To speak or not to speak, Fernand de Varennes

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To speak or not to speak
The Rights of Persons Belonging to Linguistic Minorities
Working Paper prepared for the UN Sub-Committee on the rights of minorities
Dr Fernand de Varennes
Murdoch University, Australia
21 March 1997

1. Introduction
This working paper (1) attempts to clarify the nature and extent of the rights ofpersons belonging to minorities in the area of language. Looking back at historicalexamples in international law, it will be suggested that many aspects of what areconsidered "minority rights" actually can be traced back to traditional human rights
and values. With these clarifications in mind, it will be shown how the "linguistic"
rights of minorities refer to a number of human rights and freedoms that interact in avariety of situations.
These rights and freedoms are subsequently described in order to better appreciate
their content and significance for linguistic minorities. Once these factors areunderstood, the position of the UN Declaration on the Rights of Persons Belonging
to National or Ethnic, Religious or Linguistic minorities (hereinafter the "UN
Declaration") becomes clearer. Its provisions and their significance must be analysedand conceptualised not as an isolate element, but as part of an evolving,
comprehensive framework based on the values of respect for human worth anddignity, and the effects of the promotion and protection of minority rights on peaceand stability.
This working paper also contains as an appendix the main constitutional provisions
dealing with the promotion or protection of the identities of minorities in various
states of the world.

2. "Linguistic Rights" Prior to the UN Declaration on the Rights of Persons
Belonging to a Minority
1. The Antiquity of the Rights of Persons Belonging to Linguistic
Minorities
The UN Declaration is far from being the first international document dealing with
the issue of "linguistic rights". For hundreds of years there have existed international
treaties with provisions relating to the use of language or aimed at individuals of a
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particular language group.
The 1516 Treaty of Perpetual Union between the King of France and the Helvetic
state contained a provision identifying those who were to receive certain benefits as
the "Swiss who speak no language other than German". (2) The Final Act of theCongress of Vienna of 1815 (3) also contained certain protections to ensure theconservation of the Poles' nationality. Indirectly, this treaty resulted in the possibility
for the Polish minority in some parts of the empire to use Polish for official business.
(4)
Other international treaties with provisions protecting religious or ethnic minorities
sometimes had linguistic ramifications. For example, in the nineteenth century when
the Muslim minority in Greece had largely adopted the Turkish language, a 1881
treaty guaranteeing the free exercise of the Islamic faith, the maintenance of Islamic
courts and other community structures also implicitly provided for the continued useof the Turkish minority language as part of the Muslim religious and community
activities. (5) Other treaties were even more explicit in providing that cultural
institutions, including minority language schools, were to be protected. (6)The recognition and protection of the rights of linguistic minorities at theinternational level became more visible at the end of the First World War under theso-called minorities treaties overseen by the League of Nations. Although notconstituting a universally applicable regime for the protection of minority rights - afundamental flaw that probably contributed much to the wide-scale criticisms of thesystem and possibly its eventual downfall - the minorities treaties did constitute animportant first step in this direction.
The minorities treaties fell into three categories. The first category included treaties
imposed upon the states of Austria, Hungary, Bulgaria, and Turkey. The second dealt
with new states born of the remains of the Ottoman Empire and states whoseboundaries were altered under the self-determination principle (Czechoslovakia,
Greece, Poland, Romania, and Yugoslavia). The third category included a number of
special provisions relating to minorities in Åland, Danzig, the Memel Territory, andUpper Silesia, as well as a series of five unilateral declarations made by Albania,
Lithuania, Latvia, Estonia, and Iraq upon their admission to the League of Nations.
(7)
The first two categories of treaties described above incorporated the right to equalityof treatment and non-discrimination, the right to citizenship, the right of minorities toestablish and control their own institutions, a state obligation to provide equitablefinancial support to schools in which instruction at the primary level would be in theminority language where warranted by sufficient numbers, and the recognition of thesupremacy over other statutes of laws protecting minority rights. In addition, acertain degree of territorial autonomy was provided for minority groups in somecases.
Specifically on the issue of language, it has been pointed out that:As regards the use of the minority language, states which have signed theTreaties have undertaken to place no restriction in the way of the free use by
any national of the country of any language, in private intercourse, incommerce, in religion, in the press or in publications of any kind, or at public
meetings. Those states have also agreed to grant adequate facilities to enable
their nationals whose mother tongue is not the official language, either orally
or in writing, before the courts. They have further agreed, in towns anddistricts where a considerable proportion of nationals of the country whose
mother tongue is not the official language of the country is resident, to makeprovision for adequate facilities for ensuring that, in the primaryschools...instruction shall be given to the children of such nationals through thefile:///Users/j/Documents/_KGU/TEACHING/TEACHING_Multilingual…0or%20not%20to%20speak,%20Fernand%20de%20Varennes.webarchive

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medium of their own language, it being understood that this provision does notprevent the teaching of the official language being made obligatory in thoseschools. (8)The treaties included two principle types of provisions: firstly, individuals belonging
to linguistic minorities, amongst others, would be placed on a footing of equality
with the other nationals of the state; secondly, the means to preserve the peculiarities
and national characteristics of minorities, including language, would be ensured.
The Permanent Court of International Justice explained in one of its key opinions
how the two type of measures interact:
These two requirements are indeed closely interlocked, for there would be notrue equality between a majority and a minority if the latter were deprived of
its own institutions and were consequently compelled to renounce that whichconstitutes the very essence of its being a minority. (9)As a result, nationals belonging to linguistic minorities were to enjoy the same
treatment in law and in fact as other nationals. In particular, they had an equal rightto establish schools and institutions at their own expense. Such schools were distinct
from state schools where the minority language was the language of instruction.
Finally, in those towns and districts where the minorities constituted a considerable
proportion of the population, they would be assured of an equitable share in theenjoyment and application of sums provided out of public funds under state,municipal, or other budgets for educational, religious or charitable purposes.

2.2 The Evolution of the Rights of Persons Belonging to Linguistic
Minorities under the United Nations
Since 1945 there has been a noticeable shift emphasising universal protection ofindividual rights and freedoms:
Throughout the discussions on human rights at the United Nations Conferenceon International Organisation, the minorities treaties were not referred to, but aconsiderable amount of influence was brought to bear in favour of a "newcovenant" and a fresh approach. (10)In language matters, this fresh approach can be seen in the widespread commitment
towards individual rights. The Charter of the United Nations solemnly proclaims,
in a series of provisions, the principles of universal respect for human rights andfundamental freedoms, equality and non-discrimination.
International instruments incorporating provisions related to language came into
being at an increasingly frequent pace. On 10 December 1948, the United Nations
General Assembly proclaimed the Universal Declaration of Human Rights. (11)Article 2(1) provides that "everyone is entitled to all rights and freedoms set forth in
this Declaration, without distinction of any kind, such as...language". Pursuant to theInternational Labour Organisation Convention No. 107 of 1957 concerning
Indigenous and Tribal Populations, (12) protected indigenous populations have theright to be taught in their mother tongue or, where this is not practicable, in thelanguage most commonly used by the group to which they belong.
Central to the genesis of the UN Declaration is of course Article 27 of theInternational Covenant on Civil and Political Rights, which provides that:[i]n those states in which...linguistic minorities exist, persons belonging tosuch minorities shall not be denied the right, in community with the othermembers of their group,... to use their own language.
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In the area of education, the Convention Against Discrimination in Education of1960 (13) prohibits, under Article 1, "any distinction, exclusion or preference" based
upon language or other grounds, which "has the purpose or effect of nullifying or
impairing equality of treatment in education". The Convention makes it clear, in
Article 2(b), that it does not constitute discrimination to establish or maintain, forlinguistic reasons, separate educational systems or institutions.
The Convention also provides in Article 5(1)(c), that it is essential to "recognise theright of members of national minorities to carry on their own educational activities,
including the maintenance of schools and, depending on the educational policy ofeach state, the use or the teaching of their own language", provided that "this right is
not exercised in a manner which prevents the members of these minorities fromunderstanding the culture and language of the community as a whole and fromparticipating in its activities, or which prejudices national sovereignty".
A number of peace treaties concluded following Second World War II included
provisions in which language also figured more or less prominently. The treaties
signed with the Allied and Associated Powers in 1947 provided that each state
concerned should take all measures necessary to secure to all persons within theirjurisdiction, without distinction as to language, the enjoyment of human rights andfreedoms, including freedom of expression, of press and public opinion, and of
public meeting. (14)
In addition, many countries in Europe and Asia have more recently concluded
bilateral agreements dealing with some of their linguistic minorities, at times
providing for the protection of language and cultures, and for the maintenance ofminority schools.
Finally, in the last few years, international and regional treaties, declarations andother instruments in which language rights and freedoms, and even recognition of adegree of autonomy for territorially-based linguistic communities, have proliferated.
Amongst the more prominent are the UN Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities, the draft
UN Declaration on the Rights of Indigenous Peoples, the Vienna Declaration on
Human Rights, the Organisation on Security and Cooperation in Europe�s
Document of the Copenhagen Meeting of the Conference on the Human
Dimension, the Déclaration d'Athène sur les droits des minorités, theDeclaración Final de Lenguas Europeas e Lexislacions, the International Labour
Organisation's Convention (No. 169) Concerning Indigenous and Tribal Peoples
in Independent Countries, the European Charter for Regional and Minority
Languages, the Central European Initiative Instrument for the Protection of
Minority Rights, and the Convention-cadre sur la protection des minorités
nationales.

3. Minority Rights and Other "Linguistic Rights": What the UN Declaration
Does Not ContaintIt is essential to emphasise certain limitations to the UN Declaration in relation
to language. It apparently was never intended to be a comprehensive code of
all human rights, recognised or nascent in international law, which directly or
indirectly relate to language. Strictly speaking, it should mainly be seen toaddress those rights linked to Article 27 of the International Covenant on
Civil and Political Rights, the only "minority" provision in the covenant.
The origins of the UN Declaration can thus explain certain omissions.
Freedom of expression, for example, is not mentioned specifically in the UN
Declaration, even though it is now clear that this freedom protects the private
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use of language. In Ballantyne, Davidson and McIntyre v. Canada, theUnited Nations Human Rights Committee clearly indicated that legislation
making French the exclusive language of outdoor commercial signs in Québec
to the exclusion of all other languages in private matters breached the freedomof expression guaranteed to all by Article 19 of the International Covenant
on Civil and Political Rights.
For persons who belong to linguistic minorities, freedom of expression can be
an extremely important right in relation to the private use of a language, but it
is not a right which they can claim as members of a minority group. Everyone
has freedom of expression, whether one belongs to a majority or to a minority.
Seen in this light, it is clear that whilst freedom of expression may be of greatsignificance for the protection of linguistic minorities in some countries, itdoes not originate per se from Article 27 of the International Covenant on
Civil and Political Rights. It is not contained explicitly in the UN Declaration
because some individual human rights that may have a role in matters such as
language (and religion or culture) are not minority rights. Since they are notminority rights, they fall outside the UN Declaration.
The UN Declaration is also silent on the right to an interpreter in criminal
proceedings when an accused does not understand the language used by the
court. Once again, as this is an individual right and not a minority right, it is
not mentioned in the UN Declaration, despite considered by many to be afundamental right in international law.
A final example of a relevant individual right which the UN Declaration does
not directly address is the growing acknowledgment of the impact of nondiscrimination in the area of language preferences by public authorities.
Although the interpretation of this aspect of the right of non-discrimination ininternational law is still going through a process of clarification, there isincreasing support for the view that the operation of non-discrimination musttake into account the need to balance a state's legitimate interests and goals inprescribing certain preferences with the ensuing disadvantage, denial or burden
this may effect on individuals. Everything comes down to whether or not in theend the measure or conduct is "reasonable", "arbitrary" or "fair".
Under this analysis, it seems clear that the prohibition of discrimination on the
ground of language does not mean a state cannot favour one language overothers. A state could never be obligated to conduct all of its activities in every
language which is spoken by the inhabitants in its territory. Non-discrimination
does not prohibit every distinction involving a language, only those that are"unreasonable" when one considers all relevant factors: those that relate to thestate's interests and goals, and those that relate to the individual's interests,
rights and how s/he is affected.
By using one language exclusively in public schools, state services,administrative activities, or even prescribing the language in which court trials
are conducted, a state is making a distinction based on language. It is showing
a preference for this single, official or national language which will benefit
some individuals for whom it is a primary language, to the detriment or
disadvantage of others who either have no or lower proficiency in it or are
denied the benefit or privilege of using their own primary language.
Even though linguistic disadvantages are real, the proper application of nondiscrimination does not guarantee that every individual's language ofpreference can or should be used by state authorities. What is required instead
is a balancing act, an attempt to reach a reasonable outcome in light oflegitimate state interests and goals, and the effect the state distinction between
languages has on the individual and the advantage or benefit which others are
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receiving and he or she is not.
In practice, this would generally mean that non-discrimination can only be
invoked successfully where there is a sufficiently large or concentrated numberof individuals affected in relation to the type of state service or activity, such as
public education in a particular language.
Once again, this interpretation of the right of non-discrimination does not finda place in the provisions of the UN Declaration because non-discrimination is
not specifically a minority right under Article 27 of the International Covenant
on Civil and Political Rights. Whilst linguistic minorities could undoubtedly
benefit - in appropriate circumstances - from the application of nondiscrimination in state activities involving a linguistic preference, this isstrictly speaking an individual right independent of minority status.

