LA SEGUNDA REPÚBLICA (1931 – 1936)

In many countries, the mother-tongue is the same one as the official language used in schools, by the state, in court and in the mass media. However, when people’s home language differs from the official language, and the state does not provide sufficient measures to safeguard this language, human rights issues can be at stake. Language policy is considered an internal affair, based on the territoriality principle, and international law leaves state sovereignty unaffected. At the same time, the use of a language in the ‘private domain’ is protected by freedom of expression and association.569 _{International law protects historic} language minorities against assimilation processes.

The problem in the relation between international law and linguistic justice is that international law addresses states on the one hand, and gives individuals certain guarantees for the protection of human rights, but it is restrained from allotting collective rights to groups.570 _{Certain individual language rights are generally recognised, like the right of} suspects and accused persons to receive information about their rights in a simple and accessible language they understand.571 _{Nevertheless, it is quite useless to be allowed to} speak your minority language to yourself, and language depends on communication with others. When their language is the main characteristic of individuals belonging to a minority, the loss of this language due to assimilation implies the end of the minority.572 _{The protection} of the home language – certainly when it is spoken by a small group of people – is important to safeguard the intangible heritage of mankind, because a lot of knowledge on flora, fauna, geography and local history is only accessible in these small languages. Access to the democratic process in local government bodies is only possible when all the languages spoken in the region are taken into account. It is also important to educate children in their home language to have an effective learning process.

The aims of promoting linguistic justice in education are multiple. First, teaching the mother tongue is necessary for the transfer of the language to future generations and safeguards us from the extinction of small languages. Second, mother-tongue education is the best instrument to prevent children from ‘dropping out’ of the educational system. Yet making education possible in small languages also is an important factor in giving these languages a higher status. The right to education in one’s own language is defined in a series of international treaties, for example the International Convention on the Protection of the Right of all Migrant Workers and Members of their Families.

569 _{S. van der Jeught, EU Language Law, Groningen: Europa Law Publishing 2015, p. 263.}

570 _{A. Spiliopoulou Ǻkermark, Justifications of minority protection in international law (London 1997) p. 43-48.} 571 _{art 6, lid 3, EVRM; The right to use one’s own language in court are codified in EU Directive 2012/13/EU on the} right to information in criminal proceedings.

History of the European Charter for Regional or Minority Languages (1992)

The development of protection and anti-discrimination measures regarding minority languages was a national issue until the early 1990s. This changed with the European Charter for Regional or Minority Languages (ECRML) of the Council of Europe (CoE), adopted on 25 June 1992 and entering into force on 1 March 1998. Human rights treaties, in particular the European Convention on Human Rights (ECHR) (1950), contains provisions for persons who do not understand the language of the judiciary and on the freedom of expression, but not an overall approach towards minority language rights, neither as an individual nor as a group.573 _{This gap in the rules has been discussed in the CoE several times since 1957, but} no agreement on a protocol has been reached for national minorities in relation to languages. In 1979 a motion was submitted in the European Parliament by G. Arfé (Italy) to draw up a Charter of Ethnic Minorities. Shortly thereafter, J. Hume (UK/Northern Ireland) filed a motion in Parliament to draft a Bill of Rights for the Regional Languages and Cultures of the Community.574 _{Based on Recommendation 928 of the Parliamentary Assembly of the CoE in} 1981 and two resolutions of the European Parliament (also called Arfé Resolutions) from 1981 and 1983, the Standing Conference of Local and Regional Authorities of Europe decided to draw up a concept for a European treaty for regional and minority (R/M) languages.575

ECRML protections

The purpose of the ECRML is the protection of languages and not the protection of minorities. The explanatory report sees the standardisation of modern society, especially in the media, and the threatening influence of state policy aimed at assimilation as the biggest threats to R/M languages (para. 2).

