Minority rights in international law: Some highlights[1]

By Mervat Rishmawi[2]

There is virtually no country in the world that does not have one or more national or ethnic, religious, linguistic or other minorities. Countries in the Middle East and North Africa are no exception. Despite the presence of various minorities in the region, whether being citizens or migrants immigrants, not adequate laws and policies are in place in many countries of the Middle East and North Africa. It is often the case that in fact some of these minorities are the subject of restrictions and violations of their rights. 

What are minority rights?

Minority rights are human rights. Guarantees for minority rights must be put in place to ensure that minorities can enjoy their human rights as other members of the society; and that specific guarantees are put in place to ensure their rights as minorities. These rights help to protect and promote minorities’ cultures, religions and languages, among other things; facilitate their equal participation in the public sphere and in decision-making that affects them; and help protect minorities from harm and from discrimination. Therefore, the foundations of minority rights can be summarised in the following specific elements: protection of existence, non-discrimination, protection of identity and participation.

It is often stressed that the existence of a minority is a question of fact and that any definition must include both objective factors (such as the existence of a shared ethnicity, language or religion) and subjective factors (including that individuals must identify themselves as members of a minority).

There is no legal definition of the term ‘minority’ agreed in international law. Individual States recognize a wide range of groups domestically as minorities based on shared ethnic, cultural, religious and/or linguistic characteristics. Such groups are typically non-dominant vis-à-vis the majority(ies) in the spheres of economic, political, social and/or cultural life.[3] The difficulty in arriving at a widely acceptable definition lies in the variety of situations in which minorities live. Some live together in well-defined areas, separated from the dominant part of the population. Others are scattered throughout the country. Some minorities have a strong sense of collective identity and recorded history; others retain only a fragmented notion of their common heritage.

The 1992 United Nations Minorities Declaration, in its article 1 refers to minorities as based on national or ethnic, cultural, religious and linguistic identity, and provides that States should protect their existence. In addition to this, there are provisions in human rights treaties that prohibit discrimination on many grounds relevant to minorities.

Non-discrimination and equality before the law are two of the basic principles of international human rights law. The principle of non-discrimination prohibits any distinction, exclusion, restriction or preference which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.[4] It should be stressed that there is no requirement in international law to demonstrate discriminatory intent. The phrase “purpose or effect” refers to legislation and/or policies which may seem to be neutral but in fact result in discrimination. International human rights law prohibits both direct and indirect discrimination.

In addition to non-discrimination provisions, there are provisions which relate to protection of minority rights specifically. According to Article 27 of the International Covenant on Civil and Political Rights (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.

A similar provision is found in article 30 of the Convention on the Rights of the Child (CRC).

The Human Rights Committee’s general comment No. 23 (1994) on the rights of minorities provides an authoritative interpretation of article 27. The Committee stated that “this article establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant.” The right under article 27 is an autonomous one within the Covenant.

Article 25 of the Arab Charter on Human Rights is devoted to the rights of minorities, emphasizing that ‘[p]ersons belonging to minorities shall not be denied the right to enjoy their own culture, to use their own language and to practice their own religion. It should be noted here that, unlike the ICCPR, CERD, CRC or other instruments; the Arab Charter does not refer to ethnic, religious, cultural or linguistic minorities. The Arab Charter also omits the element of the right of members of minorities to enjoy the rights “in community with the other members of their group”. In relation to religion, while the Arab Charter recognises the right of minorities to practice their own religion, it does not recognise the right to profess religion. The Arab Charter requires that the exercise of these rights to be governed by law. Article 27 of the ICCPR or other international treaties does not include this requirement, which has the potential of limiting the exercise of rights of minorities, if the national laws are not favourable. The revised Charter also prohibits discrimination on grounds of race, colour, sex, language, religious belief, opinion, thought, national or social origin, wealth, birth or physical or mental disability (Article 3(1)). This generally is consistent with the grounds covered by various UN human rights treaties. However, the Charter limits many rights to citizens only and does not recognise them to all those under the jurisdiction of the state, as is required by other international human rights instruments. For example, the Arab Charter limits free education, at least at the primary and fundamental levels and ongoing education, to citizens. This is inconsistent with Article 13 of the ICESCR and Article 28 of the CRC which recognize the right of everyone to education, and that primary education shall be compulsory and available free to all, not citizens only.