4. Content and Scope of the Rights Under the UN Declaration
1. The Protection and Promotion of the Identity of Linguistic
Minorities
Article 1 of the UN Declaration suggests there is a positive obligation onstates: they "shall adopt legislative and other measures" in order toprotect the identity of minorities and to encourage conditions for its
promotion. In the case of linguistic minorities, this refers to theprotection of the minority language and the encouragement of conditions
for its promotion.
The type of state legislation required to fulfil this obligation is notelaborated, leaving simultaneously a great deal of latitude to determine
what is appropriate in the particular context of a country, but alsoleaving many uncertainties. One such uncertainty is whether this rightshould be interpreted to require positive action in terms of the language
used by state officials when providing services to the public. For
example, does Article 1 imply a state obligation to have civil servants
capable of communicating with persons belonging to linguistic
minorities in the language of the minority in certain conditions? Or does
it refer only to an obligation to adopt legislative or other measures thatcreate a favourable environment under which a linguistic minority canthen be free in the enjoyment of their identity? Is to be free to enjoy
one�s language thanks to legislation, for example, sufficient to satisfy
the state obligation "to encourage conditions for the promotion" of aminority language?
These matters are central to the nature and object of the UN Declaration,
yet they are also difficult to answer conclusively. What does appear
certain is that at the very least there is an obligation to adopt measuresthat guarantee some form of protection for minority to freely use theirlanguage amongst themselves. This is confirmed by the content andtenor of the other provisions of the UN Declaration, and also from the
UN Human Rights Committee�s General Comment on Article 27.
It would also have appeared logical to add that there must be a state
obligation to provide services that are essential for the continued
existence of the identity of linguistic minorities. For example, thepromotion of a minority�s language is highly unlikely if it cannot be
used as medium of instruction in schools since, in the words of Claude
Jullian, "Une langue qu�on n�enseigne pas est une langue qu�ontue". Yet in this fundamental sphere for the survival of the identity of
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linguistic minorities, the UN Declaration itself is non-committal: states"should" provide for adequate opportunities, where appropriate andpossible, for persons belonging to minorities to learn their language or tohave instructions in their language.
The use of the word "should" instead of "shall" in Article 4(3) issignificant as will be explained in another section. Instead of affirming
clearly that states must, under certain conditions, offer public instructionof or in a minority language, the UN Declaration only goes so far as topropose that it would be a "desirable" result, but not a necessary one
under the UN Declaration. (15)This may initially appear surprising until one remembers that the UN
Declaration is not intended to be a comprehensive compendium of all
the rights which linguistic minorities may enjoy under existing
fundamental international human rights and freedoms: it is a declaration
which is mainly "inspired" by Article 27 of the International Covenant
on Civil and Political Rights.
As explained in another part of this report, the UN Declaration does not
mention the freedom of expression, which protects the private use oflanguage in many situations that are often crucial for the survival anduse of minority languages. Neither does the UN Declaration contain any
reference to other human rights such as non-discrimination based on
language and the right to an interpreter which, although not "minority
rights" per se, can provide much needed respect and protection for many
linguistic minorities.
The best approach to Article 1 is probably to consider it as aprogrammatic provision which recognises the need for a tolerant,
generous and inclusive approach to the existence of linguistic minorities
within a state. Instead of a specific set of actions which a state must
undertake, Article 1 gives a broad sense of direction: states have an
obligation to take appropriate steps through legislation and othermeasures in order to protect the existence of the language of minorities
as the essential component of their identity. States must also adopt
legislation or take other measures to encourage an environment
conducive to the promotion of minority languages. What this requires in
concrete terms will depend on the specific conditions of each state, on
any threat to the existence of linguistic minorities, and on any condition
which stifles the promotion of their language.
Yet at the very least Article 1 suggests that it is no longer sufficient for astate to claim it has no obligation in respect of linguistic minorities
except non-interference in their affairs. Even if the identity of alinguistic minority is not endangered directly because of a state-led
policy or some other state conduct, Article 1 gives states a role to play increating an environment of safety and respect. The minority language
must be protected from outside menaces, and the state must encourage
conditions for its promotion instead of permitting negative conditions todominate and pressure a minority. To do otherwise would be contrary to
the very essence of human rights: the recognition of the inherent worthand dignity of all human beings, as well as to their diversity.
One example of how this provision could protect the existence of aminority�s linguistic identity or encourage conditions for its promotion
would be by forbidding acts of intolerance which may demean aminority language and its speakers. Whether it is in a restaurant, bar, orsome other location accessible to the public, states may be obliged to
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legislate to prevent owners from banning the private use of a minority
language on their premises simply because it would "disturb" othercustomers or be disruptive. Whether an "English-Only" rule, or a
"White-Only" rule, this type of conduct signals intolerance of others
because they are different and somehow seen as not as "worthy". In bothcases of intolerance, the state has an obligation to take concrete steps tocreate an environment which promotes acceptance of these human
differences. (16)

