Minority language rights

Introduction

The linguistic rights of persons belonging to national minorities are protected by international human rights law. The human rights standards which relate to language rights are varied. Some belong to what is often referred to as hard law. These standards are of a legally binding nature and are mainly contained in treaties. An example of such a standard at the universal level is Article 27 of the 1966 International Covenant on Civil and Political Rights.9 It is categorical in the sense that it prohibits States from denying persons belonging to minorities the right, in community with the other members of their group to use their own language. (Phillips & Rosas, 1995, 13–76)

Other examples are Article 19(2) of the Covenant, which guarantees freedom of expression (including choice of language as a vehicle of communication), and Articles 2 and 26, which prohibit discrimination on a number of grounds including language. Article 2(1) of the 1966 International Covenant on Economic, Social and Cultural Rights10 similarly prohibits discrimination on the basis, inter alia, of language in relation to the enjoyment of the rights accorded under that instrument. The same prohibition of discrimination on the basis of language is guaranteed by Article 2(1) of the 1989 Convention on the Rights of the Child11 with regard to the rights accorded therein. Even more exacting is the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families which, in Article 1(1), stipulates that the Convention is to be applied to the intended beneficiaries preference based on race, colour, descent, or national or ethnic origin to the extent that the notion of _national or ethnic origin may include or be identifiable on the basis of language, so, too, this Convention provides relevant standards. At the regional level, the Member States of the Council of Europe have adopted two treaties which address the issue of minority language rights:

“the 1992 European Charter for Regional or Minority Languages14 and the 1995 Framework Convention for the Protection of National Minorities.15 In addition, Article 14 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms prohibits discrimination, in the enjoyment of the enumerated rights and freedoms, on the basis of language.” (European Court of Human Rights, 2006, 33)

Article 1 of the Convention specifies that the notion of national minorities cover matters of language use. The other categories of standards which also seek to protect the linguistic rights of persons belonging to national minorities are sometimes referred to as soft law. These include instruments such as the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (Lewis, 1998, 479-504). Article 2(1) of the Declaration refers to the right of persons belonging to linguistic minorities to enjoy their own culture, to profess and practice their own religion and to use their own language in private and in public, freely and without interference or any form of discrimination. Although the declaration is relatively specific, it is not of itself legally binding on States (Underdal, 1998, 5-36). The same applies to the Copenhagen Document of the OSCE which, while containing specific provisions constituting political commitments binding on all OSCE participating States, these are not binding obligations under international law. At the sub-regional level, the 1994 CEI [Central European Initiative] Instrument for the Protection of Minority Rights (which requires States to sign the document, notwithstanding that it is not a legally binding instrument) provides protections for the use of minority languages. These instruments articulate standards of behaviour which reflect what the respective communities of States intend to be the norm. These soft law instruments are important points of reference for the international community as they express shared values and certain standards to be promoted and respected in relations between the State and persons within its jurisdiction. (Council of Europe, 1994, 94-101)

Notwithstanding the significant list of relevant standards, their formulation remains sometimes general and lacking specificity with regard to their precise application in concrete situations. In view of this, and in view of the fact that minority language related problems are confronted on a recurring basis within his work, the High Commissioner on National Minorities (HCNM) concluded that it would be useful to consult a number of experts of international repute and to ask them to look at the linguistic rights of national minorities in greater depth with a view to developing a set of practical guidelines. The HCNM envisaged that such guidelines, to be based directly and solely on existing international standards, would be extremely useful as States could refer to them when developing and implementing minority language related policies and laws. They could also serve as a reference for the HCNM in his own work. (Van de Kragt & Dawes, 2003, 112-22)

In the summer of 1996, the HCNM requested the Foundation on Inter-Ethnic Relations (FIER) to take up the initiative of developing such guidelines. The development of these guidelines was not to be an attempt to set new standards; of course, neither the HCNM nor the FIER had a mandate to undertake standard-setting (Underdal, 1998, 5-36). Rather, the guidelines were to constitute an expert interpretation of existing standards which could serve to facilitate the development and implementation of appropriate policies and laws pertaining to the linguistic rights of national minorities. The experts sought to provide interpretation of these standards relating directly or indirectly to the linguistic rights of national minorities while maintaining coherence within the entire system of the international protection of human rights. (Council of Europe, 1994, 94-101)

