COMMENTARY TO THE DECLARATION ON THE RIGHTS OF PERSONS BELONGING TO NATIONAL OR ETHNIC, RELIGIOUS AND LINGUISTIC MINORITIES
Working paper submitted bv Asbjorn Eide

I. Introduction

At its third session held in May 1997, the Working Group on Minorities recommended the preparation of a
commentary or interpretation of the Declaration on the Rights of Persons belonging to National or Ethnic,
Religious and Linguistic Minorities adopted by the General Assembly in December 1992. In my capacity as
Chairman I have prepared a draft for discussion and comments. It draws not only on my own previous work¹ but
also the work of several other authors on the subject of minority rights. Attention should be given, in particular, to Patrick Thornberry’s analysis of the Declaration ² and to work underway on the interpretation of minority instruments by Dr. Maria Lundberg ^3.
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¹Eide, Asbjorn: Peaceful and Constructive Resolution of Situations involving Minorities. Tokyo, United Nations University, 1995.

²Thornberry, Patrick: “The UN Minority Rights Declaration” edited by Alan Phillips and Allan Rosas; published by Abo Akademi University Institute for Human Rights and Minority Rights Group International, Abo(Turku) 1995.

³Dr. Maria Lundberg is presently completing a survey and interpretation of international minority instruments. She draws on her doctoral thesis ‘Special Measures for the Protection of Minorities’, Thesis No.556, Institut Universitaire de Hautes Etudes Internationales, Geneve 1997.
GE .98-12717
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II.  Purposes of the Declaration: advancing human rights and the principles of the UN Charter.

The aims of the declaration of 1992 are set out in its preamble.  It starts by reaffirming human rights and makes it clear that the Declaration is intended to contribute to the realization of the principles of the United Nations, which include the maintenance of peace, territorial integrity,  and cooperation in the solution of common problems, as well as the realization of the human rights instruments adopted at the universal or regional level.  In pursuit of these aims, the preamble expresses the conviction that the promotion an d protection of rights of minorities contribute to the stability of states, and that this also contributes to the strengthening of friendship and cooperation among states.  It underlines that the United Nations has an important role to play regarding the protection of minorities, and that important work already has been undertaken, but that more effective implementation of international human rights instruments is required with regard to members of minorities.  It is for these purposes that the General Assembly proclaimed the Declarations.

In sum, therefore the Declaration is intended to strengthen the implementation of human rights in so far as minorities are concerned, within the context of the principles of the United Nations Charter.  It builds on but adds to the individual rights contained in the ‘regular’ human rights instruments, and its main addition is to emphasize those rights contained in the ‘regular’ human rights instruments, and its main addition is to emphasize those rights which serve to protect and promote the identity of persons belonging to minorities.  It is in this light that the individual articles must be interpreted.
 

III. Interpretation of, and comments to, the individual articles.

Article 1

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.

 Protection of minorities is based on three requirements: Non-exclusion, non-assimilation and non-descrimination .  The first requirement is to protect the existence of minorities.  This includes their physical existence, their continued existence on the territories on which the minorities live, and the continued access  to the material resources required to continue their existence on those territories.  They shall neither be physically excluded from the territory nor be excluded from access to the resources required for their lively hood.  The right to existence in its physical sense is sustained by the Convention on the Prevention and Punishment of the Crime of Genocide, which codified customary law in 1948.  Forced population transfers intended or with the effect to move members of minorities away from the territory on which they live would constitute serious breaches of contemporary international standards.

The second requirement is to protect the identity. Many recent international instruments use the term ‘identity’, which expresses a clear trend towards the protection and promotion of cultural diversity both internationally and internally to states. Relevant provisions are Articles 29 and 30 of the Convention on the Rights of the Child, Article 31 of the UN Migrant Workers Convention, Article 2(2)(b) of ILO Convention No.169, which refers to respect for the social and cultural identity’, customs and traditions and institutions of indigenous peoples, as well as in regional instruments such as the OSCE 1990 Copenhagen Human Dimension Conference and the European Framework Convention for the Protection of Minorities as well as the Geneva Meeting of  Experts on National Minorities 1991.

