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Article 27 of the ICCPR Revisited - The Right to Culture as a Normative Source for Minority / Indigenous Participatory Claims in the Case Law of the Human Rights Committee

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 | 
HAGUE YEARBOOK OF
INTERNATIONAL LAW
ANNUAIRE DE LA HAYE DE
DROIT INTERNATIONAL
Edited by
Nikos Lavranos, Ruth Kok et al.
 VOLUME 
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Table of Contents
Editorial vii
Private International Law
Hague Conference on Private International Law – Work in  2
Micah R. Thorner and Rosa Huizinga
International Criminal Law
The Growing Rift between Africa and the International
Criminal Court: The Curious (Im)possibility of a Security
Council deferral 34
Abel S. Knottnerus
Sexual Violence against Men in Armed Conicts: Insights
from International Criminal Tribunal for Former Yugoslavia
and the War Crimes Chamber of the State Court of Bosnia and
Herzegovina 57
Ioannis P. Tzivaras
Public International Law
Towards an Internet Framework Convention: The State of Play 84
Joanna Kulesza
Sosa, Kiobel and Pirates Inc.: Dening the ‘Modern’ Parameters
of the Archaic Alien Tort Statute 116
Jonathan L.H. Blaine
Responsibility for Crimes Committed by the Ottoman Empire
against the Armenian Population: Are the Rules of State
Succession to International Responsibility of Any Use? 141
Patrick Dumberry
Unilateral Legal Acts Revisited: Common Law v. Civil
Law Approaches and Lessons from the International Law
Commission’s (Failed) attempt to Codify Unilateral Acts of States
168
Eva Kassoti
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vi table of contents
Interpreting Reasons: The Interpretation of the  Tem ple of
Preah Vihear Judgment 201
Daniel Peat
The Development of International Law by the International
Court of Justice 216
James Sloan and Christian J. Tams
 The Applicability of International Law Standards to the
Sanctions of the Security Council 239
Adil Sahban
 Beyond Traditional Statehood Criteria: The Law and
Contemporary Politics of State Creation 316
Ryal Wun
 Article  of the ICCPR Revisited – The Right to Culture as
a Normative Source for Minority/ Indigenous Participatory
Claims in the Case Law of the Human Rights Committee 359
Athanasios Yupsanis
International Investment Law and Arbitration
Financial Market Dispute Settlement: Making Sense out of
Current Nonsense 412
Jefrey Golden
 The Margin of Appreciation in Investor-State Arbitration:
The Prevalence and Desirability of Discretion and Deference 422
Jeanrique Fahner
More in  than Ever Before: Inter-State and Investor-State
Arbitrations at the Permanent Court of Arbitration 496
Yanying Li and Camille M. Ng
About the Editorial Board 516
About the AAA 518
Note from the Secretary-General of the AAA
Note du Secrétaire général de l’AAA 519
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 ,  ,  . (.),      .
©    .  ----. . -.
12 Article 27 of the ICCPR Revisited – The Right
to Culture as a Normative Source for Minority/
Indigenous Participatory Claims in the Case
Law of the Human Rights Committee
Athanasios Yupsanis*
Abstract
Article 27 of the International Covenant on Civil and Political Rights (‘ICCPR’)
constitutes the main universal legally binding norm for the safeguarding of
minority and indigenous cultures. In this context, particularly significant is
the expanded interpretation given both to its meaning – in such aspects as the
broad conception of its core concept, ‘culture’, the positive content of its accorded
protection, the recognition of its collective dimension, and even of its potential
linkage to the right of self-determination – and scope (i.e. the inclusion of indig-
enous, non-citizens and migrant workers) by the Covenant’s monitoring body,
the Human Rights Committee.”
Central to the Committee’s reading is the need for minorities and indigenous
peoples to have an opportunity to effectively participate in decisions affecting
their cultural rights, which extends to a state obligation to gain their free, prior
and informed consent, when the proposed measures seriously undermine their
cultures. However, the Committee has so far failed to convincingly clarif y either
the criteria that render a participatory process truly effective, or the circum-
stances under which a decision, measure, or project could have a sufficiently
serious impact on their cultures, thus making their consent to it mandatory.
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
* LL.M, Ph.D in international law (Aristotle University of Thessaloniki); Adjunct Lec-
turer, Faculty of Law, Democritus University of Thrace, Komotini, Greece. Contact:
thayup@yahoo.gr.
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culture, to profess and practice their own religion, or to use their own
language.
1 Introduction
Article 27 of the International Covenant on Civil and Political Rights (‘IC-
CPR’), is the only provision in the International Bill of Rights, which consists
of the Universal Declaration of Human Rights (‘UDHR’), the ICCPR, and the
International Covenant on Economic, Social and Cultural Rights (‘ICESCR’),
to explicitly address the question of the cultural rights of minorities. In this
context it has been valued – its shortcomings notwithstanding – by some em-
inent scholars as “the most important guarantee of such rights on the univer-
sal level and the only one that constitutes applicable “hard” law”, “the Grund-
norm for the protection of minorities”. Such a central position, however, is
not self-evident, as Scheinin notes, by the mere language of the norm, the
vague phrasing of which generated several critiques against it. Indeed, it was
the interpretation(s) adopted by the competent body for the monitoring of the
implementation of the Covenant’s provisions, the Human Rights Committee
1 Article 27 of the ‘International Covenant on Civil and Political Rights’, 6 International
Legal Materials (1967) pp. 375-376.
2 A. de Baets, ‘The Impact of the Universal Declaration of Human Rights on the Study of
Histor y’, 48 History and Theory (2009) p. 20.
3 P. Hunt, ‘Reflections on International Human Rights Law and Cultural Rights’, in M.
Wilson and P. Hunt (eds.), Culture, Rights and Cultural Rights - Perspectives from the
South Pacific (Huia Publishers, Wellington, 2000) p. 35.
4 R . Hofmann, ‘M inority Rights: Indiv idual or Group Rights? A Comparative View on Eu-
ropean Legal Systems’, 40 German Yearbook of Internati onal Law (1997) p. 379.
5 R. Medda -Windischer, ‘New Minorities, Old Instruments? A Common but Differenti-
ated System of Minority Protection’, 13 International Community Law Review (2011) p.
365 footnote 20.
6 M. Scheinin, ‘The Right to Enjoy a Distinct Cu lture: Indigenous and Competing Uses of
La nd’, i n T. S. O rli n, A. Rosa s an d M. Sc hein in (ed s.), The Juri sprudence of Hu man Rights:
A Comparative Interpretive Approach (Abo Akademi University, Institute for Human
Rights, Turku, 2000) p. 162.
7 C. Tomuschat, ‘Status of Minorities under Article 27 of the U.N. Covenant on Civil
and Political Rights’, in S. Chandra (ed.), Minorities in National and International Laws
(Deep & Deep Publications, New Delhi, 1985) p. 31.
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360 12 –  
(‘HRC’), in its General Comment No 23 on the Rights of Minorities ‘(‘General
Comment No 23’), and its relevant semi-juridical jurisdiction and conclud-
ing observations, that clarified several ambiguous points of its wording, and
gave the norm a strong positive content which does not emanate from its lit-
eral reading.
One of the most interesting aspects of this interpretation is the participa-
tory element that is introduced in the provision’s scope, i.e. recognising to
members of minorities and indigenous peoples an ‘opportunity’ to effectively
participate in decisions affecting/relating to the enjoyment of their cultural
rights, that even extends to a state duty to obtain their free, prior and in-
formed consent when their culture is seriously at risk. Such a progressive ap-
proach certainly could not be directly deduced from the provision’s phrasing
since there is no such an explicit statement in it. This important step not-
withstanding, there are still many aspects that the HRC must clarify regard-
ing the content and extent of the notions of ‘effective participation’ and ‘free,
prior and informed consent’.
2 The ‘Construction’ of Article 27 and the Critiques Against It
In order to better understand the significant contribution of the HRC’s inter-
pretation, it would be useful to look firstly at Article’s 27 literal phrasing, bear-
8 In the frame of its mandate to “…transmit… such general comments as it may consider
appropriate, to the States Parties…” (Article 40(4) of the ICCPR), the HRC adopts Gen-
eral Comments, which, although not legally binding, can be viewed as authoritative
inter pretat ive instru ments that give rise to a norm ative consensu s on the meaning a nd
scope of the pr ovisions of the Co venant. See C. Blake, Normati ve Instru ments in Inter na-
tional Hu man Rights La w: Locating the Gen eral Comment, Center for Human Rights and
Global Justice Working Paper, Number 17, 2008, <http://www.chrgj.org/publications/
docs/wp/blake.pdf >, visited on 4 December 2013.
9 Human Rights Committee, General Comment No 23: The Rights of Minorities (Art. 27),
UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, 8 April 1994.
10 Article 1 of the Optional Protocol to the Covenant recognizes the competence of the
Committee to receive and consider communications from individuals claiming vio-
lations of any rights set forth in the Covenant. See P. R. Ghandi, ‘The Human Rights
Commit tee and the Rig ht of Individua l Communication’, 57 British Yearbook of Interna-
tional Law (1986) p. 20 3.
11 See L.-A. Sicilianos, ‘The Protection of Minorities in Europe: Collective Aspects of Indi-
vidual Rights’, in A. Bredimas and L.-A. Sicilianos (eds.),The Protection of Minorities in
Europe: The F ramework Conv ention of the Counci l of Europe for the Pr otection of Nationa l
Minorities (Sakkoulas, Athens, 1997) p. 108 (in Greek).
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ing in mind that since the provision was intended to have a global application
and as there are a great variety of minorities all over the world, sometimes
even in the same country, it was natural that its framing would be general
and to a degree vague. This caused, as noted, many criticisms. For example,
one of the first rather negative remarks made by a prominent scholar the year
that the Covenant came into effect (1976) was that Article 27 “is declaratory
in nature and reflects a minimum of rights”. Several authors shared more
or less the same opinion. Thus, Humphrey observed that Article 27 is a “rela-
tive weak article”, Kingsbury commented that it “is a limited provision”,
Shaw called it “modest and rather negative provision”, Buerghental found it
“rather gener al”, Kymlick a said that it is widely v iewed as “in suf ficient ”, etc.
The reasons for this at best cautious stance are many.
To begin with, Article 27 does not define the meaning of ‘minorities’,
though the term is qualified by the adjectives ‘ethnic’, ‘religious’ and ‘linguis-
tic’. Hence, the problem still stands of how the rights ascribed can be claimed
and exercised in the absence of defined criteria which identify the benefi-
ciaries of the rights. Next, Article 27 applies only to those states “in which
ethnic, religious or linguistic minorities exist, thereby ‘encouraging’ states
to deny that minorities exist in their jurisdictions. At the same time this
phrase could be read as implying that only long-established minorities could
12 C. Tomuschat, ‘Protection of Minorities under Article 27 of the U.N. Covenant on Civil
and Political Rights’, in R. Bernhardt, W. K. Geck, G. Jaenicke and H. Steinberger (eds.),
Völkerrecht als Rechtsordnung Internationale Gerichtsbarkeit Menschenrechte – Fest-
schrift für Hermann Mosler (Springer-Verlag, Berlin / Heidelberg / New York, 1983) p.
949.
13 Y. Dinstein, ‘Collective Human Rights of Peoples and Minorities’, 25 International and
Comparative Law Quarterly (1976) p. 118.
14 J. Humphrey, ‘The United Nations Sub-Commission on Prevention of Discrimination
and Protection of Minorities’, 62 American Journal of International Law (1968) p. 870.
15 B. Kingsbury, ‘Claims by Non-State Groups in International Law’, 25 Cornell Interna-
tional Law Journal (1992) p. 490.
16 M. N. Shaw, ‘Peoples, Territorialism and Boundar ies’, 3 European Jou rnal of Inter nation-
al Law (1997) p. 485.
17 T. Buergenthal, ‘The Normative and Institutional Evolution of International Human
Rights’, 19 Human Rights Quarterly (1997) p. 720.
18 W. Kymlicka, ‘A European Experiment in Protecting Cultural Rights’, 12 Human Rights
Dialogue Series 2 (2005) p. 28.
19 J. Wright, ‘Minority Groups, Autonomy, and Self-Determination’, 19 Oxford Journal of
Legal St udies (1999) p. 608.
20 K. Antonopoulos, ‘Issues of Minority Rights’ Protection under the Light of Former Yu-
goslavia’s Dissolution’, 21 Hellenic Review of European Law (2001) p. 79 (in Greek).
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362 12 –  
claim official recognition by the states, thus excluding from minority status
other groups, such as immigrants. This indeed was the intention of the Chil-
ean proposal introducing the specific opening words.
Thirdly, Article 27 does not state that persons belonging to minorities ‘shall
have’ certain rights but that they “shall not be denied” them, appearing
thus to impose only negative obligations on states not to interfere with the
exercise of minority cultural rights. Hence, the negative formulation of the
norm (together with its drafting history) seemed to imply that Article 27 – at
least originally – emphasised the freedom of individuals to enjoy their own
culture, rather than the adoption of affirmative action by the state to sustain
the effective enjoyment of this right.
Finally, the wording “persons belonging to” suggests that the provision only
protects the rights of individuals who are members of a minority group and
not the collective rights of the group itself, although the phrase “in commu-
nity with the other members of their group” introduces a certain collective
dimension into the protection accorded. In other words, Article 27 does not
accord any special status to minorities as collectivities, let alone recognise
them as having an international legal personality. This is perceived as a
21 N. Lerner, Group Ri ghts and Discr imination in Int ernationa l Law (Mart inus Nijhoff Pub -
lishers, Dordrecht / Boston / London, 1991) p. 16.
22 N. Lerner, ‘The Evolution of Minority Rights in International Law’, in C. Brölmann, R.
Lefeber and M. Zieck (eds.), Peoples and Minorities in International Law (Martinus Ni-
jhoff Publishers, Dordrecht / Boston / London, 1993) p. 89.
23 F. Capotorti, ‘The Protection of Minorities under Multilateral Agreements on Human
Rights’, 2 Italian Yearbook of International Law (1976) p. 21.
24 P. Macklem, ‘The Law and Politics of International Cultural Rights: E. Stamatopoulou,
Cultural Rights in International Law; F. Francioni and M. Scheinin (eds.) Cultural Hu-
man Rights’, 16 International Journa l on Minority and Group Rights (2009) p. 493.
25 See P. Thornberry, ‘Is There a Phoenix in the Ashes? International Law and Minority
Rights’, 15 Texas Inter national La w Journal (19 80) p. 449 .
26 “There is no doubt that the subjects protected by Article 27 are individuals belonging to
minorities and not minority groups as collective entities.” F. Capotorti, ‘Minorities, in
R. Wolfrum (ed.), United Nations: Law, Policies and Practice VOL II (Martinus Nijhoff
Publishers, Dordrecht, 1995) p. 898.
27 See R. Wolfr um, ‘The Protection of Indigenous Peoples in Intern ational Law, 59 Heidel-
berg Journal of Intern ational Law (ZaöRV) (1999) p. 371.
28 A. Anghie, ‘Human Rights and Cultural Identity: New Hope for Ethnic Peace?’, 33 Har-
vard Inter national Law Jou rnal (1992) p. 34 4.
29 L. B. Sohn, ‘The Rights of Minorities’, in L. Henkin (ed.), The International Bill of Rights:
The Covena nt on Civil and Polit ical Rights (Columbia Un iversity Pre ss, New York, 1981) p.
274.
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severe limitation of the provision’s scope from the perspective of those who
advocate the necessity of collective minority guarantees. In this regard, there
are still voices in international legal scholarship who argue that “it is ques-
tionable as to whether Article 27, while purporting to provide minorities with
special protection, adds anything further to the norms of non-discrimination
which are part of the general human rights regime.” Furthermore, authors
even doubt the legal nature of its normative content, arguing that its care-
ful drafting and wording make the provision seem more a recommendation
than a legally binding norm. However, such positions overlook, or have been
overtaken, by the fact that in practice, the HRC has given an expanded inter-
pretation through its General Comment No 23 and its relevant semi-juridical
jurisdiction and concluding observations on the right to enjoy culture, whilst
elucidating on several aspects of the ambiguous issues.