The result of this process is a set of language-related recommendations which focus on a number of spheres of regulation and activity of particular importance to the maintenance and development of the linguistic identity of persons belonging to national minorities (Lewis, 1998, 479-504). The recommendations are divided into the following subject categories: Names, Religion, Community Life and NGOs, Media, Economic Life, Administrative Authorities and Public Services, Independent National Institutions, Judicial Authorities and Deprivation of Liberty. The Explanatory Note which accompanies the recommendations (and is an integral part of the document) specifies the links between each recommendation and relevant international human rights standards. (Hawkins, 1997, 403-434)

Separation Of The Public And Private Spheres

The Human Rights Committee (HRC) through its General Comments has presented the concept of minority very broadly, embracing non-citizens in the category of a minority. This is a significant development in terms of the new construction of the definition of a minority, particularly given that the HRC is in a position to represent UN practice in some parts (Chen, 1998, 214). The HRC’s General Comment on Article 27 states unequivocally as follows:

“The terms used in article 27 indicate that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language. Those terms also indicate that the individuals designed to be protected need not be citizens of the State party . . . A State party may not, therefore, restrict the rights under article 27 to citizens alone.” (Human Rights Committee, 1992, 159–181)

The HRC’s view basically seems to have followed the subjective and objective criteria of the traditional minority definition, but it is a new version of the definition in that it does not require nationality or citizenship of the State of residence. Furthermore, the HRC held:

“In those cases where aliens constitute a minority within the meaning of article 27, they shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion and to use their own language. Aliens are entitled to equal protection by the law. There shall be no discrimination between aliens and citizens in the application of these rights. These rights of aliens may be qualified only by such limitations as may be lawfully imposed under the Covenant.” (Human Rights Committee, 1992, 159–181)

In this context, an attempt to define minority in international law made by Special Rapporteur Eide of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities84 shows the United Nations approach to the concept of a minority, which is not limited to citizens of the State concerned. He defines a minority as follows:

“For the purpose of this study, a minority is any group of persons ‘resident’ within a sovereign State which constitutes less than half the population of the national society and whose members share common characteristics of an ethnic, religious or linguistic nature that distinguish them from the rest of the population.” (European Court of Human Rights, 2006, 33)

It is critical to note that he effectively replaces the nationality or citizenship criterion with the standard of place of residence. The populations whose members share common characteristics of an ethnic, religious or linguistic nature and have resided in the territory of the States concerned, are the decisive indicators for identifying a minority status (Kusý, 2006, 299–306). If this being the case, it would be more cogent to focus on the fact that the members of a minority group should have ‘durable ties’ with the State in which they live. This requirement is expressed in the word ‘exist’ in that Article. Universal Declaration of Human Rights states:

“Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” (Human Rights Committee, 1992, 159–181)

And the Vienna Declaration reminds states that “Persons belonging to minorities have the right to enjoy their own culture, to profess and practice their own religion and to use their own language in private and in public, freely and without interference or any form of discrimination.” (Council of Europe, 1994, 94-101)

The Convention on the Rights of the Child states that a child belonging to an ethnic, religious, linguistic, or indigenous minority:

“Shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.” (European Convention on Human Rights, 1998, 765–773)

And the preamble to the European Charter for Regional or Minority Languages motivates and situates the cultural protections included in that document by noting that “The protection of the historical regional or minority languages of Europe, some of which are in danger of eventual extinction, contributes to the maintenance and development of Europe’s cultural wealth and traditions.” (European Convention on Human Rights, 1998, 765–773)

The Committee on Economic, Social, and Cultural Rights (CESCR) recommended remedy for concerns about inequalities in the enjoyment of social and cultural rights by minorities is for the state party to: “Increase its efforts to preserve regional and minority cultures and languages,, and that it undertake measures to improve education on, and education in, these languages.” (Prémont, 1996, 513–514)

It is the fundamental presumption of international human rights law that the State must respect the autonomy of the human being by refraining from interfering in specified domains. These are understood to be the private spheres of the individual. At the same time, assuring freedom for everyone according to their own autonomous desires requires that the State order society in such a way as to protect individuals and also to facilitate their initiatives (Lewis, 1998, 479-504). These are understood to be public spheres of legitimate action by the State. The original intention was that the title of the recommendations should make reference to the use of minority languages in the public and private spheres. The recommendations were to be grouped in two categories, one corresponding to the private sphere and the other relating to the public sphere (Buchheit, 1978, 73-79). The experts came to the conclusion relatively quickly that, notwithstanding the conceptual value of this division, it was not practical for purposes of precise policy formulation to divide the recommendations according to these two categories because it was not possible to categorise each human activity as exclusively belonging to one or other sphere. What might be seen as belonging to the private sphere may in certain situations have serious repercussions on legitimate public interests and hence affect the public sphere. For example, as a rule, correspondence belongs to the strictly private sphere (Underdal, 1998, 5-36). However, if there is any reasonable suspicion on the part of the authorities that the content of the correspondence in question is of such a nature as to threaten the security of the population, the State is entitled to interfere at the risk of violating the right to privacy (Hawkins, 1997, 403-434). The content of such correspondence could be the planning of a terrorist attack or the violent overthrow of the government. In such a case the matter acquires the dimension of legitimate public interest. Of course, the content of correspondence is to be distinguished from the use of language as a vehicle of communication; in the latter case, there would seem to be no legitimate public interest in either requiring or prohibiting a choice of language. Nonetheless, the example of correspondence illustrates the expert’s view that it was not possible to approach the process of developing recommendations in a water-tight fashion. (Van de Kragt & Dawes, 2003, 112-22)

