Seminar on Constitutional

Governance & Protection of

Minorities, Lucknow
University
Paper on: Minorities & International Law
Submitted By -

Ashish Vijay
Pursing B.Com L.L.B
College of Legal Studies , UPES
Dehradun
ashishvijay911@gmail.com
Introduction :

“Whenever you find yourself on the side of the majority, it is time to reform (or pause and
reflect).”
― Mark Twain

Human Rights are universal, and civil, political, economic, social and cultural rights belong
to all human beings, including members of ethnic minority groups. Members of ethnic
minorities are entitled to the realization of all human rights and fundamental freedoms on
equal terms with others in society, without discrimination of any kind. Ethnic minorities --
both the individuals belonging to ethnic minorities and ethnic minorities as groups -- also
enjoy certain human rights specifically linked to their ethnic status, including their right to
maintain and enjoy their culture, religion, and language free from discrimination.

Human rights are established to protect the rights of the individual vis-à-vis the state.
Frequently the most vulnerable persons in need of protection belong to groups/minorities that
in one way or another distinguish themselves from the rest of society, e.g., by means of
language, religion, ethnicity and culture. Throughout history minorities have suffered at the
hands of oppressive majorities, enduring discrimination, land seizures, expulsion, forced
assimilation and even genocide, and active repression by governments aiming at cultural
unity has often resulted in loss of identity and culture. One of the difficult challenges
governments face in an increasingly homogenized world is to strike a balance between
legitimate concerns of marginalized minorities and those of the ruling majority.

The existence of a minority is a question of fact and not of definition. [...] First of all, a minority is a
group with linguistic, ethnic or cultural characteristics, which distinguish it from the majority.
Secondly, a minority is a group which usually not only seeks to maintain its identity but also tries to
give stronger expression to that identity.1

We shall look into the rights of minorities further into the paper and also analyze laws particularly
International law based on the same .

1
Max van der Stoel , OSCE Minorities Seminar in Warsaw (1994)
Recognition of Minorities under international law

“If it be admitted that a man possessing absolute power may misuse that power
by wronging his adversaries, why should not a majority be liable to the same
reproach? Men do not change their characters by uniting with one another; nor
does their patience in the presence of obstacles increase with their strength. For my
own part, I cannot believe it; the power to do
everything which I should refuse to one of my equals, I will never grant to any
number of them.”2

-Alexis de Tocqueville

‘All human beings are born free and equal in dignity and rights.’ Article 1 of the Universal
Declaration of Human Rights refers to minorities as based on national or ethnic, cultural,
religious and linguistic identity, and provides that States should protect their existence. There
is no internationally agreed definition as to which groups constitute minorities. The absence
of a universally agreed definition of a ‘minority’ reflects that many states have propounded
their own definition of minorities. There are many groups, especially indigenous groups that
oppose the use of the word ‘minority’ to describe themselves. An informal definition that is
generally accepted by the society is that they consider minorities to be non-dominant groups,
not always less in numbers, whose member possess ethnic, religious or linguistic
characteristic that differ from the rest of the population and show a sense of solidarity
directed towards preserving their culture, traditions, religion or language.3

Recognition is key to assure the rights of minority groups in a state. Lack of recognition lead
to the instability and conflict. The legitimate recognition of minorities and the subsequent
respect of their rights contributes to peaceful coexistence. Since non-acknowledgment
hinders the enjoyment of internationally recognized rights, it leads to the violation of the
economic, social and cultural rights of minorities, and to their absolute marginalization in
society.4

2
“Tyranny of the Majority,” Chapter XV, Book 1, Democracy in America
3
MRG, World Directory of Minorities, London, MRG, 1997, p. Xv
4
Max van der Stoel, ‘Acceptance speech’, 15 December 1993, http://www.osce.org/
hcnm/documents/speeches/1992/ 15dec92.html
Recognition based on self-identification is the initial phase in the process of securing
minority rights and safeguarding the position of members of minorities as equal members of
society. The principle of self-identification was first articulated by the Permanent Court of
Justice in 1930, when it ruled that a minority is ‘a matter of fact, not a matter of law’.
Similarly, the first OSCE High Commissioner on National Minorities (HCNM), Max van der
Stoel, said: ‘I know a minority when I see one.’

