Significance and scope of the four categories of minorities

The Special Rapporteur on minority issues submits the present report to the General Assembly pursuant to his mandate, as established in Commission on Human Rights resolution 2005/79 and extended most recently by the Human Rights Council in its resolution 43/8.

The Special Rapporteur provides a summary of his activities in 2019 and 2020 since his previous report to the General Assembly (A/74/160), then introduces a study on the significance and scope of the four categories of minorities (national or ethnic, religious and linguistic minorities) in international law. The Special Rapporteur intends to use the present study to provide much needed clarity in the understanding of and practice relating to the four categories of minorities for the purposes of his mandate and in the recognition and promotion of the human rights obligations of States.

As part of his mandate, the Special Rapporteur has engaged in a number of activities, with the aim of conducting thematic studies; conducting country visits; communicating with Governments and other actors on alleged violations of the rights of minorities; promoting good practices; and increasing awareness and understanding on the human rights of persons belonging to minorities, which underpin his mandate. Some of the focus areas addressed and activities carried out by the Special Rapporteur are highlighted below.

The Special Rapporteur identified four thematic priorities in his first statement to the General Assembly in October 2017. In 2018, he focused on the theme of statelessness as a minority issue, and he often continues to raise this issue in presentations and through his participation in activities around the world, as highlighted in the present report.

The Special Rapporteur also engaged in activities in 2019 and 2020 for his second thematic priority on education, language and the human rights of minorities, which is an issue of great significance for the identity of linguistic and other minorities.

In his 2020 and 2021 activities, the Special Rapporteur will address the third thematic priority of hate speech targeting minorities in social media. As in the case of statelessness, hate speech in social media tends to overwhelmingly target and have an impact on minorities and is therefore first and foremost a minority issue.

In his first report to the Human Rights Council in March 2018, the Special Rapporteur indicated the possibility of a regional approach to the Forum on Minority Issues, in order to make it more accessible to minorities in different parts of the world and better reflect regional concerns and contexts.¹ The first steps towards such an approach were undertaken in 2019, with the organization in May 2019 of a European regional forum at the European Parliament in Brussels, an Asia-Pacific regional forum in Bangkok in September 2019 and a regional forum on Africa and the Middle East and North Africa Region, held in Tunis in October 2019 on the theme of education, language and the human rights of minorities. Although initially planned to be held in four regions (Europe, Asia-Pacific, the Africa and Middle East Region and the Americas), the 2020 regional forums had to be postponed to the second half of the year because of the coronavirus disease (COVID-19) pandemic. It is hoped that it will be possible to hold two regional forums in the last quarter of 2020 on the theme of hate speech and incitement to hatred against persons belonging to minorities through social media, which will also be the focus of the thirteenth annual Forum on Minority Issues.

1. See A/HRC/37/66, para. 64. ↩

The Special Rapporteur undertook a country visit to Kyrgyzstan from 6 to 17 December 2019. The mission report will be presented to the Human Rights Council at its forty-sixth session, in March 2021.

Information on the twelfth session of the Forum on Minority Issues, held on 28 and 29 November 2019 on the theme “Education, Language and the Human Rights of Minorities”, can be found in the annual report of the Special Rapporteur to the Human Rights Council for 2020 (see A/HRC/43/47, paras. 71–77). The Special Rapporteur wishes to highlight the very high levels of interest and participation in 2019: almost 1,000 participants were registered, of whom more than 600 were registered to participate in the Forum on Minority Issues and more than 300 participants for the regional forums. For the first time, international sign language interpretation was provided during the annual Forum in Geneva in recognition of users of sign languages as members of a linguistic minority. The thirteenth session of the Forum will focus on hate speech, social media and minorities and will be held in Geneva on 19 and 20 November 2020.

In 2019, a total of 51 communications were sent to Governments and other stakeholders, all jointly with other special procedure mandate holders. Of those, 13 were urgent appeals, 32 were letters of allegation and 6 were letters commenting on and raising concerns over specific legislation, policies and practices.

The largest number of communications (29) dealt with cases pertaining to ethnic minorities, while 11 communications concerned religious minorities, 2 communications addressed issues pertaining to the rights of linguistic minorities and 9 related to more than one category of minorities or to minorities in general. They addressed human rights violations, such as persecution and violence against persons belonging to minorities, including human rights defenders, as well as arbitrary detention and torture, restrictions on and limitations to religious freedoms and the discriminatory application of counter-terrorism laws and citizenship laws, excessive use of force by law enforcement, forced evictions, discrimination in the area of education and the impact of development projects and of business activities on the human rights of minorities.²

2. For details of all communications sent and information received under the mandate, see https://spcommreports.ohchr.org/Tmsearch/TMDocuments. ↩

The Special Rapporteur considers awareness-raising activities as an essential component of his mandate, particularly in the light of the need to highlight and emphasize the increasing marginalization of minorities around the world, their greater vulnerability during health and other crisis, such as the COVID-19 pandemic, the growing targeting of minorities by hate speech on social and other media and in hate crimes around the world, the central role of the human rights of minorities in addressing their exclusion in order to prevent ethnic conflicts, and the lack of visibility of or reference to minority issues in many forums, even within United Nations institutions.³

3. See www.ohchr.org/Documents/Issues/Minorities/SR/Awareness_raising_and_other_activities _2019_2020.docx. ↩

The Special Rapporteur remains deeply concerned about developments related to his mandate’s thematic priorities. He continues to receive disturbing reports that the campaign by the Office of the United Nations High Commissioner for Refugees (UNHCR) to eradicate statelessness by 2024, the “#IBelong” campaign, is threatened as procedures are continuing in Assam, India, as well as in other states in the country, which may result in many millions being deemed able to demonstrate they are citizens, and where new union legislation excluding members of the country’s Muslim minority from accelerated pathways to citizenship may lead them to be deemed “foreigners” and therefore non-citizens, which may result in their becoming stateless.

