34 Protection of Minorities Under International Law

Dr. Aneesh V. Pillai

Learning Outcome

• Is to introduce students to the concept of minorities, the history and development of minority rights.
• Explaining the role of international law in ensuring the protection of minority rights is another key learning for the students.

Introduction

All countries in the world consist of persons belonging to national or ethnic, religious and linguistic minorities. Although no firm statistics exist, estimates suggest that 10 to 20 per cent of the world’s population belong to minorities. This means that between 600 million and 1.2 billion people are in need of special measures for the protection of their rights, given that minorities are often among the most disadvantaged groups in society, their members often subject to discrimination and injustice and excluded from meaningful participation in public and political life. In most places they are finding it’s difficult to maintain their identity, traditions, culture and language as well as to withstand the pressure of dominant group. Therefore, they are in a disadvantaged, marginalized and vulnerable position. Hence they require special measures and assistance to ensure their survival and protection of their rights. State practice is inconsistent for the protection of minority right is concerned. There are some state, that have already adopted the generous policies not only for the understanding the existence of minority, but also for the protection of cultural and linguistic identity. But still there are some states, which are facing the problem of the genocide and physical extermination of minority group. In practice, there are lot of state who are refusing to recognize minority that are present under jurisdiction for mechanisms of assimilation.

Minority: Concept and Definition

Generally a minority is a non dominant group of people of a state that are usually numerically less and have different ethnic, religious or linguistic characteristics than the majority of the population, that are aware of having a different identity and are willing to prevail it. They are supporting each other, have common will for survival and aim at the substantial and legal equality of rights with the majority . According to Francesco Capotorti, Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, a minority is, ‘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 – possess 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’.

Jules Deschenes defines minority as, ‘’a group of citizens of a State, constituting a numerical minority and in a non-dominant position in a 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 is to achieve equality with the majority in fact and in law’’.

It is to be noted that there is no internationally accepted definition as to which groups constitute minorities. An analysis of various definitions prevalent under international level shows that, the following criteria’s can be considered to identify minority groups: a) numerical inferiority; b) the non-dominant position of the group in relation to the population as a whole (in terms of political power and also economic, cultural or social status); c) differences between the ethnic, religious and linguistic characteristics and traditions of such groups in relation to the rest of a country’s population; and, c) the group’s wish to preserve its special characteristics and remain true to its culture. It is to be noted that the first three criteria are objective, and the fourth is subjective in nature.

Minority Rights are Group Rights

The minority groups have a vital interest in attaining full protection of their members’ individual rights (equal citizenship rights). The claim for collective rights for minorities derives from group differentiation, distinguishing the minority group from the majority. Collective rights require initiating special measures to be applied on a permanent basis in order to assure appropriate protection of the unique—and fragile—group identity of the minority group and its collective interests. These rights depend on the nature of the group and represent an inherent right conferred on the minority community because of its uniqueness. Their aim is to achieve material equality for the group’s members and to grant them appropriate legal protection, both on individual and collective levels. These rights are the precondition for achieving overall equality between majority and minority groups. It is to be noted that guaranteeing collective rights is a necessary pre condition for the enjoyment of individual rights of group members. Most of the human rights documents thus guarantee group or collective rights to minorities.

Protection of Minorities: History and Development

The concept of ensuring protection of minorities has it roots in middles ages. The Edict of Toleration issued by the Roman emperor Galerius Maximianus in 311 A.D. and the Edict of Milan issued by the Roman emperor Constantine Augustus in 313 A.D. safeguarded the rights of Christian minority. Vijapur, an author points out that as early as the seventh century, the Prophet Mohammad drafted the ‘Constitution of Medina’, under which minority groups were protected. In particular, Christians and Jews were allowed, as per the Islamic law of religious minorities, to practice their religions and cultures and to self-administer their personal laws. Another earliest example is in 1250, the French king Saint Louis pledged himself as the protector of Maronite Christians, a religious minority. This promise underwent periodical renewal by subsequent French monarchs. The rise of modern state system in the sixteenth and seventeenth centuries brought the issues of minority groups in the forefront of international law discourse. In 1606, the Protestant minority in Transylvania attained free exercise of religion through a Treaty between the King of Hungary and the Prince of Transylvania. In 1648, the Treaty of Westphalia, between France and the Holy Roman Empire, granted similar freedoms to Protestants. The Congress of Vienna (1815) not only promoted religious freedom for Christian denominations but also had provisions aiming at the improvement of the civil status of Jews. The 1815 Polish constitution was “the first modern document giving international status to a non religious minority group”. States, such as the signatories to the Treaty of Berlin in 1878, made religious freedom a condition of state recognition.

The concern for the protection of minorities’ has received more attention after the World War I. The League of Nations established on the basis of Versailles peace treaty was charged with enforcing the minority rights protections included in many of the peace treaties signed between Eastern European and Balkan states. The League was also responsible for setting up the Permanent Court of International Justice (PCIJ), which decided issues of discrimination against minority groups.” However it is to be noted that, the Covenant of League of Nations does not contain any provisions for the protection of minorities.

The creation of the United Nations in 1945, following World War II, is considered as a milestone in the development of law relating to minority rights. During these days it was thought that that, special provisions for the rights of minorities were not needed if individual human rights, in particular the prohibition of discrimination on grounds such as ethnicity, language, race, and religion, were properly protected. In 1946, the Commission on Human Rights was established by UN and was charged with the task of making recommendations on various human rights subjects, including the protection of minorities. In its first session in 1947, the Commission established the Sub-Commission on Prevention of Discrimination and Protection of Minorities.

