The right to education is described by the UN Committee on Economic, Social and Cultural Rights as ‘both a human right in itself and an indispensable means of realizing other human rights.’ It is a basic right guaranteed by a variety of international instruments, as set out further below. The right to education should be accorded without distinction and should be accessible to all.

However, despite international obligations to make education readily accessible, minority groups are not always afforded this right. Although they may attend school, classes may be in a language they are unfamiliar with. Curriculums may also exclude information about their history, tradition and language, thus failing to protect their identity. Children facing such problems may be unable to participate fully due to linguistic problems and may face potential expulsion either for lack of participation or failure to attend classes in which they feel unable to contribute. In addition, there may be physical restrictions to education due to a lack of accessibility. Children from minority groups may have to travel large distances to attend school and this can be both time-consuming and expensive, and/or the costs of school uniforms and textbooks can be prohibitive. Failure to address these problems also prevents access to education.  The inclusion of minority groups in the decision-making process would allow education authorities to better understand the needs of these groups and to adjust the curriculum appropriately.

International instruments protecting the right to education

• Article 26, International Covenant on Civil and Political Rights
• Article 13, International Covenant on Economic Social and Cultural Rights
• Article 28, Convention on the Rights of the Child
• Article 17, African Charter on Human and Peoples’ Rights
• Article XII, OAS Declaration of the Rights and Duties of Man
• Protocol 2, Article 1 European Convention on Human Rights

Relevant jurisprudence

• Ashoka Kumar Thakur v. Union of India and Others, January 2006
• American update the Supreme Court and affirmative action, December 2003
• Brown v. Board of Education, May 1954
• Kjeldsen, Busk Madsen and Pedersen v. Denmark, December 1976
• Regents of the University of California v. Bakke, June 1978
• Seide v. Gillette Industries Ltd, September 1980
• Campbell and Cosans v. United Kingdom, February 1982
• Mandla and another v Dowell Lee and another, March 1983
• Family H. v. United Kingdom, March 1984
• Bilka – Kaufhaus GmbH v. Karin Weber von Hartz, May 1986
• R. v. East Sussex County Council, ex parte T, May 1994
• Motala and Another v University of Natal, February 1995
• Valsamis v. Greece, November 1996
• Eaton v. Brant County Board of Education, February 1997
• André Simpson v. the United Kingdom, February 1998
• Wittmann v. Deutscher Schulverein, Pretoria and Others, May 1998
• R v. Secretary of State for the Home Department ex parte Mbandaka, October 1998
• Campaign for Fiscal Equity v. State of New York, January 2001
• Coster v. the United Kingdom, January 2001
• Cyprus v. Turkey, May 2001
• Baqi & Ors v. Akram & Ors, October 2002
• Autism-Europe v. France, November 2002
• Arsenault-Cameron v. Prince Edward Island & Ors, January 2003
• Grutter v. Bollinger, June 2003
• Gratz v. Bollinger, June 2003
• Doucet-Boudreau v. Nova Scotia (Minister of Education), November 2003
• Gosselin (Tutor of) v. Quebec (Attorney General, Supreme Court of Canada), March 2005
• Jean and Bosico Children v. The Dominican Republic, September 2005
• D.H. and others v. The Czech Republic, February 2006
• R. and Headteachers of Y., February 2007

There is no international or regional human rights instrument which specifically deals with the right of indigenous peoples to their ancestral lands. Instead, the relevant provisions on this issue are scattered in various documents. ILO Convention no. 169 concerning indigenous and tribal peoples in independent countries dedicates one specific section on land which includes the government’s obligation to respect the indigenous peoples’ special relationship with their lands as well as to recognise their rights of ownership and possession over the traditional lands[1]. The UN Declaration on the Rights of Indigenous People obliges the government to ensure that there is no action taken over the traditional land of the indigenous people without their free, prior and informed consent.  ‘Free’ means the consent should be given by the community without any force, intimidation, manipulation, coercion or pressure by any government or company; ‘prior’ means the indigenous peoples’ consent should be asked prior to the government allocating land for particular land uses and prior to giving approval for specific projects.  It is also important that the indigenous community is well informed, that is, given all the relevant information in a language they understand and having access to independent information.

