Вы находитесь на странице: 1из 106

Integration

andexclusion

Linguistic rights of national


minorities inEurope
Conference book

Vilnius 2 0 1 5

International Conference
Integration and exclusion. Linguistic rights of national minorities in Europe,
Conference book
27 November 2015 Vilnius

Integration
andexclusion

Linguistic rights of national


minorities inEurope

Edited by Elbieta Kuzborska


Language Reviewer Emily Gravlin
Layout by Gulnara Galiachmetova
Cover photo by Daniel Samulewicz

Ministry
of Foreign Affairs
Republic of Poland

The project is co-financed from the funds granted by


theMinistry of Foreign Affairs inthe competition for the public task
Cooperation with Polish Diaspora and Poles Abroad in 2015

Content
PREFACE __________________________________________________________________
Contributors

______________________________________________________

7
9

Boriss Cilevics

Language Policies in Latvia:


Lessons for Minority Protection

_____________________________ 95

Elbieta Kuzborska

Belen Rodriguez de Alba

The United Nations Framework


for theProtection ofthe Rights
of Linguistic Minorities __________________________________________ 15

The Protection of Language Rights


of Minorities inLithuania _______________________________________ 113
Hanna Vasilevich

Linguistic Rights in Belarus: Law and Practice

Francesco Palermo

Language Rights as a Litmus Test


for the Future ofMinority Protection

____________________

21

Fernand de Varennes

The Human Rights Dimension


and Challenges ofLinguisticRights

__________ 127

Katarzyna Miksza

The Importance of Name inSelf-Determination

_________ 147

Sergiu Constantin
_________________________ 39

Linguistic Rights of National Minorities


inRomania: Between Law in the Books
and Law inPractice ________________________________________________ 155

Lauri Hannikainen

How Serious are the Violations


of Minorities Linguistic Rights
in Contemporary EuropeanStates?

Elisabeth Alber, Marc Rggla


__________________________ 57

Eduardo J. Ruiz Vieytez

The Spanish Mosaic: AnAsymmetrical


Recognition ofMinority Languages _________________________ 77

Language Rights in Italy:


TheCase of South Tyrol

__________________________________________ 175

Milena Ingelevi-Citak

Language Rights in Transition:


The Case ofKosovo _________________________________________________ 195

PREFACE
This book contains the contributions presented during the international scientific conference on linguistic rights of national minorities Integration and exclusion: The linguistic rights of national minorities in Europe, which took place on 27 November 2015 in Vilnius, Lithuania. The conference was
organized by the Association of Polish Academics in Lithuania with the support of the International
Observatory on Language Rights, Universit de Monton, Canada. The concept adopted by the organizers was to make the conferences publication as accessible to decision-makers, politicians, officers,
students, and academics as possible. The main aim of this endeavour is to provide an international
perspective on the linguistic rights of minorities at a time when language issues remain prominent in
contemporary politics in both Eastern and Western Europe.
Democracy, especially in Europe, is increasingly perceived through the prism of the ability of
states to guarantee the rights of national minorities to preserve their identity and to develop their
characteristics, including their language and culture. The association finds it important to support research and knowledge on the subject, as well as to compare the international and European standards
with the experiences and practices in the region.
Holding the conference in Lithuania was also significant: national authorities are currently debating a new draft law on national minorities (the previous legislation, adopted in 1989, expired in
2010), with particular attention being given to the language rights of minorities especially the use of
minority languages by state authorities and in public spaces. I hope that this publication will become a
significant contribution to contemporary discussion on the new Lithuanian draft law.
When I started to make plans concerning the content of this volume and its potential contributors, my natural choice was to turn to the distinguished experts on language rights both to
internationally recognized specialists such as Dr. Fernand de Varennes, Prof. Dr. Francesco Palermo,
Prof. Lauri Hannikainen, Boriss Cilevics and Dr. Eduardo J. Ruiz Vieytez, as well as to young researchers: Dr.Hanna Vasilevich, Dr. Katarzyna Miksza, Sergiu Constantin, Marc Rggla, Elisabeth Alber, and
Milena Ingielewicz-Citak. I am happy to present a chapter on the United Nations Framework for the
Protection of the Rights of Linguistic Minorities by Ms. Belen Rodriguez de Alba from the Office of
the UN High Commissioner for Human Rights. I am much indebted to the authors of the individual
chapters and very grateful for the timely submission of the contributions and the positive attitude
towards the concept of the project.
Last but not least, I am particularly grateful to our talented graphic designer, Ms. Gulnara
Galiachmetova and to our language reviewer, Ms. Emily Gravlin, who has done a remarkable job on the
editorial work in every aspect.
Dr. Elbieta Kuzborska
Chair of the Conference Organizing Committee
Scientific Secretary of the Association of Polish Academics in Lithuania

Vilnius, Lithuania, November 2015

Contributors
Prof. Dr. Francesco Palermo is professor for comparative constitu-

tional law at the School of Law, University of Verona and Director of the Institute for Studies on Federalism and Regionalism at the European Academy
(EURAC) in Bolzano/Bozen. From 2007-2010 he served as Senior Legal Adviser
to the OSCE High Commissioner on National Minorities. Since 2007 he is a
member of the Council of Europes Advisory Committee on the Framework
Convention for the Protection of National Minorities, of which he is the President since 2014. Full member of the Group of independent experts of the
Council of Europes Congress of local and regional authorities since 2011.
Since March 2013 he is non-party member of the Italian Senate and works in
the committees for constitutional affairs, for EU affairs and for human rights
committee. President of the joint committee for the implementation of the
statute of autonomy for South Tyrol since 2014 and author of more than 200
publications, including 10 monographs and 30 edited volumes.

Dr. Fernand de Varennes is the Dean of the Faculty of Law at the

Universit de Moncton in Canada and Extraordinary Professor at the University of Pretoria in South Africa. He one of the worlds leading experts
on language rights and the human rights of minorities. Dr de Varennes
research includes some 200 publications in more than 30 languages. As an
international legal expert on human rights and the rights of minorities and
indigenous peoples, he has appeared on a number of occasions before UN
committees in Geneva and the European Parliament in Brussels, worked
with the OSCE High Commissioner on National Minorities, as well as prepared a number of UN and UNESCO papers. In recognition of his work and
achievements, he has received numerous accolades including the 2004 Linguapax Award (Barcelona, Spain), the Tip ONeill Peace Fellowship (Northern Ireland, UK), and was nominated for the Gwangju Prize for Human Rights
(Gwangju, South Korea).

Prof. Lauri Hannikainen is Professor of International Law, emeritus

(University of Turku, Finland). Currently he is affiliated with a researcher at


Erik Castrn Institute for International Law and Human Rights at the University of Helsinki. In 2000-2014 he was a member of European Commission
against Racism and Intolerance (ECRI). His major publication is Peremptory
Norms (Jus Cogens) in International Law - Historical Development, Criteria,
Present Status, 1988. He has written extensively about international law,
especially human rights and even more specifically minority rights and autonomy rights.

Contributors

Dr. Eduardo J. Ruiz Vieytez is professor of Constitutional Law at


University of Deusto (Bilbao), where he acts as dean of the Faculty of Social and Human Sciences, and previously as director of the Human Rights
Institute. He has been legal adviser of the Basque Ombudsman and the
president of an NGO working in the promotion of immigrants rights in the
Basque Country. He has also been a member of the Spanish Council for
Integration of Migrants (a consultative body of the Spanish Government),
and participated in several missions of the Council of Europe concerning
minorities. His fields of research are integration policies, national conflicts,
minority rights and the relation between human rights and religious, linguistic and cultural diversity. Among other responsibilities, Dr. Ruiz Vieytez
has been a member of the board of directors of the IMISCOE network and
of the board of the International Institute for the Sociology of Law (Oati,
Basque Country).
Boriss Cilevics was educated in physics and worked as a computer scientist. In the late 80s, he took part in founding first human rights groups
in Latvia. Later Boriss Cilevis led a human rights NGO, participated in a
number of international projects, published dozens of research papers on
non-discrimination and equality, minority rights, democracy in plural societies. In 1998, Boriss Cilevis was elected member of Latvian national parliament and was re-elected five times since then. Vice-chair of the Standing
Committee on Human Rights. Cilevis is an active member of the Council
of Europe Parliamentary Assembly (PACE), prepared more than 20 reports,
chaired the sub-committee on the rights of minorities. Besides, Cilevis is a
permanent Assembly observer in the European Commission against Racism
and Intolerance. Boriss Cilevis stays involved with civil society, regularly
participates in NGO projects, in particular, as a trainer and lecturer.
BELEN RODRIGUEZ DE ALBA is an International lawyer by training, holds

Integration andExclusion

a Masters Degree in Political Science and Sociology. She has worked at the
United Nations since 1998 in different locations in Africa, Asia, Latin America and at Geneva Headquarters. She has been working at the Indigenous
Peoples and Minorities Section of OHCHR in Geneva since 2009 where she
has specialized in minority rights. Fluent in Spanish (mother tongue), English, French and Portuguese. Currently based in Geneva, at the Office of
the High Commissioner for Human Rights.

10

Dr. Hanna Vasilevich is a Project Research Associate at the European


Centre for Minority Issues (Flensburg, Germany). Currently she is managing the ECMI Eastern Partnership Programme National Minorities and Ethno-Political Issues. Hanna holds a joint PhD degree from the Metropolitan
University Prague in cooperation with the Institute of International Relations
Prague. Her research interests cover minority issues, interethnic relations,
national identities and state-building processes in the CEE region. She has
published in edited volumes and journals. In addition, Hanna is deputy editor at the analytical English-language quarterly Belarusian Review.
Dr. Elbieta Kuzborska is an expert on national minorities, lecturer

and author of books and articles on human rights and protection of national minorities, Senior Minorities Fellow 2014 at the Office of UN High
Commission for Human Rights in Geneva. In 2011 at the Faculty of Law and
Administration of the University of Gdansk (Poland) she completed PhD
thesis on the legal situation of Polish national minority in Lithuania. In 2013
her monograph on the legal protection of national minorities was translated into English (Legal Situation of National Minorities in Lit huania in
the Context of International and Supranational Protection Standards, 2013,
Artprint, Vilnius). As a legal advisor Dr. Kuzborska cooperates i.a. with the
European Foundation of Human Rights.

DR. Katarzyna Miksza , (in official documents: Katayna Mika) is an


associate professor of Private International Law in the Faculty of Law, Mykolas Romeris University, and vice-chair of the Human Rights Laboratory at
Mykolas Romeris University. Katarzyna carried out her doctoral research at
the Faculty of Law and Administration of Jagiellonian University (Cracow,
Poland). Her interests are in Private International Law, European Union Law,
and Human Rights. Katarzyna Miksza is the author of publications about
surnames, personality rights in Polish, Lithuanian and English.
Dr. MILENA INGIELEWICZ-CITAK is Lecturer in the Chair of Public International Law at the Jagiellonian University. In years 2005-2008 worked as a
volunteer in human rights section of the Legal Clinic and the Centre of Human Rights of the Jagiellonian University. She received her Masters degree
in 2007. Her M.A. thesis focused on the situation of national minorities in
Lithuania. In 2013 she graduated from the Jagiellonian University Pedagogical Study. In 2015 defended a doctoral thesis on International Institution
of State Recognition in the Contemporary Practice of States. Currently her
main area of research interests focuses on the state creation and recognition, the situation of unrecognized geopolitical entities and the right of
nation to self-determination.

Contributors

11

Sergiu Constantin is a researcher at the Institute for Minority Rights


of the European Academy of Bolzano/Bozen (Italy). He is a graduate of the
Law Faculty of University of Bucharest (Romania) and holds a Master degree
in European Studies from University of Graz (Austria). His research interests
are related mainly to legal protection of national and ethnic minorities in
Central and South Eastern Europe. His recent projects are focusing on linguistic rights, political participation and autonomy arrangements. Sergiu
has published several articles, papers and book chapters on these issues
and co-edited the volumes Practice of Minority Protection in Central Europe
(2011) and Autonomy Arrangements Around the World A Collection of Well
and Lesser Known Cases (2014). Before joining the team of the European
Academy of Bolzano/Bozen, he worked as governmental expert within the
Directorate for Legislation of the Department for Protection of National
Minorities of the Romanian Government.
Elisabeth Alber is senior researcher and program officer (EURAC Federal Scholar in Residence Program) at the Institute for Studies on Federalism and Regionalism at the European Academy of Bolzano/Bozen (EURAC).
Her research and publications mainly focus on comparative federalism and
regionalism, autonomies and minority rights as well as participatory and
deliberative democracy in compound states.

Integration andExclusion

Marc Rggla graduated from the Law Faculty at the University of Innsbruck (Austria). Since 2013, he is a Researcher at the Institute for Minority
Rights at the European Academy of Bolzano/Bozen (EURAC). His research
focus is mainly on autonomies and minority media in Europe. He is working
as Project Manager for the European Association of Daily Newspapers in
Minority and Regional Languages (Midas, www.midas-press.org).

12

The United Nations


Framework for the Protection
of the Rights of Linguistic
Minorities
Belen Rodriguez de Alba

1. Introduction
The rights of linguistic minorities are established by international human rights standards, including the 1992 United Nations Declaration on Minorities. However, challenges
to the enjoyment of the rights of linguistic minorities exist in all regions and include
restrictions on the opportunities available to linguistic minorities to learn and receive
education for their children in minority languages as well as limitations on the use of minority languages in public life and the media. Globally, many minority languages are under threat of significant decline or disappearance due to such factors as the dominance
of selected languages, processes of assimilation, and decline in minority-language users.
This chapter will provide an overview of the impact of the international human rights
regime on the rights of linguistic minorities1.
According to UNESCO, there are estimated to be more than six thousand languages
spoken globally, most of which can be considered minority languages. For minorities,
language is often a central element and expression of their identity, and their language
rights are a key factor in protecting their rights in other important areas of life, ranging

1 A/HCR/22/49

Belen Rodriguez de Alba. The United Nations Framework for the Protection of the Rights of Linguistic Minorities

15

from access to media to access to quality education. Linguistic minorities are frequently

Efforts to ensure integration in a society are also fully legitimate as long as they do

also national, ethnic, or religious minorities, and consequently the challenges they face

not lead to forced assimilation or other human rights violations. Indeed, well-designed

may be exacerbated by discrimination on the grounds of their ethnicity, religion, or na-

integration efforts (recognizing integration as an exercise involving all stakeholders) can

tionality. Respect for linguistic rights is also linked to social inclusion and participation.

support the development of both minority and majority cultures and interaction between

Minority women, the elderly, and those living in remote areas particularly often face

them, including in the sphere of language use.

social exclusion that hampers their access to information and services and undermines
their participation in cultural, economic, social, and public life.

2.1. Challenges
The lack of domestic legal protection for minority languages in many regions remains a

2. International Standards

major concern. Legal recognition and legislative protection of minority languages cre-

The rights of individuals freely to use, learn, and transmit their languages in public and

the issues of linguistic minorities, often resulting in institutional attention. Lack of such

in private without discrimination are well established in international human rights law
and are understood to be enjoyed collectively.
Article 2 of the International Covenant on Civil and Political Rights requires states
to ensure that the human rights of all individuals within their territory and subject to
their jurisdiction will be enforced and respected without distinction of any kind, including on the basis of language. Article 19 guarantees freedom of expression and the right to
impart or receive information and ideas of all kinds in the medium or language of ones
choice. Article 27 reads: In those States in which ethnic, religious or linguistic minorities
exist, persons belonging to such minorities shall not be denied the right, in community
with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. Article 30 of the Convention on the
Rights of the Child requires that children belonging to minorities have the right to use
their own language.
The 1992 Declaration on Minorities further elaborates the rights of minorities, including in relation to language. Importantly, it imposes positive obligations on states
and requires positive measures that go beyond standard non-discrimination provisions
contained in other international standards.
From the international human rights perspective, states are free to decide whether
or not to declare one or more languages as state or official languages. In the same vein,
Integration andExclusion

the promotion of such languages is a legitimate goal for states to pursue. However, this

16

must be done in a manner that fully respects the rights of persons belonging to minorities, including their right to use their language in private and in public, that are guaranteed by international human rights law. These two goals should not be perceived as

ate legal safeguards and a requirement that policy and programme measures address
recognition and legal protections results in an environment where there is little or no
formal legal commitment to promoting and protecting minority languages or the rights of
linguistic minorities other than those required by international law.2
International human rights bodies have repeatedly urged states to ensure that efforts to strengthen knowledge and use of official or state languages focus on promotional
and incentive-based measures rather than sanctions or coercive measures. The Universal
Periodic Review has urged that the policy of promoting the national language is not pursued to the detriment of the rights of linguistic minorities.
Minority rights help to protect the languages and cultures of minorities, but they
do not encourage isolated, separate communities. Instead, minority rights allow efforts
to protect minority languages in education and other spheres to be coupled with support
of inter-ethnic dialogue and contacts. In this respect, the learning of a state language by
minorities, when done in a manner that does not undermine minority language education, can facilitate the implementation of minority rights.
State authorities should allocate adequate support for such measures, and for
minorities access to them, in educational and other contexts. Furthermore, efforts to
raise awareness of minority cultures and teaching of their languages to the majority can
contribute not only to the protection of minority rights but to the cohesion of the entire
society.
Just like persons belonging to majorities, members of minorities have the right to
participate in public and economic life. This requires that the impact of measures ranging
from electoral laws to language-related norms on minorities and their right to participate
be carefully considered, prior and after their adoption, and any elements undermining

contradictory; on the contrary, they can be mutually reinforcing.


2 A/HCR/22/49

Belen Rodriguez de Alba. The United Nations Framework for the Protection of the Rights of Linguistic Minorities

17

these rights removed. Such impact assessments should also involve close participation

technology can facilitate effective social engagement of minorities and increase their

of representatives of minorities who are potentially concerned.

interaction with governments and others in their minority languages, including from re-

In cases where a state introduces language proficiency requirements, such require-

mote regions. Various new media tools can inform and engage excluded groups and help

ments must be proportionate to a legitimate pursued aim, and they must not lead to

to prevent conflict and foster inter-cultural dialogue while also opening up new opportu-

indirect discrimination or exclusion of minorities from public or economic life. There is

nities for minority language education.

a high risk of such results, especially when new requirements are introduced in a drastic

However, these media developments also bring about new challenges for minori-

manner and without adequate preparation and participation of the minorities concerned.

ties, including challenges that may require us to revisit measures needed to protect lan-

Minorities have the right to use their language in communication with administra-

guage rights, freedom of expression, the right to information, and the right to participate

tive authorities in areas where they live in substantial numbers. This must be taken into

in decision-making for persons belonging to minorities. For example, if minorities are left

account in recruitment practices and language norms and policies, as these are factors

disproportionately on the wrong side of the digital divide, with no access to new media,

that can either help or harm the implementation of this right.

or if the ongoing shift to online communication tools also means decreasing options for

While language laws and policies must respect minority rights, they must also be
in full compliance with other human rights. For example, measures related to the right
to health and access to medicine need to take into account the languages used by rights
holders.

using minority languages in interaction with authorities or in education, the rights of


persons belonging to minorities are at risk.
Questions such as: How does the switch from more traditional media to new Internet platforms affect the availability of media contents in minority language? or How does

Human rights obligations related to language issues also cover the issue of per-

it affect use of minority language? still need to be answered. The challenge of ensuring

sonal names. For example, persons belonging to a national minority have the right to use

that all population groups benefit equally requires solutions that include the packaging

their surname (patronym) and first name in the minority language and the right to official

of information in minority languages and the provision of low-cost access for all. The

recognition of them.

Internet clearly also has the potential to assist in the preservation, dissemination, and

Minority rights, including rights related to language use, are human rights. They
are not optional but legally binding standards that states have freely ratified and need to
respect in law and in practice.

teaching of minority languages.


In summary, the Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities and other international standards clearly establish the rights of linguistic minorities and the duties of the states. While they do not
require that a state provide all activities and services in every language present within

3. Rights of Linguistic Minorities


in the Digital Era
Let us focus now on a particularly interesting era: the rights of linguistic minorities in
a digital era. The Office of the United Nations High Commissioner for Human Rights organized an expert panel on the topic in Geneva in November 2014. The rapid growth of
digital media and other information technology developments have created new opporIntegration andExclusion

tunities for minorities. The growth of the Internet and web-based information has made

18

dramatic changes in the ways people communicate and use and transmit language. In the
globalization of communication and media that has taken place, some languages dominate, a phenomenon that may also be seen at the national level. Increasing access to
new forms of digital media, including social media, and the development of information

the state, in its assessment of how to fulfill its obligations each state must take into
account numerous factors relevant to linguistic minorities, including the number of language users and their distribution within the country.
There is a need to redouble efforts, nationally and through strengthened international cooperation, to protect the rights of persons belonging to minorities, including
linguistic minorities. The High Commissioner for Human Rights has an important role to
play in these efforts, ranging from monitoring human rights violations to empowering
minority representatives to claim their rights. But true impact requires concerted efforts.
It requires that the national, regional, and local authorities, together with minority representatives and other partners, develop more effective laws and policies protecting the
rights of persons belonging to minorities, not through isolation but through enhanced
interaction within societies.

Belen Rodriguez de Alba. The United Nations Framework for the Protection of the Rights of Linguistic Minorities

19

Language Rights as
a Litmus Test for the Future
ofMinority Protection
Francesco Palermo

1. Introduction
Language rights are at the same time the most basic and the most articulated rights of
persons belonging to national minorities. They are basic because the use of language is
one of the first and most elementary claims of persons belonging to minorities, which to
a large extent identify along linguistic lines. But they are also complex, because their implementation poses extraordinary practical and theoretical difficulties to mention one:
language rights are individual rights but with an obvious and dominant group dimension,
thus going to the heart of one of the most debated theoretical controversies on the very
nature of minority rights.2
Language rights are also and increasingly so a governance issue. Tensions arising
around the linguistic rights of persons belonging to minorities are countless, including in
1 This paper draws from Palermo, F., Addressing Contemporary Stalemate in the Advancement of Minority Rights: Commentary on Language Rights of Persons Belonging to National Minorities, in: Malloy T.H. and Caruso, U. (eds.), Minorities, their Rights, and the Monitoring of the European Framework Convention for the Protection of National Minorities.
Essays in Honour of Rainer Hofmann, (Martinus Mijhoff, Leiden-Boston, 2013), 121-140.
2 See Hofmann, Rainer, Minority Rights: Individual or Group Rights? A Comparative View on European Legal Systems,
40 German Yearbook of International Law (1998), 356-382; kermark, Anastasia Spiliopoulou, Justification of Minority
Protection in International Law (Kluwer, London, The Hague, Boston, 1996); Rosas, Alan and Scheinin, Martin, Categories and beneficiaries of human rights, in Hanski, Raija and Suksi, Markku (eds.), An Introduction to the International
Protection of Human Rights: A Textbook (bo Academy, bo/Turku, 1999), 49-61.

Francesco Palermo. Language Rights as a Litmus Test for the Future ofMinority Protection

21

times of peace, and have the potential to easily escalate into real conflicts.3 In addition,

and eventually adopted the Commentary on The Language Rights of Persons Belonging

new challenges are posed to the very functioning of ever more complex societies by phe-

to National Minorities under the Framework Convention11 (hereinafter Commentary on

nomena like immigration that increase linguistic diversities within States.4

Language) in May 2012.


5

While all major international human rights instruments address language rights,

This chapter starts with an analysis of the current challenges for international mi-

they tend to do so in a piecemeal and reactive way , and, quite paradoxically, the only

nority rights instruments, arguing that they are facing increasing difficulties in responding

comprehensive international document in this regard (the European Charter for Regional

to them and that thematic commentaries which are more than mere compilations are

or Minority Languages) is not a human/minority rights instrument. In order to offer

one of the most effective ways to interpretatively adapt them to changed circumstances

guidance in managing the multifaceted aspects and implications of language rights, and

(part 2). Subsequently, the contents of the Commentary on Language will be examined,

partly to give consistency to the language-related provisions in the (legally or politically)

with description of its more relevant provisions and achievements, highlighting its main

binding texts, relevant international standard-setting bodies have extensively dealt with

messages and pointing out the inclusive procedure followed for its adoption (part 3).

language rights of persons belonging to minorities.

Finally, it concludes by critically evaluating how much and to what extent the progressive

In this context, a Commentary on the language rights of persons belonging to na-

interpretation of the Framework Convention is essential for keeping it a living instrument

tional minorities under the Framework Convention for the Protection of National Mi-

and trying to identify the next pressing challenges for minority rights and their protection

norities (FCNM) was absolutely needed and expected after the introduction of the prac-

through the Framework Convention and other instruments (part 4).

tice of the Advisory Committee under the FCNM of adopting thematic commentaries.

Just after the adoption of the second thematic Commentary on participation,10 the Advisory Committee decided to devote its third thematic Commentary to language rights
3 One may think, among many other possible examples, of the recent and still unresolved dispute on the Ukrainian Principles of State Language Policy, which got trapped in the political crisis of the country, were adopted, then cancelled,
and then vetoed, creating tension and unrest instead of ease. Analogous if less dramatic trouble-increasing effects
were created by nearly all state language laws adopted in several countries in the recent past.
4 See Dunbar, Robert, Minority Language Rights in International Law, 50 International and Comparative Law Quarterly
(2001), 90-120.
5 Take, for instance, the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political
Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). For a systematic overview see de Varennes, Fernand, Language, Minorities and Human Rights, Martinus Nijhoff, Leiden, 1996.
6 Dunbar, Robert, European Traditional Linguistic Diversity and Human Rights: A Critical Assessment of International Instruments, in Vieytez, Eduardo J. Ruiz and Dunbar, Robert (eds.), Human Rights and Diversity: New Challenges for Plural
Societies (University of Deusto, Bilbao, 2007), 85-110, at 88.
7 Although it is in practice very close to one. Not by chance, a recent and important Commentary on the charter, published by the Council of Europe, itself has the very telling title Shaping Language Rights. See Lpez, Alba Nogueira,
Vieytez, Eduardo J. Ruiz, and Libarona, Iigo Urrutia (eds.), Shaping Language Rights. Commentary on the European
Charter for Regional or Minority Languages in light of the Committee of Experts evaluation (Council of Europe Publishing, Strasbourg 2012).

Integration andExclusion

8 See, in particular, the Oslo Recommendations regarding the Linguistic Rights of National Minorities, published by the
OSCE High Commissioner on National Minorities in 1998, as well as the linguistic dimension of his other recommendations such as the Hague Recommendations Regarding the Education Rights of National Minorities (1996). At the UN
level, the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities
(1992), as well as the Commentary of the Working Group on Minorities to the Declaration (2005), the Declaration on the
Rights of Indigenous Peoples (2007), and relevant recommendations from the UN Minority Forum, in particular related
to education and participation, are of particular importance.

22

9 Commentary on Education under the Framework Convention for the Protection of National Minorities (2 March 2006:
ACFC/25DOC[2006]002) and Commentary on the Effective Participation of Persons Belonging to National Minorities in
Cultural, Social and Economic Life and in Public Affairs (27 February 2008: ACFC/31DOC[2008]001).
10 See Palermo, Francesco, The Dual Meaning of Participation: The Advisory Committees Commentary to Article 15 of the
FCNM, in 7 European Yearbook of Minority Issues (2008), (Brill, Leiden/Boston, 2009), 409-424; Marko, J., The Council of
Europe Framework Convention on the Protection of National Minorities and the Advisory Committees Thematic Commentary on Effective Participation, in Weller, Mark (ed.), Political Participation of Minorities (Oxford University Press,
Oxford, 2010), 222-255.

2. Minority Rights Instruments:


Quick Development, Risk of Obsolescence,
NewChallenges
2.1. The Trajectory of International Minority Rights
Influenceand its Reasons
Looking at how minority rights instruments have developed over the past 25 years, and
taking into account their implementation and practical impact, a clear trajectory can be
identified. From the early 1990s onwards, international minority rights law rapidly evolved
from a marginal domain into an extremely powerful conditionality tool in the course of
just a few years. It gradually stabilized, working towards deepening the standards and
making them more effective. In more recent times, an overall fatigue seems to be emerging, and a sort of step back is to be noticed, linked to the difficulties in implementation
of some of the standards and to the emergence of more pressing issues on the international scene.
The recent decrease of influence by international bodies in the field of minority
protection, especially in Europe, is due on one hand to natural developments and to
11 ACFC/44DOC(2012)001 rev. Currently, many of the points raised in the Language Commentary are being further developed in the upcoming fourth thematic Commentary on the scope of application of the Framework Convention, which
should be adopted in 2016.

