CC BY
38UDC: 342.4 (042)(575.1)
Khayrullaeva Dilbar
Senior Lecturer of the Department of International Law and Human Rights
Tashkent State University of Law E-mail: [email protected],
NATIONAL MINORITY RIGHTS AND THE PRINCIPLE OF
NON-DISCRIMINATION
Abstract. The article aims to examine international standards for the provision and protection of rights of national minorities, as well as, non-discrimination clause of the fundamental international human rights instruments concerning minorities. The rights of national minorities are provided in basic international human rights treaties and international documents on minority rights. The specific legally binding treaties regarding national minority rights have been adopted at the regional level, whereas a universal document on minority rights has a declarative character. The article examines the doctrinal attempts for the definition of the concept of national minorities. Prohibition of direct as well as indirect discrimination, which is important in the provision of equality and equal treatment of national minorities, is set forth in international human rights treaties and observed in the case law of supervisory bodies of international treaties on human rights. The present article attempts to identify and assess the extent of the protection ofnational minority rights by non-discrimination provisions. The article presents the international human rights treaties of the Republic of Uzbekistan, the constitutional framework for ensuring and protecting the rights of national minorities. As a result of the analysis of the issues discussed in the article, scientific conclusions and recommendations are developed.
Keywords: national minorities, discrimination, equality, definition, race, ethnicity, identity
Хайруллаева Дилбар
Тошкент давлат юридик университети "Халцаро ^у^ук ва инсон ^у^у^лари" кафедраси катта у^итувчиси
миллий ОЗЧИЛИКЛАР ХУЦУЦЛАРИ ВА КАМСИТМАСЛИК ТАМОйИЛИ
Аннотация. Мацоламиллий озчиликларнингууцуцларини таъминлаш ва уимоя цилиш буйича халцаро стандартларни, шунингдек, миллий озчиликларга нисбатан инсон ууцуцларига оид асосий халцаро уужжатларнинг камситмаслик ва тенг ууцуцлилик борасидаги цоидаларини урганишга царатилган. Миллий озчиликларнинг ууцуцлари инсон ууцуцлари тугрисидаги асосий халцаро шартномаларда ва озчиликлар ууцуцлари тугрисидаги махсус халцаро уужжатларда кузда тутилган. Миллий озчиликлар ууцуцларига оид махсус мажбурий хусусиятга эга шартномалар минтацавий доирада цабул цилинган булса, миллий озчиликлар ууцуцлари тугрисидаги универсал уужжат декларатив характерга эга. Ушбу мацолада миллий озчиликлар тушунчасини аницлашга царатилган доктринал изланишлар ва тадцицотлар куриб чицилди. Тенг ууцуцлиликни таъминлаш ва миллий озчиликларга тенг муносабатни таъминлашда мууим булган бевосита ва билвосита камситишни тацицлаш инсон ууцуцлари тугрисидаги халцаро шартномаларда уамда инсон ууцуцлари буйича халцаро шартномавий органларнинг амалиётида кузатилади. Ушбу мацолада камситилмаслик цоидалари билан миллий озчиликларнинг ууцуцларини уимоя цилиш даражасини аницлаш ва бауолашга уаракат цилинган. Мацолада Узбекистон Республикасининг инсон ууцуцлари буйича цушилган халцаро шартномалари,
миллии озчиликлар ууцуцларини таъминлаш ва щмоя цилишнинг конституциявии асослари келтирилган. Мацолада куриб чицилган масалалар тащили натижасида илмий хулоса ва таклифлар ишлаб чицилган.
Калит сузлар: миллий озчиликлар, камситиш, тенглик, таъриф, ирц, миллат, узига хослик.
