The UN Declaration on Minorities and its Guidance: A View from South Asia (with Joshua Castellino)

The United Nations Declaration on Minorities. An Academic Account on the Occasion of its 20th Anniversary (Martinus Nijhoff Publishers, forthcoming)

Chapter 13 – The Declaration and its Guidance: A View from South Asia

Joshua Castellino and Elvira Domínguez-Redondo

1. Introduction

The tendency of grouping all of ‘Asia’ and ‘Oceania’ together often imbalances

perspectives on global themes.1 This is the case with minority rights in a more

pronounced manner than many others, where there is often concerted focus on sub-

regions in Europe, while Asian issues remain superficially touched upon.2 Asia,

containing 60 per cent of the world’s population,3 may be understood as comprising

at least five distinct sub-regions.4 This chapter is focused on South Asia, which, for

the purposes of this review, includes the States of Afghanistan, Bangladesh, Bhutan,

India, Maldives, Nepal, Pakistan and Sri Lanka. Legitimate questions could be asked

as to whether Afghanistan is more logically grouped with other Central Asian States,

with which it shares significant minority populations. We have resolved this dilemma

for the purposes of this commentary by relying on how the States self-identify, and

thus considerable emphasis has been placed on membership in the South Asian

Association for Regional Co-operation (SAARC).5 It needs to be highlighted that

relying on this organization’s view of the States to be included will not entail any

1 An attempt to mitigate this was the introduction, in September 2011, of a change of denomination of the United Nations Asian Group by its current name ‘Asia and the Pacific Small Island Development States Group’ or ‘Asia-Pacific Group’, see press release from the Secretariat of the Pacific Regional Environment Programme (SPREP) ‘UN recognises the Pacific with name change’, 2 September 2011, <www.sprep.org/General-News/un-recognises-the-pacific-with-name-change>, visited on 1 March 2014. On regional groups in the United Nations, see United Nations Handbook 2013-14 (Ministry of Foreign Affairs and Trade, New Zealand, (2013) pp. 15-17. 2 See for instance State of the World’s Minorities 2007 (Minority Rights Group, London, 2007), which dwelt as long on ‘Asia and Pacific’ as Europe. This has since been rectified in subsequent yearbooks. 3 See UN Department of Economic and Social Affairs doc ST/ESA/STAT/SER.A/260, Population and Vital Statistics Report, Statistical Papers, Series A Vol. LXVI. Data available as of 1 January 2014, especially information by continent in page 4. For a country by country break down see pp. 5-9. 4 Joshua Castellino and Elvira Dominguez Redondo, Minority Rights in Asia: A Comparative Legal Analysis (Oxford University Press, Oxford, 2006) p. 28. 5 See E Sudhakar, SAARC: Origins, Growth and Future (Gyan Publishers, New Delhi, 1994).


detailed description of the work towards what remains a fledgling (and some would

argue, an unsuccessful)6 attempt at gaining regional co-operation.

Three contextual elements need to be outlined in order to engage with any

emerging view concerning minority issues in the region. First, the States themselves

are young actors, having emerged in the middle of the last century, and having been

defined largely in the process of rejecting British colonization.7 This necessarily

means that the boundaries that delineate one State from its neighbour are contested,8

and that the ‘national identities’ that are traded are necessarily artificial and

configured along the lines of a dominant majority.9 Second, as a consequence of the

first point, inter-State rivalries remain at the forefront of regional politics and act as a

serious bulwark against meaningful regional co-operation.10 Ventures such as

SAARC are, at best, talk shops for soft diplomacy, or instruments through which

regional trade agreements can be forged in line11 with those required from emerging

global administrative law.12 The rivalries themselves are nourished by a shared and

contested history between the States, and contemporary practice that has involved

considerable cross-border interference.13 While this may conjure up the well-

rehearsed frenzied ‘nuclear rivalry’ between India and Pakistan, regional contentions

exist in the relationships between Bangladesh and India,14 Bangladesh and Pakistan,15

6 Muchkund Dubey, ‘SAARC and South Asian Economic Integration’, 42:4 Economic and Political Weekly (7 April 2007). 7 For an interesting analysis of this see Ashwini Tambe and Harald Fischer Tiné (eds.), The Limits of British Colonial Control in South Asia: Spaces of Disorder in the Indian Ocean Region (Routledge, Oxon, 2009). 8 Mathew N. Schmalz and Peter Gottschalk (eds.), Engaging South Asian Religions: Boundaries, Appropriations, Resistances (SUNY, Albany, 2011). 9 See S.L. Sharma and T.K. Oommen (eds.), Nation and National Identity in South Asia (Orient Longman, Hyderabad, 2000). 10 Sumit Ganguly and William R. Thompson, Asian Rivalries: Conflict, Escalation and Limitations on Two Level Games (Stanford University Press, California, 2011). 11 Rahul Tripathi, ‘People-Centric Partnerships: The Way Forward for SAARC?’, 43:41 Economic and Political Weekly (11 October 2008). 12 Benedict Kingsbury, ‘The Concept of “Law” in Global Administrative Law’, 20:1 European Journal of International Law (2009) pp. 23-57. 13 For an unashamedly American perspective which does nonetheless reflect this see John E. Peters, et al., War and Escalation in South Asia (Project Airforce, Rand, 2006). 14 Delwar Hussain, Boundaries Undermined: The Ruins of Progress on the India-Bangladesh Border (Hurst, London, 2013). Over more practical issues including the impact of a Supreme Court case on cross border relations see Imtiaz Ahmed, ‘Teesta, Tipaimukh and River Linking: Danger to Bangladesh India Relations’, 47:16 Economic and Political Weekly (21 April 2012). 15 Richard Sisson and Leo E. Rose, War and Secession: Pakistan, India and the Creation of Bangladesh (University of California Press, Berkeley/Los Angeles, 1990).


India and Sri Lanka,16 India and Nepal,17 India and Bhutan18 and Nepal and Bhutan.19

Maldives, being a smaller player within the region, is perhaps relatively unaffected by

the regional conflicts, but nonetheless would suffer from the collective failure to build

meaningful co-operation between the States. Third, an aspect that also flows from the

first two points is that the region is dominated by the presence of kin populations who

live on different sides of the national boundaries.20 These communities often have

more in common with their kin on the opposite side of the boundary than with the

‘nation’ they find themselves within, creating significant tensions that have, in the last

decade alone, made the region one of the deadliest in terms of ethnic violence and

gross human rights violations.21

Another caveat that needs to be identified at the outset is that establishing a

‘South Asian’ view is particularly difficult due to the sheer diversity of the region, the

lack of clear State practice that could be seen as ‘uniting’ the region, and the lack of

collective instruments or documents that can be called upon. As a result, this

commentary will be restricted to our view of the text, the commentary and the events

and issues that arise in the various countries that notionally form this ‘region’.

