Minority Differentiated Rights

Compared with majority in a state union, Minority means cultural groups and its members who enjoy different cultural beliefs and different cultural characteristics, which includes but not limited to language, religion and convention etc., and its substantial character is the practice of values showed by life style. Minority is a definition based on cultural identity. The differences between minority and majority not only lie in value and life style of groups and its members but also the different adopted and accepted extent in public field in a state union. So special measures, which have been provided in related international human rights conventions and documents, should be taken by a state in order to make it possible for minority to protect, inherit and develop their own unique culture.Minority differentiated rights based on cultural claims instead of political claims are special measures that make it possible for minority to enjoy their culture. The reason why call these special measures differentiated right is that the name of differentiated rights shows not only the characteristics'difference', including the differences from citizen's basic rights, the differences between minority extra cultural claims and the differences between approaches, but also the purpose and approaches. In one word, the purpose of minority differentiated rights is to tolerant the differences of culture and respect cultural diversity instead of assimilating culture. The word 'differentiated'means the characteristics, the purpose and the approaches.This article is divided into five chapters, including the origin of minority differentiated rights, definition of minority, the definition of minority differentiated rights, and philosophy of human rights on minority differentiated rights and the operation of minority differentiated rights.Chapter one:the origin of minority differentiated rightsThis chapter is about the origin of minority differentiated rights from the perspective of Canada, including the theory of original sin, the pressure of international human rights conventions and multicultural policy. It concludes that minority differentiated rights origins from both of the atonement for the unjust treatment suffered by minority and the pressure of international conventions. Meanwhile, multicultural policy has also played a positive role, which means that multicultural policy has laid the foundation of minority differentiated rights because it admits that different cultures have equal value and the individuals have their own culture identity.Chapter two:defining minorityThis chapter is about the definition of minority and it analyzes the article 27th of The International Convention of Citizen Rights and Political Rights which has provided "minority" requirement. There are three factors which have been mention in the 27th article, including ethnic linguistic and religious differences. And all these factors concentrate on the key factor "cultural difference". So "minority" should be definite by cultural identity. The definition" minority" refers to groups and its members which have shown ethnic, linguistic and religious differences with the majority of people who have different cultural characteristics by cultural identity in a national common body.The reason why "minority" should be defined according to cultural identity lies in the truth that the culture of individuals have unique value which can not be replaced. To individuals, cultural identity can meet the need of complete self-identification, including:It is true that the moral capacity of complete self-identification origins from specific culture. The reason why persons become different individuals is that he/she becomes a member of a specific cultural group by growing up in a specific culture, studying its languages, taking part in its life, experiencing its moral rules. Without specific cultural backgrounds, it is impossible for individuals to shape and develop their own moral capacity. Secondly, complete self-identification embodies individuals can make their own choices and manage their own life as their desired. The definition that manage one's life according to one's mind here means a established goal based on one's own ideal and opinions which is unavoidable to be under one's own experience. In one word, it is a fact that how to manage one's life according to one's mind is under one's culture's control. The controlling of culture means it is impossible for one make his/her own choice without any cross-reference. On the contrary, choice self means a settlement under a cultural background. Thirdly, minimum proud is needed which origin from a desire for status and recognition in order to finish complete self-identification. And at the same time, cultural group can provide minimum proud because it recognizes its members'status. Consequently, only in a specific background, one can really finish his/her own complete self-identification. In one word, complete self-identification does not only means the recognition of one's moral capacity and one's life management in accordance with his/her mind, but also means the recognition of his/her culture and cultural group.In addition, this chapter also discussed the definition of "culture" in cultural identity, the differences between cultural identity and national identity, the relationship between "absolute minority" and "passive minority"Chapter three:the human rights philosophy of minority differentiated rightsThis chapter is based on the analysis of the 27th article of the International Conventions on Citizen Rights and Political Rights, which provided that everyone should have the right to enjoy his/her own culture. The same article also shapes the frame work of minority group rights or minority differentiated rights. So minority differentiated rights means a special human right whose chief is minority and a state should carry out positive obligations to make it possible for minority cultural groups and its members to enjoy their unique