Minorities and Indigenous Peoples

There is no precise definition of ‘minority’ in international law. However, the UN system does recognise national or ethnic, religious and linguistic minorities and the right of persons belonging to these groups to enjoy their own culture, to profess and practice their own religion, and to use their own language (Article 27 of the International Covenant on Civil and Political Rights; Article 2 of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities).

While Article 27 identifies to which minorities the article applies, it offers no explanation as to what defines a ‘minority’. Any single definition would likely not capture the breadth of diverse minority groups that exist worldwide. However, certain common characteristics can be identified. In particular, minority groups often share the following:

• a non-dominant or marginalised position, relative to the rest of the population
• ethnic, religious or linguistic characteristics distinct from those of the rest of the population
• a desire to preserve their distinct culture, traditions, language and religion

In addition to the ‘objective' criteria in identifying minorities (as described in the list above) there is also a ‘subjective’ element: members must self-identify as belonging to an ethnically, religious, or linguistically distinct group. This is important given the lack of formal definition but also because it prevents states from arbitrarily selecting to whom minority status is granted. It is also worth mentioning that minority groups are typically numerically inferior to the majority population, but need not be to fit the definition.

Despite there being no agreed upon definition of the term ‘minority’, it is necessary to distinguish minorities from other social and marginalised groups. This distinction is important because the conferring of minority status engages a specific body of international law that addresses the particular context and rights of ethnic, religious, and linguistic minorities.

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007), which was hard fought by Indigenous Peoples, contains no definition of the term ‘Indigenous Peoples’. This is by design. Indigenous Peoples resisted the inclusion of a formal definition deeming it unnecessary and undesirable, instead stressing the importance of flexibility and self-identification.

Nevertheless, international law does identify certain characteristics of Indigenous Peoples. Article 1, ILO Convention 169 on Indigenous and Tribal Peoples (1989) states:

'Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.'

The Manual for Convention 169 (2003) further elucidates characteristics of Indigenous Peoples:

• traditional life styles
• culture and way of life different from the other segments of the national population, eg in their ways of making a living, language, customs, etc.
• own social organisation and political institutions
• living in historical continuity in a certain area, or before others ‘invaded’ or came to the area

As with minorities, self-identification is regarded as a fundamental criterion for determining whether a particular group is indigenous.

Indigenous Peoples and minorities often share characteristics and the distinction between them is not always clear. Both groups:

• are usually in a non-dominant position
• their cultures, languages, or religious beliefs often differ from that of the majority
• commonly wish to retain and promote their identity

In some cases, minorities also have a strong and long-standing attachment to their lands. Minorities, however, do not necessarily have the long ancestral, traditional, and spiritual attachment to their lands usually associated with Indigenous Peoples (OHCHR, 2010, p.3). Indigenous Peoples emphasise that the experience of colonisation without consent is a distinctive aspect compared to minorities (see articles by Damien Short).

In addition, Indigenous Peoples are not necessarily numerically inferior, for example, in Bolivia indigenous groups account for over half the population.

It is important to note that minority and indigenous status can often be overlapping, both between and within groups. Minorities can exist within Indigenous Peoples, for example, among ethnic and linguistic sub-groups. Girls and women who belong to minorities and Indigenous Peoples often experience additional discrimination, as can, for example, persons with disabilities, based on the different aspects of their identities. These forms of discrimination can interact in complex ways–this is known as intersectional discrimination.

The International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966) and the Convention on the Rights of the Child (CRC, 1989) guarantee the individual right to education for everyone. However, individual rights, including the right to education, as expressed in the ICESCR and the CRC, whether exercised individually or in concert with others, do not always adequately address the specific context, concerns and needs of minorities and Indigenous Peoples. Reflecting this, Article 30, CRC and Article 27, International Covenant on Civil and Political Rights (ICCPR, 1966) guarantee the specific right of persons belonging to minority and indigenous communities to enjoy their own culture, to profess and practice their own religion, or to use their own language, in community with other members of their group.