Following the Special Rapporteur’s thematic priority in 2019 on education, language and the human rights of minorities, he is increasingly being made aware of States that are appearing to discount the rights of linguistic minorities in matters involving language, the central component of their identity, and even increasingly dismissing or denting the linguistic rights of minorities in education. The Special Rapporteur is of the view that such developments will need to be addressed in targeted and accessible guidelines, based on good practices in many States, to provide better guidance on how to understand and implement effectively the human rights of persons belonging to minorities in this critical area.

In the present study, the Special Rapporteur builds upon his 2019 study on the need for a working definition of a minority (A/74/160) and considers the significance and scope of the four categories of national or ethnic, religious and linguistic minorities to be found in various instruments of the United Nations, in order:
(a) To clarify the significance of the four categories of minorities acknowledged in the United Nations system in order to avoid controversies and contradictions, both in and outside the United Nations, which may undermine efforts to achieve the full and effective realization of the human rights of minorities;
(b) To provide a working definition of national or ethnic, religious and linguistic minorities in line with the Special Rapporteur’s mandate provided by the Human Rights Council.

The Special Rapporteur must as part of his mandate raise awareness and work for the full and effective realization of the rights of persons belonging to four categories of minorities: national or ethnic, religious and linguistic, as described in the mandate provided by the Human Rights Council. A number of United Nations instruments are also quite clear and specific that the concept of a minority is circumscribed to up to four categories of beneficiaries. While there have been numerous discussions on what constitutes a minority, the significance of the four categories of beneficiaries in substantive terms has until now still not been systematically or comprehensively addressed. The significance of the distinct categories, perhaps surprisingly, is not elucidated, nor even alluded to, in United Nations guidance document on minorities.⁴

4. Office of the United Nations High Commissioner for Human Rights (OHCHR), “Minority Rights: International Standards and Guidance for Implementation” (New York and Geneva, 2010). ↩

This lacuna in identifying objectively and consistently who is a minority in United Nations instruments is a recurring stumbling block to the full and effective realization of the human rights of minorities. Different States Members of the United Nations at times have had differing views on the groups of persons constituting a minority. At times, the not-so-subtle suggestion has even been made that minorities “don’t really exist”. Almost always, the absence of clarity as to who are the beneficiaries under the categories of national or ethnic, religious and linguistic has been used to try to restrict those who can claim human rights protection as members of a minority.

As the study indicates, that uncertainty has also on occasion led to the supposition that determining the beneficiaries of human rights protection for minorities is left entirely to the discretion of national Governments. Some Member States may also hesitate to engage on matters relating to minorities since they do not have definitions of who are national or ethnic, religious and linguistic minorities and what that entails.

The responses to the Special Rapporteur’s call for submissions have highlighted differing and even contradictory views: in their responses, some States have insisted that they have no minorities because their constitutions guarantee the equality of all citizens, so that there is no discrimination towards national or ethnic, religious and linguistic groups.⁵ For these, it is implied that minorities in the territory of a State must, somehow, be non-dominant in the jurisdiction in which they find themselves. A few other States, however, insist on the opposite: that any “vulnerable” group, not only national or ethnic, religious and linguistic groups, could constitute a minority, and that there was therefore no need to distinguish between these four categories of beneficiaries, despite their enumeration in United Nations documents.⁶

5. See CCPR/C/21/Rev.1/Add.5, para. 4. ↩
6. The sample questionnaire for submissions and list of contributors in Annex II is available at www.ohchr.org/Documents/Issues/Minorities/SR/Sample_questionnaire_and_list_of_contributors.docx. ↩

As a first step in addressing some of these matters, the Special Rapporteur, in his 2019 report to the General Assembly,⁷ provided a working definition of the concept of minority, in line with article 27 of the International Covenant on Civil and Political Rights, which indicates that an ethnic, religious or linguistic minority is any group of persons that constitutes less than half of the population in the entire territory of a State, whose members share common characteristics of culture, religion or language, or a combination of any of these and without any requirement of citizenship, residence, official recognition or any other status.

7. See A/74/160, para. 59. ↩

In essence, a minority is a group that is not in the majority, at the national level, in terms of culture, religion or language.

That concept recognizes as a matter of objective fact the existence of ethnic, religious or linguistic minorities and is not premised on any legal recognition by States or the possession of a special status under domestic law. The three adjectives used to delineate who are beneficiaries as members of a minority under article 27 of the Covenant do not however comprehensively cover the categories of minorities at the United Nations. Different instruments have slight variations: the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities adds the term “national minorities” to the three in article 27 of the Covenant, whereas in the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention against Discrimination in Education, the three terms are replaced entirely with the term of “national minority”.⁸ A number of European treaties also privilege the term national minorities and do not refer separately to ethnic, religious or linguistic minorities,⁹ whereas the Arab Charter on Human Rights adopts an approach closer to United Nations instruments, although limited to ethnic or religious minorities.¹⁰

8. Article 17(d) and 30 of the Convention on the Rights of the Child and article 5(c) of the Convention against Discrimination in Education refer specifically to minorities. While the latter only mentions national minorities, the former refers to “ethnic, religious or linguistic minorities or persons of indigenous origin”. ↩
9. In particular the Council of Europe Framework Convention for the Protection of National Minorities and the European Charter on Regional and Minority languages. ↩
10. Article 37 of the Arab Charter on Human Rights stipulates that minorities “shall not be deprived of their right to enjoy their own culture or follow their own religious teachings”. ↩

Those inconsistencies, controversies and contradictions and the ambiguity around the categories of beneficiaries have not provided “flexibility” but rather have opened the door to restrictive interpretations, allowing for the exclusion of “unpopular” minorities. The end result has occasionally contributed to ambivalence, unease or uncertainty in the responses or support of Member States to the mandate and activities on minority issues. Instead of providing an inclusive, flexible and open approach, the absence of a common understanding as to what constitutes a minority has led to barriers and even resistance as to who can lay claims to minority protection. The only way to rectify those barriers is to provide greater clarity and certainty, as indicated by the Special Rapporteur in his 2017 statement to the General Assembly.

In preparation for the present study, the Special Rapporteur invited United Nations’ mechanisms and other stakeholders to provide submissions. Many submissions contained valuable information on national practices in relation to the protection of minorities. Others described issues and concerns where the human rights of specific minorities were not being fully implemented. However, only a small number commented directly on the significance of the four specific categories of beneficiaries. Nevertheless, those that did offer comments provided insights and highlighted issues that were helpful in better understanding and outlining the importance of a clearer description of the four categories.

