issue of collective rights continues to challenge the narrower paradigms of human
rights, though the international instruments on indigenous peoples have moved the
arguments forward. Leaving aside the question of rights that inhere in the collective
or group as such, the enjoyment of human rights in most respects is hardly
conceivable on a purely „individual‟ basis. Human rights function in social contexts.
The interpersonal, communicative nature of language rights is one obvious example:
they are subject to collective exercise - and represent much more than the right to a
„private language‟!
In these post-Declaration developments, we sense what has happened is that the
classical concern of minority rights with culture, language and education, interfaces
with the wider corpus of human rights. It is important that the Declaration refers to
protecting the existence as well as the identity of minorities. Threats to the „existence‟
of minorities come from many directions: from discrimination against members of
minorities across the spectrum of mistreatment up to and including attempts to
impoverish, eliminate, or „ethnically‟ cleanse them.
Minorities in CERD perspective
CERD practice is revealing on the „fate‟ of minority rights. Although the Committee
had, in tandem with the development of the contemporary standards on minorities,
engaged the issue prior to 1992, the Declaration has produced its effects. While it is
not commonly cited in concluding observations, the language and concepts of the
Declaration are among factors that condition the Committee‟s expressions of
concern. Even if minorities are not as such referred to in ICERD, they are one of the
significant categories, perhaps the major category, of victims of racial discrimination.
The Committee constantly requests disaggregated data on minorities and is
unimpressed by claims by States parties that they have no minorities under their
jurisdiction or that there is no discrimination against them. States are urged, in light of
information on their population, to „recognise‟ the presence of minorities and
indigenous peoples. Membership of a minority is, according to CERD, predicated on
self-definition as a first principle. The concept of discrimination is deemed to require
that the ethnic characteristics of a group are taken into account in assessing
discrimination, and that equality does not always mean uniform or identical treatment.
From the opposite angle, distinctions in national legislation between „national‟ and
„ethnic‟ minorities may be interrogated to see if they are pushed so far as to amount
to discrimination. Bearing in mind the claimed dissonance in the early UN period
between „prevention of discrimination‟ and „protection of minorities‟, that distinction
increasingly appears overstated. As a practical matter, the concepts of nondiscrimination and protection of minorities are paired and interlocking contributors to
any effective regime of minority protection.
Structural and other „forms‟ of discrimination against minorities are identified and
addressed in CERD practice. CERD General Recommendation 32 distinguishes
special measures/affirmative action from the rights of minorities and indigenous
peoples, while forcefully insisting that minorities and indigenous peoples are to
benefit from such measures when their situations demand that supportive action be
taken.
Hate speech against minorities is also examined by CERD on an all-too-regular
basis, as well as the treatment of minorities under anti-terror legislation.
Discrimination against women members of minority communities has engendered
one general recommendation and countless individual observations as forms of
multiple discrimination – or intersectional discrimination – continue to engage the
Committee. Recommendations on minority education, languages and cultures
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