Kristin Henrard

Post Apartheid South Africa's Democratic Transformation Process: redress of the past, reconciliation and unity in diversity

1However, a good understanding of the complex issues of transformation in this divided society requires a broader approach. Reconciliation involves not only telling the truth about the past and forgiveness, but also requires reparation for material and other forms of deprivation and the restoration of a human community in a spirit of respect for human rights and democracy. Indeed, it also necessitates the creation of a society within which the chances of reoccurrence of the kinds of gross violations of human rights that occurred in the past are reduced to a minimum. Consequently, the evaluation of the constitutional negotiation process and the way in which the themes of redress of the past, overcoming the legacy of apartheid and nation-building played their role are equally if not more important. The provisions of the Bill of Rights as well as some other sections of the Constitution are important building blocks in this reconciliation and transformation process. The ongoing implementation of these constitutional provisions and the perceptions surrounding that process also has an important impact on the actual transformation and reconciliation process. A brief description of the most striking features of the apartheid regime is followed by an explanation of the overall constitutional negotiation process, which is particular to South Africa. Subsequently, the constitutional basis, relevant legislation and a brief description of the TRC process, as well as its current status and overall assessment of its actual impact on reconciliation, are discussed. A fourth paragraph then goes on to analyze the constitutional negotiations with respect to the provisions dealing with controversial issues like equality, language and education, self-determination and minority rights, and land. The implementation of the constitutional provisions with respect to equality, language and education, self-determination and land reform is ongoing and confronted with several hurdles. Nevertheless, there is a steady progression and the concomitant transformation will hopefully entail a higher level of reconciliation in South African society.

The interrelationship between individual human rights, minority rights and the right to self-determination and its importance for the adequate protection of linguistic minorities

In order to do this, first of all in this article, the concept minority is elaborated upon, including its potential relevance for multinational societies. Subsequently, the link between an adequate system of minority protection on the one hand and conflict prevention and/or resolution in multinational societies on the other hand is clarified. Prior to the assessment of the respective contribution of individual human rights and the current minority rights standards in relation to the protection of language rights, the two basic principles of minority protection are highlighted as well as typical concerns of linguistic minorities pertaining to language rights. The assessment will reveal that both individual human rights and the current minority rights standards are important for the protection of language rights of population groups in a multinational society, while the latter take up the acquis of the former and further the right to identity of minorities. Nevertheless, the degree of protection at the level of these two categories of rights remains in many ways deficient. Therefore, it is finally argued that a qualified recognition of a right to internal self-determination for minorities might very well increase that protection in ways that improve opportunities for integration without assimilation of the population groups concerned.

Participation, Representation and Autonomy in the Lund Recommendations and their Reflections in the Supervision of the FCNM and Several Human Rights Conventions

The effective participation of national minorities in the governance of States emerged in the 1990s as a recurrent theme for the OSCE High Commissioner on National Minorities. In an effort to obtain more clarity about the content of minority rights and other relevant standards pertaining to this theme a group of international experts was commissioned to draft a set of Recommendations, the result of which were the 1999 Lund Recommendations on the Effective Participation of National Minorities in Public Life. Now that these recommendations have been in existence for five years, it seems appropriate to take stock of the extent to which these are explicitly or implicitly reflected in the supervisory practice under the minority rights instrument par excellence, the Framework Convention for the Protection of National Minorities, as well as a number of human rights conventions. Various theoretical considerations about (degrees of) participation, representation, democracy and minority protection form the framework against which the Lund Recommendations are discussed. Subsequently, the supervisory practice under several conventions is assessed in terms of this framework. Since the Framework Convention has an explicit minority focus, it is not surprising that the practice of its supervisory machinery reveals in addition to certain broad similarities also more specific reflections of the Lund Recommendations. The evaluation of the supervision of the ‘participation’ provisions of more general human rights conventions may not be equally reminiscent of the Lund Recommendations, also here certain common themes can be identified. Finally, it should be noted that the practice of the supervisory organs tends to address certain participation related issues that are not covered (explicitly) by the Lund Recommendations. Since the Lund Recommendations are meant to have their roots in the existing minority and human rights standards, a possible revision of these Recommendations should also take up the interesting developments of the relevant supervisory practice. International Journal on Minority and Group Rights 12: 133–168, 2005. 133