Francesco Palermo. Language Rights as a Litmus Test for the Future ofMinority Protection

23

some extent to the success of international instruments. On the other hand, however,

at directly or indirectly protecting minority rights, and by this means preserving States

such a decreasing influence is dependent on a partly obsolete approach by the interna-

security.13

tional instruments to some key issues, including language identities and integration of

The effect of these developments produced a phenomenon that can be defined as

societies, and in some way on the very concept of minorities underpinned in most doc-

the internationalization of constitutional law and constitutionalization of international

uments.

law, especially with regard to minority issues.14 In fact, on the one hand, international law
has developed a body of law which, while not entirely prescriptive and very rarely justice-

2.1.1. The 1990s: Development of International


Minority Law and Conditionality
The eruption of ethnic conflicts throughout the former Communist bloc and elsewhere
after 1989 took the international community by surprise. The almost exclusive attention
paid to individual rights since the end of the Second World War in the international
arena, which proved successful under the Cold War regime, failed to address the ethnic
turmoil that followed the end of that regime that asked for the recognition of a broader
(including collective) dimension of minority rights. The mass violations of human and
minority rights, and even more the immediate threats to state security and integrity
associated with the post-1989 revolutions, pushed the international community to work
quickly towards new and more effective instruments aimed at balancing the individual
human rights dimension with rights of minorities and groups bearing a (albeit indirect)
collective dimension.
International law quickly acknowledged that minority rights are an issue of inter-

Integration andExclusion

national concern and do not fall exclusively within the domain of the States. Against

24

able,15 has become specific and legally or politically binding and is monitored by several
bodies, including some quasi-judicial ones such as the committees of experts under
the FCNM and the ECRML, which developed a soft jurisprudence16 and established important practices such as monitoring visits. On the other hand, the increasingly binding
nature of international law has had an enormous influence on constitutional transitions
and constitutional developments in various countries, deeply conditioning constitutional
choices with regard to the protection of minority rights.
This interplay between internationalization of constitutions and constitutionalization of international norms, combined with the link between minority protection and
security, political and financial assistance, and the unique political climate in the 1990s,
proved very effective for overcoming the emergency phase and quickly developing an
impressive body of international and domestic law on the protection of minority rights.

2.1.2. Consolidation at the Turn of the Millennium


The success of the measures taken during the 1990s by the international community

this background, a tremendous amount of (soft and hard) law was produced,12 aimed

brought (overall) peace throughout the wider European continent. But in some way, in

12 At the universal level, see the UN Permanent Working Group on Minorities (1992 A/HRC/Sub.1/58/19) and the 1992
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (Resolution
no. 47/135). In 1993, the General Assembly created the post of the High Commissioner on Human Rights, and in 2005 the
then Commission on Human Rights (subsequently replaced by the Human Rights Council), within which in 2008 a Forum
on Minority Issues was established. HRC resolution no. 6/15 (of 28 September 2007) tasked the High Commissioner with
appointing an Independent Expert on minority issues (Resolution 2005/79). In Europe, first action was taken by the then
Conference on Security and Cooperation in Europe (CSCE): in 1991, the CSCE Group of Experts on National Minorities
stated in its Geneva document that issues concerning national minorities, as well as compliance with international obligations and commitments concerning the rights of persons belonging to them, are matters of legitimate international
concern and consequently do not constitute exclusively an internal affair of the respective State. In 1992, the High
Commissioner on National Minorities (HCNM) was established and tasked with intervening diplomatically to prevent
minority-related conflicts. Also, the Council of Europe developed important tools aimed at addressing minority issues
in particular: besides the European Charter for Regional or Minority Languages (1992) and the Framework Convention
for the Protection of National Minorities (1995), an important role has been played by the Commission for Democracy
through Law (Venice Commission). Also, the Central European Initiatives (CEI) Instrument for the Protection of Minority
Rights (1994) is worth mentioning. While at a later stage, the European Union has also played a role in developing the
law on minorities. It did so first by including respect for and protection of minorities in the political criteria for accession as of 1993 (so-called Copenhagen criteria for a critical appraisal, defining the EU approach towards minorities
a product for export, see de Witte, Bruno, Politics vs. Law in the EUs Approach to Ethnic Minorities, EUI working
paper/Robert Schumann Center, 2000, no. 4). As of the Amsterdam Treaty (1997), the EU provides for a general legal
base against discrimination including on race, ethnic origin, and religion (now art. 19 TFEU). The Charter of Fundamental
Rights of the EU provides for a long list of non-discrimination factors (including colour of skin, ethnic or social origin,
language, religion, belonging to a national minority, art. 21) and obliges the union to respect cultural, religious and

own success: after proving effective in stopping violence and improving international and

the subsequent era of consolidation, the international instruments fell victims of their

linguistic diversity (art. 22). Finally, the Lisbon Treaty declared in art. 2 TEU the respect for human rights, including the
rights of persons belonging to minorities as one of the values on which the union is based. An important role has been
played also by the Court of Justice of the European Union, especially in determining that domestic measures protecting
national minorities are to be considered a legitimate aim and as such do not necessarily conflict with the enjoyment
of the traditional EU freedoms. See Hofmann, Rainer, National Minorities and European Community Law, in Ziemele,
Ineta (ed.), 2 Baltic Yearbook of International Law (2002), 159-174.
13 On the link between minority issues and security see, with critical accents, Roe, Paul, Securitization and Minority
Rights: Conditions of Desecuritization, in 35 (3) Security Dialogue, 2004, 279-294, and Kymlicka, Will, Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford Univ. Press, Oxford, 2007).
14 Palermo, Francesco, The Protection of Minorities in International Law. Recent Developments and Trends, in Les Minorits: Un Dfi pour les tats. Actes du Colloque International (22 et 23 mai 2011) (Acadmie Royale de Belgique, Bruxelles, 2012), 165-185.
15 However, important achievements have been made by some international courts in developing a consistent body of
jurisprudence on relevant minority issues. This goes above all for the European Court of Human Rights. See inter alia
Gilbert, Geoff, The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights, in 24 (3) Human
Rights Quarterly (2002), 736-780.
16 For the term soft jurisprudence see Packer, John, Situating the Framework Convention in a Wider Context: Achievements and Challenges, in Filling the Frame. Five Years of Monitoring the Framework Convention for the Protection of
National Minorities (Council of Europe Publishing, Strasbourg, 2004), 45.

Francesco Palermo. Language Rights as a Litmus Test for the Future ofMinority Protection

25

domestic legal guarantees for minority rights to an extraordinary degree, they showed

that new ratifications will come in the near future. A consequence of this approach is

less effectiveness in coping with the more subtle challenges of effective implementation

that the monitoring bodies under both the charter and the Framework Convention find

of minority rights.

themselves in the difficult situation of highlighting deficits and shortcomings in the im-

This was primarily due to changed external circumstances. One should consider,

plementation of the respective treaty for the fourth time in a row,19 without having at

in particular, the overall and quick re-emergence of the role of the States in the inter-

their disposal instruments to enforce effective measures to address the most problem-

national and European scene, linked to factors such as the terrorist threat after the at-

atic situations.

tacks of September 11th, 2001, and the subsequent bombings in Europe and elsewhere,
as well as, more recently, to the global financial crisis and to the influx of refugees in
Europe after the so-called Arab Spring of 2011. The security issue was channelled back
into the hands of the States, and the overall environment for minority groups became
generally much less favourable, as they were increasingly seen as potentially disloyal
groups and thus a permanent potential threat to national security. Moreover, overall
attention shifted from autochthonous national minorities to the new security priorities,
including in particular the new minorities with immigration backgrounds and religious
diversity. The States became much less inclined to give broad leverage to international
organizations in dealing with minority issues. Moreover, the recent financial crisis had
shifted a considerable amount of power back into the hands of the States, which in several countries adopted emergency economic measures. Lastly, the emergency measures
adopted in several European countries to tackle the refugee crisis and the disappointing
responses of international and supranational bodies also exacerbated an overall political climate that was less and less minority-friendly and open to diversity. Consequently,
minorities were negatively affected in several ways. First because economic crises always
hit first the most vulnerable segments of the population, often among which are persons
belonging to minorities. Second because the growth of public deficits and the following
dramatic cuts in public expenditure severely involved funds dedicated to effectively implementing minority rights. Finally, because minority-friendly policies became politically
less and less rewarding and because anti-diversity sentiments were lucratively misused
by radical political forces that are on the rise throughout the continent.
These phenomena after the turn of the millennium produced the emergence of a
new statism that considerably reduced the role of the international community in this
field, brought the minority issue back primarily into the domestic arena, limited the impact of conditionality, and overall put the minority question much lower on the priority
Integration andExclusion

scale of both the States and the international community, as compared to the previous

26

decade. In the last ten years, no new country has ratified the Framework Convention17 and
very few the European Charter for Regional or Minority Languages18, and it seems unlikely
17 The last ratification of the Framework Convention so far was the one by Georgia in 2005.
18 Bosnia and Herzegovina ratified the charter in 2010 due to strong international pressure. Poland ratified it in 2009 after

2.1.3. Current Challenges and (Limited) Responses


A noticeable consequence of the increasing role of the States is often referred to as
monitoring fatigue.20 Times have changed in international relations since the 1990s,
and effective implementation of minority rights proved more complex and difficult than
drafting valuable legislation: some structural problems have not been solved, States do
not put the necessary effort into implementing minority rights, funds are cut, and full
and effective implementation of minority rights becomes more rather than less difficult.
Despite increasing attention in recent documents to a more balanced approach to
not only rights but also duties of minorities21, and to the overall balance of society as a
whole,22 as well as to a more participatory drafting of important documents,23 the rather
completing a rather uncontroversial yet technically complex process (signature was done in 2003). Many countries never
signed the charter, and so far only 25 have ratified it. Even more interestingly, eight countries signed it between 1992
and 2001 but have not yet ratified it.
19 Both the Framework Convention and the charter are currently undergoing their fourth monitoring cycle.
20 Kicker, Renate and Mstl, Markus, Standard-Setting Through Monitoring. The Role of Council of Europe Expert Bodies in
the Development of Human Rights, Strasbourg, Council of Europe Press, 2012.
21 One may think of some of the most recent documents underlining that, while in principle international law clearly
provides for rights for minorities and respective duties for States, the protection and safeguard of other fundamental
principles such as social cohesion, good neighbourly relations, and effective integration and participation in societies
require that minority protection be a two-way process in which both minorities and majorities have rights and duties.
While these elements have clearly been present in documents dating back to the 1990s (one may think of the rather
disappointing provision of art. 21 of the Framework Convention, which highlights in the context of minorities a principle
that would have been considered implicit with regard to majorities: that nothing in the present Framework Convention
shall be interpreted as implying any right to engage in any activity or perform any act contrary to the fundamental principles of international law and in particular of the sovereign equality, territorial integrity and political independence of
States), the more recent standards reflect a more balanced approach. For example, in the Bolzano/Bozen recommendations on National Minorities in Inter-State Relations, issued by the OSCE High Commissioner on National Minorities
in 2008, on the one hand the integration of societies comes to the fore (see recommendation no. 7: Integration can
only be achieved if persons belonging to national minorities, in turn, participate in all aspects of public life and respect
the rules and regulations of the country they reside in) and on the other the limits of states action with regard to support kin-minorities abroad are analyzed from the perspective of multilateral security. See further Palermo, Francesco,
Sabanadze, Natalie (eds.), National Minorities in Inter-State Relations (Brill, Leiden/Boston, 2011).
22 See in particular the 2012 HCNM Guidelines on Integration of Multiethnic Societies.
23 See for instance the UN Recommendations drafted within the framework of the Forum on Minority Issues on Minorities
and the Right to Effective Political Participation (2009) as well as on Minorities and the Right to Education (2008). See
Klmov-Alexander, Ilona, Effective Participation of Minorities. United Nations Standards and Practice, in Weller, Marc
(ed.), Political Participation of Minorities, cit., 286-307. Other extremely relevant examples are the second and third thematic commentaries of the Advisory Committee on the Framework Convention for the Protection of National Minorities.
On the overall link between civil society and the work of international organizations as well as the development of international minority law see the special issue of the International Journal of Minority and Group Rights, vol. 18, no. 2 (2011).

Francesco Palermo. Language Rights as a Litmus Test for the Future ofMinority Protection

27

obsolete approach of international instruments tailored to the situation of the 1990s calls

In pursuing these functions, the commentaries are key instruments for keeping the

for a contextual, dynamic, and progressive interpretation in order to make the standards

interpretation of the Framework Convention in line with new challenges and guarding

living instruments.

against its becoming less effective as a human rights instrument. It can be said, in other

24

One of the most sophisticated instruments for dynamic evolution and interpreta-

words, that the commentaries are fundamental instruments for the maintenance of

tion of the standards are the Advisory Committees commentaries. Commentaries pur-

the Framework Convention. They are a medicine against aging if not obsolescence in

sue different goals. First, they take stock of the results of the committees monitoring,

times of quick and challenging changes.

presenting them in a systematic and comparative way; this helps avoid inconsistencies
or even accusations of applying double standards in addressing issues in different countries and different contexts. Second, they offer both theoretical and practical guidance
to all actors involved in the protection of minority rights, such as national, regional, and
local administrations; NGOs; minority organizations; and academia. Third, they help the
Framework Convention to really be a living instrument, adapting its interpretation to
contemporary challenges. While they do not aim to create new law or doctrine, the commentaries are more than a mere compilation of the work of the Advisory Committee on
one particular subject. By ratifying the FCNM, state parties bind themselves to its principles, and these include the acceptance of the (non-binding) opinions of the Advisory
Committee; moreover, the opinions of the Advisory Committee establish an acquis that
becomes de facto binding to new state parties, because they ratify the Convention aware
of the interpretation given to it by the monitoring body. Not least, it must be noted that
in a few cases the non-binding interpretations given by the Advisory Committee become
normative because of their inclusion in decisions by national or international courts.25
Against this background, the commentaries, like all other soft law mechanisms, try
to give substance to the provisions in international law and to facilitate at the national
level the practical implementation of the international commitments, so making it possible to find the appropriate balance between the legitimate concerns of the State and
the majority on the one hand and the concerns and requirements of the minority on the
other.26

Integration andExclusion

24 Hofmann, Rainer, Implementation of the FCNM: Substantive Challenges, in: Verstichel, Annelies, Alen, Andr, de Witte,
Bruno, and Lemmens, Paul (eds.), The Framework Convention for the Protection of National Minorities: a Useful Pan-European Instrument? (Intersentia, Antwerpen 2008), 159-185.

28

3. The Commentary on Language


and its Main Goals
3.1. Updating the Identity Paradigm
It is only against this background that the provisions of and the very philosophy underlying the Commentary on Language, as well as its conceptual embedment, can be fully
understood. Over time, subsequent opinions27 of the Advisory Committee reflected the
evolving situation in most state parties: from an initial (and in many countries post-conflict) phase, when the pressing priority was the adoption of legal safeguards for persons
belonging to minorities in the enjoyment of their rights, to the more recent challenges.
Especially in more peaceful environments, where minority rights are largely established, at least on paper, many States have turned their attention to issues such as
societal integration and social cohesion. But in doing so, they have often (deliberately or
involuntarily) reduced the factual scope of minority rights by, for example, increasingly
demanding loyalty from minorities, placing additional requirements on the knowledge
of state languages, promoting a national leading culture, putting emphasis on avoiding
the development of parallel societies and segregation, and the like.
The problem also lies to a large extent in the mistaken perception of what minority rights are about. In fact, in state practice there is still a predominant perception
of minority issues as something involving homogeneous groups that sometimes clash

25 See, for example, the ruling by the Romanian constitutional court on 9 April 2001, no. 112/2001, in which the court directly applied art. 10.2. of the FCNM, affirming that the law of local public administration merely States and fixes the
details of the enforcement of the provisions in Art. 10.2 of the Framework Convention for the Protection of National
Minorities, which, according to Art. 11.2 and 20.2 of the Constitution, may be directly enforced. An example of direct
reference to the opinion of the advisory committee by the European Court of Human Rights be found in the Grand
Chamber decision of 13 November 2007, D.H. and others v. Czech Republic, no. 57325/00, when the court quoted an
extensive paragraph of the Advisory Committees opinion on the Czech Republic to construct its reasoning. Further
on this, Palermo, Francesco, Domestic Enforcement and Direct Effect of the Framework Convention for the Protection
of National Minorities. On the Judicial Implementation of the (Soft?) Law of Integration, in Verstichel, Annelies, Alen,
Andr, de Witte, Bruno, and Lemmens, Paul (eds.), The Framework Convention for the Protection of National Minorities:
A Useful Pan-European Instrument? (Intersentia, Antwerp, 2008), 187-214.

with other homogeneous groups, with efforts to look for solutions on how to accom-

26 Eide, Asbjrn, The Oslo Recommendations Regarding the Linguistic Rights of National Minorities: An Overview, 6 (3)
IJMGR (1999), 319-328, at 325.

27 At the time of the adoption of the Commentary on Language, some 75 opinions had been adopted by the Advisory Committee.

modate groups demands by granting rights to individuals. Based on this assumption,


international minority law also often aims at accommodating majority and minority homogeneous groups. To belong to a minority, in the prevailing perspective, is a sort of

Francesco Palermo. Language Rights as a Litmus Test for the Future ofMinority Protection

29

all-encompassing issue, and the divide between belonging or not belonging to a minority

much more effectively, as if identities were seen as something permanent, immutable,

is supposed to always be clear for each and every person.

and static.

However, such homogeneity, if it ever existed, is now far from mirroring reality, and

Examples can be found in several paragraphs of the Commentary. Para. 18 directly

minorities of whatever kind are now much less homogeneous than ever before: diversi-

addresses the issue of multiple affiliation,31 para. 8 suggests that different hierarchical

ties are increasingly present within each group, and the factors for differentiation are

relations among languages should be taken into account in drafting and implementing

potentially countless. Migrants, people belonging to more than one culture, multilingual-

language-related provisions,32 para. 13 makes explicit the consequences of multiple affil-

ism, shifting identities, mobility, decreasing compactness in social structures: all these

iations with regard to the scope of application of the Framework Convention,33 and more

issues are not, or at least not sufficiently, dealt with by national or international minority

generally the substantial provisions of the Commentary are inspired by a reading of lan-

law, thus creating some confusion when implementing minority rights and opening the

guage identities and rights that takes into account the developments these issues have

door to political misuse (and sometimes abuse) of the legitimate aim of establishing an

faced in the course of the last two decades.

integrated society. This aim often turns, voluntarily or involuntarily, into a subtle limitation of minority rights.28
In its monitoring work, the Advisory Committee has come to the conclusion that
the right balance between the protection of linguistic rights of persons belonging to minorities and the development of an integrated society can hardly be achieved if identities
(both majority and minority identity) are portrayed (in law and in society) as something
set in stone.
This also goes for supposedly objective criteria such as language. Linguistic identity might well be clearly defined for some, but for (many) others, especially for persons
belonging to minorities, such identity might be shifting, complex, and plural, and nevertheless but one of the main factors of their identity and identification.29 Language, like
identity, is not static but evolves throughout a persons life. Linguistic identities are often
multiple, and their relations change depending on a number of factors, including societal
ones such as hierarchy or different prestige among languages, or just their different instrumental position in different contexts.30 The full and effective guarantee of the right to
use ones (minority) language(s) implies that instruments must allow free identification
of persons through language and abstain from constraining personal identities into rigid
(and often hierarchical, prestige-based) language categories.
Following the multicultural approach underpinned by the Framework Convention,
the Commentary spells out the issue of multiple and contextual identities and even of

Integration andExclusion

hierarchical structures in societies in a way that allows focus on the current challenges

30

28 See Poggeschi, Giovanni, Language Rights and Duties in the Evolution of Public Law (Nomos, Baden Baden, 2013).
29 For a philosophical reading of (individual and collective) linguistic diversity see van Parijs, Philippe, Linguistic Diversity as Curse and as By-Product, in Arzoz, Xabier (ed.), Respecting Linguistic Diversity in the European Union (John
Benjamins, Amsterdam/Philadelphia, 2008), 17-46.
30 Examples are countless. Issues of different social prestige are common, inter alia, with regard to the use of Romani
language, which in practice is used much less, even when legal conditions are in place. As to circumstantial use of languages even besides prestige, one may think, for instance, of the very limited use of Hungarian in courts in Vojvodina
due to a number of issues that do not have to do with lack of prestige of the minority language.

3.2. Old and New Challenges for Linguistic Rights


Against this background, the Commentary addresses all the main issues related to the
enjoyment of linguistic rights that have emerged in the course of fifteen years of monitoring. At the same time, it underlines the interlinks existing between language rights and
all other rights laid down in the Convention34, with the awareness that language rights are
essential for the enjoyment of other rights but also possible instruments for exclusion
from the benefit of such rights.35
Consequently, the Commentary is structured in six main parts reflecting the main
interlinks between language rights and other rights provided for by the Convention:
31 Para. 18 Commentary: a person might wish to identify herself or himself with several groups. The phenomenon of
multiple affiliation is in fact quite common, due to mixed marriages, for instance, or cases of state succession. A person
may also identify himself or herself in different ways for different purposes, depending on the relevance of identification for him or for her in a particular situation. The Advisory Committee considers that the principle of self-identification, as contained in Article 3 of the Framework Convention, also guarantees the possibility of multiple affiliation.
This implies that, in principle, a person may claim linguistic rights with regard to several minority languages, as long
as the relevant conditions, such as demand and/or traditional residence, contained in the respective articles of the
Framework Convention are fulfilled.
32 Para. 8 states: While states continue to play an essential role in defining the legal regime governing the use of languages, other entities are gaining momentum, such as local, regional or transnational bodies in which the functionality and prestige of languages are influenced by different actors. Unequal power relations between different groups
of speakers may lead to social hierarchies that can also be reflected in language practices and political discourse on
languages. This influences the way in which speakers of certain languages are perceived by others and, to some extent,
perceive themselves. Language policies aiming at valuing linguistic resources at the individual and social level therefore also have to address the question of hierarchy in language and society, and the issue of unequal access to full
participation in society.
33 Para. 13 reads: Language is an essential component of individual and collective identity. For many persons belonging to
national minorities, language is one of the main factors of their minority identity and identification. However, language,
like identity, is not static but evolves throughout a persons life. The full and effective guarantee of the right to use
ones (minority) language(s) implies that authorities allow free identification of persons through language, and abstain
from constraining personal identities into rigid language categories. The choice of each person belonging to a national
minority to choose freely to be treated or not to be treated as such, must be respected in line with Article 3.1 of the
Framework Convention.
34 See para. 3 Commentary.
35 See para. 17 Commentary.

Francesco Palermo. Language Rights as a Litmus Test for the Future ofMinority Protection

31

Language Rights and Identities (reflecting essentially articles 3 and 5 FCNM), Language

the rights of minorities in the minority but also of majorities in the minorities49; the

Rights and Equality (Articles 4 and 6 FCNM), Language Rights and Media (Article 9),

linguistic duties of persons belonging to majorities, especially in areas inhabited by

Public and Private Use of Minority Languages (Articles 10-11), Language Rights and Edu-

minorities in large numbers50; the difficult and not always straightforward distinction

cation (Articles 12-14), and Language Rights and Participation (Articles 15 and 16 FCNM).

between public and private use of languages51; the balance between promotion of the

In each section, both the traditional and the most recent challenges facing the

state language(s) and protection of minority languages in different fields52; the balance

effective enjoyment of language rights by persons belonging to minorities are dealt with,

between the right to separate education for persons belonging to minorities and the in-

and the consolidated interpretation of the Advisory Committee, including practical guid-

terest of the society in avoiding parallel development of its communities,53 including by

ance, is given. Inspiration for both the monitoring and the thematic work of the commit-

promoting linguistic diversity and intercultural education54; etc.

tee is drawn from other international documents especially but not exclusively on lan-

In all these and other issues, the Commentary tries to give both the systematic

guage rights. These include, in particular, the case law of the European Court of Human

interpretation of the relevant provision in the Framework Convention and some practical

Rights, the European Social Charter, the OSCE High Commissioner on National Minorities

guidance as to how possibly resolve problems, based on recommendations that have

Recommendations, the UN documents, and, of course, the European Charter for Regional

been elaborated upon in the course of three cycles of monitoring.

or Minority Languages.

While the selection of the issues dealt with by the Commentary naturally emerges

36

More classic language-related issues are those that recur from the very beginning

from the systematic reading of the opinions, the refinement of the interpretation, and

in the monitoring of the Framework Convention in a wide number of countries. These

the exemplification of problems, the logical order followed in presenting the relevant

include, among many others, questions regarding the scope of application of language

issues is also the product of the open and participatory process that has guided the elab-

rights, census and collection of data on linguistic affiliation,

language quotas in the

oration of the document. Following the practice inaugurated with the second thematic

media (both public and private) and film industry, training and recruitment of journal-

Commentary on effective participation (2008),55 the Commentary on Language has also

ists able to work in minority languages,41 access to education in and on minority languag-

been drafted in consultation with all relevant Council of Europe and other international

es, linguistic requirements for the enjoyment of language rights such as thresholds,

43

bodies dealing with minority issues as well as key stakeholders, in particular those in

language requirements in electoral

civil society and academia and minority representatives. A pre-final text was thoroughly

37

39

38

40

42

territorial and cultural autonomy arrangements,

44

provisions and in judicial proceedings, etc.


45

46

Among the more recent challenges, the Commentary tackles complex and even
more subtly nuanced questions mostly risen after the legislation on minority rights had

discussed in a consultation conference where minority representatives, national and local authorities, NGOs, international bodies, and individual experts made their comments
and practical suggestions on how to possibly improve the document.

largely been established. These issues include, inter alia, how to combine multiple identities with participation in cultural, social, and economic life and in public affairs47; the
balance between freedom of the media and promotion of minority rights in the media48;
36 See paras. 10 and 11 Commentary and the documents mentioned above, Fn no. 7.
37 See paras. 14-17 Commentary.
38 See paras. 14-21 Commentary.
39 See para. 43 Commentary.
40 Para. 50 Commentary.

Integration andExclusion

41 See para. 41 Commentary.

32

42 Paras. 68-69 Commentary.


43 See paras. 56, 57 Commentary.
44 Paras. 90-91 Commentary.
45 See paras. 92-93 Commentary.
46 Para. 59 Commentary.
47 See inter alia paras. 84, 85, 86, 87, 92, 93 Commentary.
48 See e.g. paras. 42, 45, 47 of the Commentary.

49 See para. 91 Commentary.


50 See e.g. para 79 Commentary.
51 For instance, information visible to the public on private grounds or buildings, possible limitations to the use of minority languages for consumers protection, language regulation in new media, etc. See paras. 64-67 Commentary.
52 See paras. 52-54 Commentary.
53 See paras. 70-75 Commentary.
54 See paras. 82-83 Commentary.
55 On this practice and its meaning see Palermo, Francesco, The Dual Meaning of Participation: The Advisory Committees
Commentary to Article 15 of the FCNM, in European Yearbook of Minority Issues, vol. 7 (2008), cit.

Francesco Palermo. Language Rights as a Litmus Test for the Future ofMinority Protection

33

4. Completing the Trilogy?


Concluding Remarks on Present Responses
andFutureChallenges
In sum, the Commentary on Language as the latest thematic Commentary based on the
largest number of country opinions and international documents completes what could
be called the first thematic trilogy of the Advisory Committee. The first three commentaries no doubt deal with three of the most significant, complex, and challenging sets of
minority rights, which are now presented in light of the systematic work of the Advisory
Committee. Thematic commentaries are the most effective tool to make the Framework
Convention a living instrument. It could be said that while the opinions are filling the
frame56 the thematic commentaries are the 3D glasses allowing to us to see and comprehensively understand the picture resulting from a filled frame.
No doubt, by completing the trilogy, the Commentary on Language also opens up
new challenges in contemporary minority protection that are likely to become even more
acute in the future. Against this background, the subsequent thematic work will be called
to take further steps in comprehensively addressing new and pressing issues of minority
protection arising in a time when minority rights and the accommodation of diversity
is seen as losing importance. In this context, it seems of the utmost importance that
the Advisory Committee decided to devote its upcoming thematic Commentary to the
controversial issue of the scope of application of the Convention, tackling fundamental
questions rather than shying away from them.
From a broader perspective, however, the question arises as to whether the thematic work, combined with the systematic interpretation in the course of the regular
monitoring, can in the long run be enough to keep the Framework Convention a living
instrument.
First, it is important to see the commentaries in the context of all the instruments
besides the opinions that are part of the toolkit of the Advisory Committee. While
commentaries are the most visible and the more significant of such instruments, the
importance of other tools for a balanced development of the Framework Convention and
for the achievement of its goals should not be underestimated. The Convention lives also

Integration andExclusion

and foremost in the implementation by state parties, and monitoring is just a stage in a

34

much more complex process. Therefore, all the activities that make the Convention alive
in the legislation, administration, policy, and practice of state parties are essential tools
56 Quoting the title of the conference (and subsequent book) celebrating the fifth anniversary of the work of the Advisory
Committee: Filling the Frame. Five Years of Monitoring the Framework Convention for the Protection of National Minorities (Council of Europe Publishing, Strasbourg, 2004), cit.

for making it a living instrument. Such activities include follow-up seminars, permanent
and inclusive discussion of issues pertaining to the protection of minorities, participatory drafting of state reports, wider academic debate on the situation of minorities in the
different countries, strategic synergy with other minority-relevant bodies, etc. Furthermore, while the effectiveness of human rights instruments is not easy to measure, there
are criteria that can help to assess the achievements:57 should it be demonstrated that
the impact of the Framework Convention has increased, at least in some areas, after the
adoption of the Commentary on Language, its importance would become more evident.
Thus, while it is clear that commentaries alone are not sufficient to make the Convention
a living instrument, they can play a key role in this respect. Therefore, it seems essential
that the practice of drafting thematic commentaries when the systematic elaboration of
specific issues has sufficiently ripened in the practice of the Advisory Committee continue.
Second, to keep a delicate instrument like the Framework Convention a living one,
and in line with the changing developments of minority protection, it is essential that the
Advisory Committee keep up with the new and at times existential challenges posed by
States, such as insufficient implementation of the Convention or structural objections as
to its role in providing answers to the demands of ever more diverse societies, reflecting
the evolution of the problems and the consolidated wisdom of the Advisory Committee
in providing interpretative answers to such issues.
To face such challenges requires focus not only on the scope of application, as the
upcoming Commentary does, but also on issues such as the relationship between minority rights and non-discrimination, integration of diverse societies and the measures
necessary to pursue this aim, and a more modern reading of the link between minorities
and territory. This last topic, being dealt with in Articles 15 and 16 of the Convention and
thus partly covered by the second thematic Commentary as part of the broader field of
the right to effective participation, may require further reflection on the future of the
existing commentaries.58 Should they themselves be amended or updated in light of further developments, or is it advisable (as seems preferable) to further develop the issues
already dealt with by existing commentaries when circumstances so require?
In fact, if the underlying assumption of the Commentary on Language (and of this
chapter) holds true, i.e. if minority issues are deemed increasingly a question of nuances
rather than either/or, and of changing rather than clear-cut identities, many of the pillars on which the Framework Convention is based will need updated reading in the near
57 See Malloy, Tove, et al., Indicators for Assessing the Impact of the FCNM in its State Parties (Eurac, Bolzano/Bozen, 2009).
58 For interesting considerations in this regard see Arraiza, Jos-Mara, Making Home Rules for Mother Tongues. The Legal
Implications of Linguistic Diversity in the Design of Autonomy Regimes (bo Academy University Press, bo, 2015).

