TABLE OF CONTENTS

 INTRODUCTION
 WHO ARE MINORITIES?
 NEED FOR MINORITY RIGHTS
 DEVELOPMENT OF MINORITY RIGHTS
 CONTENTS OF MINORITY RIGHTS
1. The Right to physical existence
2. The Right to enjoy one’s own culture
3. The Right to practice and profess religion
4. The Right to use one’s own language
 CONCLUSION

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 RIGHTS TO MINORITIES UNDER HUMAN RIGHTS

INTRODUCTION

There is hardly any country in the word that does not have minorities within their
territories characterised by their ethnic, religious or linguistic identity different from that of
the majority population. Although there is no accurate statistics, the U.N. estimates suggest
that 10 to 20 per cent of the world's population belong to minority groups. In most cases
minorities are among the most disadvantaged groups in society and their members are often
subjected to injustice, and economic and social discrimination. Their exclusion from power is
often combined with the denial of dignity, identities and cultures. They are also excluded
from meaningful participation in public and political life. Even in this modern age cases of
genocide targeting minorities are also reported. Although protection of minorities has been
one of the oldest concerns of international law but the need of their protection has perhaps
never been as urgent as it is in our time.

WHO ARE MINORITIES?

A general understanding of the term ‘minority’ must precede any discussion on the
content of minority rights as it is full of complexities and controversies. Surprisingly until the
present day, despite various attempts, there is no generally agreed definition of the term
‘minority’ in international law 1. There are also no settled criteria for determining a minority.
This situation has arisen due to a number of factors. There are strong conceptual differences
and States often hold extremely politicised and uncompromising stand-points. The difficulty
is also because of its inherent ambiguous nature. It is often claimed that each and every
individual in one form or other belongs to a minority 2.

The failure to arrive at a consensus definition of the term minority certainly impinges
on the substantive rights of minorities. States attempting to deny minorities their rights often
take advantage of definitional difficulties. The lack of definition gives states an excuse to
refuse the existence of minorities in their own territories 3. This is also problematical from the

1
Thornberry P., International Law and the Rights of Minorities (Oxford: Clarendon Press, 1991) p.1.
2
Javaid Rehman, The Weaknesses in the International Protection of Minority Rights (The Hague: Kluwer Law,
International, 2000), p.14.
3
Spiliopoulou Akermark, Justifications of Minority Protection in International Law (The Hague: Kluwer Law
International, 1997) p.87.

2
point of view of law since it raises fundamental question about to whom the convention
applies – one cannot accord rights to wholly nebulous concepts.

Interestingly, however, the absence of a general definition of the term minority has not
much weighed down standard - setting processes within the UN or at European level. In view
of the legal significance, numerous attempts have been made over the years at different
international forums to clarify the essence of the term ‘minority’. One of the first ‘official’
attempts to define ‘minority’ was undertaken by the Permanent Court of International Justice
(PCIJ) in its advisory opinion in connection with the immigration of the Greco-Bulgarian
Communities.

The definition by the PCIJ refers minority in the context of community as a “group of
persons living in a given country or locality, having a race, religion, language and traditions
of their own, and united by the identity of such race, religion, language and traditions in a
sentiment of solidarity, with a view to preserving their traditions, maintaining their form of
worship, securing the instruction and upbringing of their children in accordance with the
spirit and traditions of their race and mutually assisting one another” 4. The PCIJ definition
employed two tests to determine minority status. First, the objective test, the existence of
facts likes race, religion, language and tradition. Second the subjective test, the ‘sentiment of
solidarity’ and ‘the desire to preserve traditions’`. The PCIJ elaboration of the ‘minority’
concept did not contain a single reference to numerical factor, a requirement of non-
dominance or a nationality requirement. The most extensively cited definition of ‘minority’ is
probably that proposed by Francesco Capotorti who had carried out the UN most prestigious
study on the question of minority. He defined ‘minority’ as “a group which is numerically
inferior to the rest of the population of a state and in a non-dominant position, whose
members possess ethnic, religious or linguistic characteristics which differ from those of the
rest of the population and who, if only implicitly, maintain a sense of solidarity, directed
towards preserving their culture, traditions, religion or language” 5.

