MINORITY RIGHTS
BY PROFESSOR A. W.
CHANDA
PAST EFFORTS AIMED AT
PROMOTING RIGHTS OF
MINORITIES
PROTECTION OF MINORITIES UNDER
LEAGUE OF NATIONS
NON-DISCRIMINATION AND
EQUALITY PROVISIONS IN
INTERNATIONAL AND REGIONAL
HUMAN RIGHTS INSTRUMENTS
DEFINITION OF MINORITY
WHAT IS A MINORITY?
WHO DEFINES A MINORITY?
WHO ARE THE BENEFICIARIES OF MINORITY RIGHTS?
NO UNIVERSALLY ACCEPTED DEFINITION OF MINORITY
BUT VARIOUS CHARACTERISTICS HAVE BEEN IDENTIFIED:
" A NON-DOMINANT GROUP OF
INDIVIDUALS WHO SHARE CERTAIN
NATIONAL, ETHNIC, RELIGIOUS OR
LINGUISTIC CHARACTERISTICS WHICH
ARE DIFFERENT FROM THOSE OF THE
MAJORITY POPULATION.“
OBJECTIVE AND SUBJECTIVE ELEMENTS MUST BE
PRESENT
PROVISIONS FOR THE
PROMOTION AND PROTECTION
OF MINORITY RIGHTS
PROHIBITION OF DISCRIMINATION
AGAINST MINORITIES
MEANING OF DISCRIMINATION:
" ANY DISTINCTION, EXCLUSION,
RESTRICTION OR PREFERENCE WHICH IS
BASED ON ANY GROUND SUCH AS RACE,
COLOUR.., LANGUAGE, RELIGION, --
NATIONAL OR SOCIAL ORIGIN.., ..BIRTH OR
OTHER STATUS, AND WHICH HAS THE
PURPOSE OR EFFECT OF NULLIFYING OR
IMPAIRING THE RECOGNITION, ENJOYMENT
OR EXERCISE BY ALL PERSONS, ON AN
EQUAL FOOTING, OF ALL RIGHTS AND
FREEDOMS"
(GENERAL COMMENT No. 18 OF THE HUMAN
RIGHTS COMMITTEE, MARCH 1996)
•
•
DISCRIMINATION HAS BEEN PROHIBITED IN
A NUMBER OF INTERNATIONAL
INSTRUMENTS THAT DEAL WITH MOST, IF
NOT ALL, SITUATIONS IN WHICH MINORITY
GROUPS AND THEIR MEMBERS MAY BE
DENIED EQUALITY OF TREATMENT.
GROUNDS UPON WHICH
DISCRIMINATION IS
PROHIBITED:
RACE
LANGUAGE
RELIGION
NATIONAL OR SOCIAL ORIGIN
BIRTH OR OTHER STATUS
IMPORTANT SAFEGUARDS FOR
MINORITIES
RECOGNITION AS A PERSON
BEFORE THE LAW
EQUALITY BEFORE THE COURTS
EQUALITY BEFORE THE LAW
EQUAL PROTECTION OF THE LAW
FREEDOM OF RELIGION,
EXPRESSION AND ASSOCIATION
INSTRUMENTS CONTAINING NON-
DISCRIMINATORY PROVISIONS
A. GENERAL
· UN CHARTER 1945 - ARTICLES 1 AND
55
· UNIVERSAL DECLARATION OF HUMAN
RIGHTS (UDHR), 1948- ARTICLE 2
· INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS (ICCPR), 1966-
ARTICLE 2
· INTERNATIONAL COVENANT ON
ECONOMIC, SOCIAL AND CULTURAL
RIGHTS (ICESCR), 1966- ARTICLE 2
B. SPECIALISED
INSTRUMENTS
· ILO CONVENTION CONCERNING
DISCRIMINATION IN RESPECT OF
EMPLOYMENT AND OCCUPATION No. 111
OF 1958 - ARTICLE 1
· INTERNATIONAL COVENANT ON THE
