6 LEGAL FRAMEWORK sition, whose members – being nationals of the state – possess ethnic, religious or linguistic characteristics differing from the rest of the population and show, if only implicitly, a sense of solidarity directed towards preserving their culture, traditions, religion or language.”11 Thus, objective criteria may include numerical size, non-dominant position, and the distinct ethnic, linguistic, or religious characteristics of the group. The desire of the group to preserve their distinct cultural, linguistic, or religious identity is a subjective criterion that emphasizes the group nature of minority rights. However, the definition put forth by Caportorti is not definitive. Other approaches have been put forward to determine who constitute minorities. Given the lack of consensus on the definition of a minority under international law, questions have been raised about the scope of minority rights.12 For instance, it is generally accepted that indigenous peoples may be minorities, not all minorities are indigenous peoples, who are distinguished by their specific history and experience related to settler colonization. Moreover, indigenous peoples have specific, and often more robust, mechanisms within the United Nations human rights system for the protection and promotion of their rights. The issue of citizenship has also caused debate in relation to who constitute minorities. Generally, under international human rights law, states have an obligation to guarantee the human rights, including special rights afforded minorities, to all persons on their territory regardless of citizenship status. However, upward trends in mobility and migration in recent years have highlighted the tension between so-called “old” and “new” minorities. Interpretations of the UNDM have clarified that citizenship status should not preclude the enjoyment of rights contained in the Declaration, but that other factors, for example, the amount of time a group has resided on a territory, may be relevant in determining the scope of rights that should be afforded to the group.13 LEGAL FRAMEWORK In recent years, other minoritized identities, such as LGBT+ and disabled people, have also been brought within the scope of minority rights from the perspective of intersectionality and multiple forms of discrimination. The Special Rapporteur on minority issues has recently published a report on a study of the significance and scope of the four categories of national or ethnic, religious and linguistic minorities in the United Nations.14 The report offers key guidance on the scope of beneficiaries of UN minority protection, and which groups fall under the four categories of minorities in the United Nations. Four Pillars of Minority Rights The rights contained in the UNDM are structured around the four key pillars of minority rights: the right to exist, the right to non-discrimination, the right to protection of identity, and the right to effective participation. The right to exist entails ensuring the survival and protecting the existence of minority groups, including from genocide and crimes against humanity. Article 1 of the UNDM enshrines this right and calls upon states to “protect the existence […] of minorities within their respective territories.”15 As discussed above, the Convention on the Prevention and Punishment of the Crime of Genocide also enshrines the right to exist by prohibiting the destruction of national or ethnic, linguistic, or religious groups. The Declaration calls for the protection of the right to non-discrimination of minorities. Article 2.1 states that persons belonging to minorities have the right to enjoy their own culture, use their own language, and practice their own religion without discrimination.16 Article 2.5 establishes their right to freedom of association with other members of their groups and other minorities without discrimination.17 Meanwhile, Article 3 sets out that persons belonging to minorities shall exercise the rights contained in the Declaration without any form of discrimination.18 Accordingly, Article 4 calls upon states to take measures to ensure that persons belonging to minorities are able to exercise their human rights without discrimination.19 14 Report of the Special Rapporteur on minority issues: Effective promotion of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, A/75/150, available at: https://documents-dds-ny.un.org/doc/UNDOC/ GEN/N20/190/15/PDF/N2019015.pdf?OpenElement 15 United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Linguistic and Religious Minorities [hereinafter UNDM], Article 1 11 Capotorti, Francesco, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, New York, 1979, E/CN.4/Sub.2/384/Rev.1, para. 568. 12 For recent discussions on the scope of minority rights, see the definition of the current Special Rapporteur on minority issues, available at: https://www.ohchr.org/EN/Issues/Minorities/SRMinorities/Pages/ConceptMinority.aspx, and Thematic Commentary No. 4: The scope of application of the Framework Convention for the Protection of National Minorities, available at: https://rm.coe.int/ CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806a8fe8. 16 Id., Article 2.1 17 Id., Article 2.5 18 Id., Article 3 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, paras. 10–11 19 Id., Article 4 13 7