Critical analysis the rights of minorities under Article 27 of the ICCPR

Introduction

The purpose of this paper is to critically analyse the rights of minorities under Article 27 of the International Convention of Civil and Political Rights, hereinafter referred to as the ICCPR. The ICCPR is one of the primary and most referred to international statutes in relation to the discrimination of minorities, although it will also be necessary to refer in this paper to other relevant statutes. The concern for the situation of minorities and the resulting efforts to protect their security and status in the face of discrimination against them and their rights, culture, language, and ethnicity, has been cemented as an ideal of international law. It is necessary to note that international law is usually referred to by national states who must take measures to implement it within their domestic law; however, on a number of occasions, the infringement of the rights of minorities has become an issue of international concern, especially where mass persecution and even genocide has been perpetrated. Indeed, even where repression has become, in the majority of democratic nations, legally proscribed against certain communities, minorities still remain discriminated against and even persecuted.

The proliferation of national and international legislation pertaining to minorities, the approach of international law and legal authorities remains cautious, given the specific cultural, religious, and linguistic peculiarities existing within national borders, and the way in which the situation of minorities and the discrimination against them often appeals to both international sympathisers and opponents ; especially in relation to cases in which national borders have been arbitrarily created, often dividing regional minorities , means that it is necessary to analyse the way in which Article 27 ICCPR has developed and how it has been applied.

The definition of a minority

In societies which are composed of different ethnicities, which is the majority of nations, the social and historical prominence of the majority group will automatically bestow upon it a superior political, social, and often economic status to the minority group onto the other minority groups within the society or nation. It has been noted that the gap between these statuses is usually so deeply entrenched that it will be impossible for the minority group to compete. Over time, this situation, Jabareen has noted, “erodes the cultural-national uniqueness of the minority, endangering its collective identity and the rights of its members.” The minority group must choose to integrate and wholly assimilate with the dominant population, or to embrace and retain their specific differences in the face of ongoing discrimination. This discrimination may take numerous different forms; at basic level, however, it may be asserted that is affects the most vital facets of the lives of individuals belonging to the discriminated minority, and affects their ability to participate equally in society as well as their future chances of doing so. It is through the recognition of this that international legalisation was formulated in an attempt to stymie such discrimination and to enable minority groups to resist the pressure to disperse into society at large.

A minority group may be defined as a group with “linguistic, ethnic or cultural characteristics, which distinguish it from the majority.” This is distinguishable from the identity of the majority group, which is generally not considered to be a specific identity, other than that of, for example, a nation, and the identity of the minority group is “always experienced as particular and a specific to them”, with this identity being based on their membership as a group, and the fact that “race, ethnicity and culture are central” to human identity. In this way, international law recognised the importance of legal protection and measures to improve the participation of members of minority groups in society. It was Francesco Capotorti, the Special Rapporteur of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities (ICCPR) who in 1979 developed the most widely accepted definition of a minority, which was later incorporated into Article 27 of the ICCPR. Capotorti defined a minority group as one which is inferior in numbers to the rest of the population and as such is in a non-dominant position, and the members of which possess ethnic, religious or linguistic characteristics differing from the rest of the population, and who maintain a sense of solidarity with regards to the preservation of these characteristics, even if only implicitly.

This definition was later incorporated into Article 27 of the ICCPR, which asserts 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 members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” It should be noted that there are also a number of other statutes in international law which are tasked with the protection of minorities; these include the Declaration on the Rights of Persons belonging to National or Ethnic Religious and Linguistic Minorities of 1992 and the International Convention on the Elimination of All Forms of Racial Discrimination of 1965, specifically Articles 1(1) and 1(4) , although thus does not provide specifically for the rights of minorities. Nonetheless, this does require states to “prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization.” It is also necessary to note the relevance and importance of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which placed an emphasis on minority protection in the wake of the Second World War.

However, this paper is specifically focused on Article 27 of the ICCPR, as this remains the most widely accepted definition of minorities in international law. Indeed, it has been referred to as the “most important guarantee of such rights on the universal level and the only one that constitutes applicable ‘hard law.”

