SELECTED CONCLUSIONS AND RECOMMENDATIONS ON MINORITY RIGHTS FROM UN TREATY BODIES

Protection and recognition of existence:

The Human Rights Committee has often expressed concerns that States deny the existence of minorities in their territory (e.g. in 2000 in relation to Kuwait) or ignore protection of minorities under the pretext that minorities are integrated (e.g. in 2004 in relation to the Dominican Republic), while CESCR has also expressed concerns about lack of recognition of minorities in some countries (e.g. in 2001 in relation to France):

The Committee cannot accept the statement of the Delegation that there are no minorities in Kuwait. Given the wide diversity of persons in the State’s territory and subject to its jurisdiction, it is clear that, in fact, there are persons in Kuwait who belong to ethnic, religious and linguistic minorities whose rights under art 27 ICCPR should be ensured and protected. (CCPR/CO/69/KWT, paragraph 14)

The Committee expresses concern over the lack of information on the protection of the rights of ethnic, religious and linguistic minorities in the Dominican Republic. The delegation’s explanation that minorities are so integrated into the country’s culture that they cannot be considered as such is not sufficient. (CCPR/CO/71/DOM, paragraph 20)

The Committee expresses its concern about the lack of recognition of minorities in France. While the French tradition emphasises the unity of the State and the equality of all French citizens, and while there is a commitment on the part of the State party to respect and protect equal rights for all, the Committee is of the opinion that the fact that all individuals are guaranteed equal rights in the State party and that they are all equal before the law does not mean that minorities do not have the right to exist and to be protected as such in the State party. The Committee emphasises that equality before the law is not always adequate to ensure the equal enjoyment of human rights, and in particular economic, social and cultural rights, by certain minority groups in a country. (E/C.12/1/ADD.72, paragraph 15).

The Human Rights Committee also identifies gaps in State reporting and requests information about minority communities who have been neglected by the State (e.g. in relation to the Romani community in Brazil in 2005):

The Committee is concerned about the lack of information on the Roma community and allegations that this community suffers discrimination, in particular with regard to equal access to health services, social assistance, education and employment (arts. 2, 26 and 27). The State party should provide information on the situation of the Roma community and the measures taken to ensure their practical enjoyment of rights under the Covenant. (CCPR/C/BRA/CO/2, paragraph 20).

Education Rights:

CRC and CESCR have often recommended educational measures aimed at a greater integration of minorities in various States (e.g. in 2003 in relation to the Libyan Arab Jamahiriya and in 2001 in relation to Japan):

The Committee … is concerned that the aims of education outlined in article 29 of the Convention, including the development of and respect for human rights, tolerance, and equality of the sexes and religious and ethnic minorities, are not explicitly part of the curricula. The Committee recommends that [Libya] the State party: (a) Taking into account the Committee’s general comment No. 1 on the aims of education, include human rights education, including children’s rights, in the curricula of all primary and secondary schools, particularly with respect to the development of and respect for human rights, tolerance, and equality of the sexes and religious and ethnic minorities; religious leaders should be mobilized in this regard. (CRC/C/15/ADD.209, paragraphs 39 and 40)

The Committee expresses its concern about the fact that there are very limited possibilities for children of minorities to enjoy education in their own language and about their own culture in public schools [in Japan]. The Committee is also concerned about the fact that minority schools, such as Korean schools, are not officially recognized, even when they adhere to the national education curriculum, and therefore neither receive central government subsidies nor are able to provide qualification for university entrance examinations. …. The Committee strongly recommends that mother-tongue instruction be introduced in the official curricula of public schools enrolling a significant number of pupils belonging to linguistic minorities. The Committee further recommends that the State party officially recognize minority schools, in particular Korean schools, when they comply with the national education curriculum, and consequently make available to them subsidies and other financial assistance, and also recognize their school leaving certificates as university entrance examination qualifications. (E/C.12/1/ADD.67, paragraphs 32 and 60)

Right to Participation:

CERD has often called for measures to ensure appropriate representation of all ethnic communities in public services (e.g. in 2003 in relation to Fiji):

The Committee expresses concern about the under representation of Indo-Fijians and other ethnic minorities in the police, the army and other public services in general, and recommends that specific programmes be adopted to ensure appropriate representation of all ethnic communities in these services. The Committee requests that updated statistics on poverty, unemployment and education, disaggregated between and within ethnic groups, be elaborated and included in the next periodic report. It also requests the State party to inform it of the results of all its affirmative action programmes, in particular those relating to poverty alleviation. (CERD/C/62/CO/3, paragraph 18)