In addition to provisions which are directly related to indigenous peoples’ right to land, there are some other indirect but relevant provisions in regional and international instruments. The most common provision to use is concerning the right to property. The Inter-American Court of Human Rights (the IACtHR) was the first human rights body which interpreted the right to property to be understood as to include the right of indigenous people to communal property and not merely the right to private property[2]. A year after the IACtHR’s judgment, the African Commission on Human and Peoples’ Rights (the ACHPR) found that Nigeria had violated the right to property of the Ogoni people due to its condoning and facilitating violent attacks on and destruction of Ogoni villages by oil corporations in Ogoniland[3].  In its 2010 landmark decision on the Endorois case, the ACHPR also found that the Kenyan government’s dispossession of the Endorois people’s ancestral land amounted to a violation of the right to property as enshrined in Article 14 of the African Charter on Human and Peoples’ Rights.

Indigenous peoples have such a strong relationship with their land that the possession and access to the land is a precondition for them to survive and enjoy their fundamental rights. When indigenous peoples are denied access to their land, therefore, it is not only their right to land or right to property that is violated but often also other rights. In addition to a violation of the right to property, the ACHPR found in the Endorois case that the government of Kenya had violated the Endorois people’s right to practice their religion as the contested territory in this case was ‘of fundamental religious significance to all Endorois.'[4] It also ruled that a violation of the right to culture had occurred, since eviction from Endorois’ sacred lands prevented them from maintaining cultural practices, holding that ‘the restriction of cultural rights could not be justified, especially as no suitable alternative was given to the community.'[5]  The decision also found violations of the right to natural resources and the right to development in relation to the Kenyan government’s subsequent use of the contested land, without seeking the Endorois’ consent.[6]

The Committee on Economic, Social and Cultural Rights (the CESCR) has highlighted in its General Comment on the right to health that displacement of indigenous people against their will from their traditional territories ‘has a deleterious effect on their health.'[7]  In the Inter-American system, the IACtHR has established the jurisprudence that the denial of indigenous peoples’ right to their traditional land is a violation of the right to life as guaranteed in Article 4 (1) of the American Convention on Human Rights[8].

The Office of the High Commissioner for Human Rights and UN Human Settlements Programme has also published a joint report which, inter alia, draws the links between indigenous peoples’ access to their land, the right to self-determination and the right to housing. According to the report,

‘[t]he dispossession of indigenous peoples’ from their lands has robbed them of the ability and opportunity to use their own resources to control and determine their economic, social and cultural development. If they had access to their own land and control over their own and public resources, they would be in a better position to solve their housing problems themselves.'[9]

A community does not have to be indigenous to the territory they inhabit in order to have the right over the land. In Moiwana Community v Suriname, the IACtHR upheld that Moiwana Community was entitled to the land they inhabited even though it was undisputed that they were not indigenous to the region. This interpretation was reaffirmed in the case of Saramaka People v Suriname few years later.

Regional and international instruments protecting land rights

• The UN Declaration on the Rights of Indigenous People, Article 8 (2) (b), Article 10, Article 18, Article 19, Article 26, Article 29, Article 30;
• American Convention on Human Rights (Pact of San Jose), Article 4 (right to life), Article 21 (the right to property)
• African Charter on Human and Peoples’ Rights, Articles 19 – 24
• ILO Convention No. 169 concerning indigenous and tribal peoples in independent countries, Articles 4, 6, 7, 13 – 19
• ILO Convention No. 111 concerning discrimination (employment and occupation), Article 1 (3)
• International Convention on the Elimination of All Forms of Racial Discrimination, Article 5 (d) (v)
• General Recommendation No. 23 on Indigenous People, Committee on the Elimination of All Forms of Racial Discrimination
• International Covenant on Civil and Political Rights, Article 27
• International Covenant on Economic, Social and Cultural Rights, Article 1 on self-determination
• Convention on the Elimination of All Forms of Discrimination against Women, Article 14
• European Convention on Human Rights, Article 8
• Protocol No. 1 to the European Convention on Human Rights, Article 1

