12.3.1 Protection of existence and identity of minorities (ICCPR art 27) Condensed: A minority may be defined as a numerical minority in a non-dominant position in a State, with ethnic, cultural, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim it is to achieve equality with the majority in fact and in law.Whether a person belongs to a minority depends on the self-identification of the individuals concerned. The protection of the existence of minorities includes their physical existence, their continued existence on the territories on which they live and their continued access to the material resources required to continue their existence on those territories. Protection of their identity means not only that the State should abstain from policies which have the purpose or effect of assimilating minorities into the dominant culture, but also that it should protect them against activities by third parties which have an assimilatory effect. . Comprehensive: Article 27 of the ICCPR provides:[1] In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the rights, in community with other members of the group, to enjoy their own culture, to profess and practice their religion, or to use their own language.
The 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities provides that:
States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity. States are also required to: adopt appropriate legislative and other measures to achieve those ends.
The UN Declaration also provides that:
Persons belonging to national or ethnic, religious and linguistic minorities have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.
According to the HRC those ‘protected are those who belong to a group and who share in common a culture, a religion and/or a language.’[2] There is no internationally accepted definition of what constitutes a minority. One often quoted definition provides: [3] A group of citizens of a State, constituting a numerical minority and in a non-dominant position in that State, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim it is to achieve equality with the majority in fact and in law. Whether a person belongs to a minority depends on the self-identification of the individuals concerned.[4] According to the HRC, to enjoy protection of their rights, minorities need not be citizens or permanent residents of the State in which they reside.[5] It is clear that some rights of minorities such as certain political rights may be limited to citizens.Indigenous peoples can claim minority rights but are also entitled to more specific protection.[6] The ECtHR has held that there is an ‘emerging international consensus’ for an ‘obligation to protect [the] security, identity and lifestyle [of minorities], not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community.’[7] According to the UN Working Group on Minorities, which functioned until 2006, ‘[t]he protection of the existence of minorities includes their physical existence, their continued existence on the territories on which they live and their continued access to the material resources required to continue their existence on those territories.’[8] Threats against the existenceand security of minorities include, *extrajudicial, arbitrary or summary executions or other unlawful killings*, *excessive or disproportionate use of force*,[9] *forced sterilization*,[10] *incitement to violence, hatred, or discrimination (hate speech)*, *forced evictions*, *arbitrary deportation/exile*[11] and generally unacceptable living conditions.[12] Minorities are especially vulnerable in time of conflict. *Forced displacement or resettlement* may pose a threat to the existence of smaller minorities. According to the UN Working Group protection of the existence of minorities ‘goes beyond the duty not to destroy or deliberately weaken minority groups. It also requires respect for and protection of their religious and cultural heritage, essential to their group identity, including buildings and sites such as libraries, churches, mosques, temples and synagogues.’[13]
With regard to protection of identity the UN Working Group notes: [14] Protection of their identity means not only that the State should abstain from policies which have the purpose or effect of assimilating minorities into the dominant culture, but also that it should protect them against activities by third parties which have an assimilatory effect. The language and educational policies of the State concerned are crucial in this regard. Denying minorities the possibility of learning their own language and of receiving instruction in their own language, or excluding from their education the transmission of knowledge about their own culture, history, tradition and language, would be a violation of the obligation to protect their identity.
The UN Independent Expert on minority issues has highlighted in her thematic and country reports that the protection of a minority’s existance and survival, includes the obligation on States to combat acts of violence against them and prevent genocide. The mandate recognizes that the protection and promotion of the cultural identity of minority groups and the right of national, ethnic, religious or linguistic groups to enjoy their collective identity and to reject forced assimilation requires guaranteeing the rights to non-discrimination and equality, including ending structural or systemic discrimination. The Independent Expert emphasizes the role of affirmative action when required.
