Protection of cultural rights of national minorities: critical analysis of the Council of Europe legal framework under the capabilities approach

The dynamics characterizing the coexistence of numerous cultural systems within the European continent have been put under the test with increasing globalization, resulting in unprecedental scale and pace in the movement of people. Besides positive outcomes, these phenomena endangered the existence of grass-roots cultures of groups in vulnerable positions, including the national minorities. The challenges that minority groups face are not only triggered by counteractions from majority groups, state-driven resistence and growing fundamentalism, but also by modern mass-culture driven unification. That all require support for sustainable development of minority cultures. As a human rights organization with jurisdiction over 47 states, characterized with diverse cultural profiles, the Council of Europe, is the agent expected to develop the effective solution for the protection mechanism. This research examines the Council of Europe legal framework as to its capacity to provide effective protection to cultural rights of national minorities. This question is approached from two perspectives. The legal entitlements and their normative scopes are examined based on the analysis of the four leading Council of Europe conventions, two of which are specifically dedicated to cultural rights, one to human rights and one is specific to minority rights. The research deconstructs the good practices and standards, including the requirements to the domestic legal frameworks and policy instruments, posed by the Council of Europe to ensure effective protection of cultural rights of national minorities nationally. The convergencies between invoked rights are examined under capability theory to establish the fertile functions facilitating the cultural capabilities of the rights-holders, including in cases when such fertile functionings are used by the implementing bodies to cover the legislative lacunae. The analysis is conducted using historical, contextual, semantic and teleological interpretations of legal acts, based on the travaux preparatoires to the primary regulatory sources and the implementation practice, based on reports, country opinions, and the ECtHR case-law. The research determines strategy for the lex ferenda and future cultural policy frameworks. The thesis examines the changing approach of the Council of Europe to safeguard the uniqueness of the cultural identities of national minorities internationally and within the States domestic systems, and examines how it correlates with the European identity concept and the value systems that constitute the corner stone of the Council of Europe statutory system