Minority Rights And Indigenous Rights: Distinction?

Much ink has been spilled in the discourse on minority rights and indigenous rights and it has been recognised under international law through various treaty instruments as distinct rights that are part of these groups’ human rights.[1] In addition, huge sections of the academia in this area have differing perspectives on whether there should be a distinction on the rights of minorities and indigenous people.

There are various instruments such as the ICCPR which is legally binding and focuses on the rights of minorities. Article 27 of the International Covenant on Civil and Political Rights asserts:

‘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 practice their own religion, or to use their own language.’

Logically, this article aims to protect members of minorities from any sort of discrimination and also recognises that they have rights under international law. However, this instrument also draws a distinction between minorities and indigenous people when it used the wording ‘‘rights of persons belonging to minorities’’ which indicates an individualistic approach. In fact, it is very hard to describe who a minority is because one way or the other, they share similar characteristics with indigenous people.

Another important instrument that is worthy of mention is the United Nations Declaration of the Rights of Indigenous People which also has to do with indigenous people as the name implies. This declaration is not legally binding unlike the ILO Convention and has been voted against by some countries[2]. This again means that as a soft law instrument, states would not be bound by this declaration despite the similarity of the rights.

Nonetheless, in the view of the Human Rights Committee, one of the characterising elements of a `minority` and the rights which they have is based on the numerical factor. On the other hand, in his comprehensive analysis of minorities, Yoram Distein (1976)[3] was of a different opinion as he found that ‘‘it is worthwhile bearing in mind that the test for the existence of a minority entitled to protection under international law is not always numerical’’

Even so, in the case of Ballantyne, Davidson, McIntyre v. Canada[4], The Human Rights Committee held that

"The minorities referred to in article 27 are minorities within such a State [ratifying State], and not minorities within any province. A group may constitute a majority in a province but still be a minority in a State and thus be entitled to the benefits of article 27..."

Another point could be raised in respect to the ownership of land and natural resources and also the rights which minority groups have and also indigenous people. The Minority Declaration contains no rights of such sort whereas these are very important elements in the ILO Convention as is contained in Article 13 which states:

‘‘In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship’’[5]

Another fundamental difference between the thrust of the rights of persons belonging to minorities and those of indigenous peoples is connected to the basic point that the minority instruments refer to the rights of (individual) persons, whereas those concerning the indigenous refer to rights of peoples.[6]

However, it could also be argued that the rights of indigenous people and minority people would be the same because they are both an offshoot of the Universal Declaration of Human Rights which is the foundation of the Human Rights system through which these rights emanated from. The UDHR in Article 1 states:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.[7]

The fact remains from this that indeed, they are also of the view that minorities and indigenous people differ not just numerically, but also based on where they are domiciled.

Due to this, the difference could also be explained thus: while the Minority Declaration and various treaty instruments which concern persons that want to claim minority rights aims to ensure a space for pluralism, the instruments which concern indigenous people intends to allow for a degree of autonomous development. This is because whereas the Minority Declaration places considerable emphasis on effective participation in the larger society of which the minority is a part of, the provisions regarding indigenous peoples seek to allocate authority to these peoples so that they can make their own decisions.[8] As a matter of fact, Juan Martin Arellano Martinez (2012)[9] said indigenous peoples in Latin America are resisting global economic forces and demanding autonomy and recognition of their collective rights to self-determination on their territories The U’wa are demanding not only respect for their rights, as stipulated in the 1991 constitution and ILO Convention No. 169, but their autonomy.

Another point could be raised in respect to the ownership of land and natural resources and also the rights which minority groups have and also indigenous people. The Minority Declaration contains no rights of such sort whereas these are very important elements in the ILO Convention as is contained in Article 13 which states:

‘‘In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship’’[10]

Another fundamental difference between the thrust of the rights of persons belonging to minorities and those of indigenous peoples is connected to the basic point that the minority instruments refer to the rights of (individual) persons, whereas those concerning the indigenous refer to rights of peoples.[11]

However, it could also be argued that the rights of indigenous people and minority people would be the same because they are both an offshoot of the Universal Declaration of Human Rights which is the foundation of the Human Rights system through which these rights emanated from. The UDHR in Article 1 states:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.[12]

SHOULD MINORITY GROUPS HAVE COLLECTIVE AS WELL AS INDIVIDUAL RIGHTS AND BE RECOGNISED AS PEOPLES IN INTERNATIONAL LAW?

Minority groups have rights in the true sense of the word as this can be seen in various instruments such as the UDHR and the ICCPR as recognised under international law. The rights which minorities have under these instruments are individual rights as opposed to collective rights which international law recognises for indigenous people.

Yoram Distein (1976) argues that minority rights are collective rights and can be accorded based on ethnicity, linguistics and religion[13] therefore, it is arguable that international law accords protections to people that have these minority rights. James Crawford[14] opined that Art.27[15] ‘‘hovers between being a mere extrapolation from the individual rights of members of a minority group, and being a genuinely collective right.’’ He however argues that ‘‘the formulation of Art.27 in terms of individual rights and its association with international jurisprudence with notions of equality and non-discrimination, suggest that minority rights are not necessarily to be thought of as collective rights at all in modern international law.’’

