PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation is also applied by the bodies of the Council of Europe and the Organization for Security and Cooperation in Europe specifically dedicated to minority protection.871 In Europe, the approach taken to the definition of minorities has followed three broad principles: (a) emphasis on the identification of minorities as a matter of fact, rather than law; (b) recognition that the existence of minorities is understood to be a matter requiring assessment against both objective and subjective criteria;872 and (c) resistance to a single stringent or binding definition, in the context of an awareness of risk to the human rights of minorities arising from potentially narrow definitions.873 In the work of both the Council of Europe and the High Commissioner on National Minorities of the Organization for Security and Cooperation in Europe, the latter approach has been termed “pragmatic”.874 A further core principle is set out in the “Guidance note of the Secretary-General on racial discrimination and protection of minorities”, in which the Secretary-General recognized that the focus should be on the most marginalized: While in most cases minorities are in a non-dominant position, … there are great differences between the experiences and positions of minorities. Whereas some minorities are systematically marginalized and excluded from decision-making and receive little or no support to improve their situation, others play an important role in [the] economy, [S]tate structures and other contexts. Such diversity can also be present within minority communities. … In considering such differences, which vary over time, the UN system should pay particular attention to those who are economically, politically and/ or socially most marginalized and whose rights are particularly at risk.875 There has been debate as to whether the term “minorities��� refers to groups that make up less than 50 per cent of the national or local population. Gay McDougall, the first Independent Expert on minority issues, worked extensively to decouple the definition of minorities from numerical quantum, and included under the definition communities such as people of African descent in Brazil, that is persons who may be in the majority of the population, but are systematically marginalized. In her interpretation of the Declaration, the Independent Expert stressed “four broad areas of concern relating to minorities globally”: (a) the protection of a minority’s survival, through combating violence against them and preventing genocide; (b) the protection and promotion of the cultural identity of minority groups and the right of national, ethnic, religious or linguistic groups to enjoy their collective identity and to reject forced assimilation; (c) the guarantee of the rights to non-discrimination and equality, including ending structural or systemic discrimination and the promotion of affirmative action when required; and (d) the guarantee of the right to effective participation of members of minorities in public life, especially with regard to decisions that affect them.876 128 871 In particular as relates to the Council of Europe’s Framework Convention for the Protection of National Minorities (1995) and the High Commissioner on National Minorities of the Organization for Security and Cooperation in Europe. 872 See also Human Rights Committee, general comment No. 23 (1994). 873 European Commission for Democracy through Law (Venice Commission), Compilation of Venice Commission Opinions and Reports Concerning the Protection of National Minorities (Strasbourg, 2017). Available at www.venice.coe.int/webforms/documents/?pdf=CDLPI(2018)002-e. 874 “There is no generally accepted definition of the concept of a ‘minority’. Some elements thereof have certainly been identified as, for example, the standard if not universal classification of minorities into three groups: ethnic minorities, linguistic minorities, and religious minorities; any of these three criteria may be present or, more often, they may be in part cumulative. This (in part) threefold characterisation is adopted in article 27 of the International Covenant on Civil and Political Rights and mentioned in Section 5.1 of the general comment […] of 6 April 1994. […] However, no generally accepted definition of minorities has been formulated in any international legal instruments or doctrine to date. While some authors have attempted to bear upon the question, others have preferred not to, considering either that such a definition is impossible or that it in any case serves no purpose. Thus the CSCE High Commissioner for National Minorities acts in a pragmatic manner, and without formulating any definition, wherever he deems that a question affecting minorities exists.” Ibid., p. 4, citing the report on the replies to the questionnaire on the rights of minorities, in European Commission for Democracy through Law (Venice Commission), The Protection of Minorities, Collection Science and Technique of Democracy, No. 9 (Strasbourg, 1994). 875 Secretary-General, “Guidance note of the Secretary-General on racial discrimination and protection of minorities” (2013), paras. 18–19. Available at www.ohchr.org/documents/Issues/Minorities/GuidanceNoteRacialDiscriminationMinorities.pdf. 876 A/HRC/10/11/Add.2, para. 3.