Francesco Palermo. Language Rights as a Litmus Test for the Future ofMinority Protection

35

future. Furthermore, especially as monitoring goes on and some issues are not resolved,
the effectiveness of the Convention will necessarily be increasingly measured against the
non-monitoring-related activities, among which the thematic work plays a critical role.
Moving from a black-and-white approach to identity factors, from homogeneity
to multiculturalism, from protection to integration, from a dogmatic to a functional approach to territorial issues, would help not only the international community re-gain its

Integration andExclusion

role but also, and more importantly, minority issues be properly addressed.

36

The Human Rights


Dimension and Challenges
ofLinguisticRights
Fernand de Varennes

1. Introduction
Although principles of equality and non-discrimination are firmly rooted in
binding international standards, racial discrimination and lack of adequate
protection of minorities remain a widespread challenge in all regions of
the world. In addition to being human rights imperatives, combating racial
discrimination and protection of minorities are also key factors in the prevention of conflict, in conflict and post conflict situations as well as in addressing development challenges, including poverty reduction, millennium
development goals (MDGs) and environmental sustainability. The protection
of minorities and combatting racial discrimination thus affect all three pillars of the UN security, development and human rights and require system-wide, coordinated engagement.1
The connection between human rights and linguistic rights is not widely understood. This chapter attempts to outline this dimension and the legal documents that
involve these rights. Linguistic rights raise challenging yet fundamental matters for
both policy-makers and rights-holders alike. For state authorities, these touch upon the
1 Guidance Note of the UN Secretary General on Racial Discrimination and the Protection of Minorities (2013).

Fernand de Varennes. The Human Rights Dimension and Challenges of Linguistic Rights

39

balance between a states official language(s) and its obligations to respect human rights.

border changes associated with the destruction of the Austro-Hungarian and Ottoman

For persons who belong to minorities and other individuals, they not only involve human

empires,3 a series of Minorities Treaties4 that gave rights to certain minorities divided into

rights obligations, they also play a prominent role in determining how well these persons

three categories: the first group of treaties applied to the defeated states of Austria, Bul-

are accepted and accommodated within a state and whether they will be treated fairly in

garia, Hungary, and Turkey; the second group applied to Czechoslovakia, Greece, Poland,

terms of access to opportunities and participation in society.

Romania, and Yugoslavia; and the final group applied in Danzig, the Memel Territory, and
Upper Silesia. The external guarantee of the Minorities Treaties afforded protection only
to persons within these states who had ethnic, linguistic, or religious characteristics that

2. Past State Rejection of Linguistic Rights


Language is the key to inclusion. Language is at the center of human activity, self-expression and identity. Recognizing the primary importance that
people place on their own language fosters the kind of true participation in
development that achieves lasting results.2
Many European governments started to adopt policies from the 15th or 16th centuries whereby minority languages were no longer to be used or even, in some cases,
tolerated: they were to be set aside because they were deemed to be obstacles or simply
because they were not the language of the land.
This period saw the emergence of absolute sovereignty of European States following the War of Religions and the treaty of Westphalia of 1648 and subsequent negative responses to language diversity and the use of minority or non-official languages. What has
been described as Westphalian sovereignty involved a transformation from a medieval
world of empires and dispersed authority to that of the centralized sovereign state, with
each ruler the final and only authority in his (or, more seldom, her) own realm. From this
point until the development of human rights in international law, the Westphalian system
firmly established a states exclusive internal sovereignty within its territories and the
population living in these with no higher temporal authority. This in turn engendered the
problem of minorities who are subjected to the whims and prejudices of the sovereign
with no higher rule to temper these in areas such as religion (as the tragedy of the Jewish
minority in Nazi Germany shows) or language (as experienced by the Kurds of Turkey).
By and large, international law until about the Second World War had thus little
or no impact on how a state treated its own citizens for the simple reason that human
Integration andExclusion

rights had not yet become firmly established as part of international law. This meant

40

that matters of language (and religious) tolerance fell largely within a states exclusive
territorial sovereignty. At most there existed after the First World War and the territorial

were different from the majority of the population.5 Although the majority of the treaties
applied to German-speakers in non-German-speaking states, some treaties applied to
Jewish persons, the Valachs of Pindus, the monastic communities of Mount Athos, the
Muslims in Albania, Greece and the Serb-Croat-Slovene Kingdom (which later became
Yugoslavia), and the Ruthenes in Czechoslovakia.6
Outside of these limited exceptions during the inter-war period, and in the absence of any treaty limiting a states sovereignty in areas of language preferences or how
a government treats its own population, for all intents and purposes a government had
carte blanche as far as international human rights law was concerned on what to do in
relation to language differences and the protection or even destruction of languages.
The 19th and 20th centuries in particular saw many governments take for granted
that a common language was necessary to ensure unity and that there was no international restriction as to the legal measures they could adopt as part of this drive. In the
first two decades after the establishment of the Republic of Turkey, for example, the
state enacted a series of Turkification laws to ensure linguistic homogeneity. In 1925, the
legislation was amended to make it mandatory that the Turkish language be taught for
at least five hours in all minority schools; this was followed by legislation requiring that
all teachers in these schools have Turkish as their native language. Legislation in the following years not only continued to chip away at the use of languages other than Turkish
in public institutions but prohibited the use of other languages even between private
parties: in 1926, a law made use of the Turkish language compulsory in correspondence
between corporations; in 1931, all Turkish children had to receive their primary education
in Turkish.
In many ways, Turkey was by no means exceptional: it was very much part of the
zeitgeist of the preceding two centuries, earlier on as a threat to the unity of states:
3 Hurst Hannum, The Concept and Definition of Minorities in Marc Weller (ed), Universal Minority Rights: A Commentary
on the Jurisprudence of International Courts and Treaty Bodies (Oxford University Press, 2007) 49, 53.
4 Ibid.

2 UNESCO Bangkok (2012), Why language matters for the Millennium Development Goals, p. 1, available at http://unesdoc.
unesco.org/images/0021/002152/215296E.pdf.

5 Patrick Thornberry, International Law and the Rights of Minorities (Clarendon Press, 1991) 44. See Associated Powers and
Poland Treaty art 12.
6 Thornberry, above n 5, 43.

Fernand de Varennes. The Human Rights Dimension and Challenges of Linguistic Rights

41

Federalism and superstition speak Breton; emigration and hate for the republic speak

the worlds languages by state authorities from most areas of public life as well as their

German; counterrevolution speaks Italian, and fanaticism speaks Basque. Let us destroy

exclusion from employment and educational opportunities linked to the use of a partic-

these instruments of damage and error!

ular language by public institutions. Perhaps the most noticeable consequence of such

Later, modernization and centralization meant that smaller, non-modern languages had to give way to the worlds (i.e. Europes) dominant languages whether the

approaches up until the 21st century is the stupendous drop in the number of languages
surviving the expansion of European powers to the four corners of the world.

speakers of these languages agreed or not. Such a view was in fact shared by both the left
and right political perspectives:
there is no country in Europe which does not have in some corner or other
one or more fragments of peoples, the remnants of a former population that
was suppressed and held in bondage by the nation which later became the
main vehicle for historical development. These relics of nationsthis ethnic
trash always became the fanatical bearers of counterrevolution and remain
so until their complete extirpation or loss of national character, just as their
whole existence in general is itself a protest against a great historical revolution.8
Nobody can suppose that it is not more beneficial to a Breton, or a Basque
of French Navarre, to be brought into the current of the ideas and feelings of
a highly civilised and cultivated people to be a member of the French nationality, admitted on equal terms to all the privileges of French citizenship,

The decreasing survival


of the worlds languages.
Source: The Financial Times,
8November 2007

sharing the advantages of French protection, and the dignity and prestige
of French power than to sulk on his own rocks, the half-savage relic of
past times, revolving in his own little mental orbit, without participation or
interest in the general movement of the world. The same remark applies to
the Welshman or the Scottish Highlander as members of the British nation.9
One must not believe that this phenomenon was limited to Europe. Obviously, European colonization or domination of many parts of the world also meant that it often
exported its rather intolerant views on language diversity and (the non-existence of)
linguistic rights to many other parts of the world, inspiring others to copy this approach
in other locations. This is particularly noteworthy in relation to indigenous languages in
the Americas, where Spanish, French, English, and Portuguese colonialism had such a
dramatic effect on centuries-old empires and political communities.

Even in the last century, it was not uncommon to punish indigenous or minority
children if they did not speak the official language in school: indigenous children in Canada, Australia, the United States, Taiwan and Finland among others could be humiliated and even beaten for talking in their own language. However brutal may have been
the treatment of minority and indigenous languages, leading some sociolinguists to refer
to the effect of these and other state policies as linguistic genocide,10 international law
was uninterested in matters of language until the emergence of human rights in the treaties that finally became universal after the Second World War.

The result of these ideological views, translated into legal and political realities in
Integration andExclusion

many countries over the centuries, has been the gradual exclusion of the vast majority of

42

7 27 January 1794, Bertrand de Barre denounces languages other than French on the floor of the Convention as enemies
of the Republic. James Anderson, Liam ODowd, Thomas M. Wilson, Culture and cooperation in Europes borderlands,
2003, p. 127.
8 Friedrich Engels (and Karl Marx), The Communist Manifesto, 1848.
9 John Stuart Mill, Considerations on Representative Government, 1861, ch. 16.

10 See generally Tove Skutnabb-Kangas, Linguistic Genocide in Education: or Worldwide Diversity and Human Rights?, Routledge, 1983.

Fernand de Varennes. The Human Rights Dimension and Challenges of Linguistic Rights

43

3. A Changing Attitude Towards Languages,


Human Rights, and International
Protection of Minorities
Now hear this. You are mountain people. You hear me? Your language is
dead. It is forbidden. It is not permitted to speak your mountain language to
your men. It is not permitted. Do you understand? You may not speak it. It is
outlawed. You may only speak the language of the capital. That is the only
language permitted in this place. You will be badly punished if you attempt
to speak your mountain language in this place. This is a military decree. It
is the law. Your language is forbidden. It is dead. No one is allowed to speak
your language. Your language no longer exists. Any questions?11
There were a number of lessons learnt from the ashes and horrors of the Second
World War, however, and one of these was that the sovereignty of the state could no
longer be permitted to be exercised without any restraints. As a result, one of the pillars of the new international order, which emerged through the United Nations, was the
strengthening of international law as a tool for the maintenance of international peace
and stability including human rights within its ambit. Thus, international law began to
impose legal obligations that directly affect the sovereignty of a state and its linguistic
practices, and therefore began to recognise linguistic rights as part of the international
legal order. It should be emphasized, however, that this was not part of a coherent or
consistent ideology or response from the part of the international community. International law is after all the result of compromise and consent among states, and for this
reason there are divergent legal documents and other instruments that focus on language more or less directly and more or less tolerantly.
From completely ignoring issues of linguistic rights or language preferences within
a state and how a government treats its own people, international law now protects individuals through a large number of treaties, and even languages themselves in a very small
number of instruments. How exactly this occurs and what it means in practice follows
three basic trends:
1. Legal protection for endangered languages;

First, despite the accelerated pace of language disappearances,12 with indigenous


languages in particular being those most likely to fade away in the short term, in international law there is, to be brutally honest, almost no legal protection of endangered
languages. At most, there are two treaties: the UNESCO 2003 Convention for the Safeguard of Intangible Cultural Heritage and the 2005 Convention on Biological Diversity.13 As
their very titles indicate, neither is directly or to any significant degree concerned with
protecting endangered languages, though occasionally in the case of the 2003 Convention
for the Safeguard of Intangible Cultural Heritage some funding is provided to record and
preserve usually in the sense of recording endangered languages. This treaty mainly
supports short-term projects and specific aspects of heritage of international interest,
and only those proposed by governments. In other words, it does not create any rights or
obligations in relation to endangered languages themselves, and it is left to the discretion of national governments to occasionally submit some kind of proposal for specific
action, which can then be supported (usually financially) by the UNESCO Fund made for
this purpose.
Secondly, whether or not languages are endangered, there has also been an emergence in international law of the acceptance of linguistic diversity itself as something
desirable that should be maintained, regardless of whether any language is endangered.
This finds its strongest echo and legal support in European instruments that aim to protect and promote linguistic diversity itself, not only those languages that are endangered.
This kind of treaty does not create any individual rights for persons who speak an indigenous or minority language, but it does create obligations for governments that have
ratified these treaties to take various steps in favour of the diversity languages spoken
on their territories.
The legal highpoint of the protection and promotion of linguistic diversity is undoubtedly the European Charter for Regional or Minority Languages, under which each
language covered by the treaty in a specific country should be treated in terms of its use
by a government in a way that reflects the situation of each language: in other words,
essentially following the principle of proportionality.14 In addition to this European treaty,
there is also an international treaty that deals with linguistic diversity, the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, but it

Integration andExclusion

2. Legal recognition of rights or obligations for the protection or promotion

44

of linguistic diversity; and


3. Legal protection of human rights having a linguistic impact.

11 Harold Pinter (1988), Mountain Language, Faber & Faber, pp. 255-56.

12 There seems to be fairly widespread agreement that over 50% of the worlds 6,700 or so languages are seriously endangered and liable to be lost within one to four generations, and that at least one language disappears every two weeks.
13 The Convention on Biological Diversity covers the endangerment of linguistic diversity only if it is somehow connected
to biological diversity which is not an obvious connection. It would not seem to have any real impact or consequence
in relation to saving languages from extinction.
14 The principle of proportionality should largely though not exclusively based on a number of practical factors such as
the number and concentration of speakers of the language, the level of demand, prior use of a particular language
authorities and therefore availability of resources, etc.

Fernand de Varennes. The Human Rights Dimension and Challenges of Linguistic Rights

45

is very different from the treaty in Europe: whereas the European Charter can be used to

Some governments might be concerned that acknowledging linguistic rights em-

guarantee some degree of appropriate use of a minority or indigenous language in rela-

phasizes divisions. However, imposing only one official language and relegating all others

tion to a states administrative, educational, and other activities, the UNESCO Convention

to the private sphere of home and community has not often been a good approach in

cannot be invoked at all for such uses. Like the treaty on intangible heritage, it contains

countries with large linguistic minorities such as Sri Lanka, Ethiopia, Macedonia, etc. The

only general statements on the protection and promotion of linguistic diversity, encour-

positive lessons from these countries today is their ability to maintain national unity by

ages translations, and permits UNESCO to be involved in the promotion of linguistic di-

opting for a more proportionate, appropriate use of the main languages spoken by their

versity through symbolic gestures such as the International Mother Language Day but

populations. This has been true of other countries in all parts of the world, whether they

hardly anything concrete that would affect day-to-day life and usage of languages. Thus,

are coming out of a situation of conflict, as in the previous examples; to avoid a potential

while at least the European Charter creates concrete and tangible state obligations to

conflict (Italy, Finland, India); or as part of a recognition that the use of languages by

promote and protect languages generally, this has not yet been translated into similar

authorities has to broadly reflect a states demographic and linguistic realities (Belgium,

obligations at the international level.

Canada, Switzerland, Seychelles, Singapore).

Finally, there is a significant third category of treaties in international law that indi-

What past positive experiences have shown in these and other countries is that

rectly it would even be fair to say unintentionally create a number of language rights

recognizing linguistic rights has not opened the gateway to division and separatist move-

for individuals through the application of human rights standards that may result in the

ments. On the contrary, when these are reflective of the reality on the ground, proportion-

protection of languages and impact the linguistic preferences of individuals through hu-

ate, and fair, they have tended to result in generally more stable, less violent societies.16

Integration andExclusion

man rights such as non-discrimination, freedom of expression, and the right to private

46

life, among others. These human rights standards are nevertheless quite different from

It should be emphasized that none of the three trends just mentioned can in them-

the other two approaches involving language in international law, since they do not deal

selves change a states designation of an official language, as the European Court of

with languages as objects of concern or of protection per se; they give rights to individ-

Human Rights has on a number of occasions unambiguously stated: sous rserve du re-

uals, including individuals who are members of minorities, which will sometimes have a

spect des droits protgs par la Convention, chaque tat contractant est libre dimposer

linguistic dimension.

et de rglementer lusage de sa ou ses langues officielles.17

A generous yet practical approach towards the use of minority languages by states

As this case indicates, however, while a state is free to choose its own official lan-

helps minorities achieve equal access to services and opportunities. By using their lan-

guage, it must still comply with any applicable human rights and, for that matter, any

guages, authorities contribute more effectively to minorities as far as being better in-

other applicable rule of international law. In other words, regardless of a countrys official

formed, participating more effectively in public life, and having better access to services

language, it cannot breach international legal obligations involving freedom of expres-

and opportunities. Using the language of minorities thus contributes to their inclusion in

sion and the right to non-discrimination as well as those treaties that deal, even timidly,

all facets of society and promotes peaceful coexistence. To only use one official language

with the promotion or protection of linguistic diversity, etc.

can result in their disproportionate exclusion and potentially serve to alienate, disad-

In terms of language rights that derive from individual human rights in interna-

vantage, and antagonize part of a states own population. Simply put, when minorities

tional law, what is particularly noteworthy is the recent case law emanating from inter-

are disenfranchised and marginalized, often because of the denial of their human rights,

national and European bodies who have begun to make the connection between legal

including those affecting language use and preferences, conflicts can develop. Con-

human rights standards and language issues clearer:

versely, where minority rights are enshrined in constitutions, and implemented through

In 1993 (Ballantyne v. Canada),18 the UN Human Rights concluded that the

electoral, justice and education systems before a conflict has the chance to fester, there

right to use a language in private activities was guaranteed by freedom of

is a chance that conflict might not occur at all.

15

16 Baldwin, Clive, Chapman, Chris, and Gray, Ze (2007), Minority Rights: The Key to Conflict Prevention, Minority Rights
Group International, London.
17 Mentzen c. Lettonie, no. 71074/01, 7 December 2004, European Court of Human Rights.
15 Baldwin, Clive, Chapman, Chris, and Gray, Ze (2007), Minority Rights: The Key to Conflict Prevention, Minority Rights
Group International, London, p. 2.

18 Ballantyne, Davidson, McIntyre v. Canada, Communications Nos. 359/1989 and 385/1989, U.N. Doc. CCPR/C/47/D/359/1989
and 385/1989/Rev.1 (1993).

Fernand de Varennes. The Human Rights Dimension and Challenges of Linguistic Rights

47

expression. The official language policies of the government of Qubec, which


banned non-French commercial signs, were therefore in violation of this language right protected by freedom of expression. Nevertheless, because protecting and promoting the French language was deemed legitimate, steps to
require French in addition to the language of choice would be possible.
A persons name or surname, including its linguistic forms, can be protected as part of ones right to private life, according (indirectly) to both
the European Court of Human Rights (Burghartz v. Switzerland)19 and the
UN Human Rights Committee (Raihman v. Latvia)20 in 2010.
In 2000 (Diergaardt v. Namibia),21 the UN Human Rights Committee was of
the opinion that a minority language (Afrikaans in Namibia) had to be used
to some degree by official authorities in addition to English, the countrys
only official language, in order to comply with non-discrimination on the
ground of language, since there was no explanation of why using only English was reasonable and justified in the circumstances.
In 2001 (Cyprus v. Turkey),22 the European Court of Human Rights concluded
that the official language policies in Northern Cyprus breached the right
to education, which in that particular context included the right to being
instructed in Greek in a state school.
Human rights such as the freedom to use ones own language in private activities,
to have ones name in ones own language, and to be educated in state schools using
ones own language as the medium of instruction (in situations where numbers are substantial enough) and even an entitlement to have government officials respond in a
non-official language all of these linguistic rights have been recognized as being protected under human rights standards, and in international law these prevail over a states
official language policies or legislation. In almost all cases identified above, save for Ballantyne v. Canada, those who were able to use human rights in order to have language
rights recognized and protected in international law were minorities.
The extent of the change in mind-frame since the middle of the 20th century should
not be underestimated. Particularly in the last 20 years or so, acceptance of language diversity as something to be embraced and, indeed, protected rather than feared and dealt
as some kind of undesirable obstacle has been quite astounding and is reflected prinIntegration andExclusion

cipally in successful claims using human rights to protect some aspect of language use.

48

19 Burghartz v Switzerland (1994) 18 EHRR 101 94/2.


20 Communciation No. 1621/2007, 28 October 2010, CCPR/C/100/D/1621/2007.

4. The Challenges of Linguistic Rights


AsHuman Rights
The importance of language rights is grounded in the essential role that
language plays in human existence, development and dignity. It is through
language that we are able to form concepts; to structure and order the world
around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one
another, and thus to live in society.23
One might think that language diversity and the protection and promotion of languages, as well as, at the most fundamental level, the issue of complying with the human
rights nature of linguistic rights, must by now be a fait accompli, a battle won with individuals able to enjoy the fruits of these three approaches and international law. However,
many of the instruments mentioned in this chapter are somewhat illusory from a legal
point of view, and, as surprising as it may sound, the relationship between language and
human rights is still fraught with controversy and uncertainty. One of these controversies
remains the effect or significance of having an official language on language rights and
linguistic protection.
Most of the developments and instruments referred to so far do not actually directly protect language rights. Even the two most obvious candidates, the two Council of
Europe treaties the Framework Convention on the Protection of National Minorities and
the European Charter for Regional or Minority Languages, are not directly enforceable,
according to the Council of Europe. Both require that a state adopt legislation in order to
create enforceable legal obligations, even after a state has ratified the relevant treaty, so
that technically speaking no rights can ever directly be created that could be enforced in
a court of law. There are mechanisms provided for each of these treaties, in both cases
an independent committee of experts, and they do quite good work, but at the end of the
day neither of these two treaties actually directly create any rights. So there is something
of a mirage or, at the very least, pretty exaggerated claims cast over the whole presentation of language rights and their recognition and application. In addition, as indicated
earlier, the other treaties that deal very timidly with either legal protection for endangered languages (such as the UNESCO Convention for the Safeguard of Intangible Cultural
Heritage) or legal recognition of rights or obligations for the protection or promotion of
linguistic diversity (with the UNESCO Convention on the Protection and Promotion of the

21 J.G.A. Diergaardt (late Captain of the Rehoboth Baster Community) et al. v. Namibia, Communication No. 760/1997, U.N.
Doc. CCPR/C/69/D/760/1997 (2000).
22 Cyprus v. Turkey, 25781/94, European Court of Human Rights, 10 May 2001.

23 Re Manitoba Language Rights, [1985] 1 S.C.R. 721 (Canada).

Fernand de Varennes. The Human Rights Dimension and Challenges of Linguistic Rights

49

Diversity of Cultural Expressions) frankly do nothing that could inhibit state practices

relation to some human rights, restricted how an official language can be applied to in-

against the use of minority or indigenous languages, since they do not as create legal

dividuals, as can be seen with this extract from one of the UN Human Rights Committees

obligations on a government that would restrict practices or laws that are contrary to the

relatively recent communications:

promotion or protection of languages, nor do they create rights for individuals or com-

6. The suggestion implicit in the argument of the authors as set out in para-

munities that might be invoked against state authorities who are repressive of languages.

graphs 3(4) and 3(5) is that the State party should have languages as Af-

There continues to be an inherent tension, even a clear antagonism, against mi-

rikaans in administration, Courts, education and public life and that the

nority languages or human rights interpreted in such a way so as to result in linguistic

absence of such legislation in the context of making English the official lan-

rights, at least in the minds of politicians, judges, and lawyers from a number of countries

guage was violative of the Covenant. But this suggestion overlooks the fact

for whom the only way there can be language rights is through language legislation. This

that it is for a State party to decide what shall be its official language and

is part of a mistaken belief that once a state has decided on an official or state language

it is not competent to the Committee to direct the State party to adopt any

policy there can be no use of any other language that would contradict the status given

other language or languages as official language or languages of the State.

to this language, especially not in relation to the use of other languages by state author-

Once a State party has adopted any particular language or languages as its

ities. For them and indeed the majority view in many of the worlds political and legal

official language or languages, it would be legitimate for the State party to

systems, there are no language rights outside of official language policies or some other

prohibit the use of any other language for official purposes24

type of linguistic legislation: point de loi, point de droit. To this day, it is not uncommon

The position taken by a number of dissident members of the Human Rights Com-

to hear judges and lawyers from many countries repeat what they were instructed to

mittee above is to the effect that a language must be official in order to be used in state

believe in law school: there are no language rights outside of a states own legislation.

administration, justice, and education. However, the decision to make a language official

At the same time there is the mistaken belief that a government may adopt any policy it

is at a states discretion, and the international obligations under this treaty do not allow

chooses in relation to a language that has been chosen as official.

any intervention on such a decision. But the dissident views in Diergaardt do not stop

To emphasise the point made earlier in relation to the changes enacted in international law since the end of the Second World War, these points of view of a number of

the circular specifically referred only to Afrikaans and not to the other lan-

legal practitioners and political leaders are wrong because they are based on the false

guages. This is also evident from the statement in the circular that Afrikaans

premise that no human rights or international law except perhaps for a few treaties

now enjoys the same status as other tribal languages. It is therefore not cor-

such as the Framework Convention on the Protection of National Minorities create any

rect to say that the circular singled out Afrikaans for unfavourable treatment

right applicable over the choice of an official language. At most, politicians, judges, and

as against other languages in that there was hostile discrimination against

lawyers with this traditional viewpoint might admit there is a kind of language right for

Afrikaans. We consequently hold that there was no violation of the principle

minorities in Article 27 of the International Covenant on Civil and Political Rights, which

of equality and non-discrimination enshrined in article 26.

says that a person who is a member of a linguistic minority can speak their language with

Having decided that English is the countrys only official language, and since the

Integration andExclusion

other members of their group.

50

there:

covenant cannot be used to affect a states choice of what language is to be official in

Unfortunately, what has happened in recent years in countries like the Ukraine

a country, English disappears completely in the reasoning of these members of the

and Estonia in relation to the Russian language, in Thailand in relation to the Malay lan-

Human Rights Committee: one cannot even consider whether there might be an issue of

guage, in Namibia in connection with the Afrikaans language, and in Syria with the Kurd-

discrimination involving the exclusive use of English, since it is official. English thus be-

ish language, is the continuation of the official language fallacy that because Ukrainian,

comes invincible or invisible, therefore according to them it is only possible to consider

Estonian, Thai, Arabic, and English are the only official languages of those countries,

an issue of discrimination between Afrikaans and other languages, which was not the

governments are perfectly entitled to reject the use of any other languages and there is

claim being raised by the claimants in Diergaardt. Most members of the Human Rights

nothing that may affect this choice. This explains the extreme difficulty more traditional
jurists and political leaders have in understanding that international law has, at least in

24 J.G.A. Diergaardt (late Captain of the Rehoboth Baster Community) et al. v. Namibia, Communication No. 760/1997, U.N.
Doc. CCPR/C/69/D/760/1997 (2000).