ELIMINATION OF ALL FORMS OF RACIAL
DISCRIMINATION (CERD)- ARTICLE 1
· UNESCO CONVENTION AGAINST
DISCRIMINATION IN EDUCATION-
ARTICLE 1
· UNESCO DECLARATION ON RACE
AND RACIAL PREJUDICE, 1978-
ARTICLES 1, 2 AND 3
· DECLARATION ON THE
ELIMINATION OF ALL FORMS OF
INTOLERANCE AND DISCRIMINATION
BASED ON RELIGION OR BELIEF,
1981- ARTICLE 2
· CONVENTION ON THE RIGHTS
OF THE CHILD, 1989 (CRC)-ARTICLE
2
C. REGIONAL HUMAN
RIGHTS INSTRUMENTS
EUROPEAN CONVENTION FOR THE PROTECTION
OF HUMAN RIGHTS AND FUNDAMENTAL
FREEDOMS, 1950
THE EUROPEAN SOCIAL CHARTER
THE FRAMEWORK CONVENTION ON NATIONAL
MINORITIES (COUNCIL OF EUROPE)
THE DOCUMENT ON THE COPENHAGEN MEETING
OF THE CONFERENCE ON THE HUMAN DIMENSION
OF THE OSCE
AMERICAN CONVENTION ON HUMAN RIGHTS
THE AFRICAN CHARTER ON HUMAN AND PEOPLES
RIGHTS
AFFIRMATIVE ACTION
(SPECIAL RIGHTS)
SPECIAL RIGHTS
ARE NOT PRIVILEGES BUT ARE GRANTED TO MAKE
IT POSSIBLE FOR MINORITIES TO PRESERVE THEIR
IDENTITY, CHARACTERISTICS AND TRADITIONS
ARE AS IMPORTANT IN ACHIEVING EQUALITY OF
TREATMENT AS NON-DISCRIMINATION
ONLY WHEN MINORITIES ARE ABLE TO USE THEIR
OWN LANGUAGES, BENEFIT FROM SERVICES THEY
HAVE THEMSELVES ORGANISED, AS WELL AS TAKE
PART IN THE POLITICAL AND ECONOMIC LIFE OF
STATES CAN THEY BEGIN TO ACHIEVE THE STATUS
WHICH MAJORITIES TAKE FOR GRANTED
JUSTIFICATION FOR REVERSE
DISCRIMINATION
DIFFERENCES IN THE TREATMENT OF
MINORITIES ARE JUSTIFIED IF THEY
ARE EXERCISED IN ORDER TO
PROMOTE EFFECTIVE EQUALITY AND
THE WELFARE OF THE COMMUNITY
AS A WHOLE
INSTRUMENTS WHICH INCLUDE
SPECIAL RIGHTS FOR MINORITIES
A. UNIVERSAL
CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE-
ARTICLE 2
CERD-ARTICLES 2 AND 4
ICESCR-ARTICLE 13
ICCPR-ARTICLE 27
CRC-ARTICLE 30
UNESCO CONVENTION AGAINST DISCRIMINATION IN
EDUCATION-ARTICLE 5
UN DECLARATION ON THE RIGHTS OF PERSONS
BELONGING TO NATIONAL OR ETHNIC, RELIGIOUS
AND LINGUISTIC MINORITIES
UNESCO DECLARATION ON RACE AND RACIAL
PREJUDICE-ARTICLE 5
B. REGIONAL
INSTRUMENTS
FRAMEWORK CONVENTION FOR THE
PROTECTION OF NATIONAL MINORITIES
THE EUROPEAN CHARTER FOR
REGIONAL OR MINORITY LANGUAGES
(COUNCIL OF EUROPE)
THE DOCUMENT OF THE COPENHAGEN
MEETING OF THE CONFERENCE ON THE
HUMAN DIMENSION OF THE OSCE
IMPORTANCE OF ICCPR,
ARTICLE 27
ARTICLE 27 IS THE MOST WIDELY ACCEPTED
LEGALLY BINDING PROVISION ON
MINORITIES.
