CONCLUSIONS AND RECOMMENDATIONS

The above analysis depicts the range and depth of minority and Indigenous rights protections across the nine UN treaties and treaty bodies. Only two of these have an express mandate to protect minorities or Indigenous peoples in the operative provisions of their text - the HRC and the CRC. The other seven have to various degrees evolved a mandate in relation to minorities and Indigenous peoples based on the interpretation of their texts. Some of these, such as CERD, have decades of minority rights practice to the point where ICERD should be considered as a central instrument in the international protection of minorities. For others this is more tangential to their object and purpose, but nevertheless they display clear mandates to protect minorities and Indigenous peoples within the terms and focus of their Conventions. In that regard, the minority and Indigenous rights aspects of a number of UN treaties, such as ICMW, CRPD and CPED, appears little explored. Similarly, the UN Jurisprudence Database does not recognise the decisions of UN treaty bodies such as CERD, CESCR, CEDAW and CAT as engaging minority or Indigenous rights, when they clearly, and often quite extensively, do. Increasingly, minority and Indigenous rights protection requires an intersectional approach which is reflected in the engagement of these issues under different UN treaty bodies. Thus, a wider database of minority and Indigenous rights in the jurisprudence of UN treaty bodies should be recognised, including all of the cases identified in this Handbook. It is interesting also to see quite focussed caselaw emerge that fits well the scope of the relevant treaty, such as obstetric care for minorities before CEDAW; police brutality or non-refoulement in relation to minority groups before CAT; cultural rights before CESCR; intergenerational transmission of ways of life before CRC; or mental health and incarceration of Indigenous peoples before CRPD. It is encouraging to see focussed expertise being engaged in relation to the facts raised in these communications, even if the examples to date can be relatively few.

Ultimately, as this report has consistently emphasised, individual communications must move towards becoming a more universal system and States Parties have to be consistently encouraged to opt in to these mechanisms, by UN treaty bodies as well as other UN actors such as special procedures, civil society, and States through the Universal Periodic Review. Large parts of the world and its population remain outside the system, and indeed outside of any human rights complaints mechanism. In that light, it is worth highlighting the geographic significance of the EWUA procedure of CERD in providing a means of “petitioning” a UN treaty body as to a particular alleged violation for 182 States Parties. It is only under this mechanism that certain systematic minority rights violations in recent years, such as police violence in the US or the mass incarceration of the Uighurs in China, as well as encroachment on Indigenous lands in the Philippines, India and elsewhere, can and have been raised before a UN treaty body outside the reporting cycle.

Beyond the scope of the current Handbook, the question of implementation of UN treaty body decisions in individual communications should be flagged. The aim has been to identify and highlight minority and Indigenous rights in the jurisprudence of the UN treaty bodies. All of these decisions carry instructions for implementation, and also means of follow-up. But decisions of human rights bodies and their implementation are often quite separate processes, and so the extent to which the jurisprudence of the UN treaty bodies is effectively realised requires greater study. For now, this Handbook has sought only to set how decisions of all the UN treaty bodies in individual communications can and do protect minorities and Indigenous peoples. While some treaty bodies are clearly more significant than others in this area, all contribute in protecting these groups in their decision-making. A number of final practical recommendations can be suggested to improve and enhance the protection of minorities in the jurisprudence of the UN treaty bodies, as follows.

OPTING IN TO INDIVIDUAL COMMUNICATIONS

While there have been proposals in the past for reforming the UN treaty bodies such as the creation of a unified treaty body, such changes seem unlikely at the present time. Hence, a first step to improvement of the system is the critical need for all States Parties to UN human rights treaties to opt in to the individual communications mechanisms. There is no obvious pathway to achieving this, but at the same time, there seems little concerted effort to analyse why States do not do so. Certainly, when States do not ratify treaties attention is paid to that, but none at all when they do not allow for individual communications - for example, it well known that the US has not ratified UN CRC, but rarely commented on that it has not opted in to any individual communications mechanisms. As noted, the greatest gaps are in Africa and Asia, and international jurisprudence cannot reflect the issues faced by minority and Indigenous groups in these regions unless States opt in under the relevant articles and protocols. It is recommended that UN treaty bodies request States Parties that do not opt in to individual communications mechanisms to consider providing reasons why in their State reports, creating a “dialogue” around this. The UPR mechanism should focus on lack of ratification of individual communications mechanisms by States under review. Minority rights advocacy groups could focus on particular States and particular regions, in relation to particular UN treaties, with the goal of gaining ratifications of optional individual communications procedures. The simple ability to bring a case at the international level to defend minority and Indigenous rights is critical, and the shutting off of this basic avenue of redress warrants greater focus.

GENERAL COMMENTS

Just one UN treaty body, the Human Rights Committee, has issued a general comment on minority rights. By contrast three treaty bodies have issued a general comment on Indigenous peoples’ rights, specifically CERD, CEDAW and CRC. All UN treaty bodies should consider issuing a general comment in this area. For example, CAT’s mandate in relation to minority and Indigenous rights emerges clearly from the Convention text and its practice, and it would seem useful for it to provide more detailed guidance to States Parties in the form of a general comment. In addition, while the UNDRIP is clearly guiding the implementation of UN treaties in relation to Indigenous peoples, the UNDM is not providing the same guidance in relation to minorities. General comments that set out in detail State obligations appear essential if a stated framework of UN action for mainstreaming minority rights, which the previous UN Special Rapporteur has noted has been the subject of ‘inaction and negligence’, is to be realised.⁴¹¹ The UNDM should inform any future general comments in this area, as well as guide decisions in individual communications.