As the Human Rights Committee has stated, the rights of minorities defined in Article 27 ICCPR are “individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion.” Therefore, the Committee asserted, the protection of these rights requires the implementation of “positive measures” on the part of states in order to ensure that minorities can continue to protect their identity and their rights to “to enjoy and develop their culture and language and to practice their religion.” However, there are qualifications to the way in which Article 27 is enforced. It must be balanced with Article 2.1 of the ICCPR, which concerns the rights of individuals within the territory of the state without distinction, as well as Article 26 of the ICCPR, which concerns equality before the law, and in regard to this, the Human Rights Committee has asserted that “positive measures must respect” Article 2.1 and Article 26 ICCPR “both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population.” Indeed, as the Human Rights Committee continued, “as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under Article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria.” In addition to the qualification of the rights of minorities within the ICCPR, the failure of the drafters of Article 27 to specify the minorities which have the right to the protection it provides has been criticised. Commentators such as Benoit-Rohmer have asserted that Article 27 is a sort of compromise, which is “skilfully worded, but ambiguous in content. In its literal wording, the article appears to confer rights only on individuals, but in fact allows the exercise of collective rights.” The “vague phrasing” of Article 27 has been criticised. However, in its General Comment No 238 on the Rights of Minorities, the Human Rights Committee clarified certain points in relation to Article 27 ICCPR which were considered ambiguous. However, although this clarification was an important step, there are still a number of aspects which commentators such as Yupsanis have asserted that the Human Rights Committee must further clarify, especially in regard to the participation of minorities and their consent.

The importance of Article 27 therefore lies in the fact that it clearly asserts that discrimination against minorities is prohibited, and that this is a fundamental principle of human rights law, which requires states to impose certain measures. As Morawa has noted, non-discrimination is an “accessory right”, by which this is an equality which is an adjunct to the other substantive rights contained in the legislation concerned, as well as an independent right. However, despite the recognition of the importance of equality and the non-discrimination against minorities in international law, this may not be enough to achieve equality in fact. It is therefore incumbent upon states to take positive action to ensure this. As Petričusić has asserted, past events in Europe in particular, although also across the world, have shown that governments must establish specific protections for their minorities, to ensure their inclusion in society whilst enabling them to maintain their own identity. The Lund Recommendations asserted that such actions will “promote the food governance and integrity of the State.” Furthermore, the Lund Recommendations, which concerned the participation of minorities in society, asserted that for minorities to be able to effectively participate in society, they need governments to establish consultation channels by which conflicts can be resolved, through “judicial resolution, such as judicial review of legislation and administrative action, which requires an independent, accessible and impartial judiciary, additional dispute resolution mechanisms, such as negotiation and arbitration”, and an “ombudsman for national minorities can be useful for the resolution of grievances.”

The importance of Article 27 ICCPR is noted in the fact that it is an essential bulwark against the attempts by some states that they do not actually contain any minorities . In fact, the Human Rights Committee noted as such in its General Comment 23 on Article 27. The Human Rights Committee has also noted that, although the language that was used in the drafting of the Article has bene termed “negative rights” , positive obligations have been imposed states, which means that they must take action to protect the rights of their minorities through both state and private mechanisms. Such positive actions may range from the imposition of numbers of members of minority groups in the workplace, to the programmes aimed at increasing the participation of minorities in public life. Academic commentators have asserted that Article 27 ICCPR obliges states to create “special protective measures” which will ensure both individual and group rights for minorities. It is undeniable that for Article 27 to be at all effective, it must be interpreted with some force, rather than merely passively. This is especially the case given the fact that currently, at least one hundred and sixty nation states have ratified the ICCPR and it has achieved the status of customary international law.

The use of Article 27 ICCPR

Article 27 ICCPR has proven to be of vital importance in relation to cases in which states have attempted to actually deny the existence of their minorities. Absurd as such an attempt may seem, this has been attempted by a number of states. This tactic has been used by states which are founded on immigration, such as Chile, the United States, and Argentina. It has been asserted that these states “fought for their concept of assimilation because they see themselves as immigration states.” These states consider it beneficial to them to deny the existence of their minorities because if they are successful in denying their existence, they will not be obliged to implement special measures to protect them. The existence of Article 27, however, removes this possibility. The attempts of state delegates to block Article 27 have been extraordinarily blatant. For example, in the discussion n Article 27, the Australian delegate to the Commission on Human Rights claimed that “there were, of course, the Aborigines, but they had no separate competing culture of their own, for as a group they had only reached the level of food gatherers.”

Indeed, the reluctance to recognise the existence of minorities such as the Aborigines, who were of course the original inhabitants of the Australian landmass prior to European immigrants, is based on the fear, Duchêne has asserted, that such recognition would “cause problems.” The Indian representative also insisted on the importance of the “homogeneity of the state”, asserting that “the greatest care should be taken not to over emphasise cultural differences. The modern trend towards greater uniformity of thought and outlook was tending to diminish those differences” and agreed with the Chilean representative that “once a linguistic group felt itself to be a cultural entity it began to insist upon its rights and became reluctant to play its part in the common national life.”

