INTRODUCTION

This Handbook compiles the jurisprudence or caselaw of the UN human rights treaty bodies as it relates to the protection of minorities. This exercise has not been performed to date in the sense of engaging the full spectrum of all nine of the core UN human rights treaties. Certainly, much literature exists on the jurisprudence of the Human Rights Committee in implementing Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which remains the principal binding international minority rights standard.¹  There are also reports that encompass minority rights angles in the caselaw of other UN treaty bodies.² However, these reports do not cover all the UN human rights treaties, and are well over ten years old. As a result, the potential of a number of UN treaty bodes in relation to minority rights protection has not been fully explored, including more recent decisions in this area.

It is important to recognise that for many UN treaty bodies, their jurisprudence is in a relatively embryonic stage; some have only gained an individual communications mechanism and accompanying jurisprudence in more recent years. Furthermore, the optional character of individual communications mechanisms is the most significant factor in limiting both the use and significance of this mechanism. Individual communications are categorically not a universal system – far more States Parties to UN human rights treaties from the global North have opted in to individual communications mechanisms than from other regions. As a result, a preponderance of caselaw emanates in relation to Europe, as well as Australia, Canada and New Zealand, although cases do arise in relation to Africa, Asia, and Central and South America.

Hence, individual communications mechanisms cannot be understood in complete isolation from the other monitoring mechanisms of UN treaty bodies. In particular, concluding observations, general comments and other procedures provide a UN treaty body with a means of setting out how its provisions are to be applied in all States Parties. This is particularly significant in relation to minorities since, of the nine UN human rights treaties, only two expressly refer to these groups in their text - the ICCPR and the UN Convention on the Rights of the Child (UN CRC). Minority rights protections are often interpreted by UN treaty bodies as forming a part of their mandate despite the absence of an express provision on which to base this. This usually occurs first in concluding observations and general comments, and finds later expression in individual communications. Indeed, for some UN treaty bodies, an individual communications mechanism has been adopted after decades of practice under other procedures. Thus, for many UN treaties, it is important to first set out how their text contains minority rights standards as understood by the relevant treaty body through other procedures such as general comments and concluding observations. Having done that, we may then address their practice in individual communications.

It is well known that international law provides no accepted and binding definition of a minority. Article 27 does not contain a definition, and nor does the Human Rights Committee’s General Comment 23 which sets out in more detail the meaning of the rights of minorities under the ICCPR.³ Early UN studies on the rights of minorities, including the 1979 study by Francesco Capotorti included Indigenous peoples in the understanding of minorities under Article 27.⁴ It highlighted in relation to Chile that ‘minority groups include the Indigenous population’, and in relation to the Philippines discussed ‘the Indigenous population…officially referred to as “national cultural minorities”.’⁵ But even then Capotorti considered that Indigenous populations constitute a ‘special category of minority’.⁶ This prefigured the development of Indigenous peoples’ rights as a sui generis category distinct from minorities. By 1986, discussions in the UN Sub-Commission saw support for the view that ‘Indigenous populations should be treated separately’, respecting the wish of Indigenous populations ‘to be considered as peoples and not as minorities’.⁷ It may be noted that the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP) does not contain a single reference to minorities or minority rights.⁸ Nevertheless, Indigenous peoples ‘may rely on Article 27 to defend their way of life and the specific characteristics of their group’.⁹ In fact, the most prominent cases under Article 27 decided by the Human Rights Committee have related to Indigenous peoples. 

With that in mind, the Handbook will encompass individual communications that relate to Indigenous peoples as well as minorities, in relation to the ICCPR and all other UN human rights treaties. This is decidedly not to argue that Indigenous peoples are minorities - it is simply to point out that the work of the UN treaty bodies on minorities cannot be separated from its work on Indigenous peoples, which informs and develops our understanding of group rights and protections in the UN context. Indigenous caselaw offers many points of reference by which minority rights caselaw can be developed, even if the categories remain distinct. The jurisprudence of the UN treaty bodies in the area of minority rights, including Indigenous peoples, is not voluminous - this Handbook identifies 75 individual communications across all of the UN human rights treaties that engage to varying degrees minority and Indigenous rights issues. It is not intended to be exhaustive, and cases are identified as illustrative of a particular issue or theme; but it is intended to be comprehensive in setting out how minority and Indigenous rights elements arise under all of the UN treaties. While some cases will be familiar to minority and Indigenous rights advocates, others may not have been previously identified or considered as minority and Indigenous rights cases. In that regard, the Handbook seeks to contribute to the understanding of how all the UN treaty bodies can and do protect minority and Indigenous groups across their jurisprudence, highlighting a growing trend towards intersectionality. There are nine core international human rights treaties, in order of their adoption:

• International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965
• International Covenant on Civil and Political Rights (ICCPR) 1966 • International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966
• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT)
• Convention on the Rights of the Child (CRC) 1989
• International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) 1990
• Convention on the Rights of Persons with Disabilities (CRPD) 2006
• International Convention for the Protection of All Persons from Enforced Disappearance (CPED) 2006. ¹⁰

The individual communications procedure did not exist for a number of these treaties for many years, decades even - it took CEDAW and CRC about 20 years, and ICESCR 40 years, from their adoption to achieve this. Although broadly the UN human rights treaties all now have an individual communications system, it remains optional and not all States Parties to the UN treaties have ratified the relevant optional article or Protocol. These numbers affect the volume of caselaw that arises under each treaty. For example, the Optional Protocol to the ICCPR was adopted in 1966 and has 117 States Parties; while the Optional Protocol to the ICESCR was not adopted until 2008 and has 26 States Parties. It has been observed also in relation to all of the UN human rights treaties that ‘the world’s most populous countries, China, India, Indonesia and the United States of America generally do not accept individual communication mechanisms for treaties to which they are party.’¹¹ But the numbers of States Parties to optional protocols will grow, and for a number of instruments some initial cases highlight the potential for the development of minority or Indigenous protections under these instruments.

