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Rationalizing The Differentiation Between ‘New’ And ‘Old’ Minorities? The Role Of The Margin Of Appreciation Doctrine In Determining The Scope Of Protection Of Minority Rights

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Chapter Summary

The purpose of this paper is to explore the role of the margin of appreciation doctrine in determining the level of protection aff orded to minority rights in relation to the often cited distinction between so-called 'old' minorities and 'new' minorities. The paper will start with discussing the nature of the margin of appreciation doctrine, and its application in clarifying indefinite concepts of minority rights and determining specific positive obligations to give effect to rights of minorities. The catalogue of minority rights may be distinguished between four generations of rights. The first generation rights relate to existential rationale of minority groups. The second generation rights refer to the rule of anti-discrimination and equality rights. The third-generation rights are the category of rights that yield obligations to protect and foster minority identity. The 'fourth generation' rights relate to the full and effective participation of minorities in cultural and social life.

Keywords: foster minority identity; minority rights; new minorities; social life



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