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No Room at the International Table: The Importance of Designing Effective Litmus Tests for Minority Protection at Home

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Despite being at the forefront of the development of human rights law, minority rights as a sui generis discourse has slipped away from the forefront of the international human rights regime. This has occurred despite the continued salience of questions concerning identity in international law and politics. This paper argues that the closing down of space at international level has meant that further developments protecting individuals irrespective of their identity, are more likely to come at national level, and suggests theaters, theories, and models in various states, where minorities are currently negotiating policies that are worth considering and replicating elsewhere.

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MeMories of state: Politics, history and collectiVe identity in Modern iraQ 242–44
  • Eric Davis
eric daVis, MeMories of state: Politics, history and collectiVe identity in Modern iraQ 242–44, 249–50 (2005).
Ethnic Segregation, Western Education and Political Outcomes: Nineteenth Century Ottoman Society, 14 Poetics today 507 (1993) and keMal h. karPat, the Politicization of islaM: reconstructing identity, state, faith, and coMMunity in the late ottoMan state
  • See Fatima Mugek Gocek
See Fatima Mugek Gocek, Ethnic Segregation, Western Education and Political Outcomes: Nineteenth Century Ottoman Society, 14 Poetics today 507 (1993) and keMal h. karPat, the Politicization of islaM: reconstructing identity, state, faith, and coMMunity in the late ottoMan state (2001).
Ethnicity and Democracy: Contemporary Manifestations, int'l J. of Peace stud
  • Peri Pamir
  • Nationalism
Peri Pamir, Nationalism, Ethnicity and Democracy: Contemporary Manifestations, int'l J. of Peace stud. (July 1997).
South Asia, in state of the world's Minorities & indigenous PeoPles 2011, supra note 50
  • Joshua Castellino
Joshua Castellino, South Asia, in state of the world's Minorities & indigenous PeoPles 2011, supra note 50, at 136–44.
china and its national Minorities: autonoMy or assiMilation? (1989). 82. See generally cultural encounters on china's ethnic frontiers
  • See Thomas Heberer
See thoMas heberer, china and its national Minorities: autonoMy or assiMilation? (1989). 82. See generally cultural encounters on china's ethnic frontiers (Stevan Harrell ed., 1997).
[hereinafter ICERD]. 33. Convention on the Elimination of All Forms of Discrimination Against Women
  • N Gaor
  • U N Sess
  • Doc
32 International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, G.A. Res. 2106 (XX), U.N. GAOR, 20th Sess., 660 U.N.T.S. 195 (entered into force 4 Jan. 1969), reprinted in 5 I.L.M. 352 (1966) [hereinafter ICERD]. 33. Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., U.N. Doc. A/34/46 (1980), 1249 U.N.T.S. 13 (entered into force 3 Sept. 1981). 34. Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., U.N. Doc. A/44/49 (1989), 1577 U.N.T.S. 3 (entered into force 2
in state of the world's Minorities & indigenous PeoPles 2011, supra note 50
  • Joshua Castellino
  • South Asia
Joshua Castellino, South Asia, in state of the world's Minorities & indigenous PeoPles 2011, supra note 50, at 136–44.
36. International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, G.A. Res
  • G A Sept
  • U N Res
  • Doc
Sept. 1990). 35. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. Res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990) (entered into force 1 July 2003). 36. International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, G.A. Res. 61/106, Annex I, U.N. GAOR, 61st Sess., Supp. No. 49, at 65, U.N. Doc. A/61/49 (2006) (entered into force 3 May 2008).
Changing the Lebanese Constitution: A Postmodern History, 30 cardozo l
  • John J Donohue
John J. Donohue, Changing the Lebanese Constitution: A Postmodern History, 30 cardozo l. reV. 2509 (2009).
Office of the High Commissioner for Human Rights, Independent Expert on Minority Issues
  • E G See
See, e.g., U.N. Office of the High Commissioner for Human Rights, Independent Expert on Minority Issues, available at http://www.ohchr.org/EN/Issues/Minorities/IExpert/Pages/ IEminorityissuesIndex.aspx; U.N. Office of the High Commissioner for Human Rights, Vol. 35
See also Sarah M. Saseen, The Taif Accord and Lebanon's Struggle to Regain its Sovereignty, 6 aM
See Lebanese National Accord Document, F.B.I.S -NES 204, 24 Oct. 1989. See also Sarah M. Saseen, The Taif Accord and Lebanon's Struggle to Regain its Sovereignty, 6 aM. u. J. l. & Pol'y. 57 (1990-1991);
The Question of Sectarian Identities in Iraq, 4 int'l J. of conteMP. iraQi stud
  • See Eric Davis
See Eric Davis, The Question of Sectarian Identities in Iraq, 4 int'l J. of conteMP. iraQi stud. 229 (2010).
124. the future of kurdistan in iraQ 210
  • Id
Id. 124. the future of kurdistan in iraQ 210 (Brendan O'Leary, John McGarry & Khalid Salih eds., 2005).