With this in mind the chapter is divided into two parts, the first providing a

background on the States in the region, the contestations attendant to understanding

conceptions of ‘minorities’ and explanations of the kinds of issues that reveal

peculiarities that characterize the region. The second part will seek to understand the

extent to which the text and commentary of the Declaration tackle the issues from the

16 Douglas Allen (ed.), Religion and Political Conflict in South Asia: India, Pakistan and Sri Lanka (Greenwood, Westport, CT, 1992). 17 Dwarika N. Dhungel and Santa B. Pun (eds.), Nepal-India Water Resources Relationship: Challenges (Springer, New Delhi, 2009). 18 Rajesh Kharat, ‘Indo-Bhutan Relationship’, in K Warikoo (ed.), Himalyan Frontiers of India: History, Geo-political and Strategic Perspectives (Routledge, Oxford, 2009) pp. 138-152. 19 Human Rights Watch, ‘Last Hope: The Need for Durable Solutions for Bhutanese Refugees in Nepal and India’, 19:7(C) Human Rights Watch (May 2007). 20 This includes Tamils, Sindhis, Punjabis, Bengalis, Biharis, Nepalese, Bhutanese, and Rohingyas. 21 For a theoretical assessment of this phenomena see Andreas Wimmer, Lars-Erik Cederman and Brian Min, ‘Ethnic Diversity, Political Exclusion and Armed Conflict: a Quantitative Analysis of a Global Dataset’, in Marc Weller (ed.), Political Participation of Minorities: A Commentary on International Standards and Practices (Oxford University Press, Oxford, 2010) pp. 3-34. For a lesser known practical example see Vani Kant Borooah, ‘The Killing Fields of Assam: Myth and Reality of its Muslim Immigration’, 47:4 Economic and Political Weekly (26 January,2013).


first section. This will be followed by a brief conclusion on the utility of the

Declaration in South Asia and the areas of challenge that remain to be overcome.

2. South Asia and Minorities: Some Definitional Parameters

One way of understanding a State’s perspective on who it considers its minorities is to

study its response under Article 27 of the International Covenant on Civil and

Political Rights.22 However, States in the region, with the exception of Sri Lanka and

Nepal, do not have a good track record on submitting their reports under this

procedure, and as a result the information here is dated. Information from within the

legislative, judicial and administrative mechanisms as well as that compiled by civil

society shows that South Asia has significant diversity in types of minorities, and that

these include religious, linguistic and ethnic groups, but also include groups

delineated from the majority on grounds of caste, descent, and traditional

occupation.23 The region has significant indigenous and tribal peoples whose

circumstances are often under-reported24 or reported on grounds that make it difficult

to get an overview of the communities that are excluded or prevented from accessing

sites of power.

The issue of minorities has played a significant role in many of the State’s

histories. Afghanistan reflects a minority rights situation that is probably closest to the

‘national minority’ paradigm that developed in central and eastern Europe. Thus

Afghanistan is home to significant minorities who fit within surrounding ‘nations’,

such as Tajikistan and Uzbekistan, but who also bear close kin affiliations with

surrounding ethno-linguistic communities such as the Pathans and Hazaras. In

Afghanistan’s shifting power kaleidoscopes over the last half a dozen decades these

groups have come under pressure depending on who controls the government in

Kabul and what effective control they have managed to exert over the rest of the

country.25 As can be imaginable in a context dominated by war, there have been

22 Since Article 27 is framed as ‘[i]n those states in which minorities exist…’ States usually identify and report on their minorities at this point of their reports. The State reports to the Committee for the Elimination of Racial Discrimination can also be equally useful. 23 Castellino and Dominguez, supra note 5, pp. 42-55. 24 Benedict Kingsbury ‘“Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy’, 92:2 American Journal of International Law (1998) pp. 414-457. 25 Minority Rights Group International, Afghanistan: A Nation of Minorities (MRG, London, 1991).


significant atrocities committed against minorities26 and such communities continue

to face existential threats.27 The strong bond between the Taliban and the Pathan

community and the link to refugee communities across the border in Pakistan has also

served as a destabilizing influence on that country.28

Pakistan itself, while overwhelmingly a Muslim country, has a significant

Hindu presence, a smaller Christian community and an antagonistic relationship

towards the Ahmadis who it refuses to accept as Muslim.29 Even the dominant

Muslim community of over 90 per cent is divided between ethno-linguistic groupings,

many of which are not recognized by the State,30 with Sindhis, Punjabis, Baluchis,

Pathans and Kashmiris being culturally distinct and sometimes locked in antagonistic

relationships.31 During the United Nations Universal Periodic Review (UPR) of

Pakistan, other States have requested measures to improve the enjoyment of human

rights by minorities, mainly recommending Pakistan to repeal or amend blasphemy

laws and forced conversion.32

India is notionally organized in its federal system on the grounds of language,33

ostensibly demonstrating a clear policy whereby linguistic groups who are culturally

distinct have access to self-governance in the State system. This neat division in a

society that is becoming increasingly mobile is coming into question, and newer 26 Grant Farr, ‘The Hazara of Central Afghanistan’, in Barbara Brower and Barbara Rose Johnston, Disappearing Peoples? Indigenous Groups and Ethnic Minorities in South and Central Asia (Left Coast Press, California, 2007); Phil Zabriskie, ‘Hazaras: Afghanistan’s Outsiders’, National Geographic (February 2008). 27 For the latest threats to minorities in South Asia see State of the World’s Minorities 2014: Events of 2013 (MRG, London, 2014). 28 Jan Breman, ‘The Talibisation of Society in Pakistan’, 47:34 Economic and Political Weekly (25 August 2012). 29 A.M. Khan, ‘Persecution of the Ahmadiyya Community in Pakistan: An Analysis under International Law and International Relations’, 16 Harvard Human Rights Journal (2003) pp. 217-244. 30 See Rita Manchanda, ‘Majority-Minority Discourses in South Asia’, in Rita Manchanda (ed.), Living on the Margins. Minorities in South Asia (EURASIA-Net, Kathmandu, 2009) pp. 3-17, at p. 6. 31 Farhan Hanif Siddiqi, The Politics of Ethnicity in Pakistan: The Baloch, Sindhi and Mohajir Ethnic Movements (Routledge, London, 2012); Sadia Saeed, ‘National Identity and Religious Difference in Pakistan’, 48:50 Economic and Political Weekly (13 December 2013). 32 The latest recommendations are included in the Report of the Working Group on the Universal Periodic Review regarding the 2012 review of Pakistan (the first one took place in 2008) when recommendations regarding elimination of discrimination against minorities were issued by the UK, Austria, Canada, Denmark, Norway, Germany, Namibia, Iraq, Thailand, Argentina, Italy, Slovakia and Libya). See UN doc. A/HRC/22/12 (2012). 33 Thomas Benedikter, Language Policy and Linguistic Minorities (Transnational Publishers, London/New Brunswick, 2009).


