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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).