Fernand de Varennes. The Human Rights Dimension and Challenges of Linguistic Rights

51

Committee disagreed and concluded that since there was no reasonable justification for

international community. International law is after all the result of a compromise and

the exclusive use of English by state authorities to the exclusion of Afrikaans even if it

consensus among states, and for this reason there are divergent legal documents that

was the countrys only official language under the constitution this difference of treat-

focus on language indirectly (through human rights protections) or more directly but

ment on the ground of language was discriminatory and in violation of Article 26 of the

rarely on languages themselves. There is undeniably a panoply of recent pronounce-

International Covenant on Civil and Political Rights.

ments at the international level that reflect a move towards an increased acceptance of
measures aimed at recognizing the importance of language issues, and even their protection, but instead of any common thread there are in fact three distinct trends one can

5. Conclusion
As humankinds principal means of communication, languages do not merely
convey messages; they also express emotions, intentions and values, confirm social relations and transmit cultural and social expressions and practices. In spoken or written form, or through gesture, languages are the vehicle of memories, traditions, knowledge and skills. Consequently, language
constitutes a determining factor of identity for individuals and groups. The
preservation of the linguistic diversity of the worlds societies contributes
to cultural diversity, which UNESCO considers a universal ethical imperative
and essential for sustainable development in todays ever more globalizing
world.25
It is clear that the choice of an official language is not affected in any way by international law. While a state is free to choose its own official language(s), it must still
comply with international legal standards. This does not mean that other languages must
be designated as official. What has emerged in terms of international legal standards is
a growing acknowledgement at least in relation to human rights that state policies or
legislation cannot violate international law, and in some cases it may mean that a state
may have to use other languages, in addition to an official language, regardless of their
status in that country.
The past three hundred years or so have nevertheless seen a dramatic increase in
the disappearance of languages, leading to the situation today. This phenomenon is one
that should be kept in mind, as our humanity is in some respects defined by language:
Integration andExclusion

human beings are language animals. International law has only just begun to impose

52

legal obligations that directly affect language matters, though it should be emphasized
that this is not part of a coherent or consistent ideology or response on the part of the

identify from these:


International Mother Tongue Day (21 February)
European Day of Languages (26 September)
2008 International Year of Languages
2001 European Year of Languages
UN Declaration on the Rights of Indigenous Peoples
UNESCO Universal Declaration on Cultural Diversity
2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions
Framework Convention on the Protection of National Minorities
European Charter for Regional or Minority Languages
Oslo Recommendations on the Linguistic Rights of National Minorities
The Hague Recommendations on the Educational Rights of National Minorities, etc.
Of course, it is impossible for a state to be absolutely neutral in terms of linguistic preferences inherent in language policies. All governments must use at least one
language to conduct of their affairs and to communicate with their population. But by
preferring an official, national, or dominant language, the state is at the same time giving an advantage to and favouring those individuals who are fluent in this language or
language(s) and excluding or disadvantaging others who are not. The reality in most
countries of the world is that some part of the population, usually a linguistic minority
or indigenous population, has a language that is different from the official or dominant
language. This often means that individuals can be disadvantaged by a governments
choice of official or preferred language(s). Whether it is a policy in relation to an official
language or language planning in order to revitalize a language, all planning or policies
involve some form of linguistic preferences.
The main point is that in recent years international law has developed in such a
way that governments no longer have carte blanche in relation to language policies and
planning. They have legal and political even moral obligations to respect and, in spe-

25 Rieks Smeets, Language Matters, The Intangible Heritage Messenger Special Issue on Endangered Languages, September 2006, UNESCO, Paris, p. 1.

cific circumstances, to use other languages, and for practical reasons this most often will

Fernand de Varennes. The Human Rights Dimension and Challenges of Linguistic Rights

53

involve minority languages. The reasons for this are diverse but mainly follow three basic
trends: situations where human rights obligations directly or indirectly impact language
use and preferences, the protection and promotion of linguistic diversity, and attempts
to protect endangered languages. All three of these strands potentially restrict in some
way the kind of language decisions and preferences governments may adopt; in other
words, it is no longer sufficient to claim that a state may restrict the use of other languages in the name of the countrys official language: international law must always be
complied with, and there may be situations where a governments official language policy
goes too far.
From a language point of view, it could be asserted that we now live in a period of
tolerance and respect for diversity and human rights, including rights that have a linguistic dimension or impact, and this means that the type of language policies and planning
in place must conform to certain standards that affect language, whether it is based on
respect for human rights, respect for diversity, or safeguarding of endangered languages.
Language rights, or some aspects of some of them, are thus part of human rights and international law, even if it is not yet well understood or appreciated. The way non-discrimination has started to be interpreted by the UN Human Rights Committee and it must be
emphasised that this is only a beginning, because most jurists would not be aware of or
agree with the Human Rights Committee particularly opens up a new and perhaps powerful legal tool to address the need for a greater use by government authorities of some
languages. This will be part of a continuing evolution that will take many more years to
coalesce and be clarified, but at least this evolution offers an increasing degree of hope

Integration andExclusion

for the future, and for linguistic diversity.

54

How Serious are the Violations


of Minorities Linguistic
Rights in Contemporary
EuropeanStates?
Lauri Hannikainen

1. Minorities Linguistic Rights


And European States Obligations
1.1. Introduction
Most European states have among their population linguistic minorities, i.e. ethno-linguistic minorities that have manifested the will to preserve their native language and
culture. It is the common view among European states that they recognize the minority
rights only of old minorities that have existed in their country of residence for many
decades.
Many of these linguistic minorities are small, comprised of only between a few
hundred and less than ten thousand members. Many European states are unwilling to
expend any sizable resources to help these minorities preserve their languages as viable
ones. If a small minority exists only in one country, its language can indeed be regarded
as vulnerable and in danger of disappearing in the course of this century.
There are also sizable minorities that make up between 10 and 25% of the population in a country. In some countries they consist of millions of persons; for example,

Lauri Hannikainen. How Serious are the Violations of Minorities Linguistic Rights in Contemporary EuropeanStates?

57

the fifteen million Kurds in Turkey make up nearly 20% of the whole population. Such mi-

The FCNM is a broad framework convention; that is, many of its provisions are at

norities, even those making up only 5% of the population, have good grounds to demand

least partially programmatic in character. The prevailing view is that, as a framework

that their native language have at least a semi-official status, at least in those territories

treaty, its provisions are generally not considered directly applicable in domestic law

where their members live in substantial numbers.

unless specifically legislated to this effect. This characteristic of the FCNM can be seen in

This chapter focuses on the rights of minorities to use and learn their native languages, not on their right to learn the national language of their country of residence.

the work of its factual monitoring organ, the Advisory Committee.2 The committee seldom
states directly that a state has violated its obligations under the convention, instead using softer language in its recommendations for improving the situation. However, there

1.2. Most Important Conventions



that Protect Minorities Linguistic Rights
On the universal level, an important convention is the 1966 International Covenant on
Civil and Political Rights, which has been ratified by about 170 states. The covenant has
one article on minority rights, Article 27, which stipulates that persons belonging to ethnic, religious, or linguistic minorities shall not be denied the right, in community with the
other members of their group, to enjoy their own culture, to profess and practice their
own religion, or to use their own language.
The use of the words shall not be denied in Article 27 seems to promise fairly little
to minorities. In essence, it means that the state shall not create norms or take action
preventing minorities from using the rights provided by the article. However, the monitoring organ of the covenant, the Human Rights Committee, has interpreted Article 27 in
a more demanding way for the ratifying parties: a state party is under an obligation to
ensure that the existence and exercise of minority rights is protected against violation by
any actor. Positive measures may also be necessary to protect the identity of a minority
and the rights of its members.1
An overwhelming majority of European states have ratified the covenant. However,
France entered a reservation to Article 27. Also, Turkey and Greece have made it known
that they recognize minorities only on the basis of the 1923 Lausanne Peace Treaty; this
means that Turkey and Greece have a very limited understanding of minority rights (see
below).
If the covenant is representative in a universal context, the 1995 Framework Convention for the Protection of National Minorities (FCNM) is representative in a European

Integration andExclusion

context. Out of forty-seven member states of the Council of Europe (CoE), thirty-nine

58

have ratified the FCNM. It contains a number of provisions on the linguistic rights of per-

are also a number of cases where the violation is pointed out directly.
From the perspective of this article, especially important in the FCNM are the following:
The prohibition of discrimination of persons belonging to minorities has a
normative content (art. 4).
The ratifying states undertake to promote the conditions necessary for national minorities to maintain and develop their culture and to preserve
the essential elements of their identity, including language and traditions
(art.5).
The right of persons belonging to minorities to freely use their native language in their mutual interaction in private and in public, both orally and
in writing, is a clearly spelled out (art. 10). This is strengthened by the universal human right to freedom of expression (also confirmed in art. 7).
The right of minorities to set up and manage their own media and private
educational institutions is clearly spelled out. To realize this right requires
substantial financial resources. States do not have an obligation to provide
those finances (arts. 9 and 13).
In areas inhibited by persons belonging to a minority traditionally or in
substantial numbers, if those persons so request and where such a request
corresponds to a real need, the state parties shall endeavor to ensure, as
far as possible, the conditions that would make it possible to use the minority language in relations between those persons and the administrative
authorities or offer persons belonging to minorities adequate opportunities for being taught the minority language or for receiving instruction in
this language (arts. 10[2] and 14[2]). One may well argue that these provisions create obligations for states, even though the terminology used

sons belonging to minorities. It should be noted that France, Turkey, and Greece have not
ratified the FCNM.
1 See the Human Rights Committees General Comment on Article 27 in 1994, GC No. 12 (21), UN Doc. CCPR/C/21/Rev.1,
paras. 5.3-6.1.

2 Good publications analyzing the Framework Conventions provisions on language rights include the Advisory Committees Thematic Commentary No. 3, the Language Rights of Persons Belonging to National Minorities under the Framework Convention, adopted on 24 May 2012, and Marc Weller (ed.), The Rights of Minorities A Commentary on the European Framework Convention for the Protection of National Minorities, (Oxford University Press, Oxford, 2005), 153-176
and 263-428.

Lauri Hannikainen. How Serious are the Violations of Minorities Linguistic Rights in Contemporary EuropeanStates?

59

(states shall endeavour to ensure, as far as possible) is far from strict.

concentrate on areas inhabited by persons belonging to a minority traditionally and/

See below for how these provisions have been interpreted.

or in substantial numbers. What if a state completely disregards those provisions? This

Article 11(3) also deals with traditional minorities in substantial numbers


as far as the display of traditional local names and other topographical

could well be regarded as a serious violation, at least for those states that have ratified
the FCNM.

indications in the minority language. This provision is narrower than the


two above-mentioned provisions. Namely, it stipulates areas traditionally
inhabited by substantial numbers, meaning that a minority must have inhabited a given area both traditionally and in substantial numbers. A minority fulfilling this joint criterion has good legal grounds to demand that
its language be seen in topographical indications.
The title of another European convention, the European Charter for Regional or
Minority Languages (Language Charter), raised interested hopes. However, several factors
diminish those hopes. First, the charter has been ratified by only twenty-five states significantly less than the FCNMs thirty-nine ratifiers. Among the non-ratifiers (besides the
above-mentioned three states) are Estonia and Latvia. Second, the charter is a so-called
menu-convention. It is for the ratifying states to choose freely those languages for which
they assume specific obligations. With regard to other minority languages, they only have
fairly general obligations per Article 7, which uses very little normative language. A third,
smaller factor is that the charter is not a human rights convention but a convention for

On the basis of the above, it is advisable to look in more detail into Frances, Turkeys,
and Greeces policies with regard to minority languages. After that, Estonias and Latvias
policy will be examined, because it has been subject to lively international discussion.
Then, Ukraines policy will be addressed, since Russia made it one of its declared justifications for separating Crimea from Ukraine and annexing it to its own territory.

2.2. France
France is known to emphasize French both at home and internationally. The French Con-

1.3. Serious Violations of Linguistic Rights?

in France are fairly small, the biggest being clearly less than 2% of the whole population.

The answer is affirmative, but the prohibition with regard to language appears to be fairly
limited. States have broad possibilities for treating different minority languages differently; for example, they can freely choose those languages for which they assume specific
obligations under the European Charter.
It is clear that the prohibition to use or learn a language under the threat of a penalty is a serious violation of human rights, especially the right to freedom of expression
but also the prohibition of discrimination.3 States have no sensible grounds to prohibit
a minority language.
Integration andExclusion

2.1. Introduction

the protection and promotion of regional and minority languages.

Is discrimination against minority persons on the basis of language a serious violation?

60

2. Examination Of Selected States

How about complete disregard of legal obligations in relation to a minority


language? Let us think at those three provisions (arts. 10,11 and 14) in the FCNM that
3 See two cases from the Human Rights Committee: HRC Communications Nos. 359/1989 and 385/1989, John Ballantyne
et al. v. Canada, views of 31 March 1993, CCPR/C/47/D/359/1989 and CCPR/C/47/D/386/1989; and HRC Communication
No.760/1997, J.G.A Diergaard et al. v. Namibia, views of 25 July 2000, CCPR/C/69/D/760/1997.

stitution provides that French is the language of the state. Old ethno-linguistic minorities
One should mention that the languages of the Alsatians, Corsicans, Bretons, Basque,
Gallo, Franco-Provencal, Occitan, and Catalan have a certain official status in the regions
where they are spoken. In that context, they are called regional languages. Speakers of
these languages make up some two to four million persons.4
As in many other countries in the last century, up to its last decades, in France
minority languages were regarded as primitive. Many of the speakers of these languages
wanted to avoid censure and thus spoke only French in public. Later, however, the willingness of persons belonging to minorities to learn and speak their native languages has
increased significantly. They now remember Article 75 of the constitution, according to
which regional languages are part of Frances heritage.
It is now possible for speakers of regional languages to study their native language
at schools in their own regions, to varying degrees. The European Commission against
Racism and Intolerance (ECRI) stated in 2004 that it notes an improvement in the area
of teaching of regional languages in Frances schools; pupils who so desire find more
4 Excluded are Frances overseas territories.

Lauri Hannikainen. How Serious are the Violations of Minorities Linguistic Rights in Contemporary EuropeanStates?

61

and more opportunities to study these languages. These opportunities range from in-

response from the authorities trying to suppress the rebellion was harsh, and the armed

troductory courses to bilingual schools and cover languages such as Breton, Basque and

struggle has continued for many years. There have also been years of de facto ceasefires,

Alsatian. The ECRI encouraged the French authorities to intensify their efforts to have

but recently the violence has resumed.

regional languages taught at school. Notwithstanding the optimistic tone of ECRI, it must

Turkey recognizes the minority status only of certain religious minorities. This rec-

be recognized that most teaching of regional languages takes place in private schools

ognition is based on the 1923 Lausanne Peace Treaty. In it, Turkey and Greece mutually

because of various obstacles set by the authorities for public schools. Such obstacles are

recognized the Greek Christian minority in Turkey and the Turkish Muslim minority in

least apparent in Corsica.

Greece. Turkey also recognized the Jewish and Armenian religious minorities. It is some-

France signed the Language Charter in 1999 but has not ratified it. There have been

how Turkeys understanding that societal development stopped in 1923 and that there

efforts to enable France to ratify the charter. The most determined effort was made by

is no need to recognize any other minorities. International human rights organs have

the present Hollande regime, whose proposal on the amendment of the constitution the

criticized Turkey heavily for its policy with regard to a number of ethnic and linguistic

French Parliament accepted by votes 361 for and 149 against. However, amendment of the

minorities, foremost with regard the Kurds.

constitution requires additional formal procedures. Thus, only the near future will show
whether the government succeeds in its effort to ratify the charter.

In the 1990s, Turkeys attitude towards the Kurds slowly became more positive. A
clear change came at the beginning of this century. Turkey deleted the sentence no lan-

It appears very possible that in future years the position of regional languages in

guage prohibited by law shall be used in dissemination of thought from articles 26 and

France will improve. The present restrictions of minorities linguistic rights would not be

28 of its constitution, permitted private language courses for teaching and broadcasting

characterized as serious violations, but France should continue its policy to improve the

languages and dialects traditionally used by Turkish citizens in their daily lives, and al-

position of regional languages in order to meet the recommendation of the ECRI.

lowed parents to give Kurdish names to their children. It appears that the changes were
motivated by Turkeys candidacy to the EU (in 1999), the improving position of the Kurdish

2.3. Turkey

minorities in Iraq and Syria, and the increased role of pro-Kurdish parties in governing

In Turkey there is a sizable ethno-linguistic minority, the Kurds (fifteen million). Tradition-

TV channel TRT-6 started broadcasting in Kurdish 24 hours a day in 2009. A Kurdish section

ally, they are from eastern and southeastern Turkey, but at present about half of them
have spread over the territory of Turkey. However, their stronghold is in their traditional
territory. Until recently, the Kurdish language (which is very different from Turkish) was
completely prohibited. For example, if two persons were conversing in Kurdish on a bus,
and this was found out be the authorities, a fine was imposed. This was grossly against
universal and European standards.
Turkish leadership aimed to create a solid Turkish nation with only one language.
This goal was the cornerstone of the Republic of Turkey. The Kurds protested against
compelled assimilation, and there emerged a strong resistance movement among them.
The Kurdish Workers Party (PKK) began armed rebellion against the authorities in eastern

Integration andExclusion

Turkey. The PKK demanded regional autonomy and recognition of the Kurds as a national

62

minority, including recognition of Kurdish as a valid regional and minority language. The
5 ECRI Report on France (Third Monitoring Cycle), adopted on 25 June 2004, published on 15 February 2005, CoE Doc. CRI
(2005)3, paras. 80 and 85. ECRI is not a treaty-monitoring organ but has a broad mandate from the Council of Europe
to follow and comment on matters relating to racism, xenophobia, the rights of various numerical minority groups,
and intolerance. It its country reports ECRI addresses problems in those fields and presents its recommendations to
governments. I was a member of ECRI in 2000-2014.

municipalities. Some further improvements followed between 2009 and 2014. The public
at the Institute of Living Languages at Madrin Artuklu University was established with the
primary purpose of meeting the need for teachers of Kurdish language courses, and an
undergraduate-level Kurdish Language and Culture Department was soon established at
the same university.6
In 2012, the government announced that Kurdish could be taught as an elective
course in the fifth through seventh grades for two hours a week in public schools. This
marked a historical moment for the position of Kurdish in the Turkish educational system. In 2014, the parliament approved a democratization package that inter alia allowed
for the restoration of non-Turkish village names.7
The change of Turkish policy with regard to the Kurdish language has been hailed in
Europe as a positive sign. However, pengin and Cemiloglu have produced evidence that
in practice there have been many obstacles complicating the implementation of these
new provisions. It is evident that in many ways authorities have tried to complicate this
6 See Ergin pengin, The Changing Status of Kurdish in Iraq and Turkey: A Comparative Assessment, Singapore Middle
East Papers No. 8/3, 15 January 2015, 11-16.
7 Ibid., 15.

Lauri Hannikainen. How Serious are the Violations of Minorities Linguistic Rights in Contemporary EuropeanStates?

63

realization. A 2015 article by pengin admits that the recent relaxation of restrictions

Additionally, the most recent commentary by an international organization on Turkeys

marks a turn in the states approach to Kurdish from outright denial to limited recogni-

policy with regard to minority languages the country report from 2010 by ECRI is un-

tion of some cultural rights; he argues, however, that assimilation as the foundational pil-

fortunately not very recent. In it, the ECRI recognizes a number of reforms made by Tur-

lar of Turkeys language policy has not ended. He appeals on three grounds: First, Kurdish

key but regrets that administrative obstacles have complicated the realization of these

is still systematically unrecognized in the legal framework. The use of Kurdish in public

reforms in practice.11

domains is dependent on the prevailing attitude of the government in power. Second,

Definitely, Turkey must still improve quite a bit before minority rights in Turkey

the de facto nature of the process has led to numerous inconsistencies in the implemen-

reach a satisfactory level. Turkey has not given recognition to the Kurds as a national

tation of these rights. Examples: the Ministry of Education did not appoint newly trained

minority. There are many provisions in Turkish legislation that do not signify any kind

teachers of Kurdish from the Mardin Artuklu University as teachers of Kurdish in schools

of new thinking in favour of Kurdish or other minority languages. One such provision

but instead chose less competent teachers. Many schoolmasters have prevented or seri-

is to be found in Article 42 of the constitution, according to which no language other

ously discouraged students and parents from opting for Kurdish courses. Private courses

than Turkish shall be taught as a mother tongue to Turkish citizens at any institutions of

in Kurdish have faced many difficulties, from administrative obstacles and restrictions to

training or education (unless Turkeys treaty obligations provide otherwise, i.e. the 1923

high costs. In 2005, they all were closed down. Third, Turkish has been emphasized as the

Lausanne Treaty). This provision is too strict and goes against international and European

sole language offering social mobility and economic success. Many Kurdish parents have

standards. Turkeys minority policy is still quite seriously infringing upon international

believed these assurances and not chosen Kurdish courses for their children. pengin

standards.

concludes his analysis as follows:

The near future, at least, may see no progress and in fact may turn the wheel

A foundational Turkish state ideology, based on the unassailable supremacy

back. In the parliamentary elections earlier in 2015, a Kurdish party was able to exceed

of the Turkish language as the legitimate code of public life, from schooling

the threshold of 10%, thus getting a handsome number of deputies to parliament. The

to politics to the marketplace, still operates at all levels of language policy

outcome was that President Erdogans AKP party failed in its effort to win over 50% of

making. In the absence of fundamental revision of Turkish cultural-political

the seats of parliament. Erdogan took a hostile attitude towards the Kurds in his effort to

nationalism at all institutional levels, recent changes to Turkeys language

downgrade the Kurdish party, so that in next parliamentary elections it will be less able

policy will do little to reverse the widespread linguistic assimilation of Tur-

to meet the 10% threshold. Those elections are due to take place on 1 November 2015. As

keys Kurdish population. I argue, despite their claims to do otherwise, the

the overwhelmingly biggest party, AKP could manoeuver to prevent the establishment of

government initiatives described in this essay are aimed less at eradicating

any new government; the outcome was that new elections have to be arranged.

linguistic assimilation than at extending it in new, more subtle, and more


palatable ways.9
Demiloglu considers the reforms in Turkey groundbreaking but also recognizes that
many obstacles have emerged on the way to realizing them in practice. He reminds us
that a campaign conducted by university students to allow the teaching of Kurdish as a
second language in schools landed seventy-eight students in jail.10
Since Turkey has had and still has many serious human rights problems, and since
many international human rights monitoring organizations have no mandate to examine
Integration andExclusion

Turkeys record, international organizations comments as sources are not very valuable.

64

8 Ibid, 12-20.

2.4. Greece
Greece understands its obligations with regard to minorities in the same way as Turkey;
that is, Greece relies on the 1923 Lausanne Peace Treaty. According to this treaty, Greece
shall respect the religious freedom of the Muslim minority and shall provide education
in this minoritys own language. Greece considers this Muslim minority the only minority
whose rights it has to respect. Most of its members live in the province of Western Thrace
(100,00 to 120,00). The World Directory of Minorities and Indigenous Peoples indicates
that about 1.3% of the national population is classed as Muslims. Most identify as Turks,

9 Ibid. 23.
10 Dicle Demiloglu, Language Policy and National Unity: The Dilemma of the Kurdish Language in Turkey, 30 March 2009.
CUREJ: College Undergraduate Research Electronic Journal, University of Pennsylvania, at http://repository.upen.edu/
curej/97, 58-74.

11 ECRI Report on Turkey (Fourth Monitoring Cycle), adopted on 10 December 2010, published on 8 February 2011, CoE Doc.
CRI(2011)5, paras. 60-63 and 115-119.

Lauri Hannikainen. How Serious are the Violations of Minorities Linguistic Rights in Contemporary EuropeanStates?

65

although some of them are of a different origin, such as Roma, Pomaks, or Muslim-Slavs.

independence in 1940 and were part of the Soviet Union until the beginning of the 1990s.

Greece provides education to them only in Turkish (in addition to Greek).

They both retained their native languages besides Russian. In the course of fifty years,

12

Among international human rights organizations, the ECRI and the Committee on

the importance of Russian grew, whereas the role of these two native languages corre-

the Elimination of All Forms of Racial Discrimination (CERD), which monitors the obser-

spondingly diminished. When independence was restored, it was understandable that

vance of the Convention on the Elimination of All Forms of Racial Discrimination, have

Estonia and Latvia felt the need to strengthen the position of their national languages.

analyzed the state of linguistic rights of minorities in Greece, broadly and in a similar

That has been one central effort of these states during the second independence. In

way. Both organizations regret that the educational standards in the minority schools in

their efforts to integrate/assimilate minorities into national society, a leading goal has

Western Thrace are low, since their teachers are not adequately trained to teach in either

been to increase the capability of persons belonging to minorities to master the national

Turkish or in Greek. Pupils often have to give up their right to bilingual education if they

language.

wish to access the better-quality education provided in monolingual Greek schools. One

When Estonia and Latvia regained their independence, they had sizable Russian

additional difficulty is that there are no Turkish-speaking pre-schools in Western Thrace.

numerical minorities among their populations. Whereas other Soviet Republics that be-

The ECRI expressed satisfaction with the existing university quota of 0.5% for members

came independent granted citizenship to all persons living in their territory, Estonia and

of the Muslim minority in Western Thrace. Going beyond Western Thrace, the ECRI es-

Latvia opted for a different solution. They confirmed the citizenship of all persons who

timated (in 2003) that persons wishing to express their Macedonian, Turkish, or other

had been citizens at the time of the loss of independence in 1940, plus their descendants.

identity incur the hostility of the population and are targets of prejudices and discrim-

Citizenship was also granted to all other ethnic Estonians/Latvians living in Estonia/Latvia

ination. CERD called upon Greece to have dialogues with Roma, Pomak, Albanian, and

and to persons who had performed valuable services for Estonia/Latvia. Other residents

other minority groups for the purpose of expanding the range of multilingual educational

were non-citizens. If they wanted to seek Estonian/Latvian citizenship they had to fulfil a

programmes.

number of criteria, one of which was satisfactory mastering of the national language. This

13

14

It is clear that Greeces record of respecting minority standards is not good, since

mastery had to be proven in a written examination. Many non-citizens sought citizenship,

it has tied its minority policy solely to a treaty that is more than ninety years old. Greece

and most of them have received it. However, it was especially difficult for elderly Russians

should be ready to recognize that there are more ethnic and linguistic minorities in

who had not learned Estonian/Latvian in the years prior to independence to learn these

Greece than were recognized in 1923. The factual situation in Western Thrace is not bad,

languages in old age. A substantial number of Russians took Russian citizenship but con-

since most person belonging to ethnic minorities recognize themselves as Muslim Turks.

tinued to live in Estonia/Latvia as permanent residents.

However, this is certainly not enough, because there are many linguistic minorities elsewhere in Greece than in Western Thrace.

In 2015, Estonia has a little less than 80,000 non-citizens of Russian origin; Latvia
has more than 170,000. Thus, in Estonia they make up 6.1% and in Latvia about 8% of the
whole population. Whereas their status and position in society cannot be characterized

2.5. Estonia and Latvia

as poor, their ability to participate in political life is very limited, and as a group their

2.5.1. Introduction

nority population without Estonian citizenship makes up some 13%, and those without

These two countries are discussed together because they share many common char-

some 25% of the whole population and in Latvia close to 30%. In Latvia, their percentage

Integration andExclusion

acteristics in their treatment of their Russian minorities. Both countries lost their

66

12 Minority Rights Group International, World Directory of Minorities and Indigenous Peoples Greece : Turks and Pomaks,
2008, at http://www.refworld.org/docid/49749d172d.html[accessed 24 August 2015].
13 For ECRI, see its Reports on Greece (Third Monitoring Cycle), adopted on 2 5 December 2003, published on 8 June 2004,
CoE Doc. CRI(2004),24, paras.81 and 89, and (Fourth Monitoring Cycle), adopted on 2 April 2009, published on 15 September 2009, CoE Doc. CRI(2009)24, paras. 119-124.
14 For CERD, see its Concluding Observations on Greece, adopted on 22 March 2001, UN Doc. CERD/C/304/Add.119, para.14,
and 2009, UN Doc. CERD/C/GRC/Co/16-19, para. 17.

living conditions, including their income, are below average. Altogether, the Russian miLatvian citizenship just under 12%. Altogether, in Estonia the Russian minority makes
in Riga, the capital, is over 40, and in Daugavpils over 50. One major phenomenon in Estonia is that in the northeastern part (Ida-Virumaa Province) near the border with Russia
over 70% of inhabitants are Russians.
In the years after the restoration of independence, many Russians have received
citizenship of these countries of their residence and learned the national language.
Learning the language has been natural to school pupils and students. The result has

Lauri Hannikainen. How Serious are the Violations of Minorities Linguistic Rights in Contemporary EuropeanStates?

67

been that the status and position of Russian minorities has improved, but there are

Advisory Committee of the FCNM is critical of Latvias and Estonias policies in light of

several points of worry. A leading one is that in both countries the Russian community

Article 10(2) of the FCNM, which calls upon the ratifying parties in areas inhabited by per-

and the Estonian/Latvian community live apart, in different worlds. The Russians fol-

sons belonging to a national minority traditionally or in substantial numbers to endeavor

low mainly the media of Russia or the media in the hands of local Russians, whereas

to make it possible for speakers of that minority language to use it in their relations with

the national population follows their own national media. Only a very limited number of

administrative authorities.18

15

Russians and Estonians/Latvians follow a common media.

