International Journal
on Multicultural Societies
(IJMS)
Vol. 3, No. 1, 2001
“Lesser Used Languages
and the Law in Europe”
International Journal on Multicultural Societies (IJMS)
Vol. 3, No. 1, 2001
Lesser Used Languages and the Law in Europe
DIRECTOR OF PUBLICATION: Paul de Guchteneire
EDITOR-IN-CHIEF: Matthias Koenig
MATTHIAS KOENIG, Editorial
1
EDUARDO JAVIER RUIZ VIEYTEZ, “The Protection of Linguistic Minorities: A Historical
Approach”
5
FERNAND DE VARENNES, “Language Rights as an Integral Part of Human Rights”
15
ELDA MORENO, “La Charte Européenne des Langues Régionales ou Minoritaires:
Un instrument juridique au service du patrimoine linguistique européen”
26
DÓNALL Ó RIAGÁIN, “The European Union and Lesser Used languages”
33
SUE WRIGHT, “Language and Power: Background to the Debate on Linguistic Rights”
44
Editorial
MATTHIAS KOENIG
University of Marburg
&
FERNAND DE VARENNES
Murdoch University
ith this special issue the International Journal on Multicultural Societies
establishes a new thematic thread by addressing problems of linguistic
diversity. Besides ethnicity and religion, language has been one of the most
pertinent factors contributing to the cultural diversity of societies throughout the
world. Whereas the socio-historical processes of state-formation and nationbuilding in the modern age have been accompanied by exclusive language policies
aiming at linguistic homogenization of the population, linguistic rights have been
central to the claims of national minorities for recognition of their identities. Today,
linguistic diversity is increased by voluntary and forced migration and the ensuing
establishment of transnational migrant communities which constitute new linguistic
minorities within the industrial centres of the world and, hence, call for new
responses by public policy-making.1
W
However, issues of linguistic diversity are not simply a matter of “management”
through public policies. They also involve basic human rights rules that are
increasingly seen as mandatory among members of the international community,
and as essential ingredients in the search for peaceful coexistence.2 There is indeed
a surprising consensus among many of the main international organizations directly
involved in the promotion of peace and stability around the world – the United
Nations (UN), the Organization for Security and Co-operation in Europe (OSCE)
or the Council of Europe – that the existence of different language groups does not
in itself constitute a “problem”. At least, as a number of studies have tended to
confirm, linguistic diversity does not in itself cause violent conflict. In fact,
1
2
The debate on multiculturalism which attests to the need for new public policies, including new
linguistic policies, has been taken up by the MOST Programme; see Matthias Koenig, “Democratic
governance in multicultural societies: Social conditions for the implementation of international
human rights through multicultural policies” (MOST Discussion Paper, No. 30), Paris: United
Nations
Educational,
Scientific
and
Cultural
Organization,
1998;
see
http://www.unesco.org/most/ln2pol2.htm.
The MOST Programme provides a Database on Linguistic Rights where all major legal provisions
on language rights in both international and domestic law may be found; see
http://www.unesco.org/most/ln1.htm.
International Journal on Multicultural Societies (IJMS), Vol. 3, No. 1, 2001: 1 - 4
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© UNESCO
2
Matthias Koenig & Fernand de Varennes
conflicts involving linguistic minorities – whether they are the Basques in Spain,
the Corsicans in France, or the Tamils in Sri Lanka – are still very much the
exception rather than the rule and have to be interpreted within the larger context of
political and economic conflicts.
The emerging international consensus is that conflicts and tensions in multicultural
societies occur where the rights of minorities in language matters have been denied.
It is true that the understanding of what these rights are has taken some time to
crystallize, with even such a simple matter as to whether the private use of
language is protected under freedom of expression having been clarified in
international law only in the last ten years. However, the extent of the similarities
in the content of UN, OSCE and Council of Europe documents is rather striking.
All link peaceful coexistence and linguistic diversity with respect for minority
rights. All associate minority rights not with some obscure, uncertain category of
collective rights but with individual human rights standards, and all adopt the same,
general principles of what these rights are in language matters. In sum, all acknowledge the need to promote and protect the cultural and linguistic diversity of
humanity.3
Disagreements do remain. On the one hand, there are still those who argue that
language diversity is something that is, if not dangerous, at least best left to the
private sphere. While no longer necessarily assimilationist, their position does view
the need for unity of language in the public sphere, something akin to the
Republican slogan, une langue, une nation. Official pronouncements from governments in France, Turkey and the United States are among the more vocal
supporters of such a stance. On the other hand, there is the view that the state
cannot be restrictively seen as a linguistic/ethnic entity, but that it is a political
grouping of all citizens. While a common language is certainly a legitimate state
objective, it does not follow that it should be equated with an exclusive language
policy, even in the public sphere. In practical terms, this means that governments
have an obligation to respond to the demands of their citizens: when members of a
linguistic minority are geographically concentrated and in “substantial numbers”,
they are entitled to a proportional use of their language by public officials. To do
otherwise is to invite ethnic strife, as the emergence of the conflicts in Sri Lanka,
eastern Pakistan, etc. have shown.
This debate is taken up in this issue of the International Journal on Multicultural
Societies, which brings together several papers presented on the occasion of the
conference on “Lesser Used Languages and the Law in Europe”, organized by the
Academy of European Law in Trier (Germany) in September 2000 under the
auspices of the European Union and UNESCO. The editors are obliged to the
3
For a legal analysis of linguistic rights, notably of the UN Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious or Linguistic Minorities (1992) see Fernand de
Varennes, “To speak or not to speak. The Rights of Persons Belonging to Linguistic Minorities”,
1997, Working Paper prepared for the UN Sub-Committee on the Rights of Minorities; see
http://www.unesco.org/most/ln2pol3.htm.
Editorial
3
organizers of the conference, in particular to Íde Düro, for their co-operation in
preparing this publication. The selected texts all focus on legal questions of
linguistic diversity in Europe. In a final review, the contributions are interpreted
from a socio-linguistic perspective in order to build a bridge between current legal
discourse and social sciences in the field of linguistic diversity.
“The Protection of Linguistic Minorities: A Historical Approach”, by Eduardo
Javier Ruiz Vieytez, provides a general, historical overview of linguistic minorities
in Europe. This is a fairly comprehensive exposition of the various periods and
trends which have marked the evolution of the protection of linguistic minorities,
pointing out for example the impact that the Reformation and the advent of the
printing press had on the evolution of minority languages in Continental Europe, as
well as the consequences of the French and German concepts of the nation. His
section on the twentieth-century situation is noteworthy for pointing out the
dramatic change of direction after the Second World War, from one of almost
complete denial of the need to include any type of minority protection in
international law to a more or less general acknowledgment that such protection of
minorities is not only unavoidable, but also necessary to uphold peace and stability.
Fernand de Varennes’ contribution analyses the position of linguistic rights within
the general legal framework of human rights. While the rights of linguistic
minorities are often thought of as constituting a distinct category of rights, de
Varennes points out that they should rather be regarded as a direct application of
basic human rights standards such as freedom of expression and non-discrimination
in questions of language use. He accordingly emphasizes that language rights are
not to be understood as collective rights but rather as an integral part of wellestablished, basic human rights as widely recognized in international law.
The contribution by Elda Moreno outlines how far the Council of Europe has come
in providing a legal mechanism to encourage the promotion and protection of
Europe’s linguistic and cultural heritage. As she points out, the European Charter
for Regional or Minority Languages does not actually provide language rights for
individuals or groups, nor does it recognize minorities per se: it rather proposes
“obligations” on governments in the area of European language diversity. The
Charter thus signals a different approach from most other documents worldwide
which tend to recognize minority rights. Despite this distinction, the actual
substance of the Charter does not diverge greatly from other instruments:
essentially, it demands that governments put into place those provisions that are
appropriate to the situation of each particular language, in essence depending on
the relative numerical strength and concentration of a language group. It is thus
described as a pragmatic document with specific obligations.
The paper by Dónall Ó Riagáin covers the less-familiar involvement of the
European Union in the area of minority languages, known as “lesser used” languages in EU parlance. While EU members have traditionally shied away from
incorporating human or minority rights in the various treaties dealing with the EU
4
Matthias Koenig & Fernand de Varennes
and its “predecessor”, the European Economic Community, Ó Riagáin shows that
in practice language matters do receive a fairly high level of consideration in the
activities of the Union. Furthermore, he points out that the European Parliament
has over the years shown a great deal of interest in, and has attempted with
increasing frequency to have the EU adopt, measures for the support and conservation of minority languages, eventually leading to the inclusion in the recently
adopted Charter of Fundamental Rights of a provision stating that the Union will
respect linguistic diversity. While modest in comparison with the development of
treaties at the Council of Europe, the text by Ó Riagáin does point at the extensive
and growing appreciation of the importance of the protection of linguistic minorities, the practical support provided over the years by a number of EU programmes,
as well as the difficult questions that will eventually have to be addressed as the
EU expands towards Eastern Europe – and greatly increases its number of official
and “lesser used” languages.
The issues addressed here are taken up by Sue Wright in her contribution on
“Language and power”, in which she comments on the other four articles from a
socio-linguistic perspective, focusing particularly on the political underpinnings of
contemporary debates over language rights. She recalls the interrelation between,
on the one hand, the historical emergence of nation-states exercising symbolic
power over their populations and, on the other hand, counter-claims to the recognition of linguistic minorities. Using the European Union as an example, she
highlights the transformation of the classical nation-state under the impact of
economic globalization and draws attention to corresponding changes in the
relation of language majorities and minorities. While there are already indicators
for the dominance of English as a new lingua franca, it remains to be seen how
linguistic diversity will be managed in the “post-national constellation”.
This issue thus raises a number of questions about how democratic institutions that
were classically linked to the nation-state can respond to increased linguistic
diversity under contemporary conditions of denationalization and in correspondence with basic human rights. This debate will be continued in two upcoming issues of the Journal, which will investigate recent legal developments in
the field of linguistic rights from a comparative perspective, and analyse the
changing dynamics of language shift. As usual, readers are invited to contribute to
this debate by sending their comments to the mailing list at most-multicultural.
The Protection of Linguistic Minorities:
A Historical Approach
EDUARDO JAVIER RUIZ VIEYTEZ
University of Deusto, Bilbao
The formal protection of linguistic minorities in Europe is an
extraordinarily recent phenomenon in the sphere of international law.
Nevertheless, concern about the existence, tolerance or protection of
linguistic minority communities has existed for a long time. A
historical perspective is used to analyse the legal and political treatment that linguistic minorities have received in the various epochs
defined. The solutions adopted by different countries for the protection
of minority languages have varied widely for social and political
reasons rather than juridical ones. The evolution of the protection of
lesser-used languages in European history is not linear, although it is
clear that concern about linguistic questions has grown over the last
150 years. Indeed, not until the twentieth century was legal
recognition of some linguistic rights for minorities incorporated into
international treaties.
T
his paper presents a historical overview of the protection of linguistic
minorities, without covering the legal developments of the 1990s, which are
the subject of other papers in this issue. The focus is therefore on a description of
the protection of linguistic minorities until the last decade of the twentieth century.
In an earlier work (Ruiz Vieytez 1999), the present writer claimed that the
historical evolution of the international legal protection of national minorities in
Europe began in the mid-seventeenth century with the protection of some religious
minorities as a result of the treaties of the Congress of Westphalia in 1648. In this
respect, the three and a half centuries between the end of the so-called Thirty
Years’ War and today can be divided into five historical periods. During the first of
these, basically covering the Modern Age, the protection of minorities was fully
integrated into international treaties. These treaties incorporated clauses to protect
communities whose religion or worship was different from that of the majority of
the population of the state in which they lived. This is the case, for example, of the
Treaty of Oliva in 1660 with regard to the Roman Catholic communities of Eastern
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6
Eduardo J. Ruiz Vieytez
Livonia, which were thereby incorporated into the Swedish kingdom.1 From 1812,
a second phase developed in which international treaties also included clauses in
favour of national minorities, beginning with references to Serbian autonomy in the
Treaty of Bucharest (1812) and to Polish populations in clauses drafted at the
Congress of Vienna (1814–15). 2 The third stage started at the end of the First
World War, when the Peace Treaties signed in Paris in 1919 set up a system to
protect certain minorities in Central and Eastern Europe under the supervision of an
international organisation with universal scope: the League of Nations. From 1945,
there was a fourth period in which part of the role of the League was undertaken by
the new international organisation of the United Nations. This new phase added to
the existing levels the protection given by a regional organisation, the Council of
Europe, whose brief was to ensure the protection of human rights and democracy
throughout the continent. Finally, the fall of the Berlin Wall signalled the start of
the most recent period, characterised by new juridical developments at both
bilateral and regional levels, including the protection provided by the Organization
for Security and Co-operation in Europe (OSCE). This period is, of course, still
ongoing.
However, were we to deal exclusively with the legal protection of linguistic
minorities, these five historical periods would be reduced to the last three, which
shows that such protection is an extraordinarily recent phenomenon in international
law. In fact it was not until 1920 that some reference to the linguistic rights of
European minorities began to be incorporated into international law. For this
reason, a historical perspective on the legal protection of linguistic minorities
cannot be limited to the field of public international law, but must be extended to
include other means of formal or institutional coverage. Formal protection was
based on the internal constitutional law of the various European states. Outside this
legal framework, the work of some institutions could play a considerable role in the
protection of linguistic minority communities. For many decades, the institutions
that have best undertaken this role have been the Churches and certain cultural or
educational institutions linked to them. More recently, political parties, trade
unions, or social or cultural movements have also adopted a more active role.
Of course, concern about the existence of linguistic minorities has persisted, to
some extent, for centuries. If this concern has not been translated into terms of
formal protection of these minorities, with the corresponding legal consequences, it
has been for political and ideological reasons rather than for legal or institutional
ones. Note also that in specific historical periods, international or internal
protection of a given religious or national minority indirectly implied the protection
1
2
Also from this period are the treaties of Nijmegen in 1678 and Ryswick in 1697, signed by France
and the United Provinces, Karlowitz in 1699, Passarowitz in 1718 and Belgrade in 1739 by the
Holy Roman Empire and the Ottoman Empire, Breslau in 1742 by the Holy Roman Empire and
Prussia, Warsaw in 1773 between Austria and Prussia on the one hand, and Poland on the other,
and Kütschük-Kainardschi in 1774, signed by the Ottoman Empire and Russia.
Other treaties from this period dealing with religious or national minorities are the Treaty of Edirne
in 1829 (concluding the Russo-Turkish War), the Conference of London in 1830, the Treaty of
Paris in 1856, the Treaty of Berlin in 1878 and the Convention of Constantinople in 1881.
The Protection of Linguistic Minorities: A Historical Approach
7
of the linguistic element characterising it. Indeed the linguistic element can be
closely linked to the religious or ethnic definition of a community, so the apparent
absence of international legal protection of linguistic minorities before 1920 must
not be taken too literally.
