8 LEGAL FRAMEWORK The right to equality and non-discrimination is further enshrined in all UN human rights instruments, and is the particular focus of ICERD. ICERD not only establishes that all persons, including minorities, shall not be subjected to discrimination, but also that “States Parties shall, when the circumstances so warrant, take […] special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.”20 The right to non-discrimination is such a fundamental component of minority rights that some experts have even argued that ICERD itself represents a legally binding expression of minority rights as a universal concept.21 While not originally conceived as a minority rights treaty, the Committee on the Elimination of Racial Discrimination, in its pursuit to implement ICERD and work towards the elimination of racial discrimination, has expanded its interpretation of the scope of race under the Convention, and has shown a clear concern for the rights of linguistic and religious minorities as well, particularly when there is an ethnic or racial component to the discrimination faced by such groups.22 The Committee has issued general recommendations on a number of specific groups, including non-citizens (No. 11 and No. 30), refugees and displaced persons (No. 22), indigenous peoples (No. 23), Roma (No. 27), descent-based groups (No. 29), and people of African descent (No. 34)23. ICERD is a particularly powerful tool for the protection of minority rights, since, unlike the UNDM, it is a widely-ratified and binding treaty with a corresponding treaty body to monitor and promote its implementation. The third pillar, the right to protection of identity includes a broad range of specific rights aimed at ensuring the freedom of minorities to maintain their culture, practice their religion, and use their language in both the public and private spheres. This is underlined in Article 1 of the UNDM, which also calls upon states to adopt legislative and other measures to ensure the protection of the identities of its minorities.24 To this end, Articles 4.2 and 4.3 read “states shall take measures to create favourable conditions to enable persons belonging 20 International Convention on the Elimination of All Forms of Racial Discrimination, Article 2.2 21 David Keane and Joshua Castellino, ‘Is the International Convention on the Elimination of All Forms of Racial Discrimination the de facto minority rights treaty?’. In Carla Buckley, Alice Donald and Philip Leach (eds.). Towards Convergence in International Human Rights Law: Approaches of Regional and International Systems. (Brill/Nihjoff 2016) 22 Id. 23 The General recommendations of CERD are available at: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/TBSearch. aspx?Lang=en&TreatyID=6&DocTypeID=11 24 UNDM, Article 1 U N I T E D N AT I O N S M E C H A N I S M S F O R M I N O R I T Y P R O T E C T I O N to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs”, and “States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue.”25 The right to protection of identity is also enshrined in the form of a binding obligation on states parties in Article 27 of the ICCPR and Article 30 of the CRC. Finally, the UNDM establishes the right to effective participation in a number of its articles. Article 2.2 establishes that “minorities have the right to participate effectively in cultural, religious, social, economic and public life.”26 While Articles 2.3, 2.4, and 2.5 ensure the right of minorities to participate in decision-making that affects them, and to participate in and form their own associations. Article 5.1 states that “national policies and programmes shall be planned and implemented with due regard for the legitimate interests of persons belonging to minorities”.27 Article 4.5 calls upon states to “consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country.”28 The right to effective participation encompasses both substantive and procedural rights. It represents a fundamental component of minority rights, as effective participation ensures that minorities are able to influence laws and policies affecting them, bring their grievances to the attention of authorities, and secure their other fundamental human rights. UNITED NATIONS MECHANISMS FOR MINORITY PROTECTION The United Nations has two primary mechanisms in place for the protection and promotion of the rights of persons belonging to minorities: the Special Rapporteur on minority issues, which is part of the special procedures of the Human Rights Council, and the annual Forum on Minority Issues, which was also established by the Human Rights Council. The two mechanisms share the dual mandate of establishing dialogue and cooperation on issues related to minorities and promoting the implementation of the UNDM. 25 Id., Arts. 4.2, 4.3 26 Id., Art. 2.2 27 Id., Arts. 2.3, 2.4, 2.5 28 Id., Art. 4.5 9