It is no secret, however, that issues of discrimination are at the forefront of discourse and daily reality for migrants, particularly in the current European (and other ) context where immigrants often play a scapegoat role and are confined by law policy and practice by public and private agents to the lowest social strata of societies.

The very recent and to large extent unprepared for growth of a multicultural dimension in many countries of immigration, has had as a consequence the growth or entrenchment of phenomena of racism, xenophobia and discrimination, both institutional and private. These have often which have as primary targets immigrants and refugees/asylum seekers. Often such categories are lumped together, in law, public discourse in the media and in administrative practices as one and the same and colored with negative connotations without any meaningful reference to rights and specificity of each individual and group.

It is thus crucial to use the international and national instruments, which often exist, including in very advanced formulation, on paper but are not applied or openly disregarded in practice and policy, to assess and address discrimination against migrants.

The UN International Convention For the Elimination of Racism and all Forms of Racial discrimination is one of the oldest human rights instruments, created and supported by UN States primarily but by no means not exclusively in the framework of the struggle against apartheid. It constitutes the basic document against all froms of discrimination against individuals and confers obligations on States to eliminate discrimination on an individual basis on all grounds. It also declares the legitimacy affirmative action to redress unbalance in the enjoyment of basic rights by individuals belonging to discriminated groups, as a lawful means to combat discrimination, as long as it openly aims to redress such unbalances and it is temporary in nature (i.e. as long as the discrimination is redressed)

The Council of Europe’s Framework Convention on National Minorities entered into force in 1998. It is the first international legally binding instrument which is devoted to the protection of minorities as such, including from discrimination. Its enactment found its political and legal basis on the 1993 Vienna Summit of Heads of State and Governments and draws on the texts if the Concluding Document of the Copenhagen Human Dimension meeting of 1990 of the Conference for Security and cooperation in Europe and the 1992 UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious or Linguistic Minorities. The Convention requires implementation through national law by adhering states and imposes legal obligations on them. It is rather vague on the justiciability of the rights and obligation imposed by the Convection as this is eventually left to each individual State legal system. The Convention does not introduce full collective rights for groups, by it reaffirms individual rights of people belonging to groups identified as national minorities.

From the discrimination angle, it has be noted that the Convention protects individual freedom of expression without discrimination in access to the media and in the use of language. Also it imposes obligations on State parties to promote equality in access to education at all levels without discrimination and in access to public, cultural and economic life (art 9, 10, 15) Article 22 clause states that the Convention may not be used to limit higher protection standards deriving from other international or domestic instruments.

It is one of if not the most recent and comprehensive of international standards on national minorities and its adoption is becoming obligatory for applicants to become Member States of the Council of Europe. The importance of this instruments is linked to the fact that seldom in the body of international, global and regional, human rights instruments, rights, including to non discrimination are considered in the for of group rights or are close to be considered in that way. This may be of particular relevance to the subject of this analysis as migrant communities affirm their presence within hosting countries and wish to continue preserving the possibility for their members to enjoy specific social and cultural rights which derive from belonging to a specific community, without fear of discrimination on racial, ethnic, linguistic or other grounds.

Notoriously there exists no legally accepted definition of minority in international law, nor is it widely accepted which elements make a group of people bound by common characters such as racial, ethnic or national origin a minority. Even more cogently, it is politically charged the issue on whether and when a group of people arrived together or individually in a country stop being simply a group of migrants and become a minority. This lack of clear definition opens the way for self definition by individual and groups and thus claims to protection afforded by this and other instruments for the protection of minorities. Some acceding states have tried to stop such self definition by excluding migrants from interpretation of the Convention at the time of ratification. However, the doctrine believes that the self-identification principle, widely accepted in the UN and other international emits should be applied also in interpreting this instrument.

Still within Council of Europe remit and mandate operates the European Commission against Racism and Intolerance (ECRI) established after the 1993 Vienna Summit. It assesses the effectiveness of a range of measures including legal, policy measures taken by Council of Europe Member States to combat racism, xenophobia and intolerance.

On EU instruments on discrimination, including against third-country nationals and migrants, please refer to the subtopic summary on EU and discrimination.

Analysis provided by Antonella C. Attardo PhD (History of Law), Italy.