1. The Modern Age
This brief historical account of the evolution of linguistic minorities and their
protection could begin in sixteenth-century Europe; a period characterised both by
humanism and by various religious reform movements. By that time, the linguistic
profile of the continent was well delineated and was not substantially different to
that of today. Most of the languages spoken in Europe were, as now, descendants
of the different groups that form the Indo-European linguistic family. 3 Among
these groups, Romance languages were dominant to the south and west of the Alps,
mainly in former Galia and the Italic and Iberian Peninsulas. 4 The Germanic
languages, however, predominated to the north of the Alps and in the British Isles.5
In the latter and in Brittany, the Celtic language proved the exception.6 The Baltic
group remained faithful to its place of origin, 7 hounded to a certain extent by
Germanic groups, but principally by the great Slavic group that persisted in most of
the eastern zone of the continent.8 In the Balkans, next to the Romance territories,
Slav communities were grouped, sharing their territory with Albanian and Greek
communities. Apart from the Indo-European languages, the Finno-Ugric group has
been present since time immemorial in north-eastern Europe. 9 The Hungarian
branch, an offshoot of this family, finally settled in the plain of Panonia around the
ninth century. Finally, the most surprising exception to the Indo-European predominance was the survival of the Basque language in a little corner of Western
Europe. The linguistic profile thus described is therefore little different from that of
five centuries earlier, although it is substantially different from that of the
beginning of the first Millennium.
The arrival of the Modern Age introduced some factors that would influence the
evolution of this linguistic profile. Three factors were particularly important: the
consolidation of national kingdoms, the Reformation and the invention of the
3
4
5
6
7
8
9
Indo-Germanic, in the German version of the term.
From west to east these are Galician, Portuguese, Asturian, Spanish, Occitan, French, Aragonese,
Catalan, Franco-Provençal, Corsican, Sardinian, Italian, Romansch, Ladin, Friulan, Dalmatian,
Arumanian, Vlach and Romanian.
From south to north languages of this group are Upper German, Lower German (including Dutch
and Flemish), Frisian, Danish, Swedish, Norwegian, English, Faeroese and Icelandic.
The Celtic group of languages includes Breton, Cornish, Welsh, Scottish Gaelic, Irish Gaelic and
Manx.
Including at this time Latvian, Lithuanian and Prussian.
In Eastern and Central Europe are found Slav languages such as Russian, Byelorussian, Ukrainian,
Polish, Czech, Sorbian, Kashubian and Slovak. Further south in the Balkans, Slav languages such
as Slovene, Serbo-Croat, Macedonian and Bulgarian are also found.
This group is represented in Europe by a number of languages such as Finnish, Karelian, Saami,
Estonian, Livonian, Mari, Urdmurt, Ingrian, Mordvin, Vepsian, Votic, Komi and Hungarian.
8
Eduardo J. Ruiz Vieytez
printing press. First of all, the consolidation of national kingdoms, especially in
Western Europe, was crucial in the strengthening of some languages to the
detriment of others, for political and institutional reasons rather than social or
commercial ones. Moreover, a much more stable political outlook than that
prevailing in medieval times is required in order to consider the existence of
linguistic minorities within a given state. Political and frontier stability began to
emerge in the sixteenth century. Secondly, the Reformation undoubtedly had a
bearing on the evolution of European languages. On the one hand, the schism
between Roman Catholicism and the Eastern Orthodox faith led to the appearance
of specific national Churches opposed to the universalism of Rome. On the other
hand, both Roman Catholics and Protestants, especially the latter, were to encourage the translation of the Scriptures into vernacular languages and their use in
liturgy and worship. The third factor was the invention of the printing press by
Gutenberg in 1445, which logically allowed the much faster and wider spread of all
types of writing, facilitating communication in certain languages despite the
existing political realities.
Some authors have defined the linguistic situation at this time as tripartite: the first
level was occupied by Latin, which was still practically the sole transmitter of
culture and language for numerous religious and diplomatic activities. Centuries
later, Latin would be partially overtaken by French in these roles. At the second
level, some national languages (Spanish, French, English, Swedish, and so on)
were consolidated as characteristic of national kingdoms and therefore as a means
of strengthening them. Finally, at the third level, the rest of the languages spoken in
these kingdoms did not enjoy any official recognition from the royal authorities,
but were still widely used in certain social or religious activities. This tripartite
scheme was widely established in Western Europe, while in numerous zones of
Central and Eastern Europe a minority language, German, played the dominant role
in cultural and economic life. German played this important role either in tandem
with Latin, as in the Hungarian and Polish kingdoms, or with other languages used
in worship, such as Old Slavic and Arabic, as in Russia and the Balkans under
Ottoman rule. As the consolidation of national kingdoms was weaker in Eastern
Europe, the process of official acceptance of some national languages was slower
as it took place through religious rather than political structures (Hannum 1990,
50–1).
Since the Modern Age there have thus been two opposing linguistic tendencies:
one of them driven by the Lutheran Reformation and in part by the Council of
Trent 10 , which reflected Erasmus of Rotterdam’s humanist tradition 11 in that it
treated every Christian language equally. The other tendency was to impose
specific languages as the official ones in the new states, to the detriment of Latin
10
At the Roman Catholic reforming Council of Trent (1545–63), a new foundation for the
development of canon law was expressed in the Capita de reformatione (Articles Concerning
Reform), see Chapter VII. The Council of Tours had already taken this line in 813.
11
Epiclesis, Erasmi opera omnia, VI, 3, 1516. We could equally well refer to the Petrarchan or
Dantean tradition.
The Protection of Linguistic Minorities: A Historical Approach
9
and the respective regional languages. Clear examples of this are the Ordonnance
de Villers-Cottêrets12 given in 1539 in favour of the French language; the 1536 Act
of Union of England and Wales which deprived Welsh of its official status in
favour of English; and the Decreto de Nueva Planta (new ground plan) issued by
King Philip V of Spain at the beginning of the eighteenth century13 to promote the
Spanish over the Catalan influence. Time has shown this second tendency to be the
stronger, as national states consolidated and certain languages were relegated to the
sidelines.
2. The Nineteenth Century
The arrival of the Contemporary Age led to remarkable changes in the treatment of
European minorities in general, and linguistic minorities in particular. Indeed after
the French Revolution the appearance of the political concept of nation would have
important consequences for the linguistic reality of each country. In this respect,
both the “French” concept of nation as a political entity based on the adhesion of
the individuals who form it, and the “German” concept of nation as a cultural
reality, would have political implications to the detriment of linguistic minorities,
mainly wherever their own power structure in an independent or federal state was
denied them. In any case, a natural dimension had to be given to the artificial
creation of the state, which was made possible through the unity of language and
culture (see Petschen Verdaguer 1990, 42).
In fact, the concept of the political nation would imply the progressive imposition
of a unique official language to the detriment of the other realities of a country.
This concept can be seen in France after the Revolution, for example the famous
report on regional languages from the Convention’s Committee of Public Health in
1794.14 On the other hand, the cultural concept of nation, still based on the German
philosopher Herder’s positive appreciation of the validity and goodness of every
language, was finally linked to the need to regroup the speakers of a language in a
unique political entity, more or less excluding those citizens who did not share this
common element. Some indications of this train of thought, to be consolidated in
Germany after the Unification of 1870, can clearly be seen in Fichte’s speeches to
the German nation at the beginning of the nineteenth century.15
The changing relation between religion and language at this time is worth noting. If
linguistic minorities in the sixteenth and seventeenth centuries had been commonly
accepted and religious minorities persecuted, the latter would now only face
difficulties when using a different language to that of most of the population. This
12
Promulgated in the name of King Francis I, 15 August 1539.
The decree for Aragon and Valencia was proclaimed in 1707, the decree for Majorca in 1715 and
the decree for Catalonia in 1716.
14
Also the Convention’s decree on regional languages, 27 January 1794.
15
Johann Gottlieb Fichte, German philosopher. In 1807–08 at the University of Berlin he delivered
his Reden an die deutsche Nation (Addresses to the German Nation), full of practical views on
national recovery and glory.
13
10
Eduardo J. Ruiz Vieytez
also partly explains why the development of international legal protection of
minorities began with treaties referring to religious minorities, and that only after
the appearance of the modern concepts of the nation-state and the rule of law
would linguistic and national minorities be included in this formal protection. In
contemporary society, religion has increasingly been relegated to the private sphere
and has not required the participation of the public or state system. Linguistic
reality, however, which by definition cannot abandon its public character, carries
with it a highly symbolic charge. Indeed language, not religion, would largely
structure national realities in the European continent.
For this reason, the languages supported by the state would begin to spread, to the
detriment of minority languages, with the support of the growing bureaucracies,
and above all the ideological support of liberals or nationalists. In this respect, the
generalisation of compulsory education and the universalisation of military service
would become two weapons of extraordinary efficiency in the state standardisation
of languages. Support for minority languages would in some cases be delegated to
the Churches, principally the Catholic Church, and to the political and social
activity of a nationalism still weak and on the defensive, which in most cases
would not be able to stake its claims until the twentieth century. Nevertheless, in
some countries political support or a precarious national equilibrium allowed the
incorporation into constitutional law of systems or regimes beneficial to linguistic
communities that were not of major importance at this period. This is what
happened in the Helvetic Confederation, through the Constitutions of the cantons
of Bern (1831), Friburg (1857) and Valais (1907), and the Federal Constitution of
1874; the Grand Duchy of Luxembourg in its Constitution of 1868; and the
Austrian Empire, with its approval of a new Austro-Hungarian dual structure, on
the one hand, and the Basic Law in 1867 for the Austrian part of the Empire, on the
other. Protective legislation, motivated by different interests, was also approved
during this period in countries such as Finland (still a Grand Duchy dependent on
Russia)16 and Norway (under Swedish sovereignty).
From a philosophical perspective, it is also worth noting that a foundation of
political thought was developed in the nineteenth century justifying the active
protection of minorities, even in democratic states, thanks to the contributions of
Alexis de Tocqueville (1946, Chaps. XIV and XV, 182–214) and John Stuart Mill
(1912, Chap. VII, 247–71; Chap. XVI, 380–8). And, undoubtedly, the development
of a specific type of nationalism, personified to some extent by Mazzini in Italy,
greatly stimulated the fight for protection of minority linguistic communities.
3. The Twentieth Century
The end of the First World War saw the appearance of the first international
treaties in which the linguistic rights of members of specific national minorities in
a wide zone of Central and Eastern Europe would be protected, and monitored by
16
Ordinance of Tsar Alexander II in 1863.
The Protection of Linguistic Minorities: A Historical Approach
11
the League of Nations. The effectiveness of these treaties, which drew up a new
framework for the protection of the affected minorities, has long been disputed.
Despite the many criticisms made of the partiality of this group of treaties, it is fair
to point out that it is the most complete system of protection of national minorities
ever applied in Europe. If the result has not been as expected, the reason does not
lie in the system but in the conditions and circumstances in which the treaties had
to be implemented. Jurisprudence derived from the interpretation of some of their
clauses, especially in the field of education, has in fact been taken farther than the
peace treaties themselves.
In the inter-war period, legal developments in the internal constitutional matters of
certain states favoured specific linguistic minorities. Of particular note is the
adoption by the Soviet Union of a highly decentralised structure, which theoretically shows respect for national identities of the different nationalities forming the
union. This structure, originally inspired by Lenin, could not however prevent the
progressive implantation of Russian to the detriment of other existing languages,
although the process of linguistic standardisation would take place later. Finland
and Ireland won their independence during this period and adopted similar
constitutional regimes with respect to language, including an official status for the
lesser-used languages such as Swedish and Irish Gaelic. Belgium also began to
introduce legislative measures to balance the status of the two main languages of
the country, although this did not benefit the recently incorporated Germanspeaking minority. Even Spain conformed, with a tentative attempt to protect the
Basque and Catalan languages in the framework of the Second Republic, which
was to be dramatically suppressed with the arrival of General Franco’s fascist
regime in 1936.
The atrocities perpetrated during the Second World War had provoked strong
revulsion in the collective conscience of humanity by 1945. References to national
feelings to justify the use of force and the memory of the Holocaust led to a strong
ideological reaction underlining the inviolability of basic human rights and dignity.
This new approach was highly individualistic and the collective rights of groups or
communities were regarded with important reservations, both political and philosophical. This ideological reaction was very harmful to the fate of national
minorities. Their existence was to some extent considered as a threat to peace.
While in 1920 the peace treaties had moved borders and created new boundaries
between old and new states, in 1945 the victorious powers decided to move
populations to avoid the maintenance of strong minorities within European
countries. In this way, more than 20 million people (most of them Germans) were
displaced to ensure higher levels of national homogeneity in the various European
states. The winds of change that blew in the first decades after the war therefore did
not favour European minorities and the legal developments achieved during the
period of the League of Nations were abandoned. From both a political and an
ideological point of view, minority issues were to remain in second place in the
international debate.
12
Eduardo J. Ruiz Vieytez
The national minorities that did enjoy some degree of specific protection under
international law in this period, including in all cases some linguistic rights, were
those of the Aaland Islands, the South Tyrol, the minority groups living in the area
of Trieste, the Slovene and Croat minorities in Austria and the “mirror” minorities
in the border regions of Germany and Denmark. No legal developments were made
in Eastern Europe, but constitutional systems would protect or promote the
situation of some linguistic minorities: among these were the Soviet Union (already
referred to in the inter-war period), Yugoslavia, the German Democratic Republic,
Romania (for a short period in which territorial autonomy was established in favour
of the Hungarian communities in Transylvania) and, in Western Europe, Italy and
Belgium, in addition to Finland, Ireland and Switzerland which maintained their
previous frameworks.
At the regional level, the European Convention for the Protection of Human Rights
and Fundamental Freedoms (1950) did not mention linguistic minorities, although
a reference to national minorities was adopted among its anti-discrimination
clauses. In this respect, the jurisprudence of the European Court of Human Rights
has shown the limited possibilities of this important treaty in the protection of
linguistic minorities. At the global level, the main development was the adoption of
the International Covenant on Civil and Political Rights in 1966, Article 27 of
which refers to the rights of persons belonging to linguistic, religious or ethnic
minorities.
The new ideological formulas of the 1960s and 1970s implied a distaste for the
collective rights question. Many nationalist political movements, some of them
with a new style, canalised a growing feeling of national or linguistic identity that
in some cases was translated into politics. Of course this phenomenon was
confined to Western Europe where, for different reasons, linguistic conflicts in
Belgium and the South Tyrol strongly reappeared, together with other national
conflicts linked to more or less explicit linguistic realities, especially in Northern
Ireland, the Basque country, Catalonia, Scotland and Corsica. This time some
constitutional structures were adapted to minority linguistic realities, as in Italy
with the reformulation of some statutes, in Spain with the adoption of the
Constitution of 1978 or in Belgium with successive constitutional reforms.
However, no noteworthy legal developments were made in the international field at
this time, other than a generic reference in the Final Act of Helsinki in 1975.
Clearly, however, the non-formal protection of minorities had by this time acquired
a certain importance. Social, political or cultural movements, trade unions, political
parties and other non-governmental organisations co-operated with the
development of linguistic minorities as they had never done before, in many cases
partly fulfilling the role previously played by the Churches. This new reality would
also outline the future development of linguistic minority communities, whatever
degree of legal protection they may have obtained. In this respect, the creation of
the European Bureau for Lesser-used Languages in 1982 was a landmark for
Western European minorities.
