the Polish Nationality Case, the Permanent Court of International Justice
held that any inhabitant who differed from the majority of the population
in race, language or religion was a minority. Furthermore, an individual is
to be considered a minority only if he or she belongs to a linguistic,
religious or ethnical group which is less than fifty percent of the
population of the country.62 Hence, the Malay community in Thailand is a
minority under Article 27 because it belongs to a linguistic (Yawi),
religious (Islam) and ethnical (Malay) group that amounts to less than fifty
percent of the population in Thailand.
In order for a person to claim a violation under Article 27, the individual
has to first prove objectively that he or she is a member of a linguistic,
religious or ethnic minority.63 An individual must maintain a connection
with a minority group through the use of its language (or religion or
culture).64 Accordingly, for one to prove objectively that he or she is a
member of the Malay-speaking minority in Thailand, one would have to
show at the very least that Yawi is one’s primary language, or that Yawi is
a major component of his or her personal or family life.65
66 The case of Ominayak v Canada depicts that Article 27 does not impose
a positive obligation on the state to provide public financial assistance to
establish institutions for minorities; it merely imposes an obligation on the
state not to interfere with a minority’s private language use, religious
practices and cultural expression.67 This means that minorities have no
right to demand the implementation of positive measures or assistances
from the state.68 Essentially, in terms of Article 27 of the ICCPR, there is a
growing consensus that this probably includes rights to instruct privately
minority children in their own language, free from state restrictions.
However, the government is allowed to ensure that the private institutions
comply with the general educational standards and that some knowledge of
the official language is taught, without any obligation on the state to
provide financial assistance.69