The initial version of the recommendations included one recommendation of a general nature which served to point out that the right of persons belonging to national minorities to use their language should not be made subject to any limitations save those prescribed by law and necessary in a democratic society to protect public safety, order, health, national security and morals. The authors of the original text were of the opinion that it would be useful to stress the very narrow scope the State has for limiting the enjoyment of linguistic rights (Kusý, 2006, 299–306). Nevertheless, upon reflection, the experts concluded that in a set of recommendations such as these it would be unhelpful merely to repeat in a recommendation the well-known phraseology regarding permissible limitations. In addition, the experts assumed that it is generally understood that few human rights are absolute; most human rights are subject to limitations. Consequently, the effect of including a recommendation regarding limitations could inadvertently send a negative signal and would not be in keeping with the spirit of the document as the experts viewed it, i.e. to stimulate a positive and practice oriented approach in the protection and promotion of minority rights (rather than creating impediments or excuses to implementation). (Hurd, 1999, 379-405)

Accordingly, it was decided that this particular recommendation would be deleted and that the issue would be dealt with in the general remarks at the beginning of the Explanatory Note. The definition of national minority it was inevitable that at some point early on in the deliberations the issue of what constitutes a national minority (as opposed to any other category of minority) would come up. The issue had been debated at some length in the process of elaborating The Hague Recommendations Regarding the Education Rights of National Minorities (Buchheit, 1978, 73-79). As was the case then, so in this situation: the experts concluded that, although a universally accepted clearcut definition of national minorities does not exist in international law, the fact remains that the mandate of the HCNM makes reference to the national minorities of the OSCE. In this connection, there are sufficient references in the expressed standards and in the evolving jurisprudence of the relevant bodies largely (if not entirely) to settle the question. In particular, paragraph 32 of the Copenhagen Document states the following in its first sentence: To belong to a national minority is a matter of a person’s individual choice and no disadvantage may arise from the exercise of such choice. (Human Rights Committee, 1992, 159–181)

The overriding concern of the experts was to ensure that by focusing specifically on national minorities the process would not be doing a disservice to other minorities be they (only) linguistic, ethnic, religious or other (Cortell & Peterson, 2000, 132-145). They sought to avoid a situation whereby they might inadvertently provide a point of reference to governments which would be looking for ways to limit the linguistic rights of other minorities such as migrant communities (Levy, 1994, 279-312). This concern is given its full expression in the general remarks of the Explanatory Note in which it is stated clearly that The Oslo Recommendations are intended to strengthen and add to the existing body of human rights related to the use of language and that they were not developed with a view to restricting the real or potential impact of these rights in any way. (Chen, 1998, 214)

Stronger links to fundamental rights in both the original background paper and the preliminary drafts of the recommendations and Explanatory Note, those standards of human rights law which make direct reference to language or are very evidently related to language were quoted. In particular, reference was made to such language-specific standards as Article 27 of the International Covenant on Civil and Political Rights (which refers to persons belonging to minorities as having the right to use their language), Article 30 of the Convention on the Rights of the Child (which guarantees the child’s right to use his/her own language), Article 2(1) of the UN Declaration on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities (which proclaims the right of persons belonging to the noted minorities to use their own language in public and private) and other language-specific standards contained in regional instruments such as the European Charter for Regional or Minority Languages, the Framework Convention for the Protection of National Minorities and the Copenhagen Document (Van de Kragt & Dawes, 2003, 112-22). The experts proceeded on the basis that such fundamental rights as freedom of expression and non-discrimination are in any case to be respected and provide the foundation for the other rights. The experts, however, concluded that there was a need for The Oslo Recommendations to make a strong and demonstrable link between language rights and such underlying concepts as the dignity of the human person and the notion of essential equality (Crocker, 1999, 56-66). From these precepts, language-specific rights also connect with other freedoms such as association and assembly. Hence, The Oslo Recommendations stress that the right of persons belonging to national minorities to use their language(s) in private and in public flows from the most fundamental rights and freedoms contained in the international instruments. (Buchheit, 1978, 73-79)