The Protection of Linguistic Minorities: A Historical Approach
13
The opening of minds to the minorities issue in the 1970s was to turn to alarm
during the 1990s after the fall of the Berlin Wall. New events, especially those with
antagonistic and warlike overtones, would bring the minorities question to
international attention, as in the inter-war period. This paper does not cover the
group of treaties, statements and agreements adopted in the last decade of the
twentieth century in relation to European national minorities. However, from a
historical point of view, a last reflection on this point is pertinent. The group of
documents currently in force on these subjects includes two treaties introduced
under the auspices of the Council of Europe: the Framework Convention for the
Protection of National Minorities, and the European Charter for Regional or
Minority Languages. Apart from these, many bilateral treaties exist concerning
good neighbourliness and friendship, which have been signed only by the states of
Eastern and Central Europe. The role of the OSCE High Commissioner on
National Minorities has so far only been exercised in Eastern or Central European
countries, or in the territory of the former Soviet Union.17
Last but not least, for many countries in Eastern Europe ratification of the treaties
dealing with minorities, or compliance with the rights of persons belonging to
minority groups, have been prerequisites of admission to the Council of Europe as
a first step to their European integration. This means that to some extent the current
international framework for the protection of minorities is not very different from
that of the 1920s and 1930s. Western European countries try to deal with their
minority issues through constitutional arrangements, if any, while Eastern
European countries are more or less obliged to comply with a number of treaties
and dispositions and to provide information to the OSCE on this topic: that is, they
allow international supervision of their treatment of minorities. Apart from the
treaties drafted within the framework of the Council of Europe, the current system
as a whole seems to be intended mainly for the international protection of national
minorities living in the zone of Europe that was protected by the minority clauses
of 1920. Linguistic minorities in Western European countries have been able to
enjoy some constitutional provisions or, if not, some degree of support within the
framework of the European Union. To put it in a nutshell, at the dawn of the
twenty-first century there once again seems to be a difference in the means of
protection offered to linguistic minorities from the two sides of Europe.
17
At a general level, it is important to note that the OSCE High Commissioner on National Minorities
has promoted the adoption of some important political documents or recommendations, with the
participation of relevant experts in the minority rights field. Among these documents are The
Hague Recommendations Regarding the Education Rights of National Minorities (October 1996)
and the Oslo Recommendations Regarding the Linguistic Rights of National Minorities (February
1998). See http://www.riga.lv/minelres/osce/index.htm.
Eduardo J. Ruiz Vieytez
14
References
ABALAIN, H. 1989. Destin
celtiques. Paris: Ophrys.
des
langues
MILL, J. S. 1912. On Liberty. London: Oxford
University Press.
ANDERSON, B., A. PHILIPS et al. 1997. World
Directory of Minorities. London: Minority
Rights Group International.
PETSCHEN VERDAGUER, S. 1990. Las minorías
lingüísticas
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Europa
occidental:
documentos (1492–1989). Vitoria-Gasteiz:
Basque Parliament.
DE TOCQUEVILLE, A. 1946. Democracy in
America. London: Oxford University Press.
DE VARENNES, F. 1996. Language, Minorities
and Human Rights. The Hague: Martinus
Nijhoff.
FOUCHER, M., ed. 1998. Fragments d´Europe;
Atlas de l´Europe médiane et orientale. Paris:
Fayard.
HANNUM, H. 1990. Autonomy, Sovereignty and
Self-Determination. Philadelphia: University
of Pennsylvania Press.
MAGOCSI, P. R. 1995. Historical Atlas of East
Central Europe (A History of East Central
Europe, Vol. 1). Seattle: University of
Washington Press.
RUIZ VIEYTEZ, E. J. 1999. The History of Legal
Protection of Minorities in Europe (XVIIth–
XXth centuries). Derby: University of Derby.
SELLIER, J. and A. SELLIER 1995. Atlas des
Peuples d´Europe Occidentale. Paris: La
Découverte.
SELLIER, J. and A. SELLIER 1995. Atlas des
Peuples d´Europe Centrale. Paris: La
Découverte.
VILLAR, F. 1991. Los indoeuropeos y los
orígenes de Europa; lenguaje e historia.
Madrid: Gredos.
WALTER, H. 1994. L´aventure des langues en
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géographie. Paris: Robert Laffont.
About the Author
Eduardo J. Ruiz Vieytez is a Doctor of Law and Director of the Institute of Human
Rights at the University of Deusto-Bilbao (Basque Country). He has been juridical
assessor to the Ombudsman in the Basque Parliament and he is the author of
several publications in the fields of environmental law, the Basque electoral
system, immigration law and minority rights. He has been a member of the Spanish
Board on Immigration and has participated as expert in several missions of the
Council of Europe on linguistic minorities. He has also been invited to teach in
other European universities such as Derby (UK), Tilburg (Netherlands) and Lyon 3
(France). His main publications include The History of Legal Protection of
Minorities in Europe (XVIIth–XXth centuries)(Derby: University of Derby, 1999).
Address : Institute of Human Rights, University of Deusto, Bilbao, Basque
Country, Spain, email: [email protected]
Language Rights as an Integral Part of Human
Rights
FERNAND DE VARENNES
Murdoch University
The rights of minorities are often thought of as constituting a distinct
category of rights, different from traditional human rights. Such a
view fails to recognise that the use of descriptive expressions such as
“minority rights” or “language rights” may be useful, but also
imprecise. Most of what are widely recognised as minority rights are
in fact the direct application of basic human rights standards such as
freedom of expression and non-discrimination. This means that
language rights are not collective rights, nor do they constitute “third
generation” or vague, unenforceable rights: by and large, the
language rights of minorities are an integral part of well established,
basic human rights widely recognised in international law, just as are
the rights of women and children.
"Does not the sun shine equally for the whole world? Do we
not all equally breathe the air? Do you not feel shame at
authorizing only three languages and condemning other people
to blindness and deafness? Tell me, do you think that God is
helpless and cannot bestow equality, or that he is envious and
will not give it?", Constantine the Philosopher (Cyril), 9th
Century A.D. 1
E
uropean countries operate today on the basis of shared, common values.
These comprise the rule of law, democracy, human rights, including the
rights of persons belonging to minorities, tolerance and a pluralistic society. They
are values that are widely accepted from OSCE documents to Council of Europe
treaties, as well as part of the political criteria for admission of new states to the
European Union. The observance of these values is no longer a matter of choice,
but a political and – in the case of human and minority rights – legal imperative. As
stated in the 1990 Charter of Paris for a New Europe "the rights of persons
belonging to national minorities must be fully respected as part of universal human
1
Quoted in Readings in the Sociology of Language, Joshua A. Fishman (ed.), Mouton and Co. N.V.
Publishers, The Hague 1968, at p. 589.
International Journal on Multicultural Societies (IJMS), Vol. 3, No. 1, 2001: 15 - 25
ISSN 1817-4574, www.unesco.org/shs/ijms/vol3/issue1/art2 © UNESCO
16
Fernand de Varennes
rights". The promotion of tolerance and pluralism is also an important component
of these shared values.
Minorities have numerous rights in relation to language. They can be based on
international or European treaties which are legally binding documents. A number
of rights found in international law and in Council of Europe treaties are also
repeated in documents from the OSCE and other organisations. While these latter
examples do not for the most part involve legally binding documents, they do
represent at the very least political and moral obligations. Perhaps more importantly, they reflect a generalised consensus as to what are the human rights of
minorities and on the standards that are applicable in the area of language.
The purpose of this paper is to make the link between language rights and human
rights. There is often the mistaken view that the rights of minorities, or language
rights, are part of a new generation of rights, or are collective in nature. This
perception is both unfortunate and erroneous: unfortunate because it tends to consider language rights as less deserving than "real" human rights, and wrong
because it fails to understand the actual sources of these rights. To put it simply,
most – if not all – of what are called today language rights derive from general
human rights standards, especially non-discrimination, freedom of expression, right
to private life, and the right of members of a linguistic minority to use their
language with other members of their community. All of these are "authentic",
individual human rights as generally recognised in international law.
The error which is too often perpetuated is, as this paper will attempt to
demonstrate, simply based on the failure to see the larger picture of the
phenomenon which has emerged in the last 20 or 20 years: that the treaties and
other documents dealing with the rights of linguistic minorities are but a more
detailed enumeration of the consequences of general human rights in specific
situations. Just as there are many documents and treaties which have provided
more detail as to the consequences of general human rights in specific sectors of
society such as women and children, for example, there now is a process providing
more detail as to the consequences of general human rights in another specific
sector of society, minorities.
There is not in the present state of international law or under European treaties an
unqualified "right to use a minority language" or "right to language". This should
be clear from a close examination of relevant treaties, but also of the decision of
the European Court of Human Rights in the Belgian Linguistic Case. There are a
number of basic human rights and freedoms that affect the issue of language
preferences and use by members of a minority or by the State.
1. The Private Use of a Minority Language
One way to approach these matters is to begin by explaining how and why
language rights are to a large degree based on pre-existing individual human rights,
Language Rights as an Integral Part of Human Rights
17
and by focusing on the content of the rights of minorities which you find in a treaty
like the Framework Convention on the Protection of National Minorities, though
not in any way exclusive to it.
In almost all treaties or language right documents, there is a distinction made
between the private use of a language by individuals, and the use of a minority
language by public authorities. It is a useful distinction to make conceptually,
because it will help to show that what one may assume are "language rights" or
"rights of minorities" are also at the same time simply the manifestation, the
application of fundamental individual rights such as freedom of expression and
others in the private realm.
On the issue of language rights in the private sphere, state conduct which prevents
or controls the use of a language in private activities can be in breach of existing
international human rights in the private sphere are the rights to private and family
life, freedom of expression, non-discrimination or the right of persons belonging to
a linguistic minority to use their language with other members of their group.
Of course, the right to privately use a minority language is a minority right or
language right contained in the Framework Convention on the Protection of
National Minorities and other documents such as the Oslo Recommendations
regarding the Linguistic Rights of National Minorities, but these minority or
language rights are in fact simply based on freedom of expression and other
individual human rights.
It may help, and indeed be more convincing, to give a few precise examples. All
language or minority treaties essentially recognise that individuals have the right to
have their name or surname in their own language. This is a minority or linguistic
right, but it is also a basic human right. This right is clearly recognised in
international law as a part of the right to private life.2 In one of its decisions, the
United Nations Human Rights Committee has made it clear that the notion of
privacy includes:
…the sphere of a person’s life in which he or she can freely express his or her
identity, be it by entering into relationships with others or alone. The Committee is
of the view that a person’s surname [and name] constitutes an important
component of one’s identity and that the protection against arbitrary or unlawful
interference with one’s privacy includes the protection against arbitrary or unlawful
interference with the right to choose and change one’s own name.3
Public authorities cannot interfere with this right arbitrarily or unlawfully, and the
Committee has indicated that a restriction on the right to choose one’s name would
Coeriel and Aurik v. Netherlands, United Nations Human Rights Committee, Communication No.
453/1991, U.N. Doc. CCPR/C/52/D/453/1991 (1994); Burghartz v. Switzerland, European Court of
Human Rights, judgment of 22 February 1994, 18 E.H.R.R. 101.
3
Coeriel and Aurik v. Netherlands, supra, Paragraph 10.2.
2
18
Fernand de Varennes
have to be reasonable to satisfy this requirement. A state cannot prevent an
individual from having a name or surname which is not in an official language or
not contained on a prescribed list. Names and surnames constitute a means of
identifying persons within their families and the community, and as such are an
inseparable part of private life.
Another relevant example, especially in the European context, is when a
government authority bans the private use of a minority language in public areas
(such as banning individuals from having a private conversation in their language
in public streets, or banning its use in a public park, etc.). Such attempts are
breaches of freedom of expression, would in all likelihood be a form of
discrimination based on language, and would certainly be contrary to Article 27 of
the International Covenant on Civil and Political Rights if they restrict the use of a
minority language by individuals who are members of such a minority. This is once
again a minority or language right in a number of European treaties and documents,
but it is first and foremost a manifestation of an existing, fundamental human right.
Essentially, all of the provisions in the Framework Convention for the Protection of
National Minorities; the Central European Initiative for the Protection of Minority
Rights; Oslo Recommendations regarding the Linguistic Rights of National
Minorities, and the many, many similar documents on minority or language rights
which deal with the private use of a minority language are examples of the direct
application of general human rights provisions, mainly freedom of expression, nondiscrimination, right to private life and the rights of members of a linguistic to use
their own language with other members of their group.
The freedom for private individuals to use a minority language in private
correspondence or communications, including in private business or commercial
correspondence, by telephone, electronic means; to have private displays such as
outdoor commercial signs and posters in a minority language; use a minority script
on posters, commercial signs, etc. of a private nature; the freedom to print in a
minority language; the freedom to use a minority language in the conduct of
private business and economic activities; even the right to create and operate
private schools teaching in a minority language, are all language rights. But their
very nature is anchored, they originate, from existing human rights.
These examples are important to make especially in the European context, because
there is a tendency of describing language rights in relation to "national minorities",
and that is both dangerous and incorrect. All of the examples that have given up to
now on the private use of minority languages, based as they are on human rights
such as freedom of expression, etc. are not limited to national minorities. Any
individual, whether his or her language group is "national" or not, has freedom of
expression, has the right to private life, has the right to non-discrimination, and has,
as confirmed by the United Nations Human Rights Committee, the right to use his
or her language with other members of his or her linguistic group. These rights are
Language Rights as an Integral Part of Human Rights
19
not restricted to national minorities nor to citizens, as may be the case here in
Europe under some of the treaties of the Council of Europe.
2. The Use of a Minority Language by Public Authorities
Once again, it may be conceptually easier to explain the relationship between
human rights and the language rights dealing with the use of a minority language
by public authorities by making a distinction between two categories of language
use: one can be identified as language rights in relation to the fairness of judicial
proceedings, and the other with the general use of public officials of minority
languages.
It is a well established language right that when an individual does not understand
the language used in criminal court proceedings, or the language used in a criminal
accusation, that public authorities must use the [usually minority] language this
person understands. This first example of the right to have public authorities use a
minority language is recognised as a minority or language right in treaties such as
the Framework Convention for the Protection of National Minorities, the European
Charter for Regional or Minority Languages, and many, many other documents at
the level of the OSCE and the United Nations that are simply too numerous to
name.
These two rights are universally recognised in international law and found in most
treaties dealing with human rights, usually linked to the principle of a fair trial.
Any accused, including persons belonging to linguistic minorities, whether they are
citizens or not, has the right to an interpreter in criminal cases for translation of
proceedings, including court documents, if s/he does not understand the language
used in criminal proceedings. The right to be informed promptly in a language one
understands is similarly universally recognised in international law as a basic
"linguistic" right based on a fundamental human right.
The above describes much of the content that most people would have always
assumed were simply minority rights: in fact, they are all the application of
fundamental human rights. That leaves but one category of language rights for
which a connection with fundamental human rights has not been shown. This is the
category involving the general use of minority language(s) by public authorities. It
is an area of major concern, because it covers many matters such as public
education using a minority language as medium of instruction, public radio and
television broadcasting in a minority language, use of minority languages by public
officials in the provision of services to the public (and therefore a major source of
employment for individuals within the civil service), etc.
One thing is now clear: public authorities have an obligation to use the language of
minorities in appropriate circumstances, such as where numbers and geographic
concentration of the speakers of a minority language make it a reasonable or
justified arrangement. These language or minority rights are now well accepted
20
Fernand de Varennes
"European standards": from a legal point of view, they are contained in two treaties
of the Council of Europe, the Framework Convention on the Protection of National
Minorities and the European Charter for Regional or Minority Languages.
The right to have public authorities use a minority language where reasonable or
justified is also referred to in an increasingly large number of resolutions, declarations and other documents in the Council of Europe, the European Union (where
respect for minority rights is now part of the political criteria for admission of new
States to the EU), the Organisation for Security and Co-operation in Europe, and
the United Nations. These confirm the widespread acceptance of these rights as
fundamental political commitments in addition to legal obligations.
