Minority identity in the making? Conceptualization and operationalization of national and ethnic minorities in the case law of the European Court of Human Rights

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AbstractIt is well known that the European Convention on Human Rights aims to remedy violations of individual human rights, i.e., it is not an instrument for the protection of minorities. However, the European Court of Human Rights has the potential to protect minority communities indirectly by interpreting Convention rights in the context of non-discrimination. This judicial role cannot be overestimated since ethnic and national tensions are crucial social problems of our time that can be resolved peacefully by legal means based on a desirable European consensus. However, for this to happen, it is first necessary to identify what a minority is (conceptualization) and who belongs to a minority group (operationalization). Through the analysis of selected cases, this article shows how far the Court has gone on this path and what major elements of conceptualization and operationalization can be identified in its jurisprudence. Shortcomings and missed opportunities in the Court's reasoning will also be pointed out. With respect to conceptualization, we claim that the theoretical concept of a minority can implicitly be identified in the Strasbourg case law, with minority identity as its central element. In accordance with this, the main method of operationalization for the Court is self-identification, along with the (often explicit) acceptance of the objective criteria of minority membership.