Legal Indicators for Social Inclusion of New Minorities Generated by Immigration

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  • 1 Researcher at the European Academy of Bolzano, Minorities and Autonomies, Law Degree, LL.M. (University of Essex); currently doctoral candidate in Law (University of Graz).

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  • 1 European Commission — Proposal for a Council Act establishing the Convention on rules for the admission of third country nationals to the Member States, CO�I (97) 387,30 July· 1997, Explanatory Memorandun.

  • 2 Tampere European Council, Presidency Conclusions,15-16 October 1999, 5, para. 21. 3 PACE, Recommendation no. 1492 (2001) on the Rights of National Minorities, 23 January 2001. 4 PACE, order no. 568 (2001) on the Rights of National Minorities, 23 January 2001. 5 The PACE in its recommendation 1201(1993) on an Additional Protocol on the Rights of National Minori- ties to the European Convention on Human Rights, proposed the following definition: `... the expression 'national minority'refers to a group of persons in a state who: a) reside on the territory of that state and are citizens thereof (emphasis added); b) maintain longstanding, firm and lasting ties with that state; c) display distinctive ethnic, cultural, religious or linguistic characteristics; d) are sufficiently representative, although smaller in number than the rest of the population of that state or of a region of that state; e) are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language.' 6 ACFC, Opinion on Austria, adopted on 16 May 2001, ACFC/INF/OP/l/009, paras. 19-20, 34; ACFC, Opinion on Germany, adopted on 1 March 2002, ACFC/INF/OP/I/008, paras.17-18, 40; ACFC, Opinion on Ukraine, adopted on 1 March 2002, ACFC/INF/OP/l/010, para. 18.

  • 7 It is worth reporting a passage from Germany's reply to the ACFC on this point: `... [T]he objective of the Framework Convention is to protect national minorities; it is not a general human rights instrument for all groups of the population that differ from the majority population in one or several respects (ancestry, race, language, culture, homeland, origin, nationality, creed, religious or political beliefs, sexual preferences, etc.). Members of these groups are protected by the general human rights and - insofar as they are nationals - by the guaranteed civil rights.... The article-by-article approach would not just dilute the specific objective of the Framework Convention, i.e. the protection of national minorities; it would also entail the risk of creating first and second-class national minorities - that is, minorities that would benefit from the protection of all rights, and those who would be only granted selective rights.', GVT/COl'vl/IXF/OPIl(2002)008, no. 73. 8 The LISI project (January 2002-August 2003) was launched by the Department of Minorities and Autono- mies of the European Academy of Bolzano/Bozen, Italy· and co-financed by the EC (DG Employment and Social Affairs - Call for Proposals for Preparatory Actions to Combat and Prevent Social Exclusion -not/ 2001/014). The USI partners were: EURAC (European Academy of Bolzano/Bozen) (Applicant Organi- zation), ETC (European Training and Research Centre for Human Rights and Democracy - Graz) and the Aire Centre (Advice on Individual Rights in Europe - London). In addition there were two supporting partners: the Provincial administration of Bolzano/Bozen and IFIAS (Institute for International Assistance

  • and Solidarity - Brussels). A major publication, consolidating the main achievements and research findings, concluded the project's activities. See Roberta Medda-Windischer et al., Legal Indicatorsfor Sociallnclusion ofNew Minorities Generated by Immigration (Bolzano/Bozen, 2003).

  • 9 Emphasis added. 10 Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN doc. E/CN.4/Sub.2/394/Rev.1, 1977, para. 568. 11 Article 27 CCPR provides: 'In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.' 12 Emphasis added. 13 HRC, General Comment No. 23, Us Doc. HRI/GEN/1/Rev.l at 38 (1994), paras. 5.1-5.2.

  • 14 Asbjern Eide, Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, WGM, UN doc. E/CN.4/Sub.2/AC.5/2000/WP.l. For further refer- ence, see Asbjørn Eide, "Ihe Rights of'Old'versus'New' Minorities' in this volume. 15 Ibid. 16 WGM, Report on the Fifth Session, 24 June 1999, LTN Doc. E/CN.4/Sub.2/1999/2.

  • 17 Gabriela Rodriguez Pizarro, Special Rapporteur of the Commission on Human Rights, A/57/292, Human Rights of Migrants, Note by the Secretary-General, dated 9 August 2002.

  • 18 Convention relating to the Status of Refugees, adopted on 28 July 1651 by the UN Conference of Pleni- potentiaries on the Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of 14 December 1950, entered into force on 22 April 1954, UN, A Compilation of International Instruments, ST/HR/l/Rev.5 (Vol. I/Part 2), 638-54. 19 Rainer Munz and Rainer Ohliger, 'Immigration of German People to Germany: Shedding Light on the German Concept of Identity', 3 (6) The International Scope Review (2001), 60.

