The Definition of

Minorities in

International Law

The Definition of

Minorities in

International Law

Vassilios Grammatikas, LLM, PhD

Assistant Professor of International Law

Democritus University of Thrace,

Greece

Vassilios Grammatikas, LLM, PhD

Assistant Professor of International Law

Democritus University of Thrace,

Greece

The definition of Minorities

The definition of Minorities

• Efforts during the last 40 years
• Failure of States to reach an

internationally acceptable definition of
minorities so far

• Reasons ?????
• Negative effect towards their

protection

• Efforts during the last 40 years
• Failure of States to reach an

internationally acceptable definition of
minorities so far

• Reasons ?????
• Negative effect towards their

protection

The definition of Minorities

The definition of Minorities

Capotorti (UN Doc. E/CN.4/Sub.2/384/Rev. I,

1979)

«Minority is a group numerically inferior to

the rest of the population of a State, in a non-

dominant position, whose members –being

nationals of the State- possess ethnic,

religious or linguistic characteristics differing

from those of the rest of the population and

show, if only implicitly, a sense of solidarity,

directed towards preserving their culture,

traditions, religion or language»

Capotorti (UN Doc. E/CN.4/Sub.2/384/Rev. I,

1979)

«Minority is a group numerically inferior to

the rest of the population of a State, in a non-

dominant position, whose members –being

nationals of the State- possess ethnic,

religious or linguistic characteristics differing

from those of the rest of the population and

show, if only implicitly, a sense of solidarity,

directed towards preserving their culture,

traditions, religion or language»

The definition of Minorities

The definition of Minorities

Basic elements

Numerical factor

Special characteristics (ethnic, religious,

linguistic)
Non-dominant position
Citizens of the State
The will to continue exist as a separate group

(collective will to preserve their

characteristics)
Sense of community
Issue of loyalty ??

Basic elements

Numerical factor

Special characteristics (ethnic, religious,

linguistic)
Non-dominant position
Citizens of the State
The will to continue exist as a separate group

(collective will to preserve their

characteristics)
Sense of community
Issue of loyalty ??

The definition of Minorities-Basic

elements

The definition of Minorities-Basic

elements

Numerical factor

• Numerically inferior to the rest of the

population

• Yugoslav case ?
• Minimum number
• Reversed minority situation
• Geographic distribution

Numerical factor

• Numerically inferior to the rest of the

population

• Yugoslav case ?
• Minimum number
• Reversed minority situation
• Geographic distribution

The definition of Minorities-Basic
elements

The definition of Minorities-Basic
elements

Special (distinctive) characteristics

• purely biological features ?
• Ethnic, Linguistic, Religious, Cultural

characteristics

• Ethnic v. national?
• sufficiently distinctive to separate

the group from the rest of the
population

Special (distinctive) characteristics

• purely biological features ?
• Ethnic, Linguistic, Religious, Cultural

characteristics

• Ethnic v. national?
• sufficiently distinctive to separate

the group from the rest of the
population

The definition of Minorities-Basic

elements

The definition of Minorities-Basic

elements

Non-Dominant position

• Element of political origin
• No need for protection for ruling

group

• Example of Apartheid regime in RSA

Non-Dominant position

• Element of political origin
• No need for protection for ruling

group

• Example of Apartheid regime in RSA

The definition of Minorities-Basic

elements

The definition of Minorities-Basic

elements

Citizens of the State

• Citizenship  necessary legal bond

between the group seeking protection
and the respective state

• Since LoN foreigners were excluded

from minority protection

BUT

Recent trend in certain UN organs to
treat immigrants / aliens as minorities

(eg. Explanatory Report to the UN Declaration on
National Minorities - UN Doc.
E/CN.4/Sub.2/AC.5/2005/2/4.4.2005, § 9

Citizens of the State

• Citizenship  necessary legal bond

between the group seeking protection
and the respective state

• Since LoN foreigners were excluded

from minority protection

BUT

Recent trend in certain UN organs to
treat immigrants / aliens as minorities

(eg. Explanatory Report to the UN Declaration on
National Minorities - UN Doc.
E/CN.4/Sub.2/AC.5/2005/2/4.4.2005, § 9

The definition of Minorities-Basic

elements

The definition of Minorities-Basic

elements

Preservation of minority characteristics

• Will of the group members to

preserve and promote their distinct
features

• Also serves as a limit of acceptable

action for minorities (by States)

Preservation of minority characteristics

• Will of the group members to

preserve and promote their distinct
features

• Also serves as a limit of acceptable

action for minorities (by States)

The definition of Minorities-Basic

elements

The definition of Minorities-Basic

elements

Sense of community

• Aims of minorities can only be accomplished if

its members wish to continue existing as a

group

• No need for special protection for a group not

interested in upholding its distinguishing

characteristics

• Issue as to whether this must be explicitly

stated

 Italy: «… vital and active group, aware of itself»
 contra Yugoslavia: «… it would be inappropriate to

ascribe too much importance to the need of a

‘declaration of desire’ by the members of any

minority»

