Minority rights in simple words can be defined as a legal framework which has been devised in order to ensure that a specific group of people who are in a vulnerable or disadvantageous position in the given society are able to achieve equality and to some extent protected from persecution. These rights apply to ethnic, religious or linguistic minorities and indigenous people, thereby forming an integral part of international human rights law. By way of granting these rights the various international treaties seeks to protect various facets of life which includes the very right of existence, protection from discrimination, protection of identity and many others. Minority protection thus operates on the assumption that religious, cultural, and linguistic affiliations are essential features of what it means to be human (Macklem, 2008)
II. Definition of minority rights
Providing an all-encompassing definition for ‘minority’ may prove difficult due to the basic reason that the facts constituting the premise for a particular group being a minority would never be the same from region to region. (Volger, 2002: 373).
The definition provided by UN Special Rapporteur Francesco Captorti has shed some light on the scope and ambit of the term ‘minority’. According to him a minority is “a group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members – beings nationals of the state – possess ethnic, religious, or linguistic characteristics different from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving culture, traditions, religion, or language (Captorti, 1979).”
In a more general sense it can be defined as a group of people who held together by ties of common descent, physical characteristics, traditions etc. occupy subordinate status and receive differential treatment compared to other groups in the society of which they are party. (Colliens Encyclopedia, 1978: 336)
III. Conventions Protecting Minority Rights
The United Nations Declaration of Human Rights (1948) is the most important document that represents the universal consensus on the existence of human rights. Article 2 of the UDHR states that all persons irrespective of their status, including their racial and social origin are entitled to the rights and freedoms in the Declaration. Further Article 7 provides for equality before law and equal protection before law without discrimination.
The United Nations Declaration on the Elimination of All Forms of Racial Discrimination (1963) was yet another step which sought to protect minority rights. This declaration paved way for the International Convention on the Elimination of all Forms of Racial Discrimination in 1965. This treaty essentially dealt with the rights of racial and ethnic minorities.
In the year 1951 the United Nations through the Convention Relating to Status of Refugees emphasized on the right of the individuals to seek asylum in case of fear of race, religion or nationality-based persecution (Article 2) and also made it mandatory of the member states to implement these provisions regardless of race, religion etc.
The Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities is yet another important document as this is the only UN document which solely caters to minority rights.
The Rome Statute of the International Criminal Court (1998) also places stress on the importance of minority rights by way of giving the International Criminal Court the jurisdiction over acts of genocide of specific national, ethnic, racial or religious groups.
The International Covenant on Civil and Political Rights (ICCPR), which is the Bible as regards international law on the civil and political rights of the Members States that every Member State is obliged to guarantee all the rights that is enumerated in the Covenant without distinction of any kind. Article 27 of the ICCPR states that States in which minorities exist, whether ethnic, religious or linguistic, the State shall not deny to any such person the right to enjoy their own culture, religion or language.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) emphasizes that the rights protected under the said treaty shall be exercised without distinction of social status or race. This clearly shows the importance given to the rights of minorities.
As regards regional Treaties and Convention safeguarding human rights, the European Convention of Human Rights is the earliest, and still considered the most effective. The Rights guaranteed under the ECHR are in many ways similar to those guaranteed under various international and regional Human Rights instruments such as the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Social and Cultural Rights (ICESCR). However various Amendments which have been introduced in the ECHR by way of Protocols, have served to strengthen the provisions as well as introduce special rights. Some of these include the right not to be denied education and the right for parents to have their children educated in accordance with their religious and other views (Protocol 1), prohibition of expulsion of nationals and right of an individual to enter a country of his or her nationality (Protocol 4), right to fair procedures for lawfully resident foreigners facing expulsion (Protocol 7), and equality between spouses (Protocol 7).
African Charter on Human and Peoples’ Rights (1981), the United Nations Sub commission on Prevention of Discrimination and Protection of Minority Rights, Convention on Indigenous and other Tribal and Semi-tribal Populations in Independent Countries (1957), The UNESCO Declaration on Race and Racial Prejudice (1982), Resolution on the Languages and Cultures of Regional and Ethnic Minorities, adopted in 1987 are a few other documents which uphold minority rights.
