PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation aspects of minority rights, but instead aims to explore aspects of particular application of anti-discrimination law to the rights of minorities and particular dilemmas arising in this respect. The primary aim is to assist those involved in developing anti-discrimination laws to understand the application of the right to nondiscrimination in a minority rights context. A. Minority rights under international law As noted above, article 27 of the International Covenant on Civil and Political Rights sets out that persons belonging to ethnic, religious or linguistic minorities “shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”. Article 30 of the Convention on the Rights of the Child provides similar guarantees, including “persons of indigenous origin” in addition to ethnic, religious or linguistic minorities. Regional human rights treaties also make explicit provision for minority rights.858 The Human Rights Committee, in its general comment No. 23 (1994), has set out a number of elements of the rights established under article 27 of the International Covenant on Civil and Political Rights. In particular, it has noted that: Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group.859 The Committee has noted that these positive measures “must respect the provisions of articles [2 (1)] and 26 of the Covenant both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population”. Going further, the Committee has noted that positive measures to ensure the community enjoyment of minority rights will be a legitimate differentiation for the purposes of the right to non-discrimination, to the extent that they “are aimed at correcting conditions which prevent or impair the enjoyment of the rights” and are based on reasonable and objective criteria.860 More broadly, the Committee has noted that “none of the rights protected under article 27 of the Covenant may be legitimately exercised in a manner or to an extent inconsistent” with other Covenant rights.861 The Committee has further noted that article 27 places States under an “obligation to ensure that the existence and the exercise of this right are protected against their denial or violation”, including by both State and private actors.862 Furthermore, the Committee has noted that “culture manifests itself in many forms, including a particular way of life associated with the use of land resources … especially in the case of indigenous peoples”. This necessitates not only “positive legal measures of protection” but also “measures to ensure the effective participation of members of minority communities in decisions which affect them”.863 Read in its entirety, general comment No. 23 (1994) makes clear that the Human Rights Committee regards the minority rights provision under article 27 of the International Covenant on Civil and Political Rights as having at its heart the rights to equality and non-discrimination. 126 858 The Council of Europe system includes two treaties explicitly dedicated to minorities: the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages. Under article 4 of the Inter-American Convention against All Forms of Discrimination and Intolerance, “States undertake to prevent, eliminate, prohibit, and punish … any discriminatory restriction on the enjoyment of the human rights enshrined in applicable international and regional instruments and in the jurisprudence of international and regional human rights courts, particularly those applicable to minorities or groups that are in vulnerable situations and subject to discrimination”. 859 Human Rights Committee, general comment No. 23 (1994), para. 6.2. 860 Ibid. 861 Ibid., para. 8. 862 Ibid., para. 6.1. 863 Ibid., para. 7.