3 Clarifying the ‘Grey Areas’ of Article 27: HRC’s General Comment
No 23 on the Rights of Minorities
The adoption of General Comment No 23 was a landmark step forwards for
the protection of minority cultures, as it clarifies most of Article 27’s contro-
versial issues in a positive way for the minorities’ interests. Beginning, then,
with the view that Article 27 does not accord any special protection to the
members of the minorities beyond the already existing norms on non-dis-
crimination, which are part of the general human rights regime, the Commit-
tee made it clear that Article 27 “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.”
Following this line the HRC commented that the “Covenant also distin-
guishes the rights protected under Article 27 from the guarantees under Arti-
cles 2.1 and 26” (non-discrimination and equality principles). In particular,
30 A. Anghie, ‘Nationalism, Development and the Postcolonial State: The Legacies of the
League of Nations’, 41 Texas Inter national Law Journal (2006) pp. 457-458.
31 F. Albanese, ‘Ethnic and Linguistic Minorities in Europe’, 11 Yearbook of European Law
(1991) p. 32 0.
32 U N Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 1. See C. Holder, ‘Culture as an
Activ ity and Hum an Right: A n Important A dvance for Indigenou s Peoples and I nterna-
tional Law’, 33 Alternatives (2008) p. 10.
33 U N Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 4 .
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364 12 –  
as regards the right of individuals belonging to a linguistic minority to use
their language among themselves, in private or in public, the HRC empha-
sised that this is distinct from other language rights protected under the
Covenant, such as the general right to freedom of expression protected under
Article 19, or the right that Article 14(3)(f) of the Covenant confers on accused
persons to interpretation, where they cannot understand or speak the lan-
guage used in the courts. The Committee went on to conclude that Article
27 relates to rights whose protection imposes specific obligations on states
parties. “The protection of these rights is directed towards ensuring the sur-
vival 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 observed 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.
This statement implies, Holder notes,not only that cultural rights do not
depend on other rights for their justification, but that they may themselves
ground rights to conditions, objects or goods that are instrumentally neces-
sary for a people’s culture.”
Next, regarding the ambiguity generated by the phrase “[i]n those States
in which … minorities exist”, the HRC made it clear that “[t]he existence of
an ethnic, religious or linguistic minority in a given State party does not de-
pend upon a decision by that State party but requires to be established by
objective criteria.” This means that “[i]f the existence of a minority group
34 Ibid., para. 5.3; See K. Henrard, ‘The Interrelationship between Individual Human
Rights, Minority Rights and the Right to Self-Determination and Its Importance for
the Adequate Protection of Linguistic Minorities’, 1 The Global Review of Etnhopolitics
(2001) p. 53.
35 UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 9; See A. Xanthaki, ‘Multi-
culturalism and International Law: Discussing Universal Standards’, 32 Human Rights
Quarterly (2010) p. 36.
36 UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 9.
37 Holder, supra note 32, p. 10.
38 UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 5.2; See G. Gilbert, ‘Religious
Minorities and Their Rights: A Problem of Approach’, 5 International Journa l on Minor-
ity and Group Rights (1997) p. 1 02.
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365 27    
within a State is objectively demonstrated non-recognition of the minority
does not dispense the State from the duty to comply with the principles in
Article 27”. This position, is particularly important for the minorities and
their members since, as Kugelmann notes, their rights “cannot be accepted if
a state denies, as is the case of Turkey and France for example, the existence of
a minority itself.” Further, regarding the meanings that the use of the term
exist may imply, the HRC rejected the position that the wording refers to ‘long
and established minorities’ stating that “it is not relevant to determine the
degree of permanence that the term ‘exist’ connotes.”
Indeed, the HRC pointed out that:
[a]rticle 27 confers rights on persons belonging to minorities which “ex-
ist” in a State party […] Those rights simply are that individuals belong-
ing to those minorities should not be denied the right, in community
with members of their group, to enjoy their ow n culture, to pract ise 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.
The Committee thus attempted a broad interpretation of the personal scope
of Article 27 which goes far beyond the classic requirement of citizenship. Ac-
cording to some approaches, this view is wholly compatible with Article 27,
since the provision does not refer to ‘citizens’, like Article 25 [right to partici-
pate in public affairs], but to ‘persons’, like Article 26 [equality before the law]
and Article 14 [equality before the courts]. Thus, this indicates that Article 27
provides a ‘human’ rather than a ‘citizen’s’ right. Consequently, “the under-
39 F. Erm acora, ‘The Protec tion of Minorities before the UN’, 182 Recueil de s Cours (19 83) p.
299.
40 D. Kugelmann, ‘The Protection of Minorities and Indigenous Peoples Respecting Cul-
tural Diversity’, 11 Max Planck Yearbook of United Nations Law (2007) p. 246.
41 UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 5.2; See E. Stamatopoulou,
‘Monitoring Cultural Human Rights: The Claims of Culture on Human Rights and the
Response of Cultura l Rights’, 34 Human Rights Quar terly (2012) p. 1180.
42 UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 5.2; See A. Bredimas, ‘Immi-
grants – Members of Minorities: Do They Have the Same Rights under International
Law?’, 28 Revue Hellénique des Droits de l’ Homme (2005) p. 1268 (in Greek).
43 R. Wolfrum, ‘The Emergence of “New Minorities” as a Result of Migration’, in C. Bröl-
mann, R. Lefeber and M. Zieck (eds.), Peoples and Minorities in Internation al Law (Mar-
tinus Nijhoff Publishers, Dordrecht / Boston / London, 1993) p. 161.
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366 12 –  
lying logic of all human rights – to respect the dignity of all human beings –
strongly implies that also non-citizens who are substantially inside the polity
should enjoy minority rights.”
It should be noted, however, that its broad perception of the scope of Ar ticle
27 and, consequently, of the notion of minority, the Committee took a rather
narrow position regarding the issue of inclusion of the so-called ‘double’
minorities (i.e. those groups who belong to the majority ethnic/linguistic/re-
ligious population of a nation state but constitute numerical minorities in
certain region(s) of it) under the norm. Thus, it has opined regarding the
English-speaking population of Canada’s predominantly francophone prov-
ince of Quebec, that “the minorities referred to in Article 27 are minorities
within such a State, and not minorities within any province. A group may
constitute a majority in a province but still be a minority in a State and thus
be entitled to the benefits of Article 27. English-speaking citizens of Canada
cannot be considered a linguistic minority.” In any case it i s an u ndoubtedly
positive development that although the provision does not contain a defini-
tion of ‘minority’, an omission that had caused several criticisms, and despite
the HRC not adopting an official one in its General Comment No. 23, it em-
braced a fairly broad ‘working definition’ in practice. Indeed, as Kymlicka
notes, Article 27 applies to “all ethno-cultural minorities, on all continents,
no matter how large or small, recent or historic, territorially concentrated or
disperse,” and thus “can be seen as a truly universal cultural right.”
Next, regarding the issue of affirmative action, Article 27, its negative for-
mulation notwithstanding, has been interpreted as obliging states not only
44 J. Packer, ‘P roblems in Defi ning Minor ities’, in F. Fottrell and B . Bowrin g (ed s.), Minorit y
and Group R ights in the New Mi llennium (Ma rtinus Nijhof f Publishers , The Hague, 1999)
pp. 266-267.
45 See Economic and Social Council, Examining Possible Solutions to Problems Involving
Minorities, Including the Promotion of Mutual Understanding Between and Among Mi-
norities and GovernmentsNote by the Secretariat, UN Doc. E / CN.4 / Sub.2 / A.C.5 /
2006 / 4, 15 June 2006, p. 11.
46 N. S. Rodley, ‘Conceptual Problems in the Protection of Minorities: International Legal
Developments’, 17 Human Rights Quarterly (1995) p. 70.
47 Human Rights Committee, Communications Nos. 359/1989 and 385/1989, John Ballan-
tyne and Elizabeth Davidson, and Gordon McIntyre v. Canada, UN Doc. CCPR / C / 47 /
D / 359 / 1989 and 385 / 1989 / Rev.1, 5 May 1993, para. 11.2.
48 See R. Cholewinski, ‘Migrants as Minorities: Integration and Inclusion in the Enlarged
European Union’, 43 Journal of Common Market Studies (2005) pp. 699-700.
49 W. Kymlicka, ‘National Cultural Autonomy and International Minority Rights Norms’,
6 Ethnopolitics (2007) p. 382.
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to respect the rights of minority members to enjoy their culture, but to cre-
ate the favourable conditions required to make this possible. As the HRC
stated:
[a]lthough Article 27 is expressed in negative terms, that article, nev-
ertheless, 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.
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 as regards treat-
ment both as between different minorities and as between the persons be-
longing 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 cri-
teria.
Finally, as regards as the nature of the rights provided by that norm, the HRC
has taken the view that “[a]lthough the rights protected under Article 27 are
individual rights, they depend in turn on the ability of the minority group to
50 A. Eide, ‘Good Governance, Human Rights, and the Rights of Minorities and Indige-
nous Peoples’, in H.-O. Sano and G. A lfredsson w ith the collaboration of R. Clapp (eds.),
Human Rights and Good Governance: Building Bridges (Martinus Nijhoff Publishers,
The Hague / London / New York, 2002) p. 59.
51 UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 6.1; See R. Brett, ‘The Interna-
tional Covenant on Civil and Political Rights and Minorities’, in J. Cator and J. Niessen
(ed s.) , The Use of International Conventions to Protect the Rights of Migrants and Ethnic
Minorities (Churches’ Commission forMigrantsin Europe, Strasbourg, 1994) p. 39.
52 UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 6.2; See K. Henrard, ‘The
Protection of Minorities Through the Equality Provisions in the UN Human Rights
Treaties: The UN Treaty Bodies’, 14 International Journal on Minority and Group Rights
(20 07) p. 157.
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maintain its culture, language or religion.” Thus, the Committee is clearly
speaking of the lifestyle of minorities as a whole, not only of their individual
members. Such an approach is in conformity with the view of several au-
thors arguing that cultural rights have an inherent collective dimension and
“imply group rights because groups are best place to secure the cultures that
individuals need.”
Furthermore, when culture is seen as an activity rather than a good
which is the view of the HRC, as will be explained further below – then it
is something in which persons have an interest in collectively, and not only
individually, since many of the cultural activities in which people engage are
communal efforts to shape the physical and social word that defines them,
and connect them to one another. “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.” This ref-
erence to ‘community’ together with the possibility of ‘collectively’ submit-
ting a communication clearly adds a collective dimension to the right to
culture. Indeed, the HRC has repeatedly affirmed in its jurisprudence that
the right to enjoy culture can be meaningfully exercised only ‘in community,
i.e. as a group.
53 UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 6.2 (emphasis added); See F.
Lenzerini, ‘Intangible Cultural Heritage: The Living Culture of Peoples’, 22 European
Journa l of International Law (2011) p. 115
54 W. van Genugten, ‘Protection of Indigenous Peoples on the African Continent: Con-
cepts, Position Seeking, and the Interaction of Legal Systems’, 104 American Journal of
International La w (2010) p. 44.
55 Holder, supra note 32, p. 22.
56 Ibid, pp. 22-23.
57 UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 6.2 (emphasis added); See G.
Gilbert, ‘The Cultural and Political Autonomy of Minorities’, 23 L’ Observateur des Na-
tions Unies (2007) p. 226.
58 As the Committee observed for the first time in the Lubicon case “[t]here is, however,
no objection to a group of individuals, who claim to be similarly affected, collective-
ly to submit a communication about alleged breaches of their rights.” Human Rights
Committee, Communication No. 167 / 1984, Chief Bernard Ominayak and the Lubicon
Lake Band v. Canada, UN Doc. CCPR / C / 38 / D / 167 / 1984, 10 May 1990, para. 32.1; See
S. E. Perrakis, ‘The Rights of Peoples. Arguments for Legal Polyphony and Delimita-
tions’, in S. E. Perrakis (ed.), Les Droits des Peoples et des Minorités : Une Problématique
en Mutation (Sakkoulas, Athens - Komotini, 1993) pp. 50-51 (in Greek).
59 See A. F. Vrdoljak, ‘Genocide and Restitution: Ensuring Each Group’s Contribution to
Humanity’, 22 European Jou rnal of International La w (2011) p. 32.
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In sum, without overlooking the position that despite its liberal inter-
pretation Article 27 is still considered a “too weak”, “timid and reluctant
recognition” of the cultural rights of minorities, one cannot easily underes-
timate the progressive elements of the HRC’s approach that make Article 27 a
valuable pillar for the protection of minority cultures. Particularly important
in this context is the Committee’s perception of the concept of culture.
4 Basic Elements of the HRC’s Approach to the Notion of Culture
in its General Comment No 23 and its Relative Semi-Juridical
Jurisdiction
One of the central aspects of the HRC’s approach to the interpretation of Ar-
ticle 27 is the elucidation of the normative content of the concept of culture,
which stands at the heart of the provision’s ambit. Beginning with the Kitok
v. Sweden case, the HRC opined that “[t]he regulation of an economic activity
is normally a matter for the State alone. However, where that activity is an
essential element in the culture of an ethnic community, its application to
an individual may fall under Article 27.” Following a similar path, the Com-
mittee ruled shortly after, in the Lubicon case, that “the rights protected by
Article 27, include the right of persons, in community with others, to engage
in economic and social activities which are part of the culture of the commu-
nity to which they belong.” The Committee further clarified its position, es-
pecially as regards the specific situation of indigenous peoples in its General
Comment No 23, adopting the view that:
one or other aspect of the rights of individuals protected under that ar-
ticle – for example, to enjoy a particular culture – may consist in a way
60 R. Stavenhagen, ‘Cultural Rights: A Social Science Perspective’, in A. Eide, C. Krause
and A. Rosas (eds.), Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff
Publishers, The Hague, 2001, 2nd edn) p. 101.
61 N. L erner, ‘Group Rights and Legal Pluralism’, 25 Emor y Internati onal Law Revie w (201 1)
p. 832.
62 Human Rights Committee, Communication No. 197 / 1985, Ivan Kitok v. Sweden, UN
Doc. CCPR / C / 33 / D / 197 / 1985, 27 July 1988, para. 3.2 (emphasis added); See P. Mac k-
lem, ‘Minority Rights in International Law’, 6 International Journal of Constitutional
Law (2008) p. 537.
63 UN Doc. CCPR / C / 38 / D / 167 / 1984, supra note 58, para. 32.2 (emphasis added); See
S. J. Anaya, ‘Indigenous Rights Norms in Contemporary International Law’, 8 Arizona
Journa l of International and Comparative Law (1991) p. 19.
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of life which is closely associated with territory and use of its resources.
This may particularly be true of members of indigenous communities
constituting a minority.
In the same context the Committee also noted that:
[w]ith regard to the exercise of the cultural rights protected under Ar-
ticle 27, the Committee observes that culture manifests itself in many
forms, including a particular way of life added 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.
Thus, a first important step in the Committee’s conceptual approach was the
inclusion of the traditional subsistence/economic activities, such as Sami
reindeer herding (e.g., Lansman cases), Maori fisheries (e.g., Mahuika et al.
v. New Zealand case), Aymara grazing and raising llamas and alpacas (e.g.,
Poma Poma v. Peru case) etc., which are crucial to the continuous survival of
the indigenous peoples’ culture, in the scope of the provision. In this way
the Committee distanced itself from the traditional conception of culture as
a type of good, an object valuable for its potential to be accessed, consumed,
experienced or used, and adopted an alternative view of culture as a way of
life consisting inter alia in a set of activities that individuals and peoples must
be permitted to pursue. In the first approach, cultural rights appear less
64 UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 3.2 (emphasis added); See E.
Stamatopoulou, ‘Tak ing Cultura l Rights Ser iously: The Vision of t he UN Declarat ion on
the Rights of Indigenous Peoples’, in A. Xanthaki and S. Allen (eds.), Reflections of the
UN Declaration on the Rights of Indigenous Peoples (Hart Publishing, Oxford, 2011) p.
397.
65 UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para.7 (emphasis added); See S.
Wiessner, ‘The Cultural Rights of Indigenous Peoples: Achievements and Continuing
Challenges’, 22 European Jour nal of International Law (2 011) p. 133.
66 See M. Scheinin, ‘Justiciability and the Indivisibility of Human Rights’, in J. Squires,
M. Langford and B. Thiele (eds.), The Road to Remedy: Current Issues in the Litigation of
Economic, Social and Cultural Rights (University of New South Wales Press, 2005) p. 22.
