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HARALD CHRISTIAN SCHEU
CYIL 7 ȍ2016Ȏ
In its reaction to the third evaluation report the Czech government expressed
a certain opposition and disagreement with regard to such an activist concept of
minority protection and pointed out that the inclusion of foreigners under the
protection of the Framework Convention is not a legal obligation, but is based solely
on non-binding recommendations of the Advisory Committee.
49
The fourth evaluation report shows that the discussions between the Advisory
Committee and the Czech government on the inclusion of new minorities did not
lead to a solution, so far.
50
The Advisory Committee again insisted on a more flexible
approach towards non-citizens
51
and recalled its assumption that the strict exclusion
of non-citizens from the scope of the Framework Convention is not in line with
obligations of the State Party.
52
7. Conclusions
In this paper, we have been focusing on the protection of immigrant communities
as new minorities in Europe. We have briefly dealt with the problem of the distinction
between traditional national minorities and new minorities and different standards of
protection for members of traditional and new minorities. As one of the key aspects
we have identified the approach of international and European human rights bodies
to the issue of citizenship. In the light of international human rights protection the
citizenship requirement has become increasingly suspect. Only in rare cases may
a distinction based on citizenship be justified with respect to legitimate aims and the
principle of proportionality.
Any departure from the citizenship criterion, however, gradually blurs the
boundaries not only between the protection of citizens and foreigners, but also
between traditional and new minorities. This trend is most clearly documented
in the practice of the Advisory Committee of the Council of Europe, which was
established under the Framework Convention for the Protection of National
Minorities. The absence of an explicit definition of the term national minority in
the Framework Convention has been used by the Advisory Committee in order to
promote an activist approach to the inclusion of traditional and new minorities.
Immigrants should be granted national minority rights on the basis of an article-
by-article approach. Thus not only linguistic rights and minority education, but also
social inclusion in a broad sense, women‘s rights and children’s rights and the so-
49
GVT/COM/III(2012)002.
50
ACFC/OP/IV(2015)004.
51
The Advisory Committee took notice of the fact that in the meantime the Czech Republic had adopted
a new law on citizenship (zákon č. 186/2013 Sb., o státním občanství České republiky a o změně
některých zákonů) which permits Czech nationals to have dual or multiple citizenship. According to
the new regulation Czech citizens who obtain a foreign citizenship do no longer automatically lose
Czech citizenship.
52
ACFC/OP/IV(2015)004, para. 22-23.