Cultural rights:

CERD has also recommended that States fully respect various cultural rights of minorities
(e.g. in 2005 in relation to Turkmenistan):

The Committee is concerned about information that persons belonging to national and ethnic minorities [in Turkmenistan] are impeded from exercising their right to enjoy their own culture. In particular, it is concerned about the reported closure of minority cultural institutions and of numerous schools teaching in minority languages, in particular Uzbek, Russian, Kazakh and Armenian languages, and the reduced possibilities for the use of minority languages in the media (arts. 2 and 5). The Committee recommends that the State party fully respect the cultural rights of persons belonging to national and ethnic minorities. In particular, the State party should consider reopening Uzbek, Russian, Kazakh, Armenian and other minority language schools. The Committee suggests that the State party reconsider the requirement that students belonging to national or ethnic minorities wear Turkmen national dress, and to provide more information on this issue. The State party should ensure that members of national and ethnic minorities are not discriminated against in their access to the media and have the possibility of creating and using their own media in their own language. (CERD/C/TKM/CO/5, paragraph 15)

Right to Non-discrimination:

CERD has also addressed issues of discrimination in a variety of fields, including health and HIV (e.g. in 2006 in relation to South Africa):

While acknowledging the State party’s programmes for the prevention and treatment of HIV/AIDS [in South Africa], the Committee is concerned at the high rate of HIV/AIDS among persons belonging to the most vulnerable ethnic groups (art. 5 (e)).The Committee recommends that the State party strengthen its programmes in the field of health, with particular attention to minorities, bearing in mind their disadvantaged situation resulting from poverty and lack of access to education, and encourages the State party to take further measures to combat HIV/AIDS. (CERD/C/ZAF/CO/3, paragraph 20)

CEDAW has frequently recommended that States enact temporary special measures in order to eliminate discrimination against minority women in fields of political participation, education, employment and health (e.g. in 2005 in relation to Israel):

The Committee encourages the State party to take sustained measures, including temporary special measures in accordance with article 4, paragraph 1, of the Convention and the Committee’s general recommendation 25, and to establish concrete goals and timetables so as to accelerate the increase in the representation of women, including Israeli Arab women, in elected and appointed bodies in all areas of public life …[and] to reduce the drop-out rates of Israeli Arab girls and increase the number of Israeli Arab women at institutions of higher education. The Committee requests the State party to take effective measures to eliminate discrimination against Bedouin women and to enhance respect for their human rights through effective and proactive measures, including temporary special measures in accordance with article 4, paragraph 1, of the Convention and the Committee’s general recommendation 25, in the fields of education, employment and health. (A/60/38(SUPP),
paragraphs 252, 256 and 260).

CEDAW has also expressed concerns about discrimination against women within minority communities, resulting from non-application of individual human rights law (e.g. in 2007 in relation to Greece):

The Committee expresses concern about the non-application of the general law of Greece to the Muslim minority on matters of marriage and inheritance, as Muslim communities can choose to be governed by Sharia law. The Committee is concerned that this situation leads to discrimination against Muslim women, in contravention of the Greek Constitution and article 16 of the Convention. The Committee notes with concern the continuing phenomenon of early marriage and polygamy in the Muslim community notwithstanding the fact that they are in conflict with the Greek constitutional order and the Convention. The Committee urges the State party to increase efforts to raise the awareness of Muslim women of their rights and of remedies against violations, and to ensure that they benefit from the provisions of Greek law on marriage and inheritance. CEDAW/C/GRC/CO/6 (paragraph 33 and 34)

CAT has also frequently denounced racial violence and advocated stricter measures to deal with it (e.g. in 2007 in relation to Russia):

The reported rise in violent attacks because of the race, ethnicity or identity of the victim, including forced evictions in the Kaliningrad area [of Russia], and the alleged absence of effective investigations into such crimes: the State party should ensure that all officials are instructed that racist or discriminatory attitudes will not be permitted or tolerated and that any official who is complicit in such attacks will be prosecuted and suspended from his/her post pending resolution of the case or, if there is a danger of recurrence, transferred to a post which does not enable him/her to come into direct contact with potential victims. The State party should ensure prompt, impartial and effective investigations into all such acts of violence. (CAT/C/RUS/CO/4, paragraph 23).