The Accommodation of Religious Diversity in South Africa Against the Background of the Centrality of the Equality Principle in the New Constitutional Dispensation

South Africa is often characterized as a highly religious country since many South Africans consider their religious beliefs to be central to their lives. Although religion is widely believed to be a “non-issue”, these strong religious identifications might, however, play a role in the apparent ethnic resurgence. Consequently, the religious diversity of South Africa should be appropriately accommodated in the post-apartheid regime so as to prevent religion-based conflict.It is generally known that the great majority of South Africans are Christian, but that Christian majority can be further subdivided, giving rise to many religious minorities. The Christian affiliations that one can distinguish are the African Independent Churches, the Dutch Reformed Church, the Roman-Catholic Church, the Methodist Church, the Zion Christian Church, the Anglican Church, the Apostolic Church, the Lutheran Church and the Presbyterian Church. Also the other world religions, like Hinduism, Islam and Judaism, are present (in relatively small numbers). The extensive religious diversity thus revealed underscores further the need for a proper accommodation of that diversity as part of the wider democratization-transformation process after apartheid.This article is structured as follows. A brief review of relevant apartheid practices is followed by an assessment of the constitutional negotiations and the ensuing constitution (1996) in terms of the accommodation of religious diversity and its relation to the equality principle. Some attention is also given to the more or less explicit minority rights provisions. An overview and evaluation of the implementation of the various relevant constitutional provisions finally culminates in a conclusion.

Language and the Administration of Justice: The International Framework

Language use in court proceedings, in prisons, and in communications with the police are three areas of interest within the domain of the administration of justice. If the existing standards that are of explicit or implicit relevance for language use in the administration of justice are analysed, the relevant general human rights provisions, minority rights standards and prison rules should be studied. Whereas the first category of rights reflects concerns of justice and fairness, and are thus formulated in terms of ’language one understands’, the second one refers more directly to minority languages (and thus also languages of the various population groups in plural societies without majority population). However, the latter provisions are so vague and replete with escape clauses that their actual contribution to the accommodation of linguistic diversity in respect of the administration of justice remains doubtful. The prison rules do not reveal any great attention to language issues, but the European Prison Rules (Council of Europe) definitely provide important guidelines. The specific Council of Europe Recommendation regarding Foreign Prisoners is much more language-sensitive and is arguably also applicable by analogy to prisoners speaking a language differing from the preferred state language. Overall, it is obvious that this area of law and its specific problems are little analyzed and not yet fully explored. It is to be hoped that this article will contribute to both the academic debate and policy developments in multilingual states.

Charting the Gradual Emergence of a More Robust Level of Minority Protection: Minority Specific Instruments and the European Union

Following a brief discussion concerning the concept ‘minority’, this article analyses certain trends that can be gleaned from the supervision of minority specific instruments (or provisions) as well as the gradual development of a minority protection paradigm within the EU. The supervisory system of the Framework Convention for the Protection of National Minorities (FCNM) will receive most attention, because it has developed the most extensive and most detailed body of relevant opinions concerning minority rights. Furthermore, it reveals remarkable developments regarding minority protection, through rather extensive and demanding interpretations of the ensuing State obligations which significantly reduce the at first sight almost boundless State discretion. At the same time, it seems important to discuss the latest views of the Human Rights Committee (HRC) concerning minority protection issues, some of which have elicited divergent interpretations among academics. While it would be far fetched to qualify developments regarding minority protection in the EU under the heading of ‘minority specific instruments’, they surely deserve attention. Arguably, the minority protection rhetoric is gradually expanding to the internal policy domain, which is reflected in the explicit recognition in the recently adopted Constitution of respect for minority rights as a foundational value of the EC. The final part of this article analyses the repercussions of the accession dynamic, with its attention for minority protection in the candidate countries, for both direct and more indirect channels of ‘minority protection’ within the EU.

Shifting Visions about Indoctrination and the Margin of Appreciation Left to States

Lautsi II underscores that one cannot yet speak of a steady trend to reduce (de facto) the margin of appreciation of states in relation to the place of religion in public education.