Nature of state obligations

Minorities have the right to protection of their cultural, religious or linguistic identity. This, as in all other human rights, entails both positive and negative obligations. Respecting, protecting and fulfilling identity rights for minorities are key factors in managing diversity and creating stability. Minorities must not be prevented from expressing their identities by undue restrictions or policies of the state including assimilation policies.

In international standards, minority rights are expressed in individual terms as the “rights of persons belonging to minorities”. In international human rights law, therefore, minority rights are not the rights of the groups per se but of the individual members of the group. To be effective, however, these rights often need to be exercised in community with others.

According to the UN Independent Expert on minority issues, there are four broad obligations of the state to respect and ensure minority rights:

1. Protecting a minority’s existence, including through protection of their physical integrity and the prevention of genocide;

2. Protecting and promoting cultural and social identity, including the right of individuals to choose which ethnic, linguistic or religious groups they wish to be identified with, and the right of those groups to affirm and protect their collective identity and to reject forced assimilation;

3. Ensuring effective non-discrimination and equality, including ending structural or systemic discrimination; and

4. Ensuring effective participation of members of minorities in public life, especially with regard to decisions that affect them.[5]

It is not possible to cover all aspects of rights from the perspective of minorities’ rights. Therefore, a special focus on some aspects of education rights will be used as an illustration. Both direct and indirect discrimination in education impact tremendously on the rights of persons belonging to minorities. For example, the curriculum and textbooks used might perpetuate discriminatory attitudes towards minorities. Persons belonging to minorities and who are not citizens may be disadvantaged when education laws provide for education to citizens only, although international law requires that free and compulsory education must be available to all. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) calls upon States to prohibit and eliminate discrimination in access to education (article 5(e)(v)).[6] Further, states are required not only to ensure equal access for all to education, but to ensure non-discrimination in the quality of education provided. Where financial obstacles to accessing education disproportionately affect minorities, States are required to take special measures to overcome this barrier. (see below on special measures)

Specifically, minorities have a right to educational instruction in their mother tongue. Minorities may be disadvantaged because they do not speak the language of instruction in state schools. The UN Declaration on the Rights of National or Ethnic, Religious and Linguistic Minorities says “States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue” (article 4.3). Minority groups could establish their own educational facilities for providing instruction in their language (the

State may also require these facilities to teach the state language).

Special measures:

Differential treatment may be permissible if its objective is to overcome past discrimination or address persisting inequalities. International human rights law provides for the adoption of special measures in favour of certain persons or groups for the purpose of eliminating discrimination and achieving full equality, not only in law but also in practice.

Minority rights are about ensuring respect for distinctive identities while ensuring that any differential treatment towards groups or persons belonging to such groups does not mask discriminatory practices and policies. Therefore, positive action is required to respect cultural, religious and linguistic diversity, and acknowledge that minorities enrich society through this diversity. According to Article 4.2 of the UN Declaration on the Rights of National or Ethnic, Religious and Linguistic Minorities, States are encouraged to “take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs”.

It should be noted that the Committee on Elimination of Racial Discrimination highlights that these special measures “should not be confused with specific rights pertaining to certain categories of person or community, such as, for example the rights of persons belonging to minorities to enjoy their own culture, profess and practise their own religion and use their own language. […]. Such rights are permanent rights, recognized as such in human rights instruments…. States parties should carefully observe distinctions between special measures and permanent human rights in their law and practice. The distinction between special measures and permanent rights implies that those entitled to permanent rights may also enjoy the benefits of special measures.”[7]

However, special measures to protect minorities can be permanent. The open-ended engagement of a State to ensure effective participation by adopting special procedures resulting in the creation of institutions, and making arrangements through which members of minorities are able to make decisions, exercise legislative and administrative powers, and develop their culture, is believed to constitutes the best approach to preventing conflicts.