The large number of responses from intergovernmental, minority, civil society and other organizations have confirmed the timeliness and relevance of trying to offer greater clarity and certainty as to the significance and scope of the four categories of minorities (national or ethnic, religious and linguistic minorities) for the purposes of the mandate of the Special Rapporteur.

Minority in its most ordinary meaning refers to the smaller part or to a number forming less than half of the whole, or a group distinguished from a more numerous majority. Put in even simpler terms, a minority is not the majority – based on a distinguishing factor within a totality. In the United Nations system, the distinction has been narrowed down to four specific categories of beneficiaries within a State’s territory: national or ethnic, religious and linguistic. These are the particular groupings at the global level that are deemed to require specific attention and protection as minorities.

The above description obviously omits the complex processes, negotiations and compromises that have always been fundamental to the eventual emergence of commitments characteristic of international instruments. There is also of course the reality that the categories may be viewed in different ways in each State or even within one State by different groups, particularly those belonging to the distinct national or ethnic, religious and linguistic communities themselves. Certain political and legal traditions may have long-standing approaches to the concept of minorities, or its rejection, or its limitation to “ethnic” or “national” groups; others tend to refer more broadly to nationalities since it can encompass majorities as well as minorities; others may consider minorities as an offensive description in itself; and still others may consider all populations to be indigenous, thus rendering the concept of minorities inappropriate.

In addition, at the international and regional levels, treaty provisions may have different wording and intents, and omissions, uncertainties or ambiguities are therefore not infrequent between different treaties that deal with similar issues.

This is also true in relation to “minority rights” since the end of the First World War, which have had a considerable and continuing impact on the modern formulation of the human rights of minorities at the United Nations, in particular the bifurcation between “national minorities” or “ethnic, religious and linguistic minorities”. It also explains in part why most European States continue to refer mainly to “national minorities”, whereas the United Nations system has since the Second World War tended to privilege the concept of “ethnic, religious and linguistic minorities”.¹¹

11. A detailed historical outline, contained in Annex III, is available at: www.ohchr.org/Documents/Issues/Minorities/SR/Historical_outline.docx. ↩

Significance and scope of beneficiaries in United Nations instruments

The contextualization of the emergence of four categories of minority beneficiaries in United Nations treaties and declarations, in particular those of UNESCO, over decades presents a diversity of views and approaches to the concept of minorities. Most submissions to the Special Rapporteur from European States, for example, seemed to focus on “national minorities”, at times equating the category with “ethnic” and, less frequently, including linguistic minorities.¹² Many of those submissions confirmed that religious minorities were generally not considered to fall within the category of “national minorities”. There is also a tendency in European circles to consider “minorities” as automatically meaning “national minorities”, explaining why treaties and other instruments of the Council of Europe and the Organization for Security and Cooperation in Europe refer to “national minorities” and not “ethnic, religious and linguistic minorities”.¹³ There was a greater range of views from submissions outside of Europe.

12. There is a continuing debate, mainly in Europe, as to whether recent more migrants can constitute national minorities, or whether European treaties, such as the Framework Convention for National Minorities only extend to “traditional” national minorities. On the one hand, the Advisory Committee of the Framework Convention has suggested an inclusive approach, and that, in the absence of a definition, the Parties must examine the personal scope of application to be given to the Framework Convention within their country. On the other hand, the European Charter for Regional or Minority Languages defines minority languages as being “traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population”. In addition, most States parties to the Framework Convention either made distinctions between “traditional” national minorities and “recent migrants” in declarations when ratifying the Framework Convention, in their own definitions, or list those they considered “national minorities”, while some indicate that, in order to be “traditional” enough, persons belonging to a minority must have been living within their territories for at least 100 years. Only a few suggest migrants can be national minorities under this treaty. ↩
13. See E/CN.4/Sub.2/AC.5/2001/2, para. 8. ↩

Regardless of the absence of a consensus on all the details and nuances between the categories of beneficiaries, the four distinct categories are now enshrined in United Nations treaties and instruments and create distinct legal human rights obligations. In addition, many submissions supported the need for clarification in order to avoid a disjointed approach to protecting human rights and to ensure consistent application of human rights within the United Nations system, and to avoid any denial of the existence of minorities.

Three preliminary and overarching issues should be addressed before proceeding with a description of the scope and significance of each of the four categories: the overlapping and non-exclusive identities, the concept of free self-identification and the absence of official recognition or particular status, which the Special Rapporteur referred to specifically in paragraph 53 of his 2019 report to the General Assembly:
An ethnic, religious or linguistic minority is any group of persons which constitutes less than half of the population in the entire territory of a State whose members share common characteristics of culture, religion or language, or a combination of any of these. A person can freely belong to an ethnic, religious or linguistic minority without any requirement of citizenship, residence, official recognition or any other status.

The first issue is that none of the categories is necessarily exclusive. It should be obvious that individuals can at the same time belong to a linguistic, religious and ethnic minority – and even “belong to” more than one within the same category. A Canadian from a mixed Hungarian-Polish family brought up in a French-speaking minority community would consider herself or himself to belong to not one but three linguistic minorities, French, Hungarian and Polish. A Kurdish-speaking humanist born in Iraq but living in Australia might also consider herself or himself as being simultaneously Kurdish and Muslim in cultural and linguistic terms, as well as a humanist, Kurdish-speaker and a Sunni culturally. An Indian Dalit convert to Buddhism working in Ethiopia would simultaneously encapsulate more than one cultural, linguistic and religious minority identities. Or an Afrodescendant, Spanish-speaking Peruvian person can be a member of the linguistic majority and at the same time a member of an ethnic minority, and of a religious minority, if she or he happens to be Baha’i.

None of the above examples are exceptional: they are the reality of the complexities of free choice and human diversity. And none of the complexities is insurmountable from a human rights point of view: the Canadian could raise a number of human rights arguments if she or he was prevented from using Polish at home; the Kurdish Australian could also validly object to barriers preventing her or him from participating in festivities relating to Eid al-Fitr as part of her or his culture if not her or his beliefs as a humanist; and the Indian Dalit or Afrodescendant Peruvian could both face situations involving racial or religious discrimination.