For minorities and Indigenous Peoples, education is one of the key ways in which cultural practices, languages, and values are transmitted from one generation to the next. For Indigenous Peoples, this requires that the right to education is formulated in a way that protects the group as a whole. The right to education, therefore, takes on an additional collective dimension, namely the right to control–or have a say in–how education is delivered: its content, methods, values, objectives, and language of instruction. Specifically in the case of Indigenous Peoples, coupled with Article 14, UNDRIP: 'the right to autonomy or self-government in matters relating to their internal and local affairs,' this affords Indigenous Peoples the right of educational autonomy and includes the right to establish and direct educational institutions and education systems.

Minorities also have a right to educational autonomy but it is less well articulated in international human rights law. CCPR General Comment 23, paragraph 6.2 (1994) states: 'Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language, or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group.' Coupled with the right to participate in decisions that affect them–a general human rights principle, in practice, this means that this right is implemented through collective mechanisms, such as consultative bodies, elected political representatives, etc.

For a comprehensive list of provisions in international law pertaining to minorities and Indigenous Peoples, see International Instruments–Minorities and Indigenous Peoples.

For the complete normative framework of the individual right to education, see International Instruments–Right to education.

The accordions below explain the most common challenges that minorities and Indigenous Peoples face with regard to their right to education, including relevant provisions in international law. This list is by no means exhaustive.

The result of the challenges minorities and Indigenous Peoples face is not only that their right to education is not enjoyed, but also that the instrumental benefits of education are not gained. Education outcomes for minority and indigenous students are often lower compared to the general population. As a result, minorities and indigenous children often encounter problems continuing education to higher levels and finding gainful employment.

Lack of good quality education perpetuates the cycle of exclusion and marginalisation; students cannot rise to key positions in the government or the labour market–including becoming future teachers–continuing the political and economic underrepresentation of minorities and Indigenous Peoples.

Furthermore, minority and indigenous children’s ability to enjoy other human rights is compromised. The right to education is a ‘multiplier right’, facilitating enjoyment of other human rights, such as: the right to freedom of expression, freedom from child labour and child marriage, and the right to health.

For further information on the issues affecting minorities and Indigenous Peoples’ right to education, see the UN Permanent Forum on Indigenous Issues page on education, the recommendations of the thematic session on education of the UN Forum on Minority Issue, and Minority Rights Group International State of the World’s Minority and Indigenous Peoples (2009).

Minority and indigenous students are often subject to discrimination in access to quality education. State policies (whether official or de facto), such as the segregation of schools or classrooms, often effectively block minority and indigenous students from equal access to quality education. Examples include: apartheid in South Africa, racial segregation in the US, the treatment of Romani children in Europe and Dalits (low caste or ‘untouchables’) in India. In addition, de facto segregation that occurs as a result of social and economic disparities can be just as harmful as official policies. Both official and de facto discrimination in access to education are prohibited under international law by the equality and non-discrimination clauses that are present in almost every human rights treaty, including:

• the International Covenant on the Elimination of Racial Discrimination which guarantees the right to education of everyone, without distinction as to race, colour, or national or ethnic origin (1965, Article 5)
• Article 2, International Covenant on Economic, Social and Cultural Rights (1966) and the Convention  on the Rights of the Child (1989)
• the Convention against Discrimination in Education which enshrines the fundamental principle of non-discrimination and equality of opportunity in education (1960, Article 1)
• Articles 3 and 26, ILO Convention 169 - Indigenous and Tribal Peoples (1989)
• Articles 2 and 14(2), UN Declaration on the Rights of Indigenous Peoples (2007)
• Article 4, Framework Convention for the Protection of National Minorities (1995)
• Articles 3-4, UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992)

Some states actively discriminate against minorities and Indigenous Peoples in textbooks and the curriculum, through the perpetuation of stereotypes and unfair or biased portrayals. These practices violate minority and indigenous students’ rights to education and non-discrimination, for instance Article 31, ILO Convention 169 - Indigenous and Tribal Peoples (1989) requires: 'Educational measures shall be taken…with the object of eliminating prejudices that they may harbour in respect of these peoples. To this end, efforts shall be made to ensure that history textbooks and other educational materials provide a fair, accurate and informative portrayal of the societies and cultures of these peoples.'