Both Estonia and Latvia have a national inspectorate to check that all public of-

Separation also prevails in the school sector. Both in Estonia and in Latvia, pupils

ficials use only the national language in an official capacity and speak it sufficiently

belonging to the majority population go to schools where the language of instruction is

correctly. This organization has the authority to impose fines on those officials who do

Estonian/Latvian, whereas most Russian pupils go to Russian-speaking (public) schools.

not meet these criteria. The Advisory Committee considers both countries application

In Riga, there is one bilingual school, but it is the only one in Latvia, and in Estonia there

of the system quite harsh and has called upon them to give up this stick approach and

are none. One may wonder why these states have not been interested in organizing more

seriously consider dissolving the language inspectorate.19

bilingual schools in order to promote integration. It should be pointed out that there
is nothing inherently wrong under international law when pupils with different native

One passage from the Council of Europes Committee of Ministers resolution on


Latvia well summarizes the Advisory Committees opinion:

languages go to those schools where the language of instruction is their native language

The use of Latvian is mandatory in all official communication and the State

and thus live in separate communities. However, this system may cause difficulties if

Language Centre continues to monitor implementation, imposing sanctions

the national society in which they live suffers from lack of integration as is the case in

and fines for lack of compliance which exacerbates existing tensions sur-

Estonia and Latvia.

rounding language rights. The list of professions demanding high levels of


Latvian language proficiency continues to be extended, including in the pri-

2.5.2. Predominance of the National Language


Estonia and Latvia appear to have taken quite a harsh line in their effort to integrate
their sizable Russian minorities into national society, using more stick than carrot.16
A prime example is the language policy that strongly favours the national language. In
both states, the national language is the sole official language. In all official meetings in
Latvia, the only language that may be used is Latvian.17 Estonia provides for limited use
of a minority language in areas where that minority makes up at least 50% of the population. In practice, Russian has a very limited role even in the Ida-Virumaa Province. The

Integration andExclusion

15 See Aivars Tabuns, Identity, Ethnic Relations, Language and Culture, in Nils Muiznieks (ed.), How Integrated Is Latvian
Society? (University of Latvia Press, Riga, 2010), 253-278, and also 282 in the books concluding chapter.

68

16 My main sources analyzing Estonias and Latvias contemporary policies with regard to their Russian minorities are the
comments by the Advisory Committee of the FCNM: Third Opinion on Estonia, adopted on 1 April 2011, published on 7
November 2011, CoE Doc. ACFC/OP/III(2011)004, especially paras. 89-162 and Executive Summary; and Second Opinion
on Latvia, adopted on 18 June 2013, published on 3 January 2014, CoE Doc. ACFC/OP/II(2013)001, especially paras. 15-18,
76-122 and 145-158 and Executive Summary. The report on Estonia is more outspoken than that on Latvia. Regarding
Latvia, a good summary is made by the Council of Europes Committee of Ministers, Resolution CM/ResCMN(2014)9 on
the implementation of the Framework Convention for the Protection of National Minorities by Latvia, adopted on 9 July
2014. See also the ECRIs report on Estonia (fourth monitoring cycle), adopted on 15 December 2009, published on 2
March 2010, (CRI(2010)3), paras. 76-90, and on Latvia (fourth monitoring cycle) adopted on 9 December 2011, published
on 21 February 2012, (CRI(2012)3), paras. 70-74.
17 Estonia makes in law an exception for local areas where at least 50% of the population belongs to a minority. Even in
such cases, permission is needed from central authorities to use the minority language alongside Estonian. The Advisory Committee reports that no such permissions have been given (para. 113). Consequently, public meetings even in
Ida-Virumaa must be conducted in Estonian.

vate sector. There is insufficient awareness among minority communities as


well as the population at large about the conditions and terms under which
the use of minority language is permitted.20
Another sign of the stick approach is the recent requirement that, in the upper
secondary level of all minority schools, 60% of all subjects be taught in the national language. This system was imposed very rapidly a few years ago and resulted in many problems, since many Russian teachers were not suficiently capable of mastering the national
language.21 The result was that the standard of teaching in Russian-speaking schools
dropped and was no longer meeting the standard accomplished by Estonian and Latvian
schools. This encouraged Russian parents to seriously consider whether it would be advisable to place their children in Estonian/Latvian-speaking schools in order to ensure a
good education for them. A number of them chose that option, to the further detriment
of Russian schools. This is apparently what the national authorities hoped for.
The Advisory Committee of the FCNM reports that Estonian and Latvian authorities
have made efforts to teach Russian-speaking teachers to improve their mastery of the
18 Concerning Estonia, paras.104-109, and concerning Latvia, paras.85-88.
19 Concerning Estonia, paras.112-116, and concerning Latvia, paras. 92-93.
20 Committee of Ministers, Resolution CM/ResCMN(2014)9 on the Implementation of the Framework Convention for the
Protection of National Minorities by Latvia, adopted on 9 July 2014.
21 Concerning Estonia, paras. 150-154, and concerning Latvia, paras. 105 and 113.

Lauri Hannikainen. How Serious are the Violations of Minorities Linguistic Rights in Contemporary EuropeanStates?

69

national language.22 This is good as such, but the shift to the 60% requirement took place

minorities to speak and use their languages in public, also in relations with

so rapidly that it was unavoidable that Russian schools should suffer.

local authorities; favour a policy of incentives over punitive methods with

One may argue that, since upper secondary school covers only grades ten to twelve,

regards to the implementation of the Language Act.

the requirement of 60% is not significant. However, it is significant, because in their ef-

Ensure that the ongoing transfer to Estonian as the main language of in-

fort to prepare students adequately for upper secondary school, Russian schools have

struction in Russian-language schools is implemented gradually and with

increased their teaching in the national language in lower grades as well. In any case, one

due regard to the quality of education offered in Estonian as well as Russian

can easily agree with the Advisory Committees critical comments that the transfer to the

language; expand the availability of relevant teacher training courses in-

60% requirement should have taken place at a slower pace.

cluding as regards bilingual and multicultural education.25

23

In Latvia, all topographical signs may use only Latvian. In Estonia, the requirement

The conclusion is that Russian continues to be an important language in Estonia/

in law is not so strict, but in practice there are only a small percentage of bilingual signs.

Latvia and that Russian pupils can choose Russian as the major language of instruction.

Even though Russians make up an overwhelming majority in the Ida-Virumaa Province,

The Advisory Committee recognizes that Estonia and Latvia have made efforts to improve

there are only a few local bilingual road (and other) signs in the province. Overwhelm-

the position of Russian minorities. However, in several respects, these states have used

ingly, signs are in Estonian only. The Advisory Committee, referring to Article 11(2) of the

too-harsh methods for the protection and promotion of the national language. This has

FCNM, has called upon Latvia to change its policy and Estonia to increase the number

complicated the integration of the Russian community into national society. The com-

of bilingual signs. Indeed, if there are many bilingual signs using English as the second

mittee has made it plain that Estonia and Latvia are acting contrary to articles 10(2) and

language, why can there not be bilingual signs using Russian as the second language?

11(3) of the FCNM. With regard to topographical signs, serious criticism should be directed

24

especially to Estonia, where in the Ida-Virumaa Province the Russian population has lived

2.5.3. Concluding Observations

traditionally in substantial numbers and now forms the numerical majority. Estonia and

Estonia and Latvia have succeeded in forcing most Russians to have a command of the

clear that the criticism expressed by the Advisory Committee would not give any legiti-

national language in a way that is satisfactory and fares them well in life. This is true especially with younger generations, whose language skills are better than the older generations. However, in those areas where the overwhelming majority is Russians, especially
in the Ida-Virumaa Province, it has been more difficult. A major detrimental factor is that
these two communities continue to live separately from each other. The separation offers
possibilities for Russia to spread propaganda that would foster disagreements among the
population and raise discontent among the Russian minorities. The Advisory Committee
has made recommendations to Estonia and Latvia calling upon them to use more carrot
and less stick in their policy of integrating the Russian minority.
The Advisory Committees recommendations to Estonia concerning immediate action it should take well represent the committees tone as far as its analysis of Estonia

Integration andExclusion

and of Latvia:

70

Take a more balanced approach towards the legitimate aim of promoting the
State language while ensuring the rights of persons belonging to national
22 Para. 134 of the Report on Estonia.

Latvia should allow more space for the bilingual approach. However, it should be made
macy to Russia to protect its compatriots by forcible means or psychological or hybrid
warfare in violation of the sovereignty of Estonia or Latvia.
When in the process of finalizing the text of this article, on 13 October 2015 the ECRI
published its new country report on Estonia. It recognized that in some areas no notable
progress is seen but that there are also positive developments. Concerning the former,
some of the ECRIs previous recommendations in the field of language policies have not
been followed. This concerns certain aspects of the language tests for citizenship and
lack of assistance to minority schools in support of their transition to meet the requirement of 60% of subjects to be taught in Estonian. The ECRI recognized, however, that
seminars and training courses have been arranged to make the transition more orderly.
On the positive side are the reduction of the powers of the Language Inspectorate, which
no longer has the power to issue fines to employees who are not sufficiently proficient in
the official language, and amendments to the Citizenship Act; namely that henceforth all
children under fifteen years of age born in Estonia of parents who do not hold Estonian
citizenship will automatically be granted Estonian citizenship, unless refused by the parents. To continue, people over age sixty-five wishing to acquire citizenship will be exempt

23 Ibid. paras. 150-154.


24 Concerning Estonia, paras. 118-121, and concerning Latvia, paras. 99-101.

25 The quotation is from the Executive Summary of the Report on Estonia.

Lauri Hannikainen. How Serious are the Violations of Minorities Linguistic Rights in Contemporary EuropeanStates?

71

from the written part of the language tests. The ECRI also takes a positive view of the

Russian-speakers without giving Russian official language status.29 It should be added

new integration policy that was adopted in December 2014 after intensive consultations

that not only Russian but also certain other territorially strong linguistic minorities, par-

at the national level. The new policys goal is to address the main shortcomings of former

ticularly the Poles and Hungarians, benefit from the 2012 law.

policies.

When President Yanukovych was deposed from power in the second half of Febru-

26

ary 2014, Russia expressed alarm that the Russian population was in danger, especially in

2.6. Ukraine

Crimea and eastern Ukraine. This resulted in a complicated operation to separate Crimea

Ukraine has at least twenty ethnic and/or linguistic minorities living in its territory. The

population of Crimea: between 56 and 58%.

far biggest minority, Russians, makes up some 17% of the population of Ukraine, but Russian is spoken in daily life by a bigger percentage of inhabitants, including many ethnic
Ukrainians. Russian is not an official language in Ukraine only Ukrainian is.
In this section we will concentrate on the status of the Russian language in the
months of the crisis of 201314.
Ukraine has not only ratified the FCNM but also the Language Charter. It has consented to many obligations vis--vis the Russian language under the charter. The comments by the monitoring organizations of the Charter, the Committee of Ministers (in
January 2014) and the Expert Committee (in November 2012)27, and of the FCNM, the Committee of Ministers (December 2013) and the Advisory Committee (March 2012)28, do not
give a basis for any alarmed claims regarding any serious violation of minorities linguistic
rights in Ukraine. They certainly express criticism, but it mainly concerns minor interest
towards promotion of lesser languages than Russian, such as the Roma and Tatar languages. It should be noted that the comments by the Committee of Ministers took place
in those weeks when the massive demonstrations against the government had already
started.
When the new rulers took power in February 2014, the parliament (controlled by
them) decided to repeal the 2012 Law on the Principles of State Language Policy (23 February) in an effort to weaken the legal status of Russian. This was seen as a hostile move
against the Russian-speaking minority. Acting President Turchynov declined to confirm

from Ukraine and annex it to Russia. The Russians formed the numerical majority of the
During the early months of the major crisis in the first half of 2014, four international human rights monitoring organizations sent their delegations to Ukraine in order to
find out whether serious violations of human rights were taking place. One major theme
of the monitoring was the treatment of minorities, the Russian community included.
The Advisory Committee of the FCNM concluded that there was no immediate threat
to the enjoyment of minority rights in Ukraine. However, the report expressed concern
for the safety and access to rights of minority populations in Crimea, in particular the
Crimean Tatars.30 The UN High Commissioner for Human Rights wrote that the situation
remained particularly tense in eastern Ukraine, where a large Russian minority exists.
Although there were some attacks against the ethnic Russian community, these were
neither systematic nor widespread. The commissioner expressed concern for the human
rights situation in Crimea, not at all concerning the Russian population but rather the
Tatar minority.31 The Council of Europe Commissioner for Human Rights paid particular
attention to numerical minorities in Crimea, especially the Tatars and all those who have
refused Russian citizenship.32 A statement indicated that the OSCE High Commissioner on
National Minorities was pleased by the interim governments promise not to make any
hasty decisions regarding language policy.33 In a later statement, she expressed concern
for increased intimidation of ethnic Ukrainians and Tatars in Crimea.34
Thus, the monitoring organizations major concern during the crisis in Ukraine was
the fate of numerical minorities in Crimea, which had been taken over by Russian-minded
armed groups with the assistance of Russia and that was then annexed to Russia on 18

the parliaments decision, however (2 March). Thus, the law remained in force. The 2012
law was seen by many as a political instrument to appease and manage the claims of

29 See the Advisory Committees Ad hoc Report on the situation of national minorities in Ukraine, adopted on 1 April 2014,
Council of Europe Doc. ACFC(2014)001, para. 15.

Integration andExclusion

30 Ibid.

72

31 Office of the United Nations High Commissioner for Human Rights, Report on the human rights situation in Ukraine, 15
April 2014. The quotation is from para. 7. at http://relief.web.int/report/ukraine/report-human-rights-situation-ukr.
26 ECRI Report on Estonia (Fifth Monitoring Cycle) adopted on 16 June 2015, published on 13 October 2015, CoE Doc. CRI
(2015)36, paras. 64, 68, 71, and 79-82.
27 Recommendation CM/RecChl(2014)1, adopted on 15 January 2014, and Report of the Committee of Experts (2nd Monitoring Cycle), adopted on 15 November 2012.
28 Resolution CM/ResCMN(2013)8, adopted on 18 December 2013, and Third Opinion on Ukraine by the Advisory Committee,
adopted on 22 March 2012, published on 28 March 2013, CoE Doc. ACFC/OP/III(2012),002.

32 Council of Europe Commissioner for Human rights, Human Rights Abuses in Crimea Need to Be Addressed, 12 September 2014. at http://www.coe.int/en/web/commissioner/country-report/ukraine. Earlier statements do not address
minority questions.
33 Statement by the OSCE High Commissioner on National Minorities on her Recent Visit to Ukraine, 4 April 2014, at
http:www.osce.org/hcnm/117175.
34 Statement of 19 September 2014, at http:www.osce.org/hcnm/123805.

Lauri Hannikainen. How Serious are the Violations of Minorities Linguistic Rights in Contemporary EuropeanStates?

73

March. Russias claims concerning serious danger faced by the Russians in Ukraine got
meager support from the monitoring organizations. It is concluded that many illegalities
took place in Ukraine in the first months of 2014, but Ukraine cannot be said to have seriously violated the rights of linguistic minorities. Since late February, Ukraine could no
longer rule over Crimea, or carry responsibility for activities taking place there.

3. Final Observations
The above survey certainly does not allow any comprehensive conclusions on the existence of serious violations of minorities linguistic rights in Europe. Whereas there are
certainly many problems in the realization of linguistic rights in Europe, it does not appear that there exist really serious violations. Turkey and Greece should reverse their
policy of limiting minority protection solely to the provisions of the 1923 Lausanne Treaty.
Turkey should recognize its vast Kurdish population as a national minority with substantial rights. Estonia and Latvia should pay more attention to the recommendations of
the monitoring organizations of the FCNM. Perhaps Russia should have been included
here among those states whose policies were examined more closely. The Committee of
Ministers states that despite the existence of federal legislative guarantees for equality
among the different languages of the Russian Federation, the overall climate appears not
to be conducive to the use of minority languages in daily life, including in official settings
and on topographical signs. In particular, the use of minority languages in urban centers
appears to be rapidly decreasing, even for persons belonging to minorities within their
own territorial formation.35 One must also wonder whether it was appropriate to leave
aside the problems of the Roma minorities with regard their right to speak and learn the
Romani language(s). However, it should be noted that until quite recently the Romani
language was a hidden language; that is, the Roma wanted to keep their language solely

Integration andExclusion

to themselves. Thus, a separate article on this theme would be needed.

74

35 Resolution CM/ResCMN(2013)1on the implementation of the Framework Convention for the Protection of National Minorities by the Russian Federation, adopted on 30 April 2013.

The Spanish Mosaic:


AnAsymmetrical Recognition
ofMinority Languages
Eduardo J. Ruiz Vieytez

1. Language Diversity in Spain:


A Complex Mosaic
Spain is one of the most plural countries in Europe today, in linguistic terms. Romance
languages have dominated almost all of the Iberian Peninsula since the Middle Ages. Of
the pre-Latin languages, only the Basque tongue remained alive in the regions around the
Western Pyrenees. The Latin inheritance evolved into different languages in the course of
the medieval period. Geographically from west to east, these were Galician-Portuguese,
Asturian-Leonese, Castilian, Aragonese, and Catalan. Castilian Spanish was progressively
established as the language of the dominant kingdom, and it was the official language
from the sixteenth century onwards, to the detriment of Latin and the other peninsular
languages.
From a political perspective, modern Spain is a classic example of a complex state.
In constitutional terms, it does not define itself as a federal state, and it shows theoretical characteristics of a unitarian state while also possessing significant scope for complete political decentralization. The political transition after the military regime of Francisco
Franco (19391975) paved the way for a new constitution in 1978, based on the unbreakable
unity of the Spanish Nation (Article 2), that at the same time permits the creation of Autonomous Communities. National unity and challenges to Spanish national identity, mainly from
Catalonia and the Basque Country, constitutes probably the most debated issue in the Spanish

Eduardo J. Ruiz Vieytez. The Spanish Mosaic: An Asymmetrical Recognition of Minority Languages

77

political agenda. Present-day Spain is made up of seventeen Autonomous Communities and

are also the traditional languages of the Spanish Roma population. If the Romani lan-

two Autonomous Cities (Ceuta and Melilla). However, if we analyze the voting patterns in

guage was rarely used in Spain, the Cal was the Roman language of the Spanish Roma

each, it emerges that after more than thirty-five years of democracy and free elections,

population in the past; today it has almost disappeared. Finally, to complicate a bit more

Catalan and Basque societies (the latter including part of Navarre) regard themselves as

this complex picture, on the Canary island of Gomera a whistle language (silbogomero) is

different nations, while the rest of Spain clearly identifies itself with the idea of Spain

still used whose status as a language is disputed. Of course, apart from this long list of

as the only nation. Therefore, there is in Spain a significantly asymmetric and uneven

traditional minority languages in Spain, there are also a large number of languages spo-

multinational reality that has not been constitutionally recognized. In this sense, what

ken by recently arrived migrants, particularly since the early 2000s. Many of the new citi-

political scientist J. Linz said at the start of the transition to democracy is still perfectly

zens are Spanish-speakers arriving from Latin America, but others brought many different

valid: Spain today is a state for all Spaniards, a nation-state for a large part of the Span-

languages from their original countries, while yet others reinforced traditional minority

ish population, and only a state but not their nation for important minorities .

languages of Spain such as Portuguese, Arabic, and Berberic. Last but not least, there are

Within this context, approximately 25% of the Spanish population today have a

also the existing Spanish and Catalan sign languages2.

mother tongue that is not Castilian. Catalan (including the Valencian dialect) is spoken by

The constitutional official recognition of this incredible linguistic mosaic does not

more than 7,500,000 people, Galician by some 2,500,000, and Basque by around 600,000

reflect the whole picture. Legally speaking, the granting of official status to a minority

in Spanish territory. These three languages have been declared official languages, to-

language can only be done through one of the Acts of Autonomy (statutes) that the sev-

gether with Castilian Spanish in their own Autonomous Communities, and there are spe-

enteen Autonomous Communities establish. However, these have not always provided full

cial policies to foster their normalization. Indeed, the Autonomous Communities wield a

recognition of or protection for these languages, once again leading to a very uneven and

good level of self-government, including the possibility of declaring regional languages

asymmetrical situation, not only in sociolinguistic terms but also from a legal perspective.

official within their respective territories (along with Castilian Spanish). Nevertheless, the
linguistic and cultural realities of Spain are highly asymmetric and do not correspond at
all with the traditional view of Catalonia, the Basque Country, and Galicia as peripheral
nations or historical nationalities. The Catalan language is shared by the Balearic Islands
and Valencia as well as by part of Aragon and Murcia. Galician is traditionally spoken in
the areas of Asturias and Leon, while Basque is still dominant in the northwestern part of
Navarre. Regarding traditionally spoken languages, we cannot forget the special situation
of the Occitan (Aranese dialect) in the Aran Valley (Catalonia); Asturian-Leonese in the autonomous region of Asturias and western part of Leon (and the Portuguese area around
Miranda Do Douro, where it enjoys official status); the weak Aragonese language, still alive
in some high valleys of the Pyrenees (Aragn); the Portuguese language spoken in the
towns of Olivenza and Taliga (former Portuguese territories until the nineteenth century);
or the so-called Fala language, traditionally spoken in three minor towns of northwest
Extremadura (San Martn de Trevejo, Valverde del Fresno, and Eljas). In addition, some
authors consider Extremadurian, spoken in the northwestern fourth of Extremadura, a
Integration andExclusion

language in itself (albeit with no official recognition, as with Fala or Portuguese in this

78

region). The autonomous cities of Ceuta and Melilla, on the African Moroccan coastline,
host some traditional native communities that speak Arabic and Berberic. Noteworthy
1 Linz, Juan, Politics in a Multi-Lingual Society with a Dominant World Language: The Case of Spain, in Savard, Jean-Guy,
and Wigneault, Richard (eds.), Les tats Multilingues: Problmes et Solutions (Presses de lUniversit Laval, Qubec,
1975), 367-444, at 423.

2. The Constitutional Regulation


ofLanguages: An Asymmetrical Model
The Spanish Constitution of 1978 offers a common provision for the legal status of languages in the Spanish State. Article 3 states:
1. Castilian is the official Spanish language of the State. All Spaniards have
the duty to know it and the right to use it.
2. The other Spanish languages shall also be official in the respective Autonomous Communities in accordance with their Statutes.
3. The wealth of the different language variations of Spain is a cultural heritage which shall be the object of special respect and protection.
This is the second time that a Spanish Constitution referred to the linguistic pluralism of the state. The quoted article is very similar to Article 9 of the Republican Constitution of 1931. The current Spanish Constitution establishes the official status of the
Spanish language for the whole territory of the state, including monolingual Catalan-,
Galician-, or Basque-speaking rural areas. This means that constitutional provisions
2 See a map of this linguistic plurality in Annex 2 and a complete list of the minority languages in Annex 1.

Eduardo J. Ruiz Vieytez. The Spanish Mosaic: An Asymmetrical Recognition of Minority Languages

79

consolidate the presence of Spanish everywhere, including the duty of citizens (although

(hereinafter FCNM) or the European Charter for Regional or Minority Lan-

not foreign residents) to know the language.

guages (hereinafter ECRML).

In terms of comparative constitutional law, Article 3 of the Spanish Constitution is

The Spanish system fits in the third model, with the Castilian language (Castilian is

very similar to Article 68 of the Russian Constitution. A similar model for the coexistence

the official name, according to the constitution) being the dominant official language for

of one or several regional official languages with one state language with official status

the whole country with some other languages enjoying the status of co-official languages

across the whole territory is in force in countries such as Italy, the United Kingdom, and

in given territories, according to the corresponding Acts of Autonomy. Thus, five Acts of

Denmark. Indeed, the Spanish constitutional model responds to what can be called lim-

Autonomy clearly indicate the official status of some minority languages at the same level

ited plurilingualism. If we analyse the almost fifty constitutions of the internationally

as Castilian Spanish. These acts are, by date of approval, those of the Basque Country

recognized European countries , we can identify up to five different constitutional models

(Basque language or euskera)4, Catalonia (Catalan and Aranese), Galicia (Galician), the

of dealing with language diversity:

Valencian Community (Catalan, under the name of Valencian), and the Balearic Islands

Model 1: The state has two official languages for the whole territory: Fin-

(Catalan). In the case of Navarra, Article 9 of the Autonomy Act declares the Basque lan-

land, Ireland, Cyprus, Belarus, Kosovo, Malta, and Luxembourg (three lan-

guage official only in Basque-speaking areas (the northwestern fourth of the territory,

guages in this case).

according to the regional act on the Basque language that defines the so-called Basque-

Model 2: There is more than one official language, but these languages

phone zone). In the Autonomy Acts of Asturias, Castille-Leon, Extremadura, and Aragon,

are official only in some areas of the state (apart from some bilingual/

there are also some references to the protection of languages or different linguistic mo-

multilingual concrete regions or institutions): Belgium, Switzerland, and

dalities, but no official recognition or status is granted to any of the languages tradition-

Bosnia-Herzegovina.

ally spoken in these territories. It is also important to note that Spain has ratified both

Model 3: The state has one official language for the whole territory, but at

the FCNM and the ECRML.

the same time there is a second official language in some politically autono-

In addition to the concept of official language, the Acts of Autonomy have also

mous areas. In this model, a substantial part of the country has one official

introduced the idea of lengua propia (own language)5. Thus, the regional legislation of

language, while some minority languages are afforded official status within a

bilingual communities usually distinguishes between official languages and own language

political entity (generally a region with some degree of autonomy): Denmark,


Italy, Spain, Russia, Moldova, Georgia, United Kingdom, and Ukraine.
Model 4: There is one official language for the whole state, but some minority languages are protected with special measures available at the local
level. These minority languages are explicitly protected by the constitution,
international treaties, or the development of legislation, and they enjoy
some official usage, although they cannot be considered official languages
of a political subnational entity: The Netherlands, Germany, Austria, Portugal, Croatia, Hungary, Serbia, Slovenia, Macedonia, Norway, Sweden, Slovakia, Montenegro, and Bulgaria.
Model 5: In the rest of the European countries, there is one official lanIntegration andExclusion

guage, and no minority language is explicitly protected, at least at the

80

constitutional level. Some of these countries, however, may have ratified


either the Framework Convention for the Protection of National Minorities
3 Included in this number are all members of the Council of Europe (forty-seven independent states), plus Belarus,
Kosovo, and the Vatican.

4 As an example of all the Acts on Autonomy, the Act on Autonomy or Autonomy Statute of the Basque Country was passed
by the Spanish Parliament and approved by the Basque people by referendum in October 1979. Its sixth article refers to
the Basque language as follows:
1. Euskera, the own language of the Basque People, shall, like Spanish, have the status of an official language in Euskadi. All its inhabitants have the right to know and use both languages.
2. The common institutions of the Autonomous community, taking into account the socio-linguistic diversity of the
Basque Country, shall guarantee the use of both languages, controlling their official status, and shall effect and regulate whatever measures and means are necessary to ensure knowledge of them.
3. No one may suffer discrimination for reasons of language.
4. The Royal Academy of the Basque Language is the official advisory institution in matters regarding Euskera.
5. Given that Euskera is the heritage of other Basque territories and communities, the Autonomous Community of the
Basque Country may request the Spanish Government, in addition to whatever ties and correspondence are maintained
with academic and cultural institutions, to conclude and, where necessary, to submit to the Spanish State Parliament
for authorisation, those treaties or agreements that will make it possible to establish cultural relations with the States
where such territories lie and communities reside, with a view to safeguarding and promoting Euskera.
Analyzing the previous drafts of the Act on Autonomy discussed by the Basque representatives, some interesting aspects that were not accepted in further readings by the Spanish Parliament emerge. The two main aspects that were
abolished from the draft are as follows:
The drafts referred to the minority condition and socially difficult situation of the Basque language (situation
diglsica), encouraging the authorities to keep in mind such situations to develop an appropriate language policy.
The initial drafts also gave the Basque Autonomous Community the power to maintain formal links with other authorities in Basque-speaking zones. This was supposed to be applied to Navarra, to the Northern (French) Basque
Country, and perhaps to the American States with a significant Basque presence. The Spanish Parliament amended this
disposition to the extent of actual redaction, avoiding the possibility given to the Basque authorities to reach their own
linguistic and cultural agreements at the international level.
5 It is difficult to translate the expression lengua propia/berezko hizkuntza into English; own language will be used
hereinafter.

Eduardo J. Ruiz Vieytez. The Spanish Mosaic: An Asymmetrical Recognition of Minority Languages

81

of the Autonomous Community. This concept is used by the Statutes of the Basque Coun-

Different Acts of Autonomy also include clauses related to language matters. Out of

try (to refer to the Basque language), Catalonia (Catalan for the whole Catalonia and

seventeen statutes, only five do not include any reference to linguistic issues (Cantabria,

Aranese only for the Aran Valley), Galicia (Galician), Valencian Community (Valencian) and

Murcia, Canarias, Castile-La Mancha and Madrid). Among the rest, the aforementioned

Baleares (Catalan). This concept also appears in the developing legislation of Navarra,

references to the official or own languages can be found in six statutes (Basque Country,

claiming both Spanish and Basque as own languages of this region . In previous drafts of

Catalonia, Galicia, Valencia, Navarra, and the Balearic Islands); a certain degree of recog-

the Autonomy Acts submitted for discussion to the Spanish Parliament, the terms na-

nition and protection of minority languages (without granting official status) can be found

tional language and native language (idioma originario) were also used. Such a dis-

in three acts (Asturias, Aragn, and Castile-Len), with a more ambiguous reference to

tinction between official and own languages has no legal consequence concerning their

the protection or promotion of linguistic modalities present in two statutes (Andalusia

legal status. It basically remains a symbolic proclamation underlining the importance

and Extremadura); and, finally, the Statute of La Rioja includes a specific reference to the

of the different languages for regional identities. It also may legitimize the adoption of

research on the Castilian language for being original from La Rioja.

affirmative actions to promote the use of minority languages, particularly within regional
and local public administrations .

