Linguistic Rights

Towards the World Conference on Linguistic rights

A. Introduction and Brief Resumé

The World Conference on Linguistic Rights takes place in Barcelona in June 1996 and the main item on the agenda will be "The Universal Declaration of Linguistic Rights". During the three day meeting the strengths of this declaration and its potential for implementation on an international scale will be debated. Eventually, it is hoped that a standard proposal can be sent to various governments for ratification in the form of a convention.

I. Background

The declaration has been in preparation since early 1994, and was the brainchild of the committee for translation and linguistic rights of the International PEN. The CIEMEN, (Center Internacional Escarré per a les Minories Étniques i les Nacions) which coordinates the MERCATOR Law and Legislation project, has also been actively involved in promoting the cause of linguistic rights. Together, they distributed the document to their associate members and partners. In this way, they drew on a wide pool of experts and of experiences from many countries, including, via the European Academy, South Tyrol.
Few documents have to date concerned themselves with the issue of linguistic rights, which could be considered basic human rights, reinforced for the benefit of speakers of smaller languages. In this sense, the Universal Declaration is a ground-breaking proclamation. The present declaration acknowledges the inspiration of several international documents, including the United Nations' 1948 Universal Declaration of Human Rights1, the 1966 International Covenant of Civil and Political Rights2 and the declarations and conventions of the Council of Europe3. These international documents deal with language as an issue of fundamental freedom. In addition, one organisation not mentioned in the declaration, the OSCE (formerly CSCE, now Organisation for Security and Co-operation in Europe) also took an interest in the minority issue, in 1991, publishing a report on its meeting on national minorities4.
However, unlike many other declarations and conventions, the Universal Declaration of Linguistic Rights sets out to obtain equality for all languages, by means of granting rights to the persons who speak it, the language community. One of the main principles of the declaration is that "language is an expression of a collective identity" (Article 7). Taking language as the starting point is an interesting aspect, although not an uncontroversial new development because language is an element which forms human identity. In order to guarantee the dignity and respect of all humans, it is crucial therefore that language, in particular freedom of language (especially the right to use one's mother tongue), be respected.5 Once this principle is established, freedom of language can become a medium for achieving freedom in other spheres, such as religion, art and the sciences. In addition, the declaration is clearly addressed to language communities and not states (preliminaries, final paragraph) and thus it breaks with the tradition common to most western states where one national language is adopted.
The declaration has the intention of "(..) ensuring the respect and full development of all languages and establishing the principles for a just and equitable linguistic peace throughout the world as a key factor in the maintenance of harmonious social relations" (preamble, final paragraph). In the previous paragraph it states that economic development is a key factor in causing cultural and linguistic imbalances. The scope of this document is to reverse, as far as possible, these inequalities and therefore the political, economic and cultural spheres are singled out as areas where language rights could be reinforced. The practicalities of such measures are discussed in section II.
Initially, the document defines the concepts of language community and language group. From the definitions it becomes evident that the scope of the new concepts is far broader than heretofore: for example, the concept of language community is extended to nomad peoples and language group also includes immigrants, refugees and deported persons6. Once these definitions are clarified, the declaration targets six areas where language legislation can be either improved or implemented: public administration and official bodies; education; proper names; culture; socioeconomic sphere; transitory and final dispositions. In comparison, a similar document, the Council of Europe's 1992 Charter for Regional or Minority Languages draws up measures for education, judicial authorities, administrative authorities and public services, media, cultural activities and facilities, economic and social life, transfrontier exchanges. Thus, although the universal declaration explicitly mentions other areas, its purpose is essentially in the cultural sphere.

