CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ THE STATUS OF NEWMINORITIES IN THE LIGHT OF THE FRAMEWORK… On many occasions, the Advisory Committee has been criticizing efforts by States Parties to exclude new minorities from the protection under the Framework Convention and has called such policy incompatible with the obligations under the Framework Convention. By using such broad interpretation the Advisory Committee has got into direct conflict with some States Parties which preferred a rather conservative approach to the definition of the term national minority and insisted e.g. on the condition of long-term relations with the state, respectively with the territory in which national minorities exist. Relatively sharp exchanges between the Advisory Committee and the German government have shown two different philosophies of national minority protection. In its initial report on the implementation of the Framework Convention 25 Germany recalled that the definition of a national minority includes, inter alia, the criterion of citizenship and long-term settlement in Germany. Therefore in Germany the Framework Convention was to be applied to the Danish, the Lusatian Serb, the Friesian and the Roma minorities. However, the Advisory Committee in its first evaluation report 26 noted that in 2000 there were more than seven million foreigners living in Germany and that some immigrant communities counted more than a hundred thousand members. The Advisory Committee, therefore, recommended the inclusion of the new minorities into the protection under the Framework Convention. According to an article-by-article approach Germany should consider extending protection to minorities that were not yet officially recognized on the national level. On this challenge Germany responded by recalling that the Framework Convention does not contain a legally binding definition of a national minority. 27 Germany further pointed out that with regard to its concept of a national minority it had submitted a unilateral declaration on accession to the Framework Convention and that not a single State Party had raised any objection to this definition. Moreover, the wording of Germany’s unilateral declaration was in line with similar definitions which other States Parties submitted on accession to the Framework Convention. At a conceptual level, Germany stated that the Framework Convention is not a tool for the general protection of human rights and that, therefore, it does not guarantee the rights of all groups of the population that differ from the majority based on some objective criteria, such as race, language, culture, national origin, citizenship, faith, political beliefs or sexual preference. According to Germany, the protection of the Framework Convention shall apply only to a narrowly defined concept of national minorities. With regard to the recommended article-by-article approach the German government explicitly noted that such a method is “not likely to lead anywhere”.

25 ACFC/SR(2000)001. 26 ACFC/INF/OP/I(2002)008. 27 GVT/COM/INF/OP/I(2002)008, pp. 4-6.

217