Relevant jurisprudence

• Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-American Court of Human Rights, 2001
• Maya Indigenous Community of the Toledo District v Belize, Inter-American Commission of Human Rights, 2004
• Yakye Axa Indigenous Community v Paraguay, Inter-American Court of Human Rights, 2005
• Moiwana Community v Suriname, Inter-American Court of Human Rights, 2005
• Sawhoyamaxa Indigenous Community v Paraguay, Inter-American Court of Human Rights, 2006
• Saramaka People v Suriname, Inter-American Court of Human Rights, 2007
• Xakmok Kasek Indigenous Community v Paraguay, Inter-American Court of Human Rights, 2010
• SERAC v Nigeria, African Commission on Human and Peoples’ Rights, 2002
• Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous People, 2007
• Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, African Commission on Human and Peoples’ Rights, 2010
• Poma Poma v Peru, Human Rights Committee, 2009
• Dogan and others v Turkey, European Court of Human Rights.

References

[1] ILO Convention No. 169 concerning indigenous and tribal peoples in independent countries, opened for signature June 26, 1989, part. III.

[2] Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, para. 148, Merits, reparations and costs, Series C No. 79, August 31 2001.

[3] SERAC v Nigeria, Comm. No. 155/96, p. 15, May 27, 2002.

[4] Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, Comm. No. 276/2003, para. 79, 2010.

[5] Id., para. 249.

[6] African Charter on Human and Peoples’ Rights

[7] General Comment No. 14 on the right to health, para. 27, Committee on the Economic, Social and Cultural Rights, UN Doc. E/C.12/2000/4.

[8] See, for instance, Case of the Yakye Axa Indigenous Community v Paraguay, para. 160 – 178, Merits, reparations and costs, Series C No. 125, June 17 2005.

[9] Indigenous peoples’ right to adequate housing: a global overview, p. 10, UN-HABITAT and OHCHR, 2005.

Linguistic rights protect the individual and collective right to choose one’s language or languages for communication both within the private and the public spheres.  They include the right to speak one’s own language in legal, administrative and judicial acts, the right to receive education in one’s own language, and the right for media to be broadcast in one’s own language.  For minority groups the opportunity to use one’s own language can be of crucial importance, since it protects individual and collective identity and culture as well as participation in public life.

Although Article 27 of the International Covenant on Civil and Political Rights ensures that linguistic minorities can use their own languages in their community, problems often exist at national level.  Whilst states are permitted to adopt a national language, and may adopt more than one, they cannot discriminate against minority languages that are not officially recognised. States have often restricted official use of minority languages due to the idea that it is ‘necessary’ to use only specified languages.  This can create a distinction between groups that do have their languages recognised – who are often ‘majority’ groups – and those that do not. This is exactly what anti-discrimination measures aim to prevent.  Yet it has taken a long while for restrictions on language to be viewed as discrimination, and the protection afforded to minority groups is still inadequate.

Restrictions on language rights can also impede minority groups indirectly.  Rules may prevent those who do not speak the national language from running for political posts, thus contradicting international obligations guaranteeing free elections. They may also result in court proceedings being grossly unfair, as they can be conducted in a language which certain people are not familiar with.  During consultations with the state, minority groups may also suffer as the government may insist that discussions are carried out in the national language, often resulting in lack of dialogue and understanding for the minority. Children may also suffer as they may be taught in a language with which they are unfamiliar. Governments have even restricted the use of certain names, thereby not allowing minority groups to enjoy traditional cultural practices and breaching their right to a private and family life.