The statutes of Catalonia, Valencia, the Balearic Islands, Galicia, and the Basque
Country are the most explicit on linguistic issues. They include not only clauses declaring

Therefore, the Spanish constitutional model includes on the one hand the declara-

their corresponding languages as official or own languages but also additional regula-

tion of the official languages of the country, as in many other European constitutions, but

tions, such as a non-discrimination clause on language grounds. Apart from the Valen-

also contains additional references to linguistic elements, such as the duty to know the of-

cian Act, these statutes also envision the possibility of the respective regional powers

ficial language and the protection of any language variations . In addition, Article 20.3 in-

reaching an agreement with other territories where their language is also present. Finally,

cludes a mandate addressed to public broadcasting bodies to use the different languages

the Statutes of the Basque Country, Valencia, and the Balearic Islands also recognize or

of the country. Article 148.1.17 establishes the power of the Autonomous Communities to

establish a respective official consultative body for language issues.

regulate the legal status and promotion of the regional language. Finally, the Final Clause

It must be added that the Act of Autonomy for the city of Melille speaks about the

of the Spanish Constitution rules that the constitutional text must be published also in

linguistic and cultural plurality of the population of Melille. This can be considered an

the other languages of Spain. Conversely, there is no explicit anti-discrimination clause

indirect recognition of the presence of other languages, such as Tamazig. Although Ceuta

based on language, since this element is not explicitly mentioned in Article 14. At the same

and Melille are not Autonomous Communities but Autonomous Cities, they have specific

time, no recognition of linguistic minorities or of language rights of any particular group

Acts of Autonomy that are also called Statutes. However, they do not enjoy the power to

can be found in the Spanish Constitution, as happens in other European constitutions .

declare other languages official.

10

After the approval of their Acts of Autonomy, the officially bilingual communities
6 Ley foral 18/1986, of 15 December, del Vascuence, artculo 2.1. Therefore, Navarra is, along with the Aran Valley in Catalonia, the only territory in Spain that has two own languages.

Integration andExclusion

7 Judgment of the Supreme Court of Spain, of 25 September 2000, Legal Reasoning (FJ) no. 7.

82

8 A parallel to this clause can only be found in article 36 of the Constitution of Bulgaria. The Constitution of Turkey (art.
42) also includes an obligation to use Turkish as mother tongue for all Turkish citizens within the educational system.
Additionally, the Constitutions of Ukraine (art. 103 y 148), of Norway (art. 92) and of Moldova (art. 78) include clauses
establishing the obligation of knowledge of the official language when accepting an official positions.
As for article 3.1 of the Spanish Constitution, according to different authors the duty to know the official language does
not add anything to the official status itself: Iaki Agirreazkuenaga, Diversidad y convivencia lingstica (Diputacin
Foral de Gipuzkoa, Donostia-San Sebastin, 2003), 88. Basically this duty has been read in the sense that there is a iuris
tantum assumption of the command of the language by all citizens: Spains Constitutional Court, Judgement 74/1987,
of 25 May. This assumption operates in respect to the nationals who, in this sense, might be in a worse condition than
that of many foreigners in the access to translation facilities: Antoni Milian i Massana, Derechos lingsticos y derechos
fundamentales en Espaa, 30 Revista Vasca de Administracin Pblica (1991), 69-104, at 102. The duty to know does not
work in respect to other co-official languages: Spains Constitutional Court, Judgement 84/1986, of 26 June. Even if in
the last version of the Act on Autonomy of Catalonia it was included in respect to Catalan: Spains Constitutional Court,
Judgment 31/2010, of 28 June.
9 Both provisions are contained in Article 3.
10 For instance, in the Constitutions of Albania, Armenia, Slovakia, Croatia, Hungary, Ukraine, Estonia, Latvia, Lithuania,
Poland, Macedonia and Romania.

started passing regional legislation to promote the minority language and to foster the
process of normalization11. This legal concept was adopted to justify the active policies
willing to put the minority language at the same level as Castilian Spanish in all social
domains. The different communities have adopted stronger or less ambitious legislation
depending, on the one hand, on the sociolinguistic context of each minority language
(social differences between the situation of Catalan and Basque, for example, have always been dramatic) and, on the other hand, on the political majorities of the regional
parliaments (with the Basque and Catalan regions traditionally showing more active policies in comparison to the Galician or Balearic authorities).

11 The concept of normalization (normalizacin in Spanish language) can hardly be translated into English. It refers
to the idea of correcting the existing diglossia and promoting real and effective equality in the social use of both languages, thus normalising the status, social prestige and use of the minority language.

Eduardo J. Ruiz Vieytez. The Spanish Mosaic: An Asymmetrical Recognition of Minority Languages

83

Thus, for example, in 1982 the Act for the Normalisation of the Use of Euskera

in adopting very progressive and ambitious legislation in favour of the Catalan language,

(Basque language) was passed by the Basque Parliament with the approval of all the

including a significant amendment of the Act of Autonomy. However, the Spanish Consti-

MPs. This did not avoid the appeal of the Spanish Government to the Spanish Constitu-

tutional Court declared void some of the new aspects of the last statute (such as the dec-

tional Court on the grounds of unconstitutionality of several articles. However, in 1986,

laration that Catalan is the preferred [preferente] language of public administrations

the court reached the conclusion that only three articles of the law, of minor impor-

in Catalonia) and reoriented the interpretation of other clauses. Even if the statutory

tance, were unconstitutional . The option put forward by this law was the recognition

legislation concerning minority languages in other regions has remained quite stable for

of symmetrical rights and duties for both languages . It is a legislation founded on a

the last three decades, political debates on the normalization policies and about the

rights-based approach that developed the provision of the Act of Autonomy, proclaim-

recognition and position of minority languages have also emerged.

12

13

ing the official status of the language in the whole territory of the Basque Autonomous
Community. All aspects of the public sector were included in this Language Act, which
stated the obligation of the public administrations located in the Basque Community to
use, when required, the Basque language, and to better the knowledge of Euskera within
their respective staffs.
The 1982 Act also set up different bodies. On one hand, it created the Institute for
Alphabetisation and Teaching of Adults (HABE), which provides funded courses for both
adult learners of the language and non-alphabetized Basque speakers. It also set up a
Consultative Council for the Basque Language (Euskararen Aholku Batzordea), chaired by
the president of the Basque Government and made of senior members of public administration, representatives of universities, and independent experts. Within the Basque Governments structure, a General Secretary for Language Policy was appointed to deal with
every aspect concerning the development, teaching, learning, alphabetizing, researching, and promoting of the Basque language. This general secretary used to be directly
attached to the presidents office, but as of 1994 it has been dependent on the Basque
Ministry of Culture and headed by a deputy minister.
Since the approval of the Language Act in 1982, a vast developing legislation on
linguistic matters has been put into force by the Basque Government. Among these regulations, the most relevant have been the programmes to fund the learning of Euskara
by teachers and other civil servants and the planning of the Basque administration jobs
according to the linguistic requirements of the population. The government set up a
minimum percentage of Basque-speaking civil servants in every administrative unit depending on the figures of Basque active and passive speakers of the area to be covered

3. Current Problems and Challenges


forLinguistic Rights
We could state that the most relevant challenges of the Spanish model have to do with
the sincerity of the recognition of Spain as a plural, multilingual country. National identity happens to be one of the most sensitive issues in the Spanish political agenda,
particularly in respect to the accommodation of the Basque and Catalan national aspirations. This has to do with Spains lack of acknowledgement of being a multinational
country, and with the aspiration of the large majority of the Spanish population to have
and one and only shared national identity. This very debate also affects the linguistic
element, since it reinforces the idea of Spain as a plural country and it supports some
of the alternative (minority) national projects (such as the Catalan, the Basque and the
Galician). The asymmetry of the sociolinguistic situation does not help achieve a good
balance between plurality and cohesion, and many times the debates about the language
policies become hot issues of Spains social and political agenda.
It is therefore not surprising that most of the current problems and challenges in
this field have to do with recognition and identity. To illustrate this, firstly I will refer to
four main challenges that are related to language-identity policy issues and after this I
will schematically point out the fields where the linguistic rights of the minority language
speakers find more difficulties to be implemented.

by each administration.
Integration andExclusion

Similar legislation, institutions, and policies have been adopted in other bilingual

84

autonomous regions. However, in the last decades, Catalonia has clearly taken the lead
12 Judgment 82/1986, of 26 June.
13 Iigo Urrutia Libarona, Estatuto jurdico del euskera en el Pas Vasco, in Jose Manuel Prez Fernndez (coord.), Estudios sobre el estatuto jurdico de las lenguas en Espaa, (Atelier, Barcelona, 2006), 417-448, at 429.

3.1. Institutional Recognition of (Separate) Languages:



The Problem of Glottonyms (Glossonyms) and Dialects
There is no official list of languages in Spain. The reason for it is the lack of agreement
on the boundaries of some of the minority languages. This obviously has to do with an

Eduardo J. Ruiz Vieytez. The Spanish Mosaic: An Asymmetrical Recognition of Minority Languages

85

identity problem and it becomes a relevant problem in different moments. One of them

The question of glottonyms also affects the Basque language. In this case the name

was the process of ratification of the ECMRL that obliged the Kingdom of Spain to declare

of the language differs in the Statutes of the Basque Country and in that of Navarra. The

the minority languages to be protected under Part III of the ECRML. However, in the in-

legislation adopted in Navarra uses the term vascuence, a traditional Castilian word to

strument of ratification of Spain, and unlike in the case of the other parties, there is no

refer to the Basque language whose social use has clearly ceased. The alternative Castil-

list of the languages considered as regional or minority ones. The instrument just says

ian word to refer to the Basque language (vasco) reflects a link with the Basque identity

that these are the languages recognised as official languages in the Statutes of Auton-

of the Navarrese region that the dominant sectors in Navarra wanted to avoid. Within the

omy of the Autonomous Communities of the Basque Country, Catalonia, Balearic Islands,

Basque Autonomous region, the Basque word euskera is normally used to name the lan-

Galicia, Valencia and Navarra.

guage. These differences do not however create a new problem since there is a general

The main reason of this reluctance to list the minority languages of Spain is the

consensus about the language identity. Indeed both Statutes of Autonomy refer to the

lack of agreement about the glottonym used to refer to Catalan language in some regions

same Academy of the Language and no one challenges the unity of the language spoken

that do not want to be considered members of a hypothetical Catalan country. Thus, if in

in the Basque community, in Navarre or in the French Basque Country.

Balearic Islands there is no problem in recognising the own language as Catalan (with im-

As for Asturian-Leonese, this language also suffers from different denominations

portant local differences between the islands), the position is rather different in Valencia

adopted by the legislation of each administrative domain. Thus, the Act on Autonomy

and Aragon. Regarding the relation between Valencian and Catalan, from a linguistic point

of Asturias refers to this language as Asturian or Bable (the traditional name of the lan-

of view there is a general consensus on the idea that Catalan and Valencian are the same

guage), while the Statute of Castile-Leon only speaks about the protection of Leons. In

language, although there are two different linguistic academies. The unity of the language

addition, the only place where this language is considered official, Miranda Do Douro, is

has already been recognised, and the Committee of Experts of the ECRML, although main-

part of Portugal and it is protected as Mirandese17, which should be considered as a local

taining the formal different denomination, quotes the Valencian Academy of the language

variety of the Asturian-Leonese language.

in a passage in which it recognizes that Valencian and Catalan are the same language . In

Similar problems arise in the recognition of separate languages, when they are

the case of Aragon, the Law 3/2013 , passed only with the votes of the right-wing parties of

considered just dialects of wider languages. Spain offers a number of cases that are

the regional parliament, eliminates all previous references to Catalan and Aragonese. Both

often regarded as dialects and not proper languages by many people and public insti-

are now referred to with long expressions. In the case of Catalan, this is known as lengua

tutions. This is the case for the Asturian-Leonese or Aragonese, although in these two

aragonesa propia del rea oriental (Aragonese language own of the Eastern zone) in an

cases there is already an explicit recognition by the Committee of Experts of the ECRML

effort to avoid the word Catalan. Some social and political sectors insist that the language

of constituting minority languages18. Very different is the case of Aranese, a local variety

spoken in this border area with Catalonia is different from Catalan, something which can-

of Gascon that is considered as a dialect of the Occitan language. As a matter of fact, the

not be supported with any scientific evidence. However, these positions are held by sig-

relation of Aranese with Occitan is recognised in the Act of Autonomy of Catalonia19.

14

15

nificant sectors in both Valencia and Aragon, as a reaction to a supposed pan-Catalanism.


Something similar happens in Asturias with respect to the Galician language, which
is spoken in the western strip of the region. This is referred to in the Act on Autonomy as
Asturian-Galician, and not as Galician of Asturias, even if scientific evidence proves the
identity of the Galician language in this border area of Asturias, as well as in the neighboring region of Castile-Leon. In this respect, the Committee of Experts of the ECRML has
Integration andExclusion

denounced that Asturian-Galician is not clearly recognised as a variant of Galician as it

86

should be16.
14 Document ECRML (2005) 4, Application of the Charter in Spain, of 21 September 2005, p. 36.
15 Ley 3/2013 de uso, proteccin y promocin de las lenguas y modalidades lingsticas de Aragn (Law of use, protection
and promotion of the languages and linguistic modalities of Aragn), of 9 May 2013
16 Document ECRML (2005) 4, Application of the Charter in Spain, of 21 September 2005, finding Q.

3.2. Access or Lack of Official Status



for Minority Languages
Although the Spanish Constitution acknowledges the linguistic plurality of Spain and endorses the Acts on Autonomy, which declare the official condition of the other Spanish
languages, many of the already mentioned languages are not considered official. In some
17 Ley no 7/99, of 29 January 1999 of the Portuguese Republic about the official recognition of linguistic rights of the Mirandese Community.
18 Document ECRML (2005) 4, Application of the Charter in Spain, of 21 September 2005, p. 46-49.
19 Document ECRML (2005) 4, Application of the Charter in Spain, of 21 September 2005, p. 53.

Eduardo J. Ruiz Vieytez. The Spanish Mosaic: An Asymmetrical Recognition of Minority Languages

87

cases, the language is not given official status even in its own Autonomous Community.

validity and legal effects).23 This is a definition of a legal category that clearly underlines

This is the case of Asturian-Leones in Asturias or Castile-Leon, of Aragonese in Aragon and

the political decision over the sociolinguistic approach.

of Extremadurian and Fala

in Extremadura. The cases of Ceuta y Melilla are different,

Besides this definition, there is no additional regulation about the substantial con-

since they do not constitute real autonomous communities. As for the Basque language

tent of the official status of a language. However, it is commonly understood that the

in Navarra, as it has been explained, the Statute defers the granting of official status to

official status should imply an effective possibility of using the language in three specific

a regional law and restricts this condition to the so-called Basque-speaking areas of the

domains of vital importance for social life: education, public administration (including

region (the use of the expression Basque-speaking to refer to territories is clearly in-

the judiciary) and mass media. In any case, some minimum standards should be re-

correct, and the regional law on Basque language amends this mistake by talking about

spected when a language is declared official.

20

Bascophone areas).

This is however not always the case: in some cases because of the weakness of the

In addition, a number of other languages, traditionally spoken in areas outside

minority language and the lack of resources and means to implement the official status.

their main autonomous community also lack official status. This is the case of Catalan in

In other situations, the territorial scope of the official condition of the language may im-

Murcia and Aragon, of Galician in Asturias and Castile-Leon, of Portuguese in Extremadura

pose severe restrictions to its implementation, to the point that it does not correspond

and Castile-Leon, and of the Basque language in the rest of the Navarrese territory.

in practice to a real official status. Thus, if the territory where the official status is granted

The lack of official status for these languages implies that speakers cannot ben-

is too narrow, it may happen that the speakers of the language do not have access to cer-

efit form a number of specific rights. Moreover, the symbolic aspect of officialization is

tain levels of education, public administration bodies or mass media without going out of

also missing. Speakers of these languages can only benefit from the rights explicitly rec-

this area. In this case, the official status can be considered an empty officiality of sorts,

ognised by the regional legislation in force (some rights are included in the Asturian Law

namely a fraud of the aforementioned concept. This is the case of the Basque language in

for the Asturian language , the Law of Aragn about regional languages and the Law on

Navarra, whose legislation recognizes Basque as official just for the Bascophone zone of

the Basque Language in Navarra for the non-Bascophone areas) and by the protection

the region. This area corresponds to the North-western fourth of the Navarrese territory,

granted through the ECRML or, eventually, the FCNM.

hosting approximately one tenth of the total Navarrese population (including no popu-

21

22

lation of more than 10,000 inhabitants). The area does not include any university, main

3.3. Official Recognition without Content:



The Case of Empty Officiality
The official status of a language implies a number of consequences and should entail
important linguistic rights for the language speakers. According to the Spanish Constitutional Court, es oficial una lengua, independientemente de su realidad y peso como
fenmeno social, cuando es reconocida por los poderes pblicos como medio normal de
comunicacin en y entre ellos y en su relacin con los sujetos privados, con plena validez
y efectos jurdicos (A language is official, regardless of its reality and weight as social
phenomenon, when it is recognised by the public powers as the normal way of commu-

Integration andExclusion

nication in and among themselves, and in relation with the private actors, with plain

88

20 Decree 45/2001, of 20 March, por el que se declara Bien de Inters Cultural la A Fala (by which A Fala is declared heritage of cultural interest).

hospital, professional judiciary bodies, regional or national institutions, or relevant mass


media. In this case, the political (and symbolically relevant) decision of restricting the official recognition to the sole area where the Basque language is dominant has significant
negative implications for the implementation of linguistic rights, to the point that the
praxis of the official status of the language could be challenged.

3.4. The Challenge of Normalization Policies by Majorities


Some current debates in Spain have to do with the position given to the State language
vis a vis some regional normalization policies. The issue is highly sensitive since there is
a perception by wide sectors of Spanish society that promoting minority languages works
against the presence of Spanish as a common language and of national identity feelings. In particular, special attention is paid to the evolution of the educational systems
of some Autonomous Communities like Catalonia, Basque Country, Galicia or Balearic

21 Ley 1/1998, of 23 March, de uso y promocin del bable/asturiano (on the use and promotion of Asturian).
22 Ley 3/2013, of 9 May, de uso, proteccin y promocin de las lenguas y modalidades lingsticas propias de Aragn (on
the use, protection and promotion of the languages and linguistic modalities of Aragn).

23 Spains Constitutional Court, Judgment 82/1986, of 26 June, Legal Reasoning no. 2 (FJ 2).

Eduardo J. Ruiz Vieytez. The Spanish Mosaic: An Asymmetrical Recognition of Minority Languages

89

Islands. The language of instruction is a hotly debated issue in several of these com-

in favour of their respective minority languages are regarded by a significant portion of

munities . In Galicia, Navarra (outside the Bascophone area) and in the Balearic Islands

the Spanish society with distrust, as an instrument to weaken the Spanish language and

pro-centralistic governments have been criticised for not offering the possibility of a full

national identity in those regions.

24

instruction in the regional language, which is at odds with the undertakings adopted by
Spain under the ECRML.
From the opposite position, the governments of Catalonia have been severely challenged for imposing Catalan as the sole language of instruction in Catalonia. This means
that in the current state of affairs it is not possible to have access to funded education in
Catalonia with Castilian as the language of instruction. This has led to several legal battles between Catalan institutions (overwhelmingly supported by the Catalan parliament
and society in this point) and central institutions or private associations of some Spanish
speakers living in Catalonia that claim to be in a minority condition. Some argue in favour of the protection of Spanish in Catalonia as an endangered language. However, no
evidence seems to support this case25. Behind the debate on the language of instruction
in Catalonia possibly lies the lack of acceptance of the linguistic (and national) plurality
of the Spanish State. According to some sectors, Castilian Spanish should be present in
all educational systems in Spain as a language of instruction, its knowledge at the end
of the compulsory training not being sufficient. This would avoid what they call the helvetization process of Spain26, by ensuring a common language across the country. From
the perspective of the vast majority of the Catalan speakers (and not only of pro-Catalan
sovereigntists) this is perceived as the proof of Catalan being a second-level language for
Spain and of the lack of interest of other regional societies for a sincere recognition and
promotion of language diversity of Spain.
In addition, from the terminology of the ECRML, Spanish language cannot be considered as a less widely used official language, as referred in article 3.2 of the ECRML, in
any part of the Spanish territory. Therefore, it does not deserve specific protection, since
Spanish is today well known by practically the entire population of the State and it can
be officially used before any public institution. Besides this, the instrument of ratification
of the ECRML adopted by Spain speaks only about regional or minority languages and
it does not contain any reference to a less widely used official language. Nevertheless,

Integration andExclusion

it is true that the normalization policies developed by some Autonomous Communities

90

24 In the case of the Basque Country the linguistic policy on education is based on a free-option system, so that instruction in Spanish language is fully guaranteed. In this case, the criticisms based on the weakening of the national identity
point at the alleged indoctrination of the students through the contents of the curriculum, and not at the language of
instruction itself.
25 For instance, see one recent survey about the social use of Catalan and Spanish languages among the Catalan citizens
at
http://www.lavanguardia.com/vangdata/20150729/54434198853/el-uso-del-catalan-y-el-castellano-en-la-vidacotidiana-de-catalunya.html
26 Ramn Punset, El plurlingismo entre Job y Hobbes, in Antonio Lpez Castillo (dir.), Lenguas y Constitucin espaola
(Tirant lo blanch, Valencia, 2013), 51-81, at 66.

3.5. Main Critical Aspects for Linguistic Rights


Like in many other countries, Spanish linguistic minorities suffer from the distance between the legislation in force and its implementation in practice. Even if the average
standards of linguistic rights in the Spanish legislation can be considered high, the level
of protection of minority languages is very uneven. Meanwhile, even the strongest minority languages find relevant difficulties in accessing specific domains, where speakers
linguistic rights are usually ineffective.
A general picture of the main concerns in the implementation of linguistic rights
in Spain can be drawn following the findings and considerations of the Committee of
Experts of the ECRML27. One of the most problematic fields for minority languages is the
Judiciary, where the presence of minority languages is still very low. On the one hand,
the judicial staffs posted in those Autonomous Communities with two official languages
shows a very low knowledge of the co-official languages. On the other hand, the Spanish
legal framework does not yet ensure that criminal, civil and administrative bodies of the
judicial power in these regions conduct the proceedings in the minority language when
this is requested by one of the parties. Another sector of concern is the staff of the
State administration in the bilingual Autonomous Communities, since the recruitment
processes do not normally or sufficiently take into consideration the knowledge of the
regional language. This implies severe difficulties for putting into practice the linguistic
rights acknowledged by the state and regional legislation. It is also necessary to improve
the provision of different public services in the minority languages, particularly in the
field of health care assistance.
Finally, the Spanish state should fully apply not only the ECRML, but also the FCNM
in respect to linguistic rights of certain minorities. In particular, this treaty is relevant
for minority communities living outside the officially bilingual regions, as well as for raising awareness about linguistic diversity in the majority group. This is why the Advisory
Committee of the FCNM has repeatedly asked the Spanish Government to report on the
(linguistic) rights granted by the FCNM to all minorities in Spain different from the Roma
group28.
27 The most recent report is the following: Document ECRML (2012) 5, Application of the Charter in Spain. 3rd Monitoring
Cycle, of 24 October 2012.
28 Document ACFC/OP/IV(2014)003, Fourth Opinion on Spain, adopted on 3 December 2014, paras. 10-15.

Eduardo J. Ruiz Vieytez. The Spanish Mosaic: An Asymmetrical Recognition of Minority Languages

91

V. Annexes

Annex 2 Map of Languages of Spain and their main varieties


(source: educadultos webpage: http://educadultos.wikispaces.com/Espa%C3%B1ol)

Annex 1 Minority Languages traditionally spoken in Spain, by region and official status
Autonomous Community
(official alternative name)

Legal Status

Catalonia

Official

Baleares

Official

Valencia (Valencian)

Official

Aragon
(LAPAO acronym-)

Recognised

Murcia

None

Galicia

Official

Asturias
(Asturian-Galician)

Recognised

Castile and Leon

Recognised

Basque Country

Official

Navarra (Vascuence)

Partially Official
Recognised

Catalonia (Aranese)

Official

Asturias

Recognised

Castile and Leon (Leons)

Recognised

Aragn

Recognised

Castile and Leon

None

Extremadura

None

Extremadura

Recognised

Melilla

None

Ceuta

None

Melilla

None

Extremadurian

Extremadura

None

Silbogomero

Canary Islands

None

Language

Catalan

Galician

Basque

Occitan
Asturian
Aragonese
Portuguese
Fala
Tamazig (Berberic)

Italy (Sardinia)
France (Rousillon)

France (Aquitaine)
France (Aquitaine,
Midi-Pyrenees, Languedoc)
Italy (Piamonte)
Portugal
(Miranda do Douro)

Portugal

Morocco, Algeria, Tunis


Morocco

Integration andExclusion

Dariya (Arabic)

Other Countries
where the language
istraditionally spoken

92

Eduardo J. Ruiz Vieytez. The Spanish Mosaic: An Asymmetrical Recognition of Minority Languages

93

Language Policies in Latvia:


Lessons for Minority
Protection
Boriss Cilevics

1. Introduction
Language policies have become the major factor shaping strategies of accommodation of
diversity throughout Europe. In many countries, linguistic identity has become crucial in
structuring societies along cultural lines, thus replacing the religious affiliation that used
to be dominant in previous centuries. Therefore, linguistic rights have turned into the
core of a still rather vague modern concept of national minority rights.
The first more or less comprehensive universal standards for linguistic rights appeared only in 1990, in the CSCE Copenhagen document.1 Several years later, this political declaration was transformed into a legally binding Framework Convention for the
Protection of National Minorities (FCNM).2 Almost simultaneously, another instrument
based on a different concept, the European Charter for Regional or Minority Languages
(ECRML)3, was opened for signature. Co-existence of these two main elements of the
modern framework of minority protection marked an implicit legal conflict described by
an astute scholar as language rights vs speakers rights.4
1 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 29 June 1990.
2 Framework Convention for the Protection of National Minorities, entered into force on 1 February 1998.
3 European Charter for Regional or Minority Languages, entered into force on 1 March 1998. Unlike FCNM, the Charter is a
treaty for the protection of linguistic diversity, therefore, languages and not the persons speaking these languages
are subjects of protection, in a sense, the right-holders.
4 Pavlenko, Aneta, Language Rights Versus Speakers Rights: On the Applicability of Western Language Rights Approaches
in Eastern European Contexts, 10 (1) Language Policy (2011), 37-58.

Boriss Cilevics. Language Policies in Latvia: Lessons for Minority Protection

95

The Copenhagen document reflected, and FCNM inherited, a liberal approach. It


declares acceptance of diversity and non-interference by states in private area (free use
of mother tongue by individuals, including in public; the right to establish and maintain
private educational, cultural, and religious institutions and associations; the right to
practice religion and disseminate and exchange information in a mother tongue; etc.).
In the meantime, recognition of diversity in public areas, such as instruction of or in a
mother tongue in public schools or use of a minority language before public authorities, appeared conditional, and adaptation of the governance system to cultural diversity
limited and supplemented with rather vaguely defined conditions and reservations (adequate opportunities in conformity with applicable national legislation). In turn, the
ECRML deals primarily with public areas, although it simply offers a long list of possible
measures the States Parties could take, fully depending on their goodwill.
The system of monitoring compliance with these instruments remained rather
weak. Minority rights are not justiciable per se, with few exceptions, i.e. they cannot
be invoked before national or international courts.5 Neither the FCNM nor the ECRML
envisages procedures for individual complaints. Therefore, individual rights of persons
belonging to minorities still remain subordinate to the rights of nations and languages
(whatever these philosophical, rather than legal, concepts mean).
Development of language legislation and linguistic policies in Latvia after the restoration of independence offers an instructive example. In this Baltic state, the changes
in the field of language use were the most radical and rapid. In fact, they occurred simultaneously with relevant international standard setting and were subject to emerging
monitoring. The case of Latvia saliently demonstrates both achievements and weaknesses
of the current international system of minority protection, as well as main challenges,
controversies, and problematic areas within this system.
This paper highlights these problematic areas on the basis of Latvias experience
and formulates some questions for the further evolution of minority protection from a

Integration andExclusion

practitioners rather than an academic perspective.