The ECRML does not grant individual or collective rights to citizens speaking a R/M language. However, it obliges the participating countries through regulatory or other measures to ensure and improve the position of R/M languages. Emphasis is placed on languages, and by using a sliding-scale menu system, states have the possibility to choose the most appropriate level of protection they want to give to R/M languages.

Part I of the ECRML defines the R/M language. This is a language that has traditionally been used in a particular area of a state by a group of inhabitants that is smaller than the population of the rest of the state (Article 1). It is of no importance how big the group of citizens speaking a particular language is – the ECRML does not give minimum numbers. In the view of the experts drafting the ECRML, the menu of Part III is flexible enough to create an acceptable (minimum) framework for the protection of these languages and to adopt a higher level for languages spoken by larger groups. Dialects of official languages fall outside the scope of the ECRML. Nor are immigrant languages protected by the ECRML.576

Part II sets out a number of general principles and requirements that the ratifying state must apply to all R/M languages spoken in the state (Article 2, para. 1). Part II contains an obligation to respect the administrative unit of language, a non-discrimination principle, the possibility of education in R/M languages and the promotion of contact between users of different languages. A recent development in Spain shows that the Committee of Experts can convince countries to make Part II applicable to languages not ‘designated’ by the Member State at the moment of ratification.

573 _{J.-P. Schreuder, ‘Minority protection within the concept of self-determination’, Leiden J. of Int.L., 1995, pp. 54-} 80.

574 _{Motion for a Bill of Rights of the Regional Languages and Cultures of the Community, B3-0016/90.} 575 _{The draft text is published in: Archiv des Völkerrechts, vol. 28 (1990), pp. 154-164.}

576 _{See also the discussion on this subject in: Venice Commission, Report on non-citizen and minority rights (CDL-} AD(2007)001) §§62, 115, 120, 142.

States have to make a choice from the concrete undertakings in seven areas of public life as mentioned in Part III (most of these provisions consist of several options), of increasing degrees of stringency, one of which has to be chosen for the language at stake. This menu ought to fit languages spoken only by several people, languages used by large groups, by citizens living concentrated in one area, or living dispersed all over a country, and this system ought to fit the situation of each language. De Varennes calls this system a “sliding-scale formula”: at the bottom of this sliding scale there is minimum protection for R/M languages with a small number of speakers, and at the top of the scale “much more generous rights” in case large groups of minority speakers live in a country.577

Part IV gives the CoE two tools to keep up to date on the situation of R/M languages in Member States. First, these countries should report periodically to the secretary-general of the CoE on the measures taken for the benefit of the languages. The obligations of the Member States are monitored by a Committee of Experts every three years. An important source of information is the direct dialogue with the people using R/M languages.578

Some opinions on the ECRML are positive and others more critical. The specific attention to minority languages of the ECRML is seen as a positive point, as there is no international treaty that governs this matter so extensively. Simultaneously, there are critical voices. The ECRML does not provide for any enforcement mechanisms in the case of non-compliance by the Member States.579 _{De Varennes considers the lack of instruments for citizens to appeal} to a judicial institution when language rights are not respected a weak point of the ECRML.580 Blair is of the opinion that the ECRML “is not dealing with human rights questions but with the protection of a cultural heritage”. This could also be a legitimation, according to Blair, for immigrant languages not being protected under the ECRML.581

United Nations

The main problem with the protection of minority languages is the fragmentation of most of the instruments. Only the ECRML gives an overview of all aspects of society where language plays a key function and the role of minority languages, and this is missing in instruments laying down a general principle for the protection of languages.

Article 2 of the Universal Declaration of Human Rights makes this statement: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language.” In a criminal charge, “[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal” (Article 10). In the articles on freedom of opinion and expression (Article 19) and education (Article 26), language rights are not mentioned, but are included.

