CYIL Vol. 7, 2016

HARALD CHRISTIAN SCHEU CYIL 7 ȍ2016Ȏ the old notion of specific group rights. Indeed, the old system of minority protection as established under the League of Nations was declared obsolete. However, it turned out that legal minority protection was not to be replaced by human rights, but it has to be rather understood as an integral part of human rights law, although, with a view to their specific historical, cultural and political experiences, states traditionally apply very different, more or less restrictive approaches towards the minorities living on their territories. It was not before the end of Cold War that especially European states agreed to adopt new regional standards of national minority protection. On a political level, declarations of minority rights were adopted by the Conference on Security and Cooperation in Europe and the United Nations. The Council of Europe drafted two relevant conventions, namely the Framework Convention for the Protection of National Minorities and the European Charter for Regional and Minority Languages. The competent monitoring bodies established by those instruments have very significantly contributed to the definition of protection standards. One of the main questions of international minority protection relates to the definition of national minorities. In the 20 th century, this crucial issue has been dealt with by the Permanent Court of Justice, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, the UN Human Rights Committee and also by the Advisory Committee on the Framework Convention on the Protection of National Minorities. Although past studies have pointed at some common approaches and best practices, in public international law there has not yet been adopted a legally binding definition of the term “national minority”. In this contribution we will focus on the status of immigrants through the prism of the international legal protection of national minorities. In particular, we will look into the current interpretation of the term “national minority” in the light of the Framework Convention and analyse to which degree new migrant communities as “new minorities” in Europe may claim protection as national minorities. 2. Migration and minority protection The protection of the rights of migrants is one of the most important problems of contemporary human rights law. 1 International monitoring mechanisms are devoting significant attention to this issue. We may point at the growing number of cases in which the European Court of Human Rights has to deal with the transfer of asylum seekers under the Dublin mechanism of the European Union, with the 1 In the context of universal human rights protection, Hannah Arendt had already paid significant attention to the protection of refugees, migrants and persons without citizenship. She pointed at the weakness of the concept of human rights compared to the concept of civil rights of citizens. See ARENDT. H. Elemente und Ursprünge totaler Herrschaft , München: Piper, 2000, pp. 559-595. (Original English version: ARENDT, H. The Origins of Totalitarianism , New York, 1951.)

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