         Identity, is essentially cultural, and requires not only tolerance but a positive attitude of cultural
pluralism by the state and the larger society.   Required is not only acceptance but also respect for the distinctive characteristics and contribution of minorities in the life of the national society as a whole. Protection of the identity means not only that the state shall abstain from policies which have the purpose or effect of assimilating the minorities into the dominant culture, but also that it shall protect them against activities by third parties which have assimilatory effect. Crucial in these regards are the language policies and the educational policies of the state concerned. Denying minorities the possibility to learn their own language, or excluding from the education of minorities transmission of the knowledge of their own culture, history, tradition and language, would be a violation of the obligation to protect their identity
 

The third requirement is to encourage conditions for the promotion of their identity. This goes beyond mere protection, and requires special measures intended to facilitate the maintenance, reproduction and further development of the culture of the minorities. Cultures are not static, but minorities should be given the opportunity to develop their own culture in the context of an ongoing process. It should be an interaction between the members of the minority themselves, between the minority and the state, and between the minority and the wider national society. The measures required to achieve this purpose is set out in greater detail in article 4 of the Declaration.
 

1.2 States shall adopt appropriate legislative and other measures to achieve those ends.
 

Article 1(2) requires ‘appropriate legislative and other measures’. Legislation is required and must be complemented by other measures in order to ensure that Article I can be effectively implemented. Both process and content here is important. In terms of process, it is essential that the state consult the minorities on what would constitute appropriate measures. This is expressly stated in Article 2(3) of the Declaration. Different minorities may have different needs which must be taken into account. Any differences in policy, however, must be based on objective and reasonable grounds in order to avoid discrimination. In general terms the content of the measures which have to be adopted are set out in the other provisions of the Declaration, particularly Articles 2 and 4, which will be discussed below.
One set of measures follow directly from Article 1(1): States must adopt laws protecting against acts or the incitement to such acts which threaten the existence of groups physically 0: their identity. This obligation follows also from the International Convention on the Elimination of All Forms of Racial Discrimination, which also includes ethnic discrimination.  In accordance with Article 4 of that convention, states must adopt legislative measures intended to protect groups against hatred and violence on national or ethnic, racial, religious and linguistic grounds.

Article 2

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 practice their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.
 

Article 27 of the ICCPR has almost the same language, but the Declaration has taken one step further. Under Article 27, the language used is that the members of the minorities ‘shall not be denied the right’; whereas the Declaration of 1992 uses the positive term that they ‘have the right”. This goes beyond mere passive non-interference, as evidenced also by Article 1 which requires promotion of the condition for their identity, and Article 4, which require specified, active measures by the state.

It is not enough that the state abstains from interference or discrimination, it must also ensure that private parties and organizations of the larger society do not interfere or discriminate.  This follows from the words “freely and without interference or any form of discrimination”.

2.2 Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life.

While members of minorities have the right to preserve their own group identity, they also have a right to participate in all aspects of the life of the larger national society. This is essential both in order for them to promote their interests and values and to create an integrated but pluralist society based on tolerance and dialogue. By their participation in all forms of public life in their country, they are able both to shape their own destinies and to contribute to the political evolution in the larger society.
Under the words ‘public life”, political and administrative domains are also included.  Participation can be ensured in many ways, including the use of minority associations (see also Article 2.4), and through their free contacts both inside the state and across borders (see Article 2.5)
2.3 Persons belonging to minorities have the right to participate effectively in decisions on the national, and where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.

