In a country where different ethnic groups，religions and languages exist，to effectively ensure the enjoyment of human rights by ethnic，religious and linguistic minorities and their members is a necessary condition for the country to universally realise human rights. Therefore，while international human rights law stipulates human rights standards for all human beings and attempts to achieve universal realisation of human rights in the whole world，it also provides for the concept of minority in order to make special arrangement for the realisation of the human rights of minorities. The reason why it is necessary for international human rights law to do so is that those minorities，for various reasons，may be or actually are subject to discrimination and unfair treatment in their countries so that they are unable to enjoy human rights to the same extent as other individuals in their country. In other words，The reason why international human rights law stipulates the concept of minority is not to give minorities certain privileges，but to enable them to enjoy human rights to the same extent as other individuals in their country.

The international effort of protecting the rights of minorities has a long history. As early as in the 17th century，there already emerged international treaties which contained provisions of mutually protecting the ethnic minorities living in one country but having the same national origin as the majority in another country. The Vienna Treaty signed between the Hungarian king and the Crown Prince of Transylvania in 1606 is an example. At the Paris Peace Conference after the First World War，some states once proposed to include the protection of ethnic minorities into the Covenant of the League of Nations，which did not succeed due to the disagreement among the majority of participating states. Nevertheless，a number of European states singed some bilateral treaties concerning the protection of the rights of minorities. Some of those treaties provided that the performance of the obligations of protecting the rights of minorities should be put under the supervision of the League of Nations. The establishment of the United Nations in 1945 signified a new stage in the construction of the international system of human rights protection. The United Nations and its special agencies have afterwards adopted a series of international human rights instruments for protecting the human rights of minorities，among which the most important are：Convention for the Prevention and Punishment of the Crime of Genocide（1948），Convention against Discrimination in Education（1960），International Convention on the Elimination of All Forms of Racial Discrimination（1965），International Covenant on Civil and Political Rights（1966），and Declaration on the Rights of Persons Belonging to National or Ethnic，Linguistic and Religious Minorities（1992）. In its first session，the United Nations Commission on Human Rights decided to establish the Sub-Commission on the Prevention of Discrimination and Protection of Minorities，which consisted of independent experts，to examine and review issues relating to the protection of minorities. In addition，some regional international organizations have also paid much attention to the protection of minorities. It is fair to note that，in the contemporary world，special arrangements for realizing the human rights of minorities not only are a good wish，but also have been put into effect. Nevertheless，the progress of norm-setting at international level in this regard is not satisfactory. Until now，no single international human rights instrument has ever provided the rights of minorities in a comprehensive way，and a universally accepted concept of minority has not come into being，either.

Within the UN framework，International Covenant on Civil and Political Rights was probably the earliest one that provides for the concept of minority. Article 27 of the Covenant stipulates that “［i］n 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”. In accordance with this article，it is maybe noted that “minority” in international human rights law refers to a group of person who are numerically smaller to the rest of the population in the country and whose members share common ethnic，religious and linguistic features. However，some other formulations of the concept of minority can be found in other international instruments. For instance，the Declaration on the Rights of Persons Belonging to National or Ethnic，Linguistic and Religious Minorities adopted by the United Nations General Assembly in 1992 is an important international instrument worked out by United Nation specifically for the protection of minorities. In its formulation of the concept of minority，the Declaration added a term “national” before “ethnic，religious or linguistic minorities” used in the International Covenant on Civil and Political Rights. This augmentation did not substantially change the concept of minority as mentioned above，it however has given rise to various interpretations as to what kind of persons are covered by the concept of “minority”. In fact，the term “minority” have been formulated differently in international and some regional human rights instruments. For example，the term used in the Convention against Discrimination in Education adopted by UNESCO is “national minorities”（Article 5（1）（c）），in International Convention on the Elimination of All Forms of Racial Discrimination by UN Generally Assembly it is “racial or ethnic groups”（Article 1（4）），in European Convention of Human Rights it is also “national minority”（Article 14）. The fact that there are inconsistent formulations of “minority” has brought some confusions into international human rights theories and practice. For example，there has been much debate with respect to whether “national minorities” should be included in the concept of “minority”. Some states and scholars are positive in this respect，while some others are not. In the opinion of the UN Commission on Human Rights，“national minority” means a higher starting point and would exclude those minorities that will never become national minorities. In addition，there are many obscurities with respect to how “minorities” can be determined and identified.