Nothing in the formulation of the categories of national or ethnic, religious and linguistic minorities suggest that individuals belong to a minority can “only” be characterized as members of an ethnic or linguistic minority, but not both. The Rohingya in Myanmar, for example, are not “only” Muslims (some may be atheists or may have converted to, or been for generations adepts of, Christianity or Buddhism) – they also have a distinct language and culture that means they (or at least most of them) can at the same time be members of an ethnic, religious and linguistic minority. The same could be said for Hutterites in Paraguay, Russians in Latvia and Copts in Egypt.

The second issue refers to matters of self-identity, where individuals can freely choose to belong to an ethnic, religious or linguistic minority. In addition to an individual belonging at the same time to more than one ethnic, linguistic or even religious group, a person may also choose to change or set aside one or more forms of identification. Individuals may, for example, convert to a different faith or system of beliefs or join or leave a particular linguistic or cultural community. This is not necessarily a “one-way street” from minorities to majorities: individuals who identify with a majority culture, religion or language can also choose to belong to a minority culture, religion or linguistic community for a variety of reasons, such as through greater identification with or preference for the minority identity, through marriage or family connections, or because it is the community where they live and often associate with, etc.

Other dimensions to the issue can include formal or State-supported or permitted obstacles to the free choice of persons to belong to an ethnic, religious or linguistic minority. Individuals may be denied the right to “freely belong” to a minority in certain contexts, such as where public authorities:
(a) Claim that a minority culture, religion or language “does not exist”;
(b) Prohibit membership of a minority culture, religion or language (as when conversions are prohibited);
(c) Deny official recognition or status to a minority culture, religion or language group or organization, thus preventing direct or indirect membership;
(d) Assert that individuals “do not sufficiently belong” to a minority, or even where a minority community itself rejects an individual’s subjective statement of belonging to that minority.

A more detailed description of the distinct barriers to an individual’s ability to freely choose to belong to a minority are described in the sections below on specific categories of minorities. Some of the barriers were mentioned in the submissions in reference to religious minorities and, less often, to linguistic, ethnic and national minorities.

The last barrier to free self-identification touches upon the broader issue of whether there is an objective dimension to an individual’s belonging to a particular minority. While some observers simply point out that individuals are “free to choose”, there has been little exploration of what that actually involves, that is, whether it is a purely subjective matter (“I belong to a minority because I say I belong”) or whether there needs to be an objective dimension, such as a demonstrable connection between as individual’s subjective position and the community in question. In their wording, the four United Nations instruments with specific provisions on minorities do not go much beyond the simple affirmation that the individuals being considered need to be “persons who belong” to minorities.

The dimensions to this specific point include what the individual asserts, the conduct of State authorities and how the minority community itself views subjective claims by individuals of belonging to a minority. For example, this can obviously occur in the context of a religious minority, where an individual can be excluded by way of a formal decision to deny an individual membership of the group, or when a person seeks certain benefits or advantages that might be connected with association with an indigenous minority. There are of course many complexities and nuances, some of which can be summarized as follows:
(a) Individuals are free to claim to be, or not to be, a member of a minority (the “subjective principle”);
(b) Individuals must “belong” in order not to be denied the right, along with the other members of the group, to enjoy their own culture, to profess and practise their own religion or to use their own language. An individual may consider that he or she “belongs”, but it does not follow this is objectively accurate or that members of the ethnic, religious or linguistic community must accept such a claim from individuals who may or may not have any connection with the minority;
(c) Unless there are matters of civil rights involving the person who claims to belong of a minority, such as contract matters, property issues, etc., it is not for the authorities to question the subjective principle concerning membership of an ethnic, religious or linguistic minority. The subjective claim of an individual to belong to a minority is not to be verifiable or contested;
(d) In the case of objections from the minority group itself that an individual does not belong, it must be demonstrated there is a sufficient “connection” with other members of the community. Objections by the authorities, or indeed members of a majority, that a person does not belong to a national or ethnic, religious and linguistic minority cannot trump the free choice of individuals to belong when this association is acknowledged by other members of the minority or objectively demonstrable. It is not merely a subjective component, but one that is more objective in its demonstration.

Support for the view that there is an objective as well as a subjective dimension in cases where individuals may not belong to a minority appeared fairly often in State submissions to the Special Rapporteur and in examples of policies to protect the human rights of minorities. There have been suggestions that, in the case of favourable State policies, individuals must objectively demonstrate they are members of minority communities in order to be able to benefit from special programmes targeting, for example, national minorities or indigenous peoples. Some submissions limit themselves to indicating that individuals should be free to belong or change their religion or system of beliefs as a simple matter of individual choice.

Fortunately, in addition to a fair level of agreement – if not unanimity – among State submissions on this specific dimension, there is a fair amount of international jurisprudence on this matter,¹⁴ including from the Human Rights Committee. That guidance tends to confirm, consistently with most national practices, that there can be an objective dimension needed in cases where the subjective assertion of belonging to a minority is not confirmed by other members of the community. In Lovelace v. Canada (CCPR/C/13/D/24/1977), the Human Rights Committee faced a challenge of legislation that stripped indigenous women of their status as “Indians” after marriage to a non-indigenous man. The legislation, and the concurring view of the local indigenous council, was that Ms. Lovelace could not purchase a home on a reserve because the council prioritized housing for members of the Malecite indigenous minority. For the Human Rights Committee, however, even if some members of the Malecite indigenous minority believed it was necessary to deny Ms. Lovelace “Indian status” and the ensuing privileges, including the right to live in her community, there was no rejection of the objectively demonstrable fact that she still “belonged”, in the sense of being ethnically and culturally a Malecite and could not be “excluded” from that demonstrable factual connection through legislation. Similarly, the conclusions of the Human Rights Committee can be noted in Kitok v. Sweden (CCPR/C/33/D/197/1985), who claimed to be a member of an indigenous minority. On the specific issue of determining whether Mr. Kitok was a person who “belonged”, the Human Rights Committee expressed concerns that the legislation contained criteria by which a person who is ethnically a Sami could be held not to be a Sami for the purposes of the legislation, and essentially pointed out that a State could not ignore objective ethnic criteria in determining membership of a minority (including links with the Sami community and always living on Sami lands) and distinguishing this issue from distinct matters of what activities could be carried out by individuals who belong to a minority.