  • 20 For further reference see Joseph Marko /lutonomie und Integration. Rechtsinstitute des Nationalitåtenrechts im funktionalen liergleicb (Graz, Wien, Kom, 1995). 21 Rainer Baubock, 'The Integration of Immigrants', Report of the 7`" Meeting of the Joint Group of Special- ists on Migration, Demography and Employment, CoE, Strasbourg, 15-17 March 1994, CDMG(94) 25, para. 1.3. 22 Beate Winkler, Speech addressed at the ESC Conference on Immigration: The Role of Civil Society in Promoting Integration, 9-10 September 2002, Brussels. 23 Stephen Castles, 'The process of Integration of Migrant Communities', Expert Group Meeting on Popula- tion Distribution and Migration, Santa Cruz, Bolivia, UN/UNFPA, 1993; Miroslav Macura and David Coleman, 'International Migration: Regional Processes and Responses', UN Economic Commission for Europe, UN Population Fund, Economic Studies no. 7, New York and Geneva,1994, 41-76.

  • 24 Stephen Castles/The process of Integration of Migrant Communities', UN Department of Economic and Social Affairs, Population Division, Population Distribution and Migration, New York,1998, 247-65. 25 Raimondo Cagiano de Azevedo and Barbara Sannino, A European Research project on Migrants'Integra- tion', in Council of Europe, Measurement and Indicators ofintegration, Directorate of Social and Economic Affairs (Strasbourg, 1997). 26 Stephen Castles,'The process of Integration ...'. 27 Giovanna Zincone (ed.), Secondo Rapporto sull'integrazione degli immigrati in Italia, Commissione per le politiche di integrazione degli immigrati, Dipartimento per gli Affari Sociali, Presidenza del Consiglio dei Ministri (Bologna, 2000), 88. 28 Raimondo Cagiano de Azevedo, International Migrations as a Factor of Security and Cooperation in Europe and in the Mediterranean Region, Rome, Universita degli Studi di Roma, 'la Sapienza',1993. 29 Stephen Castles, "Ihe process of Integration ...'. 30 Patrick Thornberry, International Law and the Rights of Minorities (Oxford,1992), 4. 31 Ibid.

  • 32 Raimondo Cagiano de Azevedo and Barbara Sannino, A European Research Project...', 46. 33 Ibid, 45. 34 Council of Europe, Diversity and Cobesion: New Cballenges for the Integration of Immigrants and J1inorities (Strasbourg, 2000), 36-8. 35 Stephen Castles, "Ihe process of Integration ...'. 36 Rainer Baubock, The Integration of Immigrants ...', para3.l. 37 OJC 364 of 18 December 2000,1. 1. Article 5(1) (Fundamental Rights) of the Draft Treaty establishing the European Constitution provides: 'The Charter of Fundamental Rights shall be an integral part of the Constitution. The Charter is set out [in the second part of/in a Protocol annexed to] this Constitution.' CONV/528/03 - Draft of Articles 1 to 16 of the Constitutional Treaty, 6 February 2003.

  • 38 Communication from the Commission to the Council and to the European Parliament on a Community Immigration Policy - COM(2000)757. See also, European Commission, Proposal for a Council Directive concerning the status of third country nationals who are long-term residents - COM(2001) 127. 39 CoE, Measurement and indicators of integration, Directorate of Social and Economic Affairs (Strasbourg, 1997),190.

  • 40 An example of such a rating system is the IAS-Index (Institute of Advanced Studies - Vienna) which is constructed by measuring and quantifying the level of legal discrimination migrant workers and their families face in comparison to citizens of the host countries examined. According to this system, a group of experts evaluated and assessed relevant legal provisions on immigration awarding to the related indicators a number of points on the basis of their importance, with `zero' meaning complete openness for integration and 'one' extremely high obstacles. The lAS-Index adopted the following formula: Is = l-(Ir+lmw)/n(-2), with Is = Importance of a specific indicator, Ir = Importance of the indicator legal claim, Imw=Importance of the indicator minimum waiting period and n(-2) = Number of indicators (-2). The indicator legal claim and the indicator minimum waiting period have very important implications in almost all domains of the migrants' daily lives and, thus, are awarded more points than the other indicators, which are rated equally. For further reference, see Harald Waldrauch, Ein Inde.r der rechtlichen Diskriminierung, Institute of Advanced Studies, (Wien, 2001).

  • 41 References to time periods are based on empirical data available from EU member states with a focus on the data from the three regions examined (South Tyrol, Styria, London). 42 In the LISI project, the term TCNis used in all those cases where the whole target group (migrant workers, seasonal workers, asylum-seekers and refugees) is addressed, wbereas a distinction in wording is made when the situation described makes it necessary.

  • 43 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by General Assembly resolution 45/158 of 18 December 1990, entered into force on 1 July 2003, Uni. A Compilation of Intemational Instruments, ST/HR/l/Rev.5 (Vol. I/Part 2), 554-93. 44 European Convention on the Legal Status of Migrant Workers, adopted on 24 (November 1977. entered into force on 1 May 1983, ETS Not. 093.

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