The protection of the existence and identity of minorities entails legal, judicial or administrative measures which preserve the ethnic, cultural, religious and linguistic identity of the minority and prohibits discrimination.[15] States are also obliged to take action against economic exclusion of minorities.[16] Affirmative action may be needed to protect minorities.[17] (See *special measures for women, disadvantaged groups and persons with disabilities (affirmative action)*). . Additional references M Nowak UN Covenant on Civil and Political Rights – CCPR commentary (2005) G Pentassinglia Minorities in International law : An Introductorystudy (2002) P Thornberry International law and the rights of minorities (1993)
[1] See also Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, CoE Framework Convention for the Protection of National Minorities, European Charter for Regional or Minority Languages, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the OSCE art 32. [2]HRC General Comment 23 para 5.1. See also Declaration of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban, 2001, para 66. [3]See discussion of this definition, originally proposed in 1985, in Working Group on Minorities of theSub-Commission on the Promotion and Protectionof Human Rights, ‘Citizenship and the minority rights of non-citizens’, working paper by Asbjorn Eide, E/CN.4/Sub.2/AC.5/1999/WP.3, paras 8-9. [4] HRC Concluding Observations: Denmark, CCPR/C/DNK/CO/5 (HRC, 2008) para 13; CERD General Recommendation VII, CERD Concluding Observations: Greece, CERD/C/304/ADD.119 (CERD, 2001) para 12; CoE Framework Convention for the Protection of National Minorities art 3. [5]HRC General Comment 23 para 5.2. See also CMW art 31(1), CERD General Recommendation 30. [6]Working Group on Minorities of the Sub-Commission on the Promotion and Protection of Human Rights, Commentary on the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, E/CN.4/Sub.2/AC.5/2005/2 , para 16. [7]Chapman v UK application 27238/95 (ECtHR 2001) para 93. [8]Working Group on Minorities of the Sub-Commission on the Promotion and Protection of Human Rights, Commentary on the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, E/CN.4/Sub.2/AC.5/2005/2 , para 24. [9] CERD General Recommendation 27 para 12, Concluding observations: Moldova, CERD/C/60/CO/9 (CERD, 2002), para 17. [10]Concluding observations: Slovakia, CAT/C/SVK/CO/2 (CAT, 2009), para 14. [11]See eg CERD General Recommendation 30 paras 25-28. [12]Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, mission to Greece, E/CN.4/2006/67/Add.3, para 109.[13]Working Group on Minorities of the Sub-Commission on the Promotion and Protection of Human Rights, Commentary on the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, E/CN.4/Sub.2/AC.5/2005/2 , para 24. [14]Working Group para 28. [15]HRC General Comment 23 para 6.1, 6.2. See also CERD General Recommendation 27. [16]Recommendations of the Forum on Minority Issues at its third session, on minorities and effective participation in economic life, A/HRC/16/46 (2010), para 5. [17]HRC General Comment 23 para 6.2.
Condensed:
A minority may be defined as a numerical minority in a non-dominant position in a State, with ethnic, cultural, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim it is to achieve equality with the majority in fact and in law.Whether a person belongs to a minority depends on the self-identification of the individuals concerned.
The protection of the existence of minorities includes their physical existence, their continued existence on the territories on which they live and their continued access to the material resources required to continue their existence on those territories. Protection of their identity means not only that the State should abstain from policies which have the purpose or effect of assimilating minorities into the dominant culture, but also that it should protect them against activities by third parties which have an assimilatory effect.
.
Comprehensive:
Article 27 of the ICCPR provides:[1]
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the rights, in community with other members of the group, to enjoy their own culture, to profess and practice their religion, or to use their own language.
The 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities provides that:
States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity. States are also required to: adopt appropriate legislative and other measures to achieve those ends.
The UN Declaration also provides that:
Persons belonging to national or ethnic, religious and linguistic minorities have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.
According to the HRC those ‘protected are those who belong to a group and who share in common a culture, a religion and/or a language.’[2] There is no internationally accepted definition of what constitutes a minority. One often quoted definition provides: [3]
A group of citizens of a State, constituting a numerical minority and in a non-dominant position in that State, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim it is to achieve equality with the majority in fact and in law.
Whether a person belongs to a minority depends on the self-identification of the individuals concerned.[4] According to the HRC, to enjoy protection of their rights, minorities need not be citizens or permanent residents of the State in which they reside.[5] It is clear that some rights of minorities such as certain political rights may be limited to citizens.Indigenous peoples can claim minority rights but are also entitled to more specific protection.[6]
The ECtHR has held that there is an ‘emerging international consensus’ for an ‘obligation to protect [the] security, identity and lifestyle [of minorities], not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community.’[7]
According to the UN Working Group on Minorities, which functioned until 2006, ‘[t]he protection of the existence of minorities includes their physical existence, their continued existence on the territories on which they live and their continued access to the material resources required to continue their existence on those territories.’[8]
Threats against the existenceand security of minorities include, *extrajudicial, arbitrary or summary executions or other unlawful killings*, *excessive or disproportionate use of force*,[9] *forced sterilization*,[10] *incitement to violence, hatred, or discrimination (hate speech)*, *forced evictions*, *arbitrary deportation/exile*[11] and generally unacceptable living conditions.[12] Minorities are especially vulnerable in time of conflict. *Forced displacement or resettlement* may pose a threat to the existence of smaller minorities.