14. See Council of Europe, Thematic Commentary No. 3: The language rights of persons belonging to national minorities under the Framework Convention, adopted on 24 May 2012, ACFC/44 DOC(2012)001 rev, para. 17: “Affiliation with a minority group is a matter of personal choice, which must, however, be based on some objective criteria relevant to the person’s identity”. ↩

The third and final overarching issue involves whether a person can be said to belong to a national, ethnic, religious or linguistic minority that has no official recognition or status. In other words, can a person belong, for example, to a linguistic or religious minority that does not officially “exist” in a State? In a number of countries, certain religious minority groups are not acknowledged as distinct from the majority, or are even considered as apostates, and therefore are refused legal status that would allow them to operate openly or to conduct some of their religious ceremonies or activities. This can be the case for groups such as Baha’is or Ahmadis in some countries, or for atheists or humanists in others. Other States may not acknowledge that particular languages are distinct from the majority language: Kurdish and Tamazight, for example, were for long periods of time considered relatives or dialects of Turkish or Arabic. Others, such as Corsican, Breton and Basque, were considered “patois” or bastardized forms of French, Italian or Spanish. One could also point to the fact that, until recently, authorities had long been ambivalent in the treatment of sign languages as “real” languages. The denial of any official recognition or status of a culture, religion or language cannot be such that it impairs a person’s ability to belong. According to the Human Rights Committee, if a distinct culture, religion or language is objectively demonstrable, then a person can assert a claim to “belong” to it, even in the absence of official sanction.¹⁵

15. See CCPR/C/21/Rev.1/Add.5, para. 5.2: “The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria.” ↩

The above contextualization and general observations provide a framework to better address the specific scope and significance of the four categories of beneficiaries that the United Nations instruments recognize. Each has its own challenges and requires conceptual clarifications in order to address occasional uncertainties or confusion in order to ensure the protection of all of the world’s national or ethnic, religious and linguistic minorities.

A linguistic group is a minority if the language it speaks is not that of the majority in a State. It does not need to be a traditional language, have a written form, a threshold number of speakers or to be officially recognized or granted some form of status or acknowledgment. It is an objective determination of whether or not, in a State, a linguistic minority “exists”.

That simple description still raises a number of issues. In some States, only a “traditional” language can be considered a minority language. Alternatively, it might be that an “official language” cannot also be at the same time a “minority language”.¹⁶

16. See for example, Explanatory Report to the European Charter for Regional or Minority Languages, available from https://rm.coe.int/16800cb5e5, which explains, in its para. 31, that the definition in article 1 of the Charter excludes non-traditional or non-territorial languages and languages used by non-citizens, and leaves it to the discretion of State authorities to determine what constitutes a separate language, a restrictive criterion that in practice results in the exclusion of a not insignificant number of languages from the purview of the treaty. ↩

Another issue is connected to the very concept of language itself and what differentiates a language from a variety or dialect of the same language (and the fascinating aphorism that “a language is a dialect with an army and a navy”, usually attributed to linguist and Yiddishist Max Weinreich), as well as to distinctions between languages in their oral form and in writing. To that can be added the issue of whether persons using sign languages can be considered to be persons who belong to a linguistic minority. Finally, there are situations where, despite being near identical in written form, languages may be mutually unintelligible when spoken, as in the cases such as Shanghainese, Cantonese and Mandarin (where the first two are often described as “dialects” of the third, known officially as “putonghua”, or “the common language”, in China).

The wording of provisions in United Nations instruments, such as article 27 of the International Covenant on Civil and Political Rights, and their interpretation indicates an inclusive approach that would protect the human rights of all linguistic minorities, regardless of the legal status of individuals (whether they are citizens or not), the status of the languages (official, recognized, acknowledged or not), the length of association in a State (whether traditional or not), or the number of speakers (no minimal number of speakers required). This is once again based on a factual, objective assessment of whether or not a linguistic minority exists in a State. None of the relevant provisions in United Nations instruments or their interpretation concerns local variants or different dialects of the same language. The admittedly often disputed question as to when variants or different forms of expression constitute separate languages must be considered, as often repeated, from an objective point of view and based on the prevailing views of linguists in the matter.

Numerous submissions received by the Special Rapporteur support an inclusive approach. In relation to sign languages, for example, it was pointed out that legislation in nearly 50 States in 2020 acknowledge sign languages as languages, including as official or national languages. The prevailing view is clearly that sign language users can constitute a linguistic minority, regardless of the official status of the languages, their “traditionality” in a State or whether or not persons who belong to that minority are citizens. This is also the view expressed by the Special Rapporteur himself at the 2017 Forum on Minority Issues,¹⁷ and supported in a number of resolutions by that and other regional forums on minorities.

17. See A/HRC/37/66, para. 68. ↩

While not being exhaustive, the contextualization of the provisions of United Nations instruments dealing with the rights of minorities and their interpretation in the past few decades suggest that the significance and scope of the category of linguistic minorities can be determined as follows:
(a) An official language in a State can at the same time still objectively constitute a minority language where it is not a majority language, as in the case of the Irish language in Ireland;
(b) Sign languages are objectively languages, as acknowledged by many States, including Austria, New Zealand and South Africa, and can therefore be the languages of linguistic minorities;
(c) The refusal of authorities to acknowledge the existence of a language or its categorization as only a dialect, patois or creole and therefore not a “real language” is not determinative. Based on prevailing objective linguistic expertise, speakers of Haitian Creole (kreyòl ayisyen), for example, can objectively belong to a linguistic minority since Haitian Creole is a fully fledged language;
(d) Cantonese speakers in China, Malaysia and Singapore can objectively be considered to be members of linguistic minorities, since their language is orally distinct, even unintelligible, from official Chinese (Mandarin), regardless of their official description or status as a “dialect”;
(e) IsiZulu is a minority language, even though it is the largest language group in South Africa (spoken by about 25 per cent of the entire population). A migrant worker from Zimbabwe, even one who has only been a resident of South Africa for a short period of residence and lacks citizenship, can belong to the isiZulu linguistic minority if she or he is an isiZulu speaker;
(f) Speakers of languages such as Sami in Sweden, Tamasheq in Mali and Inuktitut in Canada can be numerically linguistic minorities without affecting their position as also indigenous peoples.

