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The Framework Convention for the Protection of National Minorities
Unlike the ECHR that contains only individual human rights relating to linguistic minorities, the Framework Convention for the Protection of National Minorities (Framework Convention) contains both individual human rights protecting linguistic minorities and specific linguistic minority rights. It can be justifiably argued that the Framework Convention to a degree embodies a two-pillar minority language protection system with individual human rights (such as prohibition of discrimination on the basis of language505 and freedom of expression506) on one hand and specific or special minority language rights on the other.
It is interesting to note that Framework Convention protects at least four specific special minority language rights. First, article 4 imposes a positive state duty to ensure equality in fact and in law. Equality in fact would entail considering the situation of linguistic minorities within a state and the use of affirmative action to bring vulnerable and disadvantaged linguistic minorities on a substantive equal507 level as the rest of the population. This position was confirmed by the Advisory Committee’s opinion on Austria508 which established that special measures were necessary to preserve the identity of a very small group. The net effect of affirmative action is to eliminate the enduring effects of past discrimination and allow for a measure of differential treatment aimed at substantive equality. If article 4 is used correctly, it can potentially lead to the protection minority language rights.
Second, articles 5 and 6 protect the rights existence and identity of national minorities. It specifically obliges states to be tolerant to, take measures and promote the conditions necessary to promote linguistic diversity. One of the components of identity also specifically protected by article 11(1) of the Framework Convention is the right of every person belonging to a national minority to use his or her surname (patronym) and first name509 in their minority language and the right to official recognition of such names.510 The right to identity is one of the bedrocks to the protection of minority language rights511 because the aim of linguistic minority protection is to enable linguistic minorities to preserve and develop their linguistic characteristics. Third, article 10 guarantees the right to use a minority language in private and in public.
However, article 10(2) limits public use of language based upon traditional use, geographic concentration, request from linguistic minorities and need. This provision gives the state parties a wide discretion to determine which minority language should be used in which area. This effectively weakens the actual application and extent of enjoyment of the right to use a minority language in public in countries where governments are intolerant to linguistic diversity.512 Fourth, article 14 provides for the right to learn in a minority language and to be taught or receive instruction in a minority language. The major challenge though is that article 14 is very tentatively phrased with phrases like ‘as far as possible’ and ‘within the framework of their education system’ and does not oblige (but merely encourage) states to provide mother tongue education. This gives states a very wide discretion that may see some states getting away with not providing mother tongue education.
The European Charter for Regional or Minority Languages
The European Charter for Regional or Minority Languages514 (European Languages Charter) to some degree dovetails non-discrimination clauses and special minority protection in the form of special measures provided for in article 7. Even though the European Languages Charter is not about rights of speakers of languages but it focuses on obligations of states to use minority languages in a broad range of contexts, its by-effect is on the one hand to protect and promote regional and minority languages as a threatened aspect of Europe’s cultural heritage and on the other hand to enable speakers of a regional or minority language to use it in private and public life. Its overriding purpose is cultural. A Committee of Independent Experts established in terms of article 17 monitors the European Languages Charter. The Committee of Independent Experts examines state reports, prepares a report for the Committee of Ministers and organises an « onthe-spot » visit to the state, to meet authorities, non-governmental organisations or any other competent body in order to evaluate the application of the Charter. The European Language Charter has five distinctive features. The first distinctive feature is that the European Language Charter does not grant rights to speakers of a minority language or linguistic groups but rather focuses on the protection of minority languages themselves.
Paragraphs 10 and 11 of the Explanatory Report on the European Languages Charter makes it clear that the overriding purpose of the Charter is to protect minority languages (not linguistic minorities) as a threatened aspect of Europe’s cultural heritage. Henrard516 contends that this ‘presumably allows the Charter to transcend (and avoid) the sensitive debates on the definition of minorities and on individual, collective v group rights.’517 Unlike international treaties, the ECHR and the Framework Convention that focus on linguistic minorities, the European Languages Charter focuses on minority languages.
The second distinctive feature, related to the first, is that the Charter is formulated in terms of state obligations and not direct minority language rights. What remains to be seen is whether a breach of the provisions of the Charter would entitle any individuals to make any ‘legal claims’ and remedy at the international or domestic level or the matter would be treated as a failure of a state’s obligations in international law. Letschert is of the view that the European Languages Charter creates legal obligations on states, but does not award any ‘language rights’ to individuals (or minorities).518 Its substantive provisions however point to the indirect protection of linguistic minorities. The third distinctive feature is that the European Languages Charter takes a bold step of defining a minority or regional language in the European context. The definition focuses on languages traditionally used by nationals of a state, different from other languages, used in geographical areas and are not official languages.
The implications of this definition were analysed in Chapter 1. In summary the definition has two weaknesses. The first is that it limits minority languages to those spoken by citizens of a country only.520 Paragraph 31 of the Explanatory Report to the European Languages Charter explains that the reason for exclusion of languages of non-citizens was that the Charter was not designed to deal with the immigration phenomena (a subject for a different instrument to be created specifically for that). Dunbar contends that by distinguishing between traditional minority languages and immigrant minority languages, the European Languages Charter to a degree compromises the notion that language rights are fundamental rights because it excludes immigrant minority languages from enjoying protection under the European Languages Charter.
Chapter 1
Introduction
1.1 Background
1.2. Statement of the problem
1.3. Research questions
1.4 Thesis statement
1.5. Definition of terms and clarification of concepts
1.6. Research methodology
1.7. Significance of the study
1.8. Literature review
1.9. Chapter overview
Chapter 2
Towards the global normative framework for the protection of minority language rights
Introduction
2.1 Classification of minority language rights
2.2 The protection of linguistic minorities and minority languages under the UN human rights system
2.3 The European regional human rights system
Chapter 3
Language situation of Africa
3.1 Language history of Africa
3.2 The protection of minority languages and linguistic minorities under the African human rights system
3.3 Language policy and practice in Africa
3.4 Chapter summary
Chapter 4
Constitutional framework for the protection of minority languages in South Africa
4.1 Introduction
4.2 Language history of South Africa
4.3 SA Constitutional framework for the protection of minority languages
4.4 Chapter conclusion
Chapter 5
Constitutional framework for the protection of minority languages in Zimbabwe
5.1 Introduction
5.2 Language history of Zimbabwe
5.3 Zimbabwean constitutional framework for the protection of minority languages
5.4 Implementation mechanisms
5.5 Chapter conclusion
CHAPTER 6
Conclusion and Recommendations
Introduction
6.1 Conclusions drawn from the study
6.2 Recommendations
6.3 The Proposed Protocol to the African Charter on Human and Peoples’ Rights on Minority Language Rights in Africa
6.4 Final word
BIBLIOGRAPHY