2. Private Use of A Minority Language in Public or in Private
Article 2 of the UN Declaration appears limited, as far as linguistic minorities areconcerned, to the recognition of the right of persons to use their own language "inprivate and in public, freely and without interference or any form of discrimination".
This provision only addresses the use of a minority language by private individuals
or entities, and does not impose obligations on states to provide public services orbenefits in a minority language.
It is however an important right for persons belonging for linguistic minorities. This
provision prevents a state from interference which would deny the free private use ofa minority language, although there are also other human rights which may help toprotect the private use of a minority language in some situations, including the rightto privacy, non-discrimination, and freedom of expression.
4.2.1 Minority Names and Surnames
Whilst the right of a person to have his or her (sur)name in his/her own language
would appear to be protected under the right to privacy, (17) it also comes under theprotection of Article 27 of the International Covenant on Civil and Political
Rights and Article 2 of the UN Declaration in the case a person belonging tominorities.
Whether using a person�s name during a religious ceremony, a private discussion athome or in a public street, or on a sign or poster on private property, this still
involves a person using words from a minority language in the private sphere. A state
which would attempt to forbid a person belonging to a minority from using his or her
own name because only names in the official, non-minority language are permitted
would clearly be in breach of the principle laid down in Article 2.
2. Script Use by a Linguistic Minority
A minority�s language may include a script (Arabic, Cyrillic,etc.) which differs from that sanctioned by the state. Whilst a state
would not be obligated under the UN Declaration to use aparticular script in any of its official activities, Article 2 does
prevent a state from banning the use of a minority script (as an
aspect of language) in the private sphere. Whether involving script
use in private correspondence, the printing of a book by private
entities, or on outdoor signs by a private entrepreneur, all these
activities represent situations where persons have the right, inprivate or in public, to use their own minority language.
3. Use of a Minority Language in Private
Persons belonging to a linguistic minority have the right to use
their own language in private. This refers to a vast panoply ofsituations that are important for the day-to-day life and vitality ofmany linguistic minorities. Playing music sung in a minority
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language, talking to one�s children in a minority language athome, to be able to write private correspondence, or to talk to afriend or neighbour in private in one�s own language, would all
be guaranteed under Article 2. (18) Persons belonging to a
linguistic minority must also have the right under this provision tokeep documents and books that are written in their minority
language. For example, this signifies that persons belonging to a
linguistic minority can keep business or association records in aminority language, although they may additionally and validly be
asked by the state to also provide such records in the official or
majority language. (19)
4. Use of a Minority Language in Public
Article 2 also recognises that the right of persons belonging to aminority to use their own language amongst themselves may havein some cases a "public" aspect. This does not imply a state
obligation to use minority languages in its own activities. (20) It israther limited to situations where the private use of a minority
language can occur where the public at large may be exposed tothis use. If a private radio station broadcasts a minority language
programme, it can reach not only members of the linguistic
minority, but also other individuals because of its public nature.
The same is true where a poster or sign is erected in view of the
public, or when a group of individuals speak a minority language
when gathered in a public park or street. Although they are still"private" activities since they involve persons acting in theirprivate capacities and not as officials or agents of the state, they
nevertheless have a public dimension because their reach may
include individuals who are not members of the linguistic
minority.
The public use of a minority language thus understood means that
persons belonging to minorities must not be prevented fromprivately distributing printed documents, magazines or books in
kiosks simply because they are in a "prohibited" language. Suchpersons must not be prevented by the state from using their own
language during private conferences, meetings, and assemblies,
even if the venue is open to the public.
Any state ban preventing a private individual from using aminority language on posters, commercial signs, etc. that would
be in public view would be inconsistent with Article 2, as well as
involving a breach of freedom of expression.
In the case of private media such as newspapers, books, radio or
television broadcasts, the state must not prevent the private use ofa minority language. A total ban or severe limitations on theprivate use of a minority language would go beyond normal state
regulatory control of the media. It would be a situation where
persons belonging to a linguistic minority could not, for example,
publish and distribute publicly a book written in their own
language, or where a private radio station would not be allowed to
produce and broadcast programmes prepared in a minority
language.
5. Use of Minorities Language in Private "Collective" Activities
The right of persons belonging to a linguistic minority to use their own language
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2019.06.28, 9*22 AM(Article 2(1)), in community with other members of their own group (Article 3(1)),
as well as the right to establish and maintain their own associations (Article 3(4)) can
be joined together in such a way as to suggest that the collective use of a minority
language is protected under the UN Declaration.
This suggests strongly that a ban on social, cultural or even political groups, simply
because they use a minority language as their language of operation, would goagainst both the letter and the spirit of the provisions of the declaration.
Even more importantly, these provisions confirm that linguistic minorities have theright to establish and maintain their own private schools - including the right tomanage these schools - where the minority language can be used as medium of
instruction to the extent chosen by them. This right to the collective use of a minority
language in terms of private educational activities does not, in itself, mean that astate must provide financial assistance for these activities. Such assistance is however
identified by the UN Declaration as a desirable measure in Article 4(3), and will be
discussed in more detail in Section 4.3 of this working paper.
It should also be pointed out that whilst linguistic minorities are entitled to freely
open and operate their own private minority schools, this does not prevent the statefrom requiring that all pupils acquire some knowledge of the official or majority
language of the country. Numerous international documents and treaties recognise
not only that the state can impose such a requirement, but even that it has an
obligation to do so in order to avoid the creation of linguistic "ghettos" or seriously
disadvantaging minority students. (21)
2. Desirability of Support for Minority Language Education
It is clear that in international law, as noted previously, minorities have traditionallybeen recognised the right to establish and maintain their own private educational
activities, using their own language as medium of instruction if they so desire. The
UN Declaration does not in itself impose a further obligation on the state to provide
the resources so that persons belonging to a linguistic minority can establish andmaintain their own private schools, nor does it require that states provide publicschooling where a minority language is used as medium of instruction. The UN
Declaration in this area is more modest in its goals as can be seen in the wording of
Article 4(3):States should take appropriate measures so that, wherever possible,
persons belonging to minorities may have adequate opportunities tolearn their mother tongue or to have instruction in their mother tongue.
In keeping with the spirit of the UN Declaration, it would be highly desirable if astate took appropriate measures so that such persons have an opportunity to learn or
be educated in their own language. These could take the form of support to private
schools or to public schools where instruction in or of the minority language isprovided. But by using should instead of shall, the UN Declaration did not impose
an unconditional obligation on states.
Once again, this restraint may initially appear rather surprising, given the prominenceof education in any attempt to protect and maintain the identity of minorities. Yet it
should not be since the UN Declaration is "inspired" by Article 27 of theInternational Covenant on Civil and Political Rights and not a full andcomprehensive statement of all human rights that may affect language issues in the
public or private domain.
Despite some disagreement, there now seems to exist a fairly widespread agreementthat Article 27 (and indirectly the UN Declaration) does not by itself impose a legal
obligation on states to provide financial assistance, in education as in other areas, tosupport specific activities aimed at minorities, including support for private or public
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schools using a minority language. (22)This does not mean that such support may not exist through the application of otherrights recognised in international law. The right to equality and non-discrimination
would be extremely potent in this are under appropriate conditions. If for example astate provided financial assistance to private schools in general, but refused
categorically to provide any financial to the schools of a linguistic minority, thiswould obviously constitute a discriminatory exclusion and involve a breach of
Article 26 of the International Covenant on Civil and Political Rights which
prohibits discrimination based on language in any area of state involvement. It has
also been suggested that where reasonable, some degree of use of a minority
language must be made in public schools pursuant to this general prohibition of nondiscrimination. (23)What Article 4(3) of the UN Declaration adds is a more general acknowledgmentthat states ought to respond favourably to the linguistic needs of minorities in the
education field. This once again goes to the very spirit of the UN Declaration for agenerous, inclusive approach to the presence of minorities within a state.
3. State Practices Consonant with the UN Declaration
There is a huge variety of state practices involving the rights of minorities. In
part this reflects the reality of human diversity in vastly different situations
throughout the world. There is however no denying that the treatment of
persons belonging to linguistic and other minorities in some states isinconsistent with the requirements of international human rights.
Instead of decrying the intentional or incidental state practices that fall short ofthose rights that may be said to flow from the UN Declaration (and otherrelevant human rights contained in international treaties), this part of theworking paper will concentrate on positive examples that can be identified in alarge number of countries. (24) Furthermore, whilst this paper also attempts toprovide a cross-section of state practices from all parts of the world, limitedaccess to information has made it difficult to provide an absolutely
representative survey.
1. Names and Surnames, Toponomy
It would appear as suggested earlier that the use of a minority�s name in theirlanguage is a matter which comes under the right to privacy, but may also comeunder the right of a person belonging to a linguistic minority to use their language
freely with other members of their community. (25)
In practice, most states do not appear to specifically interfere with the choice of thename of a person belonging to a linguistic minority. A few states have however madeit clear that individuals belonging to minorities must not be prevented from freely
choosing and using their names and surnames in their language. One good example
can be found in Hungarian legislation:
Toute personne appartenant à une minorité a le droit au libre choix deson prénom et de celui de son enfant, à l'inscription de son nom defamille et de son prénom au registre matrimonial ainsi qu'à leurutilisation dans les pièces officielles selon les règles de sa languematernelle et ce dans les cadres et les limites de la réglementation envigueur... (26)
An increasing number of states have additionally committed themselves to similar
respect for the rights of persons belonging to minorities through a variety of bilateraland multilateral treaties and international instruments, including Article 7(2) of theConvention-cadre sur la protection des minorités nationales:
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Les parties s'engagent à reconnaître à toute personne appartenant à une
minorité nationale le droit d'utiliser son nom (son patronyme) et ses prénoms
dans la langue minoritaire ainsi que le droit à leur reconnaissance officielle,
selon les modalités prévues par leur système juridique. (27)
In a number of countries, governments have furthermore adopted a policy ofbilingual toponomy where a linguistic minority represents a significant proportion of
the population. For example, in areas inhabited by a considerable percentage (25%)
of persons belonging to a linguistic minority, designations and inscriptions of a
topographical nature set up by public authorities in Austria must be bilingual.
5.2 Transborder Contacts and Linguistic Minorities
Article 2(5) of the UN Declaration recognises the right of persons belonging to a
linguistic minority to have contacts across frontiers with citizens of other states towhom they are related by linguistic ties. Once again, most states do not seem to deny
directly this right in their legislation, but few specifically recognise it either.
Nevertheless, a number of states, including Lithuania, Poland, Latvia, and others
have by treaty agreed to the validity and desirability of this right for persons
belonging to minorities. (28)
As explained by one commentator, such an entitlement can be of great importancefor minorities separated by a border in that it is a potential source of support andinspiration for its cultural and linguistic activities:
Il s'agit là d'un droit particulièrement important pour les minorités, si elles
veulent promouvoir et renforcer leurs caractéristiques communes. Le droit
consacré par cet écrit concerne tout d'abord les minorités dispersées sur leterritoire d'un ou de plusieurs États. Il est en outre destiné à s'appliquer aux
nombreuses minorités établies près des frontières et qui présentent les mêmes
caractéristiques ethniques, religieuses ou linguistiques que la population desÉtats voisins. Pour elles, le droit d'entretenir des contacts avec les populations
limitrophes, y compris en se déplaçant dans ces États, revêt une importanceparticulière. (29)
5.2 Minority Private Minority Education
Whereas there may be some uncertainty as to how far a state should actively provide
financial and other resources within the context of public or state schools, there ismuch greater clarity of understanding and exemplary practices in terms of permitting
persons belonging to a linguistic minority to carry on private educational activities intheir own language. (30)
It should be emphasised that at the international level, there is widespread and longstanding acknowledgment of this minority right. Earlier this century, the Permanent
Court of International Justice in Minority Schools in Albania commented on thenature and content of Article 5 the Albanian Minorities Treaty and concluded that it
safeguarded the right of minorities to establish and maintain their own private
schools. In the case of indigenous peoples, there is also strong internationalrecognition of a similar right. Article 27 of the 1989 ILO Convention begins withthe principle that educational policies must reflect the special needs and incorporate
the histories, knowledge, value systems and the further social, economic and culturalaspirations of indigenous peoples. Moreover, Article 27(3) provides that:
In addition, governments shall recognise the right of these peoples to establish
their own educational institutions and facilities, provided that such institutions
meet minimum standards established by the competent authority inconsultation with these peoples.
Similarly, Article IX of the draft Inter-American Declaration on the Rights ofIndigenous Peoples (31) confirms this positive and growing state consensus that
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indigenous peoples are entitled to establish and operate their own private educational
programmes and institutions.
States throughout the world have increasingly and directly lent support to this rightof minorities (and indigenous peoples) by various means. There is now widespreadrecognition of a linguistic minority's right to create and operate its own educational
activities and institutions in a large number of bilateral treaties (32) and international
instruments. (33)Furthermore, more "political" statements confirm this acceptance. For example,
paragraph 32.2 of the OSCE Document of the Copenhagen Meeting of theConference on the Human Dimension, although limited to national minorities,
acknowledges explicitly their right:...to establish and maintain their own educational...institutions, organisations or
associations, which can seek voluntary financial and other contributions aswell as public assistance, in conformity with national legislation;
In states such as the United States, court decisions have confirmed this constructive
view that a minority is entitled to freely operate its own private schools, confirming
the tie in that country between freedom and private schools and instruction in thelanguage of a minority. (34) In Meyer v. Nebraska, (35) the Supreme Court also
confirmed the tie between a person�s liberty as recognised in the Fourteenth
Amendment and private teaching in a minority language.
India has a long history of recognising in legal and constitutional provisions therights of persons belonging to a linguistic minority to freely conduct private
education activities in their own language if they so choose. For example, it hasrecognised that an important aspect of the right of members of a linguistic minority
to use their language in the private education field is that educational activities must
really be "their own", in other words that they have actual control over the creationand operation of these activities. The recognition of this aspect of a minority's rightcan be found in Article 30(1) of the Constitution of India which guarantees to all
religious or linguistic minorities "the right to establish and administer educational
institutions of their choice."
5.4 State Support for Private Minority Educational Activities
There is also increasing state receptivity to providing financial or institutional
support for the private educational activities of minorities to truly "protect andpromote" the linguistic minority�s identity.
At the international level, in the case of indigenous peoples who are often minorities
in a national context, a number of states have accepted through treaties such as the
1989 ILO Convention that governments have the responsibility to develop (with theparticipation of the peoples concerned) action to protect their rights, and stresses theneed for respect for their social and cultural identity, their customs and traditions andtheir institutions, including their linguistic component (Article 2). This includes theright of indigenous peoples, if they so desire, to operate their own private schooling
activities. Not only must signatory states "consult the peoples concerned, throughappropriate procedures and in particular through their representative institutions,whenever consideration is being given to legislative or administrative measures
which may affect them directly", they must also "establish means for the fulldevelopment of these peoples' own institutions and initiatives, and in appropriate
cases provide the resources necessary for this purpose." Article 27(3) referred toearlier confirms that the State must provide assistance in the case of the private
educational activities of indigenous peoples.
In the Americas, the emerging consensus can be seen with Article IX of the draft
Inter-American Declaration on the Rights of Indigenous Peoples (36) which
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specifies that states have the obligation to provide financial or any other type ofassistance for indigenous peoples to establish and operate their own private
educational programmes and institutions.
In terms of state practice, you have positive models such as France, which has
adopted legislation that acknowledges the German-speaking minority's right to create
private school and provides for public financial assistance for these institutions in theregions of Alsace and Moselle, as well as apparently Estonia with its 1993 Law on
Cultural Autonomy for Ethnic Minorities. (37) Minority schools in Australia also
receive a subsidy of $30 (Australian) per pupil, provided they are open to students
from any ethnic background, and operate on a non-profit basis.
In the case of Turkey and Greece, despite some serious problems, both states have inplace private minority schools according to the terms of treaties concluded in 1920.
The Greek Orthodox minority of Istanbul and the Muslim minority of Western
Thrace are entitled "to establish, manage and control at their own expense, any
charitable, religious and social institutions, any schools and other establishments for
instruction and education with the right to use their own language and to exercise
their own religion freely therein". The Turkish and Greek governments have in someregards gone beyond these provisions and provide the financial resources for theoperation of these private minority schools. For example, the Turkish-speaking
minority in Greece runs its own schools (with about 11,000 pupils and 770 teachers)
at the expense of the Greek state, although only half of the syllabus is taught inTurkish. The administration of minority schools can choose to use either the Arabic
or Roman script.
5.5 State Education in the Language of a Minority
There are numerous other examples of state practices involving linguistic minorities
where in addition to the right to freely operate private schools where their language
is used partly or in totality as medium of instruction, persons belonging to suchminorities also have a right to state (public) education where the minority language isused to some degree as medium of instruction under certain conditions wherepractical, or at the very least is taught to pupils.
At the international level, there is some long-standing recognition that a state not
only should provide for public schooling in a minority language to the degree that ispractical, but also that it must do so under certain conditions. During the League of
Nations era, the minorities treaties contained provisions specifically involving the useof a minority language as medium of instruction in the state school system whenappropriate:
Provisions will be made in the public educational system in towns and districts
in which are resident a considerable proportion of Albanian nationals whose
mother-tongue is not the official language, for adequate facilities for ensuringthat in the primary schools instruction shall be given to the children of suchnationals, through the medium of their own language, it being understood that
this provision does not prevent teaching of the official language being madeobligatory in the said schools. (38)
One Permanent Court of International Justice decision stated that Article 9 of thePolish Minorities Treaty which called for adequate public facilities for ensuring to
the children of Polish nationals of other than Polish speech primary instruction
through the medium of their own language, represented the right of "minorities themembers of which are citizens of the state to enjoy...amongst other rights, equality ofrights...in matters relating to primary instruction". (39)More recent treaties and international instruments have been recognising that states
must respond in an inclusive and favourable way to the presence of minorities by
acknowledging an obligation to provide public schooling in the languages used by
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the population of a country, including the language of persons belonging to linguistic
minorities, when this is practical and reasonable. These include the Declaration on
the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities, (40) the Central European Initiative Instrument for the Protection of
Minority Rights, (41) the Document of the Copenhagen Meeting of theConference on the Human Dimension, (42) and the Convention-cadre pour laprotection des minorités nationales. (43)For example, Article 8 of the European Charter for Regional or Minority
Languages illustrates how such a realistic and constructive approach operates byidentifying under what conditions and to what degree a minority language should be
used in public education in a way that accommodates their identity:
At the bottom end of the scale, a state could limit itself to teaching thelanguage of a minority at preschool, or if the number of pupils whose families
so request is considered sufficient, go up the scale to a substantial part of theeducation; if the numbers are even higher, up to a complete preschool
programme in the language of the minority, and so on with the higher levels of
education, always the more generous where the number of pupils is sufficiently
large and concentrated. States should seek a level of use of a minority language
which best fits their demographic reality since Article 8 is applicable"according to the situation of each language". This implies that the larger thenumber of speakers of a regional or minority language and the more
linguistically homogeneous the population in a region, the "stronger" theoption which should be adopted.
Most of the international instruments and treaties mentioned earlier that containprovisions concerning the entitlement to education in a non-official or minority
language, where warranted by the number of speakers, including persons belonging
to linguistic minorities, nevertheless add that acquisition of the common or official
language must also be possible as part of a state's non-discriminatory education
policy. (44)Although indigenous peoples are not necessarily minorities, many of them do findthemselves in a minority position, and as such the treatment of their language inpublic schools is also relevant. (45) Article 28 of the 1989 ILO Convention
illustrates that at the international level, signatory states to that treaty have also
accepted the obligation to provide assistance, wherever practical, to these and othereducational activities of indigenous peoples:
1. Children belonging to the peoples concerned shall, wherever practicable, betaught to read and write in their own indigenous language or in the language
most commonly used by the group to which they belong. When this is notpracticable, the competent authorities shall undertake consultations with thesepeoples with a view to the adoption of measures to achieve this objective.
2. Adequate measures shall be taken to ensure that these peoples have theopportunity to attain fluency in the national language or in one of the official
languages of the country.
3. Measures shall be taken to preserve and promote the development andpractice of the indigenous languages of the peoples concerned.
A similar recognition is embodied in Article VIII of the draft Inter-American
Declaration on the Rights of Indigenous Peoples. (46) This provision would confer
on states the obligation to operate educational systems in the indigenous languages,
whilst at the same time providing the necessary training and means for mastery of theofficial language.
There are many other examples of positive state measures dealing with indigenous
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peoples who find themselves in the position of a linguistic minority. In 1990, Norway
adopted the Primary School Act which reads as follows:
1. Children in Sami districts have the right to be taught Sami and to be
instructed through the medium of Sami. From the seventh year on the pupils
themselves decide on this matter. Children taught in or through the medium ofSami are exempted from instruction in one of the two Norwegian language
varieties in the eighth and ninth year.
2. On advice from the local school board the municipality board may decidethat Sami-speaking children shall be instructed in Sami all nine years and that
Norwegian-speaking children shall learn Sami as a subject.
3. Instruction in or through the medium of Sami may also be given to children
with a Sami background outside the Sami districts. If there are at least threeSami-speaking pupils at a school, they may demand instruction in Sami. (47)
In Canada, the Constitution enshrines the right of members of the two main
linguistic groups representing about 90 percent of the country's population toeducation in their mother tongue, "where numbers warrant". (48) In Austria, the mostnumerous and concentrated minorities are the Slovenians, Hungarians and Croatians.
(49) The Minority Schools Acts for the provinces of Carinthia and Burgenland
regulates schooling for persons belonging to these three linguistic minorities inprimary and secondary public schools located in the areas where these minorities areconcentrated. Outside of these areas of concentration, minority language instructionin Hungarian, Croat or Slovene where there is a minimum number of students,
usually between four and nine. Instruction in most of these schools follow for themost part a "bilingual" format, meaning that subjects are taught roughly to the same
extent in German and the minority language concerned.
India's Constitution contains a provision which directs every state, and every local
authority within a state, to endeavour to provide "adequate" public facilities for
instruction in the mother-tongue at the primary stage of education to the children of