IV. Substantive Rights that are accepted as Minority Rights
The right to non- discrimination is the most important right that has found a place in almost all the international agreements where there has been doubts about denial of equal treatment to the minorities. The Human Rights Committee in its General Comment 18 of 10 November 1989 on non-discrimination has opined that any kind of distinction based on race ,religion etc which results in the denial of equal treatment of all persons can be regarded as non -discrimination. Article 1 and Article 55 of the Charter of the United Nations, Article 2 of the UDHR, Article 2 and Article 26 of ICCPR, Article 2 of International Covenant on Economic, Social and Cultural Rights, Article 2 of the Convention on the Rights of Child, Article 2 of the International Convention on the Elimination of All forms of Racial Discrimination, Article 2 of the African Charter of Human and People’s Rights etc. stress on the importance of this right.
The right to self determination is yet another right that has gained recognition under international law. This right gives every individual the freedom to decide on their political status, religious social and cultural development without any kind of inference from the state. However, the United Nations has been cautious while recognizing this particular right as there has been cases where minorities have requested independence or political autonomy on the basis of their right to self-determination. Hence, as per the UN Document on the Declaration on Granting Independence to Colonial Countries and Peoples (UN Doc. A/Res/ 1514 (XV) of 14 December 1960) if an act of any group attempts to or results in destruction of territorial integrity or national unity of a state, such an act will be considered derogatory to the principles enshrined in the United Nations. African Charter of Human Rights (Article 20) grants the above said right to all the people. The Article also states that colonized and oppressed sections of the country have every right to break the chains of domination. This clearly points out the importance the international community places on the existence of this right for the minority groups.
Equality before law is a basic human right that has been recognized as a substantive right of all minority groups through the various conventions and treaties. If any treaty seeks to grant a person all rights without any kind of distinction based on race, sex etc it is propagating the concept of equality before law. The Art 2 of the American Declaration of Rights and Duties of Man, Article 26 of the ICCPR etc are clear examples of this line of thought.
Freedom of religion is yet another substantive right which is made available to all individuals through the various conventions and treaties. It attains more relevance in the case of minority groups as they are more susceptible to attacks and forced conversions. The right to enjoy their own culture and to use their own language is also very important aspect of minority rights. Art 27 of the ICCPR guarantees these rights to ethnic religious or linguistic minorities so that members belonging to minority groups can effectively engage in activities of the community.
As regards minority language rights one can see that this is generally protected under two different categories of rights (Dunbar, 2001: 90). The first category consists of linguistic tolerance which aims to protect the speakers of minority languages from discrimination and procedural unfairness. The Convention for the protection of human Rights and Fundamental Freedoms and the ICCPR two conventions which stresses on this aspect of protection. The second category is that of linguistic promotion. The Copenhagen Declaration, the Minorities Language Charter are e.g. of conventions which stresses on this aspect.
The right to seek asylum is a very important right as regards minority groups. Article 14 of the UDHR provides that all individuals have the right to seek asylum in other countries in order to protect themselves from persecution.
Prisoners’ Rights form yet another important part of general minority rights, with various Conventions affording protection against torture per se, and also offering guidelines regarding treatment of prisoners. Some of these include the Geneva Convention relative to the Treatment of Prisoners of War, 1949, United Nation’s Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment etc. Moreover, these rights are protected in the various regional Conventions such as the European and American Conventions as well.
As the UN considers categories of persons such as women and children as being in a vulnerable or disadvantageous position in the given society, the various treaties pertaining to them may be construed to be one form of minority rights protection. Some examples are the Convention on the Elimination of All Forms of Discrimination Against Women (1979) and Convention on the Rights of the Child (1989).
Special rights have been developed within the United Nations with a view to enable minorities to preserve their identity and traditions. In principle, those rights are not privileges, but granted to members of minorities in different situations to alleviate conditions for them to reach, the same situation as the majority population. Some of the conventions which include special rights for persons belonging to minorities are Convention on Prevention and Punishment of the Crime of Genocide (Art II),Convention on Elimination of all forms of Racial Discrimination (Art 2 and Art 4) etc.