II. A summary of the provisions of the "Draft Universal declaration of Linguistic Rights"

We shall look briefly at some of the demands made in this document. After the preliminaries and the general provisions, the right to use one's language with the public authorities is the first issue regulated. Language communities are granted a wide variety of rights in articles 15 to 22 which are summarised here below. The rights range from the right to official use of the language within the territory (Article 15), the right to communicate with authorities at all levels in their language (Article 16), to the right to have laws drafted in their language (Article 18), to use the language orally and in writing before the Courts of Law in the territory (Article 20, 1).
With regard to education, there are few new developments. Emphasis is placed on the educational system in Article 25 as the means through which all children should gain the capacity for linguistic and cultural self-expression. Moreover, the communities have the "(..) right to decide to what extent their language is to be present, as a vehicular language and as a subject of study, at all levels of education within their territory (..)." Article 25. The educational system should also give all language communities "(..) an education which will enable them to acquire a thorough knowledge of their cultural heritage (..)" Article 28. Finally, an obligation: the language and culture must be studied and researched at university level (Article 30). If we consider the overall sense of this strategy, we will understand that this declaration understands the educational system to be the main carrier of a language. The third section deals with proper names, i.e. names of persons and places. The language communities have the right to "preserve and use their own system of proper names" (Article 31) in addition to the right "to use placenames in the language specific to the territory, both orally and in writing, in the private, public and official spheres" (Article 32,1). Also included is the right to use one's name within all spheres and the right to accurate phonetic transcription into another language if the need arises (Article 34). Section four looks at the use of language in the communications media and also makes provision for new technologies. The communities may decide the extent to which they wish their language "to be present in all the communications media in their territory" (Article 35), and in order to achieve the presence they desire, are entitled to "dispose of all the human resources required" (Article 37). Like the educational system (above), the communications media also have the duty to disseminate information about the local culture and language: "All language communities have the right to receive, through the communications media, a thorough knowledge of their cultural heritage(..)" (Article 37).
All this communication is to take place harmoniously with whatever other languages may be spoken on the territory.
The fifth section deals with issues related to culture. Here, we can see clear echoes of a regime which denied certain practices and traditions, for example in Article 41 "All language communities have the right to full development within their own cultural sphere" and Article 42 "All language communities have the right of access to the works produced in their language". In addition, these groupings are also entitled to take measures to "(..) preserve their linguistic and cultural heritage (..)" (Article 45). Rights set down in the sixth section, which deals with the socio-economic sphere, are very ambitious and wide-ranging. For example, Article 46, 2, states that "All language communities have the right to dispose in their own language of all the means necessary for the performance of their professional activities, such as documents and works of reference, instructions, forms and computer software". Article 47 then calls for the full equality of languages in all economic transactions, while Article 49 deals with issues such as signposting, the use of language in private sector communication, and language in public safety announcements.
The document concludes with a proposal to establish a "Council of Languages" as an organ within the United Nations assembly and recommends the establishment of a World Commission of Linguistic Rights.
The full text of the Draft Declaration is available in the European Academy library. The following text is the contribution submitted by the European Academy working group to a revision of the Draft Declaration.

B. Critique of the Declaration

As we saw above, several aspects of the declaration clearly need closer examination and further consideration. For this reason, we will study some key sociolinguistic concepts as they are used in this document.
One concept which posed a considerable amount of difficulty was the concept of "language community", a term which does not live up to its initial promise. Once we have become clear on the concepts to be used, we will look at the document from a legal point of view: as legal positivists, however, there is a whole range of points in this draft that find no basis in the present international legal system, which is a pity because it undermines the acceptance of the document. However, for reasons of space, we cannot give a highly detailed commentary of the whole declaration.

I. The concept of "language community"

1. General considerations This first part of the analysis of the "Universal declaration of linguistic rights" examines important considerations with regard to the conception of the 'language community' throughout the document. We should like to study this from both the sociological and the ethnolinguistic points of view because language is an important factor in social relations; it plays an even more important role in territories where peoples of different languages and cultures live together.
The language community is the key concept in the declaration. It is the subject of linguistic rights which are elaborated and guaranteed in the document. The definition of the concept 'language community' is quite broad: it is a community in which the individual is born, is socialised, towards which she/he feels a sense of belonging and which shapes her/his identity. Some of the articles (Article 7) in the document convey the notion of a language community being a community which conditions the individual, and thus her/his way of observing and seeing reality.
It follows from this definition, which in our opinion verges close on linguistic determinism, that the document sets language communities up as absolute entities, granting them various rights and entitlements, irrespective of historical, cultural, socio-economic and religious factors which should be taken into consideration. It is not possible to take the language as the sole objective criteria in order to guarantee collective rights, for which a wider range of factors must be examined.
We fully recognise that language is an important instrument for communication and to promote understanding among people and thus it plays a crucial role in a functional society. But our belief is that there is a continuous interaction between language and culture as well as language and social structures. A language community is therefore very important but it is not the fundamental unit and as such, we feel the definition needs to be expanded to include further aspects which we will now explain.
Article 1, paragraph 1 of the declaration contains four criteria for the definition of language community: language, territory, historical aspects and the subjective criteria of identification with the group. We feel that further objective and subjective criteria should be included: the quantitative aspect (numerical strength of the group); the legal position (nationality, citizenship, legal recognition of the group); the temporal aspect must be defined (length of residence in a particular territory prior to being granted rights) and other cultural and sociostructural aspects (different customs and traditions, economic and geographic distribution). A subjective criterion which should be included is the desire to maintain the linguistic and cultural heritage.
The definition of language community together with that of language group moreover lack a certain amount of clarity, because in general English the terms "group" and "community" are virtually synonymous. The decision to call one group a "language community" seems to have been taken arbitrarily and the historical aspect is not enough to delimit the two concepts. Indeed, the distinction between languages spoken by immigrant groups and languages of groups historically resident on the territory is very important because the relationship between the immigrant group to the host national state is different from a psychological point of view and there is no feeling of attachment to the territory. For many members of immigrant groups, individual rights in the economic and social spheres are more essential than collective rights such as cultural and linguistic rights.
The fact that historical elements find little consideration in this document leads to a strict definition of language community, one which perhaps is not flexible enough to deal with social and cultural changes in society resulting from the steady interaction between various linguistic groups which influence the cultural dynamic and also cause changes in the socio-political situation. In fact, there is also the risk that this definition, vague and rigid at the same time, rather than fostering communication among various language communities, could actually reinforce the barriers between them.
The historical imprecision is quite evident in Art. 46, paragraph 3, which states "in no case can a more recently arrived language relegate or supersede the language specific to the territory". Both the content and the technique of this paragraph are questionable. With regard to the adverb "recent", it seems impossible to define the whole historical timeframe, whether this range from 2000 years, 300 years or even 5 years. In addition, this article makes a distinction between language group and language community, and clarifies the position of language groups. Its position however, towards the end of the document and at quite a distance from the definition in Art. 1 again shows some confusion about the conception of different rights for the language group.
A term such as "regional and minority language" seems to be useful, despite its apparent discriminatory nature, as it provides a legal framework for the granting of rights to language groups. If this declaration hopes to achieve some measure of legal effectiveness, it is important to define the institutional legal context and also to take financial aspects necessary for the implementation of linguistic laws into consideration. This cannot be done if one only looks at the aspect of language. In this respect, Article 10 of Title I, is in our opinion, quite unrealistic, because it essentially levels out the differences between language communities. If these are to achieve full equality, then the differences between the degrees of political sovereignty, social and economic situation must be recognised. Article 10 moreover contradicts the preamble, which recognises historical, political and economical factors which influence the situation of each language.
We have looked at this declaration from a more general point of view, and questioned the concept of language community as it is found in the document.
After dealing with this difficult aspect of the definition, which needs to be completed by other factors, the following chapters will look at various technical and legal aspects of the rights of language communities.