linguistic minorities, (50) adequacy resting mainly on the numerical importance of aminority. This is in addition to the division of India's states along essentiallylinguistic lines. These political divisions ensure that the larger linguistic communities
have control over public schools and other institutions of learning, and thus
ultimately they are in a position to ensure that most inhabitants can have theirprimary language used as medium of instruction in state schools.
Switzerland's regime of cantonal autonomy ensures that most members of thecountry's three main linguistic minorities have control over the public schools andeducational activities in their cantons with a corresponding use of their language as
medium of instruction. The scheme is deemed necessary and reasonable in the Swisscontext since it adequately ensures most speakers of the main languages in the
country have access to state schooling in their language. (51)Amongst other states which have adopted some form of legislation which permits
public schooling in the language of linguistic minorities by relying on a territorial
basis are Hungary ("national minority languages"), (52) New Zealand (Maori),
Finland (Swedish), Poland (Lithuanian), (53) the United Kingdom (Welsh).
In Nigeria, each of that federation�s states adopts its own policy on the language of
instruction in state schools. This normally results in the adoption of the primarylanguage of the principal ethnic group of the region - even if it is a linguistic
minority at the national level - to use its language as language of instruction in publicschools to what is deemed an appropriate degree.
The Chinese government has a generous legal foundation in relation to the rights oflinguistic minorities in the area of public schools under Article 37 of the Act for the
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Implementation of Regional Autonomy for Ethnic Minorities:
1. The ethnic language is the major language from primary school to highschool. Chinese is taught from the third or fifth grade of primary school until
the end of high school. Students are required to study one or two years ofChinese (Mandarin) before entering college. A special ethnic-language
program is offered at college, where only science and technology are taught inChinese; for all other courses such as language, literature, history, law, andeconomics the language of instruction is the ethnic language. This type ofbilingual education is used by the Uygur in Xinjiang Uygur Autonomous
Region.
2. In primary school and middle school the ethnic language is the major
language while Chinese is taught as a subject from the second or third grade ofprimary school to the end of middle school. High schools in some areas
continue to use this method, but others will adopt Chinese as the major
language. In college the ethnic language is used only in language, literature,and history departments, while the other subjects are taught in Chinese. Thissystem is used by the Mongolians in pastoral areas in the Inner Mongolian
Autonomous Region and the Koreans in Yanbian Prefecture in Jilin Province.
The Zhuang people in Guangxi Zhuang Autonomous Region are also
experimenting with this method. Some primary schools in compact
communities of the Zhuang people in Guangxi use Zhuang as the major
language from the first to the sixth grade. All textbooks are translated from thestandard primary-school textbooks in Chinese. Chinese classes are offeredfrom the third grade until graduation. Where there is preschool education,
Chinese language teaching starts from the last term of the second grade... (54)In the last twenty-five years, Latin American countries have also begun to move in asimilar direction as regards the right to use indigenous languages which are in aminority situation. Once again many of the following examples show a movement
towards positive state measures which - when faithfully applied - may go a long way
to protect the identities of linguistic minorities. In March 1975, Peru enacted Decree
No. 21 recognising Quechua as an official language of the Republic. It stipulates that
the Ministry of Education shall provide "all necessary support for institutions
engaged in...the teaching and promotion of the language in question". The teachingof Quechua is declared to be compulsory at "all levels of education in the Republic".
In Bolivia, the Supreme Decree No. 23036 of 28 January 1992 contains provision
for the implementation of the Programa de Educación Intercultural Bilingue in the
Guaraní, Aymara and Quechua communities. (55) In Paraguay, Law 28 of 10
September 1992 renders mandatory the teaching of both national languages (Spanish
and Guaraní) at the elementary, secondary and university levels. (56)
Similar legislation dealing with public education institutions for indigenous peoples
as minorities are to be found in many other countries, including the United States:
The Native American Languages Act acknowledges that the "United States has
the responsibility to act together with Native Americans to ensure the survivalof these unique cultures and languages", and establishes a federal policy "topreserve, protect and promote the rights and freedom of Native Americans touse, practice and develop Native American languages" and to "encourage andsupport the use of Native American languages as a medium of instruction".
(57)
Furthermore, the U.S. government adopted further legislation recognising in Native
American Languages Act (58) that the federal government has the obligation:
1. To preserve, protect and promote the rights and freedom of Native
Americans to use, practice and develop Native American Languages.
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2. To recognise the right of Indian tribes and other Native American governing
bodies to use the Native American languages as a medium of instruction in all
schools funded by the Secretary of the Interior. (59)State-funded schools for indigenous peoples in the US must thus use indigenous
languages as medium of instruction when it is deemed desirable by indigenous
peoples themselves.
In New Zealand, because of the implications of the Waitangi Treaty signed between
this indigenous people and the British Crown in the nineteenth century, courts havedecided that the existence of close ties between Maori culture and customs, and theirnative language, te reo Maori, signifies that language is one of the treasures which
the state is required to protect, (60) and that this protection includes, at least, the rightto acquisition of that language by the Maori people in state-funded schools. (61)In the French territory of New Caledonia, indigenous peoples have been grantedsome autonomy powers, including the right to teach their language and culture in
public schools. (62) In the Philippines, regional minority languages are used as
auxiliary media of instruction in the regions where they are widely spoken.
In Nicaragua, the Atlantic Coast Autonomy Law recognises the right of theAtlantic Coast communities to preserve their cultural identity, and their languages, aswell as the right to use and enjoy the waters, forests and communal lands for theirown benefit. Article 12(5) provides that members of these indigenous communities
are entitled to be educated in their own languages, through programmes which take
into account their historical heritage, their traditions and the characteristics of theirenvironment, all within the framework of the national education system.
5.6 Private Media and Minority Languages
There are a number of international instruments that help to provide models of
positive approaches to the issue of the rights of persons belonging to a linguistic
minority in the area of private media. Once again, it should be remembered thatstrictly speaking not all aspects of these practices can be ascribed to the "inspiration"
provided by Article 27 of the International Covenant on Civil and Political
Rights. Some aspects appear to relate to freedom of expression, whilst others
possibly to a non-discriminatory linguistic policy.
European states which have ratified the European Charter for Regional or
Minority Languages have agreed to the following:
The parties undertake to guarantee freedom of direct reception of radio
and television broadcasts from neighbouring countries in a language
used in identical or similar to a regional or minority language, and not to
oppose the retransmissions of radio and television broadcasts fromneighbouring countries in such a language. They further undertake toensure that no restrictions will be placed on the freedom of expression
and free circulation of information in the written press in a language
used in identical or similar form to a regional or minority language. The
exercise of the above mentioned freedoms, since it carries with it duties
and responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interest of national security, territorial integrityor public safety, for the prevention of disorder of crime, for theprotection of health or morals, for the protection of reputation or rights
of others, for preventing disclosure of information received inconfidence, or for maintaining the authority and impartiality of the
judiciary.
In practical terms, this means that when the number of speakers of a minority or
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regional language reaches a certain level ("according to the situation of eachlanguage"), public authorities should adopt measures aimed at ensuring that they areproperly served in their language by private media when these authorities are activein this field (through licensing, programme content requirements, etc.). In otherwords, as the number of speakers of a language increases in a region, the media, andespecially the broadcasting media, should respond to the proportionate needs andinterests of this population. Public authorities must to the extent of their involvementin the field of private media adopt a policy that reflects these needs and interests withappropriate measures:b) I. to encourage and/or facilitate the creation of at least one radio
station in the regional or minority languages, or
II. to encourage and/or facilitate the broadcasting of radio
programmes in the regional or minority languages on a regularbasis;
c) I. to encourage and/or facilitate the creation of at least one
television channel in the regional or minority languages, or
II. to encourage and/or facilitate the broadcasting of television
programmes in the regional or minority languages on a regularbasis;d) to encourage and/or facilitate the production and distribution of audio andaudio-visual works in regional or minority languages;e) I. to encourage and/or facilitate the creation and/or maintenanceof at least one newspaper in the regional or minority languages; or
II. to encourage and/or facilitate the publication of newspaper
articles in the regional or minority languages on a regular basis;(63)
At the individual state level, there are other models of protecting the identity of
linguistic minorities and encouraging conditions for the promotion of that identity. In
Canada, the desire to address the specific cultural and linguistic needs of audiences
has been recognised, and includes, in the case of indigenous peoples, the obligation"to play a distinct role in fostering the development of aboriginal cultures and/or,
possibly, the preservation of ancestral languages." (64) The Canadian RadioTelevision and Telecommunications Commission (CRTC) adopted in July 1985 acomprehensive policy paper on cultural and linguistic plurality whilst solemnly
affirming the high value placed on linguistic diversity and how each language is as
important as any other. (65) There are of course limitations due to practicalconsiderations as to the degree of use and choice of minority languages which can beaccommodated in private broadcasting., it also recognises that, practically speaking,every demand for a private broadcasting.
Despite being official, the Irish language in Ireland is also a minority language, andin terms of private media the courts in that country have indicated that stateauthorities must be sensitive to the desirability of its presence. Presumably, otherminority languages should be properly reflected in the private media in order toproperly reflect the "culture of the people of the whole of� Ireland" as suggested by
the Irish Supreme Court in Minister for Posts and Telegraph v. Cáit Bean Ui
Chadhain. (66)Some states demonstrate an even more positive attitude towards the protection andpromotion the rights of persons belonging to a linguistic minority by encouraging
directly a greater presence of minority languages in private media. In Canada, thefederal government provided, until fairly recently under the Natives Communications
Programme, financial assistance to fifteen private aboriginal language newspapers
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across the country. It also provided funds under the Northern Native Broadcast
Access Programme to television and radio broadcasting in indigenous languages,
many of them by private, non-profit, entities.
In Hungary, newspapers publishing in the languages of national minorities areguaranteed a financial contribution under the state budget. (67) Under Act No. 416 of
5 August 1981 on the regulations governing publishing houses and measures topromote publishing in Italy, daily newspapers published entirely in French, Ladin,
Slovene or German in the autonomous regions of Valle d'Aosta, Friuli-Venezia Giulia
and Trentino-Alto Adige, have also received increased grants from the state. (68)
7. Public Media and Minority Languages
There are also positive examples of measures which protect linguistic minorities andcreate favourable conditions for the promotion of their identity in the area of state
involvement in public media. Once again, some of these examples are not directly
inspired from Article 27 of the International Covenant on Civil and Political
Rights, but they do indicate as does the UN Declaration what states ought to be
doing. In some cases, some of the state practices may also involve the application ofa non-discriminatory policy in public broadcasting.
At least one treaty explains generally how a state should conduct itself in relation to
public media and minority languages. Practices should generally reflect the actual
number of speakers of a minority language in the following way:
(1) the regular broadcasting of radio programme(s) in the minority or nonofficial language (these could take diverse forms, from one hour or less a week
to many hours every day, according once again to a minority's growing
strength);(2) the regular broadcasting of television programme(s) in the minority or nonofficial language (at increasing levels);(3) the creation of one or more radio stations operating in the minority or nonofficial language;(4) the creation of one or more television channel(s) in the minority or nonofficial language;
If the state is actively involved in newspaper publication, it should likewise devote afair proportion of resources and/or space for the use of minority languages whenparts of its population involve sufficiently large linguistic minorities. (69)
In practice, quite a few states recognise more or less explicitly that the needs of
persons belonging to linguistic minorities would not be satisfied by the exclusive use
in the public media of the official/majority language and that these individuals would
not be receiving the same benefit if their language was not being used.
In Switzerland, the effect of language policy in public broadcasting has been to serve
the population of each linguistic area in its own language to an appropriate degree.
This means that most individuals speaking the three main minority languages in use
in the country (French, and Italian, as well as Romansh) will have access to public
television or radio in their language. The Swiss have additionally considered that the
public broadcasting programming budgets should be divided amongst the threepublic broadcasting services (German, French, Italian) according to a fixed formulathat favours the smaller linguistic populations. Although more generous to the Italianand French populations, the ratio being 42:34:24 for the German, French, and Italianregional television (in radio, the budgetary ratio is 45:33:22), the more favourable
treatment of these individuals is probably not discriminatory, since it can be argued
that Swiss citizens, regardless of their language, should have access as far as possible
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to equivalent public broadcasting services in all three main, territorially-based,
languages. (70)
Public media in Australia, (71) Hungary, (72) Italy (especially German, French,
Ladin and Slovene), (73) Great Britain, (74) and a multitude of other states similarly
include minority language broadcasting to a degree that more or less adequatelyreflects the demographic weight, needs and interests of their respective linguistic
populations. As detailed in one recent UN report, other countries have adopted
similar positive approaches:
8. A television programme entitled "Heimat, fremde Heimat" offers
information in German and minority languages on living together,cultural diversity and integration in Austria. The ÖRF Regional Bureau
in Carinthia transmits radio and television broadcasts in Slovene for the
Slovene ethnic group, and in Eisenstadt radio and television broadcast in
Croat and Hungarian. Furthermore, the ÖRF is a member of theEuropean Ethnic Broadcasting Association which aims to promotecultural and linguistic diversity in public broadcasting and to increase
the participation of ethnic minorities in broadcasting.
5.8 The Language of Public Authorities and Linguistic Minorities
A growing number of international treaties signal that many states have increasingly
come to approve of a positive and reasonable response to the presence of linguistic
minorities. When authorities at the national, regional or local levels face asufficiently high number of individuals whose primary language is a minority
language, these states tend to accept that they must provide a level of service
appropriate to the relative number of individuals involved.
In the case of local districts and their administration, where the speakers of nonofficial or minority languages are concentrated, local authorities should provide for
an increasing level of services in the non-official or minority languages as thenumber of speakers of those languages increase. Beginning at the lower end of thesliding-scale model and moving to a progressively higher end, this would imply, forexample:1. making available widely used official documents and forms for the
population in the non-official or minority language or in bilingual versions;2. the acceptance by authorities of oral or written applications in the nonofficial or minority language;
3. the acceptance by authorities of oral or written applications in the nonofficial or minority language, and response thereto in that language;
4. having a sufficient number of officers, who are in contact with the public, inplace to respond to the use of the non-official or minority language;
5. being able to use the non-official or minority language as an internal anddaily language of work within public authorities.
Many recent treaties and international instruments embody this concept of a slidingscale as a proper response to the presence of linguistic minorities on their territory.
The Central European Initiative Instrument for the Protection of Minority
Rights (Article 13: "whenever in an area the number of persons...reaches...asignificant level"), the Convention-cadre pour la protection des minorités
nationales (Article 10: "Dans les aires géographiques d'implantation substantielleou traditionnelle...lorsque ces personnes en font la demande et que celle-ci répond à
un besoin réel"), and the European Charter for Minority or Regional Languages(Article 10: "within the administrative districts...in which the number of
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residents...justifies the measures specified below and according to the situation ofeach language"), to name but a few, all embody the implicit recognition thatminorities and their must be respected and accommodated in certain situations,where appropriate.
Individual state practices can be found that confirm this inclusive, respectful andpractical approach. In India, the basic numerical thresholds were adopted in 1956 in amemorandum negotiated between the federal government and individual states:whenever a language is spoken by 30 percent or more of the population in any state
or district, the state or district is recognised as bilingual and the relevant minority
language is placed on the same footing as the regional language for use by publicauthorities; whenever the linguistic minority constitutes 15 to 20 per cent of the
population in an area, government notices, rules, laws, etc. are reproduced in thelanguage of the minority in that particular area. (75) Fir its part, the Government of
the Philippines uses the main minority languages spoken in the country as auxiliary
official languages in the regions where they are concentrated.
Article 8 of the December 1993 draft Language Law of Estonia provides that inmunicipalities where at least one-half of the permanent residents belong to a national
minority, every person has the right to receive a response from the state and themunicipal institutions of the administrative district and their officials in the languageof the national minority as well as in Estonian. It should be pointed out that thisrequirement that at least half of the population belong to a national minority appears
somewhat steep, certainly when compared to the practices in many other countries.
Canada has adopted regulations (76) providing for a rather complicated sliding-scale
approach which depends not only upon the total number and/or percentage of
speakers of the two official languages, but also upon the type of service provided bypublic authorities. Other than in a few key areas, where minimal services are to beavailable in both French and English, most bilingual federal government services are
only available when the population in a census subdivision includes at least 5 percentof speakers of the official language minority (or at least 5,000 individuals in major
cities having a population of more than 100,000). In some of the lesser populated
census subdivisions, a few services can be obtained in both languages, even if there
are as few as 500 speakers of the official minority language.
Within the public administration of the Basque Autonomous Community in Spain,
Euskara and Castilian are to be used by administrative units in areas where thepercentage of Euskara-speakers, a linguistic minority in that country, reaches 20
percent of the population.
The Finnish approach towards the minority Swedish-speakers is even more flexible:
In a bilingual municipality (commune) citizens have the right to beadministered in Finnish or Swedish by both local and state authorities. The
authorities are required to publish documents and announcements that affect
the general public in both languages. The internal administrative language of amunicipality is the language of the majority. In principle, state authorities
should communicate with the municipalities in the principal language of themunicipality. A municipality is considered unilingual � Finnish or Swedish �when the entire population speaks the same language or when the number of
inhabitants who speak the minority language is less than eight percent. If theminority exceeds eight percent or numbers 3000 persons, the municipality isbilingual. A bilingual commune is not declared unilingual until the minority
falls below six percent. (77)
In Austria, the Slovene and Croat minorities enjoy the individual right to use the
Slovene and Croat language in administrative and judicial districts with mixed
populations. Regulations under the Ethnic Groups Act provides for the use of these
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minority languages in official communications with federal, provincial and local
authorities, including administrative authorities and courts, as well as in appellate
proceedings in superior courts.
In the Slovak Republic, the 1990 Official Language Act recognises that publicauthorities have the obligation to provide services and respond in a minority
language in any region where at least 20 percent of the population consists of anational minority:
If the members of a national minority form in a city or village 20 percent of the
population at least, they may in such cities and villages use their language in
official contact. If in these cities or villages a citizen who is not a member ofthe national minority comes into official contact, the procedure is carried on in
the official language. The employees of state authorities and local selfgovernment bodies are not obliged to know and use the language of thenational minority. Public documents and the official agenda are made up in theofficial language. (78)
Although it appears that no international instrument attempts to provide a precise
demographical standard for assessing when exactly the use of a minority language by
public authorities is an appropriate and reasonable response, at least one nongovernmental organisation has attempted to do so in a Draft Protocol to theInternational Convention on the Protection of National or Ethnic Minorities orGroups, Applicable to the States Members of the Council of Europe:
The ethnic group's language shall be the official language if in an autonomous
corporate entity within a commune (including parts of the commune orfactions of a commune equipped with independent sub-organs of thecommune) at least 20 percent, in administrative and judicial districts at least
six percent, or in larger administrative entities at least five percent of theresiding population use the language of the ethnic group. (79)
Certain states have chosen a path which is somewhat different from that describedabove by opting for various degrees of regional autonomy. When provinces, oblasts,
cantons or states are granted an extensive array of legal, judicial and administrative
powers and corresponding financial resources, it becomes possible for a linguistic
minority to acquire control over many facets of the public authority and thecorresponding control over public language use. The Swiss cantons, the Åland
Islands in Finland, and the Belgian cultural communities are all examples of the socalled principle of linguistic territoriality or Territorialitatsprinzip. In the case of
Switzerland, for example, this principle signifies that even the relatively small
population of Italian-speakers are able to constitute a majority in the canton of Ticino
and have an extensive array of public services in their language, in addition to a great
deal of local political power.
5.9 Use of a Minority Language in Private Between Individuals
Very few states attempt to prevent individuals from using their language of choice ina private context. (80) Whether a person speaks his or her language with a neighbour
on the public street or at home, there is almost universal agreement that a statecannot intrude in this type of language use. It would appear this type of conduct is
protected under freedom of expression and would thus apply to all persons, including
persons belonging to ethnic minorities.
Most state legislation and constitutions are silent in terms of positive examples in thisregard, probably because it appears to be so widely seen as unwarranted stateinterference.
5.10 Private Use of Minority Language in Public
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Most States tend to be silent as to measures dealing with the private use of languagein public. Generally, because of the close relationship of this right with freedom of
expression, there did not seem to be a need to explicitly guarantee it in constitutionalor legislative measures. A few countries have done so to some extent, such as
Macedonia in Articles 8 ("The fundamental values of the constitutional order of the
Republic of Macedonia [include]� the free expression of national identity) and 48("members of nationalities have a right freely to express, foster and develop theiridentity and national attributes. The Republic guarantees the protection of the ethnic,
cultural, linguistic and religious identity of the nationalities.") of its Constitution.
Other countries with positive constitutional provisions aimed at the promotion andprotection of the right of linguistic minorities to use their language in public include
Mongolia ("national minorities of other tongues [have the right] to use their native
languages in education and communication and in the pursuit of cultural, artistic, andscientific activities"), Pakistan ("citizens having a distinct language, script or culture
shall have the right to preserve and promote the same"), El Salvador ("Indigenous
languages spoken in the national territory are part of the cultural heritage and are to
be preserved, used and respected"), and Guatemala ("Guatemala is formed of various
ethnic groups, including the indigenous groups of Maya origin. The state recognises,
respects and promotes their life styles, customs, traditions, forms of socialorganisation, use of indigenous dress for men and women, their language and theirdialect").
5.11 Other State Measures to Promote the Identity of Linguistic
Minorities
Under the Ethnic Groups Act of Austria, the federal administration must promotemeasures and projects that preserve and ensure the existence of linguistic minorities
and their identity. This can take the form of federal assistance such as grants, training
and counselling of members of these minorities, as well as financial assistance toassociations and foundations.
In the Philippines, the Office of the Northern Cultural Communities and the Office of
the Southern Cultural Communities have been created to promote and protect therights of persons belonging to linguistic and other minorities. Various similar entities
exist in a large number of countries, fulfilling a variety of roles, including Russia,
Canada, Australia, China, India, etc.
The new South African Constitution of 1996 contains also a number of innovative
measures. Article 6 recognises a large number of minority languages as official
languages. It also adds that:(4) The national government and provincial governments, by legislativeand other measures, must regulate and monitor their use of official
languages. Without detracting from the provisions of subsection (2), allofficial languages must enjoy parity of esteem and must be treatedequitably.
(5) A Pan South African Language Board established by national
legislation must(a) promote and create conditions for the development and use of (i) all official languages;(ii) the Khoi, Nama and San languages; and(iii) sign language ; and(b) promote and ensure respect for file:///Users/j/Documents/_KGU/TEACHING/TEACHING_Multilingua…or%20not%20to%20speak,%20Fernand%20de%20Varennes.webarchive