According to Jules Deschenes, a minority is “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 another, motivated, if only implicitly, by a
4
Greco-Bulgarian Communities, Advisory Opinion, 1930 P.C.I.J. (ser. B).
5
Capotorti, Special Rapporteur, Sub-Commission on Prevention of Discrimination and Protection of Minorities,
Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, UN Doc E/CN 4
Sub2/384/Rev 1 (1979), para 568.

3
collective will to survive and whose aim is to achieve equality with the majority in fact and
law” 6. There was nothing novel in the definition of minorities provided by Deschenes. In the
absence of a clearly formulated definition, however, one can still deduce certain objective and
subjective elements for a possible agreed definition based on different definitions proposed
by academia and international organisations, as most of the definitions have common
components.

Nonetheless, some of these characteristics are not without any controversy, indicating
our inability to arrive at a consensus definition. There seems to be general agreement about
the requirement of a numerical inferior position, political non- dominance, ethnic, religious or
linguistic characteristics which are different from the rest of the population, and the collective
desire to preserve their distinct identity. These elements certainly help clarifying the essence
of the concept of minority in international law.

NEED FOR MINORITY RIGHTS

It is a matter of fact that in most multi-ethnic societies the majority communities tend
to enjoy inherently dominant socio-economic and political position in comparison to that of
the minorities who are often excluded from the decision-making processes and power centres
endangering their collective identity and the rights of their members. The non-dominant and
inferior status of minorities renders them subject to discrimination at different stages by both
state and private actors. The oppression and persecution of minorities are also reported in
some situations. In multi-ethnic societies, according to Kymlicka, states face a choice of
pursuing either “integration” or “accommodation” while dealing with the question of
minority rights. This leaves the choice of either encouraging assimilation of minority groups
to the mainstream culture or allowing minority groups to preserve their distinctiveness
through separate institutions 7. It is widely acknowledged that policy of accommodation can
only help preserve the distinct identity of minorities.

The policy of assimilation will destroy the identity and culture of minorities leading to
their exclusion from the mainstream. Pursuant to the policy of accommodation the need of a
legal framework is always emphasised to protect the distinct identities of minority groups. It
is because of their vulnerability in any given society minority groups always need special

6
Jules Deschênes, Proposal concerning a definition of the term 'minority', UN Doc. E/CN.4/Sub.2/1985/31, 14
May
7
Will Kymlicka, “The Internationalization of Minority Rights”, International Journal of Constitutional Law,
Volume 6, Number 1, 2008, pp. 1–32

4
status and protection to ensure that they also enjoy the same rights and protection as enjoyed
by the majority. It is in the light of these facts a consensus has arrived both at international
and national levels that minority groups need special rights and protections to save them from
oppression, persecution and forceful assimilation. In some situations, special affirmative
actions are also needed in their favour to achieve real and substantial equality in the society.

In Minority School in Albania the PCIJ insisted on the notion of equality in fact and
held that there would be no true equality between a majority and a minority if the latter were
deprived of its own institutions, and were consequently compelled to renounce that which
constitutes the very essence of its being a minority. The PCIJ in the same case stated that
minority rights fall beyond purely anti- discrimination objectives rather they especially aim at
preserving the characteristics which distinguish the minority from the majority, satisfying the
ensuing special needs.