хайруллаева Дилбар
старший преподаватель кафедры "Международное право и права человека" Ташкентского государственного юридического университета
права национальных меньшинств и принцип недискриминации
Аннотация. Целью данной статьи является изучение международных стандартов обеспечения и защиты прав национальных меньшинств, а также положения о недискриминации основных международных договоров по правам человека в отношении национальных меньшинств. Права национальных меньшинств закреплены в основных международных договорах по правам человека и международных документах по правам меньшинств. Специальные юридически обязательные договоры по правам национальных меньшинств были приняты на региональном уровне, в то время как универсальный документ по правам меньшинств носит декларативный характер. В статье исследуются доктринальные попытки определения понятия «национальные меньшинства». Запрещение прямой и косвенной дискриминации, которая важна для обеспечения равенства и равного обращения с национальными меньшинствами, закреплено в международных договорах по правам человека и соблюдается в практике надзорных органов международных договоров по правам человека. В статье делается попытка определить и оценить степень защиты прав национальных меньшинств положениями о недискриминации. Статья содержит международные договоры Республики Узбекистан по правам человека, конституционные основы обеспечения и защиты прав национальных меньшинств. В результате анализа затронутых в статье вопросов были выработаны научные выводы и рекомендации.
Ключевые слова: национальные меньшинства, дискриминация, равенство, определение, раса, этническая принадлежность, идентичность.
Populations of all states comprise minority groups distinct from the majority population by their own ethnic, national, linguistic or religious characteristics. Nonetheless, there is no internationally agreed definition as to which groups constitute minorities. International treaties on human rights refer to minorities but do not provide any definition. The term of ethnic, religious or linguistic minorities is used pursuant to United Nation (UN) Human Rights system inter alia Article 27 of the United Nations International Covenant on Civil and Political Rights of December 16, 1966 (ICCPR) which states that "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language". [1] But the Covenant does not define what constitutes an ethnic, religious or linguistic minority.
The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of December 18, 1992 (DRNM) provides the same pattern. Distinct from the ICCPR, it addresses national minorities as well. Article 2 (1) without a provision of definitions to national, ethnic, religious or linguistic minorities, declares that "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" [2].
At the regional level, legally binding specific international documents on minorities such as the Council of Europe Framework Convention for the Protection of National Minorities of February 1, 1995 (FCNM) and European Charter for Regional or Minority Languages of November 5, 1992 (ECRML)
do not contain a definition of "minority" due to the lack of general definition agreed upon by all member states. Therefore, FCNM enables states to realize their own assessment regarding the groups to be covered by the convention within their territory.
The definition of national minorities is one of the most disputable issues in the theory of international law. The concept of minorities is inherently uncertain and vague; therefore, it is impossible to cover all minority groups in a definition. States are not eager to apply extensive definition for minorities in order to avoid most part of population to be regarded as minorities. Furthermore, the intention of diverse groups of the population to obtain the status of minorities results in the complexity of formulation of a solution of the general application of the definition. [3]. However, the lack of the definition is explained in the Explanatory Report to the Framework Convention for the Protection of National Minorities: "It was decided to adopt a pragmatic approach, based on the recognition that at this stage, it is impossible to arrive at a definition capable of mustering general support of all Council of Europe member States". [4].
Since the ICCPR providing Article 27 regarding minorities does not contain a definition of minorities, in order to facilitate its application Professor Francesco Capotorti, a Special Rapporteur of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, proposed a definition of minorities as a result of his study on minorities as followed: "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". [5].
F. Capotorti's definition was considered "classic" by S.M. Punjin.[6]. According to N.S. Katko "it is a group of citizens of a certain state who are relatively small and/or non-dominant in the majority of the population, have stable ethnic, linguistic, religious and cultural characteristics and want to preserve their identity." [7]. These definitions imply that persons to be considered as national minorities have to be citizens of the country of residence. However, other authors believe that recognition as national minorities does not depend on citizenship criteria. For instance,
J. Deschênes described minorities as "a group of people who are small in number and do not have a dominant position, who differ from the majority in terms of ethnic, religious and linguistic characteristics, and who are committed to equal rights with the majority in the state." [8]. In our opinion, the definition of "... equal rights ..." in this definition refers to the non-dominant status of minorities and does not reflect the criteria of citizenship and solidarity that define minorities. S.S. Yurev defines a national minority as "a legal category that characterizes a social (primarily ethnic) community organized on the basis of recognition of their rights by a group of persons who are legal and reside in the territory of the state, but are not foreign citizens" [9]. S.I. Brooke, on the other hand, emphasizes that the concept of "national minorities" is ambiguous and describes them as "groups separated from the main part of the nations large or small to which they belong" (especially the Greeks in Turkey, the Algerians in France, etc.). In his view, nations that do not have their own statehood do not constitute national minorities. [10] In our opinion, a national minority is a group of citizens of a state that is small in number and/or non-dominant in proportion to the majority of its population, has distinctive ethnic, linguistic, religious, and cultural characteristics, and seeks to preserve its identity as well as legal and de facto equality.
