CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE STATUS OF NEWMINORITIES IN THE LIGHT OF THE FRAMEWORK… The citizenship requirement is of vital importance for the protection of national minorities and their members. While earlier international documents and current state practice insist that the status of national minority members may be granted only to persons who hold the citizenship of the State in which they live, human rights bodies are more benevolent towards minorities. In its general comment No. 23 regarding the interpretation of Article 27 of the International Covenant on Civil and Political Rights, 11 the UN-Human Rights Committee has contributed to a modification of the definition of national minorities. The Committee has emphasized that minority rights shall not depend on citizenship. The Committee believes that immigrants and even visitors with a relatively short residence may constitute a national or religious minority and invoke their minority rights under Article 27 of the Covenant. In a similar vein, the European Commission for Democracy through Law (Venice Commission) argued that it is in some cases problematic to link minority rights to citizenship. As an example, the Venice Commission mentioned the situation after the disintegration of multi-ethnic states, where members of ethnic minorities almost overnight lost the citizenship of the State in whose territory they had been living traditionally. According to the Venice Commission, these people should not be excluded from national minority protection in the newly established states on whose territory they are now located. 12 Recommendation of the Parliamentary Assembly of the Council of Europe No. 1492 (2001), on the rights of national minorities, appears somehow curiously in this context. In Article 11 of its recommendation the Assembly recognized that immigrant communities make up a specific category of minorities and that their protection should be governed by a special instrument of the Council of Europe. With regard to new migrant minorities the Parliamentary Assembly explicitly spoke of communities whose members have the nationality of the State in which they reside. On the other hand, the Assembly found that the Framework Convention for the Protection of National Minorities should not apply to those communities. In other words, the protection of persons belonging to traditional national minorities shall not be conditioned by their citizenship; the protection of members of new minorities, however, shall depend on the citizenship criterion. Such a paradox may lead to the impression that the anti-discrimination cat is somehow chasing its tail. We may summarize that the application of the citizenship requirement on traditional national minorities and new migrant minorities is not absolutely clear. Foreigners are sometimes considered to be members of traditional minorities. On the contrary, citizens may be members of new minorities.

11 General Comment No. 23: The rights of minorities (Art. 27), CCPR/C/21/Rev.1/Add.5. 12 Report on Non-citizens and Minority Rights adopted by the Venice Commission at its 69th plenary session (Venice, 15-16 December 2006), CDL-AD(2007)001-e.

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