More broadly, the UN Declaration on the Rights of Indigenous Peoples requires states to appropriately reflect the diverse cultures of Indigenous Peoples in education and public information and to take 'effective measures to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous and all other segments of society' (2007, Article 15).

States can also bar equal access to education by failing to establish quality schools within a reasonable distance from where minorities and Indigenous Peoples live. CESCR General Comment 13 (1999) states that physical accessibility is an ‘essential feature’ of the right to education. However, minority and indigenous students often live in rural and remote areas, resulting in long and unsafe journeys, which can deter students, particularly girls, from enrolling.

The content and objectives of education must be adapted to the needs and circumstances of minority and indigenous students. Some states may operate a policy of assimilation by teaching students only in the majority or dominant language and omitting the teaching of alternative cultures, histories, traditions, and languages. These policies may contribute to the process of making minority and indigenous culture and identity invisible, which may in turn reinforce and perpetuate experiences of exclusion, dispossession, and loss of identity. They also negatively impact the academic performance of minority and indigenous students, particularly on standardised tests, which often presuppose that students are embedded in a particular culture and have knowledge of the mainstream language.

For example, education has historically been used as a means to assimilate Indigenous Peoples, whereby the colonial state promoted the culture of the dominant society whilst at the same time it prohibited Indigenous Peoples from speaking their traditional language or practising their traditional culture. This reinforced the experience of colonisation, as it was not only Indigenous Peoples’ lands which were being taken away, but also their languages and cultures.

In some countries, notably Canada and Australia, governments have established and operated residential or boarding schools, subjecting indigenous children to regular physical, psychological, and sexual abuse. Policies such as these go beyond assimilation and are in fact attempts to destroy Indigenous Peoples ('cultural genocide' in the words of the Truth and Reconciliation Commission of Canada).

A culturally relevant education is not only about what is taught, but also how it is taught, for instance the use of indigenous pedagogical methods. This may involve, for example, participation in traditional ceremonies to learn about cultural practices. (See King and Schielmann The Challenge of Indigenous Education: Practice and Perspectives, 2004; see also articles by Lorie M. Graham).

Human rights law, to an extent, mitigates potential assimilation by allowing individuals and bodies to establish educational institutions (see Educational freedom and International Law–Educational freedom)–right that applies to both minorities and Indigenous Peoples. 

In order to ensure the continuing existence, development, and well-being of Indigenous Peoples as distinct collectives, Article 27, ILO Convention 169–Indigenous and Tribal Peoples (1989) stipulates:

1. education programmes and services for the peoples concerned shall be developed and implemented in co-operation with them to address their special needs, and shall incorporate their histories, their knowledge and technologies, their value systems and their further social, economic and cultural aspirations
2. the competent authority shall ensure the training of members of these peoples and their involvement in the formulation and implementation of education programmes, with a view to  the progressive transfer of responsibility for the conduct of these programmes to these peoples as appropriate
3. governments shall recognise the right of these peoples to establish their own educational institutions and facilities, provided that such institutions meet minimum standards established by the competent authority in consultation with these peoples. Appropriate resources shall be provided for this purpose

Article 14, UN Declaration on the Rights of Indigenous Peoples (2007) reaffirms the right of Indigenous Peoples to establish and control their educational systems and institutions.

For more information on the above provisions, see p.51-54 of J.B. Henriksen Key Principles in Implementing ILO Convention No. 169 (2008).