This right in relation to the use of a minority language by public officials is quite
variable. It is not a right to a language, it is not a right which appears every time
there is a minority language or a demand to use a minority language, it is only a
right which arises, essentially, when there are substantial speakers or sufficient
speakers of a language demand a certain type of public service in their language. It
actually means that where the numbers of speakers of a minority language are too
low, or it is too onerous to use a minority language in a certain type of public
service, it is not a violation of a language or minority right for public officials not
to use this language.
In other words, in some situations the various relevant conditions make it is
reasonable, or if you prefer justified in pursuit of a legitimate objective, for public
authorities not to use a minority language in their activities and services. But if the
numbers of speakers are substantial enough, as the term is used in the Framework
Convention on the Protection of National Minorities, then it would be unreasonable
or unjustified for public officials not to use to the appropriate degree and level the
minority language in their activities.
This minority or language right uses the same basic approach as is guaranteed in
international law from the application of the general prohibition of discrimination
as to language, as contained in Article 26 of the International Covenant on Civil
and Political Rights, and under the new Protocol No. 12 to the Convention for the
Protection of Human Rights and Fundamental Freedoms.4
It is no coincidence that the same type of test is involved in determining the
situations where public officials must use a minority language and the situations
involving non-discrimination: just as has been shown, most language or minority
rights in the private sphere involve fundamental human rights such as freedom of
expression, right to private life: well, in the area of the use of a minority language
by public officials, what is involved in most cases is the proper application of nondiscrimination based on language. Most of you are familiar with the Belgian
Linguistics Case which was handed down by the European Court of Human Rights.
4
See de Varennes, Fernand (1996), Language, Minorities and Human Rights, Martinus Nijhoff, The
Hague, chapter 4 for a detailed discussion of this issue.
Language Rights as an Integral Part of Human Rights
21
This decision has more often than not been deemed to signal that there is no right
to state education in a minority language under the European Convention, even in
combination with the principle of non-discrimination. In fact, that is not quite
correct. The European Court of Human Rights actually said that non-discrimination
based on language did not automatically guarantee to all minorities such a right.
What was meant was that there might be situations where the denial of education in
a minority language could possibly be discrimination on the basis of language, but
that the linguistic policies in the area of education in Belgium were, for the most
part, not unjustified in the circumstances, and therefore not discriminatory. But that
conversely meant that had the language policies in education been deemed
unjustified, there would have been a situation of discrimination, and some
rearrangement of the right to education in the minority language would have been
necessary.
It may help to give a few examples of what constitutes this language or minority
right in relation to the use of a minority language by public officials, and then end
with an explanation as to why the linkage of these rights as an integral part of
human rights has significant consequences in the European context. Where public
authorities at the national, regional or local levels face a sufficiently large number
of individuals who use a particular language, the authorities must provide an
appropriate level of service in this language.
For example, in the case of local districts and their administration where minorities
are concentrated, local authorities should generally provide for an increasing level
of services in their language as the number of speakers of a particular language
increases. Beginning at the lower end of what will be called a “sliding-scale
model”, public officials should at the very least have official documents and forms
available in appropriate areas where there is a low, though sufficient number of
speakers of a minority language. As the number progressively get higher, in
addition to bilingual or minority language documents, public officials would have
to accept and respond to applications in a minority language.
At the very top of the scale, there would have to be some kind of bilingual
administration in districts where a minority language is used by a very high
percentage of the population. This means that there would have to be a sufficient
number of public officials who are in contact with the public in place to respond to
the use of the non-official or minority language, and even that in these areas the
minority language be used as an internal and daily language of work within public
authorities. So the principle, based on the relevant treaty provisions or nondiscrimination, would apply to all activities relating to "administrative or public
authorities", all areas of state involvement, including the judiciary, state education,
state-provided health services, public broadcasting, etc.
For example, where a sufficient number of students of a linguistic minority are
concentrated territorially, it would be unreasonable - and in all likelihood be a
breach of non-discrimination - for a state not to provide an appropriate degree of
22
Fernand de Varennes
use of their language as medium of instruction in public schools. The degree of use
of a minority language will vary according to what is "reasonable", "appropriate"
or "practical" in each situation: the extent of demand for such instruction, the level
of use of the minority language as medium of instruction, the state’s ability to
respond to these demands, etc. This follows the same "sliding-scale model" as
described earlier.
3. The Significance of Linking Language Rights as Part of Human
Rights
The Council of Europe has two major treaties dealing with language rights, and
even the European Union is increasingly recognising language rights as other
speakers today will demonstrate, so what useful purpose is served by trying to link
language or minority rights with human rights? Such a linkage is still necessary
because of the two main weaknesses of the both the Framework Convention for the
Protection of National Minorities, the European Charter for Regional or Minority
Languages.
The first main weakness in my view is tendency to limit language rights to national
minorities, while leaving unclear what is a national minority. The second weakness
is the almost complete absence of any recourse for individuals whose rights are not
respected.
While it is true that both treaties have made an invaluable contribution to our
understanding of language and minority rights by spelling out their content in
greater detail, it is unfortunate that they seem to suggest that only citizens have
language rights if by national minorities is meant a traditional, historical minority
on a state’s territory. It is however clear, especially when using the concept of the
private use of language, that such a view is wrong. As you will remember, most of
the language or minority rights dealing with the private use of a language are based
on freedom of expression. Freedom of expression is not limited, in European or
international law, to citizens, so it is obviously clear that we cannot limit language
rights in the private sphere to national minorities. The Council of Europe treaties
do not actually says this, but unfortunately a number of people in Europe and
elsewhere seem to believe that only "national minorities" have language rights
since only they are specifically referred to in these treaties. That is, as my example
shows, clearly wrong. But linking language rights to specific human rights as can
be done in most if not all cases does provide for the possibility for those
individuals who may not be considered to be “national minorities” to use the
human rights approach and mechanisms to have their rights respected, especially in
the area of private language use with its emphasis on freedom of expression and
other rights.
The second weakness, and in my view an even more serious one, is the lack of any
individual remedies. States which have ratified the Framework Convention for the
Protection of National Minorities or the European Charter for Regional or
Language Rights as an Integral Part of Human Rights
23
Minority Languages have reporting obligations and their compliance will be
examined by committees of experts, but that is all. States are not subjected to a
judicial or quasi-judicial body which can investigate claims of violations of the
treaties. There will not be decisions or judgments which will be issued as to
whether or not a government is in violation of the Charter or Convention. This is of
course much, much weaker than what you have under the European Convention for
Human Rights, where you have a court that can hand down judgments, and the
United Nations which has a Committee under the International Covenant on Civil
and Political Rights which can hand down decisions in response to complaints by
individuals that their rights are not being respected. None of this exists
And this is where, once again, the significance of linking language rights with
human rights becomes apparent. The absence of any individual judicial recourse
under the Framework Convention for the Protection of National Minorities and
European Charter for Regional or Minority Languages can be, to some degree,
corrected by using those treaty mechanisms which do permit the adjudication of
individual complaints.
The language rights of individuals involving freedom of expression, the right to
private life, non-discrimination, the right to freely use a minority language with
other members of the minority, etc., can in appropriate cases be raised either before
the European Court of Human Rights or the UN Human Rights Committee for a
ruling, even if individuals have no direct recourse under the Framework
Convention for the Protection of National Minorities or the European Charter for
Regional or Minority Languages.
4. Conclusion
Unius linguae uniusque moris regnum imbecille et fragile est.
St. Stephen5
Europe is without any doubt at the forefront of developments in the area of
language or minority rights. The Council of Europe’s treaties such as the European
Charter on Minority or Regional Languages and the European Convention on the
Rights of National Minorities are clarifying the content of the rights of minorities,
much the same way as treaties for specific groups such as women and children
have evolved at the international level. There are also many other documents and
other instruments which follow the same general principles, from OSCE to
European Union documents, as well as bilateral treaties. Despite differences in
wording, emphasis or even perspective, all tend to confirm the same basic minority
rights in the area of language.
5
Quoted in the foreword, C.A. Macartney, "National States and National Minorities", Russell and
Russell, New York 1968
24
Fernand de Varennes
What is unfortunately sometimes, even perhaps often, forgotten is that these
language or minority rights are not an exception to, or a weaker type of, human
rights. Not only are they an integral part of human rights – which many documents
from the Council of Europe and the European Union tend to confirm – they are
more importantly mostly based on such fundamental human rights as freedom of
expression and non-discrimination.
This understanding of the nature of language rights must be emphasised because of
the mistaken belief that only certain categories of individuals such as national
minorities have language rights. As most clearly demonstrated with the example of
private use of a minority language, this is false: the language rights based on
freedom of expression are available to any individual, not restricted to those who
belong to a national minority category.
Finally, understanding the human rights origins of language rights may also help
avoid one of the central weaknesses of the European Charter on Minority or
Regional Languages and the European Convention on the Rights of National
Minorities. Individuals whose language rights are violated by governments have no
direct recourse available to them under either treaty.
This failure to give individuals a direct route of redress can be avoided by using the
available procedures for judicial redress that are available under the International
Covenant on Civil and Political Rights or the European Convention for the
Protection of Human Rights and Fundamental Freedoms and the human rights
guarantees which are at the root source of most language or minority rights,
especially freedom of expression and non-discrimination.
About the Author
Fernand de Varennes is a Doctor of Law and Director of the Asia-Pacific Centre
for Human Rights and the Prevention of Ethnic Conflicts at Murdoch University,
Australia. He has written and published in eleven languages on the issues of human
rights, minority rights and ethnic conflicts. His seminal work on “Language,
Minorities and Human Rights” places him as one of the world’s leading experts on
linguistic rights, and he has worked with numerous international organisations such
as the United Nations’ Working Group on the Rights of Minorities, UNESCO and
the OSCE’s High Commissioner on National Minorities on these issues. He is on
the advisory board of numerous research centres and journals around the world and
has been a research fellow at the European Academy in Bolzano, Italy, Seikei
University, Tokyo. He recently held the prestigious Tip O’Neill Peace Fellowship
at INCORE (Initiative on Conflict Resolution and Ethnicity) in Derry, Northern
Ireland. His most recent publications include a two-volume series on human rights
documents on Asia. He is currently collating a three-volume series on peace
agreements involving ethnic and internal conflicts worldwide.
Language Rights as an Integral Part of Human Rights
25
Address: Asia-Pacific Centre for Human Rights and the Prevention of Ethnic
Conflict, Murdoch University, Murdoch, WA 6150, Australia; email:
[email protected]
La Charte Européenne des Langues Régionales
ou Minoritaires: un instrument juridique au
service du patrimoine linguistique européen1
ELDA MORENO
Conseil de l’Europe, Strasbourg
La Charte Européenne des Langues Régionales ou Minoritaires est un
traité international original destiné à protéger les langues régionales
ou minoritaires en tant qu’aspect menacé du patrimoine culturel
européen. En ratifiant la Charte, les Etats s’engagent à appliquer à
toutes ces langues certains principes fondamentaux et choissent des
engagements concrets pour l’utilisation de certaines d’entre elles
dans sept domaines de la vie publique: l’enseignement, la justice, les
administrations et services publics, les médias, les équipements et
activités culturelles, la vie économique et sociale et les échanges
transfrontaliers. Le suivi du respect de ces engagements est assuré
par un Comité d’experts qui analyse les rapports que les Etats sont
tenus de présenter et qui établit ses propres rapports à l’attention du
Comité des Ministres du Conseil de l’Europe. Le Comité des Ministres
peut alors adresser des recommandations aux Etats en les
encourageant à œuvrer pour la protection des langues traditionnellement parlées sur leurs territoires.
E
n 1999, le Conseil de l’Europe a fêté ses 50 ans. Créée en 1949, au lendemain
de la deuxième guerre mondiale, cette organisation intergouvernementale
travaille à l’édification d’une Europe unie, fondée sur la liberté, la démocratie, les
droits de l’homme et l’Etat de droit. Son but est de réaliser une union plus étroite
entre ses membres, afin de sauvegarder et de promouvoir les idéaux et les principes
qui sont leur patrimoine commun.
Aujourd’hui fort de ses 43 Etats membres, le Conseil de l’Europe constitue une
plate-forme privilégiée pour la coopération internationale dans de nombreux
domaines. Sauvegarder et promouvoir la richesse et la diversité du patrimoine
culturel de l’Europe sont devenus des objectifs fondamentaux de cette coopération.
1
Les opinions exprimées dans cet article n’engagent que la responsabilité de son auteur et ne
reflètent pas nécessairement le point de vue du Conseil de l’Europe
International Journal on Multicultural Societies (IJMS), Vol. 3, No. 1, 2001: 26-32
ISSN 1817-4574, www.unesco.org/shs/ijms/vol3/issue1/art3 © UNESCO
27
Elda Moreno
Les langues régionales ou minoritaires constituent une partie intégrante du
patrimoine culturel européen. Depuis 1992, le Conseil de l'Europe propose aux
Etats européens la possibilité de confirmer leur engagement pour la protection de
ce patrimoine par le biais d’un instrument juridique: la Charte européenne des
langues régionales ou minoritaires. Cette Convention, entrée en vigueur le 1 mars
1998, a été signée et ratifiée par quatorze Etats (Allemagne, Autriche, Croatie,
Danemark, Espagne, Finlande, Hongrie, Liechtenstein, Norvège, Pays-Bas,
Royaume-Uni, Slovénie, Suède et Suisse 2 ). Treize autres 3 l’ont signée dont
plusieurs déposeront bientôt leur instrument de ratification.
Par rapport à d’autres instruments s’intéressant à la protection des langues, la
Charte a adopté une approche originale déterminée par son objectif, par l’étendue
de la protection garantie et par le mécanisme de contrôle des engagements prévu
dans son dispositif.
1. Objectifs de la Charte
L’objectif dominant de la Charte est d’ordre culturel. Elle est destinée à protéger et
à promouvoir les langues régionales ou minoritaires en tant qu’aspect menacé du
patrimoine culturel européen.
La Charte vise donc les langues, non les minorités linguistiques. Elle ne crée pas de
droits individuels ou collectifs pour les locuteurs des différentes langues, mais des
obligations positives à la charge des Etats. Ainsi, la Charte prévoit des mesures
offrant à ces langues un appui actif : le but étant d’assurer, autant qu’il est
raisonnablement possible, l’emploi des langues régionales ou minoritaires dans
l’enseignement et dans les médias et de permettre leur usage dans le monde
judiciaire et administratif, dans la vie économique et sociale et dans les activités
culturelles.
Avec son approche interculturelle et plurilingue, la Charte ne conçoit pas la
relation entre les langues officielles et les langues régionales ou minoritaires en
termes de concurrence ou d’antagonisme. Loin de renforcer les tendances à la
désintégration, la sauvegarde du patrimoine linguistique permet une meilleure
compréhension entre les différentes parties de la population de l’Etat. Là où il
existe des minorités, elle peut aider, d’une manière mesurée et réaliste, à atténuer le
problème de celles dont la langue est l’élément distinctif.
Les objectifs de la Charte ont également déterminé la définition de certains
concepts ainsi que la terminologie adoptée. Le concept de langue s’articule
essentiellement autour de sa fonction culturelle. C’est la raison pour laquelle la
Charte renonce à une définition subjective (elle ne consacre pas un droit individuel
2
3
Etat de ratifications au 10 août 2001.
