Standard-Setting in the Field of Minority Rights: From Soft Jurisprudence to Hard Law?

By Emma Lantschner.

Published by The Diversity Collection

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Article: Print $US10.00
Article: Electronic $US5.00

In international discourse, reference is often made to “international” or “European standards” in the field of minority protection. In practice, it is very difficult to say what these standards are precisely and how they come into being. In the enlarging European Union, for instance, this issue is of particular relevance as it has to assess the degree of adherence of candidate countries to the political accession criteria, one of which is the respect for and protection of minorities. This paper sets out to show which role the monitoring mechanisms of bilateral and in particular, multilateral instruments play in the development of such a European standard within the field of minority protection. It shows that at the multilateral level the Advisory Committee on the Council of Europe’s Framework Convention for the Protection of National Minorities plays a central role in the development of standards even though a study of the opinions of the first two monitoring cycles makes clear that there is no “one” standard for each purpose and all countries, but a flexible continuum of commitments, from minimum standards, to developmental standards and best practice. The paper further argues that the soft jurisprudence of the Advisory Committee holds the potential to develop into hard law. It therefore suggests that the Advisory Committee takes a more normative approach when adopting thematic commentaries.

Keywords: Minority Rights, Council of Europe, Framework Convention for the Protection of National Minorities, Soft Jurisprudence, Standard Setting

International Journal of Diversity in Organizations, Communities and Nations, Volume 8, Issue 6, pp.129-138. Article: Print (Spiral Bound). Article: Electronic (PDF File; 584.299KB).

Emma Lantschner

Senior Researcher, Institute for Minority Rights, Bolzano, Italy

Born in 1975 in Italy, law degree at the University of Innsbruck/Austria (2000), doctorate in law at the University of Graz/Austria (2007); since 2000 researcher at the Institute for Minority Rights at the European Academy Bozen/Bolzano (Italy); since 2007 researcher at the Competence Centre for South Eastern Europe at the University of Graz (Austria); occasional contract-based cooperation with the Secretariat of the Council of Europe’s Framework Convention for the Protection of National Minorities; co-managing editor of the European Yearbook of Minority Issues and the online series European Diversity and Autonomy Papers; cooperating in the coordination of the Joint Master in European Integration and Regionalism and in the establishment of a Joint PhD Programme in Diversity Management and Governance at the University of Graz.

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