Religious or belief minorities

United Nations instruments tend to refer to “religious minorities”. This is in a sense misleading, as a significant number of submissions pointed out, since the concept of “religion” is actually used as a convenient shorthand for a much wider category, that of religion or belief. The Human Rights Committee, other independent United Nations experts, such as the Special Rapporteur on freedom of religion or belief, and many others accept that “religion” cannot be interpreted in a narrow sense:
Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms “belief” and “religion” are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.¹⁸

18. See CCPR/C/21/Rev.1/Add.4, para. 2. ↩

There is widespread agreement in submissions that “religion” must be understood to include “other beliefs”. This is also the view in United Nations instruments and institutions, including at the Forum on Minority Issues, which referred to the category of “religious minorities” as being inclusive of a broad range of “religious or belief communities”, including “non-believers, atheists, or agnostics”.¹⁹

19. See A/HRC/25/66, para. 8. ↩

The Special Rapporteur agrees that, although the term “religious minority” is theoretically inclusive of those of no religious belief, discussions on religious minorities frequently result in non-religious or non-theistic minorities being overlooked. Persons who are non-believers in a religious faith, such as agnostics, humanists and atheists, would not necessarily identify themselves as members of a “religious” minority. A more inclusive and accurate wording, which would fully encapsulate the scope of this category, would be to refer to “religious or belief minorities”. The Special Rapporteur has concluded that, henceforth, activities and documents under the mandate and United Nations agencies should, whenever possible, use the expression “religious or belief minorities” to more properly encapsulate the scope of minorities this category refers to.

There was also near unanimity in the submissions that the existence of a religious or belief minority was an objective determination not premised on any form of official recognition or status and that, as the Special Rapporteur submits in his 2019 report to the General Assembly, a person can freely belong to a religious minority without any requirement of citizenship, residence, official recognition or any other status.²⁰ 20 It was however pointed out that, for many religious or belief minorities, State 18 See CCPR/C/21/Rev.1/Add.4, para. 2. 19 See A/HRC/25/66, para. 8. 20 See A/74/160, para. 53. non-recognition can be used as a justification for discriminatory and other human rights abuses, such as when freedom of religion is only extended to persons belonging to constitutionally recognized religions and not all religious or belief minorities.

20. See A/74/160, para. 53. ↩

The self-identification of persons may be involved in matters of forced conversion or denial of membership, whether individuals are free to belong or not to belong to a religious or belief minority, and indeed of non-exclusive individual self-identification, as in the case of language. A French agnostic may still consider himself or herself Jewish in a cultural sense and for some purposes, while a Singaporean may easily identify as both a Buddhist and Taoist.

A particular issue concerning non-religious minorities is whether they must involve sizeable or cohesive communities or have a sense of solidarity in order to constitute a religious or belief minority. As the Special Rapporteur indicated in his 2019 definition (see para. 20 above) and in his observations to the Human Rights Committee and others, the concept of minorities, except in the case of national minorities as will be discussed, is not subject to a community’s size, permanency or traditional presence in a State’s territory. The concept of religion or belief is therefore not limited to traditional religions, to religions and beliefs with institutional characteristics or to practices analogous to those of traditional religions. Therefore, religious or belief minorities should be interpreted broadly,²¹ encompass a variety of religious or belief systems, including newly established religions and non-traditional beliefs, spiritual practices or shamanistic belief systems, as well as non-religious individuals, whether or not they are part of formal institutional or community structures.

21. See HRI/GEN/1/Rev.1, General Comment 23, para. 5.3. ↩

Three further points should be highlighted. First, the concept of “religion or belief” does not exclude overlaps with minority cultural or linguistic categories. Minorities of religion or belief may include worship or sacred texts in a language differing from that of the majority. Furthermore, a religious or belief minority may have its own specific literature, symbols, rites, customs and observances, including holidays, dietary codes, pilgrimage and many other activities that could also be referred to as cultural. As often indicated in the present report, the identification of a person as belonging to a minority does not exclude multiple or overlapping situations of belonging to more than one category for many in the daily experience of minorities. This is why an intersectional approach that recognizes the many different elements that forms an individual’s identity is essential in relation to matters involving religion or belief as well as culture and language.

A second issue occurs not infrequently in relation to situations where individuals are not allowed to leave or where an individual’s rejection of his or her membership of a particular religious or belief group, including that of the majority, is prohibited or even punishable by death in some cases, or where there may be obstacles owing to no official “existence” or recognition of a particular religion or belief. Individuals in such situations cannot convert or belong to a religious or belief minority, once again raising the obstacle of authorities – or others – preventing individuals from freely self-identifying as belonging to a minority (or to a majority). The Human Rights Committee has firmly established that individuals are free to choose a minority or majority religion or belief, including the right to replace one’s current religion or belief with another or to adopt atheistic views, as well as the right to retain one’s religion or belief.²²