67 See Holder, supra note 32, p. 10.
68 Ibid, p. 15; As Alfredsson also notes, “[c]ulture in Article 27 has been given very broad
contents encompa ssing not only a more t raditional a nd narrow mean ing but also tr adi-
tional economies and the material base necessary for maintaining and developing in-
digenous ways of life as a prerequisite for cultural survival.” G. Alfredsson, ‘Minimum
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371 27    
fundamental to human dignity than civil, political and economic rights,
thus setting a very high threshold for the impact that a state / administrative
decision must have on a group’s culture before it constitutes a human rights
violation. In the second approach, culture is protected directly as a basic
component of human dignity, as a basic right that in itself and not merely
instrumentally justify constraints on state behavior, establishing “not only
negative duties to refrain from interfering with people when they are pursu-
ing an interest, but also positive duties to provide people with what they need
to ensure that pursuit is successful.”
As Holder observes, the ‘activity conception’ of culture offers a better un-
derstanding of what cultural rights protect.Cultural rights are rights to
do cultural sorts of things: express and develop language, a worldview, a his-
tory, an identity, as peoples and individuals.” Under this prism “what cul-
tural protects is the ability of persons and peoples to produce cultures, and
to produce them in a way that allows them to describe those cultures as their
own.” “In this understanding, cultural rights are essential to human dignity
not because they secure individuals in their ability to obtain goods or achieve
a specific state of affairs, but because culture is what people do when they are
living their lives within a people.” In order to be able to do so, however, they
must have effective means to influence the decisions which impact their way
of life. Acknowledging this fact, the Committee noted in the seventh para-
graph of its General Comment No 23, regarding the cultural rights protected
under Article 27, that:
Requirements for a New Nordic Sami Convention’, 68 Nordic Journal of International
Law (1999) p. 401.
69 Holder, supra note 32, p. 8.
70 Ibid., p. 12.
71 Ibid., p. 19.
72 On the distinction between basic and derivative or non fundamental rights see C.
Holder, ‘Self-Determination as a Basic Human Right: The Draft UN Declaration on the
Rights of Indigenous Peoples, in A. Eisenberg and J. Spinner-Halev (eds.), Minorities
within Minorities: Equality, Rights and Diversity, (Cambridge University Press, 2004), p.
298.
73 Holder, supra note 32, pp. 19-20.
74 Ibid., p. 8.
75 Ibid., p. 15.
76 Ibi d., p. 22.
77 Ibid.
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[t]he enjoyment of those rights may require positive legal measures of
protection and measures to ensure the effective participation of mem-
bers of minority communities in decisions which affect them.
So, the Committee introduced into the normative field of the provision,
without however clarifying its thesis in detail, a participatory element, i.e.
a state duty to take measures to ensure the effective participation of minor-
ity members in decisions that may affect them, which certainly can not be
deduced prima facie from the literal reading of the norm. Even though the
Committee did not make clear, neither in its General Comment No 23 nor
in its subsequent semi-juridical jurisprudence, what the precise meaning of
participation and indeed effective might consist of, its interpretation is still a
positive step forward. However, it eeds to be further elaborated, since “a right
to culture without security of means to realize and instantiate that culture is
an empty protection.”
Finally, one of the remarkable aspects of the Committee’s approach, which
echoes the current findings of social scientists arguing that culture is not a
static but rather “a living process, historical, dynamic and evolving, with a
past, a present and a future”, is the view that “[t]he right to enjoy one’s cul-
ture cannot be determinedin abstractobut has to be placed in context [...]
Article 27 does not only protect traditional means of livelihood of minori-
ties, but allows also for adaptation of those means to the modern way of life
and ensuing technology.” Thus, the fact that the Finnish Sami, for example,
“have adapted their methods of reindeer herding over the years and practice
it with the help of modern technology does not prevent them from invoking
78 UN Doc. CCPR / C / 21 / Rev. 1 / Add.5, supra note 9, para. 7 (emphasis added); See M.
Scheinin and M. Langford, ‘Evolution or Revolution? Extrapolating from the Experi-
ence of the Human Rights Committee’, 27 Nordisk Tidsskrift for Menneskerettigheter
(20 09) p. 108.
79 See A. Verstichel, ‘Recent Developments in the UN Human Rights Committee’s Ap-
proach to Minorities, with a Focus on Effective Participation’, 12 International Journal
on Minorit y and Group Rights (2005) p. 28.
80 Holder, supra note 32, p. 19.
81 See Committee on Economic, Social and Cultural Rights, General Comment No. 21:
Right of Eve ryone to Take Part in Cu ltural Life (Ar t. 15, para. 1 (a)) of the Inter national Co v-
enant on Economic, Social and Cultural Rights, UN Doc. E / C.12 / GC / 21, 21 December
2009, p. 3, para. 11.
82 Human Rights Committee, Communication No. 547 / 1993, Mahuika et al v. New Zea-
land, UN Doc. CCPR / C / 70 / D / 547 / 1993, 27 October 2000, para. 9.4.
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373 27    
Article 27 of the Covenant.” Under this understanding the Committee ruled
in the case of Sara et al v. Finland that:
[w]hile Finnish Sami have not been able to maintain all traditional
methods of reindeer herding, their practice still is a distinct Sami form
of reindeer herding, carried out in community with other members of
the group and under circumstances prescribed by the natural habitat.
Snow scooters have not destroyed this form of nomadic reindeer herd-
ing.
The Committee, then, sees the cultural protection offered by Article 27 not as
static but as realistically adapted to social evolution, to spatial-temporal cir-
cumstances and to the advancements of technology. Under this broad prism
the use, for example, of helicopters for reindeer herding or the use of modern-
day fishing technology by indigenous peoples would not preclude them from
their cultural rights provided by Article 27 of the ICCPR, but they still have
to prove that their activities are part of their traditional livelihoods, although
not in a frozen rights manner, as such activities could have evolved over the
centuries.
5 From Article 1 ICCPR to Article 27 and Vice Versa
5.1 Indigenous Peoples and Minorities
The HRC evolved its jurisprudence on Article 27 mainly via a series of deci-
sions on communications submitted by authors of indigenous ethnic back-
ground alleging violation either exclusively (e.g., Lubicon case), or inter alia
(e.g., Mahuika et al v. New Zealand, Poma Poma v. Peru cases, etc.) of Article
1 of ICCPR on the right of peoples to self-determination. The HRC decided
that the facts as presented in the relative cases raised issues that could fall
83 Human Rights Committee, Communication No. 511 / 1992, Ilmari Lansman et al v. Fin-
land, UN Doc. CCPR / C / 52 / D / 511 / 1992, 8 November 1994, para. 9.3; See J. Firestone
and J. Lilley, ‘Aboriginal Subsistence Whaling and the Right to Practice and Revital-
ize Cultural Traditions and Customs’, 8 Journal of International Wildlife Law and Pol icy
(2005) pp. 216-217.
84 Human Rights Committee, Communication No. 43 1/1990, Sara et al v. Finlan d, UN Doc.
CCPR / C / 50 / D / 431 / 1990, 23 March 1994, para. 7.4.
85 See J. Gilbert, ‘Historical Indigenous Peoples’ Land Claims: A Comparative and Inter-
nationa l Approach to the Common L aw Doctrine on Indigenous Title’, 56 International
and Compa rative Law Qua rterly (2007) pp. 598-599.
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374 12 –  
under the ambit of Article 27 and consequently treated indigenous peoples
(e.g., the Sami of the Nordic Countries, the Lubicon Band of Canada, the Ay-
mara of Peru, etc.) as minorities, despite the fact that during the drafting of
Article 27 a number of state delegates had taken the view that indigenous
peoples, such as the Indians of North and Latin America or the Aborigines
of Australia, were not minorities. This HRC policy met initially with the
opposition of several indigenous peoples, who since the beginning of their
movement vehemently objected to any attempt to designate them as minori-
ties, strongly holding that they were definitely peoples entitled to the right of
self-determination. For example, in the first relevant communication be-
fore the HRC, that of AD v. Canada, the author, allegedly acting on behalf of
the Mikmaq people, claimed not to represent a minority within the meaning
of Article 27, but a people within the meaning of Article 1 of the Covenant,
categorically rejecting the applicability of Article 27 and reaffirming that the
communication is concerned essentially with the violation of Article 1 of the
Covenant (“Article 1 is our goal, our vision”). More recently, the Sami of Nor-
way have resisted their designation as a ‘national minority’ on the grounds
that as an indigenous people they have legal and political rights exceeding
those accorded by minority provisions. In keeping with their wish the Nor-
wegian Government did not make any reference to them in its report to the
Advisory Committee of the Framework Convention for the Protection of Na-
tional Minorities (FCNM).
There is, however, a growing consensus that although the two concepts do
not coincide they certainly overlap. As the former UN Special Rapporteur
Mrs. Erica Daes has pointed out, “no definition or list of characteristics can
eliminate overlaps between the concept of minority and indigenous peo-
ples. Cases will continue to arise that defy any simple, clear-cut attempt at
86 See M. Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentar y (N. P. En-
gel, Kehl / Strasbourg / A rlington, 1993) pp. 492-493.
87 See Human Rights Committee, Communication No. 205 / 1986, Marshall v. Canada, UN
Doc. CCPR / C / 43 / D / 205 / 1986, 4 November 1991, para. 2 .1.
88 See Human Rights Committee, Communication No. R.19 / 78, AD v. Canada, UN Doc.
CCPR / C / 22 / D / R.19 / 78, 26 July 1984, Annex, paras. 3, 7.3.
89 See Report submitted by Nor way pursuant to Article 25, paragraph 1 of the Framework
Convention for the Protection of National Minorities, ACFC / SR(2001)001, 2 March
2001, para. 1.1.
90 G. Pentassuglia, ‘Reforming the UN Human Rights Machinery: What Does the Future
Hold for the Protection of Minorities and I ndigenous Peoples?’, 14 Inter national Jour nal
on Minorit y and Group Rights (200 7) p. 130.
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375 27    
classification.” Indeed, a comparative reading of the two most cited defini-
tions of the notion of ‘minority’ and ‘indigenous peoples’, given by the former
UN Special Rapporteurs Francesco Capotorti and Martinez Cobo respec-
tively, show that a number of connections and commonalities exist between
these two group categories; namely, their numerical inferiority to the society
at large, their non dominant position in the countries they live in, their cul-
tural distinctiveness from the majority or dominant groups, and their wish to
retain and promote their identity.
Besides these similarities, however, there are two factors which distinguish
indigenous peoples from minorities: a typical one, consisting in indigenous
prior settlement in a specific territory, an element that, as Daes notes, has
never been associated with any of the definitions given for the notion of
minority, and a more substantial one, which is the unique collective spir-
itual relation of indigenous peoples to their ancestral lands, the safeguarding
of which is an absolute precondition for their physical and cultural survival.
This special attachment of indigenous peoples to their traditional lands and
territories has a direct effect on the nature of the protection regimes they
91 Working Paper on the Relation ship and Dist inction Bet ween the Rights of Per sons Belong-
ing to Minorities and Those of Indigenous Peoples, Paper by Erica - Irene A. Daes, UN
Doc. E / CN. 4 / Sub.2 / 2000 / 10, 19 July 2000, para. 41.
92 See F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Lin-
guistic Minorities, UN Doc. E / CN.4 / Sub.2 / 384 / Rev.1, UN Publication Sales No. E.78.
XIV.1, New York, 1979, p. 96, para. 568.
93 See J. M. Cobo, Study of the Problem of Discrimination Against Indigenous Populations,
Volume V, Conclus ions, Propo sals and Reco mmendation s, UN Doc. E / CN. 4 / Sub.2 / 1986
/ 7 Add.4, UN Publication Sales No. E.86.X IV.3, New York, 1987, p. 29, para. 379.
94 As Hannikainen notices “[n]early all indigenous peoples form minorities and are enti-
tl ed t o mi nor it y pr ote ct ion .” L. Ha nni ka in en, ‘ Th e St atu s of Min ori tie s, I nd ige nous Peo -
ples and Im migrant and Refugee Groups in Four Nordic Countr ies’, 65 Nordic Jou rnal of
International La w (1996) p. 3.
95 See A. Yupsanis, ‘The Meaning of ‘Culture’ in Article 15 (1) (a) of the ICESCR - Positive
Aspec ts of CESCR’s Genera l Comment No. 21 for the Sa feguard ing of Minorit y Culture s’,
55 German Yearbook of International Law (2012) pp. 372-373.
96 Working Paper on the Relation ship and Dist inction Bet ween the Rights of Per sons Belong-
ing to Minorities and Those of Indigenous Peoples, Paper by Asbjørn Eide, UN Doc. E /
CN.4 / Sub.2 / 2000 / 10, 19 July 2000, para. 24.
97 Working Paper by the Chairper son - Rapporteur, Mrs Erica - Irene A. Daes on the Concept
of ‘Indigenous Peoples’, UN Doc. E / CN.4 / Sub.2 / AC.4 / 1996 / 2, 10 June 1996, para. 60.
98 E. Stamatopoulou, Cultural Rights in Inter national Law - Article 27 of the Universal Dec-
laration of Human Rights and Beyond (Martinus Nijhoff Publishers, Leiden / Boston,
2007) pp. 169-170.
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enjoy. Thus, while minority instruments enshrine no land rights at all, these
find their place at the heart of indigenous texts like ILO Convention No 169
(Articles 13-19) and the UN Declaration on the Rights of Indigenous Peo-
ples (Articles 25-30). Further, there is an additional difference regarding the
ty pes of r ights ascr ibed to minorities and indigenous peoples in international
law. Minority rights are vested in persons belonging to such groups, thus they
are individual rights even if in most cases they can only be enjoyed in com-
munity with others, while indigenous rights are for the most par t the rights
of the communities, and therefore mostly, though not exclusively, collective
rights.
The aforementioned analysis leads to the conclusion that “indigenous rights
are … far more extensive, stronger and detailed than minority rights”. It is
reasonable, then, that indigenous peoples opt for the former. Since, however,
it is generally accepted that the categories of ‘minorities’ and ‘indigenous peo-
ples’ are partly overlapping and that indigenous peoples can make use of mi-
nority norms without their status being equated to that of minorities (i.e.
without limiting them to an individual-oriented protection regime with no
proviso for land rights), it is possible for them to invoke minority standards,
99 See ‘ Internat ional Labour O rganisation , Convention Concerni ng Indigenous and Tr ibal
Peoples in Independent Countries, 28 International Legal Materials (1989) 1382 et seq.
100 See A. Yupsanis, ‘The International Labour Organization and Its Contribution to the
Protection of the Rights of Indigenous Peoples’, 49 Canadian Yearbook of International
Law (2011) pp. 146-154.
101 See A / RES / 61 / 295, Annex, 13 September 2007.
102 See Comm entary of t he Working Group on Minor ities to the Unit ed Nations Decl aration on
the Right s of Persons Belonging to National or Et hnic, Religiou s and Linguistic Minorities
Note by the Secretary General, UN Doc. E / CN.4 / Sub.2 / AC.5 / 2005 / 2, 4 April 2005,
para. 15.
103 P. Thornberry, ‘Minority and Indigenous Rights at the ‘End of History’’, 2 Ethnicities
(20 02) p. 524.
104 See Stu dy on Treaties, Agreement s and Other Const ructive Ar rangements B etween State s
and Indigenous Populations – Final Report by Miguel Alfonso Martinez, Special Rap-
porteur, UN Doc. E / CN.4 / Sub.2 / 1999 / 20, 22 June 1999, paras. 74 - 75.
105 K. Hossain, ‘Status of Indigenous Peoples in International Law’, 5 Miskolc Journal of
International La w (2008) p. 24.
106 See Advisory Committee on the Framework Convention for the Protection of National
Minorities, Opinion on Denmark, adopted on 22 September 2000, ACFC / INF / OP / 1
(2001) 5, para. 17.
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like Article 27 of ICCPR, in a strategic move to safeguard some minimum
rights.
In this context several indigenous peoples have overcome their initial res-
ervations towards the use of minority norms and adopted a pragmatic ap-
proach, as in the case of R L et al v. Canada where, concerning Article 27 of
the Covenant, the authors pointed out “that they regard themselves as an in-
digenous people rather than an ‘ethnic [or] linguistic minority’, but that since
the indigenous and minority categories overlap, indigenous peoples should
also be entitled to exercise the rights of minorities.”
