CYIL vol. 7 (2016)

217

CYIL 7 ȍ2016Ȏ

THE STATUS OF NEWMINORITIES IN THE LIGHT OF THE FRAMEWORK…

On many occasions, the Advisory Committee has been criticizing efforts by

States Parties to exclude new minorities from the protection under the Framework

Convention and has called such policy incompatible with the obligations under the

Framework Convention. By using such broad interpretation the Advisory Committee

has got into direct conflict with some States Parties which preferred a rather

conservative approach to the definition of the term national minority and insisted e.g.

on the condition of long-term relations with the state, respectively with the territory

in which national minorities exist. Relatively sharp exchanges between the Advisory

Committee and the German government have shown two different philosophies of

national minority protection.

In its initial report on the implementation of the Framework Convention

Germany recalled that the definition of a national minority includes, inter alia, the

criterion of citizenship and long-term settlement in Germany. Therefore in Germany

the Framework Convention was to be applied to the Danish, the Lusatian Serb, the

Friesian and the Roma minorities. However, the Advisory Committee in its first

evaluation report

noted that in 2000 there were more than seven million foreigners

living in Germany and that some immigrant communities counted more than

a hundred thousand members. The Advisory Committee, therefore, recommended the

inclusion of the new minorities into the protection under the Framework Convention.

According to an article-by-article approach Germany should consider extending

protection to minorities that were not yet officially recognized on the national level.

On this challenge Germany responded by recalling that the Framework

Convention does not contain a legally binding definition of a national minority.

Germany further pointed out that with regard to its concept of a national minority

it had submitted a unilateral declaration on accession to the Framework Convention

and that not a single State Party had raised any objection to this definition. Moreover,

the wording of Germany’s unilateral declaration was in line with similar definitions

which other States Parties submitted on accession to the Framework Convention.

At a conceptual level, Germany stated that the Framework Convention is not

a tool for the general protection of human rights and that, therefore, it does not

guarantee the rights of all groups of the population that differ from the majority

based on some objective criteria, such as race, language, culture, national origin,

citizenship, faith, political beliefs or sexual preference. According to Germany, the

protection of the Framework Convention shall apply only to a narrowly defined

concept of national minorities. With regard to the recommended article-by-article

approach the German government explicitly noted that such a method is “not likely

to lead anywhere”.

ACFC/SR(2000)001.

ACFC/INF/OP/I(2002)008.

GVT/COM/INF/OP/I(2002)008, pp. 4-6.