The Council of Europe (CoE) and the United Nations (UN) have interpreted the treaty
provisions on minority rights in favour of acknowledging the self-identification of minority
groups. The 1994 General Comment by the UN Human Rights Committee (HRC) on Article
27 of the International Covenant on Civil and Political Rights (ICCPR), makes clear that the
existence of minorities does not depend on state decisions but is to be established by
objective criteria; and that non-citizens and even non permanent residents of states qualify for
protection under Article 27. Moreover, it is spelled out that the protection of minorities’ civil
and political rights cannot be limited to invoking general equality before the law, equal
protection by the law, and non-discrimination.

Development of minority rights

The protection of minorities under International Law is new, although its origin can be traced
back to the 17th century reforms regarding protection of religious minorities. One of the early
endeavours at protecting minorities was the Treaty of Westphalia, 1648 where in state parties
agreed to respect the privileges 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 Treaty of Berlin, 1876 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.5

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.6

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. This system was certainly a bold and innovative
experiment and also represented an advance over the previous system not only in terms of
content but also because of its guarantee system. It was, however, 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 was 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 same rights to their minorities.

5
For more detailed historical overview see, Natan Lerner, Group Rights and Discrimination in International Law
22 (Martinus Nijhoff Publishers, Dordrecht/ Boston/London, 1991). An excellent survey of the early treatment
of minorities is Muldoon, “The Development of Group Rights” in J. Sigler, Minority Rights: A Comparative
Analysis 31-66 (Greenwood Press, Westport, 1983).
6
For more detailed overview see, Aftab Alam, “International Protection of Minorities: The League of Nations’
Experience” 47 Indian Journal of Politics 18-46 (2013).
Despite numerous shortcomings, merits in the 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
Second World War. 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. One commentator wittily and aptly
characterised the change of mood thus: “at the end of the First World War international
protection of minorities was the great fashion. Recently this fashion has become nearly
obsolete. Today the well dressed international lawyer wears human rights.7 The UN, instead
of further developing, internationalising and strengthening the existing system of protection
of minorities, 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 suffice to protect the
legitimate interests of members of national minorities and no special measures for the rights
of minorities would be required.8 The western liberal individualism supplied the much
needed philosophical succour to this approach as minority rights were viewed as counter to
this philosophy.

The issue of minorities remained excluded from the main agenda of the UN. The decline in
the concern for the protection of minorities was clearly visible. Neither the UN charter nor
the Universal Declaration Of Human Rights did make any reference to the minorities.
Nonetheless, efforts were made by the states to bring the issue of the protection of minorities
on the main agenda of the UN. Denmark, the former Yugoslavia and the USSR proposed that
a provision concerning minority rights to be included in the UDHR. The majority of member
states, however, finally rejected such proposals arguing that recognition of minority rights
will encourage fragmentation or separatism and undermine national unity.9

7
Josef L. Kunz, “The Present Status of the International Law for the Protection of Minorities.” 48 American
Journal of International Law 282 (1954).
8
L Sohn, supra note 9 at 271; David Wippman, “The Evolution and Implementation of Minority Rights” 66 (2)
Fordham Law Rev. 597-603 (1997).
9
Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights 71
(University of Pennsylvania Press, Philadelphia, 1990).
The UN general assembly passed a resolution declaring that “the UN could not remain
indifferent to the fate of minorities.”10 Later it was 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 (UNCHR) decided to establish a Sub-Commission on
Prevention of Discrimination and Protection of Minorities, although initial efforts of this sub-
commission relating to minority protection were in fact rebuffed by the UNHCR itself. Until
mid-1970s this sub-commission could not address the issue of minorities in some depth,
when it finally succeeded in getting a provision o n 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 minorities and the sub-commission also recommended adoption of a Declaration on
the Rights of Minorities.