claims to linguistic distinctness are coming to the fore resulting in the creation of

newer States in the federal system.34 India’s religious diversity, well recognized in its

constitution,35 is enabled through personal laws for particular communities,36 but this

has raised significant questions as to how personal autonomy can co-exist alongside

uniform citizens’ rights.37 In addition to Muslims, as kin to the communities in

Pakistan, Sikhs and Christians have continued to face violence that sometimes

appears organized and orchestrated.38 Looming alongside these questions are serious

age-old exclusionary practices towards Dalits39 and Adivasis,40 issues that the legal

mechanism and State are conscious about needing to solve, but on which the headway

made has been unsatisfactory, especially in challenging societal attitudes.41

As a diverse community of many indigenous peoples, Nepal has been struggling

to create a stable unified State to replace the monarchic structure that was dismantled

by the Maoist uprising.42 Nepalese indigenous communities are isolated and often

beyond the realm of many of the most basic social services. In addition, the

prevalence of caste-based discrimination is a real issue that cuts across other

affiliations and creates a culture of exclusion and discrimination.43 The constitution

clearly aspires to a ‘multiethnic, multilingual, multi-religious and multicultural’

character,44 which would treat every ‘ethnic group, culture, language and territorial or

34 C.H. Hanumantha Rao, ‘The New Telengana State: A Perspective for Inclusive and Sustainable Development’, 49:9 Economic and Political Weekly (March 2014); Somen Chakroborty, ‘Gujarat: Attack on Christians’, 36:16-17 Economic and Political Weekly (17 April 1999). 35 Castellino and Dominguez, supra note 5, pp. 58-76. 36 Farrah Ahmed, ‘Personal Autonomy and the Option of Religious Law’, 24:2 International Journal of Law Policy and the Family (2010) pp. 222-244. 37 Danial Latafi v. Union of India, 53 ICHRL (2001). 38 Rafique Zakaria, Communal Rage in Secular India (Popular Prakashan, Mumbai, 2002); Pralay Kanungo, ‘Hindutva’s Fury against Christians in Orissa’, 43:37 Economic and Political Weekly (13 September 2008). 39 Himanshu Charan Sadangi, Dalits: The Downtrodden of India (Isha Books, New Delhi, 2008). On their domestic status as minorities see Borhan Uddin Khan and Muhammad Mahbubur Rahman, Protection of Minorities: A South Asian Perspective (EURASIA NET, Dhaka, 2009) pp. 61-63. 40 Sanjukta Das Gupta and Raj Sekhar Basu (eds.), Narratives from the Margins: Aspects of Adivasi History in India (Primus Books, Delhi, 2012). 41 Regarding other States’ views on minority issues in India (Norway, USA, Ghana, Iran, Holy See, Austria, Viet Nam and Mexico) see Report of the Working Group on the Universal Periodic Review – India, UN doc. A/HRC/21/10 (2012). 42 Bhuwan Chandra Upreti, Maoists in Nepal: From Insurgency to Political Mainstream (Kalpaz Press, Delhi, 2008). 43 Krishna Bahadur Bhattachan, Tej B. Sunar, and Yasso Kanti Bhattachan, Caste Based Discrimination in Nepal (Indian Institute of Dalit Studies, New Delhi, 2009). 44 Article 3, Constitution of Nepal.


regional identity’ equally.45 However, achieving such parity would need concerted

policies over time to overcome societal and structural antagonisms with the creation

of appropriate institutions only a starting point.46 Nepal showed a positive political

attitude towards improving the enjoyment of rights by its minorities by accepting all

the recommendations made by Norway, Finland, and Malaysia during its first UPR

examination.47 An assessment of the implementation of such recommendations in

2013 however reveals that most of these measures were yet to be implemented by the

State.48

The government of Bhutan has been remiss in understanding minority issues

and has refused to publish disaggregated data of its population based on ethnicity,

religion, language or any other of the identifiers pertinent to minorities.49 The ‘One

Nation, One People’ homogenization policy adopted by the government in the 1980s,

and in particular the 1985 citizenship law mainly impacting the Hindu Lhotshampa

minority forcing their displacement as refugees towards Nepal, remain the main on-

going minority rights’ violations denounced in the country.50 In 2005, it was

estimated that assimilation policies had resulted in the expulsion of one-sixth of

Bhutan’s population.51 The situation of ethnic minorities, and the request for

measures to guarantee they are not discriminated against was part of the questions and

recommendations issued to Bhutan by Slovakia, Canada, Nepal, United Kingdom,

45 State Report of Nepal to the UN Human Rights Committee, Second Periodic Report, submitted 21 February 2012, UN Doc. CCPR/C/NPL/2, 8 June 2012, para. 198. 46 State Report of Nepal to the UN Human Rights Committee, Second Periodic Report, submitted 21 February 2012, UN Doc. CCPR/C/NPL/2, 8 June 2012, para.201. 47 See UN doc. A/HRC/17/5 (2011). 48 See UPR-info.org, Nepal. Mid-Term implementation Assessment (Geneva, November 2013) <www.upr-info.org/followup/session23/nepal/MIA-Nepal.pdf>, visited on 10 March 2014. 49 Borhan Uddin Khan and Muhammad Mahbubur Rahman, Protection of Minorities: A South Asian Perspective (EURASIA NET, Dhaka, 2009), <www.eurac.edu/en/research/institutes/imr/Documents/EURASIA-Net_Del_17_South_Asian_Discourse.pdf>, visited on 10 March 2014) pp. 85-87. 50 See Rosalind Evans, ‘The perils of being a borderland people: on the Lhotshampas of Bhutan’, 18:1 Contemporary South Asia (2010) pp. 25-42. 51 See UPR_Info.org, Bhutan’s responses to recommendations (18 June 2012) available at the website of the NGO UPR_Info.org, <www.upr-info.org/IMG/pdf/recommendations_to_bhutan_2009.pdf>.


Switzerland and Italy during its assessment under the UPR mechanism in 2009.52

Bhutan did not respond clearly to these recommendations.53

Tensions more recently in Maldives have brought the small island nation to the

world’s attention. While largely homogenous in the sense that its citizens are mainly

people of Indian origin, it reflects much of the religious, linguistic and caste/descent

diversity of India. As a result the communities living in Maldives, similar to Indian

communities all around the world, appear to reproduce social structures and traditions

of exclusion.54 Yet despite the high volume of visits and attention received by UN

human rights bodies in the past 5 years,55 virtually none of them have raised issues

regarding the situation of minorities in the country.56

Issues concerning minority rights and more general questions concerning

human rights and even the rule of law have come to the fore in both Sri Lanka and