In addition to issues of ratification which means many States Parties cannot be the subject of an individual communication, for those States that have opted in, the procedure is often under-utilised. A report by the Universal Rights Group is instructive in illustrating how a large number of States that have opted in to individual communications procedures have never been the subject of an individual communication - some 34%, with the majority of these from Africa and Asia.¹² The report found, remarkably, that almost 20% of all individual communications in its year of study related to just one country, Denmark.¹³ To a certain extent, more recent years have seen greater use of the individual communications mechanism and it continues to grow in terms of ratifications and geographic use. But it cannot be considered at present a universal system that reflects the universality of the treaties it seeks to implement. 

This is borne out in the present Handbook, in which 75 individual communications in total are examined which raise issues of minority or Indigenous rights across the UN treaties. Of these, 42 are from Europe; 15 are from North America (specifically Canada), Australia or New Zealand; 8 are from Central or South America; 7 are from Africa (with four of these involving just one State, Tanzania); and 3 are from Central Asia. There are none from South Asia, East Asia, Southeast Asia, the Middle East or the Pacific Island Countries. For this reason, the State reporting and other compulsory mechanisms remain the heart of the UN human rights treaty system. Nevertheless, individual communications form an important component of UN human rights treaty monitoring and the decisions, although addressed to one State Party, create standards that are applicable to all States Parties to a treaty.

To examine the caselaw, recourse was had to the Office of the High Commissioner for Human Rights (OHCHR) “Jurisprudence Database”, which is the central repository of the jurisprudence of the UN treaty bodies.¹⁴ This tool allows for searching of jurisprudence by committee as well as by type of decision – in general, the Handbook excludes admissibility decisions and focusses on decisions taken on the merits. Interestingly, the database provides also an “issues” filter which includes the terms “minorities” and “Indigenous peoples”. However, searching using these two terms returns caselaw results only from the Human Rights Committee. As this Handbook sets out, this is too narrow an understanding and other treaty bodies also have decisions that relate to minority and Indigenous peoples’ rights.

It is clear that the treaties vary significantly in their focus on minorities and Indigenous peoples. Thus, the ICCPR and ICERD are very much “minority rights instruments” while at the other end, CRPD or CPED appear only tangentially concerned with these questions. Nevertheless, the minority rights contribution of all of the UN treaty bodies, large or small, is addressed. The UN treaty bodies are at different points in terms of the protection of minority and Indigenous rights in their caselaw, but the Handbook seeks to highlight that the door is very much open to litigate minority or Indigenous issues under all of these instruments. With that in mind, we explore the jurisprudence of the UN treaty bodies across a range of themes, specifically - autonomy; children’s rights; civil and political rights; climate change; cultural rights; disability; economic and social rights; enforced disappearance; environment; freedom of religion; gender and women’s rights; hate speech and freedom of expression; land rights and free, prior and informed consent; migrants and migrant workers; nonrefoulement; racial discrimination and ethnic minorities; torture, police violence and minority/indigenous rights defenders; and urgent action. Some conclusions are offered on future directions.

¹ Article 27 ICCPR reads: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.’
² See Council of Europe (by Kirstin Henrard), ‘The Impact of International Non-discrimination Norms in Combination with General Human Rights for the Protection of National Minorities: Several United Nations Human Rights Conventions’ DH-MIN(2006)021 (2006) <https://rm.coe.int/1680097f35>; Minority Rights Group International (by Mauro Barelli, Gulara Guliyeva, Stefania Errico and Gaetano Pentassuglia), ‘Minority Groups and Litigation: A Review of Developments in International and Regional Jurisprudence’ (2011)<https://minorityrights.org/app/uploads/2024/01/mrg-minority-groups-and-litigation-guide.pdf>
³ Human Rights Committee, ‘General Comment No. 23 on Article 27 (Rights of Minorities)’ UN Doc. CCPR/C/21/Rev.1/Add.5 (1994).
⁴ Francesco Capotorti, ‘Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities’ UN Doc. E/CN.4/Sub.2/384/Rev.1 (1979).
⁵ Ibid p. 110 and 112 Annex III.
⁶ Ibid p. 10 para 50.
⁷ Discussed in Commission on Human Rights, ‘Compilation of Proposals Concerning the Definition of the Term “Minority”’ UN Doc. E/CN.4/1987/WG.5/WP.1 (1986) p. 10 para 25(b).
⁸ Declaration on the Rights of Indigenous Peoples, UN Doc. A/RES/47/1 (2007).
⁹ Dieter Kugelmann, ‘The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity’ (2007) 11 Max Planck UNYB 233-263, at 248.
¹⁰ OHCHR, ‘The Core International Human Rights Instruments and their Monitoring Bodies’ <https://www.ohchr.org/en/core-international-human-rights-instruments-and-their-monitoring-bodies>
¹¹ Rhona Smith, ‘The Third Optional Protocol to the UN Convention on the Rights of the Child? - Challenges Arising Transforming the Rhetoric into Reality’ in Michael Freeman (ed.), The Future of Children’s Rights (Brill 2015) 178-195, at 184.
¹² Universal Rights Group, ‘Reform of the UN Petitions System: An Assessment of the UN HumanRights Communications Procedures and Proposals for a Single Integrated System’ (Geneva: URG 2018) <https://www.universal-rights.org/urg-policy-reports/reform-un-human-rights-petitions-system-assessment-unhuman-rights-communications-procedures-proposals-single-integrated-system-3/>
¹³ Ibid at 22.
¹⁴ OHCHR, ‘Jurisprudence Database’ <https://juris.ohchr.org/>