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Published online by Cambridge University Press: 17 January 2008
The provision of legislative or other legal protection for linguistic minorities is widespread in domestic legal systems.1 In international law, and in international human rights law in particular, the question of minority language rights has until recently received much less attention. The entry into force on 1 March 1998 of the Council of Europe's European Charter for Regional or Minority Languages (the “Minority Languages Charter”), the first international instrument directed solely at the question of language, suggests that the situation may be changing.
1. For example, at least 157 States make provision for language in their national constitutions: UNESCO Most Programme on Linguistic Rights: http://www.unesco.org/ most/In2nat.htm.; see also, Varennes, Fernand de, Language, Minorities and Human Rights (The Hague: Martinus Nijhoff, 1996)Google Scholar. Most such provisions give some measure of protection to certain linguistic minorities. Many States have also enacted other forms of language legislation: see, for example, the Welsh Language Act 1993, c.38 in the British context.
2. See, for example, Tabory, Mala, “Minority Rights in the CSCE Context”, in Dinstein, Y. and Tabory, M., eds., The Protection of Minorities and Human Rights, (Dordrecht: Martinus Nijhoff, 1992)Google Scholar, Benoit-Rohmer, Florence, The Minority Question in Europe: Texts and Commentary, (Strasbourg: Council of Europe, 1996), at 29–30Google Scholar, and Vieytez, Eduardo Ruiz, The History of Legal Protection of Minorities in Europe (XVIIth-XXth Centuries) (University of Derby, Working Papers in International Law and Relations, 1999), at 46–48.Google Scholar
4. See, for example, Pinker, Steven, The Language Instinct (London: Penguin, 1994), at 232Google Scholar, and Crystal, David, ed., The Cambridge Encyclopedia of Language (Cambridge: Cambridge University Press, 1994), at 284Google Scholar. Pinker notes that only about 600 languages are “reasonably safe by dint of the sheer number of their speakers, say, a minimum of 100,000”, but notes that even this number of speakers does not guarantee even short-term survival.
6. Pinker, , supra, n.4, at 260Google Scholar. See also, for example, Hale, Ken, “On endangered languages and the importance of linguistic diversity”, in Grenoble, Lenore A. and Whaley, Lindsay J., Endangered Languages: Current Issues and Future Prospects, (Cambridge: Cambridge University Press, 1998), at 192.CrossRefGoogle Scholar
7. UN Doc. A/RES/217 A (III), 10 Dec. 1948.
8. The ECHR came into force on 3 Sept. 1953 and 41 European States are party to it.
9. The ICCPR was adopted by General Assembly resolution 2200 A(XXI) of 16 Dec. 1966, and entered into force on 23 March, 1976; 147 States are party to it.
13. UN Doc. A/RES/47/135 of 18 Dec. 1992.
14. The Framework Convention was opened for signature on 1 Feb. 1995, came into force on 1 Feb. 1998 and has been signed by 40 European States and ratified or acceded to by 32.
15. The Minority Languages Charter was opened for signature on 5 Nov. 1992, came into force on 1 March 1998 and has been signed by 24 Council of Europe Member States and ratified by 11.
16. There are, for example, several bilateral agreements between European States which are in force, and a number of other international conventions containing general provisions on minority rights, including the 1960 UNESCO Convention Against Discrimination in Education, the 1958 International Labor Organization Convention No. 111 Concerning Discrimination in respect of Employment and Occupation, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, and the 1989 Convention on the Rights of the Child: see the OSCE Report on the Linguistic Rights of Persons Belonging to National Minorities in the OSCE Area (The Hague: OSCE, 1999).Google Scholar
17. See, for example, Green, Leslie, “Are Language Rights Fundamental?” (1987) 25 Osgoode Hall Law Journal 639Google Scholar, Denise G. Reaume, “The Constitutional Protection of Language: Survival or Security?”, and MacMillan, C. Michael, “Linking Theory To Practice: Comments on “The Constitutional Protection of Language”, both in Schneiderman, David, (ed.), Language and the State: The Law and Politics of Identity (Montreal: Les Editions Yvon Blais, 1989) at 37 and 59Google Scholar, Reaume, Denise G., “The Group Right to Linguistic Security: Whose Right, What Duties?”, in Baker, Judith, (ed.), Group Rights, (Toronto: University of Toronto Press, 1994)Google Scholar, Berman, Nathaniel, “Nationalism Legal and Linguistic: The Teachings of European Jurisprudence” (1992) 24 International Law and Politics 1515Google Scholar, Shuibhne, Niamh Nic, Language Rights as Human Rights? (Dublin: Bord na Gaeilge, 1999)Google Scholar, and Kusy, Miroslav, “Innate Dignity, Cultural Identity and Minority Language Rights” (1999) 6 International Journal on Minority and Group Rights 299.CrossRefGoogle Scholar
21. Keller, , supra, n.18, at 43Google Scholar; in a British context, “traditional” minorities would include Welsh- or Gaelic-speakers, whereas Urdu- or Cantonese-speakers would fall into the second category.