5.2 HRC’s Reluctance to Deal with Cases of Self-Determination
For its part the HRC declined, starting from the salient cases Kitok v. Sweden
and Lubicon Lake Band v. Canada, to consider communications alleging viola-
tions of Article 1 of the Covenant on procedural g rounds, i.e. that the individu-
als can not claim under the Optional Protocol to be victims of a violation of
the right of self-determination enshrined in Article 1 of the Covenant, which
deals with rights conferred upon peoples as such. More specifically the
HRC opined that “[w]hereas the Optional Protocol provides a recourse pro-
cedure for individuals claiming that their rights have been violated, Article
1 of the Covenant deals with rights conferred upon peoples, as such.” Con-
sequently, “[t]he Optional Protocol provides a procedure under which indi-
viduals can claim that their individual rights have been violated. These rights
are set out in part III of the Covenant, Articles 6 to 27, inclusive.” Based on
107 H. A. Northcott, ‘Realisation of the Right of Indigenous Peoples to Natural Resources
under International Law Through the Emerging Right to Autonomy’, 16 The Interna-
tional Jou rnal of Human Ri ghts (2012) p. 80.
108 Huma n Rights Committee, Communication No. 358 / 19 89, R L et al v. Canada, U N Doc.
CCPR / C / 43 / 358 / 1989, 5 November 1991, para. 3.7.
109 See UN Doc. CCPR / C / 33 / D / 197 / 1985, supra note 62, para. 6.3; UN Doc. CCPR / C /
38 / D / 167 / 1984, supra note 58, para. 13.3; See also A. Ma son, ‘The Rights of Indigenous
Peoples in Lands Once Part of the Old Dominions of the Crown’, 46 International and
Comparative Law Quarterly (1997) p. 828.
110 UN Doc. CCPR / C / 33 / D / 197 1985, supra note 62, para. 6.3; See J. Rehman, Interna-
tional Hu man Rights La w: A Practical A pproach (Longman, Pearson Education Lim ited,
Essex, 2003) pp. 82-83.
111 UN Doc. CCPR / C / 38 / D / 167 / 1984, supra note 58, para. 32.1; See D. McGoldrick, ‘Ca-
nadian Indians, Cultural Rights and the Human Rights Committee’, 40 Inter national
and Comparative Law Quarterly (1991) p. 664; See also Human Rights Committe, Com-
munication No. 318/1988, E P et al v. Colombia, U N Doc. CCPR / C / 39 / D / 318 / 1988, 15
August 1990, para. 8.2.
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this line of argumentation the Committee recalled in the subsequent relevant
communications its constant jurisprudence “that pursuant to Article 1 of the
Optional Protocol it can receive and consider communications only if they
emanate from individuals who claim that their individual rights have been
violated by a State Party to the Optional Protocol.” In this context,
[w]hile all peoples have the right of self-determination and the right
freely to determine their political status, pursue their economic, social
and cultural development, and may, for their own ends, freely dispose of
their natural wealth and resources, the Committee has already decided
that no claim for self-determination may be brought under the Optional
Protocol.
This reasoning has been met with harsh criticism by sections of academia. It
was argued that according to Article 1 of the Optional Protocol the Committee
is competent to receive and consider communications from individuals claim-
ing to be victims of violation of any of the rights set forth in the Covenant. Con-
sequently, since the right to self-determination enshrined in Article 1 of the
Covenant constitutes one ‘of the rights set forth in the Covenant, it is within
the Committee’s competence to examine allegations concerning its viola-
tion. Thus, by dismissing claims alleging a denial of self-determination on
procedural grounds, the HRC “effectively decided that indigenous groups have
no justiciable rights of self-determination as ‘peoples’ under the covenant.”
The HRC also made its stance clear as regards the relation between minor-
ity rights and the right of self-determination. Thus, in the third paragraph of
its General Comment No 23, it stated that:
[t]he Covenant draws a distinction between the right to self-determina-
tion 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
112 See for example, Human Rights Committee, Communication No. 413 / 1990, A B v. Italy,
UN Doc. CCPR / C / 40 / D / 413 / 1990, 2 November 1990, para. 3.2.
113 U N Doc. CCPR / C / 43 / 358 / 198 9, supra note 108, pa ra. 6.2.; See A. Moucheboeuf, Minor-
ity Rights Jurispr udence Digest (Council of Europe Publishing, Strasbourg, 2006) p. 395.
114 P. Brar, ‘The Practice and Procedures of the Human Rights Committee under the Op-
tional Protocol of the International Covenant on Civil and Political Rights’, 25 Indian
Journa l of International Law (1985) pp. 514-515.
115 A. Huff, ‘Resource Development and Human Rights: A Look at the Case of the Lubicon
Cree Indian Nation of Canada’, 10 Colorado Journal of International Environmental Law
and Policy (1999) p. 187.
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(Part I) of the Covenant. Self-determination is not a right cognizable un-
der the Optional Protocol. Article 27, on the other hand, relates to rights
conferred on individuals as such and is included, like the articles relat-
ing to other personal rights conferred on individuals, in Part III of the
Covenant and is cognizable under the Optional Protocol.
It seems, then, that the Committee “has firmly resisted the linking of the right
to self-determi nation to that of minority rights.” It is most interesting, how-
ever, that in its subsequent jurisprudence (e.g., Mahuika et al v. New Zealand)
the HRC adopted the view that “the provisions of Article 1 may be relevant
in the interpretation of other rights protected by the Covenant, in particular
Article 27”. Also in a series of concluding observations beginning with the
one concerning Canada in the late 1990s, the HRC has invited several states
(Canada, Mexico, Norway, Australia, Sweden, Finland, USA and Brazil) to re-
port on the state of implementation of Article 1 (mainly its second paragraph,
the so-called ‘resource dimension’) of the Covenant regarding the specific
situation of indigenous peoples (and not of minorities stricto sensu). In this
116 UN Doc. CCPR / C / 21 / Rev.1 / Add.5, supra note 9, para. 3.1; See K. Engle, The Elusive
Promise of Indigenous Development: Rights, Culture, Strategy (Duke University Press,
Durham, 2010) p. 117.
117 J. Castellino, ‘The Protection of Minorities and Indigenous Peoples in International
Law: A Compa rative Temporal A nalysis’, 17 Inter national Jou rnal on Minor ity and Grou p
Rights (2010) pp. 412-413, observing in addition that “the HRC is unwilling to consider
the right of self-determination to be a right that accrues to minorities, except in a nar-
row “subsistence” sense.”
118 UN Doc. CCPR / C / 70 / D / 547 / 1993, supra note 82, para. 9. 2; In the same line the HRC
has st ated in the Diergaardt et al v. Nami bia case that “ the provision s of Article 1 m ay be
relevant in the interpretation of other rights protected by the Covenant, in particular
Articles 25, 26 a nd 27.” Human Rights Committee, Communication No. 760 / 1997, Dier-
gaardt et al v. Namibia, UN Doc. CCPR / C / 63 / D / 760 / 1997, 7 July 1998, para. 10.3.
119 See Concluding Obs ervations of the Hu man Rights Committee: Canada, UN Doc. CCPR
/ C / 79 / Add.105, 7 April 1999, para. 7.
120 J. Gilbert, ‘Indigenous Rights in the Making: The United Nations Declaration on the
Rights of Indigenous Peoples’, 14 International Journal on Minority and Group Rights
(20 07) p. 220. See for example the Concluding Observations of the Human Rights Com-
mittee: Mexico, UN Doc. CCPR / C / MEX / CO / 5, 17 May 2010, para. 22, where the HRC
states that “[t]he State party should consider reviewing the relevant provisions of the
Constitution reformed in 2001, in consultation with indigenous peoples. It should also
take all necessary steps to ensure the effective consultation of indigenous peoples for
decision making in all areas that have an impact on their rights, in accordance with
Article 1, paragraph 2 (emphasis added), and Ar ticle 27 of the Covenant.”
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context, it has been argued that there has been a clear evolution in the juris-
prudence of the HRC, since its initial position reflected in the aforementioned
third paragraph of the General Comment No 23 that the rights of Article 27
were to be clearly distinguished from the right of Article 1. Specifically,
Koivurova has traced two phases in this process. In the first stage, begin-
ning with the 1999 concluding observations to Canada and Norway, only if
a state had treated indigenous peoples as peoples or as having a right to self-
determination did the HRC urge the state to report on the situation of indig-
enous peoples under Article 1 of the Covenant. Later, however, the Commit-
tee abandoned this very restrictive view and considered all ‘well-established’
(i.e. widely recognised as such by the international community) indigenous
peoples as being covered by Article 1. Thus, ‘at least some’ or even ‘many’
indigenous peoples “constitute ‘peoples’ for the purposes of Article 1 and are
beneficiaries of the right of self-determination.” However, as Bankes notes
in comment ing on the Mahuika et al v. New Zealand case, its explicit reference
to the interrelationship between Articles 1 and 27 notwithstanding, in the
end the Committee did not take this any further, making “no reference to Ar-
ticle 1 in its disposition of the case or its discussion of the meaning of Article
27.” Indeed, in its latest jurisprudence, that of Ángela Poma Poma v. Peru,
the HRC not only refused on procedural grounds to consider the allegation of
violation of Article 1(2) of ICCPR, despite the fact that the UN General Assem-
bly had earlier adopted the UN Declaration on the Rights of Indigenous Peo-
121 J. Castellino and J. Gilbert, ‘Self-Determination, Indigenous Peoples and Minorities, 3
Macquarie Law Journal (2003) pp. 171-172.
122 T. Koivurova, ‘From High Hopes to Disillusionment: Indigenous Peoples’ Struggle to
(re)Gain Their Rights to Self-determination’, 15 International Journal on Minority and
Group Rights (2008) pp. 6-8; As Pentassuglia notes “the HRC is increasingly consider-
ing the treatment of indigenous communities as ‘peoples’ in the sense of Artice 1”. G.
Pentassuglia, ‘Evolving Protection of Minority Groups: Global Changes and the Role of
the International Jurisprudence’, 11 International Community Law Review (2009) p. 208
footnote 81.
123 M. Scheinin, ‘Indigenous Peoples’ Rights under the International Covenant on Civil
and Political Rights’, in J. Castellino and N. Walsh (eds.), International Law and Indig-
enous Peoples (Martinus Nijhoff Publishers, Leiden, 2005) pp. 4, 12, 15.
124 N. Bankes, ‘Land Claim Agreements in Arctic Canada in Light of International Human
Rights Norms’, 1 Yearbook of Polar Law (2009) pp. 214-215 footnote 126; As Engle also
notes “the Committee has occasionally reminded States of their obligation to report
on the implementation of Article 1, but has done little more than that.” K. Engle, ‘On
Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the
Context of Human Rights’, 22 European Journal of International Law (2011) p. 155.
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ples which recognises their right to internal self-determination (autonomy
and self-governance), but even declined to make any connection, on paper
at least, between Articles 27 and 1 of the Covenant.
By declining to consider communications claiming violation of Article 1
and by taking the view that the facts as these appeared in the relevant cases
might raise issues under Article 27, the HRC took the opportunity to pave the
way for a pioneering semi-juridical jurisprudence on the latter. Some innova-
tive elements of this reading are the very broad understanding of the concept
of culture and the correlative ‘opportunity’ of minorities and indigenous peo-
ples to effectively participate in the decisions that affect their cultural rights.
In sum, the HRC paved the way for a pioneering semi-juridical jurispru-
dence on Article 27 by adopting a very broad understanding of the concept
of culture and the correlative ‘opportunity’ of minorities and indigenous peo-
ples to effectively participate in the decisions that affect their cultural rights.
The HRC did so by including on the one hand indigenous peoples within the
scope of Article 27 and on the other hand by accepting in a series of commu-
nications violations of Article 1.
6 ‘Efective Participation’ and the HRC’s Case Law
6.1 Ilmari Lansman et al v. Finland
In the aforementioned context and following the line adopted in the seventh
paragraph of its General Comment No 23, the HRC considered in a number
of cases brought by claimants of indigenous ethnic background whether the
authors had been able to participate in a series of contested decision pro-
cesses that allegedly affected their cultural rights. A first pilot decision issued
in the case of Ilmari Lansman et al v. Finland, in which 48 Finnish nation-
als who were reindeer breeders of Sami ethnic origin from the area of Angeli
and Inari, challenged the Central Forestry Board’s 1989 decision to conclude a
125 See T. Koivurova, ‘Sovereign States and Self-Determining Peoples: Carving Out a Place
for Transnational Indigenous Peoples in a World of Sovereign States’, 12 International
Community Law Re view (2010) p. 202.
126 See the very critical and firmly argued comment on the HRC’s decision on the case
in K.cke, ‘The Case of Ángela Poma Poma v. Peru before the Human Rights Com-
mittee. The Concept of Free, Prior and Informed Consent and the Application of the
International Covenant on Civil and Political Rights to the Protection and Promotion
of Indigenous Peoples’ Rights’, 14 Max Pla nck Yearbook of United Nations Law (20 10) 337
et seq.
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contract with a private company, Arktinen Kivi Oy (Arctic Stone Company),
which would permit the quarrying of stone (anorthocite) in an area covering
ten hectares on the flank of Mount Etela-Riutusvaara, a sacred place of the
old Sami religion, and its transport through their reindeer herding territo-
ries. In this context they alleged, inter alia, that the quarrying and trans-
port of anorthocite would disturb their reindeer herding activities and the
complex system of reindeer fences determined by the natural environment,
thus violating their rights under Article 27 of the Covenant, in particular their
right to enjoy their own culture, which has traditionally been and remains
essentially based on reindeer husbandry.
The HRC, for its part, initially made the following observations: a) that
the Sami complainants were indisputably members of a minority within the
meaning of Article 27 and as such had the right to enjoy their own culture,
and b) that reindeer husbandry is an essential element of Sami culture and
as such may come within the ambit of Article 27. In this context and after
noting the spiritual significance that the mountain Riutusvaara continued
to have for Sami culture and the concern of the authors that the quality of
slaughtered reindeer could be adversely affected by a disturbed environment,
the HRC stated that:
[a] State may understandably wish to encourage development or allow
economic activity by enterprises. The scope of its freedom to do so is not
to be assessed by reference to a margin of appreciation, but by reference to
the obligations it has undertaken in Article 27. Article 27 requires that a
member of a minority shall not be denied his right to enjoy his culture.
Thus, measures whose impact amount to a denial of the right will not
be compatible with the obligations under Article 27. However, measures
that have a certain limited impact on the way of life of persons belonging
to a minority will not necessarily amount to a denial of the right under
Article 27.
127 See G. N. Barrie, ‘International Law and Indigenous Land Rights: Further Lessons for
South Af rica’, Journal of South African Law (2005) p. 386.
128 See S. Pritchard, ‘The International Covenant on Civil and Political Rights and Indig-
enous Peoples’, in S. Prichard (ed.), Indigenous Peoples, the United Nations and Human
Rights (Zed Books, The Federation Press, London / Sydney, 1998) p. 198.
129 UN Doc. CCPR / C / 52 / D / 511 / 1992, supra note 83, para. 9.4 (emphasis added); See D.
H. Getches, ‘Indigenous Peoples’ Rights to Water under International Norms’, 16 Colo-
rado Jour nal of International and En vironmental Law and Policy (2005) p. 282 .
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Thus, on the one hand explicitly rejecting the doctrine of State margin of ap-
preciation in applying Article 27, and on the other hand endorsing the view
which was formulated for the first time in the Lovelace v. Canada case, that
not every measure interfering with the enjoyment of Article 27 constitutes
a violation of the provision and consequently, that where public interest
prevails over a ‘limited impact’ on minority rights, this may be acceptable,
the HRC opined that the question which arose was whether the impact of
the quarrying on Mount Riutusvaara was so substantial that it did effectively
deny the authors the right to enjoy their cultural rights in that region. The
Committee then recalled “paragraph 7 of its General Comment on Article 27,
according to which minorities or indigenous groups have a right to the pro-
tection of traditional activities such as hunting, fishing or, as in the instant
case, reindeer husbandry, and that measures must be taken “to ensure the ef-
fective participation of members of minority communities in decisions which
affect them”. Having in this way laid specific weight on the issue of minor-
ity/indigenous participation, the Committee concluded that quarr ying on the
slopes of Mt. Riutusvaara, in the amount that had already taken place, did not
constitute a denial of the authors’ right, under Article 27, to enjoy their own
culture.