Concerning the rights of minorities, the ICCPR is a legally binding UN document that implies Article 27, a progressive step in the legal provision of the rights of minorities. The article comprises both group and individual rights; individual rights are envisaged for individuals but may be enjoyed 'in the community' with other members of the group. There are no instructions for the states as to how to ensure the rights; therefore, ratification of the treaty does not entail undertaking special measures by all states. Nevertheless, Article 27 of the Covenant serves as a safety-net provision for many minorities, as states stay bound by the obligations following this document [11]. Whereas the implementation of specific international documents on minority rights depends on states' will, the rights under Article 27 are protected by an individual claims procedure before the Human Rights Committee (HRC).
DRNM being a non-binding document, declares a set of rights of persons belonging to national or ethnic, religious and linguistic minorities. DRNM distinctly
recognizes the right to national or ethnic, cultural, religious, and linguistic identity of minorities, ensuring that states shall take measures to create favorable conditions to enable persons belonging to minorities to develop their identity. Although the DRNM is an essential instrument in the minority protection system, its provisions are vague. Since the Declaration does not impose many obligations on states employing clauses such as "states should take appropriate measures so that, wherever possible, persons belonging to minorities have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue (article 4 (3)), it inevitably introduces a multiplicity of discretion to states.
The Council of Europe's Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 (ECHR) presents provisions relating to the use of language in the courts and the principle of non-discrimination. Article 14 outlines a general prohibition on any kind of discriminatory treatment.
The FCNM being the first legally binding international treaty, includes different provisions of rights such as the right freely to choose to be treated or not to be treated as such, the right to freedom of peaceful assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion, the right to manifest his or her religion or belief and to establish religious institutions, organizations and associations, use the minority language in communication with the public authorities and the right to learn the minority language and to be taught or receive instruction in a minority language. Nonetheless, the FCNM offers programmatic provisions and concedes a very wide measure of discretion to the state parties and vague provisions such as "where such a request responds to a real need", "where necessary, " and "as far as possible". These discretionary phrases weaken the provisions of the treaty and reduce the efficiency of its application.
The CIS States' Convention on providing the rights of the persons belonging to national minorities of October 21, 1994, imposes obligations on states concerning the recognition, consideration, provision, and preservation of the national identity of the persons belonging to national minorities. According to it, state parties ensure persons belonging to national minorities' civil, political, social, economic, cultural rights and freedoms in accordance with generally rec-
ognized international human rights standards and its legislation (Article 3).
American Convention on Human Rights of November 22, 1969, does not comprise an article regarding minority rights but includes a non-discrimination article (Article 1) and the guarantee of the right of the accused to be assisted without charge by a translator (Article 8). Article 2 of the African Charter on Human and People's Rights of June 27, 1981, states that every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the Charter without distinction of any kind such as language.
Considering the above mentioned, minority rights are provided specifically by Article 27 ICCPR and DRNM at the universal level. Other fundamental international human rights treaties ensure provisions on equality and prohibition of discrimination that are mostly applied for the provision and protection of national minority rights. These principles have been the base of contemporary international law of human rights; inter alia international minority protection system has been gradually shaped upon the framework of these principles. However, non-discrimination is essential and considered to be conditio sine qua non in minority protection; this system is widely acknowledged to be formed on two pillars: non-discrimination and special provisions for the protection and promotion of minorities. [12 p.216]. Notwithstanding the importance of existent international minority-specific instruments, basic human rights treaties enshrine a general framework of human rights and freedoms, which is essential to be guaranteed on the basis of equality for minorities. In this regard, it appears to be important to examine whether these general provisions ensure sufficient protection from discrimination on the grounds of expressing minority characteristics.