96

5 Virtually all successful relevant cases in the ECtHR are related to prohibition of discrimination of the persons belonging
to minorities in enjoyment of general rights, e.g. the right to association (ECtHR, Appl. No. 57/1997/841/1047, Sidiropoulos v. Greece, judgment of 10 July 1998; ECtHR, Appl. Nos. 29221/95 and 29225/95, Stankov et al. v. Bulgaria, judgment of 2 January 2002), freedom of expression (ECtHR, Appl. No. 109/1996/728/925, Radio ABC v. Austria, judgment of
20 October 1997), the right to be elected (ECtHR, Appl. Nos. 27996/06 and 34836/06, Sejdic and Finci v. Bosnia, judgment
of 22 December 2009), the right to education (ECtHR, Appl. No., D.H v. Czech Republic, judgment of 13 November 2007).

2. Language Policies in the Making


A number of publications have already described the language situation in Latvia and its
historical evolution, Soviet legacy, and relevant legislative and policy developments after
the restoration of independence.6 Assessments and conclusions of researchers substantially differ. We will not touch upon the aspects most often covered, in particular the
use of languages in public education and minority education reform that caused serious
tensions from 2002 to 2004,7 or the spelling of minority names, the issue that so far has
produced the most voluminous and controversial case law.8 Other, less known dimensions of the language policies also offer interesting food for thought.
The restored state faced serious challenges. The demographic situation had greatly
changed during the Soviet period, bringing the share of ethnic Latvians to only slightly
over 50%. While Soviet authorities, in accordance with declared policies of support for
national cultures of the USSR peoples, generously financed the publication of books,
theatre, etc. in Latvian (needless to say, under strict ideological control), and preserved
parallel education systems in Russian and in Latvian up to the university level, the area of
official functioning of Latvian was severely curtailed. According to the last USSR census,
only about one-fifth of persons belonging to the Russian-speaking minority were proficient in the Latvian language.9 Ethnic Latvian society, mobilized in the course of Atmoda
(Awakening), demanded quick and radical changes. A number of external factors also
contributed into shaping language policies.
Under these circumstances, the language regime developed in Latvia reflects an
aspiration for delayed completion of nation-building forcibly interrupted by the Soviet annexation in 1940. In this process, symbolic aspects of the use of languages often
6 Kamenska, Anhelita, The State Language in Latvia: Achievements, Problems and Prospects (Latvian Center for Human
Rights and Ethnic Studies, Riga, 1995); Cilevics, Boriss, Language Legislation in the Baltic States, in Koenig, Matthias
and De Guchteneire, Paul (eds), Democracy and Human Rights in Multicultural Societies (UNESCO Publishing/Ashgate,
2007), 167-184; Jarve, Priit, Language Legislation in the Baltic States: Changes of Rationale?, paper presented on the
Panel Language Laws: Nation-Building, Ethnic Containment, or Diversity Management? at the ASN 2000 Convention,
13-16 April 2000, New York; Druviete, Ina, Linguistic Human Rights in the Baltic States, 127 International Journal of the
Sociology of Language (1997), 161-185; Ozolins, Uldis, Between Russian and European Hegemony: Current Language
Policy in the Baltic States, 6 (1) Current Issues in Language & Society (1999), 6-47; Poggeschi, Giovanni, Language Policy
in Latvia, Noves SL. Revista de Sociolingstica (Autumn 2004) 1-10. See also state reports on implementation of FCNM
at http://www.coe.int/en/web/minorities/country-specific-monitoring#Latvia and NGO reports at http://www.minelres.lv//coe/report/NGO_Report_FCNM_Latvia_2007.pdf, http://cilvektiesibas.org.lv/media/attachments/30/01/2012/
NationalMinoritiesinLatviaENG.pdf .
7 Silova, Iveta, From Sites of Occupation to Symbols of Multiculturalism: Re-conceptualizing Minority Education in Post-Soviet Latvia, (Information Age Publishing, Greenwich, CT, 2006); Silova, Iveta, Bilingual Education Theater: Behind the
Scenes of Latvian Minority Education Reform, 13 (4) Intercultural Education (2002) 463-476.
8 ECtHR, Appl. No. 59727/00, iskina and ikins v. Latvia, admissibility decision of 8 November 2001; ECtHR, Appl. No.
71557/01, Kuharec/Kuhareca v. Latvia, admissibility decision of 7 December 2004; ECtHR, Appl. No. 71072/01, Mentzen/
Mencena v. Latvia, admissibility decision of 7 December 2004; HRC, Communication No. 1621/2007, Leonid Raihman v.
Latvia, views of 28 October 2010, CCPR/C/100/D/1621/2007.
9 Kamenska, op.cit.

Boriss Cilevics. Language Policies in Latvia: Lessons for Minority Protection

97

dominate over practical ones related to communication between persons and between
individuals and state institutions.
A common discourse of the need to protect small and vulnerable languages is reinforced in Latvia by historical circumstances. Concerns about position of the majority

Like in many other European states, an anthropomorphic approach was not only
widely used in both political and public discourse but also reflected in law-making. The
linguistic situation was described in such terms as death, survival, competition, etc., and
liberal language policies labelled as unacceptable linguistic Darwinism.11

language were much more justified here than in many other European states. Undoubt-

Besides, the changing linguistic environment was seen as a symbolic sign of shift-

edly, policies aimed at support and promotion of the Latvian language were legitimate

ing geopolitical orientation. Doing away with the domination of the Russian language was

and necessary. The question, however, is what kind of methods can be used to achieve

perceived as a substantial element of the eradication of the influence of Russia.

these legitimate goals.

Language policies have also become an effective tool for changing political and

The bulk of the Latvian political and intellectual elite saw the restored independent

administrative elites.12 While the state language requirements for civil servants are fully

state as, first of all, a guardian of the Latvian language and culture, rather than a cultur-

justified and necessary, the recruitment of the native speakers of Latvian and replace-

ally neutral enterprise owned equally by all citizens regardless of their ethnic origin and

ment of the Russian-speakers in various senior and medium-ranking positions was seen

language. However, the Satversme (Constitution) of 1922, re-enacted in 1993, was based

as a restoration of historical justice and legitimate rights of ethnic Latvians in their

on the civic nation concept and did not offer any legal ground for such interpretation

own nation-state.

of the Latvian statehood. This contradiction resulted in the adoption of several con-

The concept of legal continuity and restored citizenship substantially restricted

stitutional amendments to rectify the text so as to make it comply with the ethnic

participation of the Russian-speaking minority in political decision-making and thus

nation-state concept. In 1998, the provision stating that the Latvian language is the sole

made quick and drastic reforms feasible. This exclusion provoked increased alienation of

state language was introduced. Moreover, in 2014, a preamble was added to the consti-

the Russian-speakers and their rejection of new rules, which were seen as imposed on

tution. The preamble, inter alia, declared:

them contrary to their will rather than negotiated in the course of a democratic dialogue.

10

The State of Latvia has been established by uniting historical Latvian lands and

All these factors entailed a situation where Latvian policy makers and their

on the basis of the unwavering will of the Latvian nation to have its own State and its

Western supporters adopted discourses of language endangerment, historic injustice,

inalienable right of self-determination in order to guarantee the existence and develop-

linguistic normalization, and language and ethnicity to conceal potentially illiberal and

ment of the Latvian nation, its language and culture throughout the centuries. Since

coercive nature of the new language policies.13

ancient times, the identity of Latvia in the European cultural space has been shaped by
Latvian and Liv traditions, Latvian folk wisdom, the Latvian language.

On the other hand, these radical reforms were implemented in the context of an
already existing, though limited, framework of minority rights. Even vague nascent stan-

The supporters of the preamble claimed that, in fact, such understanding of the

dards created external limitations, mostly in the form of political conditionality. General

Latvian statehood was fully shared by the founding fathers, and similar provisions were

human rights standards were more instrumental in this regard than specific minority

not included into the original text of the constitution simply because it went without

rights instruments (e.g. the right to interpretation in criminal proceedings, free use of

saying. Besides, they referred to historical upheavals, occupations, and mass influxes of

languages in religious practices as part of the freedom of conscience, or use of languages

immigrants that required stronger measures for the protection of the Latvian language

in private media as an element of freedom of expression). As to the latter, the judgment

and culture than the authors of the constitution could foresee. Despite some opposition

of the Latvian Constitutional Court is revealing, wherein the Court recognized language

in the legal community and NGOs in Latvia, the amendment was overwhelmingly and

quotas for private media as being not in conformity with the constitution.14

enthusiastically supported in intellectual circles, in media, and by the public at large,


Integration andExclusion

despite the fact that the retroactive addition of such ambitious changes raises serious

98

questions about compliance with the declared principle of legal continuity.

10 It is worth noting that even official English translations still use the wording official language instead of the state
language, although the latter is much more precise. Obviously, the state language is in substance a much more comprehensive concept than official language.

11 See e.g. Veisbergs, Andrejs, Reality and Perceptions of Multilingualism in the Baltic sStates, 21 (1) Humanities and
Social Sciences Latvia (2013), 52-71, at 61.
12 Steen, Anton, Between Past and Future: Elites, Democracy and the State in Post-Communist Countries: A Comparison of
Estonia, Latvia and Lithuania, (Ashgate Publishing, 1997) 416.
13 Pavlenko, op.cit.
14 Judgment of the Constitutional Court in case No.2003-02-0106, www.satv.tiesa.gov.lv/upload/2003-02-0106E.rtf.

Boriss Cilevics. Language Policies in Latvia: Lessons for Minority Protection

99

Meanwhile, despite quite stringent legislation and policies on citizenship and lan-

As a result, the language legislation and policies shape a paradigm of public mono-

guage, Latvia remained a state with no record of incidents of ethnically based violence.

lingualism + certain designated areas for minority languages. The law singles out three

The question of why and how Latvia managed to avoid violent conflict deserves separate

areas where use of minority languages is permitted.

consideration. Apparently, striving to preserve peace and avoid violence was the top pri-

First: religious practices where the states interference would amount to infringe-

ority for both ruling elites and minority groups, and this helped not to cross red lines

ment of freedom of conscience (secular activities of religious organizations, such as

in potentially tense situations.

financial reporting or communication with authorities, are subject to the same language

This phenomenon contributed to a somewhat reticent attitude towards implementation of stringent language legislation. Social behaviour is often in contrast with public

Second: private communication between individuals. However, here an essential

rhetoric, and practice routinely differs from law. The Russian language is still frequently

problem arises of where the border between public and private lies. The State Language

used in situations where it is not required by law or where the law remains silent on

Centres recommendation to speak only Latvian at work, even in informal communication

language use. This is true with regard to the prohibition against using any but the state

between employees, is one recent example.15

language in written communication with public authorities. Often, municipalities with

Third: the law specifically singles out ethnic cultural associations. In the early years

sizable minority populations find ways to bypass this prohibition (for example, by provid-

of independence, these NGOs were expected to become real communities, to organize

ing translation services, or when a civil servant writes down an applicants words and al-

minorities and become their authorized representatives in relations with the state. How-

lows him or her to sign). Another example is the use of languages in healthcare. While no

ever, it soon became apparent that these NGOs united only small numbers of activists.

command of minority languages by medical staff is required by law, in practice, doctors

Besides, it was not rarely that several associations of the same minority were established

and nurses, with very few exceptions, give preference to the Hippocratic oath over the

(for the biggest Russian minority, several dozen often harshly competing NGOs were set

language legislation. However, for a younger generation of ethnic Latvians, proficiency in

up). Therefore, the model majority as the state nation and structured minority commu-

Russian is much less common, and more and more often goodwill is of little help without

nities failed. Nevertheless, the law (and also practice, in particular in the composition of

the ability to speak the Russian language.

various advisory councils) still implies exactly this model.

3. Latvian Model:
Designated Areas
for Minority Languages

4. Recognition of Minority Languages

Thus, the language regime that emerged as a result of the interaction of various factors

taking into account that decades-long efforts to arrive at a universally accepted defini-

mentioned above has some peculiar features. In public discourse, speaking Latvian is
presumed natural, while minority languages are seen as a sort of anomaly. In the meantime, historical cultural and linguistic diversity centuries-long close contacts between
speakers of different languages, including widespread mixed marriages predetermines
Integration andExclusion

rather high tolerance at the everyday level and a generally forthcoming attitude towards

100

requirements as other organizations).

speaking Russian. Besides, external restrictions in the form of human rights standards,
recognition of cultural diversity as a basic European value, and pragmatic considerations
related to the labour market, mobility etc., make the goal of achieving factual monolingualism hardly feasible.

The personal scope of application of the FCNM remains controversial. The convention
itself does not contain a definition of a national minority. This was a pragmatic solution
tion failed. Instead, the Advisory Committee (AC)16 examines scope of application on a
case-by-case basis and often criticizes States Parties for denying protection under the
FCNM to certain groups.17
15 DELFI, 19 January 2015, http://www.delfi.lv/news/national/politics/valodas-sargi-darba-vietas-aicina-runat-latviesu-valoda-ari-politikus-mudina-intervijas-sniegt-tikai-latviski.d?id=45470090.
16 Independent expert committee responsible for evaluating the implementation of the Framework Convention in State
Parties, see http://www.coe.int/en/web/minorities/advisory-committee.
17 Typical wording of the ACs opinions is the following: In the absence of a definition in the Framework Convention itself, the Parties must examine the personal scope of application to be given to the Framework Convention within their
country Whereas on the one hand Parties have a margin of appreciation in this respect in order to take the specific
circumstances prevailing in their country into account, on the other hand this must be exercised in accordance with
general principles of international law and the fundamental principles set out in Article 3. In particular, the implementation of the Framework Convention should not be a source of arbitrary or unjustified distinctions.

Boriss Cilevics. Language Policies in Latvia: Lessons for Minority Protection

101

Most of the FCNM States Parties restrict the number of recognized minority groups
through declarations made upon ratification (either formulating general principles, such
as citizenship, lasting and longstanding ties with the state, etc., or compiling exhaustive
lists of recognized minorities) or in national legislation.

provided with duly certified translation. The law is silent with regard to oral communication between individuals and civil servants.
Therefore, Latvian legislation disregards substantial regional differences (in some
districts in Latgale, in the eastern part of Latvia, the proportion of Russian-speakers

18

In Latvia, the existence of minorities is recognized in the constitution (newly ad-

historically amounts to 80 to 90%) and prescribes uniform language rules for the entire

opted Preamble, as well as Article 114 that directly refers to the right to preserve and

states territory. This is why the FCNM was ratified with declarations. One of them stated

develop minority languages , and therefore presumes that these languages exist).

that the relevant provision of the FCNM (Article 10, paragraph 2) will be applied without

19

In the meantime, Article 5 of the main special piece of legislation, the State Lan-

prejudice to the Satversme (Constitution) of the Republic of Latvia and the legislative

guage Law, declares that [a]ny other language used in the Republic of Latvia, except the

acts governing the use of the State language that are currently in force. Thus, in sub-

Liv language, shall be regarded, within the meaning of this Law, as a foreign language.

stance, it was a reservation rather than a declaration: instead of adjustment of national

20

In turn, several other laws, notably the education law, refer to minority languages
(e.g. in the context of minority education programmes that can be implemented in public
schools).
Therefore, the existing legal framework creates a certain ambiguity regarding
whether minority languages exist in Latvia and when foreign languages spoken in Latvia
should be treated as minority languages. This offers room for arbitrariness and makes
persons belonging to minorities vulnerable to bureaucratic decisions.

legislation in accordance with the provision of international instrument, the latter was
simply disregarded.
As mentioned above, in practice these stringent restrictions are not strictly enforced and are often somehow bypassed. Indeed, non-implementation can be one of the
ways to deal with inadequate legislation, though it is hardly the best.
This situation highlights a fundamental weakness of the FCNM provisions: they are
worded as commitments of a state party, rather than the rights of persons within the

This situation well illustrates one of the key problems of the modern framework of

states jurisdiction. Indeed, language is an essential element of the quality of public ser-

minority protection: as a matter of fact, it is up to national authorities to decide which

vices. If these services are provided in a language that is not a mother tongue for a sub-

groups within their jurisdiction can claim protection as national minorities. In the mean-

stantial share (or even majority) of the local population, and many local residents have

time, the FCNM declares minority rights an integral part of universal human rights, and,

limited command in this language, the question arises of whether this is compatible with

as such, they must be implemented without any discrimination.

the idea of public services in a democratic state, which must be universally accessible.
In practice, this means that the rights guaranteed by law cannot be universally enjoyed
in reality, a situation that can be defined as effective denial of the constitutional rights.

5. Use of Minority Languages


before Public Authorities
The provision on the use of minority language before public authorities, a crucial element
of linguistic minority rights, is particularly cautiously worded in the FCNM. In contrast
to the previous versions of Latvias language laws, the State Language Law, which took
effect in 2000, stipulates that state and municipal institutions may accept applications
Integration andExclusion

from individuals only in the state language, and applications in other languages must be

102

This problem is to be considered from the point of view of equality, in particular


in the context of the EU non-discrimination directives. Such ground as language is not
explicitly excluded from the scope of the Race Directive, and there is no reason to treat it
differently from other prohibited grounds for different treatment. The FCNM formulates
a number of preconditions for the use of minority languages before public authorities.
In substance, these preconditions reflect a general proportionality test. Indeed, if the
share of persons belonging to a linguistic minority is big enough, one has good reason
to expect that these persons will be sufficiently represented in civil service, and that
awareness of minority language among civil servants will be rather common. Therefore,
offering public services in a minority language should be neither overly expensive nor a

18 List of declarations at http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=157&CM=2&DF=18/04/02&CL=ENG&VL=1.

disproportionate burden.

19 http://www.saeima.lv/en/legislation/constitution.
20 http://likumi.lv/doc.php?id=14740.

Boriss Cilevics. Language Policies in Latvia: Lessons for Minority Protection

103

Thus, denial of the use of minority language before public authorities may, in certain situations, amount to violation of human rights. Relevant case law is so far very
21

limited.

22

However, further practice in application of equality law will hopefully bring

more clarity.

the needed level of state language command. The list includes almost all possible jobs,
starting with agricultural workers and office cleaners.
Apparently, no analysis was made of whether or to what extent a certain job relates
to legitimate public interest. The logic of the drafters, routinely reflected in public rhetoric, was of a different nature: every participant in the domestic labour market must speak
Latvian simply because this is Latvia!. As a result, language requirements often appear

6. Professional and
OccupationalRequirements
The issue of language requirements for civil servants and other employees is, in principle, more clear. A democratic state not only has the right but is obliged to ensure that
officials who fulfil certain public functions have a command of the official language. This
stems from the same concept of quality of public services. However, it is much less clear
whether similar requirements can be extended to the private sector. If so, how far can a
state go?
A new draft of the State Language Law, tabled in 1998, substantially expanded the
list of employees subject to language requirements. This encountered objections from
the OSCE and the EU, as restrictive provisions could limit the right to freedom of move-

excessive in practice. For example, in predominantly minority-populated areas, service


providers often diligently learn Latvian and obtain the required language certificate but
have little chance to practice it, since they communicate with clients in Russian. Nevertheless, the State Language Centre regularly examines implementation of the regulations
and imposes fines.
This situation, too, is to be considered in terms of equality and non-discrimination.
Linguistic capacities may indeed represent an essential element of professional qualifications, but this is not always the case. The language requirements must be set and applied
in a proportionate and non-discriminatory manner. Flat and arbitrary application of these
requirements when they have little or no significance in the actual performance of professional functions puts persons belonging to minorities, for whom a required language
is not a mother tongue, in a disadvantaged position, i.e. discriminates against them.

ment for workers and entrepreneurs. After lengthy discussions, the final provision was
worded so as to require command and use of the state language from employees of private institutions, organisations and companies, as well as self-employed persons, if their
activities affect the legitimate public interests (public security, health, morality, health
care, protection of consumer rights and employment rights, safety in the work place,
supervision of public administration).
Again, implementation appeared crucial. As the FCNM AC diplomatically mentioned
in its opinion in 2014, the concept of public interest that is routinely referred to in the
context of the implementation of the state language policy, lacks clarity.23 Governmental regulations adopted in 2000 after negotiations with the OSCE were replaced in 2009
by much more voluminous normative act. According to the new version, in the private
24

sector an employer is in charge of defining language requirements for employees. How-

Integration andExclusion

ever, a long list of professions and jobs supplied with minimum language requirements

104

7. Effectiveness of Political Conditionality


In political rhetoric, the EU accession negotiations with the Baltic states are often presented as a success story: it is believed that related political conditionality greatly contributed to improvement of the general climate with respect to minority rights. Several
researchers, however, offer a more reluctant evaluation.25 Indeed, the EU had neither
standards nor expertise in the field, and these negotiations turned into bargaining with
the governments that was not based on clear principles, with no involvement of civil society or minorities themselves.
Effective negotiations were often low profile and not public, and it is not easy to
trace how certain changes have been achieved. In this chapter, we will consider one

was annexed to the regulations, thus limiting the employers possibilities of evaluating

example wherein the reasons and consequences are well known; namely, abolition of

21 de Varennes, Fernand. A Guide to the Rights of Minorities and Languages (COLPI, Budapest, 2001), 124.

25 Hughes, James and Sasse, Gwendolyn, Monitoring the Monitors: EU Enlargement Conditionality and Minority Protection
in the CEECs Journal on Ethnopolitics and Minority Issues in Europe (2003) No.1, 1-37; Poleshchuk, Vadim and Tsilevich,
Boris, The Baltic States before EU Accession: Recent Developments in Minority Protection, in: European Yearbook of
Minority Issues, Vol. 2, (European Academy & European Centre for Minority Issues, Leiden/Boston: Martinus Nijhoff
Publishers, 2004), 283-305.

22 HRC, Communication No. 760/1997, J.G.A. Diergaardt et al. v. Namibia, views of 6 September 2000, CCPR/C/69/D/760/1997.
23 AC FCNM Second opinion on Latvia, adopted on 18 June 2013, published 3 January 2014.
24 http://likumi.lv/doc.php?id=194735.

linguistic requirements for elected officials in Latvia.

Boriss Cilevics. Language Policies in Latvia: Lessons for Minority Protection

105

The laws on both parliamentary and municipal elections adopted in the early 1990s
stipulated that proficiency in the state language was an obligatory precondition for stand-

sake of state security. In order to compensate the harm, government parties tabled a
series of constitutional amendments.

ing. In order to be registered on the candidates list, a citizen had to submit a certificate

The amendments stipulated that only Latvian and EU citizens have the right to

of the highest level of proficiency in the state language (unless he or she received school

vote in municipal elections (virtually all international organizations persistently recom-

education in the Latvian language). Moreover, even if a candidate possessed the required

mended extending voting rights at municipal elections to all permanent residents, in-

certificate, a state language inspector could at any time examine his or her language ca-

cluding non-citizens, but this recommendation was never included in the context of po-

pacities, and if in the inspectors view these capacities did not correspond to the highest

litical conditionality). Besides, the provision that the Latvian language is the only working

level, the candidate had to be struck off the list.

language of both the parliament and municipalities was elevated to the constitutional

This issue was raised in the context of the next prolongation of the mandate of

level. A special oath was introduced for elected MPs to have their mandates approved

the OCSE mission to Latvia (established in 1993 with the aim to address the situation of

that, inter alia, included an obligation to defend Latvian as the sole state language of

non-citizens and minorities). Latvia was already at a rather advanced stage of accession

Latvia. Finally, the provision of Article 104, which had stated that everyone has the right

negotiations with both the EU and NATO, and the presence of the mission was seen as

to address state and municipal institutions and to receive a reply of substance, was

marring this status. The language requirements for deputy candidates were picked out of

amended so that only replies in the Latvian language are guaranteed therefore, the use

the list of problematic issues. At that time, both the UN Human Rights Committee and

of minority languages in communication with municipal bodies was actually banned by

the European Court of Human Rights had already found violations in two cases when

the constitution.

26

27

this provision was applied.

Therefore, intervention by the EU and NATO indeed helped to abolish one discrim-

After external pressure, in April 2002, the provisions were amended so that a candi-

inatory provision in Latvian law (which in practice affected few people, however). Never-

date had only to indicate a self-evaluated level of state language proficiency in documen-

theless, restriction of a citizens right to be elected was retained and even expanded soon

tation when registering for elections. The amendments were presented by the US and EU

afterwards. Meanwhile, a number of other amendments that negatively affected much

as a sign of substantial progress and even as removal of the last obstacle to compliance

more persons and hindered compliance with other standards of minority rights (e.g. the

of Latvias minority policies with international standards.

use of minority languages before public authorities) were adopted as a compensation

However, the provision of the Parliaments Rules of Procedure that envisaged depri-

for concession. Thus, one cannot but conclude that the situation of persons belonging

vation of an MP mandate because of insufficient command in the state language remains

to national minorities deteriorated as a result of intervention by international organiza-

in force up to now. No attempts to apply this provision in practice ever happened, prob-

tions.

ably because it could result in another violation ruling in the Strasbourg court. Moreover,

This story highlights practical aspects of political conditionality: to put it simply,

in 2010, the law on the status of municipal councillors was amended, and a similar provi-

who formulates conditions and evaluates short- and long-term consequences of external

sion was introduced: a mandate of an elected member of municipality can be annulled by

intervention, and on what basis.

the decision of the regional court if his or her command of the state language does not
correspond to the level determined by the Cabinet of Ministers. Unlike with the national
parliament, this provision was invoked in early 2015 when the State Language Centre initiated a procedure against a Russian-speaking councillor of Balvi.28
Even more important, the cancellation of the discriminatory provision in 2002 was
Integration andExclusion

accompanied by a series of compensatory measures. The government explained that

106

the measures, imposed by NATO and the EU, were unjust but should be accepted for the
26 HRC, Communication No. 884/1999, Ignatane v. Latvia, views of 31 July 2001, CCPR/C/72/D/884/1999.
27 ECtHR, Appl. No. 46726/99, Podkolzina v. Latvia, judgment of 9 April 2002.

8. The Concept of Society Integration


andLanguage Policies
The need to facilitate integration is routinely referred to in debates on language policies
with regard to national minorities, immigrants, and refugees. While command of the
official language is undeniably one of the most important aspects of successful integration, its role is too often exaggerated. In Latvia, the main policy planning document, the

28 Diena, 20 May 2015, http://www.diena.lv/latvija/zinas/bez-valodas-nav-mandata-14098536.

Boriss Cilevics. Language Policies in Latvia: Lessons for Minority Protection

107

Guidelines on National Identity, Civil Society and Integration Policy (20122018), adopted

forced by law. This trend was particularly clear at the time of growing tensions over mi-

by the government in 2011, sets the main task as integration of society on the basis of

nority education reform.32

the Latvian language, culture and national identity.29


The potential danger of excessive emphasis on language is that integration is understood as cultural assimilation rather than social cohesion. The latter is a much more

Therefore, the impact of stringent language policies on social cohesion is twofold.


It promotes the common language but is detrimental to other dimensions of integration,
such as culturally neutral common values, equality, and non-discrimination.

comprehensive concept that comprises not only linguistic and cultural but predominantly
social aspects of overcoming alienation and exclusion of vulnerable groups.
In the context of these language-oriented policies, minority languages are perceived not as integral components of a countrys cultural diversity but rather as foreign,
and often hostile, elements that should be restrained and eradicated for the sake of national unity, understood in ethnic terms. The use of minority languages is deplored and
rejected even when relevant law permits or prescribes it.
A recent debate over the Oncology Patients Association disseminating information
about free screening for breast cancer in the Russian language as well as Latvian is a
valid example. The association claimed that the main risk group was women over 50, and
many in this category are not fluent enough in the state language to understand medical
information. However, the head of the State Language Centre dismissed this argument as
a demagogy. In his view, this will discourage people from learning the state language,
as in no other country public communication with the society could take place in a language other than the state language typical discourse of normalization, even if the
statement is factually wrong.30
Another example of this kind is the recommendation of the head of another body,
the State Language Commission, that the president of Latvia communicate with media
only in Latvian.31 This is hardly compatible with the existence of private media in minority
languages (and even the use of Russian, though limited, in public broadcasting), more
so in the context of the ongoing information war, when the task of reaching out to the
Russian-speaking audience is recognized as one of the top priorities.
Emphasis on language as the main tool for integration entails an ambiguous effect.
On one hand, stringent language legislation and policies resulted in radical improvement
in proficiency in Latvian among Russian-speakers. On the other, pressure discourages
persons belonging to minorities from speaking Latvian, even if their command of Latvian

Integration andExclusion

is perfect. In other words, people become able to speak Latvian but do not wish to unless

108

9. Conclusions
Development of language policies in Latvia highlighted a number of issues crucial for
further evolution of both standards and implementation of linguistic minority rights. The
key issue is ensuring coherence and complementarity between minority rights on one
hand and the universal principle of non-discrimination on the other. So far, linguistic
policies are still often seen as outside the general framework of equality and non-discrimination. This approach is clearly obsolete now and must be reconsidered. In particular, recognition of minority languages, as well as such aspects of language policies as
the use of minority languages before public authorities or professional and occupational
language requirements, have obvious relevance to non-discrimination. This may limit
the traditionally accepted states discretion with regard to use of minority languages
in the public sector. However, this is a logical effect of the progress in interpretation of
non-discrimination, from formally equal treatment to full and effective equality, when
different treatment is sometimes needed to ensure substantive equality. This approach
is very close to the modern interpretation of minority rights. Moreover, in due course, the
concept of minority rights may be fully integrated into the paradigm of full and effective
equality.
Another important issue is how to make external intervention based on political
conditionality effective in practice. While the positive impact of international actors in
Latvia is undeniable, in some cases, as shown in this paper, external intervention had
serious deficiencies and even led to deterioration of the situation.
Finally, the role of languages in integration policies becomes an increasingly topical issue with regard to not only national minorities but also, and rather, immigrants and
refugees. Exaggerated emphasis on mastering official languages at the expense of ensuring effective equality and equal opportunities, not only in law but also in practice, leads

29 www.km.gov.lv/lv/doc/nozaru/integracija/Pamatnostadnes/KMPam_071011_integ.pdf.

to the understanding of integration as cultural assimilation rather than social cohesion.