IT PROVIDES AS FOLLOWS:
"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
PRACTISE THEIR OWN RELIGION, OR TO
USE THEIR OWN LANGUAGE"
ALTHOUGH ART.27 IS FRAMED IN
NEGATIVE TERMS AND DOES NOT CALL
FOR SPECIAL MEASURES TO BE ADOPTED
BY STATES THOSE THAT HAVE RATIFIED
THE COVENANT ARE OBLIGED TO ENSURE
THAT ALL INDIVIDUALS UNDER THEIR
JURISDICTION ENJOY THEIR RIGHTS IN
FACT
THEREFORE, THE STATE MAY BE
REQUIRED TO TAKE SPECIFIC ACTION TO
CORRECT INEQUALITIES TO WHICH
MINORITIES ARE SUBJECTED
DECLARATION ON RIGHTS OF
PERSONS BELONGING TO
NATIONAL OR ETHNIC, RELIGIOUS
AND LINGUISTIC MINORITIES, 1992
THE ONLY UN INSTRUMENT WHICH ADDRESSES
THE SPECIAL RIGHTS OF MINORITIES IN A
COMPREHENSIVE MANNER
PRINCIPLES IN THE DECLARATION APPLY TO
PERSONS BELONGING TO MINORITIES IN
ADDITION TO THE UNIVERSALLY RECOGNISED
HUMAN RIGHTS GUARANTEED IN OTHER
INTERNATIONAL INSTRUMENTS
DECLARATION SAFEGUARDS THE TERRITORIAL
INTEGRITY AND POLITICAL INDEPENDENCE OF
THE NATION AS A WHOLE
UNDER THE DECLARATION PERSONS
BELONGING TO MINORITIES ARE GRANTED:
PROTECTION, BY STATES, OF THEIR
EXISTENCE AND THEIR NATIONAL OR
ETHNIC, CULTURAL, RELIGIOUS AND
LINGUISTIC IDENTITY
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
THE RIGHT TO PARTICIPATE IN CULTURAL,
RELIGIOUS, SOCIAL, ECONOMIC AND PUBLIC
LIFE
THE RIGHT TO PARTICIPATE IN DECISIONS
WHICH AFFECT THEM ON THE NATIONAL
AND REGIONAL LEVELS
THE RIGHT TO ESTABLISH AND MAINTAIN
THEIR OWN ASSOCIATIONS
THE RIGHT TO ESTABLISH AND MAINTAIN
PEACEFUL CONTACTS WITH OTHER
MEMBERS OF THEIR GROUP AND WITH
PERSONS BELONGING TO OTHER
MINORITIES, BOTH WITHIN THEIR OWN
COUNTRY AND ACROSS STATE BORDERS
FREEDOM TO EXERCISE THEIR RIGHTS,
INDIVIDUALLY AS WELL AS IN COMMUNITY
WITH OTHER MEMBERS OF THEIR GROUP
WITHOUT DISCRIMINATION
STATE OBLIGATIONS
THE STATE MUST TAKE MEASURES-
TO CREATE FAVOURABLE CONDITIONS TO
ENABLE THEM TO EXPRESS THEIR
CHARACTERISTICS AND TO DEVELOP
THEIR CULTURE, LANGUAGE, RELIGION,
TRADITION AND CUSTOMS
TO ALLOW THEM ADEQUATE
OPPORTUNITIES TO LEARN THEIR MOTHER
TONGUE OR TO HAVE INSTRUCTION IN
THEIR MOTHER TONGUE
TO ENCOURAGE KNOWLEDGE OF THEIR
HISTORY, TRADITIONS, LANGUAGE AND
CULTURE OF MINORITIES EXISTING WITHIN
THEIR TERRITORY AND ENSURE THAT
MEMBERS OF SUCH MINORITIES HAVE
ADEQUATE OPPORTUNITIES TO GAIN
KNOWLEDGE OF THE SOCIETY AS A
WHOLE
TO ALLOW THEIR PARTICIPATION IN
ECONOMIC PROGRESS AND DEVELOPMENT
TO CONSIDER LEGITIMATE INTERESTS OF
MINORITIES IN DEVELOPING NATIONAL
POLICIES AND PROGRAMMES, AS WELL AS
IN PLANNING AND IMPLEMENTING
PROGRAMMES OF CO-OPERATION AND
ASSISTANCE
TO COOPERATE WITH OTHER STATES ON
QUESTIONS RELATING TO MINORITIES,
INCLUDING THE EXCHANGE OF
INFORMATION AND EXPERIENCES, IN
ORDER TO PROMOTE MUTUAL
UNDERSTANDING AND CONFIDENCE
TO PROMOTE RESPECT FOR THE RIGHTS
SET FORTH IN THE DECLARATION
IMPLEMENTATION
OF MINORITY
RIGHTS
I. REPORTING PROCEDURE
STATES UNDERTAKE TO SUBMIT PERIODIC
REPORTS TO COMMITTEES OF EXPERTS
SET UP UNDER VARIOUS INTERNATIONAL
HUMAN RIGHTS TREATIES
REPORTS OUTLINE THE LEGISLATIVE,
JUDICIAL, POLICY AND OTHER MEASURES
