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Framework for Communications - III 5


VULNERABLE GROUPS

5. Minorities

ICCPR

Art. 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."

CRC

Art. 30: "In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language."

General Assembly Declaration 47/135

Art. 1 (1): "States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity."

Art. 2 (1): "Persons belonging to national or ethnic, religious and linguistic minorities (hereinafter referred to as persons belonging to 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."

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Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)

A/55/280, para. 138:

"138. Concerning minorities, the Special Rapporteur wishes to emphasize that States have an obligation under international law and jurisprudence (inter alia, article 27 of the International Covenant on Civil and Political Rights, General Comment No. 23 of 6 April 1994 of the Human Rights Committee, article 30 of the Convention on the Rights of the Child, and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities) to guarantee the right of minorities to freedom of religion and the practice of religion, within internationally agreed limits. The State remains responsible even when abuses are committed against minorities by non-State entities such as extremist groups. States are also required to create conditions for promoting the identity, including the religious identity, of minorities. Article 4 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities emphasizes the role of education in this regard. The 2001 conference on school education will also consider the special place to be given in primary and secondary education to respect for and promotion of the identity, including the religious identity, of minorities and will make recommendations in this regard."

E/CN.4/2001/63, para. 181:

"181. First and foremost, such an analysis clearly highlights the situation of minorities in terms of the principles of tolerance and non-discrimination in the field of religion and belief. The concept of a minority, although not really defined in international law, which merely refers to categories such as national, ethnic, religious and linguistic minorities (see the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities), is interpreted in the widest sense in this report, whether in reference to minority groups within the same religion or in relation to other religions, society, non-State entities and the State. More attention should be paid to the situation of minorities in the light of the 1981 Declaration."

A/61/340, paras. 49-51:

"A. Religious minorities

49. Religious minorities remain, by and large, the main victims of violations of the right of freedom of religion or belief and other acts of religious intolerance. In this respect, one must take into account that while a certain religion may be a minority in one part of the world and suffer accordingly, it may constitute the religion of the majority of the population in another part of the world.

50. The problems related to the existence of religious minorities remain as important as ever and the rules pertaining to the principles of freedom of religion or belief have to be constantly re-emphasized. In addition to lack of respect, ignorance of these principles is often at the source of violations. The Special Rapporteur insists on the need to strengthen technical cooperation in order to train governmental officials in several parts of the world in the principles related to her mandate.

51. Moreover, when religious minorities are groups that follow a so-called non-traditional or newer religion, the members of these communities may be the object of suspicion and, consequently, suffer greater limitations to their right to freedom of religion or belief."

A/HRC/4/21, paras. 43-47:

"C. Religious minorities and new religious movements

43. As noted in previous reports, religious minorities and new religious movements face various forms of discrimination and intolerance, both from policies, legislation and State practice. Issues of concern relate to obstacles in the official registration procedures as well as inappropriate limitations when disseminating materials and displaying religious symbols. Furthermore, some religious minorities are adversely affected by manifestations of rejection or violence from non-State actors and by threats to their very existence as a specific community. When religious minorities are groups that are considered so-called non-traditional or new religious movements, the members of these communities may be the object of suspicion and suffer greater limitations to their right to freedom of religion or belief.

44. The first mandate-holder, d'Almeida Ribeiro, already in 1990 stated that "aspects having to do with the antiquity of a religion, its revealed character and the existence of a scripture, while important, are not sufficient to make a distinction [between religions, sects and religious associations]. Even belief in the existence of a Supreme Being, a particular ritual or a set of ethical and social rules are not exclusive to religions but can also be found in political ideologies. So far, a satisfactory and acceptable distinction has not been arrived at". (E/CN.4/1990/46, para. 110.) His successor in the mandate, Abdelfattah Amor, added that "[r] eligions cannot be distinguished from sects on the basis of quantitative considerations, saying that a sect, unlike a religion, has a small number of followers. This is not in fact always the case. It runs absolutely counter to the principle of respect and protection for minorities, which is upheld by both domestic and international law and morality. Besides, following this line of argument, what are the major religions if not successful sects? ". (E/CN.4/1997/91, para. 95.) The second mandate holder further emphasized that the issue of sects or new religious movements is complicated by the fact that international human rights instruments provide no definition of the concepts of religion, sect or new religious movement: "Added to this legal dimension is the general confusion regarding the term 'sect' in particular. Although the idea of a sect was originally a neutral one and meant a community of individuals constituting a minority within a religion and having split from it, it often now has a pejorative connotation so that it is frequently regarded as synonymous with danger, and sometimes a non-religious dimension when it is identified as a commercial enterprise. The term 'sect' is therefore in need of further clarification, as are the terms 'religions', 'new religious movements' and 'commercial enterprise'. It is crucial to look at this phenomenon objectively so as to avoid the two pitfalls of either infringing the freedom of religion and belief or exploiting freedom of religion and belief for purposes other than those for which it has been recognized and protected." (E/CN.4/1998/6, paras. 116-117)

45. The Special Rapporteur would like to join her predecessors' analysis concerning the complexity of defining religion and belief. The pertinent international human rights standards seem to take the problem of finding a satisfactory definition of the "protected religion" into account by providing for a broad view of this concept. The Human Rights Committee in its general comment No. 22 (1993) rightly argued: "The terms 'belief' and 'religion' are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The Committee therefore views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established, or represent religious minorities that may be the subject of hostility on the part of a predominant religious community." Furthermore, the Human Rights Committee reiterated that article 18 of the ICCPR "protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief" (para. 2). This formula has already been quoted in various United Nations reports (E/CN.4/Sub.2/1987/26, para. 13; E/CN.4/1990/46, para. 110) and it is also used as a definition in the Madrid Final Document on School Education in relation with Freedom of Religion and Belief, Tolerance and Non-discrimination (E/CN.4/2002/73, Appendix).