Regional and international instruments which protect linguistic rights

• http://www.un.org/en/documents/udhr/index.shtml#a2    Article 2 Universal Declaration of Human Rights
• http://www2.ohchr.org/english/law/ccpr.htm#art27    Article 27 International Covenant on Civil and Political Rights
• http://www1.umn.edu/humanrts/instree/z1afchar.htm    Article 2 African Charter on Human and Peoples’ Rights
• http://www.hrcr.org/docs/American_Convention/oashr3.html    Article 1 American Convention on Human Rights
• http://www.hri.org/docs/ECHR50.html#C.Art14    Article 14 European Convention on Human Rights

Relevant jurisprudence

• ‘Belgian Linguistic’ case July 1968
• Dominique Guesdon v. France July 1990
• John Ballantyne et al v. Canada March 1993

Non-discrimination is a basic principle of international human rights law.  A frequently used definition of discrimination is set out in Article 1 (1) of the International Convention on the Elimination of All Forms of Racial Discrimination as follows,

‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment of exercise, on an equal footing, of human rights and fundamental freedoms in the political, economical, social, cultural or any other field of public life.'[i]

There is no requirement to demonstrate discriminatory intent.  The phrase “purpose or effect” refers to legislation and/or policies which may be textually neutral but are interpreted in a manner that results in discrimination.

Although the above definition only covers the practice of discrimination based on grounds of race, colour, descent and national or ethnic origin, any unjustifiable differential treatment based on sex, language, religion, political or other opinions, property, birth and another status can also amount to discrimination.[ii]  As pointed out by the Committee on Economic, Social and Cultural Rights (the CESCR), the inclusion of ‘other status’ indicates that ‘the list is not exhaustive and other grounds may be incorporated in this category.'[iii]  The grounds which may fall within the scope of the ‘other status’ category are still a matter of debate, although the CESCR has stated that they include, but are not limited to disability, age, nationality, marital and family status, sexual orientation and gender identity, health status, place of residence, economic and social situation.[iv]

International human rights law prohibits both direct and indirect discrimination.  Direct discrimination involves treating people differently based on prohibited grounds without any objective reasons.  Indirect discrimination takes place when laws, policies or practices that appear to be neutral have a disproportionate impact on particular groups.[v]  The requirement to wear a uniform to attend school, for instance, may not appear to exclude any particular groups within society; yet it will often disproportionately affect minority and marginalised children, since they may not be able to afford to buy the school uniform.

Not all differential treatment amounts to discrimination.  Such treatment can be justified where it is objective and reasonable, that is, where it pursues a legitimate aim and has a reasonable relationship of proportionality between the means employed and the aim sought to be realised. For example, a policy excluding persons aged over 60 from being employed as airline pilots might on the first examination appear to constitute age discrimination, yet it is probably justifiable if it is aimed at ensuring safety.

In other circumstances, different treatments are sometimes necessary to correct past injustice and to enhance equality. This ‘positive type of discrimination’ is called affirmative action which is not only permissible but, furthermore, an obligation of states.[vi]

Regional and international instruments protecting the right to non-discrimination

• The Universal Declaration of Human Rights, Article 1 and Article 2;
• International Convention on the Elimination of All Forms of Racial Discrimination;
• Convention on the Elimination of All Forms of Discrimination against Women;
• International Covenant on Civil and Political Rights, Article 2 (1), Article 3 and Article 26;
• Human Rights Committee General Comment No. 18 on Non-Discrimination;
• International Covenant on Economic, Social and Cultural Rights, Article 2 (2) and Article 3;
• Committee on Economic, Social and Cultural Rights General Comment No. 20 on Non-discrimination in economic, social and cultural rights;
• Convention on the Rights of the Child, Article 2 (1);
• International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 1 (1);
• Convention on the Rights of Persons with Disabilities, Article 3 (b) and Article 5;
• European Convention on Human Rights, Article 14;
• Protocol No. 12 to the European Convention on Human Rights, Article 1;
• Explanatory Report of the Protocol No. 12 to the European Convention on Human Rights;
• European Social Charter, Article 20 and Article E of Part V;
• American Declaration of the Rights and Duties of Man, Paragraph 1 of the Preamble and Article II;
• American Convention on Human Rights (Pact of San Jose), Article 1;
• Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), Article 3;
• Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities;
• African Charter on Human and Peoples’ Rights, Article 2;
• Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Article 2.