22. See HRI/GEN/1/Rev.1, General Comment 22, para. 5. ↩

Third, a small number of States stated in their submissions that their understanding of minorities did not include religious groups. None of the States elaborated on the reasons for such an omission, other than occasionally suggesting that the concept of a minority in their jurisdiction is restricted to traditional, national or ethnic minorities and not religious minorities. Such a restrictive approach is not supported by the wording of United Nations instruments or their interpretation, as set out in jurisprudence and the present report. While not being exhaustive, the contextualization of the provisions of United Nations instruments dealing with the rights of minorities and their interpretation in the past few decades suggest the following with respect to the intent and wording of the provisions, confirming the significance and scope of the category of religious or belief minorities:
(a) The category of “religious minority” includes non-religious or non-theistic and other beliefs. This category should be understood broadly to include unrecognized and non-traditional religions or beliefs, including animists, atheists, agnostics, humanists, “new religions”, etc.;
(b) As in the case of the category of linguistic minorities, a religion can be a minority religion even if it is official or recognized;
(c) Refusal by authorities to acknowledge the existence of a particular religion or belief, or an official categorization of a religion or belief as a sect, a prohibited cult, an aberration or even a threat, and therefore not a “real religion or belief”, is not determinative. Whether a religious or belief minority exists is a factual, objective matter of whether there are in a State a minority of individuals who freely ascribe to a particular religion or belief;
(d) Religious or belief minorities, such as atheists, Scientologists, Baha’is, Ahmadis, Mormons, agnostics and others, however they are described or recognized in a State, are entitled to the full protection of their human rights in international law, including as persons who belong to a religious or belief minority and against acts of violence or persecution;
(e) Large religious groupings can be made up of different sets of beliefs or traditions. Christianity, Hinduism, Islam and Judaism include a number of religious or belief divisions and therefore potentially minorities. Catholics are a religious or belief minority in the United Kingdom of Great Britain and Northern Ireland, as are Shi’a in Yemen. Shaktism in India and Haredi Judaism are also minority religions or beliefs;
(f) Followers of non-hierarchical or non-formalized religions or beliefs, including shamanism and new religions, can also constitute a religious or belief minority. The presence of a religious or belief minority, such as the Falun Gong in China, of brujería followers in the United States of America and Latin American countries, or Rastafarians in Ethiopia, or of böö mörgöl shamanism in Mongolia, all objectively constitute religious or beliefs minorities, regardless of their traditional link or degree of presence in a State.

The final two categories of minorities in United Nations instruments are described together because they tend to be viewed as similar, if not necessarily identical.

Some submissions affirmed that the categories of national or ethnic minorities were now largely synonymous, and a prominent voice at the time of the formulation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities appeared to share that position, stating that “[t]here is hardly any national minority, however defined, that is not also an ethnic or linguistic minority”.²³

23. See E/CN.4/Sub.2/AC.5/2001/2, para. 6. ↩

In a number of the submissions, however, a slightly different understanding was presented, in the sense that national minorities seemed to refer exclusively to “traditional” or “autochthonous” ethnic minorities, or ethnic minorities made up of nationals. While national minorities were associated with a particular subset of ethnic minorities, not all ethnic minorities were necessarily national minorities.

In many submissions, minorities were explicitly or implicitly viewed as involving distinct levels of rights holders: a broad, first level of rights for minorities in general; followed at the next level by more specific rights, for example relating to education and political participation, for longer-established, historical “national minorities”; and even further-reaching rights for indigenous peoples, for example relating to internal self-determination. Indeed, as indicated in the historical contextualization, it seems partially for this reason that some State delegates claimed that only “national minorities” should be entitled to education in their own language.

There is another legacy from the period before the Second World War that needs to be taken into account when seeking to more clearly delineate the contours of what is an ethnic minority. In order to avoid racist misconceptions of race and racial superiority, as well as theories that postulate the existence of separate human races, the term “race”, which initially at that time was often used as equating to “ethnic origin”, began in later periods to be presented in United Nations documents as a kind of “supercategory”, or portmanteau term that included individuals of different origins, such as ancestry, descent, origin or lineage, and not quite immutable cultural characteristics, such as language.

This can be seen in the connections made in early United Nations instruments between ethnicity and race: racial discrimination, as defined in article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, refers to race, colour, descent or national or ethnic origin, while the earlier United Nations Declaration on the Elimination of All Forms of Racial Discrimination elaborates on the category slightly differently, as involving differences based on race, colour or ethnic origin. The Committee on the Elimination of Racial Discrimination, in its general recommendation XXIV, also specified that the treaty relates to all persons who belong to different races, national or ethnic groups or to indigenous peoples.²⁴

24. See HRI/GEN/1/Rev.9 (Vol. II), General recommendation XXIV concerning article 1 of the Convention, para. 1. ↩

Non-United Nations documents also confirm the close association between the two: the Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance, in its article 1.1, clarifies that the concept of racial discrimination, in addition to race, includes colour, lineage or national or ethnic origin, whereas European documents on racial discrimination, such as the European Union Race Equality Directive, addresses ‘racial or ethnic origin’ equality, and recognizes how this is of particular relevance for minorities. Furthermore, the European Commission against Racism and Intolerance general policy recommendation No. 7, on national legislation to combat racism and racial intolerance, refers to differential treatment on the basis of race, colour, language, religion, nationality or national or ethnic origin.

It should also be recalled that, in very early discussions on what would become article 27 of the International Covenant on Civil and Political Rights, as well as other United Nations documents, the word “race” was initially used in lieu of “ethnic” minorities.

Once again, while no absolute consensus exists among experts, State practices or submissions to the Special Rapporteur,²⁵ the following description can be extracted from a historical and contextual analysis of the categories of national or ethnic minorities in United Nations and other instruments:
(a) The term “ethnic minority” is a broad category that includes individuals associated by ancestry, descent, origin or lineage, and can include persons who share personal characteristics with other members of a community, such as a common language or culture;
(b) The term “national minority” would seem, despite some debate on the matter, to mean a narrower grouping, usually of an ethnic or linguistic minority with a more or less long-standing presence in a State in order to be considered “sufficiently” traditional or autochthonous.

25. For a comprehensive description of these categories, see Lilla Farkas, The meaning of racial or ethnic origin in EU law: between stereotypes and identities (European Commission, Luxembourg, 2017). ↩

A person can, as with other categories of minorities, freely belong to a national or ethnic minority without any requirement of citizenship, residence, official recognition or any other status.