The International Covenant on Civil and Political Rights (ICCPR) contains protection of the rights of persons belonging to a linguistic minority. Article 27 ICCPR stipulates that “in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”. Article 27 ICCPR tries to make a bridge between individual human rights and

577 _{F.J. de Varennes, Language, minorities and human rights [S.l.: s.n.] p. 96, p. 195.}

578 _{E. J. Ruiy Vieztey, Working together: NGOs and regional or minority languages (Strasbourg: CoE 2004).} 579 _{S. Trifunovska, Monitoring of Linguistic Rights of Minorities under the European Charter and the Framework} Convention, paper presented during the II Mercator International Symposium: ‘Europe 2004: A new framework for all languages?’ in Tarragona, 27. – 28 February 2004.

580 _{F. De Varennes, ‘Language rights as an integral part of human rights’, MOST Journal on Multicultural Societies,} 2001, vol. 3, no. 1, par. 3.2 en 3.4.

group rights.582 _{But the ICCPR does not contain specific rights with regard to the use of the} language in official matters or any other field. Only the right to be informed promptly and in detail in a language one can understand of the nature and cause of the criminal charge and the right to an interpreter in court are mentioned. In this sense, the ICCPR represents the opinion that the usage of minority languages in the home environment is tolerable, but in official places it is not self-evident.583 _{In a comparable way, the United Nations Convention} on the Rights of the Child has some provisions on language rights in education. The UNESCO Convention against Discrimination in Education (1960) states the right of national minorities to carry on their own educational activities, including the use of their own language (Article 5.1(c)).584

Organization for Security and Co-operation in Europe and the High Commissioner on National Minorities

The Organization for Security and Co-operation in Europe (OSCE) has issued some recommendations with regard to language.585 _{The OSCE primarily acts when interstate} relations are involved, as in the case of the Hungarian-speaking minority in Slovakia.

Council of Europe

The ECHR contains references to linguistic rights. In Article 5.2, the reason for arrest and charges has to be communicated in a language understood by the person. Article 6.3 grants an interpreter for free in a court, if the language used cannot be spoken or understood. The ECHR does not contain rights for the protection of minorities. Only individual rights in conjunction with the non-discrimination provision of Article 14 ECHR could lead to certain substantive rights enforceable by the court.586

Article 2 of Protocol No. 1 of the ECHR does not specify the language in which education must be conducted in order for the right to education to be respected. While the right to education would be meaningless if it did not imply, in favour of its beneficiaries, the right to be educated in the national language or in one of the national languages, no mention is made of the role of R/M languages in education.587 _{The final conclusion is that there is a lacuna in the ECHR} with regard to the protection of the rights of linguistic minorities.588

582 _{F. Caportorti, the UN special rapporteur stated that ‘[it] is the individual as member of a minority group, and not} just any individual, who is destined to benefit from the protection granted by article 27’, in: Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Publication, 1979, § 206-210.

583 _{F.J. de Varennes, Language, minorities and human rights [S.l.: s.n.] (p. 164), however, points out the importance} of Article 27 ICCPR: where the ECRML addresses R/M language, focuses Article 27 on all minorities.

584 _{The UN General Assembly Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and} Linguistic Minorities (1992) (Article 1, 2(2) & 2(3)) on the one hand attributes to States the right to use their own language, on the other hand ‘positively’ requests States to provide for the promotion of ethnic, cultural, religious and linguistic identities. The case study does not discuss the UN Declaration on the Rights of Indigenous Peoples (2007) (art. 13, 14, 16) and the United Nations Declaration 47/135 of the General Assembly of the United Nations on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992).

585 _{To mention: Document of the Second Meeting of the Conference on the Human Dimension of the CSCE; OSCE} /HCNM, The Hague Recommendations regarding the Education Rights of National Minorities (1996) containing standards for the use of the language or languages of national minorities in the field of education; OSCE /HCNM, Oslo Recommendations regarding the Linguistic Rights of National Minorities (1998); OSCE /HCNM, Lund Recommendations on the Effective Participation of National Minorities in Public Life (1999); Document of June 29, 1990 of the Copenhagen Meeting of the Conference of Human Dimension of the Conference on Security and Co- operation in Europe (par. 33 and 35). Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992). Guidelines on the use of minority languages in the broadcast media by the Organization for Security and Cooperation in Europe (OSCE) (2003).

