Minority Rights under International Law

Minority Rights under International Law written by Samyukta P. Menon student of National University of Advanced Legal Studies

The rights of minority groups and their protection is one of the most important aspects of international law. Minority groups are subject to discrimination and denial of identity. Minority rights are enshrined in law. However, many a time the groups are not even aware of them. This project briefly explains the concept of minorities and their rights under international law.

INTRODUCTION

League of Nations was established in the year 1920 and they conceptualized various “minority treaties”. Then came the United Nations which replaced the League of Nations and it came up with several norms and procedures concerned with minorities. The International Covenant on Civil and Political Rights 1966 and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities now known as United Nations Minorities Declaration 1992 recognize and protect minority rights.
According to UN statistics, about 10 to 20% of the world’s population consists of minorities. Throughout history, Minorities are subject to injustice and discrimination. There are instances where they are excluded from active public participation and political life.

DEFINITION

There is no specific definition for the term minorities. The difficulty in arriving at a particular definition that is widely acceptable lies in a variety of situations in which minorities live. Some live together in well-defined areas and some are scattered throughout the country. However, later on, few international forums started their attempt to define this term. The first definition was given by the Permanent Court of International Justice and according to them minority implies “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, to preserve their traditions, maintain 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”. Then Francesco Capotorti who carried on the study of minority and who was a member of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities defines ‘minority’ as 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.”

WHO ARE MINORITIES?

Though defining minorities has been easy, to understand who all should be included under this term is a little bit more problematic. In America, usually, the so-called ‘black people’ are considered as minorities and in India the Dalits, Muslims are all considered as minorities. Persons with disabilities, persons belonging to certain political groups, or persons with a particular sexual orientation or identity such as lesbian, transgender, and gay might also come under this category. Similarly, in many countries, minorities are often found to be among the most marginalized groups in society and affected by low socio-economic conditions and also diseases such as HIV/AIDS.
Indigenous populations are communities that live within or attached to geographically distinct traditional habitats or ancestral territories. They are also known as First people or Native people as they are the earliest known inhabitants of an area. Under International law, indigenous people are also considered as minorities. That means they can claim minority rights. There are United Nations mandates and mechanisms dedicated specifically to protect their rights. In practical terms, the reasons to consider indigenous people as minorities are as follows. They too are in a non-dominant position in the society in which they live and their cultures, languages, or religious beliefs may be different from dominant groups. The United Nations Minorities Declaration contains more general rights and also requires that legitimate interests of minorities should be taken into account while planning and decision making. The United Nations Declaration on the Rights of Indigenous People requires the States to cooperate and consult with indigenous people to obtain their free consent before undertaking developmental activities that might impact them.

UNITED NATIONS MINORITIES DECLARATION

In 1992 the General Assembly adopted the United Nations Minorities Declaration. It is considered to be the main document concerning minority rights. This declaration requires states to protect the existence and identities of minorities. It also calls upon states to encourage the promotion of national or ethnic, cultural, religious, and linguistic identities of minority groups. Article 1 of the United Nations Minorities Declaration refers to minorities as based on national ethnic, religious, and linguistic identity.
Article 2(1) of this document states that minorities shall have the right to practice their religion, enjoy their culture and use their own language in both public and private settings without any kind of defamation. This is very important in an inclusive society.
Article 3 of this document guarantees that persons belonging to minorities have the right to exercise their rights individually and without discrimination. This article ensures the legal protection of minority rights. Article 4 talks about the responsibility of a State regarding matters relating to minority rights. According to this Article, states shall take adequate measures to ensure that the minorities exercise fully and completely all their rights without any discrimination. Article 5 explains the various programs and policies related to minority rights protection. Programs of assistance and cooperation among states should be planned and implemented and even the national policies and programs should be implemented. Article 9 is also very important in this regard. The specialized agencies and other UN organizations have a role in contributing to the full realization of the rights and principles outlined in the Declaration.
Then came the International Covenant on Civil and Political Rights. This Article 27 protects the minorities’ rights to their national, ethnic, religious, or linguistic identity and to preserve the characteristics which they wish to maintain and develop.