Relevant jurisprudence

• ‘Belgian Linguistic’ case, European Court of Human Rights, 1968;
• F. H. Zwaan-de Vries v. The Netherlands, Human Rights Committee, 1990;
• Larissis and others v Greece, 1998;
• Waldman v Canada, Human Rights Committee, 1999;
• Amnesty International v Zambia, Human Rights Committee, 1999;
• Thlimmenos v Greece, European Court of Human Rights, 2000;
• Antonina Ignatane v Latvia, Human Rights Committee, 2001;
• Purohit and Moore v Gambia, African Commission on Human and Peoples’ Rights, 2001;
• Dahlab v Switzerland (decision), European Court of Human Rights, 2001;
• John K. Love, William L. Bone, William J. Craig and Peter B. Ivanoff v Australia, Human Rights Committee, 2003;
• Autism Europe v. France, European Committee on Social Rights, 2003;
• Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion, Inter-American Court of Human Rights, 2003;
• Leyla Sahin v Turkey, European Court of Human Rights, 2005;
• Case of D. H. and others v. The Czech Republic, European Court of Human Rights, 2007;
• Finci v Bosnia and Herzegovina, European Court of Human Rights, 2009;
• Kiyutin v. Russia, European Court of Human Rights, 2011.

References

[i] International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature December 21, 1965, Art. 1 (1), 195 UNTS 660.

[ii] See Article 2 (1) of the International Covenant on Civil and Political Rights as well as Article 2 (2) of the International Covenant on Economic, Social and Cultural Rights.

[iii] General Comment No. 20 on Non-discrimination in economic, social and cultural rights, para. 15, Committee on Economic, Social and Cultural Rights, 42nd Sess., UN Doc. E/C.12/GC/20.

[iv] Id., para. 27 – 35.

[v] See Minority Rights Group’s Guide on Minority Rights and Litigation: A review of development in international and regional jurisprudence, p. 7, 2011.

[vi] General Comment No. 18 on Non-discrimination, para. 10, Human Rights Committee, 37th Sess., 10/11/1988.

External links

• European Commission Tackling Discrimination
• The Information Campaign ‘For Diversity – Against Discrimination

In order to contribute to the running of a democratic state, citizens must be offered the chance to participate. This includes the rights to vote, to stand for elections, to have political parties registered, and, particularly in the case of indigenous groups, the right to be consulted about decisions that affect them.  As majority political parties generally shape public policy, minority groups can often be discriminated against when it comes to decision-making.  By not allowing minority groups any say on national matters, governments prevent them from partaking and from feeling a sense of co-ownership.

International instruments guarantee the right to vote and to stand in elections, which are essential in a democratic society.  However, members of minority groups can be forbidden from participating in the electoral process. This is the case in Bosnia and Herzegovina when a recent case found that prohibiting Jews and Roma from standing in the national election prevented their effective participation.  The banning of political parties also prevents effective participation.  Whilst states may attempt to justify such measures based on national security, the reality can be that a minority party is being discriminated against for not agreeing with majority rule.

For minorities and especially indigenous groups, the lack of consultation on decisions affecting them can severely hamper their participation.  For example, governments must consult with them on decisions that concern their land, and must have consideration for their customary traditions.  Although consultation may occur, it is often far from effective and involves very little input on behalf of the indigenous community.  It may be in a language the community is unfamiliar with, those consulted may not be a representative group from the community or the community may not be given a chance to raise their concerns about the government’s proposals. Even more alarming are situations in which no consultation is held at all.

Regional and international instruments which protect the right to consultation

• Article 15 Framework Convention for National Minorities
• General Comment 23 on Article 27 International Covenant on Civil and Political Rights
• Article 25 International Covenant on Civil and Political Rights
• Article 5(c) Convention on the Elimination of Racial Discrimination
• Article 23 American Convention on Human Rights
• Article 13 African Charter on Human and Peoples’ Rights
• Article 3 of Protocol 1 European Convention on Human Rights
• Article 27 International Covenant on Civil and Political Rights
• Articles 5(d)(v) and 5(e)(vi) Convention on the Elimination of Racial Discrimination
• Article 14 African Charter on Human and Peoples’ Rights
• Article 21 American Convention on Human Rights