Effective participation may take various forms. In the 1991 CSCE Meeting of Experts on National Minorities in Geneva, states there assembled noted approaches used with positive results in some of the participating states, such as:
- Advisory’ and decision-making bodies in which minorities are represented, in particular with regard to education, culture and religion;
- Elected bodies and assemblies of national minority affairs;
- Local and autonomous administration, as well as autonomy on a territorial basis, including the existence of consultative, legislative and executive bodies chosen through free and periodic elections;
- Self-administration by a national minority of aspects concerning its identity in situations where autonomy on a territorial basis does not apply;
- Decentralized or local forms of government⁴
 

Members of minorities, like all others, are entitled to assemble and to form their associations, and thereby to aggregate their interests and values to make the greatest possible impact on national and regional decision-making. They are entitled to set up and make use of ethnic, cultural and religious associations and societies, as well as political parties.

Since the numbers of minorities by definition are too small to determine the outcome, it is required as a minimum that members of minorities have the right to have their opinions heard and fully taken into account before decisions which concern them are adopted. A wide range of constitutional and political measures are used around the world to provide access for minorities to decision-making. Due to the great variations in situations no general recipe is possible, but the Declaration requires that appropriate measures are made which have to take into account the situation, numbers and context of the minority concerned. Minorities compactly settled in particular regions should be given real influence on local decision-making.   While the participation shall not be incompatible with national legislation, such legislation must be.

In the election laws of plural societies, proportional representation is likely to facilitate effective participation of minorities much better than single constituency majority elections. Consociational democracy which ensures a place for minorities in executive government can in some cases be the best avenue. In other cases is the enhancement of effective participation best served by federalist systems with an ethnic orientation or by other forms of territorial subdivisions.
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 ⁴ Report of the CSCE Meeting of Experts on National Minorities, Geneva, 19 July 199~, Part IV. Text in A. Bloed (Ed.), The Conference on Security and Cooperation in Europe (above, note 2), pp.593-604. See also the second progress report of Special Rapporteur A. Eide on Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems Involving Minorities, UN Doc. E/CN.4/Sub.2/1992/37, paragraphs 122-155.
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2.4 Persons belonging to minorities have the right to establish and maintain their own associations.

The term “association’ includes ‘organization’ and the establishment of their own institutions.  Members of minorities are entitled, in the same way as other members of society, to set up any association they may want. These may include educational or religious institutions, but their right to association is not limited to those related to their cultural, linguistic or religious identity. The right to associate extends both to national and to international associations. The only limits are those which also apply to members of majorities, which are that they cannot associate for purposes which are contrary to the rights and freedoms of others or which promote and incite racial discrimination or are contrary to legitimate national law.

2.5 Persons belonging to minorities have the right to establish and maintain, without any discrimination, free and peaceful contacts with other members of their group and with persons belonging to other minorities, as well as contacts across frontiers with citizens of other states to whom they are related by national or ethnic, religious or linguistic ties.

Patrick Thornberry has observed that the right to contacts is three-sided. Permitting (a) intra-minority contacts; (b) inter-minority contacts; and (c) transfrontier contacts. The right to intra-minority contacts is inherent in the right to association. The inter-minority contacts make it possible for members of minorities to share experience and information and to develop a common minority platform within the state. The right to transfrontier contacts constitute the major innovation of the Declaration, and serves in part to overcome some of the negative consequences of the often unavoidable division of ethnic groups by international frontiers. Such contacts, however, must be free and peaceful. The main point here is that the transfrontier contacts should not be used for purposes of irredentism or secession.

Article 3

3.1 Persons belonging to minorities may exercise their rights, including those set forth in the present Declaration, individually as well as in community with other members of their group, without any discrimination.
 

The main point here is that persons can exercise their rights both individually and collectively. The most important aspect is the collective exercise of their rights, be it through associations, cultural manifestations or educational institutions, or in any other way. It is never enough for a state to allow for individual use of minority rights, such as their individual use of own language.