culture. It is evident that the substance of minority differentiated right is a kind of special right which tolerates different cultures provided in constitution or some other special law outside citizen basic right. In the field of minority rights, although the name of minority rights is diversified, the name of minority differentiated right is more believable because the name show the characteristics of rights including the differences between differentiated rights and citizen basic rights, the differences among minority groups and its members, and the differences among approaches to minority differentiated rights. The name of minority differentiated right also shows the purpose of legislation which means the word "differentiated" is not only the characteristic of the right but also the goal of the right.This chapter also discusses the differentiated characteristics compared with the citizen basic rights. The differences between minority differentiated rights and citizen basic rights lie in the backgrounds, the contents and the approaches. The differentiated characteristics of minority differentiated rights are also showed in the cultural claims among minorities; even the minority groups in one state have different cultural claims because of their circumstances. The different approaches of minority differentiated rights parade the differentiated characteristics of this kind of rights, which means it is possible for the minorities in a single state union to search for different approaches for the same rights due to their different historical experiences and concrete conditions.At the end of chapter, the question whether minority differentiated rights means an approach to the past has been discussed. And the answer is no. Essentially, minority differentiated rights means a middle road chosen by minority.Chapter Four:the human r ights phi losophy of minor ity differentiated rightsThe first part of this chapter analysis the theory of equal recognition, the principle of tolerating differences and culture diversity, which have been regarded as the human rights philosophy of minority differentiated rights. Because of the influence of recognition by others on the individuals'complete self-identification, to a great extent recognition can determine individuals'identity. In order not to torture individual's self-identification, recognition of others should be equal recognition, including recognizing that minority culture should have equal value with those of majority and not be replaced with each other. The first standard of equal recognition is recognition that everyone should have the right to choose his/her own life, so minority culture should be one of those choices. In other words, the choice made by minority should be respected even the choice is that they will live in their culture. In addition, the equal recognition mentions us that public sources should be distributed among people with different culture identity, including minority.By comparing the differences between white paper issued by Canadian federal government and the citizen plus issued by Indians in Canada, the chapter discusses the theory of equal treatment and the theory of tolerating differences. It concludes that it is more possible to realize equality by adopting the theory of tolerating differences instead of the theory of equal treatment. The last one of this part discusses the title of culture diversity and concludes that culture diversity is the real circumstances of human life. The purpose of protecting culture diversity is to protect that every approaches to possible happy life would not be choked. Minority differentiate rights can create and protect culture diversity and so culture diversity should be one of the human rights philosophy of minority rights.Another human rights philosophy of minority differentiated rights lies in the removing the handicap of modern constitutionalism ostracizing diversified culture which origins from 17 centuries. The core concepts "people" and "citizen" is the incarnation of ostracism of diversified cultures. Furthermore, in accordance with modern constitutionalism, a written constitution is necessary which ostracize diversified conventions. One of the approaches of removing the handicap of modern constitutionalism is to recognize minority extra cultural claims by establishing minority differentiated rights.Chapter five:the operation of minority differentiated rightsThis chapter discusses the operation of minority differentiated rights, including differentiated self-government right, differentiated conventional right, differentiated language right, minority representative right and the right to help minority mix with majority according to their desire.On the model of differentiated self-government right, three models have been mentioned and compared, including municipal government model, public government model and trilateral federalism model. Differentiated self-government right enjoyed by minority should be restricted by judicial review and the crux of the matter is how to keep balance between carrying out constitution and protecting minority unique culture. This chapter also discusses the relation between self-determine right and self-government right and concluded that the letter should include the former, which is based on the analysis on the constitutional judgment made by Canada Supreme Court on the Quebec splitting from Canada On minority differentiated conventional rights, this chapter discusses the jurisprudence of minority differentiated conventional right, the convention and dimension of minority conventional rights, including the relationship between citizen basic rights and minority conventional rights. On the differentiated language rights, this chapter discusses the contents of language freedom, language equality and the relationship between minority language rights and official language status. In the last part of this chapter, minority help-mixing rights have been discussed, including the definition and the content of help-mixing rights.