Bangladesh. While in the case of Sri Lanka this has followed gross human rights

violations perpetrated against the Tamil community that have shocked the world and

created a culture of impunity,57 in Bangladesh the break down in the rule of law is

more connected to political processes attendant to ascertaining accountability for

human rights violation in the war of independence of 1971.58 The scale of the

violations in Sri Lanka and the country’s gradual slide away from democratic

principles has merited relatively little attention. While there has been some progress

in the implementation of some recommendations issued by the Lessons Learnt

52 See UN doc. A/HRC/13/11 (2010), paras. 33, 62, 70 and 81. 53 See UPR_Info.org, Bhutan’s responses to recommendations (18 June 2012) available at the website of the NGO UPR_Info.org, <www.upr-info.org/IMG/pdf/recommendations_to_bhutan_2009.pdf>. 54 Only Slovakia raised the issue of minorities during the UPR session, see UN doc. A/HRC/16/76 (2011) para. 100.96. 55 From 2007 onwards the Maldives have been visited by the Special Rapporteurs on religion; on independence of judges and lawyers; on adequate housing; on the right to freedom of opinion and expression; and internally displaced people. The 2012 Concluding Observations of the Human Rights Committee (UN doc. CCPR/C/DV/CO/1) do not address minority issues either. 56 Only Slovakia recommended the Maldives to introduce appropriate measures to eliminate discrimination against religious minorities, a recommendation rejected by the Maldives. See UN doc. A/HRC/16/7 (2011) para. 100.96. 57 UN doc. A/HRC/22/38, Report of the Office of the UN High Commissioner for Human Rights on advice and technical assistance for the Government of Sri Lanka on promoting reconciliation and accountability in Sri Lanka (2013). 58 Subir Bhaumik, ‘The Unfinished Revolution in Bangladesh’, 48(8) Economic and Political Weekly (23 February 2013) and Bina D’Costa, ‘War Crimes, Justice and the Politics of Memory’, 48:12 Economic and Political Weekly (23 March 2013).


Reconciliation Commission59, the lack of sincerity behind these efforts and the

general clamping down on dissent60 do not augur well for any rebuilding of a bi-

cultural state (or even tri-cultural, when the Muslim community is factored in).61

Bangladesh does not recognize the existence of minorities within its territory in

its constitutional system. The largely homogenous factors on language (Bangla) and

religion (Islam) are relatively less important than other ethnic fissures in identity. The

issue concerning the Chittagong Tribes continues to be a problem,62 as is the

protection of the rights of Bangladesh’s smaller religious minorities (Hindu,

Christian).63 The significant presence of the stateless Rohingya64 adds to the culture

of exclusion and lack of access to rights.65 During the second cycle of the UPR, the

situation of minorities was brought to the fore by Austria, Canada, Japan, Viet Nam,

Djibouti and Switzerland.66

It is against these complexities that the Declaration on the Rights of Ethnic,

Religious and Linguistic Minorities needs to be viewed. Before commencing such a

review it needs to be highlighted that the government’s in question have, in general,

been relatively sceptical of international human rights law. Thus India and Pakistan

have, with China, largely led the human rights proposals put forward by the so-called

59 The Commission was appointed in May 2010 by the President of Sri Lanka to investigate the circumstances surrounding the failure of the 2012 ceasefire agreement and to recommend measures to prevent the recurrence of such a situation. The report of the Commission is available at <www.llraction.gov.lk/reports/en/Final_LLRC_Report_en.pdf>. 60 Report of the Office of the United Nations High Commissioner on Human Rights on promoting reconciliation and accountability in Sri Lanka, A/HRC/25/23 (2014) underlying the lack of response to UPR recommendations and updates on the ongoing attacks on religious minorities. 61 For a literary take see Maryse Jayasurya, Terror and Reconciliation: Sri Lankan Anglophone Literature 1983-2009 (Lexington, Maryland, 2012). 62 Amena Mohsin, The Chittagong Hill Tracts, Bangladesh: On the Difficult Road to Peace (Lynn Rienner, Colorado, 2003). See also Report of the Special Rapporteur of the Commission on Human Rights on the elimination of all forms of intolerance and of discrimination based on religion or belief. Situation in Bangladesh, UN doc. A/55/280/Add. 2 (2000) paras. 62-74. 63 Samia Huq, ‘Defining Self and Other: Bangladesh’s Secular Aspirations and its Writing of Islam’, 48:50 Economic and Political Weekly (14 December 2013). 64 David Mathieson, Perilous Plight: Burma’s Rohingyas Taking to the Sea (Human Rights Watch, New York, 2009). 65 On the particularly somber conditions suffered by minority groups see Joint report of the independent expert on the question of human rights and extreme poverty, Magdalena Sepúlveda Carmona, and the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Alburquerque- Mission to Bangladesh (3-10 December 2009), UN doc. A/HRC/15/55 (2010), esp. paras. 24-30. 66 UN doc. A/HRC/24/12 (2013) para. 129.


Like-Minded Group, in which other South Asian States also belong. The main aim of

this coalition has been to push for reforms of UN human rights mechanisms that

would be more respectful of State sovereignty.67 Thus it would seem that the States

would perhaps be better disposed towards a document (i.e. this Declaration rather

than a Treaty of Convention) that did not come with specific implementation and

monitoring burdens. In order to present a perspective on the Declaration, the

following section consists of two parts. The first part will look briefly at the process

of codification of the instrument itself seeking to form a view of its utility in general,

the second will focus on the text and how it assists or leaves unaffected the issues

concerning minorities raised in this section.

3. The Declaration from a South Asian Perspective

The international standard setting agenda may be viewed as a series of endless

debates the international level with few concrete achievements, or as a process that

has sought to ensure that intrinsically contentious issues, which States in general view

with a degree of antagonism, have continued to stay on the international agenda.68

From Hilpold’s perspective:

“Many of the fears surrounding the concept of minority protection at the beginning of this process have disappeared along this road. In this sense, the long standard-setting process within the UN was not only about finding technical solutions but also about rendering them politically palatable to the primary subjects of international law, the states.”69

We disagree with this view and find little to suggest that international pressure has

formed any significant barrier to events concerning minorities in South Asia, or that

they have made minority issues more palatable to States in the region. This can be

narrated not only through violations of minority rights that merited little attention in

the international sphere, but more importantly in the relative lack of censure of the

States. Thus, in the lifespan of the Declaration there have been mass atrocities

committed against minorities in several South Asian States, with no reference ever

made to the Declaration during or in the aftermath of these. In Afghanistan, the

67 Infra note 88. 68 Peter Hilpold, ‘UN Standard Setting in the Field of Minority Rights’, 14 International Journal of Minority & Group Rights (2007) pp. 181-205, at p. 182. 69 Ibid.


Hazara massacre under the Taliban,70 the sectarianism of the conflict, and the failure

to urge effective minority regimes in the new state made no reference to the

Declaration. In India the massacre of Muslims in Gujarat in 2002 merited only

passing international concern.71 The Declaration has not even featured as a focal point

in recent years in Pakistan where minorities have come under serious siege within the

State.72 Even in Sri Lanka, where gross human rights violations have been perpetrated

in the lead up to and during the 2009 war, these norms have remained largely ignored

until recently.73 Thus from a South Asian perspective, despite the volume of minority

violations, there is no evidence that the Declaration has been called upon as a standard

to measure behaviour against.