23. See, for example, Marshall, David F. and Gonzalez, Roseann D., “Why We Should be Concerned about Language Rights: Language Rights as Human Rights from an Ecological Perspective”, in Schneiderman, David (ed.), Language and the State: The Law and Politics of Identity, (Montreal: Les Editions Yvon Blais, 1989) at 289Google Scholar, Skutnabb-Kangas, Tove, “Language, Power and Linguistic Human Rights—the Role of the State”, in International Conference on Language Legislation: Conference Proceedings (Dublin: Comhdhail Naisiunta na Gaeilge, 1999)Google Scholar, and Phillipson, Robert, Rannut, Mart and Skutnabb-Kangas, Tove, “Introduction”Google Scholar, and Skutnabb-Kangas, Tove and Phillipson, Robert, “Linguistic Human Rights, Past and Present”, in Skutnabb-Kangas, and Phillipson, , (eds.), Linguistic Human Rights: Overcoming Linguistic Discrimination (Berlin: Mouton de Gruyter, 1995).CrossRefGoogle Scholar
25. The Oslo Recommendations Regarding the Linguistic Rights of National Minorities (the “Oslo Recommendations”), prepared in Feb. 1998 by the Foundation on Inter-Ethnic Relations at the request of the OSCE High Commissioner on National Minorities (The Hague: OSCE, 1998).Google Scholar
26. OSCE Report on the Linguistic Rights of Persons Belonging to National Minorities in the OSCE Area, (The Hague: OSCE, 1999), section III (D).Google Scholar
27. The term used in the charter to describe “traditional” or “indigenous” minorities.
30. Ramaga, Philip Vuciri, “The Bases of Minority Identity” (1992) 14 Human Rights Quarterly 409 at 426CrossRefGoogle Scholar. Ramaga notes, for example, that Serbian and Croatian are mutually intelligible and therefore could be considered to be dialects of a common language, but that written Serbian uses the Cyrillic script while written Croatian uses Latin script.
31. Crystal, , supra, n.4, at 25Google Scholar, and Tabory, Mala, “Language Rights as Human Rights”, (1980) 40 Israel Yearbook on Human Rights 167 at 189Google Scholar. The explanatory report to the Minority Languages Charter recognises at para.32 that the question of what constitutes a dialect “depends not only on strictly linguistic considerations, but also on psychosociological and political phenomena which may produce a different answer in each case”, and leaves it to the States themselves to resolve the matter.
34. Article 3(1).
35. Article 2(2).
36. For a critical assessment of the Minority Languages Charter, see Dunbar, Robert, “Implications of the European Charter for Regional or Minority Languages for British Linguistic Minorities” (2000) 25 E.L.Rev. Human Rights Survey 46Google Scholar, Dunbar, Robert D., “The European Charter for Regional or Minority Languages: Some Reflections from a Scottish Gaelic Perspective”, in Fottrell, D. and Bowring, B., (eds.), Minority and Group Rights in the New Millenium, (Deventer: Kluwer, 1999)Google Scholar, and Gomien, Donna, “The Rights of Minorities under the European Convention on Human Rights and the European Charter on Regional and Minority Languages”, in Cator, J. and Niessen, J., (eds.), The Use of International Conventions to Protect the Rights of Migrants and Ethnic Minorities, (Strasbourg, 1994), at 58–61.Google Scholar
37. As we shall see, many of the provisions of the Framework Convention, for example, only apply in respect of persons who belong to a “national minority”.
38. See, for example, Packer, J., “On the Definition of Minorities”, in Packer, J. and Myntti, K., The Protection of Ethnic and Linguistic Minorities, (Turku/Abo: Abo Akademi University Institute for Human Rights, 1993)Google Scholar, Thornberry, Patrick, International Law and the Rights of Minorities, (Oxford: Oxford University Press, 1997, 2nd ed), at 164–172Google Scholar, Capotorti, Francesco, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, (New York: United Nations, 1991, 2nd ed.), at 34, 95Google Scholar, Benoit-Rohmer, , supra, n.2, at 13–15Google Scholar, and Braen, Andre, “Language Rights”, in Bastarache, M., (ed.), Language Rights in Canada, (Montreal: Les Editions Yvon Blais, 1987), at 7–9.Google Scholar
39. Obligations on States are in respect of the “regional or minority languages” or “non-territorial languages” themselves, not in respect of speakers thereof.
