CIVIL AND POLITICAL RIGHTS

Article 27 ICCPR is ‘the most widely-accepted legally-binding provision on minorities’.⁵³ In 1994, the HRC adopted GC 23 on Article 27 (Rights of Minorities), in which it stated: ‘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.’⁵⁴ GC 23 further established that Article 27 is ‘distinct from, and additional to, all the other rights’ in the ICCPR.⁵⁵ GC 23 built on the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UNDM), which in its Article 2(1) set out the rights of persons belonging to national or ethnic, religious and linguistic minorities, without qualifying that this applied only in States where such groups exist.⁵⁶ The UNDM also makes important textual departures from Article 27 ‘in its wide-ranging specification of participation rights’.⁵⁷ Although we have seen recent calls from the UN Special Rapporteur on Minority Issues for a minority rights treaty,⁵⁸ this seems unlikely to emerge in the short term. Hence, Article 27 remains the key binding international standard, with the UNDM the principal soft law standard that informs its interpretation.

The Human Rights Committee provides the most extensive jurisprudence of any UN treaty body, with over 1500 decisions to date taken on the merits under its Optional Protocol. However, only around 50 of these have directly invoked Article 27 ICCPR. Indigenous peoples’ rights have featured strongly in the Article 27 caselaw; indeed, Indigenous issues were the trigger for the first communication under this provision in Sandra Lovelace v Canada (1981),⁵⁹ which dealt with the rights of an Indigenous person challenging the removal of her status following marriage to a non-Indigenous man. The literature on Article 27 caselaw tends to treat Indigenous and minority issues together, but if we separate them out, we see that Article 27 is not widely used in relation to non-Indigenous minority groups. This is not due to any obvious shortcomings in the Committee’s approach, but rather the relatively low volume of Article 27 cases that relate directly to ethnic, religious or linguistic minorities, or articulate substantive minority rights claims, outside of the Indigenous context.

There are a handful of early minority rights cases. Two of these set out certain parameters to the meaning of a ‘minority’ under Article 27, and did not result in a finding of a violation. In Duncan Ballantyne et al v Canada (1993),⁶⁰ the authors were English-speakers in majority French-speaking Quebec seeking to advertise their businesses in English, in circumvention of language laws. The Committee held: ‘the minorities referred to in article 27 are minorities within such a State, and not minorities within any province … English speaking citizens of Canada cannot be considered a linguistic minority. The authors therefore have no claim under article 27 of the Covenant.’⁶¹ In J.G.A. Diergaardt et al v Namibia (1996),⁶² the authors were members of the Rehoboth Baster community, descendants of Indigenous Khoi and Afrikaans settlers who had moved to their present territory in Namibia in 1872. The Committee was also ‘unable to find that the authors can rely on article 27 to support their claim’.⁶³ It examined the relationship between the authors’ way of life and the lands covered by their claims, holding that ‘[a]lthough the link of the Rehoboth community to the lands in question dates back some 125 years, it is not the result of a relationship that would have given rise to a distinctive culture’.⁶⁴ A recent study found the decision not to recognise the Rehoboth Basters as a minority due to their lack of distinctiveness ‘perplexing on multiple accounts’.⁶⁵ It considers it a consequence of the portrayal of the Rehoboth Basters ‘as agents of apartheid’ by the Namibian government, a position uncritically endorsed by the Human Rights Committee.⁶⁶

