ACFC/56DOC(2016)001
should be regarded flexibly and that distinctions in the treatment of otherwise similar
groups based solely on the length of their residency in the territory can be unjust.51
d) Territoriality
32.
A number of states parties have also applied territorial criteria for the identification
of rights holders under the Framework Convention, establishing that minority rights may
only be enjoyed within specific areas. The Advisory Committee has argued that flexibility
should be applied and that persons belonging to a national minority who live outside such
areas should not be disproportionately disadvantaged.52 In particular the fact that only some
rights (that is Articles 10(2), 11(3) and 14(2)) allow for territorial limitations implies again
that the applicability of other rights should not in principle be restricted to certain regions.
The Advisory Committee has indicated on a number of occasions that this approach is in line
with Article 29 of the Vienna Convention on the Law of Treaties which determines that a
treaty is binding in respect of the state party’s entire territory unless a different intention is
ascertained. In addition, territorial limitations may constitute an a priori exclusion of persons
belonging to national minorities from the scope of application which is incompatible with
the principles contained in the Framework Convention.53
33.
The Advisory Committee has further criticised situations in which imposed
differentiations between members of a group based on territorial features lead to the
weakening of a group and, as a result, to the reduced access to rights for persons belonging
to that national minority.54 It has in particular argued that demographic changes over time
must be taken into account.55 Increased mobility in many countries has resulted in a high
number of persons belonging to national minorities moving from areas of their traditional
settlement to other regions that offer more favourable economic conditions or educational
opportunities, such as industrialised areas or urban centres.56 While residence in a specific
area might thus be conducive to the more effective enjoyment of some minority rights, it
must not result in the arbitrary denial of the enjoyment of all minority rights.57
e) Substantial numbers
34.
Also linked to the territorial criteria is the notion of “in substantial numbers”, as
found in Articles 10(2) and 14(3) and in Article 11(3) (see also Part VII). As with other criteria
contained in these articles, various interpretations by states parties have been made. In
some cases, the term ‘compact settlement’ has been used to define the specific rights
holders.58 While acknowledging that it may be more problematic to ensure access to some
minority rights for persons belonging to national minorities who live dispersed throughout
the country, the Advisory Committee has pointed out repeatedly that their recognition as
national minorities and their access to minority rights in general must not be impeded
through the use of numerical criteria. It has expressed its deep concern, for instance, when
51. See Third Opinion on Austria. See also Fourth Opinion on Denmark, where Roma are not recognised as
national minorities with the argument that they “have no historical or long-term and unbroken association with
Denmark”.
52. For instance, Third Opinion on the Slovak Republic.
53. See, for instance, First Opinion on Denmark and First Opinion on Italy.
54. See Second Opinion on Austria with regard to the differentiation between Burgenland Croats and Croats.
55. See, for instance, Fourth Opinion on the Slovak Republic.
56. See Third Opinions on Finland and Germany.
57. See, for instance, consecutive Opinions on Denmark, Italy and Portugal.
58. See, inter alia, First State Reports submitted by Austria, Azerbaijan and Germany.
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