DEVELOPMENT OF MINORITY RIGHTS

The protection of minorities under international law is relatively new, although its
origins can be traced back in the seventeenth century reforms regarding protection of
religious minorities. One of the early attempts at protecting minorities was the 1648 Treaty of
Westphalia, wherein state parties agreed to respect the rights of certain (not all) religious
minorities within their jurisdiction. The Congress of Vienna of 1815 also dealt with the rights
of minorities to some extent. The 1876 Treaty of Berlin recognised the "traditional rights and
liberties" of religious minority community of Mount Athos in Greece. In addition, the first
Bulgarian constitution of 1879 contained safeguards for its Greek and Turkish minorities. The
minority protection system developed by the League of Nations through peace treaties
adopted at the end of the First World War was the first remarkable, systematic and
comprehensive attempt to offer legal protection to minorities at international level.

The League of Nations system created legally binding obligations through a set of
international treaties formulating rules for minority protection enforced by the League
Council and adjudicated by the PCIJ. The League system was certainly a bold and innovative
experiment, but was far from being perfect. It had significant limitations and weaknesses. Its
scope embraced only the states on which the peace treaties-imposed obligations. Further the
system primarily directed at achieving peace rather affording protection to minorities per se.
The system was discriminatory as main powers like Germany, Italy etc. despite considerable
number of minorities within their jurisdiction did not undertake any commitment to grant

5
same rights to their minorities. Despite numerous shortcomings the merits in League of
Nations system continue to provide inspiration even today. The UN succeeded the League of
Nations as a new world organization immediately after the World War II.

Unlike its predecessor, however, it took a completely different approach to the issue
of the minority rights. For a long time since its creation the UN showed, if at all, little interest
either to adopt the minority protection system of the League or to develop a new system of its
own for the protection of minorities. The UN preferred to develop a universal system of
protection of human rights for all. It was argued that a broad system of human rights
supported by strong prohibition on discrimination based on race, ethnicity, language or
religion would be suffice to protect the legitimate interests of minorities and no special
measures for them would be required 8. Hence neither the U.N. Charter nor the Universal
Declaration of Human Rights (UDHR) did make any reference to minority rights.
Nonetheless, continuous efforts were made by some states to bring the issue of the protection
of minorities on the main agenda of the U.N. The 1948 UN Convention on the Prevention and
Punishment of the Crime of Genocide seemed to be the only exception of the post-World War
trend of subsuming minority rights within the broader framework of human rights.

Genocide Convention was directed against the destruction of national, racial, ethnic,
and religious groups as such and accordingly guaranteed the most basic group right, the right
to physical existence. Though the Genocide Convention did not directly mention minorities
they clearly stood to benefit from it. The post- cold war upsurge of ethnic conflicts in Europe
and other parts of the globe sadly validated this claim.

The UN, however, later realised that further measures were needed in order to better
protect persons belonging to minorities from discrimination and to promote their identity.
This slight change in the UN approach was witnessed when the United Nations Commission
on Human Rights decided to establish a Sub-Commission on Prevention of Discrimination
and Protection of Minorities, although initial efforts of the Sub-Commission relating to
minority protection were in fact rebuffed by the Commission itself. Until mid-1970s the Sub-
Commission could not address the issue of minorities in some depth, when it finally
succeeded in getting a provision on minority protection inserted in the draft of International
Covenant on Civil and Political Rights (ICCPR) which finally became its Article 27. Later in
1978 its Special Rapporteur Francesco Capotorti completed the most seminal study on
8
David Wippman, “The Evolution and Implementation of Minority Rights”, 66 Fordham L. Rev. 597 (1997),
pp-602-603.

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minorities and the Sub-Commission also recommended adoption of a Declaration on the
Rights of Minorities. The major UN breakthrough, however, was the insertion of Article 27 in
the ICCPR. This is regarded as the first norm that has universalized the concept of minority
rights 9.

Today, in international law Article 27 is the most widely acknowledged provision

affording protection to minorities which states: "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". It was, however, not until the
1980s and early 1990s, with the end of the Cold War and with a number of highly visible and
violent ethnic conflicts and with the potential for more violence that the UN and other
international organizations started paying more serious attention to the fate of minorities. A
strong move towards developing comprehensive minority rights regimes was clearly noticed.
It was during this time that the UN Declaration on Minorities was adopted by the UN General
Assembly in 1992.