The HRC noted “in par ticular t hat the interests of the Muotkatuntur i Herds-
mens’ Committee and of the authors were considered during the proceedings
leading to the delivery of the quarrying permit, that the authorswere con-
sulted during the proceedings, and that reindeer herding in the area did not
130 As Fitzmaurice notes, “[A]rticle 27 sets the absolute barrier, and States have no mar-
gin of discretion in these matters.” M. Fitzmaurice, ‘The New Developments Regarding
the Saami Peoples of the North’, 16 International Journal on Minority and Group Rights
(2009) p. 108.
131 The HRC had decided in the Lovelace case that “not every i nterference can be regarded
as a denia l of rights wit hin the meani ng of Article 27” noting fu rther “that statutor y re-
strictions… must have both a reasonable and objective justification and be consistent
with t he other provision s of the Covenant, read as a whole.” Human R ights Committee,
Commun ication No. 24 / 1977, Sandra Lovelace v. Canad a, CCPR / C / 13 / D / 24 / 1977, 30
July 1981, paras. 15-16.
132 G. Stevens, ‘The Ainu and Human Rights: Domestic and International Legal Protec-
tions’, 2 Asia-Pacific Jou rnal on Human Ri ghts and the Law (2001) p. 124.
133 UN Doc. CCPR / C / 52 / D / 51 1 / 1992, supra note 83, para . 9.5; See S. J. Anaya, Indigenous
Peoples in International Law (Oxford University Press, 2004, 2nd edn) p. 136.
134 UN Doc. CCPR / C / 52 / D / 511 / 1992, supra note 83, para. 9.5; See H. P. Graver and G.
Ulfs tein, ‘The Sami People’s Right to La nd in Norway’, 11 Inte rnationa l Journal on Mino r-
ity and Group Rights (2004) pp. 343-344.
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384 12 –  
appear to have been adversely affected by such quarrying as has occurred.
Regarding t he authors’ concerns about future activ ities, the Committee noted
“that economic activities must, in order to comply with Article 27, be carried
out in a way that the authors continue to benefit from reindeer husbandry”.
The HRC also opined thatifmining activities in the Angeli area were to be
approved on a large scale and significantly expanded by those companies to
which exploitation permits have been issued, then this might constitute a
violation of the right of authors to enjoy their own culture. In other words,
the Committee established a combined test of ‘consultation and sustainabili-
ty’ which must be fulfilled in each case where a violation of Article 27 is
being invoked in order to decide whether or not there is a breach of the pro-
vision. The Committee’s decision, then, that there had been no violation of
Article 27 in the specific instance, was based – aside from the non substantial
impact, according to its verdict, of the limited mining activities on the way of
life of the complainants – on, inter alia, the fact that the competent authori-
ties had consulted the affected Sami herdsmen, thus complying with its
interpretation given in the General Comment No 23 as regards the need for
the participation of the members of minority communities in decisions af-
fecting them.
135 UN Doc. CCPR / C / 52 / D / 511 / 1992, supra note 83, para. 9.6 (emphasis added); See S.
J. Anaya, ‘International Human Rights and Indigenous Peoples: The Move Toward the
Multicultural State’, 21 Arizona Journal of International and Comparative Law (2004) p.
31.
136 UN Doc. CCPR / C / 52 / D / 511 / 1992, supra note 83, para. 9.8(emphasis added); See M.
Lundberg and Y. Zhou, ‘Hunting-Prohibition in the Hunters’ Autonomous Area: Legal
Rig hts of Or ogen People and the Implementat ion of Reg ional Nationa l Autonomy Law’,
16 International Jour nal on Minority and Group Rights (2009) p. 38 5.
137 UN Doc. CCPR / C / 52 / D / 511 / 1992, supra note 83, para. 9.8; See N. Bankes, ‘Natural
Resource Projects, I ndigenous Peoples and the Role of International Law, 87 Resources
(20 04) p. 5.
138 L. Heinämäki, ‘Rethinking the Status of Indigenous Peoples in International Environ-
mental Decision-Making: Pondering the Role of Arctic Indigenous Peoples and the
Chal lenge of Climate Ch ange’, in T. Koivurova, E . Carina , H. Keskita lo and Nigel Bankes
(ed s.) , Climate Governance, Environment and Policy (Springer, 2009) p. 225.
139 J. Debeljak, ‘Indigenous Rig hts: Recent Developments in Internat ional Law’, 28 Interna-
tional Journal of Legal Information (2000) p. 293.
140 S. Wheatley, ‘Deliberative Democracy and Minorities’, 14 European Journal of Interna-
tional Law (2003) p. 523.
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6.2 Äärelä and Näkkäläjärvi v. Finland
The same path was followed by the Committee in the case of Äärelä and Näk-
käläjärvi v.Finland, where the authors, again reindeer breeders of Sami eth-
nic origin of the Sallivaara Reindeer Herding Co-operative, alleged that the
Rovaniemi Court of Appeals’ decision to allow logging and road construction
in the Kariselkä area – amounting to 92 hectares of a total of 286,000 hectares
of the Co-operative’s total lands – claimed to be amongst their co-operative’s
best winter herding lands, in conjunction with a concurrent reduction of the
permissible number of reindeer, constituted inter alia a negation of their right
to enjoy their culture, in community with other Sami, for which the survival
of reindeer herding is essential, and thus a violation of Article 27. A sig-
nificant aspect of the case was the strong emphasis laid by the Finnish Gov-
ernment on the fact that, according to the previous relevant jurisprudence
of the Committee, the concerned persons had effectively participated in the
decisions affecting them. Specifically, “[t]he Forestry Service plans were de-
veloped in consultation with reindeer owners as key stakeholder groups” and
“[t]he Sallivaara Committee’s opinion resulted in a course being adopted dif-
ferent to that originally recommended by the Wilderness Committee to rec-
oncile forestry and herding, including a reduced area available to forestry.”
Regarding the allegation of violation of Article 27 the Committee, after re-
peating its previous jurisprudential position that the authors are indisputably
members of a minority culture and that reindeer husbandry is an essential el-
ement of their culture, recalled that in such cases the crucial point is whether
the interference in the husbandry is so substantial that the state has failed
to properly protect the authors’ right to enjoy their culture (sustainability
criterion). The question before the Committee was thus whether the log-
ging of the 92 hectares of the Kariselkä area conformed to that threshold. The
Committee, however, found itself unable to decide whether the logging of 92
hectares amounted to a failure on the part of the state party to properly pro-
tect the authors’ right to enjoy Sami culture, in v iolation of Art icle 27. This was
due to lack of sufficient information enabling it to draw independent conclu-
141 Human Rights Committee, Communication No. 779 / 1997, Anni Äärelä and Jouni Näk-
käläjärvi v. Finland, UN Doc. CCPR / C / 73 / D / 779 / 1997, 7 November 2001, para. 3.1.
142 Ibid., pa ra. 4.6; See H. McGlue, ‘The Jurisprudence of the United Nations Human Rights
Committee and Other Treaty Monitoring Bodies’, 2 European Yearbook of Minority Is-
sues (2002/2003) p. 515.
143 UN Doc. CCPR / C / 73 / D / 779 / 1997, supra note 141, para. 7.5; See F. Viljoen, ‘Fact-
Finding by UN Human Rights Complaints Bodies - Analysis and Suggested Reforms’, 8
Max Planck Yearbook of United Nations Law (2004) p. 70.
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sions on the factual importance of the area to husbandry and the long-term
impacts on the sustainability of husbandry. Despite this factual inability
to reach a solid conclusion it is important to note that in its consideration of
the merits the Committee gave specific emphasis to the fact – taken as given
– “that the authors, and other key stakeholder groups, were consulted in the
evolution of the logging plans drawn up by the Forestry Service, and that the
plans were partially altered in response to criticisms from those quarters”.
6.3 Jouni E Lansman et al v. Finland
In the above cases the Committee had no difficulty in determining whether
or not the authors had participated in the contested decisions, because the
latter did not dispute that consultations had taken place or that they were ad-
equate, meaningful, representative, etc., and in any case made no such claim
in the articulation of their arguments. The situation is different, however, in
cases where the complainants challenge the existence, effectiveness or rep-
resentativeness of consultations. In these cases the HRC appears to display
difficulty in developing a clearer and more precise framework for ensuring
that a process of participation is truly effective. Jouni E Lansman et al v. Fin-
land was the first case in point. In this case four Finnish Sami authors argued
that the Central Forestry Board’s plans to approve, without the participation
of the Sami, who were directly affected by the scheme, logging and road con-
struction – which in fact was begun while the case was still pending – in an
area covering about 3000 hectares situated within the Muotkatunturi Herds-
men’s Committee winter herding lands, constituted a violation of Article 27 of
the ICCPR. The Finnish government counter-claimed, among other things,
that before beginning logging activities the Forestry Board had held continu-
ous consultations, in conformity with the HRC’s insistence on the principle of
effective representation as reiterated in the views on case No. 511/1992, with
144 UN Doc. CCPR / C / 73 / D / 779 / 1997, supra note 141, para. 7.6; See Y. Donders, ‘Do
Cultural Diversity and Human Rights Make a Good Match?’, 199 International Social
Science Journal (2010) p. 24.
145 UN Doc. CCPR / C / 73 / D / 779 / 1997, supra note 141, para. 7.6 (emphasis added); See A.
Conte and R. Burchill, Defining Civil and Political Rights: The Jurisprudence of the Hu-
man Right s Committee (MPG Books, Bodmin, Cornwall, 2009, 2nd edn) p. 282.
146 Human Rights Committee, Communication No. 671 / 1995, Jouni E Lansma n et al v. Fin-
land, UN Doc. CCPR / C / 58 / D / 671 / 1995, 22 November 1996, paras. 1, 2.1, 2.4, 2.7,
7.1 2; See K. Hossa in, ‘The Human R ights Commit tee on Traditional Cu ltural Rig hts: The
Case of the Arctic Indigenous Peoples’, in T. Veintie and P. K. Virtanen (eds.), Local and
Global Encounters: Norms, Identities and Representations in Formation (Renvall Insti-
tute for Area and Cultural Studies, Helsinki, 2009) p. 34.
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the local Herdsmen’s Committee, which had objected to neither the logging
plans nor the schedule for their implementation.
The effectiveness of these participatory processes was proved by the
amendments agreed upon during the meetings, i.e. reverting to use of win-
ter roads and exclusion of the northern part of the logging area. The authors
strongly contested that particular argument, affirming that what the govern-
ment presented as ‘negotiations’ were in fact ‘little more than invitations’ to
the chairmen of the herdsmen’s committees to attend the annual meetings of
the Forestry Board, where they were simply informed of short-term logging
projects. In concluding, they stressed that no real consultations had taken
place that could be said to constitute ‘effective participation’, and expressed
their desire for a more meaningful possibility to influence logging decisions
in their territories. In its consideration of the merits the Committee, after
recalling once again the terms of paragraph 7 of its General Comment No
23 regarding the need for the adoption of measures “to ensure the effective
participation of members of minority communities in decisions which affect
them”, noted that:
[i]t is uncontested that the Muotkatunturi Herdsmen’s Committee, to
which the authors belong, was consulted (emphasis added) in the pro-
cess of drawing up the logging plans and in the consultation the Muot-
katunturi Herdsmen’s Committee did not react negatively to the plans
for logging. That this consultation was unsatisfactory to the authors and
was capable of greater interaction does not alter the Committee’s assess-
ment.
In closing, the HRC observed, among other things, that it was not in a posi-
tion to determine, on the basis of the evidence presented to it, whether the
consequences of the logging plan would be such as to constitute a denial of
the authors’ rights under Article 27.
147 UN Doc. CCPR / C / 58 / D / 671 / 1995, supra note 146, para. 10.4; See G. Osherenko,
‘Indi genous Rights in R ussia: Is Tit le to Land Essent ial for Cultu ral Surv ival?’, 13 George-
town Internationa l Environmental Law Review (200 1) p. 705.
148 UN Doc. CCPR / C / 58 / D / 671 / 1995, supra note 146, para. 10.5(emphasis added); See N.
Bankes, ‘International Human Rights Law and Natural Resources Projects Within the
Traditional Territories of Indigenous Peoples’, 47 Alberta Law Revie w (2010) p. 472.
149 See A. Smagadi, Sourcebook of International Human Rights Materials (British Institute
of International and Comparative Law, 2008) p. 424.
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6.4 Apirana Mahuika et al v. New Zealand
Apirana Mahuika et al v. New Zealand is another case presenting several simi-
larities as regards the issue of contesting opinions about the effectiveness and
adequacy of consultations that have taken place in the frame of Article 27. In
this case, 19 individuals belonging to the Maori people of New Zealand ap-
pealed to the Committee on the grounds that government actions imposing
restrictions on their fishing activities, such as a new law [Treaty of Waitangi
(Fisheries Claims) Settlement Act 1992] removing the Maori right to pursue
traditional fishing other than in the limited sense preserved by the law and
the denial of the commercial aspects of fishing in exchange for a share in
fishing quota, threatened the way of life and the culture of their tribes, in
violation of, inter alia, Article 27 of the ICCPR. The authors alleged that
there had had been no effective consultation with the Maori people during
the negotiations that led to the conclusion and signing of the Deed of Settle-
ment, which abolished and extinguished all Maori commercial fishing rights
and interests and discontinued the relevant civil cases pending before the
courts. Specifically, they argued that the contents of the Memorandum of Un-
derstanding that led to the Deed of Settlement were not always adequately
disclosed or explained to their tribes and sub-tribes, a fact that in some cases
seriously undermined informed decision-making on the proposals contained
in the Memorandum. The Memorandum was supported by the assemblies
of 50 tribes representing 208.681 Maori and opposed by the assemblies of 15
tribes representing 24.501 Maori, while another 7 groups comprising 84.255
Maori were divided in their views. The authors further claimed that a num-
ber of the Maori negotiators who signed the Deed of Settlement that imple-
mented the Memorandum of Understanding either had no authority to do so
or that there was doubt as to whether they possessed such authority.
150 UN Doc. CCPR / C / 55 / D / 547 / 1993, supra note 82, para. 6.2; For a comprehensive
account of the issue of Maori fisheries and settlements see R. P. Boast, ‘Maori Fisheries
1986-1998: A Reflect ion’, 30 Victoria Universit y of We llington Law Review (1999) 111 et seq.
151 UN Doc. CCPR / C / 55 / D / 547 / 1993, supra note 82, para. 5.8; See D. Shelton, ‘Human
Right s and the Env ironment: Jur isprudence of Huma n Rights Bod ies’, 32 Environmental
Policy (2002) p. 159.
152 UN Doc. CCPR / C / 55 / D / 547 / 1993, supra note 82, para. 5.9; See J. S. Davidson, ‘Fish-
ing for Rights? Mahuika v New Zealand in the UN Human Rights Committee’, 16 Inter-
national Journal on Marine and Coastal Law (2001) p. 681.
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Having noted that the authors are indisputably members of a minority and
that the use and control of fisheries is an essential element of their culture
and thus falls within the ambit of Article 27, the Committee observed in con-
formity with its previous jurisprudence that the aforementioned provision
requires that members of minorities shall not be denied their right to enjoy
their own culture and consequently that measures whose impact amounts to
a denial of that right will not be compatible with the obligations under Ar ticle
27. In this context the HRC once again drew on its General Comment No 23
on the need for the effective participation of members of minority communi-
ties in decisions affecting them, stressing that:
the acceptability of steps that affect or interfere with the culturally
significant economic activities of a minority depends on whether the
members of the minority in question have had the opportunity to par-
ticipate in the decision-making process in relation to these steps and
whether they will continue to benefit from their traditional economy.
Considering the specific issue, the Committee took the view that the state
party had undertaken a complicated process of consultation in order to se-
cure broad Maori support for the regulation of fishing activities. Indeed, as
a result of these consultations Maori proposals affected the design of the ar-
rangement. According to the Committee “[t]he Settlement was enacted only
following the Maori representatives’ report that substantial Maori support
for the Settlement existed.” Thus, the Committee concluded that for many
Maori, the Act was an acceptable settlement of their claims. Taking it, then,
for granted that broad consultations had taken place and adopting the view
153 UN Doc . CCPR / C / 55 / D / 547 / 1993, supra note 82, para. 9.3; See A. H. E . Morawa, ‘The
Jurisprudence of the Human Rights Committee and Other Treat y Monitoring Bod ies’, 1
European Yearbook of Minorit y Issues (2001/2002) p. 473.
154 UN Doc. CCPR / C / 55 / D / 547 / 1993, supra note 82, para. 9. 4; See F. Lenzerini, ‘The
Interplay Between Environmental Protection and Human and Peoples’ R ights in Inter-
national Law’, 10 African Yearbook of International Law (2002) p. 98.