In general, South Asian participation in framing normative standards attendant

to minority rights at the international level has been negligible,74 as the history of the

drafting of both the 1992 Declaration and Article 27 of the International Covenant on

Civil and Political Rights–the only binding universal provision in a human rights

treaty–makes visible.75 This partly reflects the scarce influence of the States in the

region on norm creation at the international level on issues other than those that

dominate the agenda of newly independent post-colonial States. New to the

international arena and focused on the ‘right’ to self-determination, development, and

the creation of a New Economic Order, South Asian States were completely ignored

by the dynamics of a topic that has been traditionally addressed by scholars and

diplomats of the western world.76 This is particularly true with regard to the adoption

of normative standards on minority rights in the early nineties, which responded to the

70 Larry P. Goodson, Afghanistan’s Endless War: State Failure, Regional Politics and the Rise of the Taliban (University of Washington Press, Seattle, 2001) pp. 77-90. 71 Dionne Bunsha, Scarred: Experiments with Violence in Gujarat (Penguin, New Delhi, 2006). 72 Hassan Abbas, Pakistan’s Drift into Extremism: Allah, The Army and America’s War on Terror (M.E. Sharpe, New York, 2005), and Khaled Ahme, ‘Sectarian Violence in Pakistan’, 48:13 Economic and Political Weekly (30 March 2013). 73 Muttukrishna Sarvananthan, ‘Myth of “No More Minorities”: Results of Elections in North and East Sri Lanka’, 48:48 Economic & Political Weekly (30 November 2013). 74 For commentary see Alan Philips, ‘Minorities in the UN’, 18:1 Cultural Survival Quarterly (Spring 1994). 75 For a summary see Manfred Nowak, UN Covenant on Civil and Political Rights. CCPR Commentary (2005, 2nd ed.) pp. 635-642. See also docs on Declaration E/CN.4/2003/82 and E/CN.4/SUB.2/2003/19. 76 See Eicheleberger, ‘The Draft Declaration of the United Nations on the Rights Belonging to National Ethnic, Religious and Linguistic Minorities’, 46 ICJ-Review (1991).


need felt by Europeans to establish clear standards and export these to Eastern

European countries in the immediate aftermath of the transition from socialism.77

The domination of European views and standards on the Declaration78 is clearly

present in the 2001 commentary to the Declaration written by Asbjorn Eide, then

Chairperson-Rapporteur on the UN Working Group on Minorities (a post he held

between 1994 and 2005).79 Not a single reference is made to ‘Asia’, with one

incidental reference to ‘America’ and ‘Africa’, while the European regional

perspective is explained in five different paragraphs.80 The western view on

conceptual and normative contours of minority rights has also impacted those

affecting indigenous peoples.81

The constitutional debates post-colonization in South Asia demonstrate a clear

awareness of the issues relating to minorities and groups in vulnerable positions.

However, pragmatism, or what Rita Manchanda calls ‘the paranoia of the Great

Partition’, resulted in the design of ‘state ideology and architecture’, which

‘increasingly veered towards constituting a majoritarianism’ to consolidate State

power.82 As the Indian example demonstrates, there was no special drive among

South Asian States to participate in the negotiations and drafting process of the

Declaration.83 As an original member of the United Nations, India often represented

the interests of the G77,84 though this commitment to providing a voice for

developing States has waned in recent years through its new membership of the

77 See Kymlicka, ‘Multiculturalism and Minority Rights: West and East’, 4 Journal of Ethnopolitics and Minority Issues in Europe (2002) p. 1. 78 A summary of the drafting process based on a text proposed by Yugoslavia can be found in Hurst Hannum, ‘Contemporary Developments in the International Protection of the Rights of Minorities’, 66 Notre Dame Law Review (1990-1991) pp. 1431-1448. 79 UN doc. E/CN.4/Sub.2/AC.5/2001/2 (2001). 80 David Keane, ‘Draft South Asia Regional Charter on Minority and Group Rights: A Comparative Regional Analysis’, 8 European Yearbook of Minority Issues (2009) pp. 269-295, at 285-289. 81 Will Kymlicka, ‘The internationalization of minority rights’, 6:1 International Journal of Constitutional Law (2008) pp. 1-32. 82 Manchanda, supra note 31, at 6. 83 Although India made some minor comment during the drafting process. See E/CN.4/1983/66 para 30. 84 A.W. Sinhgham, The Non-Aligned Movement in World Politics (L. Hill, Westport, CT, 1978).


emerging club of wealthy states (G20).85 In the context of the discussion on

minorities India’s behaviour illustrates its defensive stance towards the international

human rights agenda: relatively strong on provisions concerning minorities within its

constitution and institutions86–mainly when compared with neighbours such as

Pakistan and Bangladesh87–relatively guarded or pointedly hostile in discussing these

issues in an international context.88

The dramatic growth in the number of comments, questions and

recommendations addressing minority rights issues raised during the periodic review

of human rights records of South Asian States in the context of the UPR reflect not

only increased international scrutiny of minority issues world wide, but also the

consolidation of an interest in addressing minority rights within the region.89 As

outlined below, while the States raising such issues are still predominantly western

States, others from inside and outside Asia are also increasingly concerned. The

adoption of a Draft South Asian Regional Charter on Minority and Group Rights by

the International Centre for Ethnic Studies, a Sri Lanka-based non-governmental

organization, is the first attempt to codify a normative framework channelling this

increased awareness into a regional perspective.90

With these caveats regarding South Asian input and incorporation, it could be

argued that if a Declaration set out clear normative provisions this could serve to rally

civil society to hold government and public institutions to account. With this in mind

we will now turn to some of the provisions in the Declaration.

85 Colin I. Bradford and Wohnyuk Lim (eds.), Global Leadership in Transition: Making the G20 more Effective and Responsive (Korea Development Institute and The Brookings Institution, Washington DC, 2011). 86 Castellino and Dominguez, supra note 5, pp. 76-94. 87 Manchanda, supra note 31, at p. 7. 88 India, as well as Bhutan, Bangladesh, Nepal, Pakistan and Sri Lanka, were part of the coalition of ‘Like Minded Group’ trying to undermine the human rights agenda through a concerted plan to protect their sovereignty. See Elvira Domínguez-Redondo, ‘Rethinking the Legal Foundations of Control in International Human Rights Law-The Case of Special Procedures’, 29:3 Netherlands Quarterly of Human Rights (2011) pp. 261-288, at 269. 89 For a country by country analysis see also Rainer Hoffmann and Ugo Carusso, Minority Rights in South Asia (Peter Lang, Frankfurt, et al., 2010). 90 For a comment on the content and relevance of this Charter see David Keane, ‘Draft South Asia Regional Charter on Minority and Group Rights: A Comparative Regional Analysis’, 8 European Yearbook of Minority Issues (2009) pp. 269-295.


3.1. Text and Commentary

The titling of the 1992 Declaration as applying to ‘national or ethnic, religious or

linguistic minorities’ in theory covers most of the minorities in the region. While

there have been debates as to how and and on what grounds ‘caste’ is covered, the

general framing and substantive provisions would appear to avoid this particular

pitfall. The commentary to the Declaration highlights that it does not make

distinctions, nor does it define each of these categories. Judging by the complexities

around such issues this is only to be expected.91 This does not in any case exclude the

possibility that the needs of the different categories of minorities could be taken into

account in the interpretation and application of the various provisions.92 The

discussion on ‘old’ v ‘new’ minorities93 reveals a Eurocentric view, with such

terminology only likely to enter the region as greater cross-migration occurs.