Two other early communications saw the cases settled under other ICCPR provisions, and so did not find a violation of Article 27. In Francis Hopu and Tepoaitu Bessert v France (1997),⁶⁷ the communicants were ethnic Polynesians and inhabitants of Tahiti, French Polynesia, who argued that the construction of a hotel on land encompassing the site of a pre-European burial ground violated the ICCPR. However, France’s declaration upon ICCPR ratification that ‘Article 27 is not applicable as far as the Republic is concerned’ was considered to operate as a reservation, with the Committee concluding that it was not competent to consider the minority rights aspect of the claim; it did find a violation of other provisions.⁶⁸ In Arieh Hollis Waldman v Canada (1999),⁶⁹ public funding for Roman Catholic schools but not for schools of the author’s religion was considered to violate Article 26 ICCPR on non-discrimination, rather than Article 27.⁷⁰ Article 27 may also not be raised at all, although a case may well have minority rights elements. We see this in Antonina Ignatane v Latvia (2001),⁷¹ in which the author, a member of the Russian minority in Latvia, was struck off an electoral list due to an alleged lack of proficiency in Latvian. Article 27 and the author’s minority status was not argued, and the decision was settled under the Article 25 right to participate in elections.⁷²

This trend has continued in more recent jurisprudence. Often, Article 27 is one of several provisions raised in communications, and the Committee will either settle the communication under other provisions or decide that the Article 27 arguments have not been made out. We see this in Dorothy Kakem Titiahonjo v Cameroon (2007),⁷³ where the complaint alleged a violation of a number of provisions of the ICCPR in regard to acts of torture and death in custody of the author’s husband. It included Article 27 in relation to the author’s husband’s status as a member of ‘a linguistic minority in the State party [who] suffers persecution on that account’, including his membership of the Southern Cameroon National Council (“SCNC”). The Committee found this aspect of the communication to be insufficiently substantiated and therefore inadmissible.⁷⁴ In Mohammad Rabbae et al v The Netherlands (2017),⁷⁵ involving alleged incitement to discrimination, violence and hatred by Dutch politician Geert Wilders, the applicants invoked the Article 20(2) prohibition of incitement to hatred in connection with Articles 26 and 27 ICCPR. They argued that ‘as members of a minority in the Netherlands’ they were also victims of a violation of these provisions.⁷⁶ However, the Committee determined the communication under Article 20(2) and did not refer to the minority rights aspects of the claim.⁷⁷ In Polat Bekzhan et al v Kazakhstan (2021),⁷⁸ involving a law prohibiting the import of Jehovah’s Witness literature into Kazakhstan, the Committee concluded that the author’s claim under Article 27 was insufficiently substantiated.⁷⁹ In the same vein, in Zhavlon Mirzakhodzhaev v Kyrgyzstan (2021),⁸⁰ involving the trial of the author, an ethnic Uzbek, for alleged involvement in inter-ethnic conflict, the Committee found that the claim had failed to provide sufficient information to enable it to consider that the facts of the communication raised issues under Article 27.⁸¹

Importantly, this approach was criticised by two HRC members in a partially dissenting opinion in Ilya Nesterov et al v Russian Federation (2023),⁸² in which a Jehovah’s Witnesses organization was declared extremist by the State Party and dissolved. The Committee found a violation of Articles 18 and 22 on the rights to freedom of religion and association, and having decided that it had addressed the claims underlying Mr. Yurlov’s complaints, decided not to examine separately the aspects of the claim that raised also Articles 26 and 27. The dissent by Committee members Donders and Helfer argued that the author’s claims under Article 27 were not fully addressed by the Committee’s assessment of Articles 18 and 22. They cited GC 23 whereby the Committee noted that the rights protected under Article 27 are individual rights, but ‘they depend in turn on the ability of the minority group to maintain its … religion.’ In that regard, ‘[t]he collective dimension of the protection of religious minorities under article 27 is directly relevant in this case’.⁸³

The dissenters argued that the measures, which the Committee rightly found were unjustified, did not merely constitute a violation of the individual freedom to manifest religion ‘but also of the right of a religious minority under article 27 to practise religion as a collective group.’⁸⁴ Similarly, the dissolution of the specific religious organization did not merely violate the right to freedom of association, ‘but also the rights protected under article 27, since the dissolution undermines the survival, continued development and identity of the Jehovah’s Witnesses as a religious minority, in contravention of general comment No. 23’.⁸⁵ As a result, they regretted that the Committee did not address the collective aspects of the right to profess and practise a minority religion, which is a central purpose of Article 27 that was directly implicated by the facts of the case.⁸⁶

