Indigenous Peoples and Human Rights

By Patrick Thornberry | Go to book overview

6

The International Covenant on Civil
and Political Rights II: Article 27
and other global standards on
minority rights

The most regular examinations of indigenous issues by the HRC in the reporting procedure and under the Optional Protocol have taken place in connection with Article 27:

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.

The examination of indigenous rights has proceeded despite the fact that Article 27 deals with `minorities' and not indigenous groups. As noted in a previous chapter, `minority' is not defined in the article, a silence which many have attempted to fill on the basis of varying degrees of scholarship. 1 The most notable definition remains that of UN Special Rapporteur Capotorti who defined `minority' not in a canonical manner but specifically for the purposes of Article 27. As noted, 2 the key definitional terms are those of numerical inferiority, non-dominance, citizenship or nationality of the State in question, the possession of cultural characteristics and an implicit sense of group solidarity. 3 The approach combines cultural characteristics with solidarity elements. The reference to the sense of solidarity as `implicit' suggests that the continuing existence of group through time and adversity raises a presumption of solidarity and thus of group existence. Despite the claims of some authors that the need for a definition of the

____________________
1
For an instructive review of such exercises, see A. Spiliopoulou-Åkermark, Justifications of Minority Protection in International Law (Uppsala, Iustus Förlag, 1997), ch. 5. See also O. Andrysek, Report on the Definition of Minorities (Utrecht, SIM, 1989); M. Shaw, `The definition of minorities in international law', in Y. Dinstein and M. Tabory (eds.), The Protection of Minorities and Human Rights (Dordrecht, Martinus Nijhoff, 1992), pp. 1-31.
2
See ch. 2.
3
F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities (New York, United Nations, 1991), para. 568.

-151-

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