Mr. Francesco Capotorti，the UN Special Rapporteur appointed by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities，defined “minority” in his report submitted in 1977 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 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”. This definition uses five characteristics to determine “minority”：1.Minority is a group numerically inferior to the rest of the population of a State；2.The group is in a non-dominant position；3.The members of the group are nationals of the State；4.The members of the group possess ethnic，religious or linguistic characteristics differing from those of the rest of the population；and 5.The group shows，explicitly or implicitly，the desire of preserving their culture，traditions，religion or language. In the ensuing debates of the definition of minority，the first four characteristics are categorized as the objective standards in determining a minority，or the objective elements for constituting a minority，while the fifth characteristic is regarded as a subjective standard or subjective element. This definition proposed by Mr. Capotorti was sent to States for consultation. The feedbacks from some States and various forums concerning the protection of the rights of minorities made it clear that there have been more or less different opinions with respect to those subjective and objective standards and elements.

With respect to the subjective standards in determining a minority，the opinions are to a large extent unanimous. In accordance with those opinions，the minority groups are groups that exist on the preconditions of cultural identity，the determination of the existence of a minority group therefore has to be based on the question of whether the members have the subjective desires to preserve their characteristics，to continuously exist as groups with characteristics，and not to be assimilated by other social groups. It is worth noting that this subjective criterion was in fact adopted by the Indigenous and Tribal Peoples Convention（ILO Convention No. 169）as one of the criteria for determining the indigenous people within the category of minority. The Convention clearly stipulates that “［s］elf-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply”. However，the respect of subjective criterion is not free from problems. For instance，should the subjective desire of self identity be expressed by the minority group themselves or by other institutions such as the State in which they reside？In what way that self-identity may be expressed？The question of who identifies minority has great significance in practice. Some people might make falsification in order to obtain the identity of minority memberships. Some governments might not acknowledge some people as minority in order to evade the responsibility of protecting the rights of minorities. Those problems remain to be solved in a consistent and clear way.

The objective criteria for determining minority are more complicated than the subjective criteria. There is no controversy over the criteria that minority groups should be numerically inferior to the rest of the population of a State and they should possess ethnic，religious or linguistic characteristics that different from others. The question is that how much population the minority group should have in order to be regarded as constituting a minority？Is the numerical inferiority of minority means inferior to the population of the whole territory of the State or just inferior to that in a certain geographical sphere？With respect to the ethnic，religious or linguistic characteristics of minority groups，there is also the problem that who should determine and identify those characteristics. Should it be done by the government of the State they reside in？The Human Rights Committee established under the International Covenant on Civil and Political Rights issued General Comment No. 23 on Article 27 and stated that “［t］he existence of an ethnic，religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria”. In accordance with this comment，the identification of the characteristics of minority groups is not subject to the State they reside in. Instead，those characteristics should be established by objective criteria. Then what are those objective criteria？

The criterion that minority should be in a non-dominant position appears prima facie reasonable. The establishment of this criterion is based on a presumption that the majority in the society usually constitute the dominant force and in face of the majority dominance，there must be a special arrangement and special protection for the minorities in order to make the minorities enjoy their rights on the equal footing with the majority. It must be admitted that this presumption is sustainable and compatible with objective facts. The problem is，however，that the real social life is very complicated. We evidenced an exactly opposite situation in the past South Africa，where the case was not the majority dominating the minority，instead，it was the numerically inferior group dominating the numerically superior group. As a matter of fact，due to political，economic and other reasons，it is not rare for the minority group to dominate the majority，as in the cases of foreign invaders dominating the native people and the colonists dominating the colonial people. Those are examples of domination of the majority by an ethnic，religious or linguistic minority.

The criterion that members of minority groups should be nationals of the State in which they live，that is they possess the nationality or citizenship of that State，is both advisable and inadvisable. It is advisable for the reason that only when the members of the minority group possess the nationality or citizenship of the State in which they live，can the legal relationship between them and the State be established，and the protection of their rights by the law of that State can be taken for granted. Otherwise，States would have no legal obligations to recognize and protect their rights. However，this criterion is apparently incompatible with，or even in contradiction to，international human rights norms. While the International Covenant on Civil and Political Rights obliges those States in which minorities exist not to deny the right of minorities to their culture，religion and language（Article 27），it at the same time also requires State parties respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant，without distinction of any kind，including national origin（Article 2（1））. In accordance with this provision，State parties undertake the obligation to respect and to ensure to all individuals within its territory and subject to its jurisdiction，including members of minority groups，the rights recognized in the Covenant，regardless of their nationalities. The only exception is that State parties are entitled not to recognize the rights of non-nationals to take part in election and have access to public service（Article 25）.

The clarification of the concept of the minority is the basis on which the standards of protecting the rights of minorities can be made. Much has been done and achieved in this regard，many issues however still remain to be studied and solved. It seems that it’s going to take a long time until a universally accepted concept of minority may come into being.

（Translated by Sun Shiyan）