Navigating the Unknown: Essays on Selected Case Studies about the Rights of Minorities(15 Studies in Territorial and Cultural Diversity Governance)

In this book, Bertus de Villiers offers unique insights into institutional design aimed at the protection of minority rights. He reflects on several case studies to highlight various aspects of the complexity of contemporary constitution drafting and how creative solutions have been found to secure the rights of minorities. The respective chapters drill down to a practical level to assist constitutional scholars, legal scientists, the judiciary and practitioners to better comprehend the dynamics of minority rights in the country under discussion; to be informed by the jurisprudence that have arisen; and to gain insights from the adjustments that had to be made to more effectively protect the rights of minorities.

Table of Contents:
Preface 1 The Design of Institutions in Response to Diversity A Shot in the Dark or a Fine Art?  1 Introduction  2 To Accommodate, Integrate or Assimilate – That is the Question  3 Guidance to Institutional Design from International Law  3.1 Inconsistency is the Name of the Game  3.2 Selected International Legal Instruments: United Nations  3.3 Regional Legal Instrument: European Framework Convention for the Protection of National Minorities  3.4 From Theory to Practice: The (Non-binding) Lund Recommendations and Ljubljana Guidelines in Europe  4 Conclusion: Designing Institutions in Response to Diversity: A Shot in the Dark or a Fine Art? 2 A Promise Not to Keep? Lessons from Central and Eastern Europe to Establish Cultural Councils and Relevance to the Afrikaans Community of South Africa  1 Introduction  2 The Advent of Cultural Councils in Central and Eastern Europe  3 The Promise of Cultural Councils in the 1996 Constitution of South Africa  4 The Origin of the Cultural Council-debate in South Africa  5 Contemporary Cultural Councils in Estonia, Hungary and the Russian Federation  5.1 Legal Framework of the Cultural Councils  5.2 Power and Functions of the Cultural Councils  5.3 Observations of the Respective Cultural Councils  6 Lessons to be Drawn by the Afrikaans (and Other) Community  7 Conclusion 3 Non-territorial Self-government and Socio-economic Empowerment The Roma of Hungary  1 Introduction  2 Hungary: An Overview of Nationality Self-government  2.1 Population Composition  2.2 Establishment of Nationality Self-governments  2.3 Election of Nationality Self-governments  2.4 Nationality Self-governing Non-territorial Institutions  2.5 Nationality Self-government Functions  3 The Roma and Non-territorial Self-government  3.1 Who Are the Roma?  3.2 Nationality Self-governments for the Roma  3.3 Outcomes of Roma Self-government  3.3.1 Criteria to Assess Success or Failure of Self-government  3.3.2 Competing Philosophies between Roma and Other Nationalities  3.3.3 The 2011-Reforms  3.3.4 Varied Experiences of Self-governments  3.3.5 Integration or Accommodation or Both?  3.3.6 Who is Responsible for Socio-economic Improvement of the Roma?  4 Summary 4 Using Control Over Access to Land to Achieve Cultural Self-government (of Some Sort) Reflecting on the Experiences of Aboriginal People with the Right to Negotiate in Australia  1 Introduction  2 Characteristics of the Right to Negotiate  3 Aboriginal People of Australia – A Brief Overview  4 Recognition of Native Title  5 Incorporating Aboriginal Communities: A Legal Basis to Exercise Collective Rights  6 Right to Negotiate: Its Meaning and Effect  6.1 How Does the Right to Negotiate Come into Existence?  6.2 What Does the Right to Negotiate Entail?  6.3 Support for Aboriginal People in “Good Faith” Negotiations  6.4 Option for Indigenous Land Use Agreements as an Alternative to Right to Negotiate  6.5 Compensation for Loss or Diminution of Native Title  7 The Right to Negotiate and Its Contribution to Aboriginal Self-determination 5 Breaking New Ground for Indigenous Non-territorial, Cultural Self-government – the Noongar Settlement in Australia  1 Introduction  2 An ilua – a Publicly Registered Treatise for Land Access and Cultural Self-government  3 The Noongar People – Trailblazers for Community Self-government  4 The Road to Settlement: From Litigation to Negotiation  5 Essential Principles of the Noongar Settlement  6 Main Elements of the Noongar Compensation Package  7 The Noongar Settlement – a Proper Classification  8 The Noongar Settlement – Principles of Relevance to the Theory and Practice of Protection of Minority and Indigenous Rights  9 Conclusion 6 Does a Constitution Have a Soul? The Role of Bundestreue in the Germany and Ubuntu in South Africa to Give Life and Identity to a Constitutional Text  1 Introduction  2 Introduction to the Term Bundestreue  3 Bundestreue and its Relevance to the Conduct of Intergovernmental Relations  4 The Origin of Bundestreue  5 Bundestreue in Its Practical Application  6 Ubuntu – An Implied Term of Dignity, Fairness and Humanity  6.1 Origin and Meaning of Ubuntu  6.2 Reliance on Ubuntu by the Constitutional Court  7 Summary of Comparisons between Bundestreue and Ubuntu  8 Conclusion 7 Flying a Flag for Freedom of Expression When Does a Historic Symbol of a Minority Turn into Hate Speech? The Case of the Old Flag of South Africa  1 Introduction  2 Background to the Flag Dispute  3 Events Leading to the Dispute about the Old Flag  4 Background to the Old Flag  5 Legal Framework  6 Judgment: Does the Display of the Old Flag Constitute Hate Speech?  7 Five Questions about Symbols and Hate Speech – Comparative Experiences  7.1 General Comments on the Judgment  7.2 Foreign Comparative and International Law  7.2.1 A Flag as Hate Speech  7.2.2 Universal Definition of Hate Speech  7.2.3 Can Hate Speech Be Influenced by Effluxion of Time?  7.2.4 Test for Hate Speech: Intention or Perception?  7.2.5 Balance between Freedom of Speech and Protection Against Hate Speech  8 Summary 8 Concluding Observations Bibliography Index

About the Author :
Bertus de Villiers (LL.D. 1989), University of Johannesburg, is a Visiting Professor at this university and a member of the judiciary in Australia. He has published extensively and given advice in several countries on the topic of human and minority rights, decentralisation and federalism and land reform. Most recently he co-edited Litigating the Rights of Minorities and Indigenous Peoples in Domestic and International Courts (Brill/Nijhoff, 2021).