The Language Of Business

The consultation process leading up to the final set of recommendations can be said to have progressed at a generally even pace. The issue of minority languages in business, however, was both complex and controversial enough to slow down the process. As discussion on this issue progressed, consensus began to emerge. The running of a private business was indeed seen by the experts as an activity belonging essentially to the private sphere. Most experts immediately argued that the State is not entitled to impose any undue linguistic restrictions or requirements in this domain (Levy, 1994, 279-312). This point of view, however, was contested by some experts who stressed that such a blanket approach could have unforeseen and unintended consequences in certain circumstances. The example of the Baltic States was put forward as a case in point (Kusý, 2006, 299–306). In situations where the language of the majority had suffered under a long period of repression and where that language may be said to be in the process of re-establishing itself (as is the case in Estonia and Latvia), such a liberal approach could undermine the overall social interest in having a language of commerce and public administration for the State which is broadly used and, therefore, accessible to all (Phillips & Rosas, 1995, 13–76). In the absence of such a broadly known language, it was further argued that the process of State-building and social integration would be negatively affected — with the language of the majority also potentially under threat. The experts agreed that the issue should be looked at in greater detail and entrusted the FIER with the task of researching the matter further. (Van de Kragt & Dawes, 2003, 112-22)

The practical effect of these legitimate requirements could be that it would be easier, in the long run, for the given enterprise to function in both languages. The other alternative could be for the enterprise to make extensive use of translators which would allow it to meet the requirements of the State without having to change its internal language practices (Cortell & Peterson, 2000, 132-145). In any event, the experts felt it was important to underline in the Explanatory Note that the legitimate linguistic requirements advanced by the State in this essentially private sphere must be proportional to the public interest to be served. The State must be reasonable and cannot make unrealistic or discriminatory demands on the owners of private businesses (Hawkins, 1997, 403-434). The problem of arriving at a consensus around the difficult issue of minority languages in the business sector was interesting for what it highlighted in this particular consultation process. On the one hand, the intervention of the advocates who are involved in specific in-country situations served as a kind of reality check with respect to an issue that is obviously a very thorny one in a number of countries. This was a good thing. In the process of elaborating The Oslo Recommendations, the in-put of advocates contributed to making the process more thorough. On the other hand, this experience illustrated clearly a general point. The development of policy guidelines based on international human/minority rights law and intended for general application in a large heterogeneous region such as that covered by the OSCE should not make reference to or be guided by considerations that are particular to a specific context or situation. Of course, in the process of implementation, full account will have to be taken of the specific elements of each situation. Nevertheless, careful consideration of complex domains such as business enterprise reveals that it is both possible and useful to elaborate practical guidelines. (Crocker, 1999, 56-66)

When referring to administrative authorities, international instruments refer to the right of persons belonging to national minorities to communicate with the authorities in their own (i.e. minority) language(s). But this right is applicable only in such cases where the minority in question has inhabited the area traditionally or in substantial numbers implying rights exercisable at the local and/or regional level (Hurd, 1999, 379-405). While the notion of traditional clearly indicates a lengthy period of time with established practices (verging on the idea of an acquired right), the notion of substantial numbers implies both quantity and compactness each of which affects feasibility calculations (Lewis, 1998, 479-504). Certainly, corresponding with local authorities in the mother tongue or being able to express one orally at the offices of public administrative authorities and services are important for the advancement of ones interests (Crocker, 1999, 56-66). But while this is not in doubt, the extent to which these may be invoked as rights (with corresponding duties on the State) turns on an evaluation of the facts in the specific situation (i.e. whether the demanding group or person belonging to such a group has inhabited the area traditionally or whether they constitute substantial numbers) (Buchheit, 1978, 73-79). The experts were of the opinion, for example, that if one considers the standards contained in such instruments as the Copenhagen Document (paragraph 34) or the Framework Convention for the Protection of National Minorities (Article 10(2)) as they relate to administrative authorities, in conjunction with the fundamental principles of equality and non-discrimination, one could conclude that in certain situations (i.e. where minority populations are significant in number and compact in their geographic distribution), local and regional authorities should take steps to ensure that health and social services be provided to persons belonging to the national minority in question in the minorities language. The use of the minority mother tongue is particularly important in the sphere of health and social services (Chen, 1998, 214). People must be able to express themselves fully and unequivocally when they are faced with health problems or are in need of counselling or basic services. After much discussion, the experts agreed that the relationship between the persons belonging to minorities and the public authorities goes beyond the right to address authorities in ones own language and to receive a reply in this language (Underdal, 1998, 5-36). In certain cases, it may include the right to receive services provided or administered by the authorities in ones own language. The objective should be to organise and facilitate the delivery of services to the maximum benefit of as many persons as possible not only speakers of the official or State language(s). It was also noted by the experts that persons belonging to minorities are to be assumed to be taxpayers and that public authorities are to be assumed to be acting as public servants responsive to the needs of the whole population (including persons belonging to national minorities). (Kusý, 2006, 299–306)

