A/HRC/58/54 of America, which read “we the people”. “We” being collective, “the people” being in the singular. Similarly, in international law, the collective of a people will be embodied in the single person of a State. Thus, whether a right to identity belongs to a minority is determined by whether the minority exists as a legal person, who may then be a holder of rights, or not. 42. As regards legal personality, there is a major difference between natural and legal persons. Natural persons exist outside of the law, as living beings, but must be recognized by law to have rights. Thus, article 6 of the Universal Declaration of Human Rights states: “Everyone has the right to recognition everywhere as a person before the law.” 19 Legal persons do not, as such, exist outside the law and may only come to existence according to law – either national or international law – with the astounding exception of States (see para. 51 below). Law defines the conditions according to which a legal person may come to existence and the legal capacity of that person. General international law does not contain criteria or processes to materialize minorities as legal persons, while it does, for example, for international organizations.20 Even though several legal instruments deal with minority issues, such as the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities or the Council of Europe Framework Convention for the Protection of National Minorities, those legal texts do not define minorities themselves as the bearer of rights. Does that lead to the conclusion that there is no right to identity for minority groups? 43. The answer is fortunately negative; there is a right to identity for minorities, but its structure is a bit complex. Considering that minorities are not the subject of international law,21 they cannot themselves be the bearers of rights, including a right to identity. However, as article 3 of the Framework Convention for the Protection of National Minorities specifies: “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.”22 This would imply that persons belonging to minorities, by exercising in community with other members of the minority their individual right to identity, would define and shape the identity of the minority that the State is then bound to protect. As article 1 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities clearly expresses, States accept the duty to protect the identity of minorities. However, such protection does not imply giving content to such identities; quite the contrary. 44. The duty to protect implies that the protected item, in casu the identity of minorities, exists outside of the will of the legal person bearing the responsibility to protect. In the Special Rapporteur’s view, this is further confirmed by the additional commitment undertaken by States in article 1 of the Declaration “to encourage conditions for the promotion of that identity”. Thus, the State protects and encourages the conditions, but does not itself develop or promote the identity. Logically then, the identity of a minority group must stem from the aggregated exercise by “persons belonging to minorities” of their individual right to identity. This then raises two questions. First, do the persons belonging to a minority have a specific right to identity, in addition to a right to identity belonging to the persons who are part of the dominant group,23 which can define and promote the identity of the minority to which they belong? And second, how do these three levels of identity (individual, minority and State identities) articulate with each other? 19 20 21 22 23 GE.25-00509 The adoption of the article 6 of the Universal Declaration of Human Rights was, among other reasons, considered important to guarantee the abolition of slavery. Article 16 of the International Covenant on Civil and Political Rights has almost the same wording. See Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 174. See Nicolas Levrat, “Pourquoi les minorités ne sont pas des sujets de droit”, in Le Droit Saisi par le Collectif, Thomas Berns, ed. (Brussels, Bruylant, 2004), pp. 59–93. Framework Convention for the Protection of National Minorities, art. 3 (2). In 1994, the Human Rights Committee, in its general comment No. 23 (1994) observed that article 27 of the International Covenant on Civil and Political Rights “establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant”. 7