4 LEGAL FRAMEWORK 1.3 of the United Nations Charter establishes that one of the purposes of the United Nations is to “promote and encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”2 Similarly, the Universal Declaration of Human Rights does not explicitly reference minorities, but does establish a broad range of rights and freedoms that should be enjoyed by all “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. It also contains important provisions on anti-discrimination.3 The later adoption of the Convention on the Prevention and Punishment of the Crime of Genocide enshrined the prohibition on the destruction “in whole or in part, of a national, ethnical, racial or religious group, as such,”4 recognizing that minority groups have disproportionately been targeted by genocide and ethnic cleansing. The International Convention on the Elimination of All Forms of Racial Discrimination also enshrined non-discrimination norms relevant to minorities, prohibiting distinctions “based on race, colour, descent or national or ethnic origin.”5 The International Covenant on Civil and Political Rights (ICCPR) was adopted by the UN in 1966, and entered into force 10 years later. The Covenant enshrines a range of civil and political rights, and was the first international human rights treaty to specifically refer to minority rights. Its Article 27 reads: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such 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.”6 The Human Rights Committee has provided further interpretation of ICCPR Article 27 in its General Comment No. 23, stating “this article 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 Thus, Article 27 and the corresponding interpretation provided by the Human Rights Committee establish rights for per2 United Nations Charter, Article 1.3 3 Universal Declaration of Human Rights, Article 2 4 Convention on the Prevention and Punishment of the Crime of Genocide, Article 2 5 6 7 CCPR General Comment No. 23: Article 27 (Rights of Minorities), para. 1 LEGAL FRAMEWORK sons belonging to minorities to be enjoyed “individually, as well as in community with other members of the group”8, and that are additional to and distinct from the other human rights guaranteed to individuals under the Convention. Article 30 of the Convention on the Rights of the Child, which was adopted later in 1989 and came into force the following year, contains an analogous provision to Article 27 of the ICCPR, and establishes similar rights for children belonging to minorities. It reads: “In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.”9 Declaration on the Rights of Persons Belonging to National or Ethnic, Linguistic and Religious Minorities After nearly 50 years of this rather fragmented development of minority rights norms, and a relative neglect of minority issues, the United Nations General Assembly adopted the Declaration on the Rights of Persons Belonging to Ethnic or National, Linguistic, and Religious Minorities in 1992 with Resolution 47/135.10 As there is no international human rights treaty that specifically focuses on minority rights, the UNDM represents the fullest elaboration of minority rights at the global level. However, the UNDM is simply a declaration, and does not impose binding legal obligations on states. The UNDM refers to “national or ethnic, linguistic, and religious minorities”, but does not contain any definition of who exactly are minorities. Nor is there an internationally accepted consensus on who constitutes minorities. The wide range of situations in which minorities live makes it difficult to establish a one-size-fits-all definition. Francesco Capotorti, Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, offered a definition containing both objective and subjective requirements that may provide some guidance on determining who is a minority: “a group numerically inferior to the rest of the population of a state, in a non-dominant po8 International Convention on the Elimination of All Forms of Racial Discrimination, Article 1 Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, E/CN.4/Sub.2/AC.5/2005/2, para. 53. 9 International Covenant on Civil and Political Rights, Article 27 Convention on the Rights of the Child, Article 30 10 General Assembly Resolution 47/135: Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 5