Relevant jurisprudence

• United Communist party v. Turkey January 1998
• Socialist party v Turkey May 1998
• Sidiropulos and others v. Greece July 1998
• Stankov and Ilinden v. Bulgaria October 2001
• Podkolzina v. Latvia April 2002
• Finci & Sejdic v BiH – (view MRG press release and also briefing paper on this case)
• MAYA (BELIZE) case

The particular religious and philosophical beliefs held by a minority group are often what distinguishes them from the majority.  It is therefore vital that the rights relating to religion and spirituality are protected in both law and fact.  They include the right to freedom of conscience, thought and religion; the right to profess or not to profess to a religion; the right to change religion and protection against coercion to change religion; the right to manifest religion; and finally, the right of parents to have their children educated in line with their particular beliefs and convictions. However, the practice of forced assimilation still occurs in countries in which there is a dominant majority religion.

According to obligations set out in international treaties, states must allow groups and not just individuals the opportunity to practice and manifest their religious beliefs. Majority religious groups should be afforded no preferential treatment by governments, even if they are the recognised state religion. Although the right to manifest one’s beliefs is not an absolute right, any restrictions imposed by the state must be prescribed by law, necessary in a democratic society and for the purpose of serving the public.  Therefore, no state should restrict this right just because the religion in question is not the recognised state religion, or because of differing beliefs.

One particular right allows parents to withdraw their children from particular classes if they do not feel the teachings are in line with their own religious and moral convictions.  This can be crucial for minority groups, as state education may reflect the views of the majority religion, possibly to the detriment of other religious groups.

Regional and international instruments which protect the right to freedom of religion

• Article 18 International Covenant on Civil and Political Rights
• Article 18 Universal Declaration of Human Rights
• Article 9 European Convention on Human Rights
• Article 6 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief
• Article 12 American Convention on Human Rights
• Article 8 African Charter on Human and Peoples’ Rights

Relevant jurisprudence

• Kokkinakis v. Greece May 1993
• Manoussakis and Others v. Greece September 1996
• Wingrove v. UK November 1996
• Cha’are Shalom Ve Tsedek v. France March 1999
• Serif v. Greece December 1999
• Thlimmenos v. Greece April 2000
• Hasan and Chaush v. Bulgaria October 2000
• Dahlab v. Switzerland January 2001
• Refah Partisi and Others v. Turkey July 2001

Article 1 of the Declaration on the Right to Development states that:

“[t]he right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized”.

Therefore, as beneficiaries of the right to development, all human persons should be included and fully consulted in any development which affects them.  It is the duty of the state to ensure that they have equal and adequate access to essential resources and it falls upon the international community to promote fair development policies and effective international cooperation.

The right to development encompasses all other human rights whether civil, political, economic, social or cultural. It is the only human right that embodies principles of equality, non-discrimination, participation, transparency, accountability as well as international cooperation in an integrated manner.  It also facilitates a holistic approach to the issue of poverty by addressing its systemic and structural causes.

However, despite efforts by the UN to promote effective cooperation for the realization of the right to development, it is evident that minorities all over the world, particularly from developing countries, still suffer as a result of poverty stemming from the violation of their right to development. In the “Endorois case”[1] the African Charter on Human and Peoples Rights (ACHPR) grounded its finding of a violation of the right to development in the Kenyan government’s failure to guarantee the Endorois community effective participation in development processes regarding their ancestral land and to guarantee them a reasonable share in the profits realized from the land after the Government had facilitated their forceful eviction. Minorities are regularly exposed to abuses, and the state provides little security.

Regional and international instruments which protect the right to development

• UN Declaration on the Right to Development
• Article 22 The African Charter on Human and Peoples’ Rights
• Article 10 of the Vienna Declaration and Programme of Action
• Principle 3 of the Rio Declaration on Environment and Development
• Article 23 of the Declaration on the Rights of Indigenous Peoples
• Article 37 of the Arab Charter on Human Rights
• Section III Article 11 of the UN Millennium Declaration
• The 2002 Monterrey Consensus

Relevant jurisprudence

• Centre for Minority Rights Development (on behalf of the Endorois Community) v Kenya
• 260/02 : Bakweri Land Claims Committee v Cameroon

Other relevant MRG publications

In 2003, MRG published an issues paper entitled The Right to Development: Obligations of States and the Rights of Minorities and Indigenous Peoples. The authors of this publication are Margot Salomon, former MRG legal standards officer, and Arjun Sengupta, the former Independent Expert on the Right to Development. Readers are able to access each section individually by clicking on the table of contents.