The major UN break through was the insertion of article 27 in the ICCPR. Today, in
international law, article 27 is the most widely acknowledged provision affording protection
to minorities. This is the first international norm that has universalized the concept of
minority rights, which states:11

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 o f minorities. A strong move towards developing comprehensive minority rights
regimes w as clearly noticed. It was during this time that the Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992.12

10
See UN General Assembly Resolution adopted at its 3rd session on Dec. 10, 1948. Fate of Minorities, GA
Resolution 217 C (III) (1948), available at: http://www.un- documents.net/a3r217c.htm (last visited on June 10,
2015).
11
Patrick Thornberry “Is there a phoenix in the Ashes? -International Law and Minority Rights” 15 Texas Int’l L.
J. 443 (1980).
12
Available at: http://www.ohchr.org/Documents/Publications/GuideMinorities Declarationen.pdf (last visited
on June 15, 2015).
(Hereinafter, the 1992 Declaration) was adopted by the UN general assembly in 1992. The
declaration is the first instrument exclusively addressing minority rights at the international
level. The declaration reflects, although not fully, an acknowledgement by the international
community of the need to recognize the rights of minorities and provide for normative
frameworks. It can be said that the adoption of the declaration marked the beginning of a new
era in the development of international norms on minority issues, although the instrument still
reflects the individualist orientation of the UN.

The renewed interest o f the international community in the field of minority rights resulted
into adoption of 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.13 The European institutions like the Council of European
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.14 It is
not only the first but also, so far, the only multilateral treaty explicitly addressing minority
rights in detail and corresponding state obligations with a monitoring system . These
European advancements strongly influence the development of minority rights even at the
international level.

13
See generally, Patrick Thornberry, Marla Amor Martin Estebanez, Minority Rights In Europe: A Review of the
Work and Standards of the Council of Europe (Council of Europe, Strasbourg, 2004).
14
For detailed analysis see, Marc Weller, The Rights of Minorities: A Commentary on the European Framework
Convention for the Protection of National Minorities (OUP, Oxford, 2005).
Condition of minorities in Asia-Pacific Region(s)

The situation of religious minorities in Asia uncovers complexity and diversity in the identity
of religious minorities. However these minorities have issues in common too: many are
subject to severe physical, political, social, economic and cultural oppression and
infringement of rights within their community and by their nation-states.

Numerous Asian nations are beset with violent conflicts involving minorities. Religion is a
common component of such disputes as events, particularly in Gujarat, India, have
highlighted. Denial of religious minority rights in Asia is often half-hidden and subtle. It can
include limited access to education and employment opportunities, which leads to the
perpetuation of poverty. In different occurrences, it takes the form of intimidation and
violence on the part of the state or non-state actors. Religion is a key component of political
oppression in Afghanistan and Indonesia. In Bangladesh, Malaysia, Pakistan and Nepal, it is
the assertion of national identity. While in China, political oppression denies people their
freedom of expression and of the right to association. In India, the extreme Hinduizing of the
national identity, denies the secular state constitution. In these and other cases, there are
threatening implications for religious minorities, for civil society and human rights in general,
and especially for women and other vulnerable groups within minorities.

As part of its wider Religious Minorities in Asia programme, Minority Rights Group
International (MRG) held a district wide discussion with religious minorities on 7–9 June
2004 in Colombo, Sri Lanka. Participants represented religious minorities, specialists, civil
society actors, representatives of majority communities, decision-makers, opinion formers
and key commentators from the region. In total, 23 participants (6 female, 17 male) attended
the consultation from the following countries: Bangladesh, China, India, Indonesia, Malaysia,
Nepal and Pakistan.15

In her welcome and introductory statements, Shelina Thawer, Asia and Pacific Programme
Coordinator at MRG, explained that the consultation was a chance to achieve comprehension
and co-operation between various religious groups and to work towards the peaceful
development of the region. The workshop’s aim was to allow participants to pool their ideas
and for them to jointly analyze and develop appropriate strategies for the promotion of
religious minority rights. The region-wide consultation was also intended to provide a forum

15
Huhua Cao,Ethnic Minorities and Regional Development in Asia: Reality and Challenges , Amsterdam
University Press.
to help establish a region-wide acti’vist network and lobbying body on religious minority
rights. This, in turn, could help develop and shape the future direction of MRG’s work with
religious minorities in Asia.