155 UN Doc. CCPR / C / 55 / D / 547 / 1993, supra note 82, para. 9.5(emphasis added).; See
M. Hoogan, ‘The Nisga’a Final Agreement and International Norms’, 11 International
Journa l on Minority and Group Rights (2004) p. 324.
156 UN Doc. CCPR / C / 55 / D / 547 / 1993, supra note 82, para. 9.6; See G. Alfredsson and E.
Ferrer as updated and rev ised by K. Ramsay, Minorit y Rights: A Guide to United Nations
Procedures and Institutions (Minority Rights Group International and Raoul Wallen-
berg Institute of Human Rights and Humanitarian Law, London, 2004) pp. 24-25 .
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that special attention had been paid to the cultural and religious significance
of fishing for the Maori during those consultations, the HRC opined that:
[w]hile it is a matter of concern that the settlement and its process have
contributed to divisions amongst Maori, nevertheless, the Committee
concludes that the State party has, by engaging itself in the process of
broad consultation before proceeding to legislate, and by paying spe-
cific attention to the sustainability of Maori fishing activities, taken the
necessary steps to ensure that the Fisheries Settlement and its enact-
ment through legislation, including the Quota Management System, are
compatible with Article 27.
6.5 Critical Approaches to the Notion of ‘Efective Participation’ as
Applied by the HRC
In the last two cases the Human Rights Committee in a certain sense by-
passed the authors’ objections as regards the question of their non-effective
participation in the contested decisions, merely accepting the states’ argu-
ments that broad consultations had been held, but without specifying in de-
tail the points that led to its decision and consequently without clarifying the
criteria that make a consultation process consonant with the requirements
of Article 27. This produced much criticism. McGoldrick, for example,
notes in general that “[a]lthough the HRC has adopted a wide interpretation
of culture, it has tended not to find violations of Article 27 on the facts of
157 UN Doc. CCPR / C / 55 / D / 547 / 1993, supra note 82, para. 9.8; See G. Pentassuglia, ‘In-
troduction - Minorit y Rights, Human Rights: A Review of Basic Concepts, Entitlements
and Implementation Procedures under International Law’, in Council of Europe (ed.),
Mechanisms for the Implementation of Minority Rights (Council of Europe Publishing,
Strasbourg, 2004) p. 13.
158 See C. Scott, ‘Multinational Enterprises and Emergent Jurisprudence on Violations of
Economic, Social and Cultural Rights’, in A. Eide, C. Krause and A. Rosas (eds.), Eco-
nomic, Social and Cultural Rights: A Textbook (Martinus Nijhoff Publishers, Dordrecht,
2001, 2nd edn) p. 582, observing that the “Committee has not yet interpreted the pro-
tection of human rights from corporate activity (at least where cultural rights are the
issue) to create what would be call “obligations of result””; Verstichel, supra note 79, p.
39 footnote 55, who also points out that when the HRC accepts restric tions on a minor-
ity’s right to enjoy its culture because the members of that minority have taken part
in the relevant decision, it must examine the extent to which the consultation process
was fair.
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the communications before it.” In the same spirit and in a general context,
Shelton also observes that “[f]or the past twenty-five years, every time a cul-
tural minority has petitioned the Human Rights Committee under Article
27 of the ICCPR, it has failed. In nearly every case, the Committee has de-
clared the complaint inadmissible or rejected it on the merits.” Regarding
the specific issue of the effective minority/indigenous participation Anaya
comments that in both the Lansman cases the committee did not consider
whether the Sami had property rights in the lands in question, in which
case “a more demanding duty of consultation would at least arguably have
applied.” Pentassuglia on his part has argued that “[i]n the Lansman cases,
the [in principle generally applicable] criterion of involvement of the affected
group seems to be construed more as a flexible material parameter to deter-
mine ‘non-denial’ and less as a prior strict legal requirement to protect mi-
nority identity.” Bankes observes that in the Mahuika v. New Zealand case
the Committee “did not comment directly on the petitioners’ claim that the
settlement was inadequately explained, thus undermining informed consent
to the arrangement.” Henrard makes the most critical assessment, observ-
ing that:
it seems especially problematic that the HRC does not take into account
the denial by an indigenous group that they were consulted. In any
event, it does not seem to be correct to give undue weigh to the fact that
‘mere’ consultations took place in the sense that limitations to minority
rights would become easier to justify, especially when the outcome of
159 D. McGoldrick, ‘Culture, Cultures, and Cultural Rights’, in M. A. Baderin and R. Mc-
Corquodale (eds.), Economic, Social and Cultural Rights in Action (Oxford University
Press, Oxford, 2007) p. 452.
160 D. Shelton, ‘The U.N. Human Rights Committee’s Decisions’, 12 Human Rights Dialogu e
Series 2 (2005) p. 31.
161 J. Anaya, ‘Indigenous Peoples’ Participatory Rights in Relation to Decisions About
Natura l Resource Extraction: The More Fundamental Issue of What Rights Indigenous
Peoples Have in Lands and Resources’, 22 Arizona Journal of International and Com-
parative Law (2005) p. 12.
162 G. Pentassuglia, ‘Minority Issues as a Challenge in the European Court of Human
Rights: A Comparison with the Case Law of the United Nations Human Rights Com-
mittee’, 46 German Yearbook of International Law (2003) p. 437.
163 Bankes, supra note 124, p. 214 concluding that “[a]s a result, the Committee does not
seem to have afforded great weight to what a Canadian court might refer to as the pre-
ferred means for the petitioners to exercise their right (to culture).
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these consultations does not seem to take the minorities’ view point into
account at all.
In order to establish a measure of comparison it has been held, in the context
of ILO Convention No 169, that ‘consultations’ does not mean simply a formal-
istic process of notifying indigenous populations about plans that concern
them but requires on the one hand that they be clearly, fully and accurately
informed and on the other that they be given real and fair opportunities to be
heard and to influence the decisions that will affect their lives. Concretely,
as regards the content of such consultations it has been noted that:
the concept of consultation with the indigenous communities that
might be affected with a view to exploiting natural resources must en-
compass genuine dialogue between the parties, involving communica-
tion and understanding, mutual respect and good faith, and the sincere
desire to reach a consensus. A meeting conducted merely for informa-
tion purposes cannot be considered as being consistent with the terms
of the Convention. Furthermore, according to Article 6, the consulta-
tion must be “prior” consultation, which implies that the communities
affected are involved as early on as possible in the process, including in
environmental impact studies.
More specifically as regards the matter of proper representation, as raised
by the authors in the Mahuika v. New Zealand case, the ILO ad hoc tripartite
committees have noted that, although it may be difficult in many circum-
stances to determine who represents a given community, the consultations
need to be carried out with the institutions that are truly representative of
164 K. Henrard, ‘Minority Protection Mechanisms as Means to Prevent and Settle Disputes
Over Sovereignty’, in M. Jovanovic and K. Henrard (eds.), Sovereignty and Diversity
(Eleven International Publishing, Utrecht, 2008) p. 123.
165 S. J. Anaya and R. A. Williams, ‘The Protection of Indigenous Peoples’ Rights Over
Lands a nd Natural Res ources under the Int er-America n Human R ights System’, 14 Har-
vard Human Rights Journal (2001) p. 80.
166 Report of the Committee Set up to Examine the Representation alleging non-obser-
vance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No.169),
made under Article 24 of the ILO Constitution by the Central Unitary Workers’ Union
(CUT), Document: GB. 276 / 17 / 1, Document: GB. 282 / 14 / 3, para. 90.
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the indigenous populations because otherwise they will not comply with the
requirements of the Convention.
Furthermore, in the context of the Inter-American human rights system,
where “ the obligation t o consult [the indigenou s peoples], in addition to b eing
a conventional standard, is also a general principle of International Law”, it
has been held by the Inter-American Court that:
in order to ensure effective participation by members of an indigenous
community or people in development or investment plans with their
territory, the State has the duty to consult the community in an active
and informed manner, and in accordance with its customs and tradi-
tions, in the context of a continuous communication between the par-
ties. Moreover, these consultations should be undertaken in good faith,
through culturally appropriate procedures and must be aimed at reach-
ing an agreement. Similarly, the indigenous people or community must
be consulted in accordance with its traditions, during the early stages of
the development or investment plan, and not only when it is necessary
to obtain the community’s approval. Also, the State must ensure that
members of the community are aware of the potential benefits and risks
so they can decide whether or not to accept the proposed development
or investment plan. Finally, the consultation must take into account
the traditional decision – making practices of the people or communi-
ty. Failure to comply with this obligation, or engaging in consultations
without having regard to their essential characteristics, compromises
the State’s international responsibility.
167 “ The Committee is aw are that it could be d ifficu lt in many circ umstance s to determine
who represent s any given commu nity. However, if an appropriate consult ation process
is not developed with the indigenous and tribal institutions or organizations that are
truly representative of the communities affected, the resulting consultations will not
comply with the requirements of the Convention.” Report of the Committee Set up to
Examine the Representation alleging non-observance by Ecuador of the Indigenous
and Tribal Peoples Convention, 1989 (No.169), made under Ar ticle 24 of the ILO Consti-
tution by the Confederación Ecuatoria na de Organizaciones Sindicales Libres (CEOSL)
(CEOSL), Document: GB. 277 / 18 / 4, Document: GB. 282 / 14 / 2, para. 44.
168 Inter-A merican Cour t of Human Rights, Case of the Kichwa Ind igenous People of Saray-
aku v. Ecuador, Series C, No 245, Judgement of June 27, 2012, para. 164.
169 Ibid., para. 17 7(emphasis added); See on the case L. Brunner a nd K. Quinta na, ‘The Duty
to Consult in the Inter-American System: Legal Standards after Sarayaku’, 16 ASIL In-
sights, 28 November 2012, <w ww.asil.org/pdfs/insights/insight121128.pdf>, visited on 4
December 2013.
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Moreover, even in the context of minority instruments in the strict sense
the requirement for effective participation of the members of minorities in
the public affairs affecting them seems to have a stronger meaning than the
interpretation of the HRC in its relative jurisprudence suggests. Thus, it has
been proposed by the drafters of the FCNM in their Explanatory Memoran-
dum that parties could promote, in the framework of their constitutional
systems, such measures as, inter alia, involving the minority persons in the
preparation, implementation and assessment of national and regional plans
and programmes likely to affect them directly; undertaking studies, in con-
junction with these persons, to assess the possible impact on them of pro-
jected development activities; ensuring their effective participation in the
decision-making processes and elected bodies, both at national and local
levels, or even granting decentralised or local forms of government. Along
the same lines the Advisory Committee of the FCNM has pointed out in its
‘Commentary on the Effective Participation of Persons Belonging to National
Minorities in Cultural, Social and Economic Life and in Public Affairs’ (2008)
that “‘effectiveness’ of participation cannot be defined and measured in ab-
stract terms” and “that mere consultation does not constitute a sufficient
mechanism for ensuring effective participation of persons belonging to na-
tional minorities.” In this light states should ensure that minorities’ par-
ticipation “has a substantial influence on decisions which are taken and that
there is, as far as possible a shared ownership of the decisions taken.”
Following an analogous path the 1991 Geneva Report of the CSCE Meeting
of Experts on National Minorities calls inter alia for 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-adminis-
tration by a national minority of aspects concerning its identity in situations
170 Explanatory Memorandum on the Framework Convention for the Protection of Na-
tional Minorities, 16 Human Rights Law Journal (1995) p. 106, para. 80; See also A. Xan-
tha ki and D. O’Sul livan, ‘Ind igenous Part icipation in Elect ive Bodies: The Maor i in New
Zealamd’, 16 International Journal on Minorit y and Group Rights (2 009) p. 184 .
171 Advisory Committee on the Framework Convention for the Protection of National
Minorities, Commentar y on the Effective Participation of Persons Belonging to Na-
tional Minorities in Cultural, Social and Economic Life and in Public Affairs, ACFC /
31DOC(2008)001, 5 May 2008, p. 12, para. 18.
172 Ibid., pp. 7, 22, 28.
173 Ibid., p. 13 (emphasis added).
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where autonomy on a territorial basis does not apply; and decentralized or lo-
cal forms of government. This framework has been enhanced by the ‘Lund
Recommendations on the Effective Participation of National Minorities in
Public Life’ (1999), calling upon States to provide an inclusive, transparent
and accountable process of consultation by establishing, inter alia, advisory
or consultative bodies, the composition of which should contribute to more
effective communication and the advancement of minority interests. Ac-
cording to the Recommendations, authorities “should consult these bodies
regularly regarding minority-related legislation and administrative measures
in order to contribute to the satisfaction of minority concerns.” 
The HRC does not appear to have complied with these standards, although
it must be acknowledged that both the ILO’s ad hoc tripartite committees,
which rule on the basis of a Convention in which the spirit of consultation
and participation constitutes the cornerstone of its text, and the Advisory
Committee of the FCNM which relies on a provision specifically devoted to
the right of minority members to effectively participate in decisions on mat-
ters affecting them (Article 15), operate in a totally different context to the
HRC, which decides on the basis of a stipulation that neither refers to indige-
nous peoples expressly nor presupposes, at least explicitly, the opportunity
(let alone the right) to take part in decisions affecting the rights it enshrines.
Since, however, securing effective participation to minorities and indigenous
peoples in decisions affecting their way of life is a necessary precondition for
enjoying their culture and as the HRC itself took the initiative to interpret
Article 27 in such terms it has the obligation to complete its insightful ap-
174 See ‘Report of the CSCE Me eting of Experts on Nationa l Minorities , Geneva 19 July 1991’,
12 Human Rights La w Journal (1991) p. 333.
175 See The Lund Recommendations on the Effective Participation of National Minorities in
Public Life and Explanatory Note, OSCE High Commissioner on National Minorities,
September 1999, pp. 7, 10, < www.osce.org/hcnm/32240?download=true>, visited on 4
December 2013.
176 Ibid., p. 10.
177 See T. Joona, ILO Convention No. 169 in a Nordic Context with Comparative Analysis: An
Interdisciplinary Approach, Juridica Lapponica 37 (Lapland University Press, Univer-
sity of Lapland, Rovaniemi, 2012) p. 221.
178 See M. Weller, ‘Article 15’, in M. Weller (ed.), The Rights of Minorities in Europe: A Com-
mentar y on the European Framework Convention for the Protection of National Minori-
ties (Oxford University Press, New York, 2005) pp. 429 et seq.
179 See Work of the Office of the United Nations High Commissioner for Human Rights and
Human Rights Bodies with Regard to Minorities and the Right to Effective Participation,
Note by the Secretariat, UN Doc. A / HRC / FMI / 2009 / 5, 11 November 2009, para. 21.
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proach by clarifying the parameters that make a participatory process prac-
tically effective and consequently, the protection accorded by the provision
truly meaningful.
7 A Major Step Forward: From ‘Efective Participation’ to ‘Free, Prior
and Informed Consent’ (‘FPIC’)
7.1 The Case of Ángela Poma Poma v. Peru
Until the Mahuika v. New Zealand case the recognition to minorities/indig-
enous peoples of an ‘opportunity’ to participate effectively in the decisions
affecting their culture fell short of presupposing their consent. The HRC’s
decision on Poma Poma v. Peru case broke new ground on this issue. In that
case the author, owner of an alpaca farm in the province and region of Tacna,
where alpacas, llamas and other smaller animals were raised, and a descend-
ant of the Aymara community for which llama-raising is claimed to have
been part of their way of life for thousands of years, complained that gov-
ernment-authorised construction of several wells in the community area – in
order to divert water from the Andes to the Pacific coast – had destroyed the
ecosystem of the altiplano and caused the degradation of the land and the
drying out of the wetlands. Large quantities of Aymara livestock had died
as a result, depriving the families comprising the community, including the
author’s, of their only means of subsistence – grazing and raising llamas and
alpacas – and seriously encroaching on their identity and way of life. In this
context the author alleged that the state party violated Article 1(2), Article
2(3)(a), Article 14(1) and Article 17 of the Covenant. The Committee declined
to consider the allegation of violation of Article 1(2) on procedural grounds,
recalling its previously mentioned jurisprudence according to which “the Op-
tional Protocol provides a procedure under which individuals can claim that
their individual rights have been violated, but that these rights do not include
those set out in Article 1 of the Covenant.” Concerning the author’s refer-
ence to Article 17, the Committee considered that the facts as presented by
the author raised issues that were related to Article 27 and admitted the case
180 L. Nesti, ‘The Mapuche - Pehuenche and the Ralco Dam on the Biobio River: The Chal-
lenge of Protecting Indigenous Land Rights’, 9 International Journal on Minority and
Group Rights (2002) p. 23.