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2019.06.28, 9*22 AM(i) all languages commonly used by communities in South Africa,
including German, Greek, Gujarati, Hindi, Portuguese, Tamil,
Telegu and Urdu; and(ii) Arabic, Hebrew, Sanskrit and other languages used forreligious purposes in South Africa.
Using words very close to the UN Declaration, it also sees the need to take further
steps towards promoting and protecting minorities in Article 185:
(1) The primary objects of the Commission for the Promotion andProtection of the Rights of Cultural, Religious and Linguistic
Communities are (a) to promote respect for the rights of cultural, religious and linguistic
communities;(b) to promote and develop peace, friendship, humanity, tolerance andnational unity among cultural, religious and linguistic communities, on
the basis of equality, non-discrimination and free association; and(c) to recommend the establishment or recognition, in accordance withnational legislation, of a cultural or other council or councils for acommunity or communities in South Africa.
(2) The Commission has the power, as regulated by national legislation,necessary to achieve its primary objects, including the power to monitor,
investigate, research, educate, lobby, advise and report on issues
concerning the rights of cultural, religious and linguistic communities.
(3) The Commission may report any matter which falls within its powers
and functions to the Human Rights Commission for investigation.
(4) The Commission has the additional powers and functions prescribedby national legislation.
Hungary and India are two states which have been adopting very strong andprogressive attitudes towards the promotion and protection of the rights of linguistic
minorities. In the case of Hungary, the constitution contains a number of provisions
which guarantee a whole range of rights for minorities. Furthermore, the Law of 7
July 1993 on the rights of national and ethnic minorities includes respect for thehuman rights of members of minorities with measures of local self-government. Thislaw provides for the creation of independent councils of local minorities and confers
a right to education in the mother tongue of members of minorities, as well as a rightto use their language in official organs and to receive from civil servants answers in
the languages of the regions in which they traditionally live. The law also provides
for television and radio stations to broadcast programmes in the languages ofminorities and for the establishment of a mediation process for national minorities.
India for its part has also included strong respect and protection of linguistic
minorities in its constitution. This includes the broad recognition of a minority�sright to conserve their distinct language, script or culture (Article 29), to establish
and administer educational institutions of their choice (Article 30), and to receive
government assistance for such private educational facilities in a non-discriminatoryway (Article 30(2)).
The constitution also guarantees the right for a minority language to be officiallyrecognised and used by public authorities where the minority represents a substantial
proportion of the population (Article 347) as well as to public schooling using aminority language where appropriate (Article 350A).
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And finally, because of their importance and the need to ensure that the rights oflinguistic minorities are fully protected, the Constitution also establishes a special
mechanism to safeguard them:
Article 350B
1. There shall be a special officer for linguistic minorities to beappointed by the President.
2. It shall be the duty of the special officer to investigate all mattersrelating to the safeguards provided for linguistic minorities under thisConstitution and report to the President upon those matters at suchintervals as the President may direct, and the President shall cause allsuch reports to be laid before each House of Parliament, and sent to thegovernments of the states concerned.