The remark by the Australian delegate is reveals such a high level of discrimination towards Aborigines that in making it, he revealed the need for the enactment and implementation of Article 27 to protect this minority. Yet such blatant discrimination against a minority which at the same time the state denies even exists is not unfortunately a problem of the past, as there are states that continue to claim that they do not have any minorities. One such state is Turkey, which refuses to recognise the Kurds as a minority. France too has claimed that it is unable to enact Article 27 as to do would be to negate the concept of France as a united Republic. Such a refusal resulted in a situation in which French citizens who had Breton ethnic origins submitting cases based on Article 27 ICCPR, which were subsequently rejected on the basis that France has failed to ratify Article 27. A significant case has also concerned the indigenous Sami people in Sweden. The case of Ivan Kitok v. Sweden in 1988 concerned Ivan Kitok, a Swedish citizen of Sami ethnic origin, who claimed that the Swedish government had breached Article 27 of the ICCPR as he had the right to breed reindeer and hunt, as well as land and water rights, under Swedish legislation which was applicable to members of a Sami village. The application of Kitok to become a member of a Sami village had been rejected, as were his appeals to the courts. The Human Rights Committee confirmed that reindeer husbandry, which is a key part of Sami culture, falls within the scope of Article 27 ICCPR.

It is also interesting to note that a number of complaints from individuals regarding infringement of Article 27 originate from Canada. A significant case was Lovelace v Canada, in which The Human Rights Committee affirmed that Canada had discriminated against the applicant who was protected by Article 27 on the basis of her sex by removing her Aboriginal status, to which she was entitled, when she married a man who did not have Aboriginal ethic status. Yet this would not have been the case for an Aboriginal man marrying a non- Aboriginal woman; he would not have lost his status. The case of Mikmaq Tribal Society v. Canada concerned an individual who brought his claim on his own behalf and on the behalf of the Mikmaq people; however, the Human Rights Committee asserted that the “author has not proven that he is authorised to act as a representative on behalf of the Mikmaq tribal society”, nor that the he is “personally a victim of a violation of any rights contained in the Covenant.” The decision was however criticised by a member of the Human Rights Committee, Roger Errera, who asserted that it was problematic due to the way it had not decided the status of the Mikmaq as a people, in addition to the fact that it left undecided the issue of whether it was possible for individuals to claim self-determination. This issue was however decided in the previously mentioned case of Kitok v Sweden, in which the Human Rights Committee held that it is not possible for an individual applicant to be a victim of self-determination. Another significant case that concerned Canada was Lubicon Lake Band v. Canada In this case, Chief Omnayak brought a complaint asserting that the state of Canada had denied the members of the Lubicon Lake Band their right to self-determination and also to assert their rights over their wealth and resources and dispose of them, having appropriated the land of the Lubicon lake Band for commercial purposes thus denying the Band their means of sustenance and breaching their rights of self-determination, and thus amounting to a breach of Article 27 ICCPR. The Human Rights Committee held that the acts of Canada did constitute a breach of Article 27.

Following these cases, in 1994 the Human Rights Committee approved general Comment No. 23 on the Rights of Minorities in relation to Article 27 ICCPR. The Committee held that Article 27 recognises the rights of individuals belonging to minority groups, and also addressed the specific issue of indigenous peoples, noting that the issue of the preservation of land and resources for the use of indigenous peoples who asserted their rights over them means that the preservation of the use of such resources and land by indigenous peoples may be an essential factor in relation to the cultural rights of minorities. The Human Rights Committee asserted that these rights require positive protection. In relation to the growth in the legal protection of the rights of indigenous peoples, it is interesting to note that academic commentators such as Kugelmann have asserted that although members of minority groups in general, and members of indigenous populations are vulnerable to discrimination, the “evolution of the relevant legal instruments’ are rather different, as the development in relation to indigenous groups appears to be more “dynamic” in comparison with the protection of minorities in general.

The protection of the language of minority groups is an important issue, for, as Jabareen has asserted, language is often a vital component of a group’s cultural identity. Where this exists within the context of a nation state, it has been asserted that the “equal allocation of the state’s cultural resources demands bilingualism.” Furthermore, the minority language must have legal, official status and be used within the public sector such as, for example, in government, the courts, and in official documents. A prime example is the use of both French and English in Canada. The case of C.L.D. v France concerned the assertion that speakers of Breton are a linguistic minority in France; this case concerned an alleged violation of Article 27 ICCPR due to the refusal of the Postal Administration service of France to issue postal cheques to native speakers of Breton in Breton. It should be noted, however, that commentators have noted that the rights of minority speakers to maintain the right to use their own language are also reciprocal, and that minority speakers should also be able to use the majority language. As language “is at the centre of interaction between people, bilingualism is a precursor to true integration, effective participation, and full equality.”

