Wednesday, February 24, 2016

Recognition of specific rights 7/9


 (i) The right to carry out educational activities

26. In many States, specific provisions, including constitutional provisions, guarantee minorities the right to establish and maintain their own schools, standards for the operation of which should be the same as for other schools.

27. The 1960 UNESCO Convention contains a provision especially intended for minorities: “It is essential to recognize the right of members of national minorities to carry on their own educational activities, including the maintenance of schools” (art. 5, para. 1 (c)). 

28. Article 26 to 31 of ILO Convention No. 169 of 27 June 1989 concerning Indigenous and Tribal Peoples in Independent Countries also recognize the right of these peoples to establish their own educational institutions and facilities. 

29. Similarly, article 13, paragraph 1, of the Council of Europe Framework Convention for the Protection of National Minorities recognizes that persons belonging to a national minority “have the right to set up and to manage their own private educational and training establishments” within the framework of the education system of the State, but, in paragraph 2, it appears to indicate that the exercise of this right may depend on the minority’s financial ability: “The exercise of this right shall not entail any financial obligation for the Parties”. 

30. Although there is a special provision of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 18 December 1992 relating to the content of education (art. 4, para. 4), there is no specific provision on the right to carry out educational activities on behalf of protected minorities. This gap does not appear to be decisive because, quite apart from any legal status this provision may have, States are bound, under article 8, paragraph 1, to respect the rights of minorities provided for in “international treaties and agreements to which they are parties” and article 8, paragraph 2, states that “the exercise of the rights set forth in the Declaration shall not prejudice the enjoyment by all persons of universally recognized human rights and fundamental freedoms”. (ii) Use and teaching of minority and migrant languages 

31. The question of language is intimately bound up with a group’s cultural identity and therefore with its sense of dignity. The mother tongue is what enables children to “take off” intellectually once they start school and is vital to “the continuity of children’s psychomotor, and affective and cognitive development”. Failure to respect this linguistic identity creates a feeling of exclusion from the majority group, and of discrimination, and runs directly counter to one of the basic tenets of education recognized in every international instrument: the development of the human personality.26 On the other hand, the use of an official language, even one that is formally a foreign language, may contribute to social cohesion and help to unify the State, particularly in developing countries with great linguistic diversity, although the use of a single minority language as an official language can give rise to a situation of discrimination as between the minority languages. In such cases, paradoxical as it might seem, a foreign language that is used officially or has constitutional status becomes a force for integration and national unity and guarantees non-discrimination among the minority languages, thereby showing the limits of linguistic diversity. 

32. Whatever the situation, there are two problems to be addressed: the right of the child belonging to a minority to teaching of his own language and to teaching in his own language. The positions adopted in international instruments vary greatly in this regard, reflecting the progressive recognition of the phenomenon of minorities.

No explicit recognition 

33. Several instruments contain no explicit provision obliging States to arrange for teaching of or in minority languages. Examples of this are the 1948 Universal Declaration of Human Rights and the two International Covenants of 1966, but particularly the International Covenant on Economic, Social and Cultural Rights, which, perhaps surprisingly considering that it deals with education as a whole (arts. 13 and 14), makes no special reference to the issue of the language to be used in teaching children belonging to minorities. Two hypotheses could be advanced in this regard. 

34. The first hypothesis is extensive and refers more to the spirit than to the letter of such instruments. It may be argued, either on the basis of the general principle of non-discrimination and the aims of education, or, more directly, on the basis of the rights recognized for minorities (article 27 of the International Covenant on Civil and Political Rights), that recognition of language rights as a vector for the development of the human personality and of the sense of dignity of the children concerned, places an implicit obligation on States. Non-discrimination on racial or ethnic grounds would then be viewed as a positive obligation to guarantee the children of such minorities teaching of and in their mother tongues through the State educational system. The Committee on Economic, Social and Cultural Rights does not shed any particular light on this issue in its General Comment No. 13 on article 13 of the Covenant. 35. However, on the basis of the rules of interpretation and as a matter of general principle, that hypothesis is difficult to accept. Even the most pertinent provisions (article 27 of the International Covenant on Civil and Political Rights) does not impose a positive obligation on States and indeed does not refer to the right to education. This is the interpretation which the European Court of Human Rights seems to give, in the Belgian “languages in education” case, to article 2 of the First Protocol to the European Convention on Human Rights (“No person shall be denied the right to education”). In its judgement on the merits, of 23 July 1968, the Court concludes that article 2 “merely [guarantees] to persons subject to the jurisdiction of the Contracting Parties the right ... to avail themselves of the means of instruction existing at a given time”. The Court confirmed the State’s right to determine the official languages to be used in public education and stated: “The Convention lays down no specific obligations ... In particular ... [it] does not specify the language in which education must be conducted ... .”

Explicit recognition 

36. The 1960 UNESCO Convention, though adopted well before the two International Covenants, explicitly recognizes the right of members of national minorities to “the use or the teaching of their own language” (art. 5, para. 1 (c)). However, that recognition, while explicit, does not apply to State schools but to schools established by minorities who wish “to carry on their own educational activities” (art. 5, para. 1 (c)). There do not appear, therefore, to be any additional obligations on the educational system established by the State. 

37. The instruments dealing particularly with minorities appear to give more protection to minorities’ identity in educational terms, although they are drafted in such a way as to give States discretion to decide for themselves whether it is appropriate to make provision for such education.29 (a) This applies to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, which states as follows in article 4, paragraph 3: “States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue” (author’s emphasis); (b) The document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Cooperation in Europe (5-29 June 1990) proclaims, in paragraph 34, the rights of persons belonging to minorities to receive instruction of their mother tongue or in their mother tongue; (c) Article 14, paragraphs 1 and 2, of the Council of Europe Framework Convention for the Protection of National Minorities guarantees the same rights, but on condition that there are sufficient people belonging to minorities and having regard to the resources available to the State; (d) The 1993 draft United Nations declaration on the rights of indigenous peoples recognizes indigenous peoples’ “right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures ...” (art. 14) and indigenous children’s “rights to be provided access to education in their own culture and language”, even if they live outside their communities (art. 15).30 

38. The treaty bodies have an important role to play in interpreting convention provisions regarding the issue of non-discrimination in education. The Committee on the Elimination of Racial Discrimination, for example, rightly considers that the use of a minority language, including as a compulsory teaching language, is a step towards implementation of the principle of non-discrimination within the meaning of articles 1, paragraph 4, and 2, paragraph 2, of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.31 In many of its reports, the Committee also recommends that States parties should take all appropriate measures to ensure the promotion of minority languages and to enable children, including the children of migrant workers, to pursue their studies in their mother tongue.

http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/daa1576d690994e1c1256a57003417a0/$FILE/G0113802.pdf

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