The Declaration is the first instrument exclusively addressing minority rights at

international level. The renewed interest of the international community in the field of
minority rights resulted into adoption of a surprising number of international and regional
especially European, declarations, resolutions, reports and studies, and even treaties designed
to further strengthen the legal protection of minorities.

The European institutions like the Council of Europe and the Organization for
Security and Cooperation in Europe (OSCE) have done remarkable work in the field of
minority protection in the recent past. The Council of Europe’s Framework Convention for
the Protection of National Minorities (‘FCNM’) of 1994 is of particular significance in the
evolution of the international protection of minority rights. It is not only the first but also, so
far, the only multilateral treaty explicitly addressing minority rights in greater detail and
corresponding state obligations with a monitoring system. These European advancements
strongly influence the development of minority rights even at the international level.

CONTENT OF MINORITY RIGHTS

9
Patrick Thornberry “Is there a phoenix in the Ashes? –International Law and Minority Rights” Texas Int’l L. J.
No. 15, 1980, p. 443.

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1. The Right to Physical Existence

The right to physical existence is considered paramount to all other rights as it is only
the living who could lay claim to other rights. The right to existence of minorities was first
recognised in the 1948 Genocide Convention which prohibits the physical or biological
destruction of national, ethnic, religious or racial group. The Convention formally recognised
the right of minority groups to exist as group by outlawing such destruction. The right to
existence here is viewed in terms of protection against genocide. Though no direct reference
to minorities is found in the text of the Convention, they are natural beneficiary of it. It is in
this context the Convention is considered as an integral part of minority rights. The adoption
of the 1992 UN Declaration on the rights of minorities was yet another important
development explicitly recognising the right to existence of minorities. The Declaration
obliges the States to protect the ‘existence’ and ‘identity’ of minorities within their respective
territories. The linkage of ‘existence’ with ‘identity’ in the Declaration is considered a
positive development as it will expand the meaning of ‘existence’ also to include a ‘cultural
existence’. Although the Genocide Convention speaks of physical and biological genocide, it
does not recognize cultural genocide.

The International Law Commission has also made it clear that in genocide the
destruction in question is the material destruction of a group either by physical or by
biological means 10. The International Criminal Tribunal for the Former Yugoslavia (ICTY)
also expressed its inability to include cultural genocide under genocide. The trial chamber,
however, recognised that very often, physical and biological attacks are accompanied by
destruction of “cultural and religious property and symbols of the targeted group,” in an effort
to obliterate all evidence of that group’s identity. The court also recognized that acts of
cultural destruction should be weighed as heavily as the physical and biological acts in
determining genocide.

2. The right to enjoy one’s own culture

The reference to cultural rights is found in almost all international human rights
instruments in at least some of their aspects. “Everyone has the right freely to participate in
the cultural life of the Community” states the UDHR. The same has been also recognised in
Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
It further provides that steps are to be taken by States to promote “the preservation, the
10
Report of the International Law Commission on the Work of Its Forty-Eighth Session, U.N. GAOR, 51st
Sess., Supp. No. 10, at 90, U.N. Doc. A/51/10 (1996)

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development and the diffusion of science and culture”. More specifically Article 27 of the
ICCPR recognizes the rights of people belonging to minorities to enjoy their own culture.
The UN Minority Declaration proclaims more positive cultural right by obliging states to
‘create favourable conditions’ for the development of minority cultures.

Based on the interpretation of the Committee on Economic, Social and Cultural

Rights, the right to take part in cultural life generally entails three things. Firstly, it enshrines
the right to engage in one’s own cultural practices and to express oneself in the language of
one’s choice. It also includes the right to seek and develop cultural knowledge and
expressions and to share them with others. Secondly, the right to know and understand his or
her own culture and that of others through education and information, and to receive quality
education and training with due regard for cultural identity. The use of cultural resources such
as language, institutions, and land, water biodiversity and also the enjoyment of benefits from
the cultural heritage are also included therein. And thirdly, it entails the right to be involved in
creating the spiritual, material, intellectual and emotional expressions of the community. This
also includes the right to take part in the development of the community to which a person
belongs.

