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The
following document which gives the legal interpretation of the Art. 27 of the
International Covenant on Civil and Political Rights has been mirrored from the
UNHCHR website. All the bolds are mine. You can see the original
authentic web page in the address below:
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CCPR+General+comment+23.En?OpenDocument
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The
rights of minorities (Art. 27) : . 08/04/94. CCPR General comment 23. (General
Comments)
GENERAL COMMENT 23
The rights of minorities
(Article 27)
(Fiftieth session, 1994)
1. Article 27 of the Covenant provides that, in those States in which ethnic,
religious or linguistic minorities exist, persons belonging to these 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 Committee observes that this article
establishes and recognizes a right which is conferred on individuals belonging
to minority groups and which is distinct from, and additional to, all the other
rights which, as individuals in common with everyone else, they are already
entitled to enjoy under the Covenant.
2. In some communications submitted to the Committee under the Optional
Protocol, the right protected under article 27 has been confused with the right
of peoples to self-determination proclaimed in article 1 of the Covenant.
Further, in reports submitted by States parties under article 40 of the
Covenant, the obligations placed upon States parties under article 27 have
sometimes been confused with their duty under article 2.1 to ensure the
enjoyment of the rights guaranteed under the Covenant without discrimination
and also with equality before the law and equal protection of the law under
article 26.
3.1. The Covenant draws a distinction between the right to
self-determination and the rights protected under article 27. The former is
expressed to be a right belonging to peoples and is dealt with in a separate
part (Part I) of the Covenant. Self-determination is not a right
cognizable under the Optional Protocol. Article 27, on the other hand,
relates to rights conferred on individuals as such and is included, like the
articles relating to other personal rights conferred on individuals, in Part
III of the Covenant and is cognizable under the Optional Protocol.
1/
3.2. The enjoyment of the rights to which article 27 relates does not
prejudice the sovereignty and territorial integrity of a State party. At
the same time, one or other aspect of the rights of individuals protected under
that article - for example, to enjoy a particular culture - may consist in a
way of life which is closely associated with territory and use of its resources.
2/ This may particularly be true of members of
indigenous communities constituting a minority.
4. The Covenant also distinguishes the rights protected under article 27 from
the guarantees under articles 2.1 and 26. The entitlement, under article 2.1,
to enjoy the rights under the Covenant without discrimination applies to all
individuals within the territory or under the jurisdiction of the State whether
or not those persons belong to a minority. In addition, there is a distinct
right provided under article 26 for equality before the law, equal protection
of the law, and non-discrimination in respect of rights granted and obligations
imposed by the States. It governs the exercise of all rights, whether protected
under the Covenant or not, which the State party confers by law on individuals
within its territory or under its jurisdiction, irrespective of whether they
belong to the minorities specified in article 27 or not.
3/ Some States parties who claim that they do not
discriminate on grounds of ethnicity, language or religion, wrongly contend, on
that basis alone, that they have no minorities.
5.1. The terms used in article 27 indicate that the persons designed to be
protected are those who belong to a group and who share in common a culture, a
religion and/or a language. Those terms also indicate that the individuals
designed to be protected need not be citizens of the State party. In this
regard, the obligations deriving from article 2.1 are also relevant, since a
State party is required under that article to ensure that the rights protected
under the Covenant are available to all individuals within its territory and
subject to its jurisdiction, except rights which are expressly made to apply to
citizens, for example, political rights under article 25. A State party may
not, therefore, restrict the rights under article 27 to its citizens alone.
5.2. Article 27 confers rights on persons belonging to minorities which
"exist" in a State party. Given the nature and scope of the rights
envisaged under that article, it is not relevant to determine the degree of
permanence that the term "exist" connotes. Those rights simply are
that individuals belonging to those minorities should not be denied the right,
in community with members of their group, to enjoy their own culture, to practise
their religion and speak their language. Just as they need not be nationals or
citizens, they need not be permanent residents. Thus, migrant workers or even
visitors in a State party constituting such minorities are entitled not to be
denied the exercise of those rights. As any other individual in the territory
of the State party, they would, also for this purpose, have the general rights,
for example, to freedom of association, of assembly, and of expression. The
existence of an ethnic, religious or linguistic minority in a given State party
does not depend upon a decision by that State party but requires to be
established by objective criteria.