Armenie, Chypre, Fédération de Russie, France, Islande, Italie, Luxembourg, Malte, République
tchèque, Roumanie, "ex-République yougoslave de Macédoine", Slovaquie, Ukraine.
La Charte Européenne des Langues Régionales ou Minoritaires
28
à parler « sa propre langue ») ou politico-sociale ou ethnique (la langue comme
véhicule d’un groupe social ou ethnique déterminé).
Les langues concernées par la Charte sont les langues régionales ou minoritaires,
les langues dépourvues de territoire et les langues officielles moins répandues.
L’article 1 de la Charte s’efforce de définir certains concepts :
« Article 1 – Définitions
Au sens de la présente Charte:
a. par l'expression «langues régionales ou minoritaires», on entend les langues:
i
pratiquées traditionnellement sur un territoire d'un Etat par des ressortissants de cet
Etat qui constituent un groupe numériquement inférieur au reste de la population de
l'Etat; et
ii
différentes de la (des) langue(s) officielle(s) de cet Etat;elle n'inclut ni les dialectes
de la (des) langue(s) officielle(s) de l'Etat ni les langues des migrants;
b. par «territoire dans lequel une langue régionale ou minoritaire est pratiquée», on entend
l'aire géographique dans laquelle cette langue est le mode d'expression d'un nombre de
personnes justifiant l'adoption des différentes mesures de protection et de promotion
prévues par la présente Charte;
c.
par «langues dépourvues de territoire», on entend les langues pratiquées par des
ressortissants de l'Etat qui sont différentes de la (des) langue(s) pratiquée(s) par le reste
de la population de l'Etat, mais qui, bien que traditionnellement pratiquées sur le
territoire de l'Etat, ne peuvent pas être rattachées à une aire géographique particulière de
celui-ci.»
Quant aux langues officielles moins répandues, l’article 3 dispose que « Chaque
Etat contractant doit spécifier dans son instrument de ratification, d'acceptation ou
d'approbation chaque langue régionale ou minoritaire, ou chaque langue officielle
moins répandue sur l'ensemble ou une partie de son territoire, à laquelle
s'appliquent les paragraphes choisis conformément au paragraphe 2 de l'article 2 ».
La Charte ne spécifie pas quelles langues européennes correspondent au concept de
langues régionales ou minoritaires telles que définies en son article 1. En fait,
l’étude préliminaire de la situation linguistique en Europe a amené les auteurs de la
Charte à renoncer à y annexer une liste des langues régionales ou minoritaires
parlées en Europe. Ceci laisse aux Etats une certaine marge d’appréciation dans
l’interprétation des concepts tels que «langue», «dialecte» ou «pratiquées
traditionnellement».
Les auteurs de la Charte ont été confrontés au problème des grandes différences qui
existent dans les réalités des langues régionales ou minoritaires ainsi que dans les
situations politique, sociale ou économique des Etats européens. Ces différences
font appel à des mesures distinctes et faciles à adapter aux contextes divers. Pour
29
Elda Moreno
toutes ces raisons, la Charte a mis en place un mécanisme souple qui permet
d’adapter l’étendue de la protection garantie aux différentes circonstances.
2. La protection garantie: des principes généraux aux dispositions
concrètes
Face à la diversité des situations et dans un souci d’efficacité maximale, la Charte
s’organise autour de deux parties principales : une partie générale qui établit le
tronc commun de principes applicables à tous les Etats et à toutes les langues (c’est
la Partie II) ; une partie contenant les engagements concrets, particuliers, pouvant
varier selon les Etats et les langues (c’est la Partie III).
La Partie II de la Charte définit les grands principes auxquels souscrivent les Etats
adhérents et qui sont considérés comme constituant le cadre nécessaire à la
sauvegarde des langues concernées. Ils s’appliquent à toutes les langues régionales
ou minoritaires, mais certains d’entre eux concernent également, mutatis mutandis,
les langues dépourvues de territoire. Enoncés par l’article 7, ces principes peuvent
être regroupés en huit points principaux :
(1) la reconnaissance des langues régionales ou minoritaires en tant
qu'expression de la richesse culturelle;
(2) le respect de l'aire géographique de chaque langue régionale ou
minoritaire, en faisant en sorte que les divisions administratives déjà
existantes ou nouvelles ne constituent pas un obstacle à la promotion de
cette langue régionale ou minoritaire;
(3) la nécessité d'une action résolue de promotion des langues régionales ou
minoritaires, afin de les sauvegarder;
(4) la facilitation et/ou l'encouragement de l'usage oral et écrit des langues
régionales ou minoritaires dans la vie publique et dans la vie privée;
(5) la mise à disposition de formes et de moyens adéquats d'enseignement et
d'étude des langues régionales ou minoritaires à tous les stades appropriés;
(6) la promotion des échanges transfrontaliers en vue de favoriser le maintien
et le développement des langues régionales ou minoritaires;
(7) la prohibition de toute forme de distinction, discrimination, exclusion,
restriction ou préférence injustifiées portant sur la pratique d'une langue
régionale ou minoritaire et ayant pour but de décourager ou de mettre en
danger le maintien ou le développement de celle-ci.
(8) la promotion par les Etats de la compréhension mutuelle entre tous les
groupes linguistiques du pays, en faisant notamment en sorte que le
La Charte Européenne des Langues Régionales ou Minoritaires
30
respect, la compréhension et la tolérance à l'égard des langues régionales
ou minoritaires figurent parmi les objectifs de l'éducation et de la
formation dispensées dans le pays, et à encourager les moyens de
communication de masse à poursuivre le même objectif.
Malgré le caractère général de ces dispositions, si les Etats parviennent à fonder
leur politique, leur législation et leur pratique sur les principes énoncés, ils
assureront une protection aux langues concernées tout en disposant d’une liberté
quant au choix des moyens à mettre en œuvre.
La Partie III de la Charte contient une série de dispositions spécifiques concernant
la place des langues régionales ou minoritaires dans les divers secteurs de la vie de
la communauté: les Etats sont libres, à l’intérieur de certaines limites, de
déterminer lesquelles de ces dispositions s’appliqueront à chacune des langues
qu’ils auront identifiées.
Il revient à l’Etat de faire un double choix: identifier les langues qui bénéficieront
des mesures prévues dans la Partie III et déterminer, pour chaque langue identifiée,
un minimum de 35 engagements (sur un ensemble de 68 propositions) répartis sur
les sept domaines distingués au sein de cette partie: éducation, justice,
administration publique, médias, action culturelle, vie économique et sociale,
échanges transfrontaliers.
L’article 8, consacré à l’enseignement, nous offre une bonne illustration de la
logique du choix. Il propose pour chaque type d’enseignement (éducation
préscolaire, enseignement primaire, secondaire, technique ou professionnel,
universitaire et formation d’adultes) un catalogue de mesures graduées, certaines
modestes, d’autres très ambitieuses. Il s’agit d’engagements alternatifs et l’Etat
peut choisir l’un des engagements de chaque catalogue. Par exemple, pour
l’éducation préscolaire, l’article 8 dispose :
1.
«En matière d'enseignement, les Parties s'engagent, en ce qui concerne le territoire sur lequel
ces langues sont pratiquées, selon la situation de chacune de ces langues et sans préjudice de
l'enseignement de la (des) langue(s) officielle(s) de l'Etat:
i
à prévoir une éducation préscolaire assurée dans les langues régionales ou minoritaires
concernées; ou
ii
à prévoir qu'une partie substantielle de l'éducation préscolaire soit assurée dans les langues
régionales ou minoritaires concernées; ou
iii
à appliquer l'une des mesures visées sous i et ii ci-dessus au moins aux élèves dont les
familles le souhaitent et dont le nombre est jugé suffisant; ou
iv
si les pouvoirs publics n'ont pas de compétence directe dans le domaine de l'éducation
préscolaire, à favoriser et/ou à encourager l'application des mesures visées sous i à iii cidessus;»
31
Elda Moreno
L’esprit de la Charte n’est pas de laisser aux Etats un choix discrétionnaire dans la
détermination des engagements qu’ils souscrivent, mais de leur permettre d’adapter
ces dispositions à la situation concrète des différentes langues et aux conditions
(notamment administratives et financières) des signataires.
Cette liberté dans le choix et cette souplesse constituent sans doute des éléments
qui font de la Charte un instrument original. En même temps, elles impliquent que,
préalablement à la ratification de cet instrument international, il soit essentiel de
consulter et de se concerter avec les acteurs des différents domaines concernés
(éducation, justice, administration publique, médias, action culturelle, vie
économique et sociale, échanges transfrontaliers) et avec les locuteurs des
différentes langues afin que le choix définitif soit bien le résultat d’une réflexion
approfondie.
Toutefois, le choix des langues et des mesures concernées par la Partie III n’est pas
définitif, puisque, après la ratification, l’Etat peut élargir ses engagements à tout
moment et accorder par exemple le bénéfice de la Partie III à une nouvelle langue
ou choisir des mesures plus ambitieuses pour les langues déjà identifiées.
Enfin, la Charte a prévu un mécanisme dont le but est de contrôler les engagements
souscrits par les Etats et qui parviendra sans doute à préserver le respect de l’esprit
et les objectifs de ce traité international.
3. Le mécanisme de contrôle
Pour permettre un suivi de l’application de la Charte, à la fois par le Conseil de
l'Europe, par ses membres et par le public en général, la Charte a retenu un système
de rapports périodiques rédigés tous les trois ans par les Parties sur la politique
suivie et les mesures prises en exécution de leurs engagements. Le premier de ces
rapports, dont l’objectif est de décrire la situation linguistique lors de l’entrée en
vigueur de la Charte, doit être présenté dans un délai d’un an à partir de cette date.
Ces rapports sont rendus publics et sont disponibles auprès des autorités des Etats
signataires et du Secrétariat du Conseil de l’Europe.
La mise en œuvre de la Charte est suivie par un Comité d’experts indépendants,
composé de personnes reconnues pour leurs compétences dans le domaine des
langues régionales ou minoritaires. Le Comité est chargé d’examiner les rapports
périodiques présentés par les Parties Contractantes et peut demander et prendre en
compte les informations complémentaires lui permettant de mieux évaluer la
situation. Suite à l’examen du rapport, le Comité peut décider de se rendre au pays
et rencontrer les autorités ainsi que les représentants des organismes ou
associations qui sont légalement établis et qui sont chargés de promouvoir les
langues concernées. Sur la base des informations recueillies, le Comité élabore un
rapport à l’attention du Comité des Ministres du Conseil de l’Europe avec des
suggestions de recommandations que celui-ci pourrait adresser à l’Etat en question.
La Charte Européenne des Langues Régionales ou Minoritaires
32
En 1999, le Comité d’experts s’est réuni à trois reprises et a examiné les rapports
périodiques présentés par les Pays-Bas, la Hongrie, la Suisse, la Croatie et la
Finlande. Il a décidé de demander des informations supplémentaires à ces Etats et a
réalisé ses premières visites « sur le terrain » en Croatie, Finlande, Hongrie, PaysBas, Norvège et Suisse.
4. Conclusion
La Charte européenne des langues régionales ou minoritaires présente un intérêt
spécial du fait de son approche culturelle et pragmatique. Les engagements
concrets acceptés par les Parties se traduiront non seulement dans l'amélioration de
la protection juridique accordée à ces langues, mais également dans l'application
effective des dispositions en vigueur. Dans ce sens, elle complète les dispositions
concernant les droits linguistiques contenues dans deux autres instruments-clés du
Conseil de l’Europe: la Convention Européenne des Droits de l’homme et la
Convention-cadre pour la protection des minorités nationales.
Quoique consacrée aux langues « pratiquées traditionnellement » sur le territoire
des Etats européens, son application œuvre pour la reconnaissance des valeurs
culturelles et sociales du plurilinguisme et ne peut qu’améliorer la situation des
langues en général. En outre, la Charte peut servir de modèle pour l’élaboration
d’un instrument international applicable à d’autres cadres régionaux.
En 2001, le Conseil de l'Europe célèbrera l’Année Européenne des Langues. Nous
vous invitons à vous joindre aux événements et aux initiatives qui seront organisés
pour la sauvegarde et la promotion du plurilinguisme en Europe.
Sur l'Auteur
Elda Moreno est administratrice au Conseil de l’Europe depuis 1995. De 1995 à
1999, elle a été le Chef du Centre Naturopa. Depuis 1999, elle travaille au
secrétariat de la Charte Européenne des Langues régionales ou minoritaires. Née en
1965 à Carthagène (Espagne), elle a réalisé ses études supérieures dans les
Universités de Murcie (Espagne), Strasbourg (France) et Hagen (Allemagne). Elle
y a obtenu la Maîtrise en droit, le Certificat d’études juridiques françaises, le
Certificat de Hautes Etudes Européennes et le Diplôme d’Etudes Supérieures
Spécialisées en droit de l’environnement et de l’aménagement du territoire. Ses
principales langues sont l’espagnol, le français, l’anglais et l’allemand.
Adresse: Secrétariat de la Charte Européenne des Langues Régionales ou
Minoritaires, Direction Générale I. Affaires Juridiques, Conseil de l’Europe, 67075
Strasbourg Cedex, France; email: [email protected]
The European Union and Lesser Used
Languages
DÓNALL Ó RIAGÁIN
European Bureau for Lesser Used Languages, Ireland
This article examines the position of languages in the European
Union. The Treaty of the European Union has very little to say about
language; it simply lists in article 314 the twelve languages in which
there are authentic versions of the Treaty. Article 21 states that EU
citizens may write to the EU institutions in any of the languages, listed
in article 314, and have an answer in the same language. The official
and working languages are listed in Council Regulation No.1. In
practical terms, French and English dominate as de facto working
languages. More EU citizens speak German as mother-tongue than
any other language while English is known by more than any other
language. The European Parliament, in particular, has supported
measures to conserve and develop lesser used (regional or minority)
languages. The newly adopted Charter of Fundamental Rights states
that the Union shall respect linguistic diversity. In a Union, set to
enlarge substantially, can these seemingly conflicting realities be
reconciled?
T
o speak of the position of the European Union on language is at once both
simple and complex. Very little is said in the Union Treaty about language.
Only two articles are directly relevant. Article 314 states:
The treaty, drawn up in a single original in the Dutch, French, German, and
Italian languages, all four texts being equally authentic, shall be deposited in the
archives of the Italian Republic, which shall transmit a certified copy to each of
the governments of the other signatory States.
Pursuant to the Accession treaties, the Danish, English, Finnish, Greek, Irish,
Portuguese, Spanish and Swedish versions of this treaty shall also be authentic.
And Article 21 which states:
…Every citizen of the Union may write to any of the institutions referred to in
this Article or in Article 7 in one of the languages mentioned in Article 314 and
have an answer in that language.
International Journal on Multicultural Societies (IJMS), Vol. 3, No. 1, 2001: 33 - 43
ISSN 1817-4574, www.unesco.org/shs/ijms/vol3/issue1/art4 © UNESCO
34
Dónall Ó Riagáin
So we have here twelve official, authentic versions of the Treaty and twelve
languages in which a citizen may write to one of the Union’s institutions. The
question of official and working languages is dealt with, not in the Treaty itself, but
in Council Regulation No. 1 of 1958. This Regulation, amended following on the
accession of new member states, names eleven official and working language i.e.
the twelve “Treaty languages”, as listed in Article 314 of the Treaty, less Irish.