In 1948 the UN adopted, the Universal Declaration on Human Rights which is considered as the most important document for the protection of human rights. But this Declaration does not contain any specific reference to minorities. However, it is argued that various provisions in the Declaration has an indirect impact on the rights of minorities. For example, the principle of non-discrimination in Article 2 is highly relevant for minorities. Article 2 declares that, ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non- self-governing or under any other limitation of sovereignty’. The right to non-discrimination is considered as a first step in the protection of minorities. Further Article 21, 22 and 27 also cited in relation to the protection of minorities.

In the same year, UN adopted, the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. It was the first international human rights instrument in which the protection of minority has expressly recognized. The Convention under Article 2 declares that the physical or biological destruction of minorities are genocide and would amount to a punishable act. It states that, ‘genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such : (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group’. Thus by declaring physical or biological destruction of minorities are genocide, the Convection formally recognized the minority groups to exist as a group, a fundamental right of minorities.

In the 1960’s, three important treaties were adopted that also addressed minority rights. In 1960, the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted the Convention against Discrimination in Education, which recognized the right of minority group members to carry out their own educational activities, including establishing their own schools and teaching their own language.

In 1965, the United Nations adopted the International Convention on the Elimination of All Forms of Racial Discrimination, which prohibits any distinction “based on race, colour, descent, or national or ethnic origin”. This Convention is best known for prohibiting discrimination on the basis of ‘race, colour, descent, national or ethnic origin’, it also provides for special measures for the advancement of racial or ethnic groups – an implicit acknowledgment of minority rights.

The third treaty is the International Covenant on Civil and Political Rights in 1966. Article 27 of this instrument is the first international norm that has universalized the concept of minority rights. It enshrines that, “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”. Human Rights Committee, the body entrusted with the enforcement of ICCPR and it interpretations have provided an authoritative interpretation to Article 27. It was in the General Comment No. 23 (1994), the HRC states “article 27 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. The interpretation of its scope of application by the Human Rights Committee has had the effect of ensuring recognition of the existence of diverse groups within a State and of the fact that decisions on such recognition are not the province of the State alone, and that positive measures by States may be “necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with the other members of the group”.

The next important step was the adoption of the International Covenant on Economic, Social and Cultural Rights, 1966. It enshrines under article 2 (2) that “the States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Committee on Economic, Social and Cultural Rights, the body entrusted with the task of implementation and interpretation of ICESCR have given a wide interpretation to right to health under Article 12 covering the rights of minorities also. In its General comment No. 14 (2000) of the Committee on Economic, Social and Cultural Rights declares that, ‘the right to the highest attainable standard of health states that health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, including ethnic minorities. Furthermore, all health facilities, goods and services must be culturally appropriate, for instance respectful of the culture of minorities. “States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including minorities, to preventive, curative and palliative health services”.

Another important treaty is the Convention on the Rights of the Child, 1989. It contains special provisions for the protection of minorities. In Article 2 the Convention mandates the State Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. Further in Article 30 Convention states that, “In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language”.

Another very important milestone in the history of protection of rights of minorities at international level is the adoption of Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992. The Declaration mandates 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 shall adopt appropriate legislative and other measures to achieve those ends’. It guarantees the right to enjoy their own culture, to profess and practice their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination by the Persons belonging to national or ethnic, religious and linguistic minorities. It also states that, persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life’. They have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation. They have the right to establish and maintain their own associations. Further, they have the right to establish and maintain, without any discrimination, free and peaceful contacts with other members of their group and with persons belonging to other minorities, as well as contacts across frontiers with citizens of other States to whom they are related by national or ethnic, religious or linguistic ties.

Further, the Declaration states that, persons belonging to minorities may exercise their rights, including those set forth in the present Declaration, individually as well as in community with other members of their group, without any discrimination. No disadvantage shall result for any person belonging to a minority as the consequence of the exercise or non-exercise of the rights set forth in the present Declaration. It mandates the States to take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law. It is also the duty of the States to take measures to create favorable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards. The States should also 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. In cases where appropriate, State should take measures in the field of education, in order to encourage knowledge of the history, traditions, language and culture of the minorities existing within their territory. Persons belonging to minorities should have adequate opportunities to gain knowledge of the society as a whole. 5. States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country. This Declaration is considered as a historic document as this is the first international instrument though non-binding exclusively dealing with the rights of minorities.

The Durban Declaration and Programme of Action, 2001 also provides certain provisions for the protection of rights of minorities. This Declaration was adopted in the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in 2001 in Durban, South Africa. It states that, ‘We affirm that the ethnic, cultural, linguistic and religious identity of minorities, where they exist, must be protected and that persons belonging to such minorities should be treated equally and enjoy their human rights and fundamental freedoms without discrimination of any kind’.

Thus it can be seen that international human rights frameworks protects the rights of minorities also. The significant feature is that these instruments not only provides protection to individuals rights but also provides rights as minority groups.

Conclusion

Protection of minority rights is ensured under international law. Minority is a non-dominant group of a state that are usually numerically less and have different ethnic or religious or linguistic character as compared to the majority of the population. Further, this module elaborates on the history and development of minority rights. This module also looks into the Universal Declaration on Human Rights, Convention on the Prevention and Punishment of the Crime of Genocide 1948, International Covenant on Civil and Political rights,1966 and few other conventions.

Reference

1. http://www.ohchr.org/EN/Issues/Minorities/Pages/MinoritiesGuide.aspx.
2. Emilia Papoutsi, “Minorities under International Law: How Protected they are?”, Journal of
3. Social Welfare and Human Rights March 2014, Vol. 2, No. 1, pp. 305-345.
4. Minorities under International Law, available at http://www.ohchr.org/EN/Issues/Minorities/Pages/internationallaw.aspx
5. Yousef T. Jabareen, “Toward Participatory Equality: Protecting Minority Rights Under International Law”, Isr. L. Rev. Vol. 41 No. 3, 2008, 635.