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CYIL 7 ȍ2016Ȏ
THE STATUS OF NEWMINORITIES IN THE LIGHT OF THE FRAMEWORK…
University of Vienna). He is a member of the Council of the Government of the Czech
Republic for Human Rights (since 2013) and a member of the Czech Government’s
Legislative Council (since 2014). From 1997 to 2006 he lectured at the Department
of International Law and since 2006 at the Department of European Law of the Law
Faculty of Charles University in Prague. From 2005 to 2006 he served as Attaché for
European Affairs at the Austrian Embassy in Prague. He teaches and conducts research
in the fields of International and European Law and International Human Rights Law.
Since 2015 he has been a member of the Management Board of the European Union
Agency for Fundamental Rights.
1. Introduction
The legal protection of national minorities can be considered as a traditional
part of public international law. While in the premodern period the exercise of
political power in Europe was inevitably linked to the Roman-Catholic religion,
the process of reformation led to the creation of Protestant minorities in Catholic
territories and Catholic minorities in Protestant territories. The principle
“Cuius
regio, eius religio”
which was agreed by European rulers in the Peace of Augsburg
of 1555 offered a territorial solution to the legal problem of free exercise of religion
for parts of the population. The Peace of Westphalia of 1648 may be understood as
a more complex regulation of the status of religious minorities. Members of certain
Christian confessions were not only granted the right to emigrate to a territory ruled
by their own denomination but also to practice their religion as a minority religion
on a territory that was under the rule of an opposing Christian denomination.
At the Congress of Vienna, for the first time, issues related to both religious and
national minorities were negotiated. The participating states adopted rules concerning
the status of Jews as members of a distinct religious community and of the Poles whose
territory was divided between Prussia, Austria and Russia. Later peace treaties agreed
e.g.
at the Congress of Paris in 1856 and at the Congress of Berlin in 1878 further
demonstrated the relevance of international settlement of minority-related questions.
Several decades before general human rights were codified at the international
level, a comprehensive system of minority protection was created within the frame
of a new international organization, the League of Nations. That regime which was
built upon a number of bilateral treaties and unilateral declarations providing for
a material protection standard in favour of ethnic, religious and linguistic minorities
and their members. It also set up certain international procedures of protection.
Indeed, the Permanent Court of International Justice came to play an important role
in defining the relevant international legal standards of minority protection.
The protection of national and ethnic minorities was not included into the
Universal Declaration of Human Rights of 1948, and some politicians and lawyers
assumed that the new concept of general human rights for all individuals could replace