Legal Safeguard Mechanism Of The Minority Nationality Right To Development

The right to development was proclaimed as a basic human right by the UnitedNations in1986in the “Declaration on the Right to Development”， and has beeninvolved in other international documents on human rights. The right to developmentwas mainly claimed by the developing countries， facing the developmentpredicaments and rethinking the old international political and economic order， tothe developed countries and international organization. As legalizing the developmentand orienting the development with human rights are significant ways to study theright to development， it is necessary to analyse the development in the viewpoint ofhuman rights protection and legal construction in order for the development to havethe significance of theoretical speculation and institutional reconstruction， neither toresearch the development itself nor to simply equal the development to economicaldevelopment and free competition. Meanwhile， it is the important content to furtherdeepen the research of the right to development both theoretically and practically thatextending the development to domestic policies and system reforms and expandingthe right protection to diverse social strata and various culture backgrounds.Multinational countries are universal in present world. These minoritynationalities are diverse in languages， religions and cultures while theirdevelopments are unbalanced and even backward due to sparse population. The majorcontent of this article is how to use the theories and institutions relative to the right todevelopment to analysis minority nationality policies and institutions in differentcountries， reveal the development predicament and the reason， and propose thedevelopment framework and path from the perspective of human rights and rightprotection.It is the core issue that who to develop（the subject）， develop what（thecontent）， how to develop（the concept， the pattern， the operational mechanismof rights）， and the promotive factors and the restrictive factors of the developmentwhen study the development in each subject. And the kernel of the nationality right todevelopment is to care about the situation of minority nationalities and govern theseissues in the viewpoint of rights. The right to development is also an important andspecial right including various right patterns and permeating other rights comparedwith other rights. The realization of the right to development in real world isobviously benefit to the benign operation of human rights and other rights.（The appellations of minority nationality in different countries are not unified and thisarticle calls it “nationality” based on habitual title of minority nationality in China.）The foreign researches on the nationality development and the right to developmentregard the international documents on human rights as the original version， connectthem with Chinese reality and the minority nationalities formed by transnationalimmigrates， and focus on the special groups’ rights of language， religion， culture，education， food， housing， health care， nutrition， the recognition degree， theprotection mode and the problems according to the nationalities， the ethnic groups，the minorities， the aborigines and the tribes around the world. The domesticresearches tend to interpret the realistic policies， construct the institutions based onthe problems and improve the measures.More academic achievements and agreements are concentrated on theinternational minority right protection and the right to development， whereas lessattention are paid to the minority nationality right to development neither consensus.The minority nationality right to development is equally recognized in the constitutionand laws regarding the minority nationalities as a definite group and systematicsolutions are stated in policies and legal system in China where more researches canbe seen. While looking upon the development as a human right is internationallyrecognized referred to minority nationalities， there are still many problems to beresolved. It is necessary to study further in the basic concepts， the policy system，the legal system， the international cooperation and so on.This article discusses the minority nationality right to development in thefollowing six aspects.Firstly， this article takes the characteristics and limits of individual rights andthe appearance and evolution of collective rights in the international human rightstheory as clue and reveal the subject attributes of collective and individual humanrights to development. While the limits of individual human rights protection makethe collective human rights protection to be supplement and necessity. This articledefines the concepts of different nationalities group and analyses the characteristics onthis basis to acknowledge the minority nationalities as a group and individualsaccording with the scope of human rights protection stated in the “Declaration on theRight to Development”. Although the emphasis of the minority nationality in Chinaand the minority right protection in “The International Covenant on Civil and PoliticalRights” are different， the protection modes are mutual to realize the development both with the current necessity which is urgent to protect the right to development andwith the possibility which is occurred in domestic and international society.Secondly， the attributes， the characteristics， the missions， the contents，the ways to achieve， the difficulties and the challenges have been involved in thecurrent international human rights documents. The researches on minority right showthat the idea of minorities and individuals human rights protection deepen theinternational human rights protection and it is proper to protect the minority right. Atthe meanwhile，the practice on minority right protection show that it is necessary andpossible that paying attention to minority nationality right to development andmeeting the development demands in appropriate ways.Thirdly， the minority nationality right to development is a group right. Politicalright， and economic， social and cultural right as the traditional right types are thefirstly involved content of the minority nationality right to development. The relativerights can be split into national self-determination， national autonomy， economicautonomous development， cultural development， linguistic right， educationdevelopment， land resource， minority nationality environmental development，religious belief， water conservancy construction， immigration， social security andso on. These rights can not only exist alone but also have intimate connections withthe groups which are unique in language， culture， geographic features and religiousbelief. The factors effecting on the reality of the right to development are various， soit is difficult to implement the essential justice， improve the existence situation andrealize the sustainable development with policies and institution construction lack ofenough identification and consideration.Fourthly， the right to development has profound historic origin different totraditional human rights. The corrective relation of social development decides thereciprocity of various countries development， and the globalization accelerate theprocess. The cooperation framework and partnership of development based oninternational cooperation and development assistant has constructed the basicinternational framework， implemented various international cooperation patterns，and provided multiple choices for the right to development and especially themultinational countries solving and raising questions. The main ways to realize theright to development are carrying out difference policies and institutions andeliminating the unbalance in regional development. The different degrees in variouscountries are important basis to realize the equitable development of various groups and the balance development of various regions in the future.There are55minority nationalities recognized in the law and some other to berecognized in China. As China is a multinational country， the population of minoritynationalities is great and they often live in undeveloped areas. The minoritynationalities are diverse in culture and religion belief and the developments areunbalanced. If the legal institutes and policies on minority nationality areundiscriminating to the major nationalities，it would be hard to effectively protect thebasic right to exist and the right to development. The achievement of minoritynationality and national areas made by practicing the discriminating legal institutionson the constitution or the regional national laws and the policies on the specialmeasures in multiple levels， and thinking highly of the right to exist and the right todevelopment， are unique in China and recognized by the international society. Themain experience is to protect the reality of the right to development from the pathconnected the principle of nationality with the principle of territory. This confirms thepractice that recognizing the status of the aborigines and other minority nationalities，improving the situation of existence and development， realizing the equitabledevelopment and the difference policies and institutions in other countries and leadsto the same destination.Sixthly， China has been adjusting the way to realize the right to development toproceed along the direction of the rule of law and the human rights protection. Theperspective of human rights and the route to rule of law make demands inparticipation， empowerment， performance and supervision and this is the maincontent to further improve the minority nationality policy， the institution and thepractice. It is necessary to adjust and perfect the legislation， the law enforcement，the judicature and the policy. Furthermore， the challenge in the future to realize theminority nationality right to development is to promote the development in theundeveloped areas， remedy the regional unbalance， design the special institutions，adjust the policies， and realize the minority nationality right to development as bothcollective right and individual right in the framework of right protection.The topic of “the research on the nationality right to development” takes “theright to development”， the third generation human right， as the right basis and thetheoretical source and involves the development into human rights realm. And thisarticle regards the nationality in the form of groups as the subject of the right todevelopment， according to the international way to protect the minority right， and discusses not only the statement of development in the history and the reality ofvarious countries and the initiate relationship with the rights and human rightsprotection， but also the issues of the basic theory， right genres， legal relationship，institutional construction， macro policy and implementing mechanism. Meanwhile，this article summarizes the effective mechanism and experience of national conflictprevention by researching the theory， legislation， judicature and administrativesystem， reaches the common view which respects for various nationalities benefits，studies the development path that the minority nationality could participate and makechoice in the international society and the domestic environment to protect theminority nationality right to development.