SCOPE OF MINORITY RIGHTS PROTECTION

United Nations Minorities Declaration and other international forums working for minority rights identify few major concerns: survival and existence, promotion and protection of the identity of minorities, equality, and non-discrimination, and effective and meaningful participation.
a. Survival and existence- Any action for the protection of minorities should focus on the physical existence of people belonging to minorities. This means protecting them from crimes against humanity. Minority groups should be treated with respect and there should be provision for basic necessities like food, shelter, and health care which are essential for their survival. Former United Nations Secretary-General Kofi Annan said “The rights of minorities should be protected as they are known to be the targets of genocide.” It is to be noted that protection of the existence of minorities also requires respect for and protection of their religious and cultural heritage, which are very essential aspects of their group identity.
b. Equality and non-discrimination- Minorities are frequently subject to various forms of discrimination be it directly or indirectly. There are two major important principles in the study of international human rights law one of which is equality before the law and the other is non-discrimination. Firstly, we notice there exists categorization of people in society into white and black people respectively. The latter is less respected than the former. Being considered as minorities, they do not have equal rights. Such an inequality should be done away with. The second principle which is a principle of Non-discrimination prohibits any distinction, restriction, or preference which has the effect of nullifying the recognition and enjoyment of all rights and freedoms. Indirect discrimination is more difficult to eliminate. It mainly occurs when a practice or a rule has a disproportionate impact on particular groups even when it is neutral on the face. It is to be known that international human rights law provides for the adoption of several measures in favor of minorities and certain other groups for eliminating discrimination and achieving full equality. Even the International Convention on the Elimination of All Forms of Racial Discrimination implements various measures “for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups of individuals equally enjoy all human rights and fundamental freedom. There should be the protection of the existence and identity of minorities. Special measures are taken interim to protect minorities can be made permanent.
c. Promotion and protection of the identity of minorities Along with the other rights of minorities there should also be promotion and protection of their identity. It will prevent the loss of culture, religion, and language which form the basis of richness of the world and therefore part of its heritage. The rights of minorities are about ensuring respect for distinctive identities while ensuring that any differential treatment towards groups or persons belonging to such category does not mask discriminatory practices and policies. Therefore, minorities should be protected and action is required to respect their linguistic and religious diversity.
d. Effective and meaningful participation Minorities should be granted the right to participate in public affairs and all political, social, religious, and cultural activities. The main problem they face is a denial of identity and discrimination which should be done away with. This can help in combating social exclusion. They should have a voice in decision making in matters concerning the area they reside in. Diversity of society concerning minority groups is should also be reflected in public institutions such as national parliaments, the civil service sector including police and the judiciary. The participation and protection of women belonging to these minority groups are of great importance. Article 2(2) of the United Nations Minorities Declaration provides for the rights of persons belonging to national or ethnic, religious and linguistic minorities “to participate effectively in cultural, religious, social, economic and public life”.

ROLE OF NGOs

The International Non-Governmental Organisations (NGOs) have a role to play in promoting and protecting minorities and their rights. They are frequently involved in mediation and other programs when minority rights are violated.
NGOs can have a huge impact in the field of minority protection through publishing their reports, research and serving as platforms for minority groups on one hand and by providing timely information to governmental and intergovernmental bodies on situations involving minorities.
An NGO named Minority Rights Group International was established in the year 1969 working for minority rights. This organization was founded by David Astor, who was the editor of the Observer newspaper of the United Kingdom. The main aim of this foundation is to protect the rights of minorities and indigenous people. The minorities should be made sensitized about their rights available through various programs. Such NGOs will help in this process. MRG has published various research articles and was part of a campaign with over 100 countries partner organizations.
Another important non-political and non-governmental organization is the ‘International Centre for Minority Studies and Intellectual Relations.’ In 1992, its headquarters was set up in Bulgaria. It works for the preservation and integration of all minority communities. It assists the Bulgarian experts in various issues like minority rights, migration, and minority integration.
Indigenous people are also considered to be a part of minorities. Survival International is an NGO that protects the rights of such people.

CONCLUSION

In the present world, there are different organizations and institutions which protect minority rights. Even the efforts taken by the Non-Governmental organizations along with international institutions in protecting minority rights are to be appreciated.
But still much remains to be done. Minority groups are subject to violent attacks on their basic rights. Persons belonging to the category of minorities should be considered as equal to others and they should be given the opportunity to take part in various decision-making processes. Minorities should be given special rights so that there arises an equilibrium in society. The rights of minorities should be safeguarded until they reach the level of the so-called majority community. This is a very essential condition to attain stability and peace within and across State borders and in the world.