The prohibition of discrimination strengthens the rule on equal enjoyment and exercise of all human rights. Each international instrument prohibits discrimination on different grounds. Namely, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights of December 16, 1966 (ICESC) enumerate race, colour, language, religion, national origin or other status, whereas ECHR goes beyond the Covenants referring to association with national minority along with the other elements of the minority definition. Nonetheless, repeated references to
national or ethnic origins, race, language or religion clearly cover minority situations. Supervisory bodies of the treaties rely on the same non-discrimination grounds as are employed in international human rights law. [13]
Article 26 ICCPR states that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The meaning of the provision allowed numerous debates as to its applicability. The issue was solved by the Human Rights Committee's (HRC) General Comment No.18, which announced the autonomous right of article 26, extending protection to discrimination in law or in fact in any sphere of life, including economic and social issues. The clause does not set the prohibition of discrimination only by the state or other public authorities, but by private actors as well. The provision also enshrines a positive right to equality which is proved to be essential for minorities to be treated equally. The non-discrimination clause of the ICESC (Article 2) is similar to the ICCPR but strengthens the right to 'exercise' which expands to every right set in the Covenant. Namely, Article 13 (right to education) refers to promotion through education of 'understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups' potentially transforming the substantive exercise of the right to education generally into an instrument for minority protection. As to the regional documents the ECHR asserts in Article 14 non-discrimination clause which became a free-standing one with the adoption of Additional Protocol № 12 in 2005 which broadens the scope of Article 14 ECHR beyond the enjoyment of the rights and freedoms set forth in the convention.
Nevertheless, the explicit merit of these treaties in the maintenance of equality, none of them identifies the definition or constitution of 'discrimination'. Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination of December 21, 1965 (ICERD) and General Comment of the HRC provide the definition of discrimination, which covers any distinction, exclusion, restriction or preference based on race, colour, descent, or
national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms. It is repeated in most United Nations specialized human rights instruments. The definition encompasses basic elements such as determination of difference in treatment, a definite effect and grounds of protection. Although the definition does not implicitly refer to minorities, language or religion, the Committee on the Elimination of Racial Discrimination (CERD) has widely interpreted the ICERD on its relevancy to members of all minorities.[14] The applications of various terms inter alia' distinction', 'preference', 'restriction', and 'exclusion' reveal a differential treatment towards different groups of the population. The practice of any of these terms could be considered as sufficient to ground the aim of discrimination. For instance, 'restriction' embodies unreasonable limitation of certain individuals or groups in comparison to others. The differentiation based on minority membership or characteristics does not always imply discrimination. According to Fernand de Varennes, "Equality and the right to non-discrimination require that individuals be protected against unreasonable or unacceptable different treatment".[15] In some cases, individuals or certain groups may be imposed on the legitimate restriction of their rights. Namely, in Gillot et al. v France HRC considered that, in the context of referendums arranged in the process of decolonization and self-determination, the limitation on participation was legitimate for persons who had sufficient close relationship to the territory whose future was being decided. So, HRC held that there had been no violation of Article 25 as the restriction was reasonable and legitimate. In this regard, the HRC in General Comment No.18 determines that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the ICCPR. [16] The same rationale is employed in the case law of the European Court of Human rights (ECtHR). In Belgian Linguistic Case the ECtHR states that the violation of the non-discrimination principle occurs only if the distinction had no objective and reasonable justification, a legitimate aim and proportional relation to that legitimate goal.
The reference to 'effect' and 'purpose' of differential measures in the definition means that prohibition addresses indirect discrimination. Indirect discrimination is commented by the CERD to be determined as whether the action has an unjustifiable disparate impact upon a certain distinguished group. The European Union Race Directive presents the same definition. This rationale applied by CERD could be seen, namely, in L.R. et al. v Slovak Republic. The CERD found an act of indirect racial discrimination in a breach of State's obligation under Article 5(e) (iii) of ICERD.
