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Minority rights

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MINORITIES: DEFINITION

  • No universally accepted definition
  • Working Definition:

A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members - being nationals of the State - posses ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language

Capotorti Definition

  • Citizenship?
  • Immigrants?
  • Loyalty?
  • Difference from asylum seekers? refugees?

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MINORITIES AND IMMIGRANTS:
‘OLD’ AND ‘NEW’ MINORITIES:

  • ‘the existence of communities is a question of fact; it is not a question of law’ – PICJ Greco-Bulgarian Communities Case

  • “The existence of an ethnic, religious or linguistic minority does not depend upon a decision by that State party” UN HRC General Comment No 23

  • Citizenship requirement –states insist - but then, the states has the power to give or take minority status! (Germany & Turkish immigrants; Pakistan; Iran; Maldives, Sri Lanka )

  • UN HRC GC 23: Given the nature and scope of the rights envisaged under that article, it is not relevant to determine the degree of permanence that the term "exist" connotes... Just as they need not be nationals or citizens, need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights.

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MINORITIES AND IMMIGRANTS (cont.)

What makes the distinction between immigrants and minorities?

  • Time?
  • Intention to stay?
  • Contribution to polity?

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Article 27 ICCPR

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion or to use their own language

Individualist outlook- negative outlook –

but progressive interpretation by the UN bodies and the UN Declaration on Minorities

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  • Minorities contribute to the political stability of states (preamble)
  • Protection of existence and identity of minorities (art. 1)
  • Right to participate effectively in cultural, religious, social, economic and public life and in matters that affect them (art. 2)
  • No discrimination and no disadvantage because of membership to a minority (art. 3)
  • States shall take measures ‘when required’ for the protection of minority rights, to create favourable conditions to ebale minorities exercise their rights (art. 4)
  • Right to learn their mother tongue ‘whenever possible’ (art. 4)
  • Education that encourages knowledge, of the history, traditions, language and culture. Mutual understanding and confidence (arts. 4 & 6)

UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities

  • Rights of minorities (art. 27) # Rights of self-determination (Article 1 of the ICCPR).

  • Opens the protection to the so-called ‘new minorities’.

  • Encourages and promotes positive measures

“A State party is under an obligation to ensure that the existence and the exercise of [the rights guaranteed by this provision] are protected against their denial or violation.”

  • Measures aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27, constitute a legitimate differentiation
  • Also see ICERD General Recommendation 32 (2009)


Human Rights Committee
General Comment 23

* Human Rights Committee case law Sandra Lovelace v. Canada (1977)

HRC and ICERD State reports

UN Bodies on Minority rights:

- Working Group on Minorities

Forum on Minorities

Independent Expert on Minorities

Monitoring of UN minority rights

  • Free choice to belong to a minority or not (art. 2);
  • Equality before the law and equal protection of the law (art. 4)- any discrimination prohibited;
  • Special measures to achieve full and effective equality and to promote their culture; prohibition of assimilation;
  • Spirit of tolerance and intercultural violence- no threat of hostility and violence- mutual understanding;
  • freedom of peaceful assembly, association, expression, thought, conscience and religion
  • Right of manifestation of religion and establishment of religious establishments;
  • Right to language, minority education (and establishments)
  • Right to effective participation

Framework Convention for the Protection of National Minorities (FCNM)

  • Enquiring the state’s choice of minorities
  • discusses other minorities in art. 6
  • gentle but firm discussion

  • UK Report:
  • Hate speech
  • Discrimination and prejudices against specific parts of the population
  • Gypsies and travellers
  • Need to protect more minority languages

Advisory Committee to the FCNM