The principle of self-identification:

The UN Committee on the Elimination of Racial Discrimination (CERD), states that unless there is justification to the contrary, identification of persons as members of a racial or ethnic group will be based on “self-identification by the individual concerned”. The Human Rights Committee states that for the application of ICCPR article 27 on minorities, the existence of a minority group must be determined by fact and not merely by a decision of the state.[8]

Individuals have the right not to self-identify with a minority group to avoid discrimination. For some, internal discrimination within the minority community may involuntarily push them out. For others, the social stigma and discrimination that comes with being a minority may prompt them to disassociate from this community. In the latter case, it is important to respect the right of self-identification of the individual while simultaneously working against social and political factors that devalue the minority identity

In the absence of clear international definition of minorities, it is sometimes possible that national law is not consistent with international law and with the “self-identification” of minorities.

Assimilation

Central to the rights of minorities are the promotion and protection of their identity; which therefore must prevent forced assimilation and the loss of cultures, religions and languages. Non-assimilation requires diversity and plural identities to be not only tolerated but protected and respected. It is extremely important to ensure that integration is not understood to mean, and does not lead to, forced assimilation into the dominant culture. The implementation of the rights of persons belonging to minorities entails not only the need to understand and redress inequality but also to accommodate difference and diversity. Special measures to protect the existence and identity of minorities and encourage conditions for the promotion of that identity must therefore be put in place.

Minorities and citizenship

Minorities do not have to be citizens to claim respect for and protection of their identities and other minority rights. However, their residency status may impact on the policy measures taken by the country to fulfil minority rights. Minority rights are human rights and cannot be restricted to citizens only. The UN Human Rights Committee has stated that minority rights to protection, pursuant to article 27 of the ICCPR, must be applied to all individuals within the jurisdiction of a State party, including, inter alia, non-permanent residents, migrant workers and even visitors.[9]

Some minority groups have been historically resident in a country, while others may have arrived more recently as immigrants, migrant workers or refugees.  More recently arrived groups are entitled, at a minimum, to non-discrimination and to practice freely their culture, language or religion.

It should be noted that most of the world’s estimated 15 million stateless persons also belong to ethnic, religious or linguistic minorities. Discrimination against minorities has frequently led to their exclusion from citizenship.

Historically resident minorities often make further claims for positive measures, such as additional resources for education or for political participation. The former UN Working Group on Minorities has suggested:

The best approach appears to be to avoid making an absolute distinction between “new” and “old” minorities by excluding the former and including the latter, but to recognize that in the application of the Declaration [on Minorities] the ‘old’ minorities have stronger entitlements than the ‘new’.

It is important to consider whether new minorities, while during transition do not enjoy full ‘minority’ status results in unduly restrictive and discriminatory situation. 

Minorities exist across borders

Not all minority communities are contained within a single State. In many cases, ethnic, religious or linguistic minorities have kin groups in neighbouring States or in a wider diaspora with which they maintain ties. Some groups, such as pastoralists, also migrate periodically across borders of one or more States.

Minorities and indigenous peoples

In many countries there are both indigenous peoples and minorities. Indigenous peoples have distinct rights in international law, but minority and indigenous identities can exist along a continuum and might overlap in some cases. The UN Declaration on the Rights of Indigenous Peoples recognizes that indigenous peoples have the right to self-determination and the right to freely pursue their political status and their economic, social and cultural development. Their rights include rights to:

­- Self-determination

­- Collective land rights

­- Use of natural resources and territories

­- Practice customary law

­- Environmental conservation

­- Protect traditional knowledge, intellectual property, and cultural heritage

­- Free, prior and informed consent to measures that affect them or their lands and territories

The recognition of collective rights is necessary to ensure the continuing existence, development and well-being of indigenous peoples as distinct collectivises. The rights of minorities, by contrast, are expressed in international law as individual rights of persons belonging to minorities. Some of these rights are exercised in parallel with others, for example, speaking a language or practicing a religion. Minorities often seek autonomy over their cultural, linguistic or religious lives.

Therefore, some minority groups are also indigenous peoples. Such groups may claim both minority rights and indigenous rights but the highest human rights standards always has to apply.