Minorities and Indigenous Peoples often speak languages that differ from that of the majority or official language. As such, when minority and indigenous students are taught in a language that is not their mother tongue, evidence suggests that they are disadvantaged and their educational development is adversely affected. (See Magga et al. Indigenous Children’s Education and Indigenous Languages; see also articles by Tove Skutnabb Kangas.)

There is also evidence to suggest that minority and indigenous children may be deterred from enrolling in schools and are more likely to drop-out because the minority language is not used as a vehicle of teaching. It is therefore unsurprising that illiteracy is typically much more prevalent among minority and indigenous communities than the majority population. 

The right to learn one’s mother tongue (whether it is the language of instruction or as a subject) is not just an issue affecting individuals, it affects whole groups. Language serves as the primary medium through which customs, values, culture as well as the language itself are transmitted from generation to generation. 

It is important to note that mother tongue instruction does not necessarily mean that minority and indigenous students should not have the opportunity to learn and attain fluency in the dominant language. In fact, it is desirable that students become multilingual, enabling them to enjoy the benefits of mainstream education, and access to work, as well as maintain their linguistic heritage. Where the indigenous language is not being transmitted, language revitalisation programmes could be incorporated into the education system. (See UNDRIP Article 13; see also Inter-Agency Support Group on Indigenous Peoples’ Issues Education and Indigenous Peoples: Priorities for Inclusive Education, 2014)

International law is somewhat unclear on language rights in education (although human rights provisions should be read in light of each other, so the right to participate in decisions affecting minorities and Indigenous Peoples and the right to the promotion and protection of culture and identity may require schooling in the mother tongue, as vehicle and subject). The strongest legal protections exist in the two Council of Europe treaties:

• European Charter for Regional or Minority Languages (1992)

Article 8 requires states to undertake to make available, in relevant territories and at all levels of education, education in the relevant minority language, a substantial part of education in the relevant minority language or provide for the teaching of the relevant minority language. If a sufficient number of students request minority language education, states should apply at least one of the above measures.

• Framework Convention for the Protection of National Minorities (1995)

Article 14 recognises that: 'every persons belonging to a national minority has the right to learn his or her minority language'. Article 14 goes on to stipulate: 'In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language.'

At the international level, there are two treaties that guarantee language rights in education:

• ILO Convention 169 - Indigenous and Tribal Peoples (1989)

Article 28 states that indigenous children 'wherever practicable, be taught to read and write in their own indigenous language or in the language most commonly used by the group to which they belong. When this is not practicable, the competent authorities shall undertake consultations with these peoples with a view to the adoption of measures to achieve this objective.'

However, this convention only applies to Indigenous Peoples and the number of ratifications is low (22 at present).

• Convention against Discrimination in Education (1960)

Article 5 provides: 'It is essential to recognise the right of members of national minorities to carry on their own educational activities, including the maintenance of schools and, depending on the educational policy of each state, the use or the teaching of their own language.'

Soft law provides strong standard setting on the issue of language rights in education, however both declarations are not legally binding:

• UN Declaration on the Rights of Indigenous Peoples (2007)

Article 14 states: 'Indigenous Peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.

'States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own  culture and provided in their own language.'

• UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992)

Article 4 says: '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.'

Assimilation; non-mother tongue instruction; the lack of adaptable education relevant to the student’s context and needs, in some cases may not be directly due to state policies but rather the lack of minority and indigenous teachers, the lack of teachers trained to deliver minority or indigenous language instruction, and the lack of adequate teaching materials. In these cases, it is the state’s inaction and failure to implement positive measures to ensure quality education for all.

For instance, Article 27, ILO Convention 169 (1989) requires that states provide adequate resources so that indigenous persons can establish educational institutions. Article 8, European Charter for Regional or Minority Language (1992) requires that teachers be provided with training in order to teach minority languages, as does Article 12 of the Framework (1995), which also guarantees access to textbooks.