586 _{X v Austria, 10 October 1979, Commission, Application No. 8142/78, 10.10.1979, admissibility decision.} 587 _{Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights; Right to education (Updated} on 30 April 2017).

588 _{The Venice Commission ‘agrees with the Assembly rapporteur that there is an unquestionable lacuna in the} European Convention on Human Rights with regard to the special protection of the rights of linguistic minorities. Although Article 14 of the Convention together with Article 2 of the Additional Protocol does allow for some degree of protection in this area (cf. judgement of the European Court of Human Rights in the Belgian language case, judgement on the merits on 27 June 1968, Series A No. 6), the Convention does not explicitly guarantee any

The Framework Convention for the Protection of National Minorities (FCNM, ETS No. 157, in effect since 1997) (Article 5(1), 6, 8 and 10-15) sets out a spectrum of guarantees for national minorities, focusing on individual rights. Article 4 encourages Member States to introduce positive measures in favour of particularly disadvantaged minorities.589 _{France has} neither signed nor ratified the FCNM. Greece has only signed the convention, and the other countries in this survey have signed and ratified it.590

Venice Commission

The Venice Commission recognises that the guarantee of teaching the mother tongue is the keystone of safeguarding and promoting the R/M language of a minority group, thus financial support by the state is necessary.591 _{But the role of international organisations is limited} according to the Venice Commission: the ECRML is functioning “within the framework of national sovereignty and territorial integrity”.592 _{On the other hand, “the obligation to use} only the majority language in the public sphere, and the fact that education is conducted in that language, may arguably be considered discriminatory”.593 _{A stipulation of knowledge of} the country’s official language in order to hold an appointment in the public administration might constitute a form of indirect discrimination against minorities.594

Definitions

The qualification ‘minority’ in the ECRML refers to the language spoken by a numerical minority of the inhabitants of a state; the majority speaks the official language.595 _{In this} way, it was not necessary to arrive at a definition of 'minority'. Terminology that could lead to discussion was avoided, including names such as ‘Volksgruppen’, ‘national minorities’ and ‘groupes ethniques’.596 _{Since dialects of an official language fall outside the scope of the} ECRML, there can still be discussion about whether a language is a minority language or a dialect.

The terminology and definitions in the field of languages are highly debated. The term ‘regional and lesser-used language’ has been chosen by the European Parliament. Other terms could be ‘linguistic minority’ or ‘minority language’.

Article 14 of the ECHR prohibits discrimination based on language, but this article is only applicable to individuals, and does not include language rights in areas such as the language of education or media in R/M languages. Nor does it include rules on the use of language by minorities as a collective, the so-called ‘collective rights’.

linguistic freedom; moreover, the case law of the bodies of the Convention does not appear to specify that such rights might derive from the right to freedom of expression (Article 10; see however the «Sadik Ahmet v Greece» case, currently pending before the Court), freedom of thought and conscience (Article 9) or Article 3 of Protocol No. 1 (cf. the «Mathieu-Mohin and Clerfayt v Belgium» case of 2 March 1987, Series A No. 113)’. Venice Commission Opinion on the provisions of the ECRML (CDL-INF(1996)003) §1.

589 _{Opinion on Hungary, 22 September 2000, ACFC/INF/OP/I(2001)004, §4; Opinion on Croatia, 6 February 2002,} ACFC/INF/OP/I(2002)003, §26; Opinion on the Czech Republic, 25 January 2002, ACFC/INF/OP/I(2002)002, §29. 590 _{http://www.coe.int/en/web/minorities/etats-partie.}

591 _{Compilation of Venice Commission Opinions and Reports Concerning the Protection of National Minorities}