46. In line with this reasoning, the Special Rapporteur follows the approach of interpreting the scope of application for freedom of religion or belief in a large sense, bearing in mind that manifestations of this freedom may be subject to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. Rosalyn Higgins, who is currently President of the International Court of Justice and was a member of the Human Rights Committee when its general comment No. 22 was drafted, "resolutely opposed the idea that States could have complete latitude to decide what was and what was not a genuine religious belief. The contents of a religion should be defined by the worshippers themselves; as for manifestations, article 18, paragraph 3, existed to prevent them from violating the rights of others". (CCPR/C/SR.1166, para. 48.) A similar statement was made by Abdelfattah Amor in his 1997 report to the Commission on Human Rights. There, the second mandate-holder emphasized that, apart from the legal courses available against harmful activities, " it is not the business of the State or any other group or community to act as the guardian of people's consciences and encourage, impose or censure any religious belief or conviction". (E/CN.4/1997/91, para. 99)

47. In this regard it seems to be particularly worrying when a religious community is empowered - either de jure or de facto - to decide about or to veto the registration of another religious or belief group. The Special Rapporteur would like to reiterate that registration should not be a precondition for practising one's religion, but only for the acquisition of a legal personality and related benefits. Furthermore, registration procedures should be easy and quick and they should neither depend on reviews of the substantive content of the belief nor on extensive formal requirements. Thus, requiring high minimum membership levels or a lengthy existence in the country concerned are no appropriate criteria for registration."

A/64/159, paras. 29-31 and 69:

“29. The mandate-holders’ reports illustrate that persons belonging to national or ethnic, religious and linguistic minorities are in a vulnerable situation with regard to their right to freedom of religion or belief. The identity of many minorities is defined by various aspects, and several instances of discrimination, for example when based both on racial and on religious motives, are aggravated by the effects of these multiple identities. Religious minorities face various forms of discrimination, for example with regard to official registration procedures or undue limitations when disseminating materials and displaying religious symbols. Furthermore, some religious minorities are adversely affected by manifestations of intolerance, threats or acts of violence perpetrated by non-State actors, which are often tolerated or encouraged by the authorities.

30. The Special Rapporteur would like to remind that persons belonging to minorities have the right to profess and practise their own religion, in private and in public, freely and without interference or any form of discrimination, as well as the right to participate effectively in cultural, religious, social, economic and public life. When abuses against members of religious minorities are committed by non-State actors, the human rights obligations of States also consist in ensuring the free exercise of freedom of religion or belief and bringing the perpetrators of discriminatory or violent acts to justice. States should also take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards. [See Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, article 4, para. 2.] The outcome document of the Durban Review Conference also affirms that the existence and the national or ethnic, cultural, religious and linguistic identity of minorities shall be protected, and that the persons belonging to these minorities should be treated equally and enjoy human rights and fundamental freedoms without discrimination of any kind. [A/CONF.211/L.1, para. 82.]

31. In many States in different regions of the world, members of so-called non-traditional or new religious movements are the object of suspicion, both on administrative and societal levels, and some of them are subjected to serious limitations of their right to freedom of religion or belief. The Special Rapporteur would like to reiterate that the terms “religion” and “belief” are to be interpreted in a broad sense and that human rights protection is not limited to members of traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The contents of a religion or belief should be defined by the worshippers themselves, while their freedom to manifest their religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. [...]

69. Members of religious minorities also remain vulnerable to violations of their right to freedom of religion or belief and other acts of religious intolerance. The Special Rapporteur would like to point out that a certain religion may be a minority in one part of the world and suffer as a result; however, it may constitute the religion of the majority of the population in another part of the world. Government officials and civil servants should be adequately trained in human rights standards and in this regard particular attention should be paid to freedom of religion or belief. More generally, States should take appropriate measures in the field of education in order to encourage a wider knowledge in the society at large of the history, traditions, language and culture of the various religious minorities existing within their territory. Furthermore, a public policy framework for pluralism and equality should ensure an equitable allocation of resources, including broadcasting frequencies, among public service, commercial and community media, so that together they represent the full range of cultures, communities and opinions in society. [See Camden Principles on Freedom of Expression and Equality, Principle 5; available online at www.article19.org/advocacy/campaigns/camden-principles.] While mainstreaming religious minorities, affirmative action is important in some areas in order to empower these minorities and raise awareness about their situation.”

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