The influence of CERD work is apparent in the jurisdiction of other international supervisory bodies, such as the HRC, International Court of Justice, European Court of Justice and ECtHR. Namely, in Singh Bhinder v Canada, the HRC accepted that general rule neutral on its face did discriminate against persons of the religious minority. Moreover, in D.H. and Others v Czech Republic concerning racial segregation, the ECtHR recognized a disproportionate impact of a neutral rule on particular groups, which draws up indirect discrimination. Acknowledgment of indirect discrimination entails an obligation for states to treat persons differently in different situations and adopting special measures (affirmative actions) that implicitly result in achieving substantive equality. As K.Henrard states, the prohibition of discrimination constitutes the outer limit of acceptable affirmative action; consequently, in order to be legitimate, an affirmative action measure should be objectively and reasonably justified, requiring both a legitimate aim and a relationship of proportionality between aim and differentiation. [12, p.320]
As regards equality, Western equality doctrine bases on an Aristotelian formula that "Things (persons) that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness". [15, p.79] On the contrary, identical treatment means treating unequals equally, which could be as adverse as treating equals unequally. This formal equality formulation is widely applied by international judiciary bodies and recognized by most scholars. [12, p.318] Namely, in Thlim-menos v Greece ECtHR considers the right under Article 14 ECHR is violated when States treat persons differently in analogous situations without providing an objective and reasonable justification. Moreover, the Court considers another facet of the prohibition of discrimination in Article 14. This right is as well vio-
lated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different. But this widely applied approach has not been supported by its opponents. The Aristotelian approach as a formal one is not applicable regarding which persons to be treated alike. [17,p.69] Fundamental to the critique of formal equality is its inability to address the historical disadvantage suffered by those subject to discrimination and to recognize that the effect of the differential may in fact, be heightened as a result. [18, p.320] Consequently, S.Fredman distinguished 'formal' from 'substantive', suggesting that 'distributive justice plays a central role' in the latter, which 'means, in turn, that equality requires more than restrain from the state. In addition, it calls for duty upon the state to take positive measures to promote equality, including, where the appropriate, allocation of resources'. [19, p.163] The importance of these measures is underscored by McKean, who believes that the concept of equality of individuals includes two contemporary notions: (1) the principle of non-discrimination, which is a negative aspect of equality designed to prohibit differentiation on irrelevant, arbitrary or unreasonable grounds; and (2) the principle of protection or special measures, designed to achieve 'positive' equality. [20, p.8] But K.Henrard is of the opposite opinion, that to the extent that 'non-discrimination' opens up to the concerns of substantive equality (including the obligation to adopt special measures for minorities), more can be achieved through the non-discrimination pillar, concomitantly reducing the additional need for minority-specific rights. [2] This point is acceptable, as issues concerning special measures arise when the basic rules of equal enjoyment and the equal exercise of human rights and non-discrimination are not sufficient for adequate minority protection. Such measures are important to promote full and effective equality of minorities in all spheres of life.
Concerning the provision of a non-discrimination clause in the national law of states, states stay bound by the provisions of treaties they have ratified. Uzbekistan acceded to a number of international instruments such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Commitment to human rights and recognition of the priority of the generally accepted norms of the international law is declared in the preamble to the Constitution
of the Republic of Uzbekistan. Non-discrimination provisions of these treaties setting that all persons are equal before the law without any discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status is implemented into the national legislation. Article 18 of the Constitution of the Republic of Uzbekistan states that all citizens of the Republic of Uzbekistan have equal rights and freedoms and are equal before the law, without discrimination by sex, race, nationality, language, religion, social origin, convictions, individual and social status. It ensures that any privileges may be granted solely by the law and shall conform to the principles of social justice. In accordance with article 7 of the Constitution, the sole source of State power is the people of Uzbekistan, whereas Article 8 declares that the people of Uzbekistan are constituted by the citizens of the Republic of Uzbekistan regardless of their ethnicity.
The right to use own languages, which is essential to preserve the national identity of minorities, is set forth in Article 4 of the Constitution; it guarantees the respect for the languages of all nations and peoples living in the territory of the Republic of Uzbekistan, the creation of conditions for their development. This provision empowers the legislation to ensure the rights to use languages other than the state language in different spheres. In particular, granting the right to receive education in the mother tongue demonstrates the compliance of national legislation with international standards.
The principles of equality and non-discrimination of citizens guaranteed by the Constitution are enshrined in the legislation governing the personal, economic, social, political and cultural rights of citizens. In particular, in accordance with Article 4 of the Law of the Republic of Uzbekistan "On citizenship of the Republic of Uzbekistan" adopted on March 13, 2020, citizens of the Republic of Uzbekistan, regardless of gender, race, nationality, language, religion, social origin and beliefs, personal and social status are equal before the law.