The exercise of their right in community with other members of the group apply not only to
the rights contained in the Declaration, but any human right. They shall not be subject to any
discrimination as a consequence of exercising their rights. This is important, because
governments, or members of majorities are often tolerant to persons of other national or ethnic
origins until such time as the latter assert their own identity, language and tradition. It is when they so do that discrimination often sets in. Article 3 (1) makes it clear that they shall not be subjected to discrimination for manifesting their group identity.

3.2 No disadvantage shall result for any person belonging to a minority as a consequence of the exercise or non-exercise of the rights set forth in the present Declaration.

While Article 3.1 makes it clear that members of minorities shall not be subjected to discrimination for exercising, individually or collectively, their minority rights, article 3.2 makes it clear that they shall also not be disadvantaged in any way from choosing not to belong to the minority concerned. The provision is directed both against the state and the agencies of the minority group. The state cannot impose a particular ethnic identity on a given person (which is exactly what the apartheid regime in South Africa sought to do).  The use of negative sanctions against those who do not want to be part of that group; nor can members of minorities subject to any disadvantage persons who on objective criteria may be held to form part of their group but who subjectively do not want to belong to it.

Article 4

The preamble of the Declaration sets out as the main purpose that a more effective implementation of international human rights shall be ensured to persons belonging to national or ethnic, religious and linguistic minorities. Article 4 sets out the state measures that should be taken in order to achieve that purpose. It is, together with Article 2, the most important in the Declaration.

The state must under all circumstances respect and protect the existence of the group, abstain from any discrimination directed against its members and protect them from discrimination, and ensure that they retain their necessary sources of livelihood. For the other measures described in Article 4, the degree to which states are able to implement these rights will to some extent depend on the resources available and on other factors which differ from country to country. What is required is that states seek to implement the rights to the maximum of their available resources and that they seek in good faith to realize the purposes of the Declaration.

4.1 States shall take measures required to ensure that persons belonging to minorities may exercise fully and effectively their human rights and fundamental freedoms without any discrimination and in full equality before the law.

The reason why the international community, through the UN General Assembly has decided
that a more effective implementation of international human rights with regard to persons belonging to national or ethnic, religious and linguistic minorities is required is that minorities often are in a vulnerable position and have in the past often been subjected to discrimination. While states are generally obliged under international law to ensure that all members of society may exercise their human rights, states must give particular attention to the human rights situation of the minorities because of the special problems they confront. In order to ensure equality in fact, it may under some circumstances be required that the state take transitional affirmative action as provided for in ICERD article 2 (2), which is applicable to ethnic as well as racial minorities.

4.2. States shall take measures to create favorable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language (age, religion, traditions and customs, except where specified practices are in violation of national law and contrary to international standards.

         The article requires more than mere tolerance of the manifestation of the different cultures within the state. The creation of favourable conditions requires active measures by the state.  The nature of those measures depend on the situation of the minority concerned, but should be guided by the purpose set in the article, which is twofold: on the one hand, individual members of the minority shall be enabled to express the traditional characteristics of the group which may include a right to use their traditional dress or attire and to make their living in their own cultural ways. On the other hand, they shall be enabled in community with other members of the group to further develop their culture, language, traditions and cultures.  This may require economic resources from the state. In the same way as the state provides funding for the development of the culture and language of the majority, shall it provide resources for similar activities of the minority.

A limit has to be observed, however. The specific practices must not be in violation of national law and international standards. The reference to national law’ must here be seen in its context: national law can legitimately only outlaw such practices which would be contrary to international standards, more specifically the standards set by internationally recognized human rights.

Cultural practices which violate internationally recognized human rights standards should be outlawed in all circumstances, whether those practices form part of the culture of the minority or of the majority. There has been much concern about possible detrimental specific practices of minorities, but less attention to such practices of the majorities. To illustrate: negative cultural practices affecting women and girl children can be found among majorities as well as minorities and should in both cases be eliminated. The qualification contained in the last sentence of article 4(2) is therefore only a specific application of a universal principle applicable to everyone.

