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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.