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LANGUAGE RIGHTS OF NATIONAL MINORITIES MUST BE RESPECTED
By Thomas Hammarberg
eGov monitor
Monday, 25 January, 2010 - 22:00
Language rights have become an issue of contention within several
European countries. While some governments take steps to strengthen the
standing of the official language, national minorities are concerned
that their linguistic rights are being undermined.
The spelling of personal names on passports, the displaying of
street names and other topographical indications, the language used
in schools, the language requirements when communicating with the
authorities and the possibility to establish minority media - such
issues are again being raised by minority representatives in several
European countries.
The redrawing of the political map in Europe over the past twenty years
has in some places made these problems more acute. Also, emerging
nationalistic tendencies - combined with confusion and insecurity
about "national identity" - appear to have encouraged extremists to
promote a xenophobic discourse against minority interests.
This is an area in which mature political leadership is particularly
needed. Language is an essential tool for social organisation,
including for the very functioning of the state. However, language is
also a central dimension of individual identity on a personal level,
and is often especially important for those in a minority position.
Disputes have arisen in some countries where the status of the state
language has been perceived as threatened in regions where minorities
are strongly present in number and perhaps also in politics. An
argument for the controversial amendments last year to the Law on State
Language in Slovakia was the importance of ensuring that Slovak-only
speakers would be able to understand all official communications, even
when residing in areas primarily populated by the Hungarian minority.
Minorities, primarily the Hungarian population, found the proposed
law changes discriminatory, reacted strongly against the introduction
of sanctions for non-respect of the language law and felt that the
minority languages needed better legal protection. This discussion
also affected Slovak-Hungarian relations.
The OSCE High Commissioner on National Minorities became engaged in
resolving this dispute. Moreover, the government in Bratislava took
the wise decision to refer the amended law to the Venice Commission
for comment. There are therefore good prospects for a rights-based
solution.
Problems related to language issues are certainly not a new
phenomenon. Indeed, norms have been developed on how to resolve them
in a number of international and European human rights treaties.
* The Framework Convention for the Protection of National Minorities
(FCNM) is a Council of Europe treaty which, inter alia, protects
and promotes the language rights of persons belonging to national
minorities. It has a monitoring body to assist the implementation by
state parties: the Advisory Committee.
* The European Charter for Regional or Minority Languages (ECRML)
protects and promotes languages as a threatened element of Europe's
cultural heritage. Implementation is monitored by the Committee
of Experts.
* These standards are further complemented by the European Convention
on Human Rights, which prohibits discrimination, for instance, on the
ground of language (Article 14). The case law of the European Court
of Human Rights (the Strasbourg court) is highly relevant also in
this area.
* The OSCE has developed standards in this area which are promoted by
the High Commissioner on National Minorities. One important document
is the Oslo Recommendations regarding the Linguistic Rights of National
Minorities (with an Explanatory Note).
* Among the relevant UN documents is the International Covenant on
Civil and Political Rights which states that persons belonging to
minorities shall not be denied the right, in community with the other
members of their group, to use their own language. Less binding but
still highly relevant is the UN Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities.
These treaties and recommendations state key principles and define
governmental obligations. However, as the nature of the problems
differs greatly from one country to another, there is in many cases
a need to interpret the agreed framework norms in order to meet the
intended purpose and to achieve the appropriate balance.
There has to be a certain "margin of appreciation" - to use the
language of the Strasbourg court - when applying the standards. This
margin should, however, not be to avoid the obligation to respect
the human rights of persons belonging to minorities.
The national discussions should consider the conclusions of the
various international monitoring bodies and the case law of the
Strasbourg court. They provide important guidance for the political
decision-makers.
Personal names
The Strasbourg court has stated that "the name is not only an important
element of self-identification; it is a crucial means of personal
identification in society at large". In one case (Guzel Erdagoz
v. Turkey, 2008) it decided that the refusal of the government
authorities to accept the preferred spelling of a person's name
violated the right to respect for private life as spelled out in the
European Convention (Article 8).
These principles are also relevant in situations where the state
language and the minority one are based on different alphabets or
scripts. When visiting Lithuania recently I learned that the spelling
of Polish names on passports and other official documents had became
a controversial issue. However, the government in Vilnius has now
submitted a proposal to parliament which, if adopted, would be seen
as a constructive step towards fuller respect for minority rights.