Sense of community

• Aims of minorities can only be accomplished if

its members wish to continue existing as a

group

• No need for special protection for a group not

interested in upholding its distinguishing

characteristics

• Issue as to whether this must be explicitly

stated



Italy: «… vital and active group, aware of itself»



contra Yugoslavia: «… it would be inappropriate to

ascribe too much importance to the need of a

‘declaration of desire’ by the members of any

minority»

The definition of Minorities-Basic

elements

The definition of Minorities-Basic

elements

Issue of loyalty

• Political origin
• tries to ensure that rights afforded to

minorities shall not be used to

undermine the territorial integrity of

the State

• Higgins: «… no obligation upon

minority groups to stay part of a unit

that maltreats them or in which they

feel unrepresented»

(Higgins R.: Problems and process, Clarendon

Press, Oxford, 1994, p. 125)

Issue of loyalty

• Political origin
• tries to ensure that rights afforded to

minorities shall not be used to

undermine the territorial integrity of

the State

• Higgins: «… no obligation upon

minority groups to stay part of a unit

that maltreats them or in which they

feel unrepresented»

(Higgins R.: Problems and process, Clarendon

Press, Oxford, 1994, p. 125)

The definition of Minorities-Basic

elements

The definition of Minorities-Basic

elements

The issue of self-identification / self-

definition

• Personal choice to belong to a minority or not 

contained in almost all instruments of

protection (eg. FCNM)

• Also the ability of a person to identify

him/herself as belonging to any group 

extreme form of application of subjective

criteria, totally disregarding the objective

factors

• Some authors say that it has to be respected as

a personal choice, even if not supported by any

objective factor

The issue of self-identification / self-

definition

• Personal choice to belong to a minority or not 

contained in almost all instruments of

protection (eg. FCNM)

• Also the ability of a person to identify

him/herself as belonging to any group 

extreme form of application of subjective

criteria, totally disregarding the objective

factors

• Some authors say that it has to be respected as

a personal choice, even if not supported by any

objective factor

The definition of Minorities-Basic

elements

The definition of Minorities-Basic

elements

Individual vs. Collective rights

• Until now all legal and most political

documents afford protection to «members of

minorities»

• Reasons ???

– General fear of states to recognize collective

activities of minorities as rights

– Based on existing subversive practice of minorities

prior to WWII and during the UN period that

resulted in challenges (successful or not) to the

territorial integrity of states

– (eg. German minorities before WWII)

• Even rights that can only be exercised

collectively are recognized as individual rights

(eg. profession of religion)

Individual vs. Collective rights

• Until now all legal and most political

documents afford protection to «members of

minorities»

• Reasons ???

– General fear of states to recognize collective

activities of minorities as rights

– Based on existing subversive practice of minorities

prior to WWII and during the UN period that

resulted in challenges (successful or not) to the

territorial integrity of states

– (eg. German minorities before WWII)

• Even rights that can only be exercised

collectively are recognized as individual rights

(eg. profession of religion)

The definition of Minorities-Basic

elements

The definition of Minorities-Basic

elements

Individual v. collective rights

• 2 collective rights recognized so far:

(a) Right to existence (genocide convention)

(b) Right to identity

• States generally afraid to recognize collective

minority rights

 fear for abuse of collective rights to undermine

state sovereignty

 Attribution of collective rights implies that all

minority members will be represented by 1 organ

acting on their behalf

 Persons that will express these rights and

authority to represent the minority

 recognition of minorities as separate entities

would bring them in contrast with the rest of the

population

Individual v. collective rights

• 2 collective rights recognized so far:

(a) Right to existence (genocide convention)

(b) Right to identity

• States generally afraid to recognize collective

minority rights



fear for abuse of collective rights to undermine

state sovereignty



Attribution of collective rights implies that all

minority members will be represented by 1 organ

acting on their behalf



Persons that will express these rights and

authority to represent the minority



recognition of minorities as separate entities

would bring them in contrast with the rest of the

population

Distinction from conceptually similar

terms

Distinction from conceptually similar

terms

• Peoples
• Migrant workers
• Refugees
• Indigenous peoples (ILO Convention

No. 169)

• «Social minorities» (eg. Drug addicts,

AIDS victims, LGBT)

• The issue of Roma (gypsies)

• Peoples
• Migrant workers
• Refugees
• Indigenous peoples (ILO Convention

No. 169)

• «Social minorities» (eg. Drug addicts,

AIDS victims, LGBT)

• The issue of Roma (gypsies)

Obligations of Minorities

Obligations of Minorities

• Respect for the rights of other people

(the majority)

• Respect for the domestic legislation
• Respect for international standards
• Knowledge of the official language of the

state

• No activity against the territorial

integrity of the state

• Loyalty ?

• Respect for the rights of other people

(the majority)

• Respect for the domestic legislation
• Respect for international standards
• Knowledge of the official language of the

state

• No activity against the territorial

integrity of the state

• Loyalty ?