In addition to different aspects of cultural rights enumerated above the right to

education is also considered as an important requirement for the true and effective enjoyment
of cultural rights. This right is particularly vital for the preservation of the identity of distinct
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cultural groups . The Convention against Discrimination in Education in Article 5
recognises to the members of national minorities the right to carry on their own educational
activities which not only include the right to the maintenance of schools but also the use of or
instruction in their mother tongue as well. Similarly, the Committee on Economic, Social and
Cultural Rights in its General Comment on the Right to Education emphasises on securing a
culturally appropriate education especially for minorities and indigenous peoples. The
cultural rights of minorities are not absolute and may not be legitimately exercised in any
manner or to an extent inconsistent with other human rights recognised by the ICCPR.
Generally cultural practices, which are inconsistent with national laws and contrary to
international standards, are excluded from the ambit of cultural rights of minorities. The
participation in any activity which is detrimental to the sovereignty and security of the
country is also not permissible. Thus, minority rights mainly aim at protecting minority

11
Vernon Van Dyke, The Cultural Rights of Peoples, Universal Human Rights, vol. 2, no.1, 1980, p.13

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groups from cultural assimilation into the dominant culture and securing minimum conditions
required for the preservation of the cultural identity of minorities.

3. The right to profess and practice religion

The contemporary response to religious intolerance and persecution has mainly been
in recognising democratic principle of religious freedom granting every individual citizen the
right to adopt his or her own religious beliefs without fear of government and neutrality of
governments on religious issues. The UDHR in Article 18 recognises that “everyone shall
have the right to freedom of thought, conscience and religion.” This right generally include
the freedom to change his religion or belief, and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief in teaching, practice, worship
and observance.

Article 18 of the ICCPR also guarantees the same rights listed in Article 18 of the
UDHR. It, however, further adds the right of parents “to ensure the religious and moral
education of their children in conformity with their own convictions.” Although ICCPR does
not explicitly refer to the right to change one's religion experts interpret the provision as fully
recognizing the same as proclaimed by the UDHR. Article 27, in the specific context of
minorities, protects their members from being denied the right to profess and practise their
own religion. Moreover, for the purpose of the Covenant, the religion is interpreted in broader
sense so as to encompass both theistic and non-theistic religions as well as rare and virtually
unknown faiths. For all practical purposes the religious right set forth in Article 27 for
minorities has probably been subsumed into the similar guarantees included in the covenant
and other human rights instruments.

The 1981 UN Declaration on the Elimination of All Forms of Intolerance and of

Discrimination Based on Religion or Belief provides a comprehensive catalogue of religious
rights in Article 6 which include the right to have a religion or belief of his choice and
manifest the same in worship, observance, practice and teaching; to worship or assemble in
connection with a religion or and to establish and maintain places for these purposes; to
make, acquire and use to an adequate extent the necessary articles and materials related to the
rites or customs of a religion or belief; to write, issue and disseminate relevant publications in
these areas; to teach a religion or belief in places suitable for these purposes; to observe days
of rest and to celebrate holidays and ceremonies in accordance with the precepts of one's
religion or belief; and to establish and maintain communications with individuals and

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communities in matters of religion and belief at the national and international levels. The
1981 Declaration reflects our general understanding on religious rights.

4. The Right to use one’s own language

A major aspect of minority rights has been the right of minority groups to use their
own language. In many states they speak languages different from that of the dominant group
and often face difficulties in using their language in the public sphere. In this regard Article
27 of the ICCPR is of great importance. It provides that individuals belonging to a linguistic
minority may use their language amongst themselves, and that the state must not seek to
restrict their affairs because of their status as a linguistic minority. For instance, minorities are
allowed to maintain their schools imparting instruction in their own languages, although a
government is not obligated to financially support such schools.