Local names, street names and other topographical indications
The Advisory Committee on the Framework Convention concluded in
the case of Lithuania that the absence of bilingual public signs in
certain areas was incompatible with the convention. There appeared
to be a contradiction between the Law on the State Language and the
Law on National Minorities which ought to be addressed.
In my own report on Austria I addressed the controversy around the
possibility of displaying topographical signs both in German and in
Slovenian in certain municipalities in Carinthia and recommended
the implementation without further delay of the judgment of the
Constitutional Court on this issue. The judgment protected the
principle of bilingual signage in areas where there was a significant
number of persons belonging to a national minority.
Such an approach also means that local authorities, when dominated
by minority representatives, should accept that the official language
should be used in parallel with the minority one when necessary.
Persons belonging to the majority in the country should not be
discriminated against when they live in a region where they are in
the minority.
Education
Minority language education is absolutely essential for protecting
language rights and for maintaining languages. Governments should
seek to ensure that persons belonging to minorities have adequate
opportunities to learn the minority language or even to receive
instruction in this language. Bilingualism should be encouraged
for all.
The right to adequate opportunities for minority language education
should be implemented without prejudice to the learning of the
official language or to being taught in that language. In fact,
both the Advisory Committee and the High Commissioner on National
Minorities have stressed the importance of the right to quality
education in the official language, also for minorities.
This is essential in regions where persons belonging to national
minorities have poor or no command of the state language(s) and as
a result are excluded from essential aspects of community life. The
Advisory Committee has discussed mentioned this problem in connection
with Estonia, Georgia, Latvia and Moldova among others.
A deep problem in most European countries is that the teaching of
and in the Romani language is almost totally neglected - even where
there is a significant number of Roma inhabitants.
Contacts with authorities
The possibility to communicate with the authorities in one's own
language is another human rights concern voiced by persons belonging to
a minority. This right cannot always be fully guaranteed in practice
due to limited human and financial resources. However, the Framework
Convention and the Charter state that governments should endeavour
to enable such communication as far as reasonably possible when there
is a real need.
Many states have chosen to regard the numerical size of a minority
in a given area as the relevant factor for granting certain language
rights and have established minimum thresholds for this purpose. These
should however not be too high; the Advisory Committee has deemed a
minimum level of 50 per cent to be unreasonable.
In recruitment policies public administrations should not demand
proficiency in the state language beyond what is necessary for
the post in question. Access to employment for persons belonging
to national minorities must not be unduly limited. In parallel, a
constructive approach is recommended, for instance, through offering
applicants from national minorities an opportunity to be trained in
the state language. At the same time, recruitment of civil servants
with knowledge of the relevant minority languages will also enable
administrations to better serve the whole population.
Such positive measures are especially important when the government
decides to take steps to protect and promote the official language.
Sanctions to enforce the law on the state language should be avoided.
The focus should rather be on the need to harmonise such legislation
with the law protecting minority languages - to avoid contradictions
and to guarantee that the language rights of all citizens are
respected.
Media
The possibility to establish minority language media is another area
of interest for persons belonging to national minorities. The media
should ideally reflect the plurality and diversity of the population.
State regulation of the broadcast media should be based on objective
and non-discriminatory criteria and should not be used to restrict
enjoyment of minority rights.
Persons belonging to national minorities should have access to
national, regional and local broadcast time in their own language on
publicly funded media. Quotas for broadcasting time in the official
language(s) should not prevent public or private broadcasting in
minority languages. The Advisory Committee has found a number of
negative examples of this type of quota, for instance in Azerbaijan.
A positive example was the decision in Turkey to open a 24 hour
television channel in Kurdish which was seen as a signal of a changed
attitude towards a minority whose rights have been repressed for
years. I have been informed that there are similar plans for the
Armenian language.
The basic lesson we ought to have learned on all these issues is that
the human rights concerns could only be effectively addressed through
a serious assessment of the genuine needs of the minorities.
Too often authorities have not listened carefully to them when policies
have been developed. It is crucial that governments maintain close
communication with persons belonging to national minorities and seek
a thorough and continuing consultation - a constructive dialogue.