The provision of services in the language of a national minority may involve substantial budgetary implications and consequently may provoke a negative reaction on the part of the majority. While having achieved consensus around the potential implications of equality and nondiscrimination in the provision of linguistically sensitive services, the experts pondered how best to approach this matter in terms of recommendations. The experts agreed that, in terms of services, Recommendation 14 should be drafted in general terms. In the Explanatory Note, however, they agreed that the most important services (i.e. health and social services) should be highlighted, but this should not be read as excluding other services or facilities for participation. It is to be noted in this connection that, as a general matter, the exact wording of a recommendation and its correlation with the relevant text in the Explanatory Note is necessary for a full understanding of the views of the experts, especially when dealing with issues involving resources. (Levy, 1994, 279-312)

Issues such as gerrymandering or the arbitrary modification of a regions demographic composition through the eviction or expulsion of populations were not dealt with in the preliminary stages of the drafting process. It was initially felt that, although these issues are of vital importance to the advancement of the interests of national minorities, they do not necessarily relate to linguistic rights. Nonetheless, during the consultation process the point was made by a few experts that these issues should be addressed. The experts felt that these issues were closely related to the ability of national minorities to achieve and maintain strength in numbers and density in a particular region with consequences for minority language rights. Without attention to these matters, entitlements could be undermined by practices of gerrymandering or forced movements of populations. As a result of these concerns, the section of the recommendations relating to administrative authorities and public services was expanded to include a recommendation regarding the issue of gerrymandering and the arbitrary modification of the demographic composition of regions (Levy, 1994, 279-312). As the recommendations evolved over time such a recommendation seemed out of place and some experts proposed that it be deleted. At the third and final consultation the issue was raised again. The point was reiterated that reference should be made to this question in view of its importance to the survival of minorities. In the end it was proposed and agreed that, although this question should be addressed, it would not be formulated as a recommendation but would be dealt with in the particular section of the Explanatory Note which relates to administrative authorities and public services. (Phillips & Rosas, 1995, 13–76)

The international instruments relating to the protection of the rights of persons belonging to minorities contain little in terms of these persons access to justice in their own language. Nonetheless, the experts felt strongly that the issue of justice and access to it in minority languages had to be addressed. Hence, The Oslo Recommendations contain four recommendations relating to this issue (Crocker, 1999, 56-66). Recommendation 16 concerns the establishment of independent national institutions such as human rights tribunals or ombudsmen which are meant to provide non-judicial recourses for persons belonging to national minorities whose language rights have been violated. While recognising the importance for minorities of access to such recourses, the experts did not have numerous minority rights standards to which to refer. (Hawkins, 1997, 403-434)

Their main point of reference was the International Convention on the Elimination of All Forms of Racial Discrimination which stipulates in Article 1(1) that the concept of racial discrimination is not limited solely to race but includes discrimination based also on ethnic origin. Article 6 of the Convention then requires States parties to assure to everyone within their jurisdiction effective protection and remedies through competent tribunals and other State institutions against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention. (Hurd, 1999, 379-405)

In terms of Recommendations 17 through 19 which deal with minority languages in the judicial process, the experts made reference to the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms which both deal with the administration of justice in a general context rather than one particular to minorities. More specifically, Article 9 of the European Charter for Regional or Minority Languages provides a range of alternatives to secure the use of minority languages before judicial authorities (Buchheit, 1978, 73-79). Certain bilateral treaties also expressly entrench such rights. While referring to these standards, the experts sought to link them with other fundamental rights affecting persons belonging to minorities, in particular non-discrimination provisions and the right to an effective remedy. In elaborating especially these recommendations, the experts kept in mind the HCNM specific encouragement to be bold and creative while remaining within the parameters of international human rights law (Cortell & Peterson, 2000, 132-145). The experts were