Integration Vs Assimilation Policies by States

The key problems identified by participants included the marginalization of minority

religious communities. This could be through the threat of annihilation; through state-
sponsored forcible assimilation, ie. Forcing people to conform with the majority; or through a
lack of state policies that preserve religious diversity. Also, in many cases, there being no real
separation between religion and state. In Pakistan and Bangladesh, state policies were
considered to be exclusionist with no genuine effort to integrate. In India and Nepal, policies
were seen to be assimilationist – the example given was the adoption of the uniform civil
code in India. The problem of communalism was particularly mentioned in the case of India,
although all communities’ representatives mentioned the threat of physical assaults. In China,
assimilationist policies are centred on communism/nationalism and religion is excluded. The
situation in Indonesia is more unusual, as here there are already five official religions.
However those who do not belong to one of the five religions, such as some of the indigenous
groups, are excluded or ignored in government policies.
Conclusion:

"Where, after all, do universal human rights begin? In small places, close to home so close
and so small that they cannot be seen on any map of the world. Yet they are the world of the
individual person: the neighbourhood he lives in; the school or college he attends; the
factory, farm or office where he works. Such are the places where every man, woman and
child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless
these rights have meaning there, they have little meaning anywh0ere. Without concerted
citizen action to uphold them close to home, we shall look in vain for progress in the larger
world."

The core of minority human rights can be summarized as: protection of existence, protection
from discrimination and persecution, protection and promotion of identity and participation in
decision making process.

Minority situations differ greatly from country to country and consequently require different
approaches. There is no agreed internationally definition of minorities exist. No legal
definition exists in UN Declaration on the rights of persons belonging to national or ethnic,
religious and linguistic minorities or European Framework convention for the protection of
national minorities. The word “minority” can sometimes be misleading in itself. Outside
Europe, and particularly in Africa, countries are often composed of a large number of groups,
none of which make up a majority. In the jurisprudence however are elaborated several
criteria that serves as a definition of minority:

Objective criteria: Common ethnicity or culture, religion or language, Non-dominant;

Subjective criteria: Self-identification, Will to protect and continue their identity;

Minorities are to be understood as non - dominant groups. In calling for recognition of their
identity as a national or ethnic religious or linguistic minority - such recognition of minority
identity is exceedingly important but we should recall that many persons have many identities
and we should remain aware of politicians and others who might try to abuse identity for
political gain. The importance of recognizing minority identity is to ensure the inclusion of
previously excluded groups in the life of the country in which they live and protect diversity
and pluralism of culture, religion and language. Thus we must consider the situation of those
living in minority situations in regions within the country and not just the whole State.16

Minority rights are individual human rights, even if they in most cases can only be enjoyed in
community with others. The duties of the State in protecting the minorities identity may,
however, include a duty to accept and encourage conditions for a degree of non-territorial
autonomy, in regard to religious, linguistic or broader cultural matters. Effective participation
by minorities may be facilitated by territorial devolution on democratic, not ethnic, grounds,
but the relevant minority instruments do not impose a duty on States to devolve authority on a
territorial basis. UN declaration on minorities and other instruments concerning persons
belonging to minorities aim at ensuring a space for pluralism in togetherness and not to
autonomous development from the larger society of which the minority is a part.

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 also clearly recognized 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. 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.

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 with a
considerable amount of discretion in interpretation and implementation. Most of the minority
rights instruments are not legally binding. 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.

16
Daniel Šmihula (2008). National Minorities in the Law of the EC/EU in Romanian Journal of European
Affairs, Vol. 8 no. 3, Sep. 2008, pp.51-81.