More explicit provisions on linguistic minorities are contained in the 1992 UN

Declaration. It encourages states to adopt appropriate legislative and other measures to
protect and promote the linguistic identity of minorities. For example, Article 4 obliges states
to create favourable conditions to enable persons belonging to minorities not only to express
their characteristics but also develop their culture, language, religion, traditions and customs.
It further provides that, state should take appropriate measures so that, wherever possible,
persons belonging to minorities have adequate opportunities to learn their mother tongue or
to have instruction in their mother tongue. It also obliges states to promote the learning about
history, traditions, language and culture of the minorities.

The European instruments specify linguistic rights of minorities in greater details and
significantly raise the standards of protection particularly in areas where international
instruments are extremely deficient. As the first international legal instrument devoted to the
protection of minority languages, the 1992 European Charter for Regional or Minority
Languages has impressive achievements. The Charter covers the provisions relating to use of
minority languages in education and in media, in legal and administrative contexts, in
economic and social life, for cultural activities and in trans-frontier exchanges.

The 1995 European Framework Convention for the Protection of National Minorities
also sets forth a number of significant principles relating to protection of linguistic minorities.
It recognizes the right of individuals belonging to a linguistic minority to use their language
among themselves, in private as well as in public. It also acknowledges the importance of the
use of minority languages before public authorities. It also contains provisions regarding the

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right to use one’s personal names in the minority language and the right to official
recognition of them in accordance with their legal system. It further adds the right to display
minority language signs, inscriptions and other information of a private nature visible to the
public. It also obliges states to display traditional local names, street names and other
topographical indications intended for the public also in the minority language especially in
areas traditionally inhabited by minorities. It also contains provisions regarding teaching of
the minority language itself and other subjects in that language without prejudice to learning
or teaching in the official language and, the right to set up and manage their own independent
educational and training institutions without any financial obligation on the part of the State.

CONCLUSION

The presence of one or more minority groups in almost all states is a reality of modern
time. It is neither imperative nor possible for every state to be ethnically, religiously and
linguistically pure. It is also a stark fact that minorities have suffered discrimination,
deprivation, and forced assimilation. It is in the light of these facts a consensus has arrived
both at international and national levels that minority groups need special rights and
protections. It is now clearly recognised that mere observance of equality rights and
prohibition of discrimination may not be sufficient for an adequate protection of minorities
and to address their concerns. Therefore, states are required to take special measures to
preserve the existence and identity of minorities.

Minority rights are also necessary to achieve the goal of substantive equality as
opposed to formal or legal equality. Undoubtedly, there are various international legal
instruments explicitly recognising minority rights, nevertheless their efficacy and adequacy
are often doubted. The principles enunciated in various minority rights instruments are, for
the most part, not only very general but are also subject to multiple interpretations.
Implementation mechanisms are also very weak. Minority rights provisions are mostly
couched in rather vague language, leaving state parties a considerable amount of discretion in
interpretation and implementation. The reluctance to recognise minority groups as holders of
rights further weaken the situation. The international community has made significant strides
in articulating minority rights. What is now required is to ensure that political and legal
commitments accepted by states for their minorities are effectively monitored and enforced in
good faith. This is also an essential condition for greater stability and peace within and across
State borders.

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REFERENCES

1. KAMAL AHMAD KHAN. (2017). MINORITIES AND INTERNATIONAL LAW.

MITTAL PUBLICATIONS
2. MARC WELLER. (2018). THE RIGHTS OF MINORITIES: A COMMENTARY ON
THE EUROPEAN FRAMEWORK CONVENTION FOR THE PRIORITY OF
NATIONAL MINORITIES. EASTERN BOOK COMPANY PUBLICATIONS
3. SAMANTHA KNIGHTS. (2014). FREEDOM OF RELIGION, MINORITIES AND
THE LAW. NEW YORK OXFORD UNIVERSITY PRESS PUBLICATIONS
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