A “WHOLE TREATY” APPROACH AND INTERSECTIONALITY

As noted, the UN jurisprudence database does not reflect the range of minority rights caselaw that emerges before UN treaty bodies, recognising only Article 27 ICCPR cases. This underlines the fact that the minority and Indigenous rights aspects of the mandates of a number of UN treaty bodies is not particularly prominent. Meanwhile, CERD, CEDAW and CAT display a considerable jurisprudence in this area, with a number of significant decisions that relate to minority and/or Indigenous rights under their respective mandates. CESCR, CRC and CRPD have a smaller body of relevant caselaw but nevertheless all three have an emerging minority and/or Indigenous rights jurisprudence. CMW and CED have the potential for such caselaw, given the interpretation of their standards through concluding observations and other actions clearly establishes a minority and Indigenous rights competence, with patterns of violations in relation to these groups evident before both bodies. In sum, all nine UN human rights treaties are engaged to protect minorities and Indigenous peoples’ rights, and while some are clearly more applicable than others, all have a role to play. A “whole treaty” approach to minority and Indigenous rights, whereby every UN human rights treaty is considered to have a competence in this area, needs to emerge more fully. This would support the growing understanding of minority and Indigenous rights in terms of intersectionality. We increasingly see issues of minority or Indigenous rights arising in individual communications as intersectional aspects of claims, in particular in relation to gender and disability among other aspects.

MINORITY RIGHTS OUTSIDE THE INDIGENOUS CONTEXT

It is clear that far more international caselaw relates to Indigenous peoples than it does to minority rights. Even the principal minority rights standard, Article 27 ICCPR, has been used largely in relation to Indigenous peoples rather than non-Indigenous minority groups. There is therefore room for non-Indigenous minority groups to further engage the UN treaty bodies in the form of individual communications. In addition, and as Inter-American caselaw illustrates, issues of customary land ownership as well as cultural identity and traditions may also arise in a non-Indigenous context.⁴¹² However, caution is advisable given that Indigenous peoples and minorities remain distinct, even if there can be some blurring of the boundaries in relation to certain groups with similar characteristics. Ultimately, the individual communications mechanism is under-used by minority groups by contrast with Indigenous peoples and this has prevented an evolution of minority standards which is clearly seen in Indigenous caselaw. Furthermore, the HRC has not always articulated violations of minority rights where these are evident, as highlighted by the dissenting views in Nesterov et al v Russian Federation. When taken as a whole, the minority rights caselaw of the HRC in terms of a substantive finding of a breach of Article 27, as opposed to other ICCPR provisions, is seen rarely, such as its decision in Rakhim Mavlonov and Shansiy Sa’di v Uzbekistan. There is an absence of an evolution of minority rights standards through caselaw that is clearly evident in relation to Indigenous peoples. It is incumbent on all UN treaty bodies to better understand their mandate in relation to minority as well as Indigenous protections, and to draw this out in individual communications that raise these issues.

REMEDIES

Remedies are increasingly taking precise forms in terms of both specific and general recommendations. As Cali and Galand highlight, ‘all eight Committees have recommended additional individual remedies alongside compensation tailored to the specifics of violations’.⁴¹³ Specific remedies may take the form of directions for repairing the violation; providing adequate financial compensation to the victim; or issuing an apology. General remedies may include recommendations for enacting legislative change; reforming administrative practices; or implementing training programmes for judiciary, law enforcement and other actors. For Indigenous peoples, States have been required to recognise the principle of FPIC and adopt measures in relation to ownership of traditional territories through the establishment of mechanisms and procedures for delimitation, demarcation and titling of land in accordance with customary laws and values. UN treaty bodies increasingly provide detail and direction on how violations and harms are to be comprehensively repaired, engaging individual and structural aspects that affect minority and Indigenous groups as a collective. This is the strength of individual communications as a mechanism, which makes it vital that it evolves to better protect minority and Indigenous groups globally and across all of the UN treaties.

⁴¹¹ Fernand de Varennes, supra n 58 at para 49.
⁴¹² See Saramaka v Suriname Judgment, Inter-Am. Ct. H.R. (ser. C) No. 172 (Nov. 28, 2007). The case related to customary land rights of the Saramakas who are not indigenous, being one of six Maroon groups in Suriname whose ancestors were enslaved during European colonization in the 17^th century and escaped to the interior regions of the country. The IACtHR held that its jurisprudence on collective land title was applicable to them given that ‘land is more than merely a source of subsistence; it is also a necessary source for the continuation of the life and cultural identity of the Saramaka people’. (at para 86)
⁴¹³ Basak Cali and Alexandre Skander Galand, ‘Towards a Common Institutional Trajectory? Individual Complaints before UN Treaty Bodies during Their “Booming Years”’ (2020) 24 The International Journal of Human Rights 1103-1126, at 1112.