The commentary obliquely takes on the issue of self-determination, making

clear points on its ambit. However, while the statement that minorities do not have the

right to self-determination is accurate, it is not particularly useful in the South Asian

context, where submerged ‘nations’ live as minorities within States (e.g. the Tamils or

the Pashtuns), where the boundaries and governance issues are confused (e.g.

Kashmir), or where indigenous peoples, notionally included, have strong claims to

land rights as minorities (e.g. Nagas,94 Chittagong Hill Tribes). While the latter are

perhaps more usefully treated as a sui generis category or as ‘indigenous peoples’,95 it

needs to be acknowledged that communities such as these in post-colonial settings are

often significantly disadvantaged by the States’ reluctance to accept terminologies

and rights packages concerning indigenous peoples.

91 Joshua Castellino and Cathal Doyle, ‘Who are ‘Indigenous Peoples’? An Examination of Concepts Concerning Group Membership in the United Nations Declaration on the Rights of Indigenous Peoples’, in Marc Weller (ed.), The United Nations Declaration on the Rights of Indigenous Peoples: A Commentary (OUP, Oxford, 2014 forthcoming). 92 Commentary Of The Working Group On Minorities To The United Nations Declaration On The Rights Of Persons Belonging To National Or Ethnic, Religious And Linguistic Minorities, Note by the UN Secretary General, UN Doc. E/CN.4/Sub.2/AC.5/2005/2 (4 April 2005) p. 3, para. 7. 93 Ibid., p. 4, para. 11. 94 S.H. Tohring, Violence and Identity in North-East India: Naga-Kuki Conflict (Mittal Publications, New Delhi, 2010). 95 Benedict Kingsbury, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International & Comparative Law’, 34 New York University Journal of International Law & Politics (2001) p. 189.


The commentary also highlights the differences between individual and

collective rights, which is not always useful in seeking to advocate for minority rights.

While it is true that the rights of persons belonging to minorities are generally

conceived of as individual rights, their experience of shared discrimination often

means that the best way of tackling these is through collective rights with due

emphasis on the protection of the individual. Delineating the rights of ‘minorities’

from the ‘rights of peoples’ along the lines of such an axis is also unfair when the

externally-imposed boundaries and the State creation processes are taken into

account. The position in the commentary which highlights the possibility that persons

belonging to an ethnic or national group may in some contexts legitimately make

claims based on minority rights and, in another context, when acting as a group, can

make claims based on the right of a people to self-determination, is much more

helpful in this regard.96

The general point on autonomy in the Declaration is well made, though it would

have benefitted from greater emphasis on personal autonomy, which remains one,

albeit contested, route in the region towards minority empowerment. As the

commentary stresses:

“While the Declaration does not provide group rights to self-determination, the duties of the State to protect the identity of minorities and to ensure their effective participation might in some cases be best implemented by arrangements for autonomy in regard to religious, linguistic or broader cultural matters. Good practices of that kind can be found in many States. The autonomy can be territorial, cultural and local, and can be more or less extensive. Such autonomy can be organized and managed by associations set up by persons belonging to minorities in accordance with article 2.4. But the Declaration does not make it a requirement for States to establish such autonomy. In some cases, positive measures of integration (but not assimilation) can best serve the protection of minorities.”97

As with the Capotorti definition, other discussions around definition98 still

framed around ‘subjective’ and ‘objective’ criteria include, as the text of the

96 Commentary Of The Working Group On Minorities, supra note 93, p. 5, para. 15. 97 Ibid. p. 6, para. 20. 98 Nigel S. Rodley, ‘Conceptual Problems in the Protection of Minorities: International Legal Developments’, 17 Human Rights Quarterly (1995) p. 48; J. Packer, ‘On the Definition of Minorities’, in John Packer and Kristian Muntti (eds.), The Protection of Ethnic And Linguistic Minorities in Europe (Åbo Akademi Institute of Human Rights, Turku/Åbo, 1993) p. 23; Oleg Andrysek, Report on the Definition of Minorities (Netherlands Institute of Human Rights, SIM Special No. 8, 1989).


Declaration implies, and as confirmed by the commentary, the desire to maintain

identity. This issue has always been problematic in contexts where the ‘minority’ is

externally demarcated, such as the Dalits. Comprising a population size nearly

equivalent to that of Western Europe, the desire to maintain identity among the larger

community is derived more out of the experience of persistent discrimination, rather

than a desire to maintain separate status. Attempts to assimilate are strongly resisted

by the majority, and while administrative and legislative provisions in States such as

India and Nepal seek to gain protection, these are not necessarily oriented towards

maintaining a way of life in the way that is justifiable for other religious, linguistic or

ethnic minorities. The Ahmadis display a nuanced version of a similar problem: their

desire to be counted within the mainstream Muslim population is rejected by the State

and society and they are helped as heretics who are religiously different from the rest

of the Ulemma.

While the text is relatively silent, minority protection in the document, as

described in the commentary, is based on four stated requirements: protection of the

existence of the communities, non-exclusion, non-discrimination and non-assimilation

of the groups concerned.99 The issues on non-assimilation have been raised above and

will not be reiterated. The commentary also highlights the element of ‘cultural

pluralism’,100 which in a South Asian context, and perhaps in many post-colonial

contexts, would appear distant. With the average post-colonial State being only about

sixty years old, and configured on colonial boundary lines, the States have maintained

a strong central line on determining national identity, usually on the basis of the

religion, language and culture of the majority. This has dictated that national history

narratives reflect triumphalist majoritarian perspectives, often reiterating antagonistic

divisions or upholding societal discrimination. The best way to tackle this would have

been to include a strong standard around education and the need for national curricula

to pay due attention to minorities, their histories and cultures. The commentary

suggests that the Declaration is committed to ensuring “promotion of the identity of

minorities requires special measures to facilitate the maintenance, reproduction and

99 Commentary Of The Working Group On Minorities, supra note 93, p. 6, para. 23. 100 Ibid. p. 7, para. 28.


further development of their culture”.101 While accepting the centrality of the issue,

the text of the document does this by seeking to uphold cultural rights, which States

usually interpret to mean the hosting and promotion of cultural events. Important as

this is, a greater emphasis on the need to promote minority identity through

mainstream education is not represented as robustly as an idea in the text or

commentary, and may have provided ballast to contesting how minorities are

perceived by the majority community, thereby striking a significant stance which

would have enabled ‘maintenance, reproduction and further development’ of their

culture.

Perhaps the most strident criticism of the Declaration would be its failure to

make the explicit link between the situation of minorities and poverty that results

from their exclusion. With a significant segment of the general South Asian

population below official poverty lines,102 this circumstance is heightened when the

exclusion that results from being a minority is factored in. The Declaration does focus

on ‘survival’, but this is framed from a perspective of ‘identity’ or ‘protection from

physical threat’. Minorities in South Asia face these risks, as in other parts of the

world, but the prevalence of poverty creates a backdrop that is difficult to escape, and

as competition grows for scarce resources, minorities and indigenous peoples in the

region are often crowded out. It could thus be argued that the creation of robust

mechanisms for socio-economic participation are at least as important as those for

political participation, which is well represented in the Declaration. In addition, in

keeping with many other United Nations documents, the Declaration emphasizes

‘equality and non-discrimination’ as a goal while then only focusing on the latter.