181 Human R ights Commit tee, Communic ation No. 1457 / 200 6, Ángela Poma Poma v. Peru,
UN Doc. CCPR / C / 95 / D / 1457 / 2006, 27 March 2009, paras. 1 - 3.4.
182 Ibid., para. 6.3.
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in connection with the specific provision and the right to an effective remedy
enshrined in Article 2(3).
As regards as Article 27, the Committee, after noting that the author is a
member of an ethnic minority and that raising llamas is an essential element
of the culture of the Aymara community, recalled its view originally formu-
lated in the first Lansman case that a state may legitimately take steps to
promote its economic development, without however undermining the rights
protected by Article 27. In this context the Committee referred to its position
expressed in the Mahuika case that the acceptance of measures interfering
with significant minority/indigenous cultural activities “depends on wheth-
er the members of the community in question have had the opportunity to
participate in the decision-making process in relation to these measures”.
However, the breakthrough element of the Committee’s approach in relation
to its previous jurisprudence was the additional consideration that:
participation in the decision-making process must be effective, which
requires not mere consultation but the free, prior and informed consent
of the members of the community. In addition, the measures must re-
spect the principle of proportionality so as not to endanger the very sur-
vival of the community and its members.
In applying, then, the threshold of ‘consultation and sustainability,’ the Com-
mittee observed on one hand that neither the author nor the community to
which she belonged was consulted at any time by the state party concerning
the construction of the wells, and on the other hand, that the author had been
unable to continue benefiting from her traditional economic activity owing
to the drying out of the land and loss of her livestock. Having made those
observations, which in practical terms meant that Peru had failed to satisfy
the aforementioned threshold, the Committee concluded that the activities
carried out by the state party violated the right of the author to enjoy her own
culture together with the other members of her group, in accordance with
Article 27 of the Covenant.
183 Ibid., para. 7.6 (emphasis added).
184 Ibid (emphasis added); See M. Castan and J. Debeljak, ‘Indigenous Peoples’ Human
Rights and the Victorian Charter: A Framework for Reorienting Recordkeeping and
Archival Practice’, 12 Archival Science (2012) p. 222.
185 UN Doc. CCPR / C / 95 / D / 1457 / 2006, supra note 181, para. 7.7.
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7.2 Dening FPIC
Its breakthrough reference to the concept of free, prior and informed consent
notwithstanding, the HRC gave no definition of its meaning and scope. Gen-
erally, in the UN context it has been observed by the ‘Inter-Agency Support
Gr oup on I ndige nou s Iss ues ’ t hat “t her e is no intern at ion al ly a gr eed def ini tio n
of the principle or of the mechanisms for its application.” There is, however,
a common understanding of the elements inherent in it, as demonstrated in
the report of the ‘International Workshop on Methodologies Regarding Free,
Prior and Informed Consent and Indigenous Peoples’. This Workshop, which
was set up by ECOSOC and attended by dozens of experts and observers from
the UN system and other intergovernmental organisations, governments and
indigenous organisations, held – regarding the meaning of FPIC – that:
a) free can be defined as the absence of coercion and outside pressure, in-
cluding monetary inducements (unless these are mutually agreed on as
part of a settlement process), and ‘divide and conquer’ tactics. It must
also include the absence of any threat of retaliation if this results in a
decision to say no;
b) prior means a process taking place with sufficient lead time to allow
the information-gathering and sharing process to take place, includ-
ing translations into traditional languages and verbal dissemination as
needed, according to the decision-making processes decided by the in-
digenous peoples involved.
Consent must also take place without time pressure or time constraints.
A plan or project must not begin before this process is fully completed
and an agreement is reached;
c) informed means a consent that is based on the prior, full, and accurate
provision of all the relevant information, including, inter alia, the rea-
sons for and purpose, nature, duration, reversibility and scope of any
proposed project or activity, a preliminary assessment of the potential
186 Inter-Agency Support Group on Indigenous Issues, Report on Free, Prior and Informed
Consent, UN Doc. E / C.19 / 2004 / 11, 12 March 2004, para. 2.
187 See A. Carmen, Free, Prior and Informed Consent, Expert Seminar on Indigenous Peo-
ples’ Perma nent Sovereignt y Over Natura l Resources and on Thei r Relation to Land (25,
26 and 27 January 2006, Palais des Nations), HR / GENEVA / IP / SEM / 2006 / BP.7, p. 3.
188 See R. J. Hales, J. Rynne, G. Howlett, J. Divine and V. Hauser, ‘Indigenous Free Prior
Consent: A Case for Self-Determination in World Heritage Nomination Processes, 19
International Journal of Heritage Studies (2013) p. 272.
189 See B. McGee, ‘The Commu nity Referendu m: Participat ory Democracy a nd the Right to
Free, Pr ior and Informed Consent to Development’, 27 Berkeley Jour nal of International
Law (2009) p . 590 .
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risks and likely benefits and the locality of areas that will be affected;
and finally
d) consent is the right of indigenous peoples to accept or reject proposed
measures concerning them . As regards this la st point, it should be noted
that the right of prior consent or withdrawal of consent is not a single
non-recurring option but can be exercised at each stage of the project,
measure or development process.
7.3 Indigenous Peoples’ Culture under Serious Risk and FPIC
Another unanswered issue of the HRC’s decision in the Poma Poma v. Peru
case was that the Committee did not clarif y whether states parties should ob-
tain the FPIC of minorities/indigenous peoples prior to any decision/measure
or development project affecting their way of life, as the literal interpreta-
tion of the relevant paragraph suggests. It might be helpful, then, to look at
the specific indigenous normative instruments in order to safely reach a solid
conclusion on it. Beginning with the only legally binding text concerning in-
digenous peoples’ rights, ILO No 169, it has been stressed by the ILO ad hoc
tripartite committees considering Article 6(2) of the Convention, which calls
states parties to carry out consultations with the indigenous peoples “with
the objective of achieving agreement or consent to the proposed measures”,
that “the Office had not intended to suggest that the consultations referred to
would have to result in the obtaining of agreement or consent of those being
consulted, but rather to express an objective for the consultations.” Thus,
ILO No 169 does not recognise a right to veto to indigenous peoples.
Turning next to the UN Declaration on the Rights of Indigenous Peoples,
one could note, after careful reading of its language, that although six of its
Articles (10, 11(2), 19, 28(1) 29(2), 32(2)) contain explicit statements concern-
ing FPIC, the wording of only two of them, namely Articles 10 and 29(2) for-
bidding the displacement of indigenous peoples from their traditional lands
190 See P. Tama ng, An Overview of the Principle of Free, Prior and Informed Consent and In-
digenous Peoples in International and Domestic Law and Practices, Workshop on Free,
Prior and Informed Consent (New York, 17-19 January 2005) PFII / 2004 / WS.2 / 8, para.
48.
191 See Report of the International Workshop on Methodologies Regarding Free, Prior and
Informed Consent and Indigenous Peoples (New York, 17-19 January 2005), UN Doc. E /
C.19 / 2005 / 3, 17 February 2005, paras. 46-49.
192 Document: GB. 277 / 18 / 4, Document: GB. 282 / 14 / 2, supra note 167, para. 39.
193 L. Heinämäki, ‘Protecting the Rights of Indigenous Peoples - Promoting the Sustain-
ability of the Global Environment?’, 11 International Community Law Review (2009) p.
36.
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and the storage or disposal of hazardous materials in these lands without
their free, prior and informed consent respectively, is mandatory. By con-
trast the very cautious framing of Articles 19 and 32(2) calling upon States to
“consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free and
informed consent ” prior to the approval of legislative or administrative mea s-
ures that may affect them (Article 19) or before any project affecting their
lands or territories and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other resources
(Article 32(2)) has been interpreted by eminent scholars as not conferring on
indigenous peoples a right to veto any decision or project that affects them.
The reasoning is that the formulation ‘in order to obtain’ does not appear to
require states to obtain the consent of indigenous peoples but rather that they
consult them with the view of obtaining it. Th is is even more obvious i f one
looks at the respective former Articles 20 and 30 of the UN Draft Declaration
on the Rights of Indigenous Peoples, which used stronger language definitely
establishing a state duty to obtain indigenous consent before any decision or
measure affecting them. However, states’ objections to such a development
led to an inevitable compromise reducing the phrasi ng of t he aforementioned
articles to the present much weaker formulation of Articles 19 and 32(2).
In this light, as the International Law Association (‘ILA’) also argues, the lan-
guage of Articles 19 and 32(2) does not support the suggestion that a general
right to veto is recognised in favor of indigenous peoples.
Moving to the practice of the UN treaty bodies, it is observed that their ap-
proach is neither clear nor uniform. The Committee on Economic Social and
Cultural Rights (‘CESCR’), for example, consistently urges the states parties,
194 Expert Mechanism on the Rights of Indigenous Peoples, Follow-up Report on Indige-
nous Peoples and the Right to Participate in Decision-Making, with a Focus on Extractive
Industries, UN Doc. A / HRC / EMRIP / 2012 / 2, 30 April 2012, Annex, para. 20.
195 M. Barelli, ‘Free, Prior and Informed Consent in the Aftermath of the UN Declaration
on the Rights of Indigenous Peoples: Developments and Challenges Ahead’, 16 Interna-
tional Jou rnal of Human Ri ghts (2012) p. 11.
196 See M. Barelli, ‘Shaping Indigenous Self-Determination: Promising or Unsatisfactory
Solutions?’, 13 International Communit y Law Revie w (2011) p. 432.
197 See R. L . Barsh, ‘Indigenous Peoples and the UN Commission on Human R ights: A Case
of the Immovable Object and the Irresistible Force’, 18 Human Rights Quarterly (199 6)
p. 802.
198 International Law Association, Right s of Indigenous People s, Sofia Conference 2012, pp.
3-7, <http://www.ila-hq.org/en/committees/draft-committee-reports-sofia-2012.cfm>,
visited on 4 December 2013.
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in almost identical terms, “to consult and seek the consent of the indigenous
peoples prior to the implementation of … any public policy affecting them, in
accordance with ILO Convention No 169.” This language, though, is quite
ambiguous, for seeking consent does not appear to establish a right of veto
for indigenous peoples but is rather just an objective for states’ consultations
with them. Furthermore, ILO No 169 does not require, as has been said, indig-
enous peoples’ prior consent before taking decisions or measures affecting
them.
The Committee on Elimination of Racial Discrimination (‘CERD’) is also
quite inconsistent in its lang uage. Initially, the Committee adopted in its Gen-
eral Recommendation No 23 (1997) an unqualified wording, stating that “no
decisions directly relating to their [indigenous peoples’] rights and interests
are taken without their informed consent.” The Committee used identical
words in its 2002 concluding observations to Botswana, and even empha-
sised in the respective observations to Ecuador (2003) “that merely consulting
these communities prior to exploiting the resources falls short of meeting the
requirements set out in the Committee’s general recommendation XXIII on
the rig hts of indigenous peoples.” However, in its 2006 concluding observa-
tions to Guatemala and Guyana the Committee seemed to lower its standards
by mere ly as king st ates to endeavour to obtain or simply seek indigenous
peoples’ informed consent, a much weaker formulation than its previous one.
After the adoption of the UN Declaration on the Rights of Indigenous Peo-
ples (2007) the Committee embraced a more dynamic approach, calling upon
199 See for example Concluding Observations of the Committee on Economic, Social and
Cultu ral Right s: Mexico, UN Doc . E / C.12 / ME X / CO / 4, 9 June 2006, p ara. 28; Conclud-
ing Observations of the Committee on Economic, Social and Cultural Rights: Colom-
bia, UN Doc. E / C.12 / COL / CO / 5, 7 June 2010, para. 9 (emphasis added).
200 B. Clavero, ‘The Indigenous Rights of Participation and International Development
Policies’, 22 Arizona Journal of International and Comparative Law (2005) p. 46.
201 See Committee on the Elimination of Racial Discrimination, General Recommenda-
tion No 23: Indigenous Peopl es, 18 August 1997, para. 4 (d), contained in UN Doc. A / 52 /
18, Annex V, p. 122.
202 See Concluding Observations of the Committee on the Elimination of Racial Discrimi-
nation: Botswana, 1 November 2002, para. 304, contained in UN Doc. A / 57 / 18, p. 55.
203 See Concluding Observations of the Committee on the Elimination of Racial Discrimi-
nation: Ecuador, UN Doc. CERD / C / 62 / CO / 2, 2 June 2003, para. 16.
204 See Concluding Observations of the Committee on the Elimination of Racial Discrimi-
nation: Guatemala, UN Doc. CERD / C / GTM / CO / 11, 15 May 2006, para. 19.
205 See Concluding Observations of the Committee on the Elimination of Racial Discrimi-
nation: Guyana, UN Doc. CERD / C / GU Y / CO / 14, 4 April 2006, para. 14.
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402 12 –  
states (e.g., Ecuador (2008), Chile (2009), Guatemala (2010)) to obtain indig-
enous peoples’ consent, although not regarding all decisions affecting them
but specifically as regards implementation of projects for the extraction of
natural resources. Even in this new framework, though, its approach is not
wholly consistent, since in its 2009 concluding observations to Colombia the
Committee simply asked the State just to respect the free and informed con-
sent of the affected communities in accordance with ILO No 169.
It may be concluded then that a general right of indigenous peoples to veto
any decision/project that affects their cultures does not exist in international
law. However, it can be solidly argued that there does exist a specific state
duty to obtain (and not just seek to obtain or consult and cooperate in order to
obtain) the FPIC of indigenous peoples in cases where their culture is under
serious risk. This can be deduced from a combination of the jurisprudence
of the Inter-American Court of Human Rights, the semi-juridical ruling of
the African Commission on Human and Peoples’ Rights (‘ACHPR’) and the re-
cent CESCR’s interpretation of Article 15(1)(a) of the ICESCR in its latest Gen-
eral Comment No 21. More specifically, it was decided by the Inter-American
Court in the Saramaka People v. Suriname case that “regarding large-scale
development or investment projects that would have a major impact within
Saramaka territory, the State has a duty, not only to consult with the Sarama-
kas, but also to obtain their free, prior, and informed consent, according to
their customs and traditions.” Following an almost identical line the ACH-
PR held in the Centre for Minority Rights Development (Kenya) and Minority
Rights Group International on Behalf of Endorois Welfare Council v. Kenya case
that:
any development or investment projects that would have a major impact
within the Endorois territory, the State has a duty not only to consult
206 See Concluding Observations of the Committee on the Elimination of Racial Discrimi-
nation: Ecuador, UN Doc. CERD / C / ECU / CO /19, 22 September 2008, para. 16; Con-
cluding Observations of the Committee on the Elimination of Racial Discrimination:
Chile, UN Doc. CER D / C / CHL / CO / 15-18, 7 September 2009, pa ra. 22; Concluding Ob-
servations of the Committee on the Elimination of Racial Discrimination: Guatemala,
UN Doc. CERD / C / GTM / CO / 12-13, 19 May 2010, para. 11(a).
207 See Concluding Observations of the Committee on the Elimination of Racial Discrimi-
nation: Colombia, UN Doc. CERD / C / COL / CO / 14, 28 August 2009, para. 20.
208 Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, Se-
ries C, No 172, Judgement of November 28, 2007, para. 134 (emphasis added); See also
para. 137 in that same case.
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with the community, but also to obtain their free, prior, and informed
consent, according to their customs and traditions.
The CESCR for its part has stressed that states parties must in the framework
of their core obligations to implement Article 15(1)(a) of ICESCR:
allow and encourage the participation of persons belonging to minor-
ity groups, indigenous peoples or to other communities in the design
and implementation of laws and policies that affect them. States parties
should obtain their free and informed prior consent when the preserva-
tion of their cultural resources, especially those associated with their
way of life and cultural expression, are at risk.
Thus, as the UN Special Rapporteur James Anaya concludes, “[a] significant,
direct impact on indigenous peoples’ lives or territories establishes a strong
presumption that the proposed measure should not go forward without in-
digenous peoples’ consent.”