The EU, Double Standards and Minority Protection: A Double Redefinition and Future Prospects.

A complaint of so-called double standards has regularly been voiced in relation to the EU’s policy on minority protection. This contribution sets out to redefine the accusation by putting it into a broader perspective pertaining to minority protection, while also touching on additional levels of` (seemingly) double standards. Talk in terms of double standards is not neutral in the sense that it refers to the use of differential standards, it always has a connotation of illegitimacy, or at least unreasonableness. Hence, the addressees of the accusation will feel the need to counter this allegation either by showing that there is actually no differential treatment or by justifying (trying to justify) a difference in treatment. The complaint that the EU adopts double standards regarding minority protection is mostly heard and connected to different approaches externally versus internally. This differentiation has become increasingly problematic when it was applied to the enlargement process, and explicit demands of minority protection were included in the accession conditions. In this respect it is important to have a good understanding of what minority protection is all about and what standards can be considered relevant in this respect. This contribution will demonstrate that it is possible to counter the allegation of double standards (external v internal) to some extent by showing that de facto the differential treatment is less stark as it seems at first sight. A central consideration here is the importance of distinguishing between minority specific and non-minority-specific rights (policies and practices) as possible avenues of minority protection. Arguably the current focus internally seems to be on non-minority-specific policies. The actual contribution to minority protection depends then on the implementation, which needs to be ‘minority conscious’. This contribution analyses the developments in the implementation of these policies while highlighting and clarifying the different degrees to which these non-minority-specific instruments are implemented in a minority conscious way. Tracing the developments in this regard and setting out to identify development lines, by linking it to other developments in the EU as well as understandings and visions about European integration and European identity is arguably important to gauge the status quo and especially the future of an (emerging) internal minority protection policy for the EU. Furthermore the assessment of the implementation of the various non-minority-specific policies demonstrates that internally there are differential standards, more particularly in relation to different groups of ‘minorities’, European citizens and third country nationals being two of the distinctive categories. Allegations of double standards in this respect are not easily countered by negations of differential treatment. The challenge seems rather to lie in the identification of possible justifications or at least explanations for these differences. Arguably, these differentiations can be related to (if not fully justified by) the underlying (restricted) vision of Europe, European identity and developing ideas about (the reach of) European integration. Notwithstanding various flaws in the current internal minority protection level in the EU, and the doubts about the wholeheartedness of the minority protection policy, arguments can be put forward why in the future more rather than less minority conscious measures can be expected.

Minorities, Identity, Socio-Economic Participation and Integration: About Interrelations and Synergies

Traditionally the minority rights standards developed in the framework of international organizations and the related supervisory practice were more focused on political participation, and its various dimensions, than on socio-economic participation. However, questions of socio-economic participation, inclusion and integration of minorities has increasingly come to the forefront. This is understandable since it is hard to miss that minorities are often seriously disadvantaged in this respect, at times also triggering social unrest.

A Critical Analysis of the Margin of Appreciation Doctrine of the ECtHR, with Special Attention to Rights of a Traditional Way of Life and a Healthy Environment: A Call for an Alternative Model of International Supervision

The European Convention on Human Rights (ECHR) and the jurisprudence of the European Court of Human Rights (ECtHR) may have a solid reputation in terms of contributing to the efffective protection of human rights, the position of the Court and its legitimacy have come increasingly under threat. The latter is not only due to its ever increasing workload and related backlog, but also due to the reaction of states vigorously criticizing particular judgments of the Court, and related announcements of non-compliance.1 These judgments tend to concern issues that are felt by the states to fall squarely in their sovereign decision making powers, inter alia because it would regard essential determinants of the ‘national identity’. It can be argued that these reactions from states – to some extent at least – have been fed or even induced by the development and use of the margin of appreciation doctrine by the Court. More particularly, when the Court’s analysis uses the margin of appreciation of states as its starting point, this contributes to the sense that decisions relating to the respect of human rights fall (to a great extent) within the sphere of ‘domestic jurisdiction’. Consequently, when the Court in a particular case reduces the margin of appreciation and actually takes up its role of international supervisor, states almost scream that the Court should respect their decisions to maintain national traditions.