5.3. The right of individuals belonging to a linguistic minority to use their
language among themselves, in private or in public, is distinct from other
language rights protected under the Covenant. In particular, it should be
distinguished from the general right to freedom of expression protected under
article 19. The latter right is available to all persons, irrespective of
whether they belong to minorities or not. Further, the right protected under
article 27 should be distinguished from the particular right which article 14.3
(f) of the Covenant confers on accused persons to interpretation where they
cannot understand or speak the language used in the courts. Article 14.3 (f)
does not, in any other circumstances, confer on accused persons the right to
use or speak the language of their choice in court proceedings.
4/
6.1. Although article 27 is expressed in negative terms, that article,
nevertheless, does recognize the existence of a "right" and requires
that it shall not be denied. Consequently, a State party is under an obligation
to ensure that the existence and the exercise of this right are protected
against their denial or violation. Positive measures of protection are,
therefore, required not only against the acts of the State party itself,
whether through its legislative, judicial or administrative authorities, but
also against the acts of other persons within the State party.
6.2. Although the rights protected under article 27 are individual rights, they
depend in turn on the ability of the minority group to maintain its culture,
language or religion. Accordingly, positive measures by States may also be
necessary to protect the identity of a minority and the rights of its members
to enjoy and develop their culture and language and to practise their religion,
in community with the other members of the group. In this connection, it has to
be observed that such positive measures must respect the provisions of articles
2.1 and 26 of the Covenant both as regards the treatment between different
minorities and the treatment between the persons belonging to them and the
remaining part of the population. However, as long as those measures are aimed
at correcting conditions which prevent or impair the enjoyment of the rights
guaranteed under article 27, they may constitute a legitimate differentiation
under the Covenant, provided that they are based on reasonable and objective
criteria.
7. With regard to the exercise of the cultural rights protected under
article 27, the Committee observes that culture manifests itself in many
forms, including a particular way of life associated with the use of land
resources, especially in the case of indigenous peoples. That right may
include such traditional activities as fishing or hunting and the right to live
in reserves protected by law.
5/ The enjoyment of those rights may require
positive legal measures of protection and measures to ensure the effective
participation of members of minority communities in decisions which affect them.
8. The Committee observes that none of the rights protected under article 27
of the Covenant may be legitimately exercised in a manner or to an extent
inconsistent with the other provisions of the Covenant.
9. The Committee concludes that article 27 relates to rights whose protection
imposes specific obligations on States parties. The protection of these rights
is directed towards ensuring the survival and continued development of the
cultural, religious and social identity of the minorities concerned, thus
enriching the fabric of society as a whole. Accordingly, the Committee observes
that these rights must be protected as such and should not be confused with
other personal rights conferred on one and all under the Covenant. States
parties, therefore, have an obligation to ensure that the exercise of these
rights is fully protected and they should indicate in their reports the
measures they have adopted to this end.
Notes
1/ See Official Records of the General Assembly, Thirty-ninth
Session, Supplement No. 40 (A/39/40), annex VI, General Comment No. 12 (21)
(article 1), also issued in document CCPR/C/21/Rev.1; ibid., Forty-fifth
Session, Supplement No. 40, (A/45/40), vol. II, annex IX, sect. A,
Communication No. 167/1984 (Bernard Ominayak, Chief of the Lubicon Lake Band
v. Canada), views adopted on 26 March 1990.
2/ See ibid., Forty-third Session, Supplement No. 40 (A/43/40),
annex VII, sect. G, Communication No. 197/1985 (Kitok v. Sweden), views
adopted on 27 July 1988.
3/ See ibid., Forty-second Session, Supplement No. 40 (A/42/40),
annex VIII, sect. D, Communication No. 182/1984 (F.H. Zwaan-de Vries v. the
Netherlands), views adopted on 9 April 1987; ibid., sect. C, Communication
No. 180/1984 (L.G. Danning v. the Netherlands), views adopted on 9 April
1987.
4/ See ibid., Forty-fifth Session, Supplement No. 40, (A/45/40), vol.
II, annex X, sect. A, Communication No. 220/1987 (T.K. v. France),
decision of 8 November 1989; ibid., sect. B, Communication No. 222/1987 (M.K.
v. France), decision of 8 November 1989.
5/ See notes 1 and 2 above, Communication No. 167/1984 (Bernard Ominayak,
Chief of the Lubicon Lake Band v. Canada), views adopted on 26 March 1990,
and Communication No. 197/1985 (Kitok v. Sweden), views adopted on 27
July 1988.
� Copyright 1999
Office of the United Nations High Commissioner for Human Rights
Geneva,
Switzerland
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