3. The Value and Effect of Protecting the Rights of Linguistic Minorities
Whilst traditional European liberalism tended at best to tolerate or disregard cultural
diversity, human rights and international law have evolved in a more inclusive
fashion. The rights of linguistic minorities include a panoply of protections whichhave mainly emerged with the strengthened acceptance in the second half of thiscentury of a "faith in fundamental human rights, in the dignity and worth of thehuman person, in the equal rights of men and women and of nations large and small".
Human rights, including minority rights, are based on the acknowledgment andacceptance of the human person, in all of his or her diversity. Just as one�s colour ofskin should not diminish one�s worth or dignity, so the State should not be
prejudiced in its conduct or relationship towards minorities.
It is therefore an oft repeated error to assume that the protection of the rights ofminorities is somehow inconsistent with "individual" human rights which haveemerged as an integral feature of international law this century. On the contrary, by
being founded on the recognition of the intrinsic value of the human person�sdignity and worth, human rights at the international level have gone beyond mere
tolerance of human differences: respect of the individual includes valuing humandiversity. To deny minority individuals access to certain benefits, or to disadvantage
them because of their religion or language is - under certain conditions - no longer
permissible. Their human differences must be respected and acknowledged to somedegree beyond mere tolerance.
States operating within a democratic framework similarly must acknowledge the roleand contributions of all of their peoples. Individual human worth and dignity, as acornerstone of the international human rights edifice, implies a democratic state
structure that values all of its citizenry. In terms of language or cultural preferences,
this does not exclude a state from adopting a common or official language, but it
does mean that value must also be attached to the worth and dignity of the whole
population. Minorities within the State which differ from the majority must thus not
simply be tolerated, but embraced and accommodated within the State as much as isreasonably possible to do given the situation of the minority and the conditions
within the State. That is the very essence of the modern concept of human andminority rights.
This philosophical backdrop concerning the moral underpinning of international
human rights does not deny the existence of other desirable effects linked to therecognition of minority rights. Indeed, one could suggest that the effects of protecting
and promoting the rights of minorities in themselves should be enough to warrant thedevelopment of clearer, more generous standards.
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In 1976, UN Special Rapporteur Francesco Capotorti pointed out that the it was byrecognising and protecting the rights of religious minorities centuries ago that peaceand stability in Europe - both between states and within them - could be attained:�since the Reformation, the lot of religious minorities had become a very
serious question, no longer the concern only to the states involved, but also
profoundly affecting international relations. In this connection it should be
remembered that the desire to protect religious minorities had served as apretext for many interventions by foreign countries... This situationencouraged many European states to stipulate in their mutual relations,especially on the occasion of transfers of territory, the requirement that
religious minorities be allowed the right to profess their faith freely without
fear of persecution. (81)
Human rights scholar Rodolfo Stavenhagen has similarly pointed out that:
�in most cases of open ethnic conflict in the world today, the State is not an
impartial onlooker or arbiter, but rather a party to the conflict itself. Indeed, in
multiethnic societies, the State is frequently either controlled by, or identifies
strongly with, a dominant or majority ethnie. (82)More recently, a study undertaken by the United States Institute for Peace concluded
the following:[I] is not difficult to establish that violations of the rights of free exercise
and non-discrimination intensify conflict�nor to project with reasonableconfidence that the observance and implementation of those norms willserve to reduce conflict. (83)When considering state practices affecting the rights of minorities in three situationsof conflict, the same study contained the conclusion that breaches of the minorities�rights undeniably constituted a major contributing factor to the emergence of theseconflicts and that part of the solution seemed to lie with the protection of their rights:
� minority populations have been seriously discriminated against
because of majority attitudes and beliefs that have tended, respectively,
to dominate the governments of those places. At the sametime�respectable proposals for resolving conflict prominently include
references to respect for the rights of free exercise and nondiscrimination. (84)
All of the above suggest that the mere presence of minorities within a state is not in
itself a danger to the stability of states - most minorities coexist in relative tranquility
with the majority in most states, most of the time. They suggest that more often than
not it is the refusal of the State to accommodate, to value the individuals who belong
to a minority, which contributed to the emergence of many so-called ethnic conflicts.
Breaches of human rights, and especially breaches affecting the rights of minorities
in areas such as language, religion or culture, can be a recipe for disaster in states
where minorities represent a substantial proportion of the population.
One of the main effects of promoting and protecting the rights of minorities istherefore the maintenance of peace and stability. Documents such as the UN
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or
Linguistic Minorities are part of a process to increase understanding and respect forhuman rights which are anchored upon the value of human worth and dignity. It is in
this spirit that the rights of linguistic and other minorities must be seen: measures
aimed at reaching a balance of harmony and inclusion rather than conflict andexclusion.

