Minority rights in international law

Abstract

Why should international human rights law vest members of a minority community with rights that secure a measure of autonomy from the state in which they are located? Answers to this question typically rest on a commitment to the protection of certain universal attributes of human identity from the exercise of sovereign power. Minority protection thus operates on the assumption that religious, cultural, and linguistic affiliations are essential features of what it means to be human. This essay offers an alternative account of why minority rights possess international significance, one that trades less on the currency of religion, culture, and language and more on the value of international distributive justice. On this approach, international minority rights speak to wrongs that international law itself produces by organizing international political reality into a legal order. This account avoids the normative instabilities of attaching universal value to religious, cultural, and linguistic affiliation and, instead, challenges the international legal order to remedy pathologies of its own making. -------------------------------------- Conclusion: This article has argued that international human rights law vests minority interests with international legal significance for reasons that have very little to do with why they might merit domestic legal protection. If this is the case, then neither of the above perspectives adequately captures the normative dimensions of international law. The first fails to grasp that the reasons why minority rights matter in international law have to do with the structure and operation of the international legal order itself, not because the demands of liberal constitutionalism are better met at the international level. The second would construe international minority rights as it construes all international legal entitlements, as the outcome of delegated domestic authority. But this construction is not how international law comprehends the legality of minority rights. Treating international minority rights in epiphenomenal terms assumes away the very legal autonomy they represent.