The Limitations of Article 27

As noted, Article 27 ICCPR faced criticism even prior to its implementation. It’s phrasing is indeed, as Yupsanis has stated, rather “literal.” However, it may be argued that, given the numerous minorities which exist and the fact that the Treaty was intended to be global in application, this was vagueness was unavoidable. When it was enacted, it was criticised as being “declaratory in nature” and as reflecting a “minimum of rights.” Other commentators termed it “weak”, “insufficient” and “limited.” One problem lies in the fact that Article 27 fails to define minorities, although the importance of language, religion and culture is referred to. Nonetheless, the failure to define the meaning means that the clarification in regard to this has been dependent upon case law in order to define which groups should be the beneficiaries of the protection of the Article. Another limitation of Article 27 is due to the fact that it is only applicable to states “in which ethnic, religious or linguistic minorities exist”; this is problematic because it may embolden states to assert that they do not have any minorities on their territory. The Article can also be interpreted as meaning that it is only applicable to minorities which have longstanding status on the territory of the state which have the right to demand that the state officially recognise them; this would therefore exclude immigrants from claiming protection. Another issue concerns the negative language that is used in Article 27; it refers to the fact that persons who belong to minority groups “shall have” certain rights, although they “shall not be denied them.”

The way in which this was drafted implies that states only have negative obligations to uphold minority rights, and that the Article only protects the rights and freedom of individuals belonging to minorities to enjoy their culture, rather than imposing a duty of positive action on the state to ensure the protection of this enjoyment. There are also problems with the wording “belonging to” as this suggests that only the rights of the individual are protected, rather than the collective rights of the minority group as a whole. This has resulted in academic commentators continuing to inquire whether Article 27, despite the fact that it purports to offer protection to minorities, actually “adds anything further to the norms of non-discrimination which are part of the general human rights regime.” There are also commentators who claim that Article 27 is more a recommendation than a legally binding form of international normative law. However, such claims fail to take into account the clarifications that were provided in General Comment No. 23. The Human Rights Committee has also confirmed that Article 27 ICCPR concerns the protection of rights which are directed towards “ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.” The result of this is that the cultural rights protected under Article 27 are not dependent upon other rights in order to be enforced, but they also lay the ground for other “conditions, objects or goods that are instrumentally necessary for a people’s culture.” Furthermore, the international legal authorities have taken an extraordinarily progressive approach, asserting that culture is not a stagnant but rather a “living process, historical, dynamic and evolving, with a past a present and a future.” There are however valid complaints of the Human Rights Committee that it has failed in regard to the rights of indigenous communities to ensure that they have been consulted by state authorities, and that this is problematic as it may be judging a case on a faulty and potentially prejudicial basis .

Conclusion

There are numerous other issues which are relevant and appropriate for discussion within the context of an analysis of Article 27 ICCPR. These include the cases that can be discussed in relation to self-determination, and the right of religious groups as minorities within the national context. However, as space does not permit such a discussion, it suffices to state that the Human Rights Committee has developed the customary law in these areas through considered jurisprudence. It is a damning indictment of human nature that international legislation is required to oblige states of the need to ensure that all their citizens have the right to fully participate ins society, regardless of their religion, ethnicity, or culture. However, it remains a fact that the legislative framework of a state will always be slanted towards the majority, and therefore, such legislation is required. However, even the existence of such legislation will not be sufficient to ensure equality and protection from discrimination, and as such, it has bene necessary for the customary law to develop through the bringing of cases to the Human Rights Committee, which has established the true reach of Article 27. The Committee has arguably through its decisions imposed pressure on nation states to improve their approaches to minorities, not least by forcing them to admit their very existence. The existence of Article 27 ICCPR is a crucial protection for minority peoples across the world.

Bibliography

Statute

Convention on the Prevention and Punishment of the Crime of Genocide 1948

International Convention on the Elimination of All Forms of Racial Discrimination 1965

United Nations General Assembly Resolution 2106 (XX) of 21 December 1965

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Lovelace v Canada Communication No. R 6/24 (1977)

Mikmaq Tribal Society v. Canada Communication No. 78/1980 (30 September 1980), U.N. Doc. Supp. No. 40 (A/39/40) (1984)

Ivan Kitok v. Sweden the Committee Communication No. 197/1985, CCPR/C/33/D/197/1985 (1988).

C. L. D. v. France, Communication No.228/1987 Comm. No. 228/1987, UN Doc. Supp. No., A/43/40 at 252 (1988)

Lubicon Lake Band v. Canada. Human Rights Committee. Communication No. 167/1984 (26 March 1990), U.N. Doc. Supp. No. 40 (A/45/40) at 1 (1990).

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