International Human Rights

Lesson 8: Group Considerations

Session 8.3 – Minority Rights (II)

The result is that minority within the ICCPR places an emphasis on a group notion that is linked by religion language and culture. One is not bound to a state’s definition of a minority. Despite the individual oriented approach of the human rights system, the state must create and uphold conditions to ensure the existence of the group – for example, affirmative action (via reasonable and objective criteria).

Regarding the right to culture, it is generally linked to a more practical application, like of a fiscal nature or regarding the use of land. This obligation is treated by the Human Rights Committee as an obligation on the state. Note further the Declaration on Minorities from 1992. It is worth looking at within the documents book, as it is an important aspect of minority rights.

The underlying understanding was that the Declaration should be treated as a binding document, despite it only being a declaration. It was meant to move Article 27 forward and amplify certain aspects of minority rights. Looking at the title of the Declaration, one sees a balance between personal/subjective notions versus individuals joining as a group. Yet there is an inherent bias towards the individual rights approach. National does not only mean citizen but also the drafters were leaning towards an ethnic understanding, not only those who live in the state. The key is to create a connection between the minority and the overall society. Note however that there is no definition of the term minority – rather there are adjectives to describe the minority. The fear was that any attempt to delineate would exclude other groups who merit minority rights protection. The Preamble to the Declaration is important since it relates to the purpose of the document – an attempt to move the right forward beyond Article 27 (although the Declaration can be used as a tool to define Article 27). Note as well the importance of stability and minority rights – to be part of society and the democratic framework.

Article 1 – “shall” means obligatory. Identity is to remove the obstacles to development and honor their territory. Existence is referring to no genocide, creating a fair economic situation. (Note a group oriented approach) Article 2 – linked to Article 27, but stronger language here – like “have the right”.

The right to vote includes, where applicable, the right to establish local authorities and councils. Note the limitation in 2(5) regarding forms of communications. Article 3 incorporates aspects of both the individual and the community. 3(2) refers to non-exercise, regarding the enforcement of the culture of the majority. Again issues of language culture and religion are to be linked to society in a natural manner

Article 4 relates to a relative application. The application thus is linked to the economic condition of the state. The Declaration therefore uses less obligatory language on the state (“should”).

Key here is to provide standing to minority’s views in overall culture and to participate in local culture Article 8 calls for limitations on the rights of minorities if the exercise of the right will violate the rights of others

In contrast to minority rights, it is worth briefly mentioning Self Determination as an international human right. Self-determination arguably is more difficult to uphold. Self-determination relates to the idea that specific groups of people are entitled to create a new state entity.

Note however that self determination can assist the state as well by entrenching its existence to uphold boundaries as determined by International Law, yet it also weakens sovereignty by challenging its application and inherent presumption that states dominate

Sovereign integrity also is a factor. Some states therefore reserved on Article 1 of the ICCPR by recognizing self-determination only when confronted with a foreign occupation. Note as well that there are various ways to apply self-determination – not only by the creation of a new state but also ensuring for the right to fair and full representation in the government. Yet the result is that the role of the state and its purpose has been altered

The key factor for self-determination is to weigh the destabilizing effect of the right versus the level of representation by the group/people in the responding government.

OPTIONAL READING: Steiner and Alston, 987-1004