4.3 States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instructions in their mother tongue.

The language is among the most important carriers of group identity. In line with the general requirement in Article 1 that states shall encourage the promotion of the linguistic identity of the minority concerned, measures are required for members of minorities to learn their mother tongue or even to have instruction in their mother tongue.

As a minimum, members of minorities should be given the possibility to learn their mother tongue. This, however, may not be enough for the preservation of the linguistic identity, nor may it be satisfactory from a pedagogical point of view. Pre-school and primary school education should ideally be in the child’s own language, i.e. the language of the minority spoken at home. Wherever possible states should create conditions which make it possible for parents to make use of that option. This depends both on the resources of the state and on the numerical size of the minority concerned and the level of development of the minority language. Members of minorities have a duty, however, to integrate into the wider national society and therefore need also to learn the official or state language. The official language should gradually be introduced at later stages.

Persons belonging to minorities have a right, like others to establish their private institutions, where the minority language is the main language of instruction, but the state is entitled to require that the state language is also taught. At the European regional level, educational rights relating to language of minorities are developed at greater length in the European Framework convention on regional and minority languages of the Council of Europe, and a guidance can be found also in the Hague Recommendations Regarding the Education Rights of National Minorities prepared under the auspices of the Foundation on Inter-Ethnic Relations (October 1996).

4.4 States should, where appropriate, take measures in the field of education in order to encourage  knowledge of the history, traditions, language and culture of the minorities existing within their territory. Persons belonging to minorities should have adequate opportunities to gain knowledge of the society’ as a whole.

Experience has shown that in societies where different national or ethnic, religious and linguistic groups coexist, the culture, history and traditions of minority groups often have been subject to distorted representations producing low self-esteem in the groups and negative stereotypes in the wider community. Racial hatred, xenophobia and intolerance sometimes take root. To avoid such circumstances, there is a need both for multicultural and intercultural education.  Multicultural education involves educational policies and practices which meet the separate educational needs of groups in society which belong to different cultural traditions, while intercultural education involves educational policies and practices by which the members of different cultures, whether in a majority or minority position, learn to interact constructively with each other.

Article 4 calls for intercultural education by the encouragement of knowledge in the society as a whole of the history, tradition and culture of the minorities living there. It is understood that this knowledge shall be presented in a positive way in order to encourage tolerance and respect.

The Article also reminds us of the complementary duty, which is to ensure that members of minorities gain knowledge of the society as a whole. This is to counteract tendencies toward fundamentalist or closed religious or ethnic groups, which can be as much affected by xenophobia and intolerance as the majorities.

The overall purpose is to ensure integration, but on a basis of respect for each of the cultural, linguistic or religious groups which together form the national society. The formation of ghettos, of minority groups, which live only in their own world without knowledge of, or tolerance for, the members of the larger society, would be a violation of the purpose and spirit of the Declaration.

The concern expressed in Article 4(4) is also found in the International Convention on the Elimination of All forms of Racial Discrimination (article 7) and in the Convention on the Rights of the Child (article 29).

4.5 States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country

There is often a risk that minorities, due to their limited number compared to the majority and for other reasons, are subjected to exclusion, marginalisation or neglect. Article 4(5) is intended to prevent this from happening. Neither shall minorities be made into museum-pieces which are required to remain on their traditional level of development while the surrounding society experiences significant improvements in their standard of living.

In the worst cases, the land areas and resources of minorities are taken over by the more powerful sectors of society, with displacement and marginalisation of the members of minorities as a consequence. In other cases, members of minorities are neglected in the economic life of the society.

Article 4(5) calls for an integration of members of society in the overall economic development of society as a whole, while ensuring that this takes place in ways which make it possible for the members of minorities to preserve their own identity. The balancing act required by these two separate aims can be difficult, but is facilitated by the existence of active and free associations of minorities which are fully consulted in regard to all development activities which affect or can affect their minority. Measures taken to ensure participation under Article 2 facilitate this process.