Access to Justice:

CAT has recommended taking measures to prevent the high incidence of deaths in custody among members of minorities, including through increasing the representation of minorities in police forces (e.g. in relation to Guyana
in 2006):

While taking note of the efforts made by the State party in addressing the issue of the ethnic composition in the Guyana Police Force, the Committee is concerned at the reduced presence of persons of Indo-Guyanese origin in the police force, which would appear to be among the underlying causes of the high number of deaths in custody of persons of Indo Guyanese origin. The State party should continue its efforts to diversify the ethnic composition of the Guyana Police Force and take appropriate measures to prevent the incidence of deaths in custody. (CAT/C/GUY/CO/1, paragraph 9)

The CRC has drawn attention to the protection of minorities in relation to the process of post-war reconciliation (e.g. in 2005 in relation to Bosnia and Herzegovina):

The Committee recommends that the State party take effective measures to protect the full enjoyment of the rights of children belonging to ethnic minority groups [in Bosnia and Herzegovina] and undertake special measures to stimulate a process of reconciliation and confidence building, including wide-ranging educative and awareness-raising campaigns. (CRC/C/15/Add.260, paragraph 76).

Minority Rights Cases in Individual Complaints Mechanisms:

Four of the international human rights treaties (those dealing, respectively, with civil and political rights, racial discrimination, women’s rights, and torture) have individual complaint mechanisms through which members of minorities (among others) can seek protection of their rights. Complaints can be considered under these optional petitions procedures where the State has accepted the First Optional Protocol of ICCPR, Optional Protocol to CEDAW, Article 22 of CAT and Article 14 of ICERD.

The successful use of these mechanisms by persons belonging to minorities is illustrated through the following examples:⁹⁵

In Waldman v. Canada (communication No. 694/1996), the author (a father of two children enrolled in a private school) claimed that the legislation entitling solely the Roman Catholic minority in the Province of Ontario with the right to receive public funding for religious education, was in breach of articles 2, 18, 26 and 27 of ICCPR. The CCPR Committee held that the Covenant does not create any obligation upon the States parties to fund schools established on a religious basis. On the other hand, it noted that when a State party chooses to publicly fund religious schools, it should make the funding available without discrimination. According to the Committee, any discrimination should be justified on the basis of reasonable and objective criteria. The Committee held that the criteria presented by the Government to justify the preferential treatment of the Roman Catholic minority, such as the historical basis of such preferential measures and their constitutional legislative basis, could not be considered as reasonable and objective. As a result, Canada was found in breach of Mr. Waldman’s right to be afforded equal and effective protection against discrimination (art. 26, ICCPR).

Ignatane v. Latvia (communication No. 884/1999) concerned a Latvian citizen of Russian ethnic origin who was standing as a candidate in the local elections and was struck off her party’s list by a decision of the Riga Election Commission on the grounds that she did not have the required proficiency of the official language. The author argued that this decision violated articles 2 and 25 of ICCPR. She had been previously awarded a language-aptitude certificate stating that she had the highest level of proficiency in Latvian. In reaching its views, the CCPR Committee took into account the existence of the previous language certificate, which had been issued by a board of Latvian language specialists, and the fact that the Elections Commission had decided to strike Ms. Ignatane off the list on the decision of a single inspector. It stressed that: “The annulment of the author’s candidacy pursuant to a review that was not based on objective criteria and which the State party has not demonstrated to be procedurally correct is not compatible with the State party’s obligations under article 25 of the Covenant.” It also found that the author suffered “a specific injury in being prevented from standing for the local elections in the city of Riga in 1997, because of having been struck off the list of candidates on the basis of insufficient proficiency in the official language”. It thus concluded that Ms. Ignatane was a victim of a violation of article 25 in conjunction with article 2 of the Covenant. Nevertheless, the CCPR Committee did not pronounce on whether the preconditions of the electoral law itself were discriminatory. It rather looked at the particular circumstances of the case and the way that the law was implemented.