References

[1] 276 / 2003 – Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya.

The Charter of the United Nations first enshrined the right of self-determination for all peoples. It has however been the subject of extensive debate and controversy. Both the content of the right as well as who can assert it continue to evolve in international law.

According to the International Covenant on Civil and Political Rights (the ICCPR), ‘[a]ll peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.'[i] The right to self-determination also has its economic content which gives the peoples the right to freely ‘dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law.'[ii] The phrase ‘all peoples’ – instead of ‘everyone’- attached to the right to self-determination indicates that the right to self-determination is a collective right; that is, only a ‘people’, not an individual, can exercise the right.

Initially conceived, the right to self-determination belonged to the population, or people, of a fixed territorial entity, specifically peoples oppressed by a colonial power. The Declaration on the Granting of Independence to Colonial Countries and Peoples and the jurisprudence of the International Court of Justice emphasise the connection between the right to self-determination and the peoples of colonized territories. In this context, the right to self-determination is “externally” exercised by secession from a colonial power to form a new state. The right of colonial peoples to external self-determination is well established in international law.

More recently, it has been postulated that the right to self-determination can be exercised ‘internally’ as well.[iii] Internal self-determination allows a people broader control over their political, economic, social and cultural development while stopping short of secession. The development of a new conception of ‘peoples’ has evolved with the development of the idea of internal self-determination. In this context, the definition of ‘peoples’ is not only limited to the population of a fixed territorial entity but also encompasses indigenous groups and potentially some minorities. Although there is no fully accepted definition of peoples, references are often made to a definition proposed by UN Special Rapporteur Martínez Cobo in his study on discrimination against indigenous populations:

‘Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.'[iv]

International instruments protecting the right to self-determination

• Charter of the United Nations, Article 1 (2);
• The African Charter on Human and Peoples’ Rights, Article 20 (1);
• International Covenant on Civil and Political Rights, Article 1;
• General Comment No. 12 on self-determination, Human Rights Committee;
• International Covenant on Economic, Social and Cultural Rights, Article 1 (1);
• International Convention on the Elimination of All Forms of Racial Discrimination;
• General Recommendation No. 21 on right to self-determination, Committee on the Elimination of Racial Discrimination;
• Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States;
• UN Declaration on the Granting of Independence to Colonial Countries and Peoples;
• Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities;
• The Helsinki Final Act, Declaration on Principles Guiding Relations between Participating States, Article VIII;
• UN General Assembly resolution 1803 (XVII) of 14 December 1962, “Permanent sovereignty over natural resources”.

Relevant jurisprudence

• Legal consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding with Security Council Resolution 276 (Namibia case) International Court of Justice, 1970;
• Western Sahara case, International Court of Justice, 1975;
• Portugal v Australia (East Timor case), International Court of Justice, 1995;
• Lubicon Lake Band v Canada (Ominayak case), Human Rights Committee, 1990;
• E.P v Colombia, Human Rights Committee, 1990;
• A.B et al v Italy, Human Rights Committee, 1990;
• R. L et al v Canada, Human Rights Committee, 1991;
• Diergaardt et al v Namibia, Human Rights Committee, 2000;
• Äärelä and Näkkäläjärui v. Finland, Human Rights Committee, 2001;
• Gillot v France, Human Rights Committee, 2002.

References

[1] The International Covenant on Civil and Political Rights, opened for signature December 16, 1966, Art. 1 (1), 999 UNTS 171.

[2] Id., Art. 1 (2).

[3] See, for instance, General Recommendation No. 21, Committee on the Elimination of Racial Discrimination, para. 4, 23/08/1996.

[4] Jose R. Martinez Cobo, Study of the Problem of Discrimination Against Indigenous Populations, Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, UN Doc. E/CN.4/Sub.2/1986/7/Add.4 (1986).