2. "Language community": legal concerns (Art. 1)
The definition of language communities contains no reference to a minimum number of members in order for it to be recognised. There is nothing to argue against this - if the rights to be attributed to these communities are fundamental human rights like the right to non-discrimination. In view of the far-reaching demands set out in the following document this all-for-everyone approach seems rather problematic.
Another aspect which seems doubtful to us is the exclusion of the so-called "new minorities" from the language community-concept. True, a distinction has been made between language communities and language groups. It is based solely on (uncertain) historical criteria (Article 1 paragraph 5): there is for example no minimum length of residence.
While language communities are beneficiaries of an unprecedented array of rights, language groups (i.e. immigrants, refugees, deported persons and members of Diaspora) are treated far less favourably.
In our opinion such a distinction could engender the feeling of being discriminated against and lead to social unrest. In any case, the prevailing opinion in the legal literature is that "new minorities" are also beneficiaries of the relevant protective instruments. Especially Art. 27 of the International Covenant on Civil and Political Rights (ICCPR), which still is probably the most important protective provision on a universal level, is largely held to cover "new minorities" as well (cf. inter alia, C. Tomuschat, Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights, 1983).
Again we are not in a position, nor do we wish to criticise the political choice of not extending the protection to certain groups. This exclusion cannot be backed up by reference to the ICCPR (as laid down in the preliminaries). We would moreover like to point to the fact that divergencies in the range and scope of these instruments will not further the common protective goal.
Differences can be drawn (and probably should be made) as we saw earlier, between long established communities and "language groups" such as new minorities. Nonetheless, we do not believe that differences of this extent are justified, for example in the measures set out in Art. 39, which excludes language groups (Art. 1, 5) from the presence in the communications media on the territory. Neither do we believe that recommendations like those formulated in Art. 2 of the draft declaration "... whenever various language communities and groups compete within a shared territory, the rights formulated in this Declaration must be exercised on a basis of mutual respect and in such a way that democracy may be guaranteed to the greatest possible extent" are sufficient to handle the difficult problems arising form these situations. Democracy (at least in its traditional interpretation) which is effectively based on the majority principle, is not enough to protect minorities.
A reworking of the draft declaration would pay more attention to needs of language groups and the problems arising from the (quite common) situation of "cohabitation" between language communities and language groups.