The Constitution guarantees to all persons the right to submit applications, proposals, and complaints to the competent state bodies (Article 35) and to seek legal protection of their rights by appealing to the courts on illegal actions by state authorities, officials and voluntary associations (Article. 44). Accord-
ing to Article 16, no law or other legal instruments contradict the provisions and principles of the Constitution, all laws enshrine basic principles of equality and non-discrimination. The provisions concerning the prohibition of discrimination are ensured in the Codes, laws, and other legal instruments. Nonetheless, the concept of discrimination has not been identified in the legal acts; however, Article 3 of the Law "On guarantees of equal rights and opportunities for women and men" of 02.09.2019 outlines direct and indirect discrimination. It implies that direct discrimination - any difference, exclusion or limitation that is aimed at denying women and men their rights and freedoms in all spheres of society, including discrimination based on marital status, pregnancy, family responsibilities, as well as sexual harassment, different pay for equal work and qualifications, whereas indirect discrimination on the basis of sex - the creation of a situation, position or criteria that puts persons of one sex in a less favorable position compared to persons of the other sex, including the promotion of gender inequality through the media, education, culture, setting conditions or requirements that may cause negative consequences for persons of a certain gender. The article indicates that any difference, exclusion, or limitation of rights and freedoms constitutes direct discrimination, while the creation of a situation, position or criteria has a purpose or effect of impairing the enjoyment of rights and freedoms for people of a certain gender. The provision ensures discrimination solely on the ground of sex and does not focus any other basis as nationality or ethnicity. In total, it is consistent with Article 1 ICERD but covers a limited ground of discrimination. Since the provision ensures the concept of discrimination in the gender aspect, there is a significant need for the identification of discrimination on the ground of race, colour, descent, or national or ethnic origin in legal instruments concerning human rights. It would be efficient for ensuring equality and prohibiting discrimination of national minorities.
It should be underlined that ensuring interethnic harmony and religious tolerance in our multinational state has been identified as one of the priorities of the Action Strategy for the Development of the Republic of Uzbekistan for 2017-2021 [21]. Indeed, ensuring the equality of national minorities, which differ from the main part of the population by ethnic, national, linguistic, religious, and cultural identity, is the basis of
democratic principles based on the priority of human rights, as well as inter-ethnic harmony and stability.
Drawing together the international standards, it is worth concluding that the rights of national minorities have earned international recognition, but the term "national minorities" as well as minorities have not got a unique interpretation in international documents. In this regard, we propose the following definition: national minority is a group of citizens of a state that is small in number and/or non-dominant in proportion to the majority of its population, has distinctive ethnic, linguistic, religious, and cultural characteristics, and seeks to preserve its identity as well as legal and de facto equality.
The protection of the rights of minorities is based on the right to the maintenance and development of national identity and the right to non-discriminatory treatment in the realization of all human rights. The only international instrument on minority rights that imposes obligations on states at a universal level is Article 27, but DRNM being a minority-specific document, has a declarative character. The FCNM is the first legally binding treaty but at a regional level. Nevertheless, a minority protection system requires further elaboration, identification of relevant definitions for minority groups and adoption of a legally binding international treaty at the universal level.
An overview reveals that primary international human rights instruments enshrine open-ended provision which prohibits discrimination 'for all' on "any ground" with important reference to "other status", which indicates that the list of prohibited grounds of discrimination is nonexhaustive. It is implicitly important to cover minority particularities. International human rights instruments enshrine a non-discrimination clause as a guarantee of equal treatment but does not imply special relevance to minorities. The pro-
hibition of indirect discrimination which is accepted in most human rights treaties, is important overture towards substantive equality. However, it has so far not led to the recognition of positive obligations to adopt minority specific measures but is being implemented in the jurisprudence of supervisory bodies of the treaties, such as HRC, CERD, ECJ and ECtHR.