40. See paragraph 11 of the explanatory report. Thus, neither the general objectives of Part II nor the specific measures of support in Part III are justiciable or enforceable through a system of individual or group communication or petition; instead, the Minority Languages Charter provides in Part IV for a system of State reporting.
41. Article 26 provides: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as … language …”
42. With respect to the meaning of the word “minority”, see the discussion of Article 27 of the ICCPR, above.
43. Proposed by the Parliamentary Assembly of the Council of Europe in Recommendation 1201 (1993)Google Scholar; it was never adopted by the Committee of Ministers. While it does not create any binding international obligations, the Parliamentary Assembly of the Council of Europe considers itself bound by it: Benoit-Rohmer, , supra, n.2, at 37.Google Scholar
45. Communication No. 694/1996, CCPR/C/67/D/694/1996, of 5 Nov. 1999.
49. In Britain, for example, Welsh- and Gaelic-medium education is provided by the State in Wales and Scotland, respectively; other linguistic minorities are not provided with similar measures of support.
50. The 1991 UK census revealed that there were only 69,510 Gaelic speakers in Scotland.
51. See, for example, MacKinnon, Kenneth, Gaelic: A Past and Future Prospect, (Edinburgh: The Saltire Society, 1991).Google Scholar
53. In a sense, Article 27 of the ICCPR is a measure of this sort, as it provides that persons belonging to, inter alia, linguistic minorities shall not be denied the right, in community with other members of their group, to use their language.
54. See, for example, Tabory, , supra, n.31, at 174–5Google Scholar, Morsink, Johannes, “Cultural Genocide, the Universal Declaration, and Minority Rights”, (1999) 21 Human Rights Quarterly 1009CrossRefGoogle Scholar, Dinstein, Yoram, “Collective Human Rights of Peoples and Minorities”, (1976) I.C.L.Q. 102, at 118Google Scholar, and Braen, , supra, n.38, at 6Google Scholar. Dinstein notes that linguistic groups are not mentioned in the Genocide Convention, “probably due to the fact that such minorities do not usually face a danger to their physical survival”. Many linguistic minorities would likely be protected under the Genocide Convention as “national” or “ethnical” groups.
55. Article 5, para.2.
56. At para.46. The desire to integrate linguistic minorities is reflected elsewhere in the Framework Convention; for example, Article 14(3) provides that the teaching of the minority language “shall be implemented without prejudice to the learning of the official language or the teaching in this language”.
57. See Braen, , supra, n.38, at 9Google Scholar. The explanatory report to the Oslo Recommendations proposed an approach “which encourages a balance between the right of persons belonging to national minorities to maintain and develop their own identity, culture and language and the necessity of ensuring that they are able to integrate into the wider society as full and equal members”: supra, n.25.
58. See, for example, Fishman, Joshua, Reversing Language Shift, (Clevedon: Multilingual Matters, 1991), especially ch. 3Google Scholar; even in the absence of assimilationist policies, social, economic and other pressures on members of minorities to assimilate are considerable. In this context, the requirement to learn a majority language may simply promote a bilingualism which is inherently unstable.
59. Interestingly, there is no similar requirement in the parallel provision in the ICCPR, Article 9(2).
62. See the Oslo Recommendations, supra, n.25, at para.18 of the explanatory report.
63. Article 19, ICCPR, Article 10, ECHR.
64. Articles 21 and 22, ICCPR, and Article 11, ECHR.
65. Article 7 provides that “[t]he Parties shall ensure respect for the right of every person belonging to a national minority to freedom of peaceful assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion.” Article 9(1) expands on the freedom of expression by including a right of non-discriminatory access to the media, and Article 9(3) provides that “[t]he Parties shall not hinder the creation and the use of printed media by persons belonging to national minorities.” Article 11(2) reiterates the right to display in the minority language signs, inscriptions and other information of a private nature visible to the public.
66. (1993), CCPR/C/47/D/359/1989 and 385/1989.
67. For a discussion of this concept, see, for example, Harris, D.J., O'Boyle, M. and Warbrick, C., Law of the European Convention on Human Rights, (London: Butterworths, 1995), at 386–414, especially 411–414.Google Scholar
68. See Article 2(1) of the UNGA Minorities Declaration, Article 3(2) of the Minorities Protocol to the ECHR, and Article 10(1) of the Framework Convention.
