within the jurisdiction of a State party, including,
inter alia, non-permanent residents, migrant
workers and even visitors.2 The former UN
Working Group on Minorities (replaced in 2007
by the UN Forum on Minority Issues) noted that
provisions of the UNDM were inspired by article
27 and thus may apply to non-citizens as well
(Eide 2001, paragraph 9).
Countries have some justification for taking
greater positive measures for certain minority
groups rather than others. This is typically measured by the length of residency of the minority
group. Some minority groups have been historically resident in a country, while others may
have arrived more recently as immigrants,
migrant workers or refugees. More recently
arrived groups are entitled, at a minimum,
to non-discrimination and to practice freely
their culture, language or religion. For
example, immigrant groups may form their own
community organisations and speak their own
language without interference. Historically
resident minorities often make further claims for
positive measures, such as additional resources
for education or for political participation. A State
should provide access to primary education for
all children, including migrants and refugees.
However, historically resident minorities may
have stronger claims for positive measures by
the State, such as public funds for education
in the child’s mother tongue. The former UN
Working Group on Minorities has suggested:
A key question is at what point the ‘new’
minority becomes entitled to increased positive measures? In considering this transition, it is
important to determine whether a group’s lack of
full ‘minority’ status is due to provisions that are
unduly restrictive and discriminatory. Other relevant factors include the population size of the
minority community and their corresponding
entitlement to public resources; and the practicalities of providing positive measures (e.g. if
the community is territorially concentrated this
may facilitate measures or if the costs are low the
State may be more willing to take further steps
in fulfilling rights even for newly arrived groups).
At the regional level, the Advisory Committee of
the Council of Europe Framework Convention
for the Protection of National Minorities (FCNM)
takes the approach that the FCNM does not
necessarily apply in its entirety to all ‘new’ minorities, but that certain provisions (e.g. article 6)3
should be applied on an article-by-article basis,
where appropriate.
Key Messages
Minorities do not have to be citizens to
claim basic minority rights
Historically resident minorities may have
claims to greater positive measures than
more recently arrived minorities
The best approach appears to be to avoid making
an absolute distinction between “new” and “old”
minorities by excluding the former and including
the latter, but to recognize that in the application
of the Declaration [on Minorities] the ‘old’ minorities have stronger entitlements than the ‘new’.
(Eide 2001, paragraph 11)
UN Human Rights Committee, General Comment No. 23: The Rights of Minorities (Article 27), CCPR/C/21/Rev.1/Add.5, paragraph 5.1.
2
FCNM article 6.1: The Parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding
and co-operation among all persons living on their territory, irrespective of those persons’ ethnic, cultural, linguistic or religious identity, in particular in the fields of
education, culture and the media. 6.2. The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination,
hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.
3
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