Article 5

5.1 National policies and programs shall be planned and implemented with due regard for the legitimate interests of persons belonging to minorities.

The participation of members of minorities in the economic progress and development in their country (Art. 4(5) can be achieved only if their interests are taken into account in the planning and implementation of national policies and programs. Their interests go beyond the purely economic aspects, however planning of the educational policy, health policy, public nutrition policy, or housing and settlement policies are among the many aspects of social life in which the interests of the minorities should be taken into account. Only the ‘legitimate’ interests shall be taken into account, but the same applies to majorities: an accountable government should not promote ‘illegitimate interests’ from any group, whether majoritarian or minoritarian. The interests of minorities should be given due regard which means that they should be given a reasonable weight compared to other legitimate interests with which the government is faced.
 

This is a provision of particular interest for development assistance but also in regard to other economic co-operation among states, including trade and investment agreements. There have been many instances in the past where such cooperation has neglected or directly violated the interests of the minorities. Development agencies financial institutions and others involved international co-operation have a dual task: firstly to ensure that legitimate interests of minorities are not negatively affected by the measures implied in the co-operation envisaged secondly to ensure that members of minorities can benefit as much as members of majority.  A form that co-operation. The notion of ‘due regard’ means that a proper weight shall be given to the interests of the minorities all factors taken into account. As a minimum, an assessment should be made of the likely impact of the co-operation on the affected minorities.

Article 6

Stales should cooperate on questions relating to persons belonging to minorities, inter alia, exchanging information and experiences in order to promote mutual understanding and confidence.

Situations involving minorities often have international repercussions. Tensions between states have arisen in the past and in some cases continue in the present over the treatment of minorities,  particularly in the relation between the kin state and the home state of a given minority. Such tensions can affect the security of the countries involved and create a difficult political atmosphere both internally and internationally. Article 6 encourages states to co-operate in order to find constructive solutions to situations involving minorities. In accordance with the Charter of the United Nations, states should observe in their bilateral relations the principle of non-intervention. They should abstain from any use of force and also any encouragement of the use of violence by parties to group conflicts in other states and take all necessary measures to prevent the incursion by any armed group or mercenaries into other states for participation in group conflicts. On the other hand, they should in their bilateral relations engage in constructive co-operation to facilitate on a reciprocal basis the protection of equality and promotion of group identities. One approach much used in Central and Eastern Europe is for States to conclude bilateral treaties or other arrangements on good neighborly relations based on the principles of the Charter and on international human right law, combining commitments of strict non-intervention with provisions of co-operation in facilitating the promotion of conditions for the maintenance of group identities and trans-border contacts by members of minorities. The contents of provisions on minorities contained in such treaties and other bilateral arrangements should be based on universal and regional instruments on equality, non-discrimination and minority rights. Such treaties should include provisions for the settlement of disputes over their implementation.

Article 7

States should cooperate in order to promote respect for the rights set forth in the present Declaration.

The co-operation called for in Article 7 can be undertaken at the regional and sub-region levels as well as at the level of the United Nations. At the European level, a number of intergovernmental mechanisms and procedures have been established where at least part of the purpose is to promote in a peaceful way the right of minorities and achieve constructive group accommodation. This includes the Council of the Baltic Sea States and its Commissioner 0f Democratic Institutions and Human Rights, including the Rights of Persons belonging to Minorities;  the OSCE region, with its office of the High Commissioner on National Minorities and the Council of Europe which has adopted several instruments of relevance for minorities. In the United Nations, co-operation can take place through the working Group of the Rights of Minorities. The treaty bodies, in particular CERD,  the Human Right Committee, and the Committee on the Rights of the Child, can also have important roles to play in this regard. (See also below under Article 9)

Article 8

8.1 Nothing in the present Declaration shall prevent the fulfillment of international obligations of States in relation to persons belonging to minorities. In particular, States shall fulfill in good faith the obligations and commitments they have assumed under international treaties and agreements to which they are parties.