According to the UN Working Group protection of the existence of minorities ‘goes beyond the duty not to destroy or deliberately weaken minority groups. It also requires respect for and protection of their religious and cultural heritage, essential to their group identity, including buildings and sites such as libraries, churches, mosques, temples and synagogues.’[13]
With regard to protection of identity the UN Working Group notes: [14]
Protection of their identity means not only that the State should abstain from policies which have the purpose or effect of assimilating minorities into the dominant culture, but also that it should protect them against activities by third parties which have an assimilatory effect. The language and educational policies of the State concerned are crucial in this regard. Denying minorities the possibility of learning their own language and of receiving instruction in their own language, or excluding from their education the transmission of knowledge about their own culture, history, tradition and language, would be a violation of the obligation to protect their identity.
The UN Independent Expert on minority issues has highlighted in her thematic and country reports that the protection of a minority’s existance and survival, includes the obligation on States to combat acts of violence against them and prevent genocide. The mandate recognizes that the protection and promotion of the cultural identity of minority groups and the right of national, ethnic, religious or linguistic groups to enjoy their collective identity and to reject forced assimilation requires guaranteeing the rights to non-discrimination and equality, including ending structural or systemic discrimination. The Independent Expert emphasizes the role of affirmative action when required.
The protection of the existence and identity of minorities entails legal, judicial or administrative measures which preserve the ethnic, cultural, religious and linguistic identity of the minority and prohibits discrimination.[15] States are also obliged to take action against economic exclusion of minorities.[16] Affirmative action may be needed to protect minorities.[17] (See *special measures for women, disadvantaged groups and persons with disabilities (affirmative action)*).
.
Additional references
M Nowak UN Covenant on Civil and Political Rights – CCPR commentary (2005)
G Pentassinglia Minorities in International law : An Introductory study (2002)
P Thornberry International law and the rights of minorities (1993)
[1] See also Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, CoE Framework Convention for the Protection of National Minorities, European Charter for Regional or Minority Languages, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the OSCE art 32.
[2]HRC General Comment 23 para 5.1. See also Declaration of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban, 2001, para 66.
[3]See discussion of this definition, originally proposed in 1985, in Working Group on Minorities of theSub-Commission on the Promotion and Protectionof Human Rights, ‘Citizenship and the minority rights of non-citizens’, working paper by Asbjorn Eide, E/CN.4/Sub.2/AC.5/1999/WP.3, paras 8-9.
[4] HRC Concluding Observations: Denmark, CCPR/C/DNK/CO/5 (HRC, 2008) para 13; CERD General Recommendation VII, CERD Concluding Observations: Greece, CERD/C/304/ADD.119 (CERD, 2001) para 12; CoE Framework Convention for the Protection of National Minorities art 3.
[5]HRC General Comment 23 para 5.2. See also CMW art 31(1), CERD General Recommendation 30.
[6]Working Group on Minorities of the Sub-Commission on the Promotion and Protection of Human Rights, Commentary on the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, E/CN.4/Sub.2/AC.5/2005/2 , para 16.
[7]Chapman v UK application 27238/95 (ECtHR 2001) para 93.
[8]Working Group on Minorities of the Sub-Commission on the Promotion and Protection of Human Rights, Commentary on the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, E/CN.4/Sub.2/AC.5/2005/2 , para 24.
[9] CERD General Recommendation 27 para 12, Concluding observations: Moldova, CERD/C/60/CO/9 (CERD, 2002), para 17.
[10]Concluding observations: Slovakia, CAT/C/SVK/CO/2 (CAT, 2009), para 14.
[11]See eg CERD General Recommendation 30 paras 25-28.
[12]Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, mission to Greece, E/CN.4/2006/67/Add.3, para 109.[13]Working Group on Minorities of the Sub-Commission on the Promotion and Protection of Human Rights, Commentary on the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, E/CN.4/Sub.2/AC.5/2005/2 , para 24.
[14]Working Group para 28.
[15]HRC General Comment 23 para 6.1, 6.2. See also CERD General Recommendation 27.
[16]Recommendations of the Forum on Minority Issues at its third session, on minorities and effective participation in economic life, A/HRC/16/46 (2010), para 5.
[17]HRC General Comment 23 para 6.2.