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The document discusses the disadvantaged situation of minorities and the development of international law to protect their rights. It also examines the definitions and situations of minorities and indigenous peoples.
HUMAN RIGHTS
Rights of Minorities andIndigenous People
A Global Perspective
Srinivas Atreya Chatti
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519
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7th Semester9/21/2012
Introduction
Minorities are among the world’s most disadvantaged groups and are also often the victims
of armed conflicts and internal strife. The situation of refugees and internally displacedpersons from minority backgrounds, in particular women and children, is of specialconcern. Persons belonging to national or ethnic, religious and linguistic minorities are alsooften victims of multiple discrimination and they may lack access to, among other things,adequate housing, land and property, and even a nationality.Efforts by non-dominant groups to preserve their cultural, religious or ethnic differencesemerged with the creation of nation States in the eighteenth and nineteenth centuries. Therecognition and protection of minority rights under international law began with the
League of Nations through the adoption of several “minority treaties”. The promotion and
protection of the rights of minorities require particular attention to be paid to issues such
as the recognition of minorities’ existence; efforts to guaran
tee their rights to non-discrimination and equality; the promotion of multicultural and intercultural education,nationally and locally; the promotion of their participation in all aspects of public life; theinclusion of their concerns in development and poverty-reduction processes; disparities insocial indicators such as employment, health and housing; the situation of women and thespecial concerns of children belonging to minorities.When the United Nations was set up in 1945 to replace the League of Nations, it, too,gradually developed a number of norms, procedures and mechanisms concerned withminorities. In particular, the 1966 International Covenant on Civil and Political Rights andthe 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religiousand Linguistic Minorities (hereinafter: United Nations Minorities Declaration) recognizeand protect the rights of persons belonging to minorities. In practice, however, these rightsare far from being realized.
Minorities and Indigenous People: The need for a Definition
The difficulty in arriving at a widely acceptable definition lies in the variety of situations inwhich minorities live. Some live together in well-defined areas, separated from thedominant part of the population. Others are scattered throughout the country. Someminorities have a strong sense of collective identity and recorded history; others retainonly a fragmented notion of their common heritage.The term minority as used in the United Nations human rights system usually refers tonational or ethnic, religious and linguistic minorities, pursuant to the United NationsMinorities Declaration. All States have one or more minority groups within their nationalterritories, characterized by their own national, ethnic, linguistic or religious identity,which differs from that of the majority population. According to a definition offered in 1977by Francesco Capotorti, Special Rapporteur of the United Nations Sub-Commission onPrevention of Discrimination and Protection of Minorities, a minority is:A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members
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being nationals of the State
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possess ethnic, religious orlinguistic characteristics differing from those of the rest of the population and show, if onlyimplicitly, a sense of solidarity, directed towards preserving their culture, traditions,religion or language.While the nationality criterion included in the above definition has often been challenged,the requirement to be in a non-dominant position remains important. In most instances aminority group will be a numerical minority, but in others a numerical majority may alsofind itself in a minority-like or non-dominant position, such as Blacks under the apartheidregime in South Africa. In some situations, a group which constitutes a majority in a Stateas a whole may be in a non-dominant position within a particular region of the State inquestion. In addition, it has been argued that the use of subjective criteria, such as the willon the part of the members of the groups in question to preserve their own characteristicsand the wish of the individuals concerned to be considered part of that group, combinedwith certain specific objective requirements, such as those listed in the Capotorti definition,
should be taken into account. It is now commonly accepted that recognition of minoritystatus is not solely for the State to decide, but should be based on both objective andsubjective criteria. The question often arises as to whether, for example, persons withdisabilities, persons belonging to certain political groups or persons with a particularsexual orientation or identity (lesbian, gay, bisexual, transgender or intersexual persons)constitute minorities. While the UnitedNations Minorities Declaration is devoted to national, ethnic, religious and linguisticminorities, it is also important to combat the multiple instances of discrimination and toaddress situations where a person belonging to a national or ethnic, religious and linguisticminority is also discriminated against on other grounds such as gender, disability or sexualorientation. Similarly, it is important to keep in mind that, in many countries, minorities areoftenfound to be among the most marginalized groups in society and severely affected by,for example, pandemic diseases, such as HIV/AIDS, and in general have limited access tohealth services.Adopted by consensus in 1992, the United Nations Minorities Declaration in its article 1refers to minorities as based on national or ethnic, cultural, religious and linguistic identity,and provides that States should protect their existence. However, even now internationallyagreed definition as to which groups constitute minorities. It is often stressed that theexistence of a minority is a question of fact and that any definition must include bothobjective factors (such as the existence of a shared ethnicity, language or religion) andsubjective factors (including that individuals must identify themselves as members of aminority).Similarly to minorities, there is no universally accepted international definition of indigenous peoples. Guidance in this regard can be obtained, for instance, from the work of the Working Group on Indigenous Populations, the provisions of Convention No. 169 of theInternational Labour Organization (ILO) and the contents of the United Nations Declarationon the Rights of Indigenous Peoples. Various sources cite the following characteristics,either alone or in combination: indigenous peoples are descendants of the peoples whoinhabited the land or territory prior to colonization or the establishment of State borders;