This is an important dissent that should have implications for future Committee assessments as to what extent Article 27 issues ought to be considered separately from other provisions of the Covenant. It may be noted that similar approaches were taken in relation to Indigenous caselaw in the past – in Jose Vicente et al v Colombia (1997),⁸⁷ the facts related to the torture and killings of members of the Arhuaco Indigenous community. The claim drew in Article 27 in relation to the disappearance, torture and execution of spiritual leaders of the community, which it was argued constituted ‘a violation of the cultural and spiritual rights of the Arhuaco community within the meaning of article 27 of the Covenant.’⁸⁸ The Committee concluded: ‘With regard to the complaint under article 27, the Committee considered that the authors had failed to substantiate how the actions attributed to the military and to the authorities of the State party violated the right of the Arhuaco community to enjoy its own culture or to practise its own religion.’⁸⁹ Thus, despite the case establishing the facts as an attack on the leaders of the Arhuaco community, it was decided only in the context of other civil and political rights.

The Committee did articulate a violation of Article 27 in a minority rights context in Rakhim Mavlonov and Shansiy Sa’di v Uzbekistan (2009).⁹⁰ Here, the authors were an editor and reader of the newspaper Oina, the only nongovernmental Tajik-language publication in the Samarkand region of Uzbekistan, whose license to publish was cancelled. The Committee held: ‘the use of a minority language press as means of airing issues of significance and importance to the Tajik minority community in Uzbekistan, by both editors and readers, is an essential element of the Tajik minority’s culture. Taking into account the denial of the right to enjoy minority Tajik culture, the Committee finds a violation of article 27, read together with article 2.’⁹¹

Article 27 ICCPR remains the principal international legally-binding minority rights standard and the Human Rights Committee has the most developed jurisprudence of the UN human rights treaty bodies. But this combination has not created a significant minority rights jurisprudence outside of the Indigenous context. When we remove Indigenous caselaw, there are hardly any findings of a violation of Article 27 by the Human Rights Committee. This points to a need for greater use of Article 27 by ethnic, religious or linguistic minorities to protect their rights - ultimately, there are relatively few communications submitted. Strategically, cases are likely to engage a number of ICCPR provisions and stand-alone Article 27 cases will probably continue to be comparatively rare. Hence, it is incumbent on the Committee to ensure that the minority rights aspects of a complaint are fully examined, as highlighted in the dissent in Nesterov et al. There is also a need to widen the jurisdictional base by encouraging States Parties to ratify the Optional Protocol, in particular from Asia, the Middle East and East Africa, where ratifications are at their lowest.