While not being exhaustive, the contextualization of the provisions of United Nations instruments dealing with the rights of national or ethnic minorities and their interpretation in the past few decades, as well as a significant number of regional instruments, suggest the following results for the present report’s conclusions as to the intent and wording of those provisions, as well as the significance and scope of the category of national or ethnic minorities:
(a) The category of “ethnic minority” is a broad, inclusive category. It brings together individuals linked by colour, ancestry, descent, origin or lineage, as well as individuals joined together by distinct cultural features (mainly language), but which can include a particular way of life,²⁶ and (arguably in some cases) religion. National minorities appear to be a narrower category, where an ethnic minority must have a historical association on the territory of a State. Roma, for example, are not recognized as a national minority in some countries, such as Italy, but are usually acknowledged as an ethnic minority;
(b) An individual may no longer be fluent in the language usually associated with a national or ethnic minority, such as the Cajuns in the United States or the Acadians in Canada, but could still self-identify because of heritage, lineage and identity, and be objectively deemed to have such a connection, even if no longer fluent in the language of the group;
(c) None of these categories are exclusive. A minority may be presented or perceived as “mainly” ethnic, but many or some of its members may not have all the same heritage or religion or culture. Papuans in Indonesia can be broadly put together as an ethnic minority with shared origins or descent, but that group is also made up of individuals from a large number of distinct Papuan languages and cultures (some 200) with most sharing Christian religions or animist beliefs. Individuals can therefore also belong to different linguistic or religious or belief minorities at the same time as to the Papuan ethnic minority;
(d) Ethnic minorities, through ancestry, descent, origin or lineage, can include individuals recognized because of shared physical characteristics, such as Afrodescendants, as well as social castes and similar groups, including Dalits in India (and elsewhere) and the Burakumin of Japan. Some castes and so-called “social groups” sometimes also have their own distinct cultures and traditions;
(e) Seafaring and nomadic groups, such as the Dao of Taiwan and the Moken of Myanmar and Thailand, as well as Tuaregs and Bedouins, are ethnic minorities, as are Travellers in Ireland and the United Kingdom and Roma and Sinti in Europe and elsewhere. While the seafaring or nomadic ways of life may have been largely abandoned, they are still cognizable as ethnic minorities by descent or lineage oriented, as well as sometimes their own languages and unique cultures linked to social structures, traditions and identity;
(f) Individuals, even though not a member of an ethnic group by descent, may freely choose to belong to it and enjoy its culture with other members of the community. Many of the French-speaking Huguenots who went to South Africa in the seventeenth century adopted the Afrikaans language and can be considered ethnically Afrikaners;
(g) Citizenship is not a requirement to being an ethnic minority. Whether a national minority can only be made up of nationals is not settled.

26. See E/CN.4/Sub.2/AC.5/2001/2, para. 6. ↩

Minority issues are increasingly visible in the work of the United Nations. Unfortunately, this is also owing to the greater vulnerability of and inequalities experienced by minorities during the COVID-19 pandemic, as well as other growing phenomena, such as the rise of hate speech on social media against minorities, the resulting incidents of hate crime and even the increasing numbers – in the millions – of people who belong to minorities who are liable to become stateless in the near future. The Special Rapporteur has acted in a proactive way in these areas, but obviously more needs to be done so that these human rights issues are better understood and addressed.

On a more positive note, the Special Rapporteur has highlighted the success of initiatives, such as the regional forums, on thematic priorities of his mandate to promote the implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and in overcoming the obstacles that prevent persons belonging to minorities from achieving the full and effective realization of their human rights.

The Special Rapporteur has proposed a conceptual framework for clarifying the scope and significance of the four categories of minorities – national or ethnic, religious and linguistic – recognized in four United Nations instruments, in order to avoid inconsistencies, uncertainties and contradictions, which can result in failure to properly address and promptly respond to the protection of the human rights of all of these categories of minorities.

The Special Rapporteur again calls upon UNHCR, the Secretary General, the General Assembly and the Human Rights Council – as a matter of urgency, in view of the scale of a crisis emerging in Assam and other parts of India, with millions of members of minorities at risk of being deemed foreigners, being subjected to new legislation that excludes Muslim minorities from gaining access to certain pathways to citizenship acquisition and possibly finding themselves stateless – to consider engaging immediately in discussions with India and taking global action in order to protect the human rights of some of the world’s most vulnerable, and avoid growing instances of hate speech and violence directed towards Muslim minorities in what could become a threat to regional peace and security.

The Special Rapporteur also reiterates his invitation to OHCHR, United Nations entities and Member States to continue to support and collaborate with the organization of regional forums on minority issues in order to complement and enrich the work and recommendations of the Forum on Minority Issues, and by providing regional contributions and insights that are more contextualized and more accessible for stakeholders in other regions.

The Special Rapporteur invites United Nations entities and Member States to take note of the following categories of minorities, as well as the various elements of the concept of a minority as formulated in his 2019 report to the General Assembly, in order to adopt and apply more consistently a common understanding so as to more effectively ensure the full and effective realization of the human rights of persons belonging to minorities:
(a) Linguistic minorities. A linguistic minority exists objectively regardless of constitutional or legal status or recognition. Languages include non-verbal languages, such as sign languages, as well as languages that may have little or no literary tradition or even alphabet or script, and may be orally unintelligible from others, even if they share an identical script. Dialects within a same language according to prevailing scientific views do not constitute distinct languages;
(b) Religious or belief minorities. This category includes a wide range of religious, non-religious, non-theistic and other beliefs, such as unrecognized and non-traditional religions or beliefs, including animists, atheists, agnostics, humanists, “new religions”, etc. The Special Rapporteur recommends that, wherever possible, United Nations entities and others should replace the term “religious minorities” with “religious or belief minorities”;
(c) National or ethnic minorities. An ethnic minority is a broad, inclusive, category bringing together individuals on the basis of origin, lineage or culture and therefore includes nomadic and caste-based groups. A national minority seems to refer to an ethnic or linguistic minority with traditional or long-standing presence on the territory of a State.

The Special Rapporteur emphasizes the importance of the free self-identification of individuals for all of the above categories, that none of them are exclusive, and that they may overlap or change over time.

The Special Rapporteur recommends in particular that OHCHR, the United Nations Development Programme, treaty bodies and the special procedure mandate holders of the Human Rights Council review their approaches in relation to the above categories so as to avoid confusion and contradictions. In particular, he urges the avoidance of the use of definitions previously rejected by the Commission on Human Rights.

He invites States and other parties to take cognisance of his analysis and conclusions on the concept of a minority and the applicable categories in instruments.