For further reading on language rights, see Fernand de Varennes’s Academia.edu page for a list of relevant papers, as well as his article in the INTERIGHTS Bulletin Language Rights in Education.

In many countries, the rates of enrolment and completion among minority and indigenous children, especially girls, are lower than the rest of the population. One of the main reasons for this is poverty; minority and Indigenous Peoples also suffer from higher than average poverty rates. To survive, many families send their children to work instead of school (which is prohibited by Article 17, UN Declaration on the Rights of Indigenous Peoples, 2007) and those who do go to school are more likely to turn up hungry, tired or ill. In some instances, although education itself is provided for free, indirect costs, such as for textbooks, uniforms, transportation, and school lunches, remain prohibitively high.

Minorities and Indigenous Peoples often lag behind the educational level of the general population. This can be attributed to a) a lack of quality schools in minority/indigenous areas b) prejudice both in teachers’ attitudes and behaviour and in school curricula and c) insufficient integration of minority language. Schools in minority and indigenous areas or that serve predominantly minority or indigenous students, are often of lower quality, poorly equipped, inferior in terms of infrastructure and served by the least-qualified teachers. This is because states spend, on average, less on minority and indigenous education than on mainstream education. For example, see this report by Human Rights Watch on Discrimination against Palestinian Arab Students in Israel's Schools (2001).

For further information, see part 2 of ILO Guidelines for Combatting Child Labour among Indigenous and Tribal Peoples (2006), which identifies the existing barriers to education and looks at the specific rights and needs of indigenous children with respect to school education and vocational training.

Minority and indigenous students may face abuse, bullying, racism, and are more likely to be victims of corporal punishment and gender-based violence. In some instances teachers and persons in authority instigate such violence, or else they do nothing to prevent it.

As well as violence in schools, indigenous and particularly minority students face violence due to conflict. This is because most contemporary conflicts have had a racial or ethnic dimension (2010, para. 63). During conflicts and in the run-up to conflicts, minorities are often persecuted, systematically discriminated against and victims of hate-speech. In some conflicts, the curriculum and textbooks are used to incite hatred or to persecute minority students. Minority and indigenous children are also more likely to be recruited as child soldiers which is expressly prohibited in international law–see International Instruments–Minimum age of military recruitment (2014).

Conflicts and other emergencies can also disrupt education, for instance through the destruction of schools or the displacement of people. For more information, see Right to Education Initiative’s pages on education in emergencies and migrants, refugees and internally displaced persons.

To overcome marginalisation, achieve substantive equality (in addition to formal equality), and promote and protect cultural identity, states must refrain from discrimination and take positive measures to ensure educational equality. In addition, positive measures are often needed because minorities and Indigenous Peoples have often suffered historical marginalisation and discrimination, and as a result are especially vulnerable and therefore suffer disproportionately from human rights violations. Any special measures taken must take into account the unique situation and interests of the minority group in question. For instance, nomadic groups may require mobile or multiple school facilities.

There are various measures states can implement to address inequality. For example, states can implement affirmative action through cash transfers. For further examples, see Tables 2-4 in  Minority Rights Group International: State of the World’s Minority and Indigenous Peoples (2009). It is also vital that existing education laws and policies are not indirectly discriminatory, see Oršuš and Others v Croatia (2010) and Horváth and Kiss v Hungary (2013).

It is important to note that inequality and discrimination do not occur in a vacuum. States must also address wider societal problems such as poverty, as well as education-specific problems. States must also promote respect and understanding of minority and Indigenous Peoples amongst the wider public, through human rights education and other suitable measures.

In order for the protections guaranteed by international law (see accordion below) to be invoked, minorities and Indigenous People must be able to claim minority or indigenous status. 

