Underappreciated Resource or Inadequate Measure?
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Article 27 of the International Covenant on Civil and Political Rights is a legally binding and justiciable minority protection provision. It stipulates, “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 lan-guage.” Perhaps due to its negative, weak and qualified terminology, too many legal scholars display a dismissive attitude toward this article suggesting that they deem it to be an inadequate measure of minority protection. This thesis seeks to address the question of whether article 27 is simply another inadequate measure or an underappreciated resource through analyses of four key questions: (i) the scope question, (ii) the definitional ques¬tion, (iii) the right-bearer question, and, (iv) the obligation question. Article 27’s cautious terminology has produced much confusion and controversy, but the United Nations Human Rights Com¬mittee’s practice has helped clarify many significant points of contention. Despite contesta¬tions to the contrary by many States parties, article 27 has a universal scope and applicability with only two minor, but significant, exceptions. The right-holder is a person belonging to a non-majority ethnic, national, indigenous, racial, religious or linguistic community, and she bears and exercises the rights protected by article 27 as an individual, even though she has a right to exercise them in concert with other members of her community. States parties are obligated to ensure that persons belonging to minority communities have these rights. Hence, I suggest that article 27 should be interpreted according to the following formulation: States parties have negative, and possibly also positive, obligations to ensure that persons belonging to non-majority ethnic, national, indigenous, racial, religious or linguistic communities have individual rights to enjoy their own culture, to profess and practise their own religion, and to use their own language, including also the right to exercise these rights in concert with other members of their community.