This construction fails to highlight that the inequality persisting in society which

impacts minorities is structural, and that addressing it through a lens of ‘non-

discrimination’ will necessarily fall short of bringing about desired change. The

document also highlights the need for the promotion and protection of minorities, but

these are not framed particularly strongly and come across more as ‘positive actions’

rather than calls to design specific remedies.

101 Ibid. p. 8, para. 29. 102 For a continent wide take on poverty see World Development Report 2014: Risk & Opportunity (IBRD, Washington DC, 2014) p. 5.


In Article 2(1) the Declaration states:

“Persons belonging to national or ethnic, religious and linguistic minorities … have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.”103

Further in Article 2(4) it states:

“Persons belonging to minorities have the right to establish and maintain their own associations.”104

When the totality of Article 2 is examined it would seem to replicate the standard

non-discrimination provision that exists in every other human rights legally-binding

document. As a result it does not augment any existing standard. Rather, the

provisions of Article 2 could collectively be deemed weaker than those that exist in

non-discrimination provisions in the constitutions of each of the eight States covered

in this chapter, and significantly short of the Indian minority provisions.105 The

commentary goes significantly further than the text and draws on the Lund

Recommendations passed by the Organisation for Security and Co-Operation in

Europe (OSCE).106 However these have little value in a South Asian context.

The provision for the maintenance of cross-border links in Article 2(5) plays

directly into the hands of States in South Asia, which view this element of the

minority discourse as most problematic. The idea that the Tamil community in Sri

Lanka could access counterparts in the State of Tamil Nadu, or that Muslims in India

could access their kin in Pakistan (and Bangladesh in the case of Bengal) was simply

unworkable on the grounds that the States feared such contact would promote

separatism.

Article 4 could be considered the ‘engine room’ of Declaration, setting out the

103 Article 2.1. 104 Article 2.4. 105 Articles 29, 30. 106 For a considered commentary and review see Krzysztof Drzewicki, The Lund Recommendations on Effective Political Participation of National Minorities in Public Life: Five Years After and More Years Ahead (International Journal of Minority & Group Rights Vols. 12/13) (Brill Publishers, City, 2005).


kinds of actions that States need to be taking in order to protect and promote minority

rights. After a fairly standard sub-article concerning the full enjoyment of rights, sub-

section 2 states:

“States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards.”107

While it can be generally asserted that the rights are framed in a less than assertive

manner, the specific mention of characteristics and development of identity facets and

practices that may be in violation of national law or contrary to international

standards. Further in sub-section 4(3), where it may have been beneficial to stress the

utility of inclusion of minority specific provisions in national curricula, the article is

more passively phrased on promotion of mother tongue as ‘where possible’. Thus:

“States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue.”108

Subsection 4(5) is equally worthy of brief consideration:

“States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country.”109

Affirmative action measures are, in general, tried and tested in many South Asian

countries, deriving initially from British rule.110 The emphasis on de jure equality

implied in the Declaration is easily surpassed in many countries of the region where

such measures are constitutionally mandated. These have in general been of limited

utility in tackling de facto inequalities faced by minorities.111 On the contrary,

measures taken by States have often been the subject of a majoritarian backlash as

‘concessions to minorities’, resulting in greater antagonisms. In terms of education,

national curricula across the region, unsurprisingly, are viewed as key battlegrounds

107 Article 4(2). 108 Article 4(3). 109 Article 4(5). 110 Karl J. Schmidt, At Atlas and Survey of South Asian History (ME Sharpe, New York, 1995). 111 For a lens on this issue from an Indian perspective see Mushirul Hasan and Zoya Hasan (eds.), Minorities at the Margins: India Social Development Report 2012 (OUP, Council for Social Development, Delhi, 2013).


for the furtherance of the concept of national identity. While this is inevitable, and

while the primary thrust to build national unity may be commendable, a greater stress

on existing diversity, and a more honest approach towards traditional inter-

communitarian antagonisms among different communities, would be useful in

breaking generational attitudes that foster social exclusion, fester stigma and fetter

progress. A more forthright approach in national curricula is more likely to engender

long-term peace and unity than current attempts to paint history from the majoritarian

perspective. This coupled with a stronger emphasis on the provisions of Article 4(5)

may yield far greater progress on the economic and social front in terms of national

cohesion and empowerment of minorities. Going forward, as the countries of the

region experience growth of a relatively higher order than the rest of the globe,112 the

issue of land resources is coming to the forefront. Land-grabbing continues to hurt

society as a whole but indigenous peoples and isolated minorities, further from the

sites of power, are increasingly susceptible to such practices, and with limited access

to law are falling further behind, lengthening inequality gaps.113

It is perhaps on Article 6 that the region is furthest behind global standards. This

article, emphasizing co-operation, reads:

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

As indicated above, the difficulties of fostering co-operation across boundaries in the

region should not be underestimated. Nor should the need for such co-operation.

Should the principles of Article 6 be adhered to, and if policies were to follow the

sentiment expressed in this article, it would constitute a major step forward for

minorities. This is not because all minorities in the region are ‘national’ minorities,

i.e. communities of one nationality living as a minority in another. Rather it is because

among the different minority communities, those with cross-border links (in a region

where the borders are relatively new) are often the focus of particularly negative

112 Joshua Castellino, ‘Globalisation and its Impact on Minorities in South Asia’, 9 European Yearbook on Minority Issues (2010) pp. 1-35. 113 The World Development Report picks up on this as a particular facet that exacerbates risk, see World Development Report 2014: Risk & Opportunity (IBRD, Washington DC, 2014) p. 41.


sentiment: viewed by the State with suspicion as to their allegiances, viewed by

majority communities as being The Other in lieu of relatively raw recent debates

about nationality, and viewed negatively due to trends in administrative legal policies

towards either designing or articulating the need for the design of specific protection

measures. These existing ‘affirmative action’ measures, often derived from colonial

rule, have transferred to post-colonial national policy through liberals, and in the case

of countries like India, have been backed by a previously activist Supreme Court. The

new era of modernity is moving societies in South Asia towards greater individuality

and mobility, especially in urban migratory terms, where significant emphasis is

placed on notions of ‘meritocracy’. Among this significant movement of peoples the

idea of special protection for historically vulnerable groups is coming under pressure

and deepening resentment.114 With belief growing that success in the ‘brave new

world’ is based on individual endeavour, it is convenient to forget that vast numbers

of individuals from historically excluded communities do not start this race from the

same starting line due to the structural exclusion. While Dalits and indigenous peoples

across the region are the most egregiously affected, the communities that could be

labelled ‘national’ minorities face equally stark stigma. Overcoming these through

regional co-operation is likely not only to rehabilitate and rejuvenate members of

these communities: it is likely to question the monolithic nature of the constructed

‘national’ identities, benefitting all who are excluded from sites of power, among

them minorities, but also refugees, the stateless and other disenfranchised

communities such as the growing numbers of urban poor.

