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英国termpaper：中国少数民族语言文字权
Minority language rights
少数民族的语言权利受到国际人权法的保护。与语言权利相关的人权标准是多种多样的。一些经常被提及的规定属于硬性法。这些标准具有法律约束力并主要包含在条约中。一个关于这些标准，并具有广泛性的例子是1966年《民事国际公约》的第二十七条和《政治权利》的第九条。它在禁止国家承认属于少数群体的权利上的规定是明确的，即在与他们的其他成员交流时使用自己的语言的权利。（菲利普斯和罗萨斯，1995，13–76）
其他例子有契约第19号条的第（2）小点，它保证了表达自由（包括选择语言作为交流工具），以及条约的第2和第26条，它以禁止歧视为基础，其中就包括语言在内。1966年颁布的《国际公约》的第2条条约是关于经济，社会和文化的10项权利，它同样建立在禁止歧视的基础上，尤其是作为沟通工具的语言权利享用问题上。禁止语言歧视同样也受由1989年制定的儿童权利公约第2条第2小点关于权利赋予方面内容的保护。
简介-Introduction
The linguistic rights of persons belonging to national minorities are protected by international human rights law. The human rights standards which relate to language rights are varied. Some belong to what is often referred to as hard law. These standards are of a legally binding nature and are mainly contained in treaties. An example of such a standard at the universal level is Article 27 of the 1966 International Covenant on Civil and Political Rights.9 It is categorical in the sense that it prohibits States from denying persons belonging to minorities the right, in community with the other members of their group to use their own language. (Phillips & Rosas, 1995, 13–76)
Other examples are Article 19(2) of the Covenant, which guarantees freedom of expression (including choice of language as a vehicle of communication), and Articles 2 and 26, which prohibit discrimination on a number of grounds including language. Article 2(1) of the 1966 International Covenant on Economic, Social and Cultural Rights10 similarly prohibits discrimination on the basis, inter alia, of language in relation to the enjoyment of the rights accorded under that instrument. The same prohibition of discrimination on the basis of language is guaranteed by Article 2(1) of the 1989 Convention on the Rights of the Child11 with regard to the rights accorded therein. Even more exacting is the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families which, in Article 1(1), stipulates that the Convention is to be applied to the intended beneficiaries preference based on race, colour, descent, or national or ethnic origin to the extent that the notion of _national or ethnic origin may include or be identifiable on the basis of language, so, too, this Convention provides relevant standards. At the regional level, the Member States of the Council of Europe have adopted two treaties which address the issue of minority language rights:
“the 1992 European Charter for Regional or Minority Languages14 and the 1995 Framework Convention for the Protection of National Minorities.15 In addition, Article 14 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms prohibits discrimination, in the enjoyment of the enumerated rights and freedoms, on the basis of language.” (European Court of Human Rights, 2006, 33)
Article 1 of the Convention specifies that the notion of national minorities cover matters of language use. The other categories of standards which also seek to protect the linguistic rights of persons belonging to national minorities are sometimes referred to as soft law. These include instruments such as the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (Lewis, 1998, 479-504). Article 2(1) of the Declaration refers to the right of persons belonging to linguistic minorities to enjoy their own culture, to profess and practice their own religion and to use their own language in private and in public, freely and without interference or any form of discrimination. Although the declaration is relatively specific, it is not of itself legally binding on States (Underdal, 1998, 5-36). The same applies to the Copenhagen Document of the OSCE which, while containing specific provisions constituting political commitments binding on all OSCE participating States, these are not binding obligations under international law. At the sub-regional level, the 1994 CEI [Central European Initiative] Instrument for the Protection of Minority Rights (which requires States to sign the document, notwithstanding that it is not a legally binding instrument) provides protections for the use of minority languages. These instruments articulate standards of behaviour which reflect what the respective communities of States intend to be the norm. These soft law instruments are important points of reference for the international community as they express shared values and certain standards to be promoted and respected in relations between the State and persons within its jurisdiction. (Council of Europe, 1994, 94-101)
Notwithstanding the significant list of relevant standards, their formulation remains sometimes general and lacking specificity with regard to their precise application in concrete situations. In view of this, and in view of the fact that minority language related problems are confronted on a recurring basis within his work, the High Commissioner on National Minorities (HCNM) concluded that it would be useful to consult a number of experts of international repute and to ask them to look at the linguistic rights of national minorities in greater depth with a view to developing a set of practical guidelines. The HCNM envisaged that such guidelines, to be based directly and solely on existing international standards, would be extremely useful as States could refer to them when developing and implementing minority language related policies and laws. They could also serve as a reference for the HCNM in his own work. (Van de Kragt & Dawes, 2003, 112-22)
In the summer of 1996, the HCNM requested the Foundation on Inter-Ethnic Relations (FIER) to take up the initiative of developing such guidelines. The development of these guidelines was not to be an attempt to set new standards; of course, neither the HCNM nor the FIER had a mandate to undertake standard-setting (Underdal, 1998, 5-36). Rather, the guidelines were to constitute an expert interpretation of existing standards which could serve to facilitate the development and implementation of appropriate policies and laws pertaining to the linguistic rights of national minorities. The experts sought to provide interpretation of these standards relating directly or indirectly to the linguistic rights of national minorities while maintaining coherence within the entire system of the international protection of human rights. (Council of Europe, 1994, 94-101)
The result of this process is a set of language-related recommendations which focus on a number of spheres of regulation and activity of particular importance to the maintenance and development of the linguistic identity of persons belonging to national minorities (Lewis, 1998, 479-504). The recommendations are divided into the following subject categories: Names, Religion, Community Life and NGOs, Media, Economic Life, Administrative Authorities and Public Services, Independent National Institutions, Judicial Authorities and Deprivation of Liberty. The Explanatory Note which accompanies the recommendations (and is an integral part of the document) specifies the links between each recommendation and relevant international human rights standards. (Hawkins, 1997, 403-434)
公共和私人领域的分离-Separation Of The Public And Private Spheres
The Human Rights Committee (HRC) through its General Comments has presented the concept of minority very broadly, embracing non-citizens in the category of a minority. This is a significant development in terms of the new construction of the definition of a minority, particularly given that the HRC is in a position to represent UN practice in some parts (Chen, 1998, 214). The HRC's General Comment on Article 27 states unequivocally as follows:
“The terms used in article 27 indicate that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language. Those terms also indicate that the individuals designed to be protected need not be citizens of the State party . . . A State party may not, therefore, restrict the rights under article 27 to citizens alone.” (Human Rights Committee, 1992, 159–181)
The HRC's view basically seems to have followed the subjective and objective criteria of the traditional minority definition, but it is a new version of the definition in that it does not require nationality or citizenship of the State of residence. Furthermore, the HRC held:
“In those cases where aliens constitute a minority within the meaning of article 27, they shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion and to use their own language. Aliens are entitled to equal protection by the law. There shall be no discrimination between aliens and citizens in the application of these rights. These rights of aliens may be qualified only by such limitations as may be lawfully imposed under the Covenant.” (Human Rights Committee, 1992, 159–181) |