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Notes
1. Parts of this paper rely on material from de Varennes, Fernand (1996), Language, Minorities
and Human Rights, Martinus Nijhoff, The Hague.

2. Dessemontet, François (1984), Le droit des langues en Suisse, Éditeur officiel du Québec,Québec, at p. 29. The author also mentions an earlier 1515 treaty containing a similar linguistic
definition, as well as a 1403 treaty between the cities of Bern and Fribourg which used a German
word, welsche, signifying someone who speaks a foreign language, in order to identify apotential enemy.
3. British and Foreign State Papers, 1814-1815, Volume II, 1839, at pp. 7-55.
4. Article 1 of the Final Act of the Congress of Vienna: Les Polonais, sujets respectifs des hautes
parties contractantes, obtiendront la conservation de leur nationalité, d'après les formes
d'existence politique que chacun des gouvernements, auxquels ils appartiennent, jugera
convenable de leur accorder.
5. Convention for the Settlement of the Frontier between Greece and Turkey, 24 May 1881,(1881) 158 Consolidated Treaty Series 367, Article 7. See other similar provisions involving
Muslims in the Treaty of Peace between Serbia and Turkey, Article 7, signed 14 March 1914
in Constantinople, (1913-1914) Vol. 219 Consolidated Treaty Series 320, at p. 322, and theapparent protection of private schools of numerous linguistic and religious minorities in Article
29 of the Treaty of Peace between Austria-Hungary, Bulgaria, Germany and Turkey, andRomania, signed 7 May 1918 in Bucharest, (1917-1918) Vol. 223 Consolidated Treaty Series
241, at p. 264.
6. See for example the case of the Vlach minority, who speak a distinctive form of Romanian,whose schools were protected under the Treaty of Peace between Bulgaria, Greece,
Montenegro, Romania and Serbia, signed 10 August 1913, (1913) Vol. 218 Consolidated
Treaty Series 322, at pp. 335-337; see also the provisions regarding German language schools in
Articles 38 to 41, Treaty between Germany and Romania supplementary to the Treaty ofPeace, 7 May 1918, signed in Bucharest, (1917-1918) Vol. 223 Consolidated Treaty Series 304,
at pp. 311-312, and the provisions regarding Turkish language private schools for Muslims living
in Serbia, Article 9 of the Treaty between Serbia and Turkey, signed at Constantinople, 14
March 1914, (1913-1914) Vol. 219 Consolidated Treaty Series 320, at p. 324.
7. See Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities(1976), UN Special Rapporteur Francesco Capotorti, UN Doc. E/CN.4/Sub.2/384/Add.1-7..
8. Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, supra, at
pp. 18-19.
9. Advisory Opinion on Minority Schools in Albania, (1935) Permanent Court of International
Justice, Series A/B, No. 64, 3, at p. 4, also known as the Minority Schools in Albania case.
10. McKean, Warwick (1983), Equality and Discrimination under International Law, Clarendon
Press, Oxford, United Kingdom, at p. 53.
11. General Assembly Resolution 217 A (III), UN GAOR, 3rd Session, Resolutions, Part 1, at p. 71(1948).
12. United Nations Treaty Series, Volume 328, at p. 249.
13. (1960), United Nations Treaty Series, Vol. 428, at p. 93.
14. Treaty with Italy, United Nations Treaty Series, Vol. 49, at p. 3; Treaty with Romania, United
Nations Treaty Series, Vol. 42, at p. 3; Treaty with Bulgaria, United Nations Treaty Series, Vol.
41, at p. 21; Treaty with Hungary, United Nations Treaty Series, Vol. 41, at p. 135; Treaty with
Finland, United Nations Treaty Series, Vol. 49, at p. 203; Austrian State Treaty, United
Nations Treaty Series, Vol. 217, at p. 223.
15. The UN Declaration is thus much more ambiguous than the European Charter for Regional or
Minority Languages where states "undertake�to make available" education partial or complete
education in a minority language where appropriate (Article 8). See similar provisions in othertreaties and international instruments such as the Convention-cadre.
16. This interpretation is confirmed later in the UN Declaration. Article 4(2) would seem to requiremeasures to create favourable conditions for individuals to be able to use their language,
including in the described situation.
17. Coeriel and Aurik v Netherlands, UN Human Rights Committee, Communication No.
453/1991, 31 October 1994.
18. Whilst many of these examples may seem self-evident, they actually involve recent instanceswhere a state has tried to prohibit the private use of a minority language.
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19. For a more detailed explanation of the interaction between the private use of language andadditional requirements to comply with a state's official language policies, see de Varennes,
Fernand (1996), Language, Minorities and Human Rights, Martinus Nijhoff, The Hague,
Chapter 3.
20. Such a state obligation may arise from the application of other human rights standards inappropriate situations. See Chapter 4, de Varennes, Fernand (1996), Language, Minorities andHuman Rights, Martinus Nijhoff, The Hague.
21. See for example Article 5(i) of the Convention Against Discrimination in Education. It is
important to warn against the argument that educational activities in a minority language
necessarily restrict employment or higher educational opportunities of the minority, or will
obviously be of lower educational quality. Quality of education and the language of instruction
are two different matters: one can obtain a high quality education in any language, given proper
teaching resources and conditions. Similarly, it appear nonsensical to suggest that the use of amajor international language such as English or Spanish, in a state where it is a minority
language, would automatically result in an ìinferiorî standard of education. As for limiting
employment or advanced educational opportunities, this would normally not become a majordifficulty when it is recognised that there is a recognised international obligation for minority
schools to teach the official or majority language.
22. See in particular de Varennes, Fernand (1996), Language, Minorities and Human Rights,
Martinus Nijhoff, The Hague, Section 5.6.1.
23. de Varennes, Fernand (1996), Language, Minorities and Human Rights, Martinus Nijhoff, The
Hague, Section 6.2.2.
24. Whilst an attempt has been made to provide up-to-date information, the rate of legislative andconstitutional changes that occur throughout the world obviously makes this an impossible task
for the author.
25. A name can identify a person as belonging to a community, and any state restriction on the use ofa person's name in a minority language would be an intervention in what is by its very nature a
private matter.
26. Article 12(1) of the 1993 Act No. LXXVII on the Rights of National and Ethnic Minorities.
27. Among other treaties and instruments with similar provisions are Article 14 of the draft
Declaration on the Rights of Indigenous Peoples, Article 11 of the Central European
Initiative Instrument for the Protection of Minority Rights, Paragraph 6 of the Resolution on
the Languages and Cultures of Regional and Ethnic Minorities, Article 10(5) of theEuropean Charter for Regional or Minority Languages, Article 4 of the Convention on
Providing Special Rights for the Slovenian Minority Living in the Republic of Hungary andfor the Hungarian Minority Living in the Republic of Slovenia, Article 9 of the Declarationon the Principles of Cooperation Between the Republic of Hungary and the Ukrainian
Soviet Socialist Republic in Guaranteeing the Rights of National Minorities, Article 10(1)(c)of the Treaty of Peace with Italy, Article 14(1) of the Treaty Between the Republic of
Lithuania and the Republic of Poland on Friendly Relations and Good Neighbourly
Cooperation, Article 15 of the Treaty Between the Republic of Poland and the Republic of
Belarus on Good Neighbourliness and Friendly Cooperation, Article 15(2) of the Treaty
Between the Republic of Poland and the Republic of Latvia on Friendship andCooperation, Article 11 of the Treaty Between the Republic of Poland and Ukraine on Good
Neighbourliness, Friendly Relations and Cooperation, and Article 20(3) of the Vertragzwischen der Bundesrepublik Deutschland und der Republik Polen über guteNachbarschaft und freundschaftliche Zusammenarbeit. It should be noted that as regards theabove-mentioned Convention-cadre and other instruments such as the European Charter for
Minority or Regional Languages, the rights are not, strictly speaking, aimed at minorities
generally. They are limited to guaranteeing certain rights to long-established groups of citizens
living within state borders, sometimes referred to as "national minorities". However, as explained
in de Varennes, Fernand (1996), Language, Minorities and Human Rights, Martinus Nijhoff,
The Hague, at Section 5.6.3, this does not exclude the application of those rights to otherminorities in general. These two treaties do not exclude the application of other, more generalhuman rights.
28. See Article 2(5) of the United Nations Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities, Article 23 of the Central European
Initiative Instrument for the Protection of Minorities, Article 14 of the European Charterfor Regional or Minority Languages, Article 17 of the Convention-cadre sur la protection
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des minorités nationales, Article 14 of the Treaty Between the Republic of Lithuania and theRepublic of Poland on Friendly Relations and Good Neighbourly Cooperation and Article
15(2) of the Treaty Between the Republic of Poland and the Republic of Latvia on
Friendship and Cooperation.
29. Malinverni, Giorgio (1991), "Le projet de Convention pour la protection des minorités élaboré
par la Commission européenne pour la démocratie par le droit", in Revue universelle des droits
de l'Homme, Vol. 3, N° 5, 157-165, at p. 161.
30. Although it should be obvious, it is worth stating that recognition of the right of persons
belonging to linguistic minorities does not signify that they must not learn a state's official orcommon language. A state may legitimately require that all children in private minority
educational activities also learn the common or official language without this being perceived as
an interference with the minority's right, as long as the minority can continue to use its language
as medium of instruction to the extent it feels is appropriate. In fact, it could even be claimed that
it is essential for linguistic minorities to teach the common or official language whilst retaining
the minority language as medium of instruction in order to avoid the creation of linguistic ghettos
that would result in the possible exclusion of members of these minorities from participation in
the wider society. This is acknowledged in instruments such as the UNESCO Convention
Against Discrimination in Education where it is stated that linguistic educational activities
must not prevent "members of these minorities from understanding the culture and language ofthe community as a whole and from participating in its activities..."31. Draft approved by the Inter-American Commission on Human Rights, OEA/SER/L/V/II.90, 21
September 1995.
32. Among the relevant provisions of treaties are Article 8 of the Agreement between the Czech
Republic and the Slovak Republic on Cooperation and Good Neighbourly Relations, Article
1 of the Agreement between the Ministry of National Education of the Republic of Poland
and the Ministry of Culture and Education of the Republic of Lithuania Regarding the
Educational System and University Education, Article 4 of the Germany-RussianFederation Protocol of Collaboration on the Gradual Restoration of Citizenship to Russian
Germans, Article 8 of the Treaty Concerning the Protection of Minorities in Greece, Article
6 of the Treaty on Friendship and Cooperation between the Lithuanian Republic andUkraine, Article 67 of the Treaty of Peace with Austria, Article 40 of the Treaty of Peace withTurkey, Article 14 of the Treaty between the Republic of Lithuania and the Republic of
Poland on Friendly Relations and Good Neighbourly Cooperation, Article 8 of the Treaty
between the Republic of Poland and the Czech and Slovak Republic on Good
Neighbourliness, Solidarity and Friendly Cooperation, Article 15 of the Treaty between the
Republic of Poland and the Republic of Belarus on Good Neighbourliness and Friendly
Cooperation, Article 15 of the Treaty between the Republic of Poland and the Republic of
Latvia on Friendship and Cooperation, and Article 11 of the Treaty between the Republic of
Poland and Ukraine on Good Neighbourliness, Friendly Relations and Cooperation.
33. See for example Article 14 of the draft Declaration on the Rights of Indigenous Peoples,
Article 16 of the Central European Initiative for the Protection of Minority Rights (limited
to national minorities), Paragraph 32.2 of the Document of the Copenhagen Meeting of theConference on the Human Dimension (national minorities), Article 11 of Parliamentary
Recommendation 1134 (1990) on the Rights of Minorities (Council of Europe), Article 5(1)(c)of the United Nations Convention against Discrimination in Education, Article 30 of theUnited Nations Convention on the Rights of the Child, Article 27(3) of the International
Labour Organisation Convention (No. 169) Concerning Indigenous and Tribal Peoples in
Independent Countries, and Article 13 of the Convention-cadre pour la protection desminorités nationales.
34. In Farrington v. Tokushige, 273 U.S. 284 (1927) (United States), at p. 298.
35. 262 U.S. 390 (1923) (United States),
36. Draft approved by the Inter-American Commission on Human Rights, OEA/SER/L/V/II.90, 21
September 1995.
37. Article 8 of the Loi relatif au statut et à la promotion de la langue en Alsace et en Moselle,
January 1993. This right has been confirmed in more recent French legislation, Article 11 of theLoi 94-665 du 4 août relative à l'emploi de la langue française.
38. Advisory Opinion on Minority Schools in Albania, (1935) Permanent Court of International
Justice, Series A/B, No. 64, 3, at p. 21, also known as the Minority Schools in Albania case.
39. Treatment of Polish Nationals in Danzig (1932), Permanent Court of International Justice,
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Series A/B, No. 44, 1, at p. 9.