4. Conclusion

Hilpold warns us of being harsh in our assessment of the Declaration:

“When evaluating this Declaration, one should abstain from measuring it on unrealistic pretentions or on goals the negotiating states would never have adhered to. The substantive weaknesses, its non-binding character and the total lack of implementation machinery, are, in the end, non-decisive for an overall evaluation of this document. In view of its universal nature, there is far more substance there than one could have dreamt of only a few years earlier. Also the non-binding character of this Declaration and the lack of implementation machinery are not to be overstated. In fact, as it is known, in international law the effectiveness of norms is not dependent in the same way

114 Richard F. Tomasson, Faye J. Crossby and Sharon D Herzberger, The Pros and Cons of Affirmative Action Policy and Practice (Rowman and Little Publishers, Oxford, 2001).


on their formal qualification as this is the case for municipal law. Far more relevant is their acceptance by the states.”115

Instead Hilpold argues that the Declaration has become “the most important frame of

reference within the UN system when questions regarding minorities are

discussed”.116 Hilpold’s comment on judging a document against unrealistic goals is

fair. We would suggest that this merits ascertaining the purpose of such a document in

the first place. It is worth remembering that the aspiration for the document was to

move towards a universally negotiated legally-binding instrument that would set a

clear standard for global minority rights protection. While the Declaration could not

be accused of failure for events that did not transpire after its passage, it could be

stated that its failure to raise minority issues to the profile necessary for States to

agree on universally-binding standards means that the global standard aspired to did

not come to pass. Against this, the fact that there is ‘at least’ a Declaration means that

the issue has not disappeared from the purview of human rights.

From our perspective it would seem that the appropriate measure of the

Declaration would lie in how useful its substantive provisions have been in framing or

assisting the regional or domestic debate around minority protection. It is in this

regard we have found the document insufficient, and argue that some of its

constitutive elements are actually framed at a level below existing regional standards,

while the region’s practice vis-à-vis minorities, as hopefully demonstrated in the first

section, are considerably below international practice. Rather, we see that the work of

the Human Rights Committee, the Committee on the Elimination of Racial

Discrimination and even non-governmental organizations like Minority Rights Group

have been more significant in developing global minority rights standards, either

through adjudicating and discussing the existence of particular standards or through

highlighting instances where practice in the region has fallen short of that expected at

international level. While, as discussed above, the UPR mechanisms have brought

minority rights to the forefront of human rights intergovernmental discussions,117 the

115 Peter Hilpold, ‘UN Standard Setting in the Field of Minority Rights’, 14 International Journal of Minority & Group Rights (2007) pp. 181-205, at p. 188. 116 Ibid. 117 Minority rights are listed us the 12th most discussed issue in the UPR process, as detailed in the UPR-Info.org database, <www.upr-info.org/database/statistics>, visited on 9 March 2014.


Declaration itself is not used as a benchmark in evaluating State records towards

minority rights. The Independent Expert on minority issues is the main organ of the

United Nations mandated with the promotion of the implementation of the 1992

Declaration worldwide,118 but has not been particularly active in South Asia. Only

Bangladesh (in early 2014) and Sri Lanka (in 2007 and 2013) have received requests

for visits which have not yet materialized.

The lack of any other global standard upholding specific minority rights means

that the Declaration remains the only document that currently occupies this space. The

world has changed significantly in the twenty years since the Declaration was passed.

Then the thrust of human rights policy (and minority rights policy within it) appeared

to be configured around western liberal States looking out towards the world and

exporting119 models of nation-building,120 individually-based minority rights,121

multiculturalism,122 consociationalism,123 autonomous regimes,124 bi-cultural

linguistic policies125 and territorial autonomies.126 Today, we have learnt from State

practices around the world that there is much to understand in terms of the

configuration of post-colonial national identities,127 the room for personal

autonomies,128 the importance of socio-economic rights for vulnerable groups,129

118 See Commission on Human Rights Resolution, 2005/79 of 21 April 2005. See also Human Rights Council Resolutions 7/6 of 27 March 2008 and 16/6 of 8 April 2011. 119 Sujith Choudhry, ‘Does the World need more Canada? The Politics of the Canadian Model in Constitutional Politics and Political Theory’, in Sujith Choudhry (ed.), Constitutional Design for Divided Societies: Integration or Accommodation? (OUP, Oxford, 2008) pp. 141-172. 120 Karl Deutsch and William Foltz, Nation Building (Atherton Press, NY, 1963). 121 See generally Jelena Pejic, ‘Minority Rights in International Law’, 19 Human Rights Quarterly (1979) p. 666; Philip V. Ramaga, ‘The Group Concept in Minority Protection’, 15 Human Rights Quarterly (1993) p. 575. 122 Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford University Press, Oxford, 2001). 123 Andrew Lijphart, Democracy in Plural Societies: A Comparative Exploration (Yale University Press, New Haven, CT, 1977). Also see Charles E Ehrlich, ‘Democratic Alternatives to Ethnic Conflict: Consociationalism and Neo-Separatism’, 26 Brooklyn Journal of International Law (2000-2001) pp. 447-484. 124 Geoff Gilbert, ‘Autonomy and Minority Groups: A Right in International Law?’, 35 Cornell International Law Journal (2002) p. 307. 125 Fernand de Varennes, Language, Minorities and Human Rights (Martinus Nijhoff/Brill, City, 1996). 126 Hurst Hannum, Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights (University of Pennsylvania Press, Philadelphia, 1980). 127 Joshua Castellino, International Law & Self-Determination: The Interplay of the Politics of Territorial Possessions with Formulations of ‘National Identity’ (Martinus Nijhoff, The Hague, 2000). 128 Ahmed (2010), supra note 40. 129 Report of the independent expert on minority issues, Gay McDougall – Minorities, Poverty and the Millennium Development Goals: Assessing Global Issues, UN.Doc. A/HRC/4/9 (2007).


resource sharing between minorities and majorities,130 the need for multi-linguality,131

and the extent to which affirmative actions can unhinge generational prejudice.

Minorities in South Asia are among its most threatened communities,132 but

intellectuals, policy makers and civil society continue to strive to challenge this.

Learning from their experiences and feeding these into global policies and practices

are as material to improving the situation of minorities in South Asia as understanding

and implementing successful models from elsewhere. To the extent that the

Declaration can seek to renew debate on these questions it will serve as an important

forum irrespective of whether it can be turned into legally-binding standards.

130 S. James Anaya and Robert A. Williams, ‘The Protection of Indigenous Peoples' Rights over Lands and Natural Resources under the Inter-American Human Rights System’, 14 Harvard Human Rights Journal (2001) p. 33. 131 Joshua Castellino and David Keane, Minority Rights in the Pacific: A Comparative Legal Analysis (OUP, Oxford, 2009). 132 MRG, State of the World’s Minorities 2013: Events in 2012 (MRG, London, 2013).

The UN Declaration on Minorities and its Guidance: A View from South Asia (with Joshua Castellino)

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