The exceptional status of Irish can be traced back to the attitude of the Irish
government of the day, in the early seventies, when Ireland was negotiating its
terms of accession. The government sought that Irish be an official language, but
not a working one. It was claimed that Irish being a working language “could give
rise to serious difficulties of a practical nature.”1 Some observers would suggest
that the real reason lay in the fact that plans were being laid to end competence in
Irish as an essential qualification for entry into general grades in the civil service –
a move which would have been rendered well near impossible should Irish become
a working language of the European Communities. Whatever the real motive may
have been, the Irish authorities missed the point that Regulation No. 1 makes no
distinction between official and working languages. The result was that Irish is
neither an official nor a working language. However, the Irish government did
succeed in agreeing that Irish could be used for certain purposes, subject to certain
restrictions. Irish is an official language of the European Court of Justice. It may
also be used in the European Parliament if advance notice is given to the
interpretation service. Revised versions of the Treaty are produced in Irish as are
certain documents, e.g. Parliament resolutions, information material, if requested.
Irish appears on all EU passports. This “in between” position of Irish has been
underlined because it may serve as a precedent for other languages in the future.
For instance, the status of Irish in the EU is a source of interest in Malta. Maltese is
undoubtedly the national language of Malta but one spoken by only 300,000 people
and rarely used for international communications.
The Union, with its eleven official and working languages is quite exceptional as
an international organisation. The Council of Europe and NATO have only two
working languages – French and English. The UN has only six. The practical
difficulties which arise from having such a large number of working languages
should not be underestimated. Labrie2 estimates that the Commission alone has to
translate more than a million pages and to interpret for more than 100,000
interpreter days per annum. Geometric progression comes into play with each
language added to the list as translation and interpretation from and into this language must be possible from each and every other official and working language.
The proverb, Talk is cheap, hardly applies in this case!
1
2
Letter dated 23.07.71 from Dr. Patrick Hillery TD, Minister for Foreign Affairs, to the President of
the European Communities.
Labrie, Normand, “The Historical Development of Language Policy in Europe”, in A Language
Strategy for Europe – Retrospect and Prospect, Pádraig Ó Riagáin and Síle Harrington, editors,
Dublin 1999.
The European Union and Lesser Used Languages
35
It is worth noting that the de facto as distinct from de jure position of language use
does not reflect this multilingual situation. A study carried out in 1994 by the
Gerhard-Mercator Universität of Duisburg3 showed that there were two dominant
languages in use in EU institutions – French and English. Table 1 gives a résumé of
the study:
Table 1: Languages used by Staff in EU Institutions
Language
French
English
German
Others
Within EU
Institutions
(in %)
With EU citizens
(in %)
With Non-EU
citizens
(in %)
Oral
Written
Oral
Written
Oral
Written
69
30
1
<0.5
75
25
<0.5
<0.5
54
42
3
1
56
41
2
1
30
69
1
<0.5
28
71
1
<0.5
When the LINGUA Programme – now part of Socrates – was launched, to promote
“foreign language” ability among European citizens, Irish and Lëtzebuergesch
were included for the purposes of the programme. Later on, the three non-EU
members of the EEA – Norway, Iceland and Liechtenstein – agreed to participate
in and financially support the EU’s educational and cultural programme. This led
to the inclusion of Norwegian and Icelandic in the list of LINGUA languages. Of
course, the lesser used languages, spoken by 40m.+ EU citizens did not figure in
these provisions.
1. The European Parliament and regional and minority languages
The first signs of interest in the future of the Communities’ regional and minority
languages appeared in the European Parliament in 1979. On 28 September of that
year a motion for resolution was tabled by Gaetano Arfé MEP and a number of
other Socialist members, all of them from either Italy or France, on a Charter of
Ethnic Minorities. Less than a month later, a further motion for resolution was
tabled by John Hume MEP, 4 now a Nobel Peace Laureate, and co-signed by a
Socialist deputy from all the member states calling for the drawing up of a ‘Bill of
Rights of the Regional Languages and Cultures of the Community’. Although at
first glance both motions for resolution seemed very similar, there was in fact a
very profound underlying difference in approach between them. Whereas the Arfé
Motion for Resolution speaks of ‘the demands for autonomy, of ethnic and
3
4
Reported in the New Language Planning Newsletter, Vol. 9 No.4, June 1995.
Motion for Resolution on a “Bill of Rights of the Regional Languages and Cultures of the
Community”, B3-0016/90.
36
Dónall Ó Riagáin
linguistic minorities’, the Hume Motion for Resolution side-steps issues such as
ethnicity and autonomy and rather refers to ‘this diversity’ being ‘again one of the
main sources of the vitality, richness and originality of European civilisation’. In
the event, the Parliament decided to have two different reports drawn up – one on
the rights of ethnic minorities and another on the promotion of regional and
minority languages. Gaetano Arfé MEP, a former Professor of History in the
University of Firenze and a highly respected parliamentarian, was appointed
rapporteur of the report on languages whereas the Legal Affairs Committee of
Parliament appointed a German Christian Democrat, Mr. A. Goppel, to prepare the
report on European legislation on ethnic groups. Hume expressed the opinion on a
number of occasions to the author that an approach based on ethnicity would never
meet with success because it would of its nature trigger off a substantial political
reaction. He believed, however, that an approach based on language and culture
would strike a chord across political and ethnic divides and stood a very good
chance of being accepted. Hume’s assessment of the situation proved to be correct.
The Arfé Report and accompanying motion for resolution came before the plenary
session of the Parliament in October 1981.5 The Goppel Report on the other hand
never got past committee stage nor did a subsequent attempt to prepare such a
motion for resolution, prepared by Graf Stauffenberg MEP and later by Siegbert
Alber MEP.
The Arfé Resolution called on the member state governments and on regional and
local authorities to enact a number of measures to support and promote regional
and minority languages particularly in the domains of education, mass communication, public life and social affairs. The motion was adopted by a comfortable
majority – 80 votes in favour, 18 against and 8 abstentions. The only political block
which voted almost solidly against the resolution was the English Tory group. It
was interesting that the Irish Fianna Fáil deputies, who were members of the same
political group as the French Gaullists, voted in favour of the resolution but persuaded their French colleagues to abstain rather than vote against the resolution.
Most of the 80 votes in favour came from the centre left groupings, especially the
Socialists. It should be clearly understood that it was not within the competence of
the European Parliament to order a member state government to take any particular
action in this field and it had to limit itself to calling on them to adopt certain
measures.
In 1982, participants from lesser used language communities in a colloquy,
organised by the Socialist Group to consider how best the provisions of the Arfé
Resolution might be implemented, decided that the time was ripe to establish an
organisation which could speak and act on their behalf at European level. This led
to the establishment of the European Bureau for Lesser Used Languages. The
author was elected its first president and subsequently served as Secretary General
for almost fifteen years. The Bureau has as its general aim to conserve and promote
5
Resolution on a Community Charter of Regional Languages and Cultures and on a Charter of
Rights of Ethnic Minorities, adopted by the European Parliament on 16 October 1981 (A1–965/80)
16.10.81 OJC 287 p. 57
The European Union and Lesser Used Languages
37
the lesser used autochthonous languages of the European Union, together with their
associated cultures. It concerns itself only with its general aim and in matters relating to party politics, religion, race or ideology, it remains independent.
The organisation has committees in thirteen of the fifteen EU member states and
has two offices – one in Dublin and one in Brussels. It aims at seeking political and
financial support for lesser used languages in European institutions and has been
particularly active in the European Parliament and the Council of Europe. It also
seeks to facilitate an exchange of information and experiences among those
working for lesser used languages and to this end organises an annual study visit
programme, and has published a considerable number of booklets, posters etc. It
has a bilingual newsletter, Contact-Bulletin and a news agency – Eurolang. It
receives by far the greater part of its income from the EU.
The Arfé Resolution led to the opening of a small EU budget line to support
measures in favour of regional and minority languages. This was first included in
the budget of 1982 and amounted to only 100,000 ECU, as the Euro was then
called. By 1997, this figure had grown to 4 milllion Euros.
A second resolution on lesser used languages was adopted by the Parliament in
1983.6 Again, this resolution was prepared by Gaetano Arfé. It did not contain any
new or innovative proposals and its main purpose was to keep pressure on the
Commission and on the other EU institutions to fully support and implement the
measures contained in the original Arfé Resolution.
The next major initiative on behalf of lesser used languages in the European
Parliament came in the form of a report and resolution prepared by Willy Kuijpers,
MEP, a Fleming from the Volksunie group.7 The Kuijpers Resolution was more
ambitious and wide-ranging than the original Arfé Resolution. While more or less
respecting the division of domains as outlined by Arfé, it went into greater detail
on specific actions which might be taken in different areas. Interestingly, it also
called on the Council and Commission to continue their support and encouragement for the European Bureau for Lesser Used Languages by ensuring adequate
budgetary resources.
Another very important development was to take place in 1983 with the
establishment of the Intergroup for Minority Languages and Cultures. An intergroup is an informal committee, comprising MEPs from different political groups,
who come together on a regular or an occasional basis because of their interest in a
common issue – in this case, in the promotion of lesser used languages. The first
6
7
Resolution on measures in favour of minority languages and cultures. Resolution prepared by
Gaetano Arfé and adopted by the European Parliament on 11.03.1983 (A1-1254/82) OJC 68
(14.03.93) p. 104
Resolution on the languages and cultures of regional and ethnic minorities in the European
Community adopted by the European Parliament on 30.10.87 (A2-0150/87) OJC 318 (30.11.87) p.
144
Dónall Ó Riagáin
38
meeting was convened on 9 February 1983 under the chairmanship of Gaetano
Arfé MEP. The minutes of this meeting record Mr. Arfé as having ‘explained the
purpose of the meeting, which was to bring together those members of Parliament
who had shown an interest in promoting minority languages and cultures with a
view to working together in Parliament to promote and monitor community
policies in favour of minority languages and regional cultures.’ Unlike many other
intergroups, the Intergroup for Minority Languages and Cultures has continued to
flourish and over the past seventeen years has done sterling work to ensure the
development of an EU policy in respect of the Community’s linguistic heritage.
While the minutes of the first meeting show that, with three exceptions, all of those
present were either Socialist or Communist members, the membership of the
Intergroup quickly spread to practically all political groups. Such was the respect in
which Gaetano Arfé was held that he continued to remain President of the
Intergroup until leaving the European Parliament at the time of the 1984 European
elections. Since then the presidency has rotated, normally on a six-monthly basis,
between one political group and another.
In 1990, John Hume tabled a new motion for resolution calling for another report
on languages. This time the rapporteur chosen was Mark Killilea MEP. Killilea
was an Irish Fianna Fáil deputy who was a member of the Union for Europe group
whose other members were mostly French Gaullists and Italian members of Forsa
Italia. The report itself differed from the earlier Kuijpers and Arfé Reports in that it
focused very much on the European Charter for Regional or Minority Languages
which had been accorded the status of an international convention by the
Committee of Ministers of the Council of Europe in 1992. The Killilea Resolution8
was wholehearted in its support for the Charter.
The European Parliament…
6. Supports the European Charter for Regional or Minority Languages, accorded
the legal form of a European Convention, as an effective yet flexible instrument
for the protection and promotion of lesser used languages;
7. Calls on the Member State Governments which have not yet done so as a
matter of urgency to sign and their parliaments to ratify the Convention choosing
at all times to apply those paragraphs best suited to the needs and aspirations of
the linguistic communities in question…
When the vote was taken on the Resolution in February 1994 there were 321 votes
in favour with only one vote against and six abstentions. This landslide vote in
favour of the most ambitious resolution yet to be put to the Parliament in favour of
8
Resolution on Linguistic and Cultural Minorities in the European Community adopted by the
European Parliament on 9 February 1994 (A3-0042/94) OJC 061 pg. 110
The European Union and Lesser Used Languages
39
lesser used languages, serves as a yardstick in assessing the positive shift in public
opinion in favour of linguistic diversity.
Finally, there were positive and helpful references to lesser used languages in
resolutions relating to other matters such as cable television networks, European
rural policy, regional policy, and radio and television production, adopted by the
European Parliament.
2. Regional and minority languages in the work of the European
Commission and the Inter-Governmental Council
The Union Treaty was amended at Maastricht in 1992. Among the changes made
was the introduction of new provisions on education and culture. Article 149
(Education, Vocational Training and Youth) referred to the “cultural and linguistic
diversity of the member states” whereas Article 151 (Culture) referred to the
“national and regional diversity” of the member states. Paragraph 4 of the same
Article declares that “The Community shall take cultural aspects into account in its
action under other provisions of this Treaty, in particular in order to respect and to
promote the diversity of its cultures” – the latter phrase being added at the time of
the Amsterdam revision of the Treaty. At one level these references are vague but
at another level they reflect a new and more inclusive perception of European unity.
Things might have continued to develop positively had not the former British
Government (i.e. that of John Major) not taken a case against the European
Commission to the European Court of Justice in 1996.9 The thrust of the British
case was that the Commission had no legal right to spend money on a particular
programme as it was not the subject of a legal act, agreed by the Commission, the
Parliament and the Council. Ironically, neither the legal point at issue nor the
particular programme in contention, which related to combating social exclusion,
had anything to do with language. However, the Court found in favour of the
United Kingdom and ruled that no monies could be allocated to projects if these
projects did not form part of a programme, agreed by the three main Community
institutions. The Court delivered its verdict in early June 1998 and the immediate
effect was that over a hundred budget lines, whose legal bases were doubtful, were
blocked. Over the ensuing few weeks, over half of these were unblocked when the
legal services of the Commission satisfied themselves that each programme had a
satisfactory legal basis. Among those to remain blocked was Budget Line B3-1006
(Regional and Minority Languages and Cultures).
Commission officials and many sympathetic parliamentarians would have been
happy to see an appropriate legal act adopted, one which would establish a multiannual action programme to support lesser used languages. Much preparatory work
was done before the legal advisers of the Commission ruled that Article 149
(Education) would not be sufficient as a legal base for the proposed legal act.
9
C-106/96
40
Dónall Ó Riagáin
Article 151 (Culture) would also have to be invoked. There lay the political
impasse. Actions under Article 151 require unanimity – something impossible to
achieve in the present political climate as it is almost certain that Greece, and even
possibly some other states, would seek to veto any programme aimed at supporting
regional or minority languages. There matters rest.
The Intergovernmental Conference, which is at present examining the Union
Treaty is expected to conclude its deliberations by the end of this year. It is
expected by most commentators to recommend that unanimous decision-making be
replaced by that of qualified majority in all instances, as achieving unanimity on
anything in an enlarged Union will prove to be well nigh impossible. 10 Commissioner Vivienne Reding, who has shown a great understanding of and support
for lesser used languages is expected to initiate the necessary steps to agree a legal
act if the political indications are right. 11 Agreement in principle to abolish
unanimous decision-making and a positive climate for linguistic diversity, flowing
from European Year of Languages’ initiatives,12 could be the critical factors. What
many people are sure of is that the Union’s stance vis-à-vis lesser used languages
and their attendant cultures may shape the attitude of millions of European citizens
towards the entire European project.
Another interesting development is the decision in principle to agree to a Charter of
Fundamental Rights for the European Union, seen by some observers as an
embryonic constitution for a federal Europe. The Intergovernmental Conference is
actively working on this. However, it is still unclear what legal status will be
accorded to this Charter. Will it be an integral part of the Union Treaty or will it
be a mere appendix without any formal standing or enforceable provisions?13 It is
10
As it happened, this did not transpire at the Nice EU Summit of 7 and 8 December 2000. The
unanimity requirement in Article 151 was retained, rather surprisingly on German insistence.