The Declaration does not replace or modify existing international obligations in favor of persons belonging to minorities. It is an addition to, not a substitute for commitments already made.

8.2 The exercise of the rights set forth in the present Declaration shall not prejudice the enjoyment by all persons of universally recognized human rights and fundamental freedoms.

Universal human rights form the basis; the Declaration is an addition to these and intended to strengthen the implementation of human rights in regard to persons belonging to minorities but not to weaken for anyone the enjoyment of universal human rights. Consequently, the exercise of rights under the Declaration must not negatively affect the enjoyment of human rights for persons who are not members of that minority, nor for persons who belong to the minority. In their efforts to preserve the collective identity of the minority, agencies of the minority concerned cannot on the basis of Declaration adopt measures which interfere with the individual human rights of any person belonging to that minority.

 8.3  Measures taken by States to ensure the effective enjoyment of the rights set forth in the present Declaration shall not prima facie be considered contrary to the principle of equality contained in the Universal Declaration of Human Rights.

Under the Universal Declaration of Human Rights Article 1 all human beings are born free and equal in dignity and rights. Under article 2 of the Universal Declaration, everyone is entitled to all the rights set out in that declaration without distinction of any kind such as race, language, religion, or national origin. The question has been raised whether special measures in favor of national or ethnic, religious or linguistic minorities constitute a distinction in the enjoyment of human rights. It could be raised with even greater strength when taking into account the definition of racial discrimination contained in Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination, which reads: ‘...the term 1’racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’. The question would then be whether special measures under the Minority Declaration, which indeed would be made on ‘national or ethnic origin’ would constitute a preference and therefore constitute impermissible discrimination.

Article 8(3) gives the answer to this question by pointing out that such measures shall not prima fade be considered to be contrary to the principle of equality. Under normal circumstances measures to ensure effective participation, or ensuring that minorities benefit from the economic progress in society, or have the possibility to learn their own language, will not be a privilege as compared to the other members of society. However, there may be circumstances where the measures are so wide-reaching that they do in fact constitute unacceptable preferences. It is therefore essential that measures do not go beyond what is reasonable under the circumstances and are proportional to the aim sought to be realized.

8.4 Nothing in the present Declaration may be construed as permitting any activity contrary to the purposes and principles of the United Nations, including sovereign equality territorial integrity and political independence of states.

As stated in the preamble, the Declaration is based on the principles of the United Nations
Charter. Note should also be taken of the conviction expressed in the preamble that the
promotion and protection of rights of minorities contribute to the stability of states. Article
8(4) serves as a reminder to pointing out that nothing in the Declaration can be construed to
permit any activity which is contrary to the purposes of the Charter. Particular mention is
made of sovereign equality and territorial integrity. Minority rights cannot serve as a basis for
claims of secession or dismemberment of the state. For the purposes of effective political participation, claims can be made for decentralization and the strengthening of local governance, but not for independence. Claims by groups for self-determination cannot be based on minority rights. The concept of self-determination is ambiguous and is used with several different meanings, but there is no right under the Minority Declaration for a national or ethnic group to seek independence or for the transfer of part of the territory of state A to the territory of state B.

Article 9

The specialized agencies and other organizations of the United Nations system shall contribute to the full realization of the rights and principles set forth in the present Declaration, within their respective fields of competence.

The different agencies and bodies of the United Nations system may in several ways contribute to the full realization of the Declaration. Projects of technical cooperation and assistance shall take the standards contained in the Declaration fully into account. The Working Group on Minorities created by the United Nations in July 1995 should serve as a stimulus for such co-operation. This Article should be seen in light of the Charter of the United Nations (Articles 55 and 56) according to which the organization shall promote respect and observance for human rights and fundamental  freedoms, to which minority rights have in recent years been added. United Nations organs and specialized agencies shall give special consideration to requests for technical cooperation and assistance that are designed to achieve the aim of this Declaration.