International instruments

International Covenant on the Elimination of Racial Discrimination (1965, Articles 5 and 7)

• General Recommendation 23 (paragraph 4)
• General Recommendation 27 (paragraphs 17-26)
• General Recommendation 29 (paragraphs rr – vv)
• General Recommendation 34 (paragraphs 61-66)

Convention on the Rights of the Child (1989, Articles 2 and 28-30)

• General Comment 11 (paragraphs 56-63)
• Day of General Discussion on the Rights of Indigenous Children (paragraph 19)

International Covenant on Civil and Political Rights (1966, Article 27)

• General Comment 23: The rights of minorities (Article 27) (Paragraphs 1-9)

International Covenant on Economic, Social and Cultural Rights (1966, Article 2 and 13)

• General Comment 13 (Paragraphs 6(b), 31 and 50)
• General Comment 20 (Paragraphs 10(b) and 22)

UNESCO Convention against Discrimination in Education (1960, Articles 1-5)

For further information, see p.28-31 of the Commentary on the Convention against Discrimination in Education (Daudet and Eisemann, 2005).

Regional instruments

• African Charter on Human and Peoples' Rights (1981, Articles 2 and 17)
• African Charter on the Rights and Welfare of the Child (1990, Articles 3 and 11)
• African Youth Charter (2006, Articles 2 and 13)
• European Convention for the Protection of Human Right and Fundamental Freedoms, Optional Protocol 1, and Optional Protocol 12, (1950, Article 14; Article 2 of the First Protocol and Article 1 of the Twelfth Protocol)
• European Social Charter (revised) (1996, Articles  7, 10 and 17, and Part V Article E)
• Charter on Fundamental Rights of the European Union (2000, Articles 14, 21 and 22)
• Additional Protocol to the American Convention on Human Rights, Protocol of San Salvador (1998, Articles 3, 13 and 16)
• Arab Charter on Human Rights (1994, Articles 3 and 41)

Non-binding

• American Declaration on the Rights of Indigenous Peoples (2016, Article 15)
• ASEAN Human Rights Declaration (2014, Articles 2 and 31)
• UNESCO Universal Declaration on Cultural Diversity (2001, Article 5)
• European Parliament Resolution 2017/2206(INI)

Indigenous

• ILO Convention 169 -Indigenous and Tribal Peoples (1989, Articles1,7 and 26 – 31)

For more information on ILO Convention 169 and the right to education, see p.48-55 of J.B. Henriksen Key Principles in Implementing ILO Convention No. 169 (2008).

Internationally, there is also the non-legally binding:

• UN Declaration on the Rights of Indigenous Peoples (2007, Articles 14-5,17 and 21)
• American Declaration on the Rights of Indigenous Peoples (2016, Article 15)

Note - provisions related to minority persons may also apply to Indigenous Peoples.

Minorities

There is no legally binding international treaty on minority rights equivalent to ILO Convention 169, however at the regional level, there are two that apply in Europe:

• European Charter for Regional or Minority Languages (1992, Articles 7 and 8)

For further information, see European Charter for Regional or Minority Languages Explanatory Report

• Framework Convention for the Protection of National Minorities (1995, Articles 12 - 14)

For further information, see Advisory Committee on the Framework Convention for the Protection of National Minorities: Commentary on Education under the Framework Convention for the Protection of National Minorities (2006)

Internationally, there is also the non-legally binding:

• UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992, Articles 2 and 4)

For further information, see the United Nations Guide for Minorities.

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For a comprehensive list of provisions in international law pertaining to minorities and Indigenous Peoples, see International Instruments–Minorities and Indigenous Peoples.

For the complete normative framework of the individual right to education, see International Instruments–Right to education.

Access

Murat Er v Denmark (2007)

Roma

Horváth and Kiss v Hungary (2013)

Lavida et al v Greece (2013)

Sampani et al. v Greece (2013)

Orsus v Croatia (2010)

D.H. v Czech Republic (2006)

Language

Catan et al v Moldova and Russia (2012)

Belgian Linguistics Case (1968)

Religion

Lautsi v Italy (2011)

Sahin v Turkey (2005)

Tengur v The Minister of Education and Another (2002)