40. Article 4(3) indicates that where possible, persons belonging to minorities are entitled toappropriate state measures so that they may learn their mother tongue or be taught in theirlanguage. This provision is surprisingly timid in its wording since, regardless of a minority's
numerical importance, a state could possibly claim that it is conforming to the Declaration bysimply permitting teaching of the language, and not its use as medium of instruction. Another,perhaps more consistent interpretation would be that the use of terms such as "appropriate
measures" in the provision signals the need to assess each case according to criteria such as theminority's relative size. Most other instruments spell out more precisely the need to take into
account the demographic realities of the populations involved when determining the appropriate
state measures in education.
41. Article 17.
42. Paragraph 34. The wording is quite similar to the UN Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities and should probably beinterpreted in the same way.
43. Article 14(2) provides: Dans les aires géographiques d'implantation substantielle ou
traditionnelle des personnes appartenant à des minorités nationales, s'il existe une demandesuffisante, les parties s'efforcent d'assurer, dans la mesure du possible et dans le cadre de leursystème éducatif, que les personnes appartenant à ces minorités aient la possibilité d'apprendre
la langue minoritaire ou de recevoir un enseignement dans cette langue.
44. Legislation such as Article 4 of the Slovak National Council Act No. 428/1990 of 25 October
1990 which requires in the schooling and education system that all citizens master the Slovak
language to the extent required for the official and everyday use is therefore not objectionable inse.
45. See de Varennes, Fernand (1996), " Minority Aspirations: The Revival of Indigenous Peoples",International Review of Education, 42(4): 309-325.
46. Draft approved by the Inter-American Commission on Human Rights, OEA/SER/L/V/II.90, 21
September 1995. .
47. Supra, at p. 91.
48. Article 23 of the Canadian Charter of Rights and Freedoms, in Section 3.23 of the Appendix.
It should be emphasised that this provision contains a number of suspect qualifications on theexercise of the right. While the Supreme Court of Canada has recognised the validity of thesliding-scale approach in the field of education in Mahé v. Alberta, [1990] 1 S.C.R. 342(Canada), it has failed to appreciate that it is in fact essentially applying the principle of nondiscrimination. Canadian legal scholars and legislation have generally failed to realise that
language policies are not simply a matter of a state's political prerogative, but can be subject torestrictions due to individual rights such as equality and freedom of expression. It then comes as
no surprise that Canada has been "reprimanded" twice by the United Nations Human Rights
Committee for measures affecting language in Lovelace v. Canada, Communication 24/1977,
UN Document A/36/40, and Ballantyne, Davidson and McIntyre v. Canada, Communications
359/1989 and 385/1989.
49. These minorities are also "national minorities" since they are living and traditionally rooted inAustria (beheimatet).
50. Article 350A, Constitution of India.
51. French translation of judgement in German: La garantie de la survie des quatres langues
nationales, contenue dans l'article 116, premier alinéa, de la Constitution fédérale, serait
impensable sans la garantie de leur emploi dans leurs cadres linguistiques respectifs. Cetteprescription garantit la composition linguistique traditionnelle du pays. Il incombe aux cantons
de veiller, dans le cadre de leur juridiction, sur le maintien et l'homogénéité des régions
linguistiques. Ces mesures...doivent servir à la réalisation du but d'intérêt public qu'est lemaintien des régions linguistiques et, d'autre part, protéger la dignité et la liberté de l'individu.
52. Article 43 of Act No. LXXVII of 1993 on the Rights of National and Ethnic Minorities.
53. The Protection of Ethnic and Linguistic Minorities in Europe (1993), John Packer and Kristian
Myntti (eds.), Institute for Human Rights, Åbo Akademi University, Åbo, Finland, at p. 110:
There are about 20,000 Lithuanians in Poland, living predominantly in the north-eastern part of
Suwalki province, specifically around Sejny. Quite numerous Lithuanian communities have also
been recorded in Silesia (Wroclaw), Pomerania (Szeczcin, Slupsk) and in Gda_sk, Olsztyn and
Bialystok... It is of particular note that Lithuanian language education in Suwalki province is very
well organised in 11 primary schools and one secondary school. Unlike the cases of Ukrainian
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and Byelorussian language education, Lithuanian language education meets almost in full theneeds of the community.
54. Yaown, Zhou (1992), "Bilingualism and Bilingual Education in China", in International Journalof the Sociology of Language, Vol. 97, 37-45, at pp. 40-41.
55. Gaceta oficial, 13 March 1992.
56. Gaceta oficial de la República del Paraguay, 11 September 1992.
57. Fettes, Mark (1994), "The International Context of Aboriginal Linguistic Rights", in CanadianCentre for Linguistic Rights Bulletin, Vol. 1, N° 3, 6-11, at p. 10.
58. 30 October 1990, 104 STAT. 1153.
59. Ibid., Article 104.
60. See New Zealand Maori Council v. Attorney General, [1992] 2 N.Z.L.R. 576 (New Zealand),and the preamble of the Maori Language Act, 1987: "Whereas in the Treaty of Waitangi the
Crown confirmed and guaranteed to the Maori people, among other things, all their taonga: And
whereas the Maori language is one such taonga..."61. See generally Hastings, William K. (1988), The Right to an Education in Maori: The Case From
International Law, Victoria University Press, Wellington, New Zealand, at pp. 22-26.
62. Article 7, Loi no 88-82 du 22 janvier 1988 portant statut du territoire de la NouvelleCalédonie, Journal officiel de la République de France, 26 January 1988, at p. 1231.
63. Article 11(1) of the European Charter for Regional or Minority Languages.
64. Native Broadcasting Policy, 20 September 1990, Canadian Radio-Television andTelecommunications Commission, Ottawa.
65. Public Notice 85-139, 4 July 1985, Canadian Radio-Television and Telecommunications
Commission, Ottawa.
66. 16 July 1982, quoted in O Màille, Tomas (1990), The Status of the Irish Language � A Legal
Perspective, Bord na Gaeilge, Dublin, at p. 12.
67. The Situation of Regional or Minority Languages in Europe (1994), Council of Europe,
Strasbourg, at p. 46.
68. Ibid., at p. 71.
69. See also Article 11(1)(a) of the European Charter for Regional or Minority Languages.
70. See Council of Europe (1994), The Situation of Regional or Minority Languages in Europe,
Strasbourg, at pp. 135-136: Article 2 of the Federal Broadcasting Act stipulates that radio andtelevision should, broadly speaking, "help listeners and viewers to form their opinions freely,
provide them with varied and accurate information, see to their general education and theirentertainment, and extend their civic knowledge". They should also "make the public aware of
the country's diversity and its population, promote Swiss artistic creation and make it easier for
listeners and viewers to participate in cultural life by conveying knowledge and ideas". This
extract setting out the aims of the Act, formulated in general terms, covers all aspects of language
promotion (duties of information, education, variety, cultural promotion and stimulation of the
public). In a wider framework, one can say that yet another of the Act's provisions is concernedwith language promotion: "The various regions of the country must be adequately served byradio and television"... The Federal Broadcasting Act (Article 26 et seq.) also stipulates clearly
that the Swiss Broadcasting Company (SSR) is primarily responsible for attaining the generalaims and carrying out the functions assigned to it � in the interests of linguistic diversity andnational understanding. With regard to languages, an important provision requires the SSR tobroadcast specific radio programmes in each region in which a national language is spoken(Article 27, paragraph 1).
71. Zolf, Dorothy (1989), "Comparisons of Multicultural Broadcasting in Canada and Four OtherCountries", in Canadian Ethnic Studies, Vol. XXI, No. 2, 13-26, at pp. 18-20.
72. See The Situation of Regional or Minority Languages in Europe, at p. 46, and Article 18 of the
Act No. LXXVII of 1993 on the Rights of National and Ethnic Minorities.
73. The Situation of Regional or Minority Languages in Europe, at p. 71.
74. Ibid., at pp. 141-142.
75. Dhar, T.N. (1987), "Language Planning and Development: Problems of Legislation amidst
Diversity", in Lorne Laforge (ed.), Proceedings of the International Colloquium on Language
Planning, Les Presses de l'Université Laval, Québec, pp. 238-254, at p. 246.
76. Official Languages (Communications with and Services to the Public) Regulations, SOR/9248, 16 December 1991.
77. Minority Languages Today (1981), Einar Haugen, J. Derrick McClure and Derick Thomson(eds.), Edinburgh University Press, Edinburgh, at p. 133.
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78. Article 6(2), Slovak National Council Act No. 428/1990, 25 October 1990. The legislation
mainly affected 500 communities where Hungarian is widely spoken.

79. Article 16.
80. For an overview of historical examples and possible situations where this is still prohibited by astate, see de Varennes, Fernand (1996), Language, Minorities and Human Rights, Martinus
Nijhoff, The Hague, Chapter 2.
81. Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic
Minorities , Francesco Capotorti, at p. 1.
82. Rupesinghe, Kumar (1988), Ethnic Conflict and Human Rights, United Nations University,
Tokyo.
83. Little, David (1996), Belief, Ethnicity and Nationalism, United States Institute of Peace,
http://www.usip.org/research/rehr/belethnat.html.
84. Little, David (1996), Belief, Ethnicity and Nationalism, United States Institute of Peace,
http://www.usip.org/research/rehr/belethnat.html.

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