Based on the above analysis, the HRC’s reference to FPIC in its decision on
the Poma Poma v. Peru case should be understood, its strictly literal interpre-
tation notwithstanding, not as establishing a general duty of states parties al-
way s to obtain the FPIC of indigenous peoples to ever y decision/mea sure that
affects their culture, in order for participation to be effective for the purposes
of Article 27, but that, for the HRC, “group consent is required in the event
that the activities in question are bound to have a particular serious substan-
tive impact on indigenous lands”
209 See Centre for Minorit y Rights Development (Kenya) and Minorit y Rights Group Interna-
tional on Behalf of Endorois Welfare Council v. Kenya, African Commission on Human
and Peoples’ Rights, Communication No 276 / 2003, 4 February 2010, para. 291 (empha-
sis added).
210 UN Doc. E / C.12 / GC / 21, supra note 81, para. 55 (e) (emphasis added); See A. Barratt and
A. Afadameh-Adeyemi, ‘Indigenous Peoples and the Right to Culture: The Potential Sig-
nif icance for Af rican Indi genous Communit ies of the Committ ee on Economic, Socia l and
Cultural Rights’ General Comment 21’, 11 African Human Rights Law Jour nal (2011) p. 585.
211 Rep ort of the Specia l Rapporteur on t he Situati on of Human Rights a nd Fundam ental Free-
doms of Indigenous People, James Anaya, UN Doc. A / HRC / 12 / 34, 15 July 2009, para.
47(emphasis added); In the same line the ILA has concluded that “[w]hen the essence
of their cultural integrity is at significant risk, obtaining the free, prior and informed
consent of the indigenous peoples concerned becomes mandatory ”, supra note 198, p. 7.
212 G. Pentassuglia, ‘Towards a Jurispr udential Ar ticulation of Indigenous Land Rights, 22
European Journal of International Law (2011) p. 184 (emphasis added).
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8 Assessing HRC’s Contribution to the Clarication of Article 27:
Advancements and Challenges Still to be Fullled.
Article’s 27 dynamic and expanded interpretation by the HRC has made it
an invaluable pillar for the safeguarding of minority/indigenous cultures.
For example, Article 27 would be partly inoperative if state obligations were
restric ted only to a dut y of toler ation/non-interference w ith minority cultural
rights as its literary wording suggests. Indeed, positive state action is impera-
tive, as the Permanent Court of International Justice since the mid-war pe-
riod has indicated, in order for the minority members to enjoy equality in fact
and not merely in law with the majority members and also to be able to pre-
serve their culture. Still, the HRC should become more specific regarding
the exact content of the required state affirmative action for the sustainment
of minority / indigenous cultures.
Another innovative aspect of the HRC’s approach is that despite the norm’s
individualistic orientation, the Committee has interpreted it in a way that ac-
cords it a certain collective dimension. Such a reading is a necessary precon-
dition for the effective enjoyment of cultural rights, since individual rights
alone not only do not offer adequate protection but also have been historical-
ly use d by s tates to acculturate and assim ilate m inorit ies a nd indi genou s peo -
ples. Yet, HRC should give a stronger emphasis to the collective nature of
Article 27 as explained further below. Thirdly, HRC’s broad conception of the
notion of ‘culture’, encompassing a range of economic/traditional activities,
is of crucial importance to indigenous peoples, whom cultures are centred
on subsistence activities connected with their lands and natural resources.
Equally significant is the Committee’s inclusive approach subsuming within
213 See D. Molos, Underappreciated Resource or Inadequate Measure? Minority Protection
under Article 27 of the International Covenant on Civil and Political Rights, Queen’s Uni-
versity, Kingston, Ontario, Canada, October 2013, pp. 144-145, <http://qspace.library.
queensu.ca/bitstream/1974/8402/1/Molos_Dimitrios_201310_LLM.pdf>, visited on 4
December 2013.
214 See P. Thornberr y, ‘Self-De terminat ion, Minoritie s, Human Rig hts: A Review of Int erna-
tional Instruments’, 38 International and Comparative Law Quarterly (1989) p. 881; See
also E. Polymenopoulou, ‘Cultural Rights in the Case Law of the Inter national Cour t of
Justice’, 27 Leiden Journal of International La w (2014) p. 450.
215 See A. Yupsanis, ‘The Concept and Categories of Cultural Rights in International Law
– Their Broad Sense and the Relevant Clauses of the International Human Rights Trea-
ties’, 37 Syracuse Journal of International Law and Commerce (2010) pp. 247-248.
216 R.H. Thompson, ‘Ethnic Minorities and the Case for Collective Rights’, 99 American
Anthropologist (1997) p. 787.
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the ambit of the stipulation’s scope a variety of groups such as migrant work-
ers who find themselves in a disadvantaged position regarding the enjoyment
of their cultures and should have the same right - at least those of the second
generation who wish to keep and preserve their cultural identity - to enjoy
their own culture, to profess and practice their religion and use their own
language as members of ‘old’ minorities.
These progressive interpretations notwithstanding, there are still several
fields of protection covered by Article 27 which remain unexplored, like those
of language, education and religion. This lacuna is partly due to the fact that
the vast majority of the communications brought before the Committee con-
cerns violation allegations by indigenous peoples, the specific interests of
whom are focused almost exclusively on land rights, which are crucial for the
preservation of their culture. Thus, the linguistic rights for example, which
are at the top of minority agenda for many minority communities in Europe,
are to a significant degree missing from the Committee’s insight. Educa-
tional rights are also absent, as Article 27 does nor refer explicitly to educa-
tion, nor did the Committee pay any attention to it in its General Comment
No 23. However, there is an urgent need for educational rights to be adequate-
ly dealt with in the frame of Article 27, since a right to culture is meaningless
unless it includes a right to education that nurtures the preservation and de-
velopment of minor ity cult ural identit y and language. In this context it is a
positive development that the HRC has recently opined that “in the context of
Article 27, education in a minority language is a fundamental part of minority
culture”, but this statement still needs further elaboration.
217 M. Nowak, ‘The Right of Self-Determination and Protection of Minorities in Central
and Eastern Europe in Light of the Case-Law of the Human Rights Committee’, 1 Inter-
national Journal on Group Rights (1993) p. 12.
218 See G. Pentassuglia, ‘Minority Protection in International Law: From Standard-Setting
to Implementation’, 68 Nordic Journal of Inter national Law (1999) p. 149.
219 See M. Paz, ‘The Failed Promise of Language Rights: A Critique of the International
Language Rights Regime’, 54 Har vard Interna tional Law Jour nal (2013) pp. 165-166.
220 See R. A. Blanchard, ‘The Right to Culture in Performance-Driven American Public
Schools – Some Implications of United States Ratification of the International Cov-
enant on Civil and Political Rights and the Convention on Elimination of All Forms of
Racia l Discrimination’, 2 Journa l of Tra nsformati ve Leadershi p and Policy Stud ies (201 2)
p. 7.
221 Human Rights Committee, Communication No. 1334/2004, Rakhim Mavlonon and
Shans iy Sa’ di v. Uzbekistan, UN Doc. CCPR / C / 95 / D / 1334 / 2004, 29 Apr il 2009, pa ra.
8.7.
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Next, a stronger emphasis to the collective dimension of Article 27 is neces-
sary for the better protection of the cultural rights both of minorities and in-
digenous peoples. In this direction the recent approach of the CESCR could be
useful. Specifically, as the CESCR has stressed in its General Comment No 21
regarding Article 15(1)(a) of the ICESCR on the right of everyone to take part in
cultural life, “cultural rights maybe exercised by a person a) as an individual,
b) in association with others, or c) within a community or group, as such”.
Thus, the CESCR clearly recognises cultural rights both as individual and
collective in nature. Such an understanding, if also adopted by the HRC,
would definitely enhance the protection provided under Article 27. Entitling
communities/groups as bearers of collective cultural rights would also help
the HRC both to shed more light on the linkage between minority rights and
the right to self-determination and to reconsider its constant jurisdiction re-
garding the rejection on procedural grounds of claims alleging breaches of
Article 1 of the Covenant. All these issues could certainly be clarified in a new
General Comment focusing on the connection between Articles 1 and 27 of
the Covenant and the combination of the correlative individual and collec-
tive rights that emanate by these two provisions.
Finally, in order to enable stronger and more functional implementation of
Article 27 it is imperative to strengthen the HRC’s monitoring. This could be
done, inter alia, by empowering the Committee to conduct country visits, like
the Advisory Committee of the FCNM does. In this way, substantial contacts
with national NGOs working on minority issues and with representatives of
minority parties, associations etc. could be established, and more accurate
and additional information regarding the situation of minorities could be col-
lected. Furthermore, since the minority participation is a conditio sine qua
non of effective implementation of Article 27 the Committee should decisive-
ly urge States members to include inclusive consultative processes involving
minorities during the drafting of state reports. Lastly, it would be certainly
222 UN Doc. E / C.12 / GC / 21, supra note 81, para. 9 (emphasis added); See B. Barreiro Car-
ril, ‘The Right of Access to Culture: An Effective Human Right for the Establishment of
Consistent Cultural Policies in Europe in the Context of the Economic Crisis?, 5 Re-
vista Española de Relaciones Inter nacionales (2013) p. 50.
223 See L. Pineschi, ‘Cultural Diversity as a Human Right? General Comment No.21 of the
Committee on Economic, Social and Cultural Rights’, in S. Borelli and F. Lenzerini
(ed s.) , Cu ltural Herita ge, Cultural R ights, Cultu ral Diversit y - New Develop ments in Inter-
national Law (Martinus Nijhoff Publishers, Leiden / Boston, 2012) pp. 36-39.
224 See the analogous proposals made by a number of NGOs in a Conference on FCNM
under the title “Assessing the Impact 10 Years on: NGO declaration on the Framework
Convention for the Protection of National Minorities On the Occasion of the Confer-
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beneficial to minority protection if the HRC started referring to the FCNM,
like the European Court on Human Rights gradually does.
9 Concluding Observations: In Search of Truly Operational
Participatory Procedures
One of the most significant aspects of the HRC’s reading of Article 27 has been
the recognition to minorities and indigenous peoples of an ‘opportunity’ to
participate in decisions affecting their cultures. In this respect one could note
that considerable progress has been made in less than a decade. When, as the
‘80s gave way to the ‘90s, the Committee ruled that there had been a violation
of Article 27 in the Lubicon Band v. Canada case, the question of whether the
members of the Band had in any way participated in the process by which the
Canadian government gave the provincial government of Alberta the green
light to expropriate lands belonging to the tribe and grant them as conces-
sions to oil and natural gas companies was overlooked, despite the fact that
it was a major point of contention between the members of the tribe and the
federal government. Afterwards, however, the criterion of effective partici-
pation became a reference point to be considered in all cases falling under
Article 27, as a fundamental element that is necessary for fulfilment of that
provision. Despite this advancement, the Committee has yet to solidly elu-
cidate the elements that render a participatory process effective in practice,
and not simply in words. Thus, the lack of clarity leads to an unpleasant situ-
ation resulting in a series of lost cases for indigenous complainants who are
unable to enjoy their culture since they have no effective means to influence
the decisions that negatively impact their way of life. In order then to redress
this situation the HRC might seriously consider using as guidelines the OSCE
‘Geneva Report of the CSCE Meeting of Experts on National Minorities’, the
ence Enhancing the Impact of the Framework Convention: Past Experience, Present
Achievements and Future Challenges”, Strasbourg 9-10 October 2008, <www.coe.int/t/
dghl/monitoring/minorities/6_resources/PDF_IAConf_NGO_Declaration_en.p>, vis-
ited on 4 December 2013.
225 See for example European Court of Human Rights, Muñoz Díaz v. Spain, Application
No. 49151 / 07, Strasbourg, 8 December 2009, paras. 33, 60, 64.
226 See T. Ward, ‘The Right to Free, Prior and Informed Consent: Indigenous Peoples’ Par-
ticipation Rights Within International Law’, 10 Northwestern Journal of International
Human Ri ghts (2011) p. 72.
227 G. Triggs, ‘Australia’s Indigenous Peoples and International Law: Validity of the Native
Title Amendment Act 1998 (CTH)’, 23 Melbourne University Law Review (1999) p. 415.
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‘Lund Recommendations on the Effective Participation of National Minori-
ties in Public Life’, and the ‘Commentary on the Effective Participation of
Persons Belonging to Minorities’ adopted by the Advisory Committee of the
FCNM. These non-legally binding texts provide, as has been noted, for a great
variety of forms of effective participation to minority members.
Also, the HRC might closer examine Scheinin’s individual opinion held in
the Diergaardt et al v. Namibia case that regarding the issue of citizens’ partic-
ipation in public affairs (Article 25 ICCPR) “there are situations where Article
25 calls for special arrangements for rights of participation to be enjoyed by
members of minorities and, in particular, indigenous peoples. When such a
situation arises, it is not sufficient under Article 25 to afford individual mem-
bers of such communities the individual right to vote in general elections.
Some forms of local, regional or cultural autonomy may be called for in order
to comply with the requirement of effective rights of participation.” The
HRC could come to an analogous reading of Article 27 in order to enhance
the provision’s potential for the better protection of minorities’/indigenous
peoples’ cultural identity. Of course, autonomy is not a solution suitable and
applicable to all situations, but in certain cases constitutes a more secure
base for the safeguarding of the effective participation of minority members
to decisions affecting their cultures.
Next, turning to the issue of the FPIC, the HRC has opined that the State
duty of consultation extends even to an obligation to gain indigenous peo-
ples’/minorities’ FPIC when a proposed measure or project could have a pro-
found impact on their cultural integrity. However, in order for FPIC to be-
come truly operational the Committee must shed light on the criteria used
to determine when a measure or a development project constitutes a serious
threat to the survival of minority/indigenous cultures. Especially useful in
this direction could be the general framework set by the ‘UN Expert Mecha-
nism on the Rights of Indigenous Peoples’ stressing that
[i]n assessing whether a matter is of importance to the indigenous peo-
ples concerned, relevant factors include the perspective and priorities of
the indigenous peoples concerned, the nature of the matter or proposed
activity and its potential impact on the indigenous peoples concerned,
228 Diergaard t et al v. Namibia, supra note 118, Individual Opinion by Martin Scheinin (em-
phasis added); See P. Thornber r y, Indigenous Peoples and Human Rights (Manchester
University Press, Manchester, 2002) p. 150.
229 See T. Ta nase scu,Council of Europe and the Protec tion of National Mi norities’, AGORA
- International Jour nal of Juridical Studies No 2 (2013) pp. 201-202.
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taking into account, inter alia, the cumulative effects of previous en-
croachments or activities and historical inequities faced by the indig-
enous peoples concerned.
In this context, Pasqualucci’s observation that even smaller logging and min-
ing concessions could have a negative impact on indigenous communities
might be helpful for a start. In sum, since Article 27 continues to be “the
principal provision of universal significance” for the safeguarding of mi-
nority and indigenous cultural rights, it is of major importance for the HRC
to clarify as soon as possible the still poorly elaborated notions of ‘effective
participation’ and ‘free, prior and informed consent’ in order for the provided
protection to be decisively successful.
230 Report of the Expert Mechanism on the Rights of Indigenous Peoples, Final Study on
Indigenous Peoples and the Right to Participate in Decision Making, UN Doc. A / HRC /
EMRIP / 2011 / 2, 26 May 2011, para. 23.
231 J. M. Pasqualucci, ‘International Indigenous Land Rights: A Critique of the Jurispru-
dence of the Inter-American Court of Human Rights in Light of the United Nations
Declaration on the Rights of Indigenous Peoples’, 27 Wisconsin International Law Jour-
nal (2009-2010) p. 98.
232 S. Spiliopoulou, ‘Protection of Minorities under Article 27 of the International Cove-
nant on Civ il and Politica l Rights and t he Reporting Sys tem of the Human Rights Com-
mittee’, in F. Horn and T. Tervashonka (eds.), Writings in Human and Minority Rights
(Juridica Lapponica No 8, University of Lapland, Rovaniemi, 1994) p. 59.
... 38 This is due to the assertion that indigenous peoples have rights over and above those of minorities which includes the right to self-determination. 39 However, the important Working Paper on the Relationship and Distinction Between the Rights of Persons Belonging to Minorities and Those of Indigenous Peoples by Erica-Irene Daes highlighted that, "no definition or list of characteristics can eliminate overlaps between the concept of minority and indigenous peoples. Cases will continue to arise that defy any simple, clear-cut attempt at classification". ...