Koptova v. Slovakia (communication No. 13/1998) concerned two resolutions issued by the Municipal Council of Rokytovce and the Municipality of Nagov in June and July 1997, which forbade Roma citizens who used to live there from entering the villages or settling there. The author of the communication was also a Roma and the director of the Legal Defense Bureau for Ethnic Minorities of the Good Romany Fairy Kesaj Foundation in Kosice. She challenged one of the resolutions before the Constitutional Court. The author did not enter the villages while the resolutions were in force because she was scared that as a person of Roma ethnicity she would be threatened with violence. The resolutions were revoked in April 1999. The author argued that by maintaining the resolutions in force, the State party violated articles 2, paragraphs (a) and (c); 3; 4, paragraph (c); 5, paragraphs (d) and (i); and 6 of CERD. The Committee held that Ms. Koptova belonged to a group of the population directly targeted by the resolutions in questions and rejected the State party’s argument that the author could not be considered a “victim” within the meaning of article 14, paragraph 1, of CERD. On the merits of the communication, the Committee held that while the wording of the resolutions referred explicitly to Roma previously domiciled in the concerned municipalities, the context of their adoption indicated that other Roma would have been equally prohibited from settling there, and thus found a violation of article 5, paragraphs (d) and (i) of CERD (right to freedom of movement and residence). Furthermore, while the Committee noted that the contested resolutions were rescinded in April 1999, it recommended that Slovakia should take the necessary measures to ensure that practices restricting the freedom of movement and residence of Roma under its jurisdiction were fully and promptly eliminated.

In recent years, the CERD Committee has examined communications concerning claims of racial discrimination against persons of Roma ethnicity in areas such as housing, freedom of movement and residence, and access to public places.

Ms. L.R. et al. v. Slovakia (communication No. 31/2003) concerned a complaint of housing discrimination against Roma in the municipality of Dobsina. In 2002, following a petition by the Dobsina Chairman of the Real Slovak Party, the municipal council cancelled an earlier decision to construct low-cost housing for the Roma inhabitants of the town. The District Prosecutor and the Slovak Constitutional Court refused to examine the application of the Roma inhabitants requesting an investigation of the council’s actions. The Committee reiterated that the definition of racial discrimination in article 1 expressly extends to measures that are discriminatory in face and effect (i.e. indirect discrimination). The Committee found the State party in violation of its obligations under article 2, paragraph 1 (a) of CERD, which obliges States parties to engage in no act of racial discrimination and to ensure that all public authorities act in conformity with this obligation. The Committee also found that Slovakia failed in its obligation to guarantee the right of everyone to equality before the law in the enjoyment of the right to housing (article 5, paragraph (e) (iii)). Finally, it held that the failure of the Slovak courts to provide an effective remedy disclosed a violation of article 6 of CERD.

Several communications concerning the ill-treatment of members of ethnic minorities, such as the Roma, while in police custody have been examined by the CAT Committee. Persons belonging to minorities who face refusal of their refugee claim, expulsion to their country of origin and the risk of death, torture or ill-treatment upon return, have filed complaints under the Convention invoking article 3 of CAT. The CAT Committee also has examined communications concerning attacks against persons of Roma ethnic origin and their property.

For example, Hajrizi Dzemajl et al. v. Serbia and Montenegro (communication No. 161/2000) concerned attacks against the residents and the houses of a Roma settlement in the Danilovgrad village, and the subsequent demolition and destruction of the houses by a mob of non-Roma residents. While police authorities were present, they failed to act and did nothing to protect the Roma residents or their property. The Committee found that the burning and destruction of the Roma houses constituted acts of cruel, inhuman or degrading treatment or punishment. It also underlined that the nature of those acts was further aggravated by the fact that some of the complainants were still hidden in the settlement when the houses were burnt and destroyed and the fact that those acts were committed with a significant level of racial motivation. It held that the acts referred to by the complainants were committed with the acquiescence of public officials and constituted a violation of article 16, paragraph 1, of the Convention. It was also held that the investigation conducted by the authorities failed to satisfy the requirements of article 12 because, despite the participation of several hundred of non-Roma residents in the events and the presence of the police forces during the events, no person nor any member of the police forces had been tried by the domestic courts. The Committee held that the investigation conducted by the authorities did not satisfy the requirements of article 12. It also found that the absence of an investigation and the authorities’ failure to inform the complainants of the results of the investigation constituted a violation of article 13. Finally, it held that the failure of the State party to enable the complainants to obtain redress and to provide them with a fair and adequate compensation violated article 16.