concept of minority
The existence of groups with identities different from the majority of a state’s population – as minorities – obviously only expresses a relative numerical relationship between these two groups in society. The numerical relationship is, however, nuanced by the multiple identities that often characterise individuals. In the modern nation-state politically sensitive social issues have emerged along the fault lines of divergent religious, linguistic, ethnic or national identities which need to be legally regulated. There is no universally accepted definition of (the) concept of minority in international law but other relevant terms such as “people(s)” or “nation(s)” are also used in international documents without clear definitions, and sometimes interchangeably. The national legal system of each state may use rather different concepts (e.g. nationality, indigenous minority, national minority, ethnic minority, traditional minority, etc.). They are sometimes used synonymously. An important question in the legal system of each state is which of the groups (minorities) that differ from the majority in terms of their identities are recognised and protected. In literature on political science, minorities with a kin-state (motherland) are typically considered “national minorities” as distinct from “ethnic” minorities. A national minority can be both a linguistic and a religious minority. The international legal documents adopted in the UN usually refer to “national or ethnic, religious and linguistic” minorities, while the documents of the Council of Europe, and the OSCE often refer only to “national” minorities. The main point of the issue is, however, who is entitled to minority rights. In the UN context the most recognised definition is that of the rapporteur Francesco Capotorti who defines a minority as “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 of the rest of the population and show, if only implicitly, a sense of solidarity directed towards preserving their culture, traditions, religion or language.” In Europe reference is often made to the definition in of the Parliamentary Assembly of the Council of Europe: “national minority” means a group of people within a state whose members: a. reside on the territory of that state and are citizens thereof; b. maintain longstanding, firm and lasting ties with that state; c. display distinctive ethnic, cultural, religious or linguistic characteristics; d. are sufficiently representative, although smaller in number than the rest of the population of that state or of a region of that state; e. are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language.” Both definitions are based on the voluntary assumption and the voluntary intention to preserve one’s own group identity. Neither the formal recognition by the state nor social prejudices create a “minority” in this sense. As Max van der Stoel, the first OSCE High Commissioner on National Minorities put it: “the existence of a minority is not a matter of definition, but of fact.