CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE STATUS OF NEWMINORITIES IN THE LIGHT OF THE FRAMEWORK… expulsion and extradition of foreigners or with the restriction of personal liberty of irregular migrants. 2 The link between the regulation of migration on the one hand and the prohibition of discrimination on the other raises very difficult questions. The prohibition of discrimination as laid down in numerous international conventions, national constitutions and the EU Charter of Fundamental Rights excludes unjustified, respectively insufficiently justified discrimination against persons, inter alia , on the basis of race, color and ethnic origin. Since the concept of international human rights protection is based upon the notion of everybody’s rights, foreigners shall not be discriminated against. In their relevant case-law the European Court of Human Rights and the European Court of Justice have repeatedly confirmed that European anti-discrimination law presupposes positive obligations of states in relation to immigrants. Such obligations are primarily focused on the individual. Nevertheless, given the fact that positive obligations have a collective dimension, they may also form the basis for the legal protection of immigrant communities as new minorities. The doctrine of international law distinguishes between traditional national minorities on one hand, and the new minorities on the other. 3 Both, new minorities and traditional minorities differ from the majority population with regard to objective criteria, such as e.g. ethnic origin, language, religion and culture, and subjective criteria, such as a feeling of solidarity within a given minority and a sense of shared identity. In individual cases it may be questionable to what extent objective criteria may serve as a corrective for a subjective decision, 4 but, in principle, when those criteria are met the existence of a minority as such is undeniable. New minorities may be distinguished from traditional national minorities by the fact that their relationship to the state in which they live, respectively the territory on which they live, is relatively short. As far as the recognition of traditional minorities is concerned, some international documents require a long-lasting bond between the minority and the state. 5 The Hungarian Minority Act stipulates that national 2 See, for example, the report of the Special Rapporteur on the Human Rights of Migrants of May 2015 (Doc. A/HRC/29/36). 3 See, for example, WOLFRUM, R. The Emergence of “New Minorities” as a Result of Migration. In BRÖLMANN, C., LEFEBER, R., ZIECK, M. (eds.) Peoples and Minorities in International Law , Nijhoff Dordrecht, 1993, pp. 153-66; NIEWERTH, JOHANNES. Der kollektive und der positive Schutz von Minderheiten und ihre Durchsetzung im Völkerrecht , Berlin: Duncker & Humblot, 1996, pp. 21 and 40; HILPOLD, PETER. Neue Minderheiten im Völkerrecht und im Europarecht , Archiv des Völkerrechts, 1/2004, pp. 80-110. 4 Already the case-law of the Permanent Court of International Justice on this issue was inconsistent. See PETRÁŠ, RENÉ. Menšiny v meziválečném Československu: právní postavení národnostních menšin v první Československé republice a jejich mezinárodněprávní ochrana . Praha: Karolinum, 2009. 5 See, for example, Article 1 of the Recommendation of the Parliamentary Assembly of the Council of Europe 1201 (1993).

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