⁵³ UN Fact Sheet No. 18 (Rev.1), ‘Minority Rights’ (1998).
⁵⁴ Human Rights Committee, ‘General Comment No. 23 on Article 27 (Rights of Minorities)’ UN Doc. CCPR/C/21/Rev.1/Add.5 (1994) para 5.2.
⁵⁵ Ibid para 1.
⁵⁶ Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UNGA resolution 47/135 (1992) and Office of the High Commissioner for Human Rights (OHCHR) ‘Booklet’ <https://www.ohchr.org/sites/default/files/Booklet_Minorities_English.pdf> Article 2(1) reads: ‘Persons belonging to national or ethnic, religious and linguistic minorities have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.’
⁵⁷ Patrick Thornberry, ‘Indigenous Peoples and Human Rights’ (Manchester University Press: 2002) 176. This includes rights of minorities ‘to participate effectively in cultural, religious, social, economic and public life’ and the right to participate effectively in decisions that affect them, although modalities of such participation remain unspecified.
⁵⁸ Fernand de Varennes, ‘Strengthening and Mainstreaming the Protection of the Rights of Minorities at the United Nations: An Assessment of the Implementation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’ UN Doc. A/HRC/52/27 (2023). According to the report: ‘the Special Rapporteur is putting forth a proposal for a draft global minorities treaty, as an idea whose time has come in the hope that the United Nations will initiate a process that could ultimately lead to a legally binding instrument.’ (at para 66)
⁵⁹ UN Doc. A/36/40 (1981, date of communication 1977) 166-175.
⁶⁰ UN Doc. CCPR/C/47/D/359/1989 and 385/1989/Rev.1 (1993).
⁶¹ Ibid para 11.2. However, the Committee did conclude there had been a violation of Article 19 ICCPR on freedom of expression.
⁶²2 UN Doc. CCPR/C/69/D/760/1997 (2000) para 10.6.
⁶³ Ibid para 10.6.
⁶⁴ Ibid. For a critical view of this decision, see Alexander H.E. Morawa, ‘Minority Languages and Public Administration: A Comment on Issues Raised in Diergaardt et al. v. Namibia’ European Centre for Minority Issues (2002) <https://www.ecmi.de/fileadmin/redakteure/publications/pdf/working_paper_16.pdf> Morawa notes inter alia that the decision does not answer questions pertaining to the minority-rights based ‘administrative language rights’ aspect of the claim. (at 21)
⁶⁵ Sonya Cotton, ‘Who Stands on Land? Transnational Sources of Apartheid and Community (Dis)Placement in Southern African Land Claims’ (Unpublished PhD Thesis, University College Dublin 2025).
⁶⁶ Ibid. The study explores in detail the context in which the Rehoboth Baster Community attempted to negotiate their autonomy during apartheid rule, as well as the motivations of the Namibian government in presenting the Rehoboth Basters as perpetrators rather than victims of apartheid.
⁶⁷ UN Doc. CCPR/C/60/D/549/1993/Rev.1. (1997).
⁶⁸ Ibid paras 4.3 and 11, specifically the Articles 17(1) and 23(1) protections from interference with family. Note also the dissenting views of four Committee members: ‘Like the Committee we too are concerned with the failure of the State party to respect a site that has obvious importance in the cultural heritage of the indigenous population of French Polynesia. We believe, however, that this concern does not justify distorting the meaning of the terms family and privacy beyond their ordinary and generally accepted meaning.’ (para 7)
⁶⁹ UN Doc. CCPR/C/67/D/694/1996 (1999).
⁷⁰ Ibid para 10.6. Although see Individual Opinion of HRC member Martin Scheinen, which did emphasise the positive obligations of Article 27 for minority religions in concurring with the decision (at para 5).
⁷¹ UN Doc. CCPR/C/72/D/884/1999 (2001).
⁷² Ibid para 7.5.
⁷³ UN Doc. CCPR/C/91/D/1186/2003 (2007).
⁷⁴ Ibid para 5.4.
⁷⁵ UN Doc. CCPR/C/117/D/2124/2011 (2017).
⁷⁶ Ibid para 3.3.
⁷⁷ Ibid paras 10.4-7.
⁷⁸ UN Doc. CCPR/C/130/D/2661/2015 (2021).
⁷⁹ Ibid para 8.6.
⁸⁰ UN Doc. CCPR/C/130/D/2526/2015 (2021)
⁸¹ Ibid para 6.8.
⁸² UN Doc. CCPR/C/139/D/2925/2017 (2023).
⁸³ Ibid, Joint opinion of Committee members Yvonne Donders and Laurence R. Helfer (partially dissenting) para 4.
⁸⁴ Ibid para 5.
⁸⁵ Ibid para 6.
⁸⁶ Ibid para 8.
⁸⁷ UN Doc. CCPR/C/60/D/612/1995 (1997)
⁸⁸ Ibid para 3.6.
⁸⁹ Ibid
⁹⁰ UN Doc. CCPR/C/95/D/1334/2004 (2009).
⁹¹ Ibid para 8.7