E/CN.4/Sub.2/AC.5/2001/2
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4.2
States shall take measures to create favourable conditions to enable persons
belonging to minorities to express their characteristics and to develop their culture,
language, religion, traditions and customs, except where specific practices are in
violation of national law and contrary to international standards
56.
This paragraph of article 4 calls for more than mere tolerance of the manifestation of
different cultures within a State. The creation of favourable conditions requires active measures
by the State. The nature of those measures depends on the situation of the minority concerned,
but should be guided by the purpose set forth in article 4.2, which is twofold. On the one hand,
individual members of the minority shall be enabled to express the traditional characteristics of
the group, which may include a right to use their traditional attire and to make their living in
their own cultural ways. On the other hand, they shall be enabled, in community with other
persons belonging to the group, to develop their culture, language and traditions. These
measures may require economic resources from the State. In the same way as the State provides
funding for the development of the culture and language of the majority, it shall provide
resources for similar activities of the minority.
57.
The words “except where specific practices are in violation of national law and contrary
to international standards” require some comment. The meaning of the words “contrary to
international standards” is simple enough. In particular, it is intended that the practices must not
be contrary to international human rights standards. This, however, should apply to practices of
both majorities and minorities. Cultural or religious practices which violate human rights law
should be outlawed for everyone, not only for minorities. The qualification contained in the final
words of the last sentence of article 4.2 is therefore only a specific application of a universal
principle applicable to everyone.
58.
The first part of the sentence “in violation of national law” raises somewhat more
difficult questions. It is clear that the State is not free to adopt whatever prohibitions against
minorities’ cultural practices that it wants. If that were the case, the Declaration and article 4.2
in particular would be nearly empty of content. What is intended, however, is to respect the
margin of appreciation which any State must have regarding which practices it wants to prohibit,
taking into account the particular conditions prevailing in that country. As long as the
prohibitions are based on reasonable and objective grounds, they must be respected.
4.3
States should take appropriate measures so that, wherever possible, persons
belonging to minorities may have adequate opportunities to learn their mother
tongue or to have instruction in their mother tongue
59.
Language is among the most important carriers of group identity. In line with the general
requirement in article 1 that States shall encourage the promotion of the linguistic identity of the
minority concerned, measures are required for persons belonging to minorities to learn their
mother tongue (which is a minimum) or to have instruction in their mother tongue (which goes
some steps further).
60.
The steps required in these regards depend on a number of variable factors. Of
significance will be the size of the group and the nature of its settlement, i.e. whether it lives