69. The Oslo Recommendations, supra, n.25, at para.7, explanatory report.
70. General Comment 23, 8 Apr. 1994, at para.6.2. As Thornberry has noted, while Article 27 may impose positive obligations on States to support minority identity, it provides no guidance as to what measures are required; this lack of specificity means that States are left with a wide discretion on what he describes as “the modalities of its application”: supra, n.38, at 387; see also Poulter, Sebastian, Ethnicity, Law and Human Rights: The English Experience, (Oxford: Clarendon, 1998), at 79–83Google Scholar. For a thorough discussion of Article 27, see Capotorti, supra, n.38, and Thornberry, at 141–247.
71. The Minority Languages Charter, explanatory report, para.2.
72. Explanatory report, para.27.
74. The Foundation for Inter-Ethnic Relations, The Hague Recommendations Regarding the Education Rights of National Minorities, (The Hague: OSCE, 1996), at para.1.Google Scholar
75. OSCE Report, supra, n.26, at I (C) 1.
76. See, for example, Article 4(4) of the UNGA Minorities Declaration, Article 34 of the Copenhagen Declaration, and Article 12(1) of the Framework Convention. This is in keeping with Article 26(2) of the Universal Declaration of Human Rights, which provides that education shall “promote understanding, tolerance and friendship among all nations, racial or religious groups”. See also Article 13(1) of the International Covenant on Economic, Social and Cultural Rights (the “ICESCR”), adopted by General Assembly resolution 2200 A (XXI) of 16 Dec. 1966, and which entered into force on 3 Jan. 1976, and Article 29(l)(c) and (d) of the 1989 UN Convention on the Rights of the Child.
77. See Article 4(3) of the UNGA Declaration on Minorities and Article 34 of the Copenhagen Declaration. See also Article 29(l)(c) of the UN Convention on the Rights of the Child, which provides that the education of the child shall be directed to “the development of respect for the child's parents, his or her own cultural identity, language and values…”.
78. See also Article 13(3) of the ICESCR. This provision requires States Parties to have respect for the liberty of parents to choose for their children schools other than those established by the public authorities in order to ensure the religious and moral education of their children in conformity with their own convictions. As no reference is made to linguistic or cultural education, this provision seems to be considerably narrower than those in the recent minorities instruments.
79. See, also, Article 5 of the Minorities Protocol.
80. See supra, n.43.
81. This is discussed further below: “The Right of Linguistic Minorities to Participate in Decisions which Affect Them”.
82. See, for example, Fishman, supra, n.58, at 98–114.
83. See, for example, Art.9, para.1, and Art.10, paras.1 and 2.
84. See, for example, Art.8, para.1, Art.10, para.3, Art.11, para.1, Art.12, para.1, and Art.13, para.2.
85. See also The European Social Charter (revised) ETS No. 163.
86. See Dunbar (2000) and Dunbar (1999), supra, n.35.
87. OSCE Report, supra, n.26, at para.IV (B) 1.
88. Article 7(2) of the Minorities Protocol to the ECHR contained similar guarantees. It is likely that this right is implicit in one's right to privacy. In Coeriel and Aurik v. The Netherlands, the Human Rights Committee found that a person's surname 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: para. 10.2, Communication No. 453/1991, CCPR/C/SZ/D/453/1991.
89. See, for example, Article 19(3) of the ICCPR, Article 10(2) of the ECHR.
90. See Oslo Recommendations, supra, n.25, at para.12, explanatory note.
91. Article 7(4) of the Minorities Protocol to the ECHR contained a similar obligation, though it was not limited by the existence of sufficient demand.
92. See, also, Article 10(1), ECHR.
93. The Oslo Recommendations, supra, n.25, at para.9, explanatory report,
95. See, for example, Article 2(4) of the UNGA Minorities Declaration, Article 32.4 of the Copenhagen Declaration, Article 10 of the Minorities Protocol to the ECHR, several places in the Framework Convention, but in particular, Article 17(1), and Article 14 of the Minority Languages Charter.
98. One of the optional Part III measures with respect to Media is that States undertake to ensure that the interests of users of regional or minority languages are represented or taken into account by bodies responsible for “guaranteeing the freedom and pluralism of the media”.
99. See Article 8(1) of the UNGA Declaration on Minorities, and Article 20 of the Framework Convention.
100. Article 8(4) of the UNGA Declaration on Minorities, Article 37 of the Copenhagen Declaration, Article 14 of the Minorities Protocol to the ECHR, and Article 21 of the Framework Convention.
101. See, also, Article 12(2) of the Minorities Protocol to the ECHR.
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