By Thomas Hammarberg
eGov monitor
Monday, 25 January, 2010 - 22:00
Language rights have become an issue of contention within several
European countries. While some governments take steps to strengthen the
standing of the official language, national minorities are concerned
that their linguistic rights are being undermined.
The spelling of personal names on passports, the displaying of
street names and other topographical indications, the language used
in schools, the language requirements when communicating with the
authorities and the possibility to establish minority media - such
issues are again being raised by minority representatives in several
European countries.
The redrawing of the political map in Europe over the past twenty years
has in some places made these problems more acute. Also, emerging
nationalistic tendencies - combined with confusion and insecurity
about "national identity" - appear to have encouraged extremists to
promote a xenophobic discourse against minority interests.
This is an area in which mature political leadership is particularly
needed. Language is an essential tool for social organisation,
including for the very functioning of the state. However, language is
also a central dimension of individual identity on a personal level,
and is often especially important for those in a minority position.
Disputes have arisen in some countries where the status of the state
language has been perceived as threatened in regions where minorities
are strongly present in number and perhaps also in politics. An
argument for the controversial amendments last year to the Law on State
Language in Slovakia was the importance of ensuring that Slovak-only
speakers would be able to understand all official communications, even
when residing in areas primarily populated by the Hungarian minority.
Minorities, primarily the Hungarian population, found the proposed
law changes discriminatory, reacted strongly against the introduction
of sanctions for non-respect of the language law and felt that the
minority languages needed better legal protection. This discussion
also affected Slovak-Hungarian relations.
The OSCE High Commissioner on National Minorities became engaged in
resolving this dispute. Moreover, the government in Bratislava took
the wise decision to refer the amended law to the Venice Commission
for comment. There are therefore good prospects for a rights-based
solution.
Problems related to language issues are certainly not a new
phenomenon. Indeed, norms have been developed on how to resolve them
in a number of international and European human rights treaties.
* The Framework Convention for the Protection of National Minorities
(FCNM) is a Council of Europe treaty which, inter alia, protects
and promotes the language rights of persons belonging to national
minorities. It has a monitoring body to assist the implementation by
state parties: the Advisory Committee.
* The European Charter for Regional or Minority Languages (ECRML)
protects and promotes languages as a threatened element of Europe's
cultural heritage. Implementation is monitored by the Committee
of Experts.
* These standards are further complemented by the European Convention
on Human Rights, which prohibits discrimination, for instance, on the
ground of language (Article 14). The case law of the European Court
of Human Rights (the Strasbourg court) is highly relevant also in
this area.
* The OSCE has developed standards in this area which are promoted by
the High Commissioner on National Minorities. One important document
is the Oslo Recommendations regarding the Linguistic Rights of National
Minorities (with an Explanatory Note).
* Among the relevant UN documents is the International Covenant on
Civil and Political Rights which states that persons belonging to
minorities shall not be denied the right, in community with the other
members of their group, to use their own language. Less binding but
still highly relevant is the UN Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities.
These treaties and recommendations state key principles and define
governmental obligations. However, as the nature of the problems
differs greatly from one country to another, there is in many cases
a need to interpret the agreed framework norms in order to meet the
intended purpose and to achieve the appropriate balance.
There has to be a certain "margin of appreciation" - to use the
language of the Strasbourg court - when applying the standards. This
margin should, however, not be to avoid the obligation to respect
the human rights of persons belonging to minorities.
The national discussions should consider the conclusions of the
various international monitoring bodies and the case law of the
Strasbourg court. They provide important guidance for the political
decision-makers.
Personal names
The Strasbourg court has stated that "the name is not only an important
element of self-identification; it is a crucial means of personal
identification in society at large". In one case (Guzel Erdagoz
v. Turkey, 2008) it decided that the refusal of the government
authorities to accept the preferred spelling of a person's name
violated the right to respect for private life as spelled out in the
European Convention (Article 8).
These principles are also relevant in situations where the state
language and the minority one are based on different alphabets or
scripts. When visiting Lithuania recently I learned that the spelling
of Polish names on passports and other official documents had became
a controversial issue. However, the government in Vilnius has now
submitted a proposal to parliament which, if adopted, would be seen
as a constructive step towards fuller respect for minority rights.