James Crawford[16] argues that the issue to be looked at is that of ‘‘minorities of minorities’ because if the rights of minorities can be seen as collective rights, then, ‘‘it presumably follows that dissenting members of the minority groups can be compelled to comply with the wishes of the majority of the group…’’. This could also be argued for Indigenous people as they could also constitute a minority and be forced to comply with the wishes of the majority group. However, the argument of James Crawford is based on the notion that a minority could also be a majority in a group thereby having collective rights similar to those of indigenous people. James Crawford stated that ‘‘…in the same way that dissenting members of peoples with a right to self-determination can be compelled to accept a form of self-government which the majority of the people have elected or accepted.’’[17]

Patrick Thornberry[18] argues that minority rights are human rights. This is a statement of fact. However, he argues from the perspective of these rights being accorded the same status as indigenous rights. He argues that ‘‘in the new human rights system, it is difficult to say where minority rights begin and end. General human rights apply to members of minorities as they apply to everyone’’. This was also based on his take on Article 27 where he states that ‘‘the basic principles of non-discrimination and equality are also for general application and directly implicate minorities. Minorities can or should also participate in general self-determination process though they are not named as the holders of the right, which is the province of peoples[19]’’.

On the recognition of Minority groups as peoples under international law, the terminology ‘peoples’ is however, rather cumbersome. [20] David Makinson[21] asked the question whether the terminology ‘peoples’ should be viewed in the perspective of peoples everywhere universally or peoples based on a restricted class of persons?[22] This question could be answered depending on the perspective which may be taken. This would be based on the people who may choose to lay claim to such rights i.e. Minority groups or indigenous groups.

James Crawford stated that ‘‘one of the problems is the underlying assumption that the category minorities bears some necessary relation to the category peoples’’[23] Looking at this from the point of view of the indigenous people, they would be able to rely on certain treaties which give them status as peoples’ and also based on the rights they possess because of this.

The minority group may also lay claim to certain rights but these are individualistic whereas the rights of the indigenous people are collective hence the name peoples’. However, this could be criticised based on the statement of James Crawford[24] as he said that ‘‘the notion of a people says nothing about the relationship of that people to other peoples inhabiting the same state or territory. Thus, an individual might have rights as members of a group classified as a ‘people’ for the purpose of the right to self-determination.

This was seen in the case of Sandra Lovelace v. Canada[25] where she was treated as a minority under Art.27 of the Civil and Political Rights Covenant[26] because she lost her cultural benefits even though she was originally part of an indigenous group but lost those rights because she was married to a non-indigenous person. It could be argued that from the judgment of this case that a minority was granted seen as peoples’ under international law. However, the entirety of the circumstances has to be taken into consideration when drawing a conclusion. It could also be inferred from the facts of the case that if there was no breach of her individual right which international law recognises, the ruling may not have gone in her favour.

CONCLUSION

This paper has shown that rights despite the different categorisation of rights under international law, there are also rights which apply specifically to distinct groups of people vis-à-vis minority and indigenous people. Due to this, the rights which most appeals to the latter in contrast to the former which goes in line with autonomous development is the right to self-determination[27] either viewed internally or externally. Due to the clamour for self-determination as a right, indigenous people should be viewed as peoples’ under international law compared to minority people who clamour for pluralism as opposed to self-determination. Minority rights on the other are akin to human rights which have a general outlook and also has an integrative function.

[1] PRSPs, Minorities and Indigenous Peoples – An Issues Paper By Alexandra Hughes accessed 1^st November, 2013.

[2] This declaration was voted against by Australia, New Zealand, USA and Canada.

[3]http://journals.cambridge.org/action/displayFulltext?type=1&fid=1498856&jid=ILQ&volumeId=25&issueId=01&aid=1498852 accessed November 2^nd 2013.

[4]Communications Nos. 359/1989 and 385/1989, John Ballantyne and Elizabeth Davidson, and Gordon McIntyre v. Canada (views adopted on 31st March 1993, forty-seventh session)

[5] http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:C169#A13 accessed 1^st November, 2013.

[6]United Nations Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples.

[7] http://www.un.org/en/documents/udhr/ accessed 6^th November, 2013.

[8] http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.Sub.2.2000.10.En?Opendocument accessed 1^st November, 2013.

[9] http://diplomatonline.com/mag/pdf/Arellano_%20Indigenous_Peoples_Struggles_for_Autonomy.pdf accessed 27^th November 2013.

[10] http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:C169#A13 accessed 1^st November, 2013.

[11]United Nations Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples.

[12] http://www.un.org/en/documents/udhr/ accessed 6^th November, 2013.

[13]http://journals.cambridge.org/action/displayFulltext?type=1&fid=1498856&jid=ILQ&volumeId=25&issueId=01&aid=1498852 accessed 2^nd November, 2013

[14] James Crawford, ‘The Rights of Peoples: ‘Peoples’ or ‘Governments’? in James Crawford (eds), The Rights of Peoples (Oxford University Press 1992)

[15] International Covenant on Civil and Political Rights

[16] Op.cit n.13

[17] As is the case of dissentients in the various UN-supervised plebiscites in trust and non-self-governing territories: see A. Rigo-Sueda, The Evolution of the Right of Self-Determination (1973)

[18] Patrick Thornberry, ‘Ethnic Dimensions of International Human Rights’ in Angela Hegarty and Siobhan Leonard (eds), Human Rights: An Agenda for the 21^st Century. Cavendish Publishing Limited 1999

[19] These issues are regularly discussed in works on the principle of self-determination. See, among many such Tomuschat, C (ed), Modern Law of Self-Determination, 1993, Dordrecht/Boston: Kluwer Cassese, A, Self-Determination of Peoples: A Legal Reappraisal, 1995, Cambridge: Grotius.

[20] David Makinson, Rights of Peoples: Point of View of a Logician in James Crawford (eds), The Rights of Peoples (Oxford University Press 1992)