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HARALD CHRISTIAN SCHEU
CYIL 7 ȍ2016Ȏ
4. New Minorities and the prohibition of discrimination
Beyond the problem of definition, there may be significant differences between
the members of traditional and new minorities with regard to the concrete legal
regulation of their protection. While the protection of traditional national minorities is
based primarily on the use of minority languages and education in minority languages,
for new minority these issues have only secondary importance. With regard to new
minorities issues of religious freedom prevail over the protection of language rights.
Conflicts between the majority population and new minorities, therefore, occur mainly
in the context of the application of religious rules, e.g. in public schools and in the
workplace. The Protection of new minorities, especially Muslim communities, is
therefore often associated with the so-called return of religion to the public space of
postmodern secular democracy.
13
When national bodies try to regulate the legal status
and protection of new minorities and to solve potential cultural conflicts
14
by legal
means they have to take into account the current interpretation of religious freedom.
While freedom of religion may serve as a basis for special rights of members of
new minorities, a more defensive concept of protection builds on the principle of
non-discrimination. The prohibition of discrimination, among others on the basis
of race, color and ethnicity, is one of the cornerstones of international human rights
protection and has been incorporated into a number of international conventions
and declarations. We may point at the authoritative General Comment No. 18
of 2006, in which the UN Committee on Economic, Social and Cultural Rights
interpreted the right to work as laid down in Article 6 of the International Covenant
on Economic, Social and Cultural Rights. The Committee conceived the right to
work exclusively as a right of everyone, i.e. a right belonging to both citizens and
foreigners.
15
In its Recommendation No. 30 of 2004 the UN Committee on the
Elimination of Racial Discrimination found that differential treatment based on
citizenship or immigrant status should be assessed as discrimination prohibited under
the Convention on the Elimination of All Forms of Racial Discrimination, unless
unequal treatment follows a legitimate aim and is proportionate.
16
In the context
of the general protection of human rights any distinction based on nationality is
deemed suspicious and may be justified only in exceptional situations.
17
From the perspective of specific minority rights, the UN Committee on the
Elimination of Racial Discrimination in 2006 very critically assessed the implementation
13
See, for example, RIESEBRODT, MARTIN.
Die Rückkehr der Religionen: Fundamentalismus und der
„Kampf der Kulturen“
(2
nd
edition), München: Beck, 2001.
14
See SCHEU, H. C. (ed.)
Migrace a kulturní konflikty
, Praha, 2011.
15
Committee on Economic, Social and Cultural Rights, General Comment 18, Article 6: the equal right
of men and women to the enjoyment of all economic, social and cultural rights, U.N. Doc. E/C.12/
GC/18 (2006).
16
CERD/C/64/Misc.11/rev.3 (2004), Discrimination against non-citizens.
17
DE SCHUTTER, OLIVIER.
Links between migration and discrimination
, Luxembourg, 2009, p. 59.