Double discrimination

Minorities are not internally homogenous communities. Several groups may be marginalised within minority communities including women, children, the elderly, persons with disabilities, sexual minorities and persons living with HIV. These groups will experience multiple forms of exclusion and intersecting discrimination. In some cases, discrimination against these groups may be culturally entrenched.

UN specific relevant mechanisms

The main two special mechanisms which relate specifically to minorities and which are still operational are Independent Expert on minority issues and the Forum on Minority Issues. 

The mandate of the Independent Expert on minority issues was originally established in 2005.[10] The Independent Expert focuses on the root causes of grievances, revealing issues of concern relating to minorities, with a view to avoiding duplication with other bodies and taking advantage of the differences in their mandates. The Independent Expert sends urgent appeals or letters of allegation, usually together with other special procedure mandate-holders. He/she undertakes country visits at the invitation of Governments to further constructive consultation, observe relevant programmes and policies, register concerns, and identify areas for cooperation. In addition, the Independent Expert engages in work on thematic priorities, including producing thematic reports and convening seminars and consultations.

In 2007, the Human Rights Council, by resolution 6/15, also established the Forum on Minority Issues. This is to provide a platform for promoting dialogue and cooperation on issues pertaining to persons belonging to national or ethnic, religious and linguistic minorities. The Independent Expert on minority issues guides the work of the Forum, prepares its annual meetings and includes the thematic recommendations of the Forum in his/her report. So far, there has been five sessions of the forum dealing with the following issues: Minorities and the right to education; effective political participation; effective participation in economic life; guaranteeing rights of minority women; and finally, the latest forum dealt with implementing the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: identifying positive practices and opportunities.[11]

In addition to these specific mechanisms, minorities benefit from the mandates of all other treaty bodies responsible for overseeing the implementation of treaties, and from special procedures like special rapporteurs and working groups, in addition to the Universal Periodic Review of the Human Rights Council.



[1] For detailed information on minorities’ rights, standards and mechanisms see “Minority Rights: International Standards”, Office of the High Commissioner for Human Rights - Guidance for Implementation and UNDP Resource Guide and Toolkit: Marginalized Minorities in Development Programming, published in May 2010 http://www.ohchr.org/Documents/Issues/Minorities/UNDPMarginalisedMinorities.pdf

[2] Mervat Rishmawi is a Palestinian human rights consultant with special interest and expertise in the Middle East and North Africa. She worked previously as the Legal Advisor to the Middle East and North Africa at the International Secretariat of Amnesty International. She currently provides advice and carries out strategic analyses and evaluation More information is available on www.mervatrishmawi.co.uk

[3] See further definition by Mr. Francesco Capotorti, Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/384/Rev.1, para. 568. While the nationality criterion included in this definition has often been challenged, the requirement to be in a non-dominant position remains important.

[4] See Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination.

[5] Report of the Independent Expert on minority issues, UN Doc. E/CN.4/2006/74 (6 January 2006), paragraph 22.

[6] See also Article 13 of the ICESCR and Article 28 of the CRC which recognize the right of everyone to education, and that primary education shall be compulsory and available free to all, not citizens only.

[7] See Committee on the Elimination of Racial Discrimination, General Comment 32: “The meaning and scope of F measures in the”, CERD/C/GC/32, 24 September 2009, para 15. See also Committee on the Elimination of Discrimination against Women, general recommendation No. 25 (2004), para. 19, and “Recommendations of the Forum on Minority Issues” (A/HRC/10/11/Add.1, para. 12).

[8] See CERD General Recommendation VIII, and Human Rights Committee General Comment 23.

[9] UN Human Rights Committee, General Comment No. 23: The Rights of Minorities (Article 27),CCPR/C/21/Rev.1/Add.5,paragraph 5.1.

[10] See Resolution of the Human Rights Commission 2005/79. In March 2011, the Human Rights Council decided to renew the mandate of the independent expert for an additional period of three years (HRC Resolution 16/6).

[11] For further information about the forum, see http://www2.ohchr.org/english/bodies/hrcouncil/minority/forum.htm




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