11
Speaking at a Committee of the Regions function in Brussels on 14 December 2000, Commissioner
Reading said, “At the recent Nice summit, European leaders failed to remove the right of veto in
Article 151 of the Treaty, which deals with cultural matters. ... .This means that if all Member
States are not in favour of a programme to support these languages, it will be very difficult to
achieve this. However, by the end of 2001, the European Year of Languages, the various
communities will have made it very clear what they wish. The citizens of the regions will say, ‘this
is what we want Europe to do to support languages’ and on the basis of these discussions perhaps
we could put proposals”.
12
The year 2001 was designated by the Council of Europe as European Year of Languages. The aim
of the project is to raise the awareness among Europeans of their continent’s rich linguistic heritage
and to encourage them to learn additional languages. The European Union and the UNESCO have
joined in supporting the venture. Events will include advertising, posters, public discussions,
conferences, language classes, street carnivals, cultural events with a strong linguistic accent,
school competitions etc. The European Bureau for Lesser Used Languages has proposed an
ambitious programme which entails activities relating to lesser used languages in almost all the EU
member states.
13
In the Conclusions de la Présidence, emanating from the Nice summit (7 & 8.12.00) Par. 2 states:
The European Council welcomes the joint proclamation, by the Council, the European Parliament
and the Commission, on the Charter of Fundamental Rights, containing in a single text the civil,
political, social and societal rights hitherto laid down in a variety of international, European or
national sources. The European Council would like to see the Charter disseminated as widely as
The European Union and Lesser Used Languages
41
also disturbing that at this point in time no paragraphs are included which deal with
linguistic rights. An Austrian MEP, Johannes Voggenhuber, has tabled appropriate
amendments but at this juncture it is impossible to say if his proposals will be
accepted. 14
3. What language policy in the European Union?
Even wider questions on language policy face the Union. Must it, or can it,
continue to add indefinitely to its list of official and working languages?
Enlargement adds a sense of urgency to the issue. Should a more limited number of
working languages be agreed for reasons of cost and practicality? It is interesting to
note that when the European Coal and Steel Community was established in 1951,
Schumann and his colleagues envisaged that there would be only one working
language – French. Indeed, the only authentic, as distinct from official, version of
the ECSC Treaty is the French one.15 But this proved to be unacceptable. It is
claimed that the Flemish were the first to object, fearing that a monolingual
French-speaking body, as important as the Community, could upset the linguistic
balance in Belgium. About five years ago, the French Presidency of the Union
proposed that there be only five working languages – French, German, English,
Italian and Spanish. This proposal gave rise to a storm of protest, especially from
the Netherlands, and was quickly and quietly dropped.
A recent Eurobarometer report16 shows that more EU citizens prefer to learn either
English or French as a second or third language than any other European language.
This is true even for German, notwithstanding the dominant position of German as
a mother-tongue. Table 2 from the report does not have any legal bearing on the
situation but it probably does give us some clues as to the direction EU policy on
language usage might take.
possible amongst the Union’s citizens. In accordance with the cologne conclusions, the question of
the Charter’s force will be considered later.
In short, the Charter did not become an integral part of the Union treaty nor is it legally binding.
14
There are two articles in the Charter which have direct implications for lesser used languages.
Article 21 prohibits any discrimination based on any ground such as sex, race, colour, ethnic or
social origin, genetic features, language, religion or belief, political or any other opinion,
membership of a national minority, property, birth, disability, age or sexual orientation. Article 22
states: The Union shall respect cultural, religious and linguistic diversity.
15
Labrie, Normand, La Construction Linguistique de la Communauté européenne, Paris, 1993.
16
Eurobarometer Report No. 50 – March 1999.
Dónall Ó Riagáin
42
Table 2: Languages spoken by European Union Citizens
Language
English
German
French
Italian
Spanish
Dutch
Swedish
Greek
Portuguese
Danish
Finnish
Russian
Other
Acquired as
First Language
i.e. Mother
Tongue
(in %)
16
24
16
16
11
6
2
3
3
1
1
0
1
Learned as
Second
Language
(in %)
Total
(in %)
31
8
12
2
4
1
1
0
0
1
0
1
4
47
32
28
18
15
7
3
3
3
2
1
1
5
The challenge remains. The Union must be workable and practical in its approach.
And yet Europe can be truly united only if it respects diversity. One wonders if a
distinction might be agreed between internal working languages and languages of
service to Europe’s citizens. Internal working languages could be restricted for
most but not all purposes to two or three languages. Languages of service should
include not only all existing official and working languages but also most of those
we now call “regional”, “minority” or “lesser used”. There should be no second
class citizens in the Community which is under construction.
The decisions to be made constitute at the one time a human rights issue, an
administrative dilemma and, of course, a legal challenge. One hopes that, over the
coming years, a solution can be found that will ensure our human rights and
cultural richness for future generations.
About the Author
Dónall Ó Riagáin is Special Adviser on the staff of the European Bureau for Lesser
Used Languages, having served the organisation as the first President (1982-1984)
and its first Secretary General (until 1998). He was a member of CAHLR, the ad
The European Union and Lesser Used Languages
43
hoc committee which drafted the European Charter for Regional or Minority
Languages and also of the expert committee which prepared the Oslo
Recommendations regarding the Linguistic Rights of National Minorities for the
OSCE High Commissioner on National Minorities. He is currently a member of the
Advisory Council of the European Centre for Minority Issues (ECMI). Besides
contributions to international journals and a number of books, he has published the
“Vade-Mecum – A guide to the legal, political and other official international
documents pertaining to the lesser used languages of Europe” (Dublin 1998), and is
editor of “EBLUL Documents”, a new series of publications by the European
Bureau for Lesser Used Languages.
Address: European Bureau for Lesser Used Languages, 10 Sráid Haiste Íochtarach
IRL - Baile Átha Cliath 2, Ireland; email: [email protected]
Language and Power:
Background to the Debate on Linguistic Rights
SUE WRIGHT
Aston University, Birmingham
T
his article reviews the four contributions included in this issue of the
International Journal on Multicultural Societies and discusses the political
and social context within which the recognition of linguistic rights for regional or
minority language groups has to be addressed. The authors of the other
contributions come from a legal background or are actors in the recognition of
rights issue. Their articles are either state of the art, giving the latest facts and
opinions on the topic, or discuss the legal dimension of the problem, either in the
past or the present. This article attempts to link the four papers by drawing out the
socio-political themes forming and informing the issue. It focuses, particularly, on
the interplay between power and language and the implications of this for linguistic
diversity.
1. State-Formation, Nation-Building and the “Problem” of Linguistic
Minorities
In his paper, Eduardo Vieytez gives a historical account of the evolution of
linguistic rights. He points out that such rights were not an issue in Europe before
the nineteenth century. There are of course good reasons for this.
In the medieval period, the linguistic landscape was both more local and more
“international” than today. The vast majority of Europeans were farmers, serfs and
peasants, who lived and died in the areas where they were born. They spoke the
local dialect of one of the great European language continua: Romance, Germanic,
Celtic, Slavic and Baltic. (Only Finnish, Hungarian, Greek, Albanian and Basque
do not belong to one of these.) Language difference was not a major issue for most
people because adjacent dialects in the continua would have been mutually
comprehensible, and only on the cleavages between them would there have been
difficulties of communication.
At the other end of the social spectrum, the feudal ruling class married and
inherited, fought and conquered on a continental stage. At the apex of the
hierarchy, marriages and alliances were contracted among a very small number of
International Journal on Multicultural Societies (IJMS), Vol. 3, No. 1, 2001: 44 - 54
ISSN 1817-4574, www.unesco.org/shs/ijms/vol3/issue1/art5 © UNESCO
45
Sue Wright
royal families, and the resulting mix promoted family multilingualism. This was a
group that can be categorised as European.
The churches too acted on a pan-European scale. The Roman Catholic Church was
“international” and functioned across linguistic borders through the sacred language, Latin. Those who were literate were probably clerics and literate in Latin.
Within the priesthood all were bilingual even if, for some, competence in Latin was
limited. And in the same way that Latin played the role of lingua franca for
Catholic Western Europe, Greek and Church Slavonic played the role for the
Eastern Churches.1
Thus, in the medieval context, the concept of linguistic minority had little meaning.
There was no majority to define minority. Nor were rulers interested in the
linguistic behaviour of their subjects. Territory changed hands frequently, by succession, marriage or conquest, and thus rulers almost always governed multilingual
or multidialectal populations.
In the sixteenth and seventeenth centuries aspects of the feudal system began to
crumble in Western Europe. Dynasties increasingly fixed the limits of their
territory and respect for the integrity of national space developed. The idea of
national identity took root, particularly after the peace treaties of Augsburg (1555)
and Westphalia (1648) created the idea of national religious homogeneity. The
concept of the state resurfaced as the belief in the divine right of kings was
challenged.
At the same time, a number of European dynasties began to be aware of language
issues and took pains to promote their own variety as the prestige language, the
language of power. In France and Spain, the dialect of the capital was standardised
and codified through the work of language academies set up for that purpose. In
Britain the same process occurred, although without direct intervention by the
monarchy or an academy. An increase in speakers of the prestige variety was
inevitable, if only among the wealthier classes that aspired to gain entry to the
power elites.
Other factors contributed to the standardisation and proliferation process. As
Vieytez notes, in the sixteenth and seventeenth centuries there was a growing
desire for direct access to the Bible in both Protestant and Roman Catholic camps.
This prompted translations of the Bible into the vernacular, inevitably the prestige
language of the capital. Printers adopted standardised languages with enthusiasm.
Print capitalism profited from the standardisation of national languages, because
the process delivered bigger markets than the splintered linguistic landscape of the
dialect continua. The process was, of course, circular, and printers contributed to
1
For discussion of the local and European dimension of the medieval world see G. Duby, Le Moyen
Age 987–1460, Paris, Hachette, 1987.
Language and Power: Background to the Debate on Linguistic Rights
46
standardisation of a “national” language on “national” territory by selling a Bible in
that language across the territory.2
The idea of the nation had two expressions in Europe, civic and ethnic. In the civic
version, the boundaries of the state were set by dynastic expansion. The disparate
groups that found themselves within the state boundaries fell under the nationbuilding pressures of the state as it then attempted to weld them into a cohesive
nation. This was the case in Spain, France and Britain. In the ethnic version, the
leaders of a cultural and linguistic group aimed to provide the group with territory
within which they would be the sole or dominant group. In the German and Italian
cases, groups along the dialect continua were brought together under one
umbrella.3 Other ethnic nation-states were set up at the end of the First World War,
as the victors upheld the right for group self-determination. It was fortuitous
coincidence: self-determination could be presented as an ideal and was also a
useful way of dismantling the defeated empires.
Nationalist ideology preached state homogeneity and independence. The ruling
elites who built the “nation-states” implemented foreign policies which erected
economic frontiers with neighbouring states and cut contact across borders to a
minimum, along with domestic policies which encouraged a single and exclusive
loyalty, a single language and culture. However, state borders that became
impermeable political and economic frontiers, with customs posts that checked
travellers and exacted tariffs on goods, rarely followed the cleavages between the
dialect continua and many linguistic groups were split by them. Thus
autochthonous minorities were to be found to some extent in all the European
nation-states. Then, in the twentieth century, the massive movements of political
refugees in the aftermath of war and economic migrants in periods of prosperity
mixed populations wholesale and introduced further linguistic complexity. By the
end of the century, few European states were without significant allochthonous
minorities. The European “nation-states” never achieved complete congruency of
state and nation, except perhaps Iceland, in its unique geographical position as a
distant island.
The era of nationalism thus created the concept of “linguistic minority” as an
inevitable corollary to the desire for national cohesion and homogeneity. Where
nationalist ideology was strong, “linguistic minority” was not simply a concept but
also a “problem”. In the inclusive civic brand of nationalism, the minority was to
be assimilated so that its members could participate fully in the life of the nation.
Those who refused to assimilate were seen to threaten the state. In the exclusive,
ethnic version of nationalism, the minority was usually kept separate. In the most
extreme versions of ethnic nationalism, where national homogeneity was
synonymous with racial purity, the minority was to be driven out. As Vieytez
2
3
Print capitalism is discussed at length in B. Anderson, Imagined Communities. London, Verso,
1983.
See also L. Greenfeld, Nationalism – Five Roads to Modernity, Cambridge, Mass., Harvard
University Press, 1992; E. Gellner, Nations and Nationalism, Oxford, Blackwell, 1983.
47
Sue Wright
documents, the plight of minorities gradually came to the fore as an issue in the
domain of international treaties and charters.
2. Formulating Human Rights of Linguistic Minorities
In his paper, Fernand de Varennes deals with the current situation with regard to
linguistic rights and how they are inextricably linked to human rights. The concept
of human rights has gained ground since the end of the Second World War and the
Nuremberg and Tokyo trials, which were the first major challenge to the idea of
nation-state sovereignty. Since 1945, the increasing number of international bodies
that concern themselves with the internal affairs of states and the increasing
readiness of international organisations to set aside sovereignty when they deem it
necessary have brought us, in one sense, into a post-nationalist era. The absolute
right of governments to act in any way they choose on their own territory without
interference from outside has been massively eroded in the very recent past.
Against this background, the rights of minorities have moved from the national
stage to become an international issue.
De Varennes argues that there should be no discrimination between speakers of a
language that dominates on a territory and speakers of other languages, the socalled minority languages. Few in Europe, outside the far-right fascist fringe in
Western Europe or the new nationalist enclaves in the post-communist world,
would quarrel with the weak interpretation of linguistic rights.4 Those European
states where the right to use one’s own language within the private sphere with
family, friends and members of the language community is still legally denied or
challenged5 are in the minority, and likely to be pressured through bodies such as
the Council of Europe to take a more liberal stance or risk pariah status. Of course,
the general acceptance of such rights is relatively recent and many minority groups
have lived under linguistic restrictions within living memory. This was always a
manifestation of the defeat and domination of one group by another, and linguistic
repression was only one of many repressions.6
Similarly, the right to use one’s own language in public space is rarely challenged
where this use is unofficial. Commercial dealings, artistic representations and intracommunity meetings can all take place in “minority” languages in most European
states. Again this is a recently won right in some situations, but it would be hard to
4
5
6
The work of Kymlicka has been influential in developing this position in the academic world. See
W. Kymlicka, Multicultural Citizenship. A Liberal Theory of Minority Rights, Oxford, Oxford
University Press, 1995.
Countries such as Estonia, Greece, Latvia and Turkey still have various laws prohibiting some
private language use. A Greek court recently found an individual guilty of ‘disseminating false
information’ in documents mentioning the existence of a linguistic minority on Greek territory; see
http://racoon.riga.lv/minelres/archive//03251998-00:05:59-10587.html
For example, the case of the Catalans in the Franco period. See M. Strubell, “Language, Democracy
and Devolution in Catalonia”, in S. Wright (ed.), Language, Democracy and Devolution in
Catalonia, Clevedon, Multilingual Matters, 1999.
Language and Power: Background to the Debate on Linguistic Rights
48
rescind in the present climate where bodies such as the Council of Europe are
pressing for yet more extensive rights.7
The aspect of linguistic rights which is most contended is the right to use regional
or minority languages in public contexts such as education, broadcasting, state
bureaucracy and the democratic process. The problem is that in many senses the
public domain is unitary and the space occupied by one language ousts another.
