Minority Rights: A Primer

There is no universally accepted legally binding definition of minority and minority rights. According to the Minority Rights Group (2015:267), minorities are ‘disadvantaged national, religious, linguistic or cultural groups who are smaller in number than the rest of the population and who may wish to maintain and develop their identity.’

The most widely accepted definition of minorities, that by the Special Rapporteur on Prevention of Discrimination and Protection of Minorities, is:

“a group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the state – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and maintain, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.”

As Khan and Rahman note (1999:3), this definition implies that the factors that must be taken into account in identifying minorities are:

  • Numerical inferiority: Minorities are almost always imagined as numerically inferior although this is determined by reference to the size of ‘the rest of the population of a state’.
  • Non-dominant position: At the core, ‘minority’ is a political and sociological reality and is not merely numerical. The determining factor is the degree of political participation and social inclusion. ‘In fact, minorities are possibly undermined not so much by their weaknesses in numbers, but by their exclusion from power’ (Khan and Rahman; 1999:16)
  • Distinguishing ethnic, religious or linguistic characteristics: Only those groups within a population are considered minorities who differ from the rest of the population of the state in which they exist by reference to ethnicity, religion or language. In Article 1, the United Nations Minorities Declaration refers to minorities as based on national or ethnic, cultural, religious and linguistic identity.
  • Nationality: Minorities are citizens of the state that they live in. They generally exclude refugees, foreigners and migrant workers, although some formulations are more inclusive and also include non-citizens (see United Nations 2010:4-5 on this.)

When applied to South Asia, this definition means disadvantaged religious,  linguistic and ethnic groups are minorities as are Dalits (literally ‘broken people’ or ‘crushed’); as well as indigenous people, variously called Adivasi.

There are principally four ‘minority rights’. Taken together, these are established rights under international law; they are interrelated and built on the framework of individual human rights.

  1. Protection of life and security:

The Genocide Convention 1948, the United Nations Declaration on Minorities (UNMD) 1992 and the Durban World Conference Against Racism (WCAR) 2001 attempt to operationalize the right to survival and existence.

Article 1 of the UN declaration states: ‘States shall protect the existence….of minorities, within their respective territories….’ (United Nations, 1992).

The guidance for implementation on UN minorities declaration states:

‘Protection of minorities should focus primarily on the protection of the physical existence of persons belonging to minorities, including protecting them from genocide and crimes against humanity’ (United Nations, 2010:7).

The 2001 Durban Declaration and Programme of Action (DDPA) affirms that:

‘…..minorities, where they exist, must be protected and that persons belonging to such minorities should be treated equally and enjoy their human rights and fundamental freedoms without discrimination of any kind’ (para 66, p.13). It calls on states to protect the physical existence of minorities, including from genocide and crimes against humanity.

  1. Protection and promotion of identity and culture:

UNDM (1992) recognizes that persons belonging to national or ethnic, religious and linguistic minorities have the right to enjoy their own culture, to profess and practise their own religion and to use their own language in private and in public freely and without interference or any form of discrimination. These provisions are further strengthened by DDPA (2001) affirming that ‘the ethnic, cultural, linguistic and religious identity of minorities, where they exist, must be protected and that persons belonging to such minorities should be treated equally and enjoy their human rights and fundamental freedoms without discrimination of any kind’ (para 66). DDPA en- joins upon states ‘to prevent forced assimilation and the loss of cultures, religions and languages’ and encouraging conditions for the promotion of national, ethnical, cultural, religious and linguistic identities of such minorities and for diversity and plural identities to be protected and respected (United Nations, 2010:7).

  1. Equality and non-discrimination in the socioeconomic sphere

UNDM (1992) provides that persons belonging to minorities may exercise their rights individually as well as in a community with other members of their group without any discrimination. Non-discrimination and equality before the law are the basic principles guiding human rights. Discrimination can take many forms – formal and substantive discrimination; direct and indirect forms of differential treatment; de-facto and de-jure; and discrimination in the private and public spheres (United Nations, 1992:11). For minorities to enjoy non-discrimination there should be formal freedoms and equality (such as equal access to social services and employment in the public and private sectors) and programmes for empowerment of those who in the past have been the subject of discrimination or who suffer persistent discrimination. This might call for differential treatment of such groups such as through ‘affirmative action’. The International Convention on the Elimination of All Forms of Racial Discrimination allows for ‘special measures’ as does the Convention on the Elimination of All Forms of Discrimination against Women (‘temporary special measures’) and the Human Rights Committee that enjoins states to take affirmative actions to diminish or eliminate conditions that are discriminatory (United Nations, 1992:10).

  1. Effective and meaningful participation

UNDM (1992) affirms that persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life. Herein, the right to participate in ‘public life’ includes, among other rights, those relating to elections and to being elected, the holding of public office and other political and administrative domains. Also the right to participate effectively in decisions on the national, and where appropriate regional level, concerning the minority to which they belong or the region in which they live. This right, according to UNDM is ‘in fact essential to preserving minorities’ identity and combat social exclusion’ (United Nations, 1992:12).

These provisions imply that mechanisms are required to ensure that the diversity of society with regard to minority groups is reflected in public institutions such as national parliaments, the civil service sector, including the police and the judiciary and that persons belonging to minorities are adequately represented, consulted and have a voice in decisions which affect them or the territories and regions in which they live.

Participation must be meaningful and not merely symbolic and recognize, for instance, that minorities are commonly under-represented and that their concerns may not be adequately addressed. The participation of women belonging to minorities is of particular concern. What is needed is not just their formal representation in governing institutions but effective participation in decision making so as to promote among minority communities the ownership of decisions.

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