WHICH THE STATES HAVE TAKEN TO
ENSURE ENJOYMENT OF, INTER ALIA, THE
MINORITY-SPECIFIC RIGHTS CONTAINED IN
THE RELEVANT INSTRUMENT
COMMITTEES RELEVANT TO
MINORITY RIGHTS
a) THE HUMAN RIGHTS COMMITTEE
(ICCPR)
b) THE COMMITTEE ON ECONOMIC,
SOCIAL AND CULTURAL RIGHTS
(ICESCR)
c) THE COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION (CERD)
d) COMMITTEE ON THE RIGHTS OF THE
CHILD (CRC
CONCLUDING
OBSERVATIONS
MAY STATE THAT VIOLATIONS OF
THE RIGHTS OF MINORITIES HAVE
OCCURRED
URGE STATE PARTIES TO DESIST
FROM ANY FURTHER INFRINGEMENTS
OF THE RIGHTS IN QUESTION
CALL ON THE RESPECTIVE
GOVERNMENTS TO ADOPT
MEASURES TO IMPROVE THE
SITUATION
II. COMMUNICATION
PROCEDURES
A. CONVENTION-BASED
SOME INTERNATIONAL CONVENTIONS
PERMIT INDIVIDUALS OR GROUPS WHOSE
RIGHTS HAVE BEEN VIOLATED TO SEND
COMPLAINTS TO THE COMMITTEE OF
EXPERTS
E.g. ICCPR, CERD
"VIEWS"-WILL INDICATE WHETHER OR NOT
THE COMMITTEE HAS FOUND VIOLATIONS
OF COMPLAINANTS' RIGHTS AND ALSO
WHAT MEASURES A STATE FOUND AT FAULT
MUST TAKE TO REDRESS THE SITUATION
B. NON-CONVENTIONAL
CONFIDENTIAL 1503 PROCEDURE
ALLOWS A WORKING GROUP OF THE
SUB-COMMISSION ON THE
PREVENTION OF DISCRIMINATION
AND PROTECTION OF MINORITIES AND
ULTIMATELY ECOSOC, TO RECEIVE
COMMUNICATIONS PERTAINING TO
SITUATIONS THAT CONSTITUTE A
"CONSISTENT PATTERN OF GROSS
VIOLATIONS" OF HUMAN RIGHTS,
INCLUDING THOSE OF PARTICULAR
IMPORTANCE TO MINORITIES
HIGH COMMISSIONER FOR
HUMAN RIGHTS
ESTABLISHED IN 1993 BY UN GENERAL
ASSEMBLY
ENTRUSTED WITH THE TASK, INTER ALIA,
TO PROMOTE AND PROTECT THE RIGHTS
OF PERSONS BELONGING TO MINORITIES
HC-REQUIRED TO PROMOTE
IMPLEMENTATION OF THE PRINCIPLES
CONTAINED IN THE DECLARATION ON THE
RIGHTS OF PERSONS BELONGING TO
MINORITIES AND TO CONTINUE TO
ENGAGE IN A DIALOGUE WITH
GOVERNMENTS CONCERNED FOR THAT
PURPOSE
PROVIDES GUIDANCE IN RESPECT OF,
AND SUPPORT TO, THE ACTIVITIES OF
OTHER BODIES AND ORGANS OF THE UN
THIS INCLUDES, INTER ALIA, THE FOLLOW-
UP OF MINORITY-RELATED RESOLUTIONS
OF LEGISLATIVE BODIES AND THE
RECOMMENDATIONS OF TREATY BODIES,
OF THE WORKING GROUP ON MINORITIES,
AND OF SPECIAL RAPPORTEURS
WORKING GROUP ON
MINORITIES
ESTABLISHED IN 1995 IN ORDER TO
PROMOTE THE RIGHTS SET OUT IN
THE 1992 DECLARATION
FORUM FOR DIALOGUE
SESSIONS ARE OPEN TO
GOVERNMENTS, INTER-
GOVERNMENTAL REPRESENTATIVES,
NGOS INVOLVED IN MINORITY
PROTECTION
INVESTIGATIONS
INDEPENDENT EXPERTS (SPECIAL RAPPORTEURS) ARE
APPOINTED BY THE UN TO INVESTIGATE AND REPORT
ON THE HUMAN RIGHTS SITUATION IN SPECIFIC
COUNTRIES, AS WELL AS THEMATIC ISSUES
OFTEN ADDRESS CONCERNS PERTAINING TO THE
RIGHTS OF PERSONS BELONGING TO MINORITIES OR
CONFRONTED WITH VIOLATIONS OF MINORITY RIGHTS
REPORTS ARE SUBMITTED TO THE GA, THE
COMMISSION ON HR AND THE SUB-COMMISSION ON
THE PREVENTION OF DISCRIMINATION AND
PROTECTION OF MINORITIES
ADVISORY SERVICES AND
TECHNICAL ASSISTANCE
OFFERED BY THE OFFICE OF HC FOR
HR
GOVERNMENTS MAY REQUEST
QUALIFIED EXPERTISE ON MINORITY
ISSUES, INCLUDING THE PREVENTION
OF DISPUTES, TO ASSIST IN EXISTING
OR POTENTIAL SITUATION
INVOLVING MINORITIES
THE END
