A/HRC/55/51
free to invoke or not these additional rights. This is in line with the very important concept
of self-identification, which is also well described in article 3 of the Framework Convention
for the Protection of National Minorities.20 Persons belonging to a minority may, individually
and freely, choose to be treated or not to be treated as belonging to the minority group, and
instead try integrating themselves within the majority group of the country in which they live.
Neither other members of the minority group, nor State authorities, can deny that right and
deprive an individual of the enjoyment, as a human being equal to all, of human rights. That
right to choose is a fundamental, individual human right. Given the social practices of some
minority groups as part of their traditional identity, the issue is particularly sensitive as
regards the equal enjoyment of rights by men and women within their social structures. One
of the major benefits of the emergence of the concept of individual human rights has been
the emancipation of many persons from being assigned a specific place and role in society,
resulting from their belonging to a given social group – be it a group defined by
socioeconomic, ethnic, linguistic, religious, gender or any other characteristics. Recognizing
the specific additional rights to non-discrimination of persons belonging to a minority group
or the right of a minority group to conserve, express and promote its identity as a group
should not be to the detriment of the individual rights persons are entitled to as holders of
universal human rights. That is also a complex minority issue. 21
35.
The way in which the two provisions (article 3 of the Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and article 3 of
the Framework Convention for the Protection of National Minorities) that address that issue
are worded seems to recognize the precedence of the individual right to choose over any
specific minority right. The Special Rapporteur is of the opinion that that is not an issue of
hierarchy of rights. The general right to be treated without discrimination by the State under
the jurisdiction of which a person happens to be and the additional right to receive specific
treatment as a person belonging to a minority group can both be realized simultaneously.
36.
As carefully pointed out by the Human Rights Committee in its general comment
No. 23 (1994), as well as through the title of the Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities, 22 there are no rights in
positive international law recognized as belonging to minorities as such. Persons belonging
to minority groups have specific rights, but the minorities themselves do not. Therefore, if a
tension were to arise between the individual rights of a person – de facto sharing the
constitutive element of an existing minority group, but not willing to be treated as a member
of the group – and the claim for a distinct and specific implementation of human rights for
the benefit of other members of that minority group, it would not be a conflict between an
individual right and a collective right, but a conflict between different individual rights and
their simultaneous enjoyment by different persons. Such horizontal conflicts between human
rights is nothing new for human rights law and thus this specific type of conflicting individual
rights should be treated as such. The Special Rapporteur will try to explore that issue – which
is complex and delicate – in more depth during the tenure of his mandate and, hopefully,
formulate useful proposals to help arbitrate such horizontal conflicts between members of a
minority group.
C.
Minorities’ identities as a contribution to national identity
37.
A third key element in the vision of the Special Rapporteur is the importance of
highlighting the substantial and positive contribution of minorities to society as a whole. One
of the central issues in recognizing and protecting minorities is to allow them to maintain and
promote their own identity, as a group distinct from the majority of the population. Thus,
article 1 of the Declaration on the Rights of Persons Belonging to National or Ethnic,
20
21
22
GE.24-00944
Article 3 (1) of the Convention reads as follows: “Every person belonging to a national minority shall
have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result
from this choice or from the exercise of the rights which are connected to that choice.”
For a good illustration of the complexity of such an issue, see European Court of Human Rights, Molla
Sali v. Greece, Application No. 20452/14, Judgment, 19 December 2018.
Article 3 (2) of the Framework Convention for the Protection of National Minorities also expresses the
same position. It reads as follows: “Persons belonging to national minorities may exercise the rights
and enjoy the freedoms flowing from the principles enshrined in the present framework Convention
individually as well as in community with others.”
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