II. The Draft Declaration in detail

1. Art. 13 par. 2 ("Everyone has the right to be polyglot ...") In order for each obligation to be a full legal obligation, it has to have not only one or more beneficiaries but also one or more subjects to fulfil the obligations. Whether these subjects should be States or private parties, is not made clear in the declaration. A provision like this: "Everyone has the right to be polyglot and the right to know the language most conducive to his/her personal development or social mobility, without prejudice to the guarantees established for the public use of the language specific to the territory" does not show from whom one can claim the rights.
For example, does the right to be polyglot mean that each person has the right to obtain the means (financial and otherwise) to reach this capacity? Or does this provision simply mean that nobody has to interfere with a personal decision to study a certain number of languages?
The first interpretation, which seems to be the one intended by this paragraph, would lead to an obligation which can be fulfilled by no existing State, not even the richest. As this obligation for the State is not asserted explicitly, no State will feel obliged by it.


2. Section I: Public administration and official bodies (Articles 15 to 22) These articles also put such a heavy burden on the central authorities that it is hardly imaginable to find a State which would be able to fulfil them.
Financial considerations were obviously not foremost in the minds of the drafters when they laid down the following conditions:

• to publish all laws and other legal provision in all languages of the different language communities, whatever the size of the community and irrespective of the means the public authorities have at their disposal (Art. 18, par. 2);
• "if on account of the legal system in force within the state, the proceedings continue elsewhere, the use of the original language must be maintained" (Art. 20, par. 1).

C. Conclusion

As it is rare for a document to have such consideration for the needs of language communities, this declaration deserves special commendation.
However, in light of the several weaknesses in the document, some of which we have highlighted above, it will be difficult for this draft to gain international acceptance. A fundamental criterion for its acceptance are adequate definitions of the concepts "language community" and "language group", which need a thorough re-examination because it is only on the basis of these definitions that the beneficiaries of the rights, together with the subjects obliged to fulfil these obligations, can clearly be defined 7. In this respect, the lack of clarity is a major flaw in this document.
This draft is clearly a major step in the right direction, and is an attempt to find a new approach to this increasingly complex subject. This stands to the advantage of the drafters, but as the problems relating to the "new minorities" demonstrate, this language-Centerd approach, though innovative that may be, is insufficient in some respects. In fact, with regard to the "new minorities" this draft trails behind the current standard of international measures in place for their protection. It is nevertheless an important foundation for further work. We recommend that considerable changes be introduced to provide a new, high standard of legal protection for language communities as well as groups.

A: Máire Ní Dhonnchadha B+C: Peter Hilpold (Project coordinator), University of Innsbruck;
Francesca Nardin, Máire Ní Dhonnchadha, Francesco Palermo and Jens Woelk, European Academy Bolzano.

Notes

1 UDHR 1950: Articles 2, 26 and 27 deal with language and cultural issues.
2 ICCPR 1966: Articles 2, 14, 19, 24, 26 and 27 deal, amongst other issues, with: equality before the law of persons regardless of linguistic background; freedom of expression in one's mother tongue; right to religious and linguistic development of ethnic, religious and linguistic minorities.
3 i. ECHR 1950: Article 14 forbids discrimination on the grounds of sex, race, skin colour, religion, language, national or social origin, belonging to a national minority or birth.
ii. The 1992 European Charter of Regional or Minority Languages.
4 Report of the CSCE Meeting of Experts on National Minorities. 1991. The report calls for tolerance of diversity and asserts that 'not all ethnic, cultural, linguistic or religious differences necessarily lead to the creation of national minorities'. It does however encourage measures to support the cultural development of such minorities, where they exist. Ermacora, Felix / Nowak, Manfred. (Eds.). 1993. International human rights : documents and introductory notes. 154-155.
5 For further information, see Häberle, Peter. Sprachen-Artikel und Sprachenprobleme in westlichen Verfassungsstaaten - eine vergleichende Textstufenanalyse. In: Brem, Ernst; Druey, Jean Nicolas; Kramer, Ernst A.; Schwander, Ivo (Hrsg.). Festschrift zum 65. Geburtstag von Mario M. Pedrazzini. 119.
6 For further reading on the implications of this change, see: Grin, François. 1994. Combining immigrant and autochthonous language rights: a territorial approach to multilingualism.
In: Skutnabb-Kangas, Tove and Phillipson, Robert (eds). Linguistic Human Rights. Mouton de Gruyter, 31-48.
7 In this respect, the dilemma faced by the drafters of this document in establishing adequate definitions is similar to that observed in many international documents relating to minorities. See for example: Capotorti, F. 1977. Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, in: UN.Doc. E/CN4/Sub.2/384 and Deschênes J. 1985. Proposal concerning a definition of the term "Minority".

Illustrations

1-3 by Mark Coleman (SI_N WYN SIENCYN, "The Sound of Europe", 1993 European Burean of Usse Used Languages) 4 Scaglia, A., Asson A. (a cura di), ALTO ADIGE-SUDTIROLO verso l'unità europea, Prov. Auton. di Bolzano e EURISET