V. Role of international and regional monitoring bodies
Various committees have been established by the U.N in order to monitor the acts of the State Parties with regard to minority rights. The Committee of Human Rights is the most important one. It has been established in order to look into the proper implementation of the ICCPR. This body has given a number of decisions in pursuance of protecting minority rights enunciated in the ICCPR. In the case of Ivon Kitok v Sweden, U.N. Doc. CCPR/C/33/D/197/1985 (Aug. 10, 1988) the issue involved a member of the Ethnic Sami Community in Sweden, whose right to herd reindeer was denied under Swedish Law. The Human Rights Committee deciding upon the case, held that the reindeer husbandry “is so closely connected to the Sami Culture” that it must be deemed to be part of the culture, and would therefore fall within the protection afforded by Art.27 of the ICCPR. Further in the case of Hopu and Bessert v France, U.N. Doc. CCPR/C/60/D/549/1993 (Jul. 29, 1997) the right to a family life was interpreted. The case involved an indigenous historical burial ground and a lagoon used by indigenous families for subsistence fishing in Tahiti. The French Polynesian Authorities were planning to build a resort around the particular area. The Human Rights Committee expanded the protection afforded by art.23 of the ICCPR by observing that the relationship to one’s ancestor is an essential part of identity and thus the act of the State would be a violation of the right to a family life as guaranteed.
The Committee on Economic, Social and Cultural Rights, Committee on the Elimination of Racial Discrimination and the Committee on the Rights of Child are various other bodies of the UN which oversees the implementation of the minority rights enumerated in the various Conventions. The UN also has a specific post, namely High Commissioner for Human Rights who is given the duty to promote and protect the rights of the minorities. The final and the most important body is the International Court of Justice which also has rendered many decisions for protecting minority rights. Case Concerning Minority Schools in Albania, Advisory Opinion 26. PCIJ, Ser. A./B., No. 64, 1935,is a land mark decision by its predecessor, the Permanent Court of International Justice which emphasized the importance of group minority rights as opposed to individual rights. In the instant case, the rights of the Greek minority in Albania were in question following the abolition of private schools in Albania. The Permanent Court of International Justice took that stand that since the Greek community in Albania relied heavily on Private schools for their education and preservation of culture, a complete ban would deny equal treatment to the Greeks and would amount to discrimination.
The European Convention on Human Rights does not contain any provisions specifically relating to minority rights .However one can see that a number of rights under the European Convention on Human Rights are applicable to minorities and the Courts have discussed the scope of these rights through the various case laws. In the case Socialist Party v Turkey, 1998-III Eur. Ct. H.R, a decision by the European Court of Human Rights, the political rights of the Kurdish minority in Turkey was in issue .The Turkish Constitutional Court decided to ban a political party which claimed autonomy for the Kurds and advocated a binational federal Republic of Turkey. The European Court held that respect for the various political ideologies is the very essence of democracy, and in the instant case, there was no harm to democracy as such. Thlimmenos v Greece, 2004-IV Eur. Ct. H.R,was the first case where the European Court prescribed differential treatment for people who are significantly different. In the instant case, a Jehovah’s Witness refused to enlist in the Greek Army due to religious reasons and was convicted for the same. Later he was brought under the rule which barred persons convicted of serious crimes from pursuing chartered accountancy. The court was of the view that though the rule on its face was neutral, it had the tendency of discriminating against a religious minority, and thus was against the equality principle. Prisoners’ rights were specifically dealt with in Mathew v. the Netherlands, application no. 24919/03, which looked into the conditions of the applicant’s detention in Aruba. The Court after observing that the detainee was under solitary confinement for an excessive and unnecessarily protracted period, concluded there had been a violation of prisoner rights.
The Inter American Commission of Human Rights is yet another body that has made significant impact in the field of monitoring and protecting minority rights within the 35 members of the Organization of American States. The Organization of American States also has an Inter American Court of Human Rights which looks into various human rights issues. The Court has played a pro-active role in preserving minority rights among the members of the Convention. One landmark decision relating to child rights is Morales v Guatemala (2003) 10 I.H.R.R. 995, which looked into the extra judicial killing of children on the streets. The Court came strongly down upon the Guatemala Government ordering them to provide non-pecuniary damages to the kin of children and also ordering them to conform to the provisions of the Convention.
VI . Conclusion
It is to be noted that almost all States have one or more minority groups that can be distinguished by their ethnic, linguistic or religious specialty. The diversity that these groups bring forth should be protected. The various international, and regional organizations, the most important being the United Nations through its various conventions have tried to preserve and protect these ethnic, linguistic or religious characteristics of these groups by granting them minority rights. The implementation remains a huge problem since most of the International regulatory bodies lack an effective mechanism for enforcement of decisions and to ensure implementation of the minority rights. Once this obstacle is mitigated to an extent, the rights of the minorities can be protected at an international level in a much more effective manner.