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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.)