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North Carolina Journal of International Law and Commercial Regulation

Substantive Equality in International Human Rights Law and Its Relevance for the Resolution of Tibetan Autonomy Claims

Kelley Loper

Volume 37 - Issue 1, Fall 2011

Abstract

Many plural societies have embraced measures that protect the rights of minority communities, but in balancing conflicting rights and interests, these societies have often struggled. The ability to craft workable solutions depends on whether policymakers take into account the degree of marginalization experienced by minority groups. It also depends on the strength of each group's identity claim. This article explores the international human rights laws that can inform the process of developing effective approaches. It further discusses how the application of human rights standards may prevent the assimilation of minorities against their will. These standards provide a basis for determining where a given policy falls along an accommodation-assimilation spectrum.

The efforts of the Tibetans in China to achieve self-determination and autonomy provide a framework for considering the applicability of the right to equality in international human rights law. This article explains the impact of education policy, as well as how teaching and the use of the Tibetan language may help the minority community comprehend, develop, and perpetuate its cultural identity. China has become increasingly engaged with the international human rights system, but ethnic unrest has continued. Thus, the Tibetan situation allows for an examination of how a right to substantive equality may apply in a particularly difficult situation. This discussion involves testing both the scope of equality and the potential to address competing ethnic claims.

This article concludes that current Chinese policies are inadequate to ensure the realization of substantive equality for the Tibetans. Instead, these policies should be reevaluated with reference to international human rights standards. This discussion does not suggest that solutions are obvious or easily achieved in practice; nor does it suggest that standards such as self-determination should be abandoned. The article merely proposes that equality can assist, to a greater extent than is often realized, in the process of identifying and implementing effective approaches and in alleviating tensions between the demands of accommodation and integration.

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