...................................................................................................................................... iii Chapter 1 Introduction .................................................................................................................................. 1 Chapter 2 Legal and Political Mechanisms for Protection of Ethnocultural Minorities ............................. 15 1. Minority Rights from the League of Nations to the United Nations ................................................... 15 2. Defining Minorities ............................................................................................................................. 18 3. Two Types of Minority Protection...................................................................................................... 21 4. Minority Rights Protection under Existing International Laws .......................................................... 23 4.1. The ICCPR ................................................................................................................................... 23 4.1.1. Article 27 .............................................................................................................................. 24 4.1.2. Article 1 ................................................................................................................................ 26 4.2. UN Minority Rights Declaration .................................................................................................. 28 4.3. Minority Rights in Europe ........................................................................................................... 28 4.4. The UN Declaration on the Rights of Indigenous Peoples .......................................................... 30 5. The Dichotomy of National Minorities and Indigenous Peoples ........................................................ 31 5.1. Homeland Minorities in Israel ..................................................................................................... 33 6. Possible Solutions ............................................................................................................................... 35 Chapter 3 A Critical Review of Normative Theories of Minority Rights ................................................... 38 1. The Dignitarian Account ..................................................................................................................... 39 2. The Critique of the Dignitarian Approach .......................................................................................... 42 2.1. The Problem of Identifying the Content of the Norms and the Distinction between the Rights Holders ................................................................................................................................................ 42 2.2. The Problem of Historical Context .............................................................................................. 45 2.3. The Problem of Ambiguity of the Concept of Dignity ................................................................ 48 3. The Political Account of Minority Rights ........................................................................................... 51 3.1 Arguments from Nation Building ................................................................................................. 53 3.2. The Argument from Distribution of Sovereignty ......................................................................... 57 4. The Critique of the Political Account ................................................................................................. 63 4.1. Theoretical Advantage of the Political Account .......................................................................... 63 4.2. Implementation Difficulties with the Available Multicultural Models ........................................ 65 4.3. Theoretical Shortcomings of the Political Account ..................................................................... 68 4.4. The Significance of Establishing a Link between Minority Protection and Human Rights ........ 73 iv 5. The Dilemma of Theorizing Minority Rights ..................................................................................... 76 6. The Way Forward: A Possible Solution ............................................................................................. 80 Chapter 4 A Critical Review of the Major Theories of Human Rights....................................................... 85 1. Theorizing Human Rights: Preliminary Notes .................................................................................... 85 1.1. The Two UN Covenants: Civil and Political Rights Versus Economic, Social and Cultural Rights .................................................................................................................................................. 85 1.2. Cultural Relativism and the Universalism of Human Rights ....................................................... 89 2. Three Normative Understandings of Human Rights ........................................................................... 92 3. Naturalism and Human Rights ............................................................................................................ 94 3.1. Core Ideas of the Naturalistic Theory .......................................................................................... 95 3.2. Shared Elements of Naturalistic Conceptions of Human Rights ................................................. 98 3.3. Problems of the Naturalistic Theory .......................................................................................... 101 3.4. Naturalistic Theories and Minority rights .................................................................................. 106 4. Agreement Theories .......................................................................................................................... 107 4.1. Core Elements of the Agreement Theory................................................................................... 107 4.2. Advantages of the Agreements Theory ...................................................................................... 111 4.3. Problems of the Agreement Theory ........................................................................................... 113 4.4. Agreement Theories and Minority rights ................................................................................... 116 5. Political Theories of Human Rights .................................................................................................. 117 5.1. John Rawls’s Theory of Human Rights ..................................................................................... 118 5.2. Joseph Raz and “Human Rights Without Foundations” ............................................................ 127 5.3. Charles Beitz and The Idea of Human Rights ...........................................................................
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