Although primary international human rights instruments are not minority-specific, they serve as a safety-net provision for minorities since states stay bound by the obligations following these treaties. Whereas the implementation of specific international documents on minority rights depend on states' will, the rights under the basic human rights instruments are protected by an individual claims procedure before the supervisory bodies. The application of all human rights and freedoms could be sufficient under the principles of non-discrimination and equality if the affirmative or positive measures were afforded by the states. The extent of these measures should be defined within the Covenants and other human rights instruments. These special measures have to be adequate and legitimate in accordance with the principle of proportionality.
The principles of equality and non-discrimination of citizens are guaranteed by the Constitution of the Republic of Uzbekistan and enshrined in the national legislation. In order to enhance the efficiency of prevention of discrimination, a definition of the concept of discrimination on the ground of race, colour, descent, or national or ethnic origin has to be identified in compliance with provisions of ICERD. In our opinion, the accession of Uzbekistan to UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of December 18, 1992, would develop a national system of protection of national minority rights.
References
1. United Nations General Assembly resolution 2200A (XXI), December 16 1966.
2. United Nations General Assembly resolution 47/135, December 18, 1992.
3. Ramaga Ph. V. Relativity of the Minority Concept. Human Rights Quarterly, Vol. 14, No.3, 1992, p. 112.
4. Council of Europe. Explanatory Report to the Framework Convention for the Protection of National Minorities. European Treaty Series - No. 157.
5. Capotorti F. Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, New York, United Nations, 1991, p. 98.
6. Punjin S.M. Problema zashhity prav men'shinstv v mezhdunarodnom prave [The problem of protecting the rights of minorities in international law]. State and law, 1992. № 8. p.125.
7. Katko N.S. Kriterii opredelenija men'shinstva [Criteria for defining a minority]. Belarusian Journal of International Law, 2001, № 4. p. 35.
8. UN doc. E/CN. 4/Sub.2/1985/31,14 May 1985, p. 30.
9. Yurev S.S. Pravovoj status nacional'nyh men'shinstv: institucional'nyj i istoriko-sravnitel'nyj analiz [Legal status of national minorities: institutional and historical comparative analysis]. Abstract of a thesis for the degree of Doctor of Law Diplomatic Academy. - M., 2000, p. 26-27.
10. Bruk S.I. Naselenie mira [World population]. Ethno-demographic reference book. - M.: Science, 1986. p. 88.
11. Meijknecht A.K. Minority Protection. Standards and Reality. Implementation of Council of Europe Standards in Slovakia, Romania and Bulgaria. T.M.C. Asser Press, The Hague, The Netherlands, 2004, p.117.
12. Henrard K. A patchwork of 'successful' and 'missed' synergies in the jurisprudence of the ECHR. Synergies in Minority Protection. European and International Law Perspectives. Edited by Kristin Henrard and Robert Dunbar. Cambridge University Press, 2008, p. 316.
13. Alfredsson G. The Rights of Minorities in Europe. A Commentary on the European Framework Convention for the Protection of National Minorities. Article 4. Edited by Marc Weller. Oxford University Press, 2007, p. 147.
14. General Recommendation 24, Reporting of Persons Belonging to Different Races, National/Ethnic or Indigenous Peoples, 1999, UN Doc. A/54/18, annex V.
15. Varennes F. Language, Minorities and Human Rights. International Studies in Human Rights, Martinus Nijhoff Publishers, The Hague/Boston/London, 1996, pp. 79-80.
16. United Nations Human Rights Committee, General Comment № 18, on Non-discrimination, 1989, UN Doc.CCPR/C/21/Rev.1/Add.1.
17. Schiek D., Waddington L., Bell M. Cases, materials and text on national, supranational and international non-discrimination law. Hart Publishing, Oxford and Portland, Oregon 2007, p. 69.
18. Grant E. Dignity and Equality, 7 Human Rights Law Review, Oxford University Press, 2007, p. 320.
19. Fredman S. Providing Equality: Substantive Equality and the Positive Duty to Provide, (21) South African Journal on Human Rights, 2005, p. 163.
20. McKean W. Equality and Discrimination under International Law, Clarendon Press, Oxford, 1983, p. 8.
21. Presidential Decree of the Republic of Uzbekistan № UP - 4947 "On the Strategy of Action for the Further Development of the Republic of Uzbekistan", signed 07.02.2017.