One language in the lecture hall precludes another. One language in the news radio
broadcast replaces another. One language on the hustings means that another is
omitted. Languages can be used sequentially in the same space; they cannot be
used concurrently. Language choice is ultimately a zero-sum game. Supporters of
multilingualism will argue that there are ways to manage it,8 but I find it difficult to
provide an example of a society that has managed total equality in terms of
language rights for all its members in every domain of public life. The states that
are commonly cited as models for linguistic equality (e.g. Switzerland and
Belgium) are usually operating the territoriality principle which means that
although the states may be officially multi- or bilingual the individual regions are
monolingual, as are many of their citizens.
Opening up space for regional and minority languages in the public domain is not
easy, because the acquisition of linguistic rights by some means the perception of
loss of rights by others. This is the case in Wales where the Welsh Language Act
(1993) has led to a reintroduction of Welsh in the public sphere. Much employment
now hinges on bilingual competence, as employers need to employ bilinguals to
comply with the provisions of the Act. As a result of centuries of active discouragement by the government in London, Welsh disappeared in many communities. Much of Wales, particularly in the old industrial heartland and the
Marches (border area), is monolingual English-speaking. Although the members of
these communities would identify themselves as fully Welsh, their English
monolingualism prevents them from benefiting fully from greater Welsh autonomy
and the Welsh cultural renaissance. The problem should resolve itself as all Welsh
schoolchildren now study Welsh. What we have now is a lost generation that feels
a sense of exclusion. The righting of old injustice is to be welcomed. The challenge
for the future will be to manage language use within the community so that the
redress of old unfairness does not create new.
7
8
See Elda Moreno’s paper in this issue.
Tove Skutnabb-Kangas has written widely on this issue in the context of education. (see T.
Skutnabb-Kangas, Bilingualism or Not: The Education of Minorities, Clevedon, Multilingual
Matters, 1981.) Where only two or even three languages are to be accommodated her case is good.
But she fails to explain how rights to education in the mother tongue can be realised in countries
where, for example, there has been complex immigration and where there may be dozens of
different languages in a school. How could the right to education in one’s language be managed in
such a situation? Education could not be provided in languages that did not have the written form
necessary for them to be used as media of education. The resource constraints might create double
minority status for the minorities for whom teachers cannot be recruited. If there is only one
speaker of a language in a classroom, should that child be educated in solitude? These are only a
few of the practical difficulties and resource implications are enormous.
49
Sue Wright
De Varennes argues vigorously that language rights are human rights and not group
rights, which are so problematic in terms of individual freedoms. We must, he says,
distinguish a collective interest or manifestation from a group right. He argues that
freedom of expression is an individual freedom and cannot be magically
transformed into a collective right simply because it happens to involve collective
or group interests. The problem with language, however, is that communication
always involves at least two people. I do not ask for the right to use my language
with myself. I ask for the right to be addressed in my language, to have an audience
when I speak in my language, to be allowed to be part of a community that carries
out some or all of its public life in my language. So we have to ask ourselves what
the term “language rights” actually means. Does it simply mean that I have the
right to make a public utterance in any language I wish without fear of sanction?
Or does it imply more? Does it mean that I have the right to be understood? And to
be understood by whom? All those with whom I need to interact? As soon as we
recognise the right to be understood we are no longer dealing with the individual
but the community. De Varennes acknowledges the individual/group issue when he
suggests that the state should be prepared to employ the language of the minority
once that group has the numbers that make use practicable. This proviso recognises
that my right to use my language in the public sphere is not an absolute right and
according it depends on numbers.
The other side of the coin is the right to understand. One cannot join a speech
community simply by an act of will. The acquisition of a second language demands
commitment, effort and years of apprenticeship. For some people language
acquisition may prove impossible, as we frequently witness when families migrate
and the older members fail to acquire the language of the new environment. Thus
the restitution of a minority language to public life may result in exclusion for adult
members of the minority community who do not know the minority language.
Again this may be illustrated in the case of Wales, where those without bilingual
competence may feel marginalised economically and culturally.
De Varennes argues that there should be no distinction in law between the
linguistic rights of autochthonous and allochthonous minorities in human rights
treaties. One must have the right to use one’s own language whether one comes
from a family rooted in the territory for generations and is a citizen of the state or
whether one is newly arrived from another country and without citizenship. This
standpoint is likely to gain widespread support where this concerns language use in
the private sphere. There may not be such agreement when rights are to be
extended to language use in the public sphere. The Council of Europe’s European
Charter for Regional or Minority Languages (1992) is quite explicit in that it only
seeks to guarantee the rights of autochthonous groups, categorised as national
minorities. However, when the French Government signed the Charter, it
challenged this distinction and recognised all the allochthonous and
authochthonous minority languages in the French state, which came to the grand
Language and Power: Background to the Debate on Linguistic Rights
50
total of 75.9 Cynics suggested that the recognition of the rights of all languages
present in France effectively precluded any of them from using the Charter to gain
ground in the public sphere, because of the impracticalities of making space for all.
Defenders of the position argued that it would be against the spirit of
Republicanism to recognise some groups and not others, simply on the basis of
length of group presence on French territory, and that language rights could not be
granted for some and not for others. In the event, the French have not yet ratified
the Charter, the constitutional council finding that erosion of national linguistic
homogeneity went against the French Constitution. They had extensive support for
this position in the French media and among the public.10
The strength of such anti-minority feeling in Europe should not be underestimated.
We are after all the bearers of a legacy of the two hundred years of nation-building
discussed above. The nationalism of the early twenty-first century is perhaps not as
virulent as that of earlier times and borders are more permeable than hitherto. None
the less, we would be naive if we imagined that nationalism had disappeared. The
autochthonous “minority” language groups that resisted the nation-building
process, refusing to see the capital as their centre, the national language as their
exclusive language, are still the object of suspicion by those who have accepted
national language, national identity and the myths of state nationalism. There is a
belief that claims for the restitution of cultural and linguistic rights are only a
precursor to demands for autonomy and independence. In many instances such
suspicions are justified, as groups which sought and achieved the restitution of
culture and language have also sought and achieved devolution of political power.
There is a belief that social cohesion may break down if a community of
communication is not maintained.
3. The Protection of Linguistic Minorities under the Council of Europe
In Elda Moreno’s paper, which presents the provisions of the European Charter for
Regional or Minority Languages in depth, we have an insight into how this strength
of feeling will have to be managed if there is to be widespread acceptance of the
right of individuals to use their own language in the public sphere. The tone of the
discourse of the Charter is reassuring and it is made clear that there is no hidden
agenda to challenge the nation-state system wholesale. It is stressed that the
Charter is not a demand for group rights or political rights, but rather a call for
protection of cultural and linguistic heritage. There has clearly been a decision in
the Council to distance their demands from the minority activists and set the call
for restitution of language rights for minorities within the context of a multicultural
and multilingual Europe, where diversity is celebrated and language and power are
9
Langues et cultures régionales, Rapport de Monsieur Bernard Poignant, Maire de Quimper, à
Monsieur Lionel Jospin, Premier Ministre, le 1er juillet 1998. Of the 75 languages recognised,
some were languages of French overseas territories (DOMTOM), but there were still a substantial
number of languages on metropolitan territory.
10
See the website of the French newspaper Libération, which gave the public a forum for discussion.
51
Sue Wright
not necessarily linked. This would indeed be a new departure. The language of
public space has always revealed political dominance of some kind.
As mentioned above, the Council of Europe makes it very clear that this Charter is
only concerned with autochthonous minorities. The linguistic rights of groups
constituted by recent immigration are specifically excluded. This may well stem
from an appreciation of the art of the possible in the present context. The limitation
has, of course, been challenged; by de Varennes in this issue and by others,
including a group of leading European socio-linguists, meeting at Oegstgeest
(Netherlands) in January 2000, who called on the states of Europe, the European
Union and the Council of Europe to recognise the linguistic rights of all groups
equally.11
Of course, the Council has no powers but exhortation. The Charter cannot be
enforced. States choose whether to sign and ratify it. They choose the articles of the
Charter to which they will subscribe. What action the Council could take if they
reneged on their commitment is not at all clear. As de Varennes notes, the real
deficiency in the linguistic rights process is the absence of an international body to
ensure the recognition of such rights. Interestingly, among the member states of the
European Union, only a minority have signed and ratified the Charter. However,
for the states that are applying to join the EU, there is strong pressure to sign, ratify
and implement the provisions of the Charter. This is a replication of earlier
divergences between east and west on the continent that Vieytez comments on in
his paper.
4. Linguistic Diversity and European Integration
Dónall Ó Riagáin’s paper is a review of how the European Union has reacted to its
own multilingual nature. He relates that the EU has had little to say about language
apart from recognising the official equality of all “national” languages within the
institutions. This equality has faltered, of course, because it is difficult to govern
and administer the supranational entity that the EU has become without a lingua
franca. This is a subject that has been difficult to deal with directly. A French
initiative in January 1995 to reduce the number of working languages in the
institutions provoked an angry rejection, particularly from Greece.12 It seems that
states can relinquish sovereignty in the economic, political and even defence fields
more easily than linguistic and cultural rights.
However, there are forces at work in European institutions that may eventually
force a review of the current EU policy of strict respect for linguistic diversity.
First, despite the reluctance to deal with the linguistic question formally, de facto
11
Declaration of the European Cultural Foundation conference, Comparative Perspectives on
Regional and Immigrant Minority Languages in Multicultural Europe, Oegstgeest, 28–30 January
2000.
12
Libération, “La Grèce s’accroche au statut de sa langue au sein de l’Union européenne”, 4 January
1995.
Language and Power: Background to the Debate on Linguistic Rights
52
lingua francas have established themselves within the institutions. At first, the
lingua franca was French, reflecting the geographical sites of the institutions and
the preponderant role played by France in the early decades of the European
project. The dominance of French is increasingly challenged by English13 and this
shift to English is likely to continue as the generation presently in school comes to
work within the EU institutions. Ó Riagáin shows that the numbers of EU citizens
who use English as a second language is already greater than for German or
French. This must increase, as English is spreading inexorably as the first foreign
language learnt in school.14 At some stage, the EU will have to face the mismatch
between its support for diversity within the foreign language curriculum (for
example in the Lingua and Socrates programmes) and the reality of a dominant
lingua franca.
Second, the EU defence of linguistic diversity is philosophically problematic, as it
is only the national languages of the old nation-states that are safeguarded.
Inevitably, the intellectual and moral poverty of governments who invoke the
virtues of multilingualism to support the national language at the suprastate level,
while continuing with policies which eradicate multilingualism at the state level,
has laid them open to attack for hypocrisy. If it is important to preserve cultural and
linguistic heritage, then it becomes difficult to make the case for the protection of
some languages but not others. Why should Danish be treated differently from
Catalan, Finnish from Welsh? Even invoking numbers of speakers gives no alibi,
Catalan having more speakers than Danish.
The Council of Ministers and the Commission and Parliament are at odds here. The
Commission and Parliament have shown themselves to be much more amenable to
the widening recognition of multilingualism than the member states in the guise of
the Council. But the Commission and Parliament are not empowered to deal with
minority language rights. In many other instances they have moved into areas
where they did not have a brief and, having established a presence and a role, were
retrospectively accorded the right to work in particular domains. This did not
happen in the case of support for minority languages. Ó Riagáin documents the
measures that the Commission and Parliament took in the support of minority
linguistic issues and their growing involvement in the area. He also recounts how
this involvement was curtailed when the United Kingdom challenged the legal
basis on which it was founded and the funding was cut.
13
See the reports by M. Schlossmacher, “Die Arbeitssprachen in den Organen der europäischen
Gemeinschaft”, Sociolinguistica, 8, 1994, 101–22; N. Labrie, La construction linguistique de la
Communauté européenne, Geneva, Champion, 1993; N. Labrie, “The Historical Development of
Language Policy in Europe”, in P. Ó Riagáin and S. Harrington (eds.), A Language Strategy for
Europe – Retrospect and Prospect, Dublin, 1999; C. Quell, “Language Choice in Multilingual
Institutions: A Case Study at the European Commission”, Multilingua, 16 (1), 1997, 57–76.
14
The Eurydice statistics on education in the European Union reveal that in 1996–97 89% of all EU
secondary-school children were reported to be learning English (Eurydice, Key Data on Education
in the European Union, Brussels, Office for Official Publications of the European Communities,
1998).
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Sue Wright
Third, the language question will surface with some acuity when enlargement takes
place. How could observance of absolute equality be preserved, even in formal
situations, such as full sessions of the European Parliament? Eleven official
languages give 110 interpreting pairs. A further four languages would give 210
interpreting pairs. Strict adherence to the principle when all the accession countries
are admitted could bring the political process to a grinding halt.
Enlargement may make the citizens of Europe review the whole question of
language and politics. At present the EU is accused of a democratic deficit; it may
well be that a community of communication and democracy are necessary
bedfellows and that the difficult question of how Europeans will actually construct
the forum for the debates that we have come to expect in the democratic polity is
one we should stop ignoring and actually address.15
5. Conclusion: Linguistic Diversity in the Post-National Constellation
The future is always a surprise and it is foolish to speculate. But in conclusion, I
will risk this and just hazard the suggestion that the issue of linguistic minorities in
Europe may change profoundly, if the European project continues. The European
Union is a polity which is both sui generis and not yet in its final form. It is
difficult to predict what it may become, and there are no models. None the less it is
clear that, as it becomes the focus of greater political and economic power, the
power of the “nation-state” is reduced. Under this umbrella, we are all minorities in
the sense that no one group dominates. We are all minority speakers in the sense
that there is no one majority linguistic group. If the weakening of the national state
is accompanied by the weakening of the status of the national languages, minority
rights may become less of an issue. There will, of course, be languages with more
prestige than others, deriving as ever from the political and economic clout of their
speakers, but the present hierarchy may be challenged. One could foresee, for
example, a rise in the prestige and weight of Catalan.
The larger problem will become the issue of the lingua franca. The choice of any of
the languages of the member states will confer great advantage on its speakers.
Official planning is highly unlikely. A more probable scenario is an unplanned
spread of English, which has the advantage of already playing the role of lingua
franca in global settings. Leaving this thorny problem aside for the moment, we
could imagine that those who are bilingual in the language of their group and
whichever language establishes itself as European lingua franca will be in a better
position to benefit from a single market where there is free movement of labour
and to operate in a political system which is larger than the national. It may be that
groups with a long history of bilingualism in their own and the national language
15
I discuss the question of language and the EU more fully in S. Wright, Community and
Communication: The Role of Language in Nation State Building and European Integration,
Clevedon, Multilingual Matters, 2000.
Language and Power: Background to the Debate on Linguistic Rights
54
may be better positioned psychologically and practically to accept the need for the
bilingualism that will permit ever-closer union.
About the Author
Sue Wright is a socio-linguist at Aston University in Birmingham, UK. She has
written a number of articles and books on the question of language and the state.
Her most recent publications, Community and Communication: The Role of Language in Nation State Building and European Integration (Clevedon, Multilingual
Matters, 2000) and, edited with D. Smith, Whose Europe: The Turn Towards
Democracy (Oxford, Blackwell, 1999), focus on the problem of language and the
European Union. Editor of the journal Current Issues in Language and Society, she
is currently working on a history of language planning and policy, and is grateful to
the New School Graduate Faculty, New York, for inviting her for two periods as
visiting fellow to work on this.
Address: Aston University, Birmingham B4 7ET, United Kingdom; email:
[email protected]