Local names, street names and other topographical indications
The Advisory Committee on the Framework Convention concluded in
the case of Lithuania that the absence of bilingual public signs in
certain areas was incompatible with the convention. There appeared
to be a contradiction between the Law on the State Language and the
Law on National Minorities which ought to be addressed.
In my own report on Austria I addressed the controversy around the
possibility of displaying topographical signs both in German and in
Slovenian in certain municipalities in Carinthia and recommended
the implementation without further delay of the judgment of the
Constitutional Court on this issue. The judgment protected the
principle of bilingual signage in areas where there was a significant
number of persons belonging to a national minority.
Such an approach also means that local authorities, when dominated
by minority representatives, should accept that the official language
should be used in parallel with the minority one when necessary.
Persons belonging to the majority in the country should not be
discriminated against when they live in a region where they are in
the minority.
Education
Minority language education is absolutely essential for protecting
language rights and for maintaining languages. Governments should
seek to ensure that persons belonging to minorities have adequate
opportunities to learn the minority language or even to receive
instruction in this language. Bilingualism should be encouraged
for all.
The right to adequate opportunities for minority language education
should be implemented without prejudice to the learning of the
official language or to being taught in that language. In fact,
both the Advisory Committee and the High Commissioner on National
Minorities have stressed the importance of the right to quality
education in the official language, also for minorities.
This is essential in regions where persons belonging to national
minorities have poor or no command of the state language(s) and as
a result are excluded from essential aspects of community life. The
Advisory Committee has discussed mentioned this problem in connection
with Estonia, Georgia, Latvia and Moldova among others.
A deep problem in most European countries is that the teaching of
and in the Romani language is almost totally neglected - even where
there is a significant number of Roma inhabitants.
Contacts with authorities
The possibility to communicate with the authorities in one's own
language is another human rights concern voiced by persons belonging to
a minority. This right cannot always be fully guaranteed in practice
due to limited human and financial resources. However, the Framework
Convention and the Charter state that governments should endeavour
to enable such communication as far as reasonably possible when there
is a real need.
Many states have chosen to regard the numerical size of a minority
in a given area as the relevant factor for granting certain language
rights and have established minimum thresholds for this purpose. These
should however not be too high; the Advisory Committee has deemed a
minimum level of 50 per cent to be unreasonable.
In recruitment policies public administrations should not demand
proficiency in the state language beyond what is necessary for
the post in question. Access to employment for persons belonging
to national minorities must not be unduly limited. In parallel, a
constructive approach is recommended, for instance, through offering
applicants from national minorities an opportunity to be trained in
the state language. At the same time, recruitment of civil servants
with knowledge of the relevant minority languages will also enable
administrations to better serve the whole population.
Such positive measures are especially important when the government
decides to take steps to protect and promote the official language.
Sanctions to enforce the law on the state language should be avoided.
The focus should rather be on the need to harmonise such legislation
with the law protecting minority languages - to avoid contradictions
and to guarantee that the language rights of all citizens are
respected.
Media
The possibility to establish minority language media is another area
of interest for persons belonging to national minorities. The media
should ideally reflect the plurality and diversity of the population.
State regulation of the broadcast media should be based on objective
and non-discriminatory criteria and should not be used to restrict
enjoyment of minority rights.
Persons belonging to national minorities should have access to
national, regional and local broadcast time in their own language on
publicly funded media. Quotas for broadcasting time in the official
language(s) should not prevent public or private broadcasting in
minority languages. The Advisory Committee has found a number of
negative examples of this type of quota, for instance in Azerbaijan.
A positive example was the decision in Turkey to open a 24 hour
television channel in Kurdish which was seen as a signal of a changed
attitude towards a minority whose rights have been repressed for
years. I have been informed that there are similar plans for the
Armenian language.
The basic lesson we ought to have learned on all these issues is that
the human rights concerns could only be effectively addressed through
a serious assessment of the genuine needs of the minorities.
Too often authorities have not listened carefully to them when policies
have been developed. It is crucial that governments maintain close
communication with persons belonging to national minorities and seek
a thorough and continuing consultation - a constructive dialogue.