30 Integration Monitor, daily Latvian press digest on minority and social integration issues, Latvian Human Rights Centre,
20 May 2015, http://cilvektiesibas.org.lv/en/monitoring/search/?date_from=2015.05.20&date_to=2015.05.20&query=.
31 Latvian Public Broadcaster portal, 17 July 2015, http://www.lsm.lv/lv/raksts/latvija/zinas/vvk-vaditajs-prezidentam-ar-latvijas-medijiem-vajadzetu-runat-tikai-latviesu-valoda.a138050/.

32 Zepa, Brigita and Kave, Evija, Latvieu valoda: apguve, attieksmes, lietoana 1996 2008. Baltic Institute of Social Sciences report, www.valoda.lv/downloadDoc_30/mid_527.

Boriss Cilevics. Language Policies in Latvia: Lessons for Minority Protection

109

This may have much to do with the phenomenon of growing alienation of second- and
third-generation migrants, who more often feel excluded and therefore tend to support
radical views towards the societies in which they were born and grew up in extreme
cases, up to joining terrorist groups. Thus, as in the early 1990s, when minority-related
conflicts were seen as the main threat to peace and stability in Europe, language policies

Integration andExclusion

again include a growing security dimension.

110

The Protection of Language


Rights of Minorities
inLithuania
Elbieta Kuzborska

1. Introduction
The protection of national minorities in Lithuania is a complex issue, with unique historical and political dimensions, mainly because of the 50-year Soviet occupation. Having
been kidnapped from the European family1 until the 1990s, Lithuania, as well as Latvia
and Estonia, then began a course of political and economic reintegration with the Western world.2
Starting in the 1990s, the Government of Lithuania undertook a number of international commitments concerning the protection of human rights, including the rights
of national minorities. On one hand, today, taking into account the tense geopolitical
environment, the protection of minorities through inclusive laws and practices seems to
be of particular importance. On the other hand, it must be appreciated that legislation
that respecting the rights of minorities can be a source of tension. The sensitive historical context of the Baltic States requires a delicate balance between the promotion of the
culture and the language of the majority and measures to protect the rights and preserve
the identity of minorities.
How to build and maintain cohesiveness in a multiethnic and multilingual society? What are the crucial minority rights that could help to succeed in this effort? This
1 Words of formaer British foreign secretary Douglas Hurd, Estonia, Latvia, and Lithuania country studies, ed. Walter
R.Iwaskiw, Washington, January 1995.
2 Ibidem.

Elbieta Kuzborska. The Protection of Language Rights of Minorities inLithuania

113

chapter will not cover all the aspects of the protection of national minorities in Lithuania3

In other words, legitimate government efforts in maintaining a states official lan-

but will try to highlight the dilemmas and perspectives of minority protection in those

guages or national identity must not disregard the rights of its citizens who are members

states. In particular, it will consider the main concepts that describe the challenges and

of a national minority. National minorities have human rights relating to language mat-

opportunities relating to the contemporary protection of national minorities in the re-

ters and to the protection of their identity. In practical terms, this means that, in relation

gion: inclusion, cohesion, and respect for a minoritys identity and one of its essential

to the use of a minority language by state authorities in their contacts with members of

manifestations language.

the general public, the application of the broad principle of linguistic proportionality5
as contained in documents such as the Framework Convention and the Oslo Recommendations. More precisely, a government should use to an appropriate degree one or a few

2. The Language Aspects of Inclusion


One of the greatest problems facing the world today is the growing number of persons
who are excluded from meaningful participation in the economic, social, political, and
cultural life of their communities. Such a society is neither integrated nor efficient4.
This way of thinking has been already incorporated into legal and political measures at the international level including the Council of Europe and OSCE in treaties
such as the Framework Convention for the Protection of National Minorities and the Oslo
Recommendations on the Linguistic Rights of National Minorities. At the same time, how
a government can best reduce inequalities and exclusion while strengthening social relations and a sense of belonging within a state remains a real challenge.
We must keep in mind that there is no single approach that fits all situations and
that each country is unique. In each case, a number of factors should be taken into consideration by the government when it considers how to respond to the linguistic reality
on the ground in terms of language use and accommodation: social composition, the
relative size of linguistic communities involved, the demand for reasonable language
preferences. Very often in the case of Lithuania, as well as in other Baltic States, history
and political context play a crucial role in a governments policies and practices of in-

other languages in its institutions, voting process, employment, education, and public
signs6 in a way that reflects proportionally the concentration and numbers of speakers of
these minority languages.
The importance of rights relating to use of minority languages by the government
cannot be exaggerated: language not only opens the door to different opportunities, it
can also ensure equal access to services and opportunities. It also has an important social dimension in relation to inclusion. In other words, the state can either be inclusive
through its language policies or, in effect, increase inequalities with language preferences that, in areas such as education and employment, particularly the civil service,
may exclude or disadvantage large segments of its population7. There is in most scientific
circles a frequent focus on education, but an arguably even more important illustration
of the significance of language can be seen when a government determines whether a minority will be included or excluded from political and economic participation by requiring
fluency in the official language for employment purposes8 and excludes any recognition
of the language spoken and used by minorities.
It is worth emphasizing that language itself is not the cause of tension or conflict
but rather governments excluding or disadvantaging significant groups of individuals directly or indirectly through its own language preference9.

clusion or in some cases, exclusion. In any event, a democratic and inclusive approach
favourable to stability and successful integration would suggest that governments should
seek with those most directly affected by these policies and practices minorities themselves an agreement reflecting an appropriate balance to help maintain inclusion and

Integration andExclusion

stability, peace and safety.

114

3 For detailed analysis on linguistic policies and legislation in the Baltic States see: B. Tsilevich, Development of the
Language Legislation in the Baltic States, in: The Human Rights of Linguistic Minorities and Language Policies, International Journal on Multicultural Societies, Vol. 3, No. 2, 2001, p. 137-154.
4 Overcoming Exclusion through Inclusive Approaches in Education Conceptual Paper. A Challenge and a Vision, Section for
Early Childhood and Inclusive Education, Basic Education Division, UNESCO, 2003; F. de Varennes, Language Rights and
Social Cohesion: A Balance for Inclusion and Stability, in: Language and Social Inclusion in Development, Proceedings
of the 9th International Language and Development Conference, GIZ (German Development Agency) and British Council,
Colombo, Sri Lanka, 2015.

5 In the context of minority rights in the European Union, see: N. N. Shuibhne, The European Union and Minority Language Rights, in: The Human Rights of Linguistic Minorities and Language Policies, International Journal on Multicultural Societies, Vol. 3, No. 2, 2001, p. 64
6 For a more detailed analysis on individual freedoms concerning the use of minority languages see: F. de Varennes,
Language and Freedom of Expression in International Law, Human Rights Quartely, Vol. 16, No. 1, pp. 163, 164.
7 F. de Varennes, Language Rights and Social Cohesion: A Balance for Inclusion and Stability, op.cit.
8 Ibidem.
9 The language aspects of inclusion can be illustrated with an example from South Tyrol, where because of the exclusion
of German as a language of education and employment there was a violent separatist movement involved in terrorist
acts in 1960s. The most active in this regard was the underground secessionist organization the Committee for the Liberation of South Tyrol. In the 1970s, the Government of Italy recognized that there had to be a more balanced, proportionate approach so as to not exclude members of the German-speaking minority. After negotiations concerning South
Tyrolean autonomy, the situation became more stable. Today, the South Tyrol region is very successful economically,
and the German-speaking minority is fully comfortable and fully a part of Italian society; these steps have guaranteed
the proportional inclusion of this minority in the countrys social, political, and economic opportunities.

Elbieta Kuzborska. The Protection of Language Rights of Minorities inLithuania

115

Some scholars tout that territorial autonomy can be an ideal formula to apply to

sovereign countries in 1918 and therefore experienced 22 years of independence before

linguistic rights or protection of the identity of national minorities. However, it would

being annexed by the USSR in 1940. This is when the real challenge to the national iden-

not be accurate to say that the protection of linguistic rights of minorities can only be

tities of these small states arose. The annexation was accompanied by drastic changes in

assured through autonomy, as in cases such as the autonomous province of South Tyrol

their demographic situations caused by exile, deportation, large-scale in-migration after

in Italy or the land Islands in Finland. The linguistic rights of minorities can be protected

World War II, and Soviet troop deployments. Because of all of these historical factors, the

through proportionate legislation that respects the language and identity of minorities

fear of ethnic extinction, or cultural extinction among the national communities (Lithu-

in ways that reflect their reality and needs, thus ensuring their rights in education, in the

anian, Latvian, and Estonian) in the three Baltic States is extremely vivid.

use of their language by public institutions, and in the reflection of their identity in areas

After regaining independence, Lithuania, Latvia, and Estonia all faced the challenge

such as names and toponomy. This would be a particularly appropriate approach in the

of rebuilding cohesive societies. Political, legislative, and administrative measures were

Baltic region, given its specific history.

taken, with a result that could be described as ethno-national self-defence. This was

The legal and political standards concerning the use of language in education and

especially reflected in linguistic and citizenship policies in Latvia and Estonia. Unlike Lith-

civil service to ensure social inclusion were expressed in a number of international docu-

uania, Latvia and Estonia refused to automatically grant citizenship to all inhabitants. The

ments and decisions . None of these suggest that all languages should be treated iden-

reason for this was the high percentage of Russian population in the countries. According

tically; that would be impossible and unworkable. A practical implementation must be

to the 1989 census, ethnic Lithuanians in Lithuania accounted for 80% of the entire popu-

based on proportionality to a degree that suits the particular situation or the nature of

lation; the titular nationality in Estonia, 61.5%; and ethnic Latvians 52% of the population

the service or rights involved. For example, under international human rights law, it could

in Latvia. Russians made up 9.4% of the population in Lithuania, 34% in Latvia, and 30%

be discriminatory to prohibit large concentrations of minority or indigenous language

in Estonia. Poles constituted 7% of the population in Lithuania.

10

speakers (where this is reasonable and justified) to use their languages in contacts with
government services, such as public education, public health, and social services .
11

However, analysis of results of the latest censuses show that, today, more than
two decades since regaining independence, the Russian minority in the Baltics has sig-

After gaining independence, Lithuania ratified the Framework Convention but did

nificantly decreased (around -38% change from 1989 to 2011)12. Currently, the Russian

not sign the European Charter for Regional or Minority Languages, as the governments

minority constitutes 26% of the Latvian, 25% of the Estonian, and 5.8% of the Lithuanian

decided the provisions on the use of minority languages contradicted the constitutional

population.

doctrine of state language protection.

It must be noted that, while the Baltic States managed to avoid violent inter-ethnic
clashes, the main issues relating to inclusion policy in the Baltic States still remain:
The non-citizenship problem;

3. Minority Rights in Lithuania


3.1. Demography, History, and
Contemporary PoliticalSurroundings
A sense of national identity in the Lithuanian nation was strongly tested from the very
Integration andExclusion

beginning. One cannot forget the fact that Lithuania, Latvia, and Estonia existed as

116

10 See, e.g.: the European Charter for Regional or Minority Languages; the Framework Convention for the Protection of
National Minorities; the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE,
adopted on 29 June 1990; the Oslo Recommendations Regarding the Linguistic Rights of National Minorities 1998; the
Hague Recommendations Regarding the Education Rights of National Minorities, 1996.
11 United Nations Human Rights Committee, Communication No. 760/1997, CCPR/C/69/D/760/1997 in case Diergaardt v.
Namibia.

Dilemmas concerning the use of minority languages in education and by


the state authorities; and
A persistently negative public debate on national minorities and their supposed lack of willingness to integrate, further marginalizing this part of
the population.
The general problem is that Polish and Russian minorities in Lithuania, as well as
Russian minority/non-citizens in Latvia and Estonia, are perceived by state officials as
not to be trusted, by definition. Similarly, Lithuanian politicians are convinced that Polish
minority demands regarding the use of their language in public are unreasonable.

12 P. Zvidrins, A. Berzins, Dynamics of the Ethnic Structures in the Baltic countries in the 21st century, European Population
Conference, 25-28 June 2014, Demographic Research Institute, Budapest.

Elbieta Kuzborska. The Protection of Language Rights of Minorities inLithuania

117

It seems that the reasons for such resistance and unwillingness to consider the
demands or needs of minorities in the Baltic States are mainly historical. For example,

languages of instruction. In Lithuania, a branch of a Polish public university (the University of Biaystok), where the curricula is offered only in Polish, was established in 2007.

Poland and Lithuania were for centuries united in a Commonwealth where the Polish
language and culture were predominant. What today is an effective ban on the use of Pol-

Despite these positive practices, the educational system of minorities in Lithuania


has in recent years been undermined by so-called educational reform.

ish by state authorities, and even prohibitions on its use in some private activities (e.g.

These changes were introduced by the Law on Education in 2011 and have mainly

bilingual private signs) could therefore be explained as fear that a small nation could be

consisted of increasing the number of subjects or hours that are taught in the official

gobbled up by a bigger neighbor and its culture. This fear does not exist when it comes

language14 and introducing a unified state language exam for all school graduates even

to the use of English. English is extremely visible in almost all governmental activities,

in the case of students from state schools with a minority language of instruction (before

from public signs to official correspondence. Ironically, laws that require the exclusive

the reform, the minority school pupils were taking a different, simplified state language

use of only the official language of Lithuanian are ignored when authorities continuously

exam, since the official language is not their mother tongue15).


It should be noted that these changes, with resultant negative educational con-

use English and, selectively and arguably discriminatorily applied, it seems to punish

sequences for minorities, occurred with no effective consultations of the communities

minority languages such as Polish and Russian.


The question of discrimination towards minorities, according to a number of inter-

involved. They were in effect introduced and implemented against the will of the affected

national organizations reports, includes the issue of non-citizens in the Baltic States .

minorities (mainly Polish and Russian) and resulted in massive protest campaigns. Nei-

This is not the case when it comes to Lithuania. The country adopted the zero-option

ther did state authorities produce any social studies or surveys demonstrating that the

in the 1990s and thus avoided possible tensions by automatically granting citizenship

so-called reforms would strengthen official language skills among minority schools pu-

regardless of the nationality of permanent residents. This highly inclusive approach was

pils.

13

welcomed by the international community as well as by Lithuanian society in general.

The above changes were justified in the name of integrating minority students

Soon afterwards, the Law on National Minorities was adopted. Unfortunately it expired

into majority civil society by replacing their own language with the official language. It

in 2010, and there is currently no comprehensive regulation on minority rights or linguis-

was not taken into account that, while these young people had been educated in their

tic rights in particular.

own languages, the proficiency level in official languages among young generation of mi-

Another issue of great importance when it comes to inclusion and integration poli-

norities has actually been very good or excellent in more recent years. Those who claim

cies is the use of minority languages in education, when in contact with state authorities,

that not all members of minorities in the Baltic States are fluent in the official language

and in assessing various state services and institutions.

seem to refer to older people educated during the Soviet era, not pupils educated in their
own language at minority language state schools after the 1990s.16

3.2. Issues Concerning the Education of Minorities


Minority language education is a key component in protecting the identity of minorities

Strengthening official language skills among the members of minorities is a legitimate step, but minorities also have a right to be educated in their own language where it
is reasonable and proportionate.

and exercising the right to education without discrimination. Lithuania has a series of
public schools that provide education in minority languages: 51 Polish-language schools,
31 Russian schools, one Belarusian school, and 36 mixed schools, including, for example,

Integration andExclusion

a multilingual school with separate programmes in Polish, Russian, and Lithuanian as

118

13 There are just under 300,000 non-citizens in Latvia, and the number of applications for naturalization remains low.
The numbers of non-citizens in Estonia is now estimated around 85,000 people (6.5% of residents).
See, e.g.: Linguistic minorities in Estonia: Discrimination must end, Amnesty International, EUR51/002/2006en, 2006,
p. 11; Advisory Committee on the Framework Convention for the Protection of National Minorities, Second Opinion on
Latvia, adopted on 18.06.2013, Strasbourg, 3.01.2014, ACFC/OP/II(2013)001.

14 The new Act on Education in 2011 introduced the mandatory teaching of some subjects in Lithuanian.
15 After introducing the unified exam in 2013 in Lithuania and in 2012 in Latvia, not surprisingly, minority schools graduates get lower marks, impacting their chances to get state-funded places at the universities.
16 For example, according to a 2014 study in Latvia, only 1.1% of 18- to 24-year-old minority respondents described their
skills in Latvian as weak, with all others described them as good or excellent.

Elbieta Kuzborska. The Protection of Language Rights of Minorities inLithuania

119

3.3. The Use of Minority Language by the Government


As mentioned before, the second linguistic pillar of an inclusive approach towards minorities is the use of the minority language by state authorities mainly, but not only, in
public signs and in contact with and receipt of services from local authorities.
One can observe a very strong constitutional protection of state languages when
it comes to legislation in Lithuania (and in all three Baltic States). Only rarely is use of

Recently, a compromise in this regard was reached, with a new street signing
system, according to which monolingual Lithuanian names will appear on poles in the
streets and bilingual signs will remain on private houses. The problem still remains, as
there is no legal possibility of placing bilingual topographical indications intended for the
public in the minority language when there is a sufficient demand for such indications in
areas traditionally inhabited by substantial numbers of persons belonging to a national
minority.

minority languages permitted for communication purposes.


There is no possibility of the use of the minority language in local institutions in
communication with officials in Lithuania, as there is no legislation on this right. This fact
was noted by the ACFCA in its opinion on Lithuania in 200317 and again in 2008.18 In the
latter opinion, it was stated that the Lithuanian authorities should re-examine both the
legal and the factual situation regarding the use of minority languages with administrative authorities.

19

Almost immediately after the Law on National Minorities expired, the State Language Inspecttorate (Valstybins kalbos inspekcija) started to impose penalties on the directors of municipal administrations where national minorities were concentrated (Polish
mainly, but also Russians) for tolerating private individuals having bilingual street names
on their homes. State Language Inspection officials have mainly referred to Article 17 of
the Law on State Language20 to the effect that In the Republic of Lithuania public signs
shall be in the state language, even though the same law itself (in Article 1) excludes the
possibility of its application to minorities in accordance with the principle lex specialis
derogat legi generali.21 In the opinion of the Commission of Lithuanian Language (Valsty-

3.4. The Right to Names and Surnames



in a Minority Language
In Lithuania, according to the Regulation of the Supreme Council of 31 January 1991 on the
Spelling of Names and Surnames in Identity Documents,23 the names and surnames of
persons of non-Lithuanian nationality must be written using the Lithuanian alphabet
in Lithuanian identity documents. At a written request from a citizen, his or her name
and surname are written based on either the pronunciation in the Lithuanianized ungrammatical form (without Lithuanian endings) or the pronunciation in the Lithuanized
grammatical form (with Lithuanian endings). In practice, this means that a persons name
and surname must be in a Lithuanian language form.
This is confirmed by the Constitutional Court itself, which has ruled that all citizens
must have a name and surname in the Lithuanian language. In its ruling of 6 November
2009, the Constitutional Court stated that
after a name and surname are written in a passport of a citizen of the Re-

bins kalbos komisija), bilingual signs intended for the public would in practice legalize

public of Lithuania in the state language, an entry can be made of the per-

bilingualism, contrary to the constitution. It also argued that bilingual street signs could

sons name and surname using other, non-Lithuanian, diacritical signs, in an

hinder the work of the police, emergency services, and other public services.22

ungrammatical form, in another page of the passport in the section other


entries at the request of the person; such an entry of the name and surname

17 Opinion on Lithuania, 2003, Par. 53, the Committee noted that in the context of the right to use minority languages
alongside the Lithuanian language in state and local government institutions, in the Law on National Minorities (which
was at that time in force) there is a lack of criteria to determine the regions in which a significant number of people
would be a minority, which allows for different interpretations of the provision (in effect, the right was not exercised).
In Par. 55, it was emphasized that the duty of governing institutions is to ensure that the need to use the state language
would not exceed the boundaries of the public sector. In addition, attention was paid to the issues of legal uncertainty
in the use of the state language and the languages of national minorities, and suggested to take appropriate measures
in this regard.

in the passport section other entries made in non-Lithuanian diacritical


signs cannot be equated to the entry made in the state language. Such an
entry shall not have legal value in public sphere.24

18 ACFC, Second Opinion on Lithuania, Strasbourg, 28 February 2008, ACFC/OP/II(2008)001.


Integration andExclusion

19 Ibid., 105.

120

20 Law of the Republic of Lithuania on the State language (LR valstybins kalbos statymas), 31 January 1995, No I-779, as
last amended on 13 June 2002, No IX-954.
21 Art. 1: The Law shall not regulate unofficial communication of the population and the language of events of religious
communities as well as persons, belonging to ethnic communities. Other laws of the Republic of Lithuania and legal
acts adopted by the Seimas of the Republic of Lithuania shall guarantee the right of persons, belonging to ethnic communities, to foster their language, culture and customs.
22 Opinion of the Commission of Lithuanian Language on the draft of Law on national minorities and amendments of the

Law on State Language, 14 November 2013.


For more information on penalties see: http://en.efhr.eu/2014/10/03/the-matter-of-the-bilingual-street-plates-almost-solved/

23 Regulation of the Seimas of the Republic of Lithuania on the spelling of names and surnames in identity cards of citizens of the Republic of Lithuania (LR Aukiausios Tarybos nutarimas dl vard ir pavardi raymo Lietuvos Respublikos
pilieio pase) of 31 January 1991, No. I-1031, Valstybs inios, 20 February 1991, No. 5-132.
24 Ruling of the Constitutional Court of the Republic of Lithuania (LR Konstitucinio Teismo sprendimas dl LR Konstitucinio
Teismo 1999 m. spalio 21 d. nutarimo motyvuojamosios dalies 4 ir 7 punkt nuostat iaikinimo) of 6 November 2009, No
14/98.

Elbieta Kuzborska. The Protection of Language Rights of Minorities inLithuania

121

Justifying the decision, the Constitutional Court referred to its decisions of 1991, the

Finally, it is worth emphasizing that on 8 April 2010, the Lithuanian Parliament

constitutional value of the state language, and the principle of equality in the sense that

actually rejected a draft law on the spelling of names and surnames31 that had been pro-

only one language should link all citizens to ensure equality. It also stressed the importance

posed by the government and that provided for the possibility of formal recognition of

the Lithuanian language plays in the process of the consolidation of the Lithuanian nation.

the spelling of names and surnames of citizens using the diacritics of other languages

The problem of allowing individuals to have names and surnames in a minority

based on the Latin alphabet.32

language has been noticed by the international community.25 In 2002, the European Commission, in its report relating to the preparation of Lithuania joining the EU and the issue
of minority rights and their protection, pointed to the dispute between Poland and Lithuania.26 In its opinion on Lithuania of 2003, the ACFC pointed out that
the Advisory Committee regrets that, in spite of the discussions that have
been ongoing for several years both at the national level and in the context
of bilateral relations, no commonly approved solution has yet been found
on the modalities of transcribing the surnames and first names of persons
belonging to national minorities (in particular the Poles) in passports.27
In the same year, the Committee of the Ministers of the Council of Europe in its
Resolution on the Implementation of the FCNM in Lithuania indicated that the legal basis
and practical implementation in the field of the use of minority languages should be improved.28 In the second report presented in 2006 in relation to the FCNM, Lithuania consistently stressed that the use of the Lithuanian transcription when spelling the names
of persons belonging to national minorities was in line with the provisions of the FCNM,
despite ACFCs conclusion to the contrary.29
In December 2009, in his appeal addressed to the Prime Minister of Lithuania,
Council of Europe Commissioner for Human Rights Thomas Hammarberg also expressed
the concern that no solution has yet been found on the modalities of transcribing the
surnames and first names of persons belonging to national minorities (in particular the
Poles) in passports.30
25 As for the practical aspects of the implementation of the right to spell names and surnames in the language of the Polish
national minority, see two cases relating to the issue that triggered an international response: Kleczkowski v. Lithuania,
Human Rights Committee, ninety session, 24 July 2007 U.N. Doc. CCPR/C/90/D/1285/2004 and Wardyn / Vardyn v. Lithuania, CJEU judgment of 12 May 2011, C-391/09. CJEU stated that it is up to the legislation of each member state to determine
the conditions for entering, amending or writing the forenames and surnames in documents indicating civil status.
26 Regular Report on Lithuanias Progress toward Accession, 2002, COM(2002)700 final, Commission of the European Communities, Brussels, 9.10.2002, SEC(2002)1406, p. 29.

4. Conclusions
The effective and fair integration of minorities was a major challenge Lithuania faced
after restoring independence in the 1990s. The state declared integration a priority in the
development of their societies, and special national programs were developed to this
end. In summing up what was presented, the three main pillars of effective inclusion in
Lithuania in contemporary perspective and state policy must be singled out.
First of all, the politicians should take up the challenge of rethinking the concept
of an integration policy as such. The integration cannot be perceived as a one-way street.
The time has come to realize that minority languages are of major importance in the region. They must be perceived more as tools for inclusive and effective communications
with the members of these minorities than a symbol of the legacy of the past Soviet regime or other historical events.
Secondly, the main pillar of preserving the identity of any minority is education
in minority languages. All changes concerning teaching minorities must be introduced
after effective consultations with the communities. Moves to eliminate or replace these
languages as medium of instruction should cease.
The third pillar is the use of minority language by state authorities. It is very important to allow, where justified and reasonable, a proportionate use of minority languages
in public information, in public offices, and then in contact between state officials and
members of national minorities. This would help avoid tensions and a climate of hostility.
The clearest form of inclusion and integration is a liberal approach in language
policies. The fact that the government communicates with its minorities (when justified
and reasonable) in their native language contributes to a better environment of trust and

Integration andExclusion

27 ACFC, Opinion on Lithuania, Strasbourg, 21 February 2003, ACFC/INF/OP/I(2003)008, p. 17.

122

28 Council of Europe, CM Resolution ResCMN(2003)11 on the implementation of the Framework Convention for the Protection of National Minorities by Lithuania, 865th meeting, 10 December 2003.
29 Second Report Submitted by Lithuania pursuant to Art. 25, para. 1 of the Framework Convention for the Protection of
National Minorities, Strasbourg, 3 November 2006, AC FC/SR/II (2006)007, p. 63 et seq.
30 He also encouraged Lithuania to ratify the European Charter for Regional or Minority Languages to ensure the use
of minority languages in relations with administrative authorities and public services, see: Commissioner for Human
Rights Thomas Hammarberg, Letter to Mr. Andrius Kubilius, Prime Minister of Lithuania, CommDH(2010)4, Strasbourg, 9
December 2009, Ref: CommHR/BUsf188-2009.

31 Vard ir pavardi raymo dokumentuose statymo projektas, 29 March 2010, No XIP-1644 (2).
32 After the voting, Prime Minister A. Kubilius did not deny that such a law was much desired in the Lithuanian Polish minority: If youre asking about the opinion of Vilnius region Poles, which are of Polish originthey say that
they want to write their surnames the same way that their parents and grandparents used to. This request has
its meaning and logic, I do not understand, why cant we hear it. When Lithuanians asked for the same in Poland, their voice was heard. Seimas votes against original foreign surnames in passports again, 8 April 2010, at
<http://www.alfa.lt/straipsnis/10340123/?Seimas.votes.against.original.foreign.surnames.in.passports.again=
2010-04-08_12-29.#ixzz2sUDSkd6U>.

Elbieta Kuzborska. The Protection of Language Rights of Minorities inLithuania

123

cohesion. The reverse only protecting the state language without provisions respecting
and protecting minority languages creates an environment of resentment and distrust.
In the current context of geopolitical challenges in the region33, it is of the greatest importance to reach for a balance and create a minority-friendly political and social milieu
that includes a comprehensive minority rights protection system, especially in the con-

Integration andExclusion

text of linguistic rights.

124

33 The Russian-Ukrainian conflict and the fact that Russian Government used the argument of the need to protect the
Russian minority during the annexation of the Crimea in March 2014.

Linguistic Rights in Belarus:


Law and Practice
Hanna Vasilevich

1. Introduction
Language issues have always been closely affiliated with national identity, playing a pivotal role in its development and preservation. Within the Central and Eastern European
historical and cultural contexts, language is usually considered the innermost sanctum of ethnicity.1 From the human rights perspective, respect for a persons dignity
is intimately connected with respect for the persons identity and consequently for the
persons language.2 With regard to minorities, linguistic rights are crucial in order to
provide minorities with the necessary confidence that their identity can be preserved in
multi-ethnic societies where other languages or groups dominate.3
Contrary to most of the post-communist countries of Central and Eastern Europe,
since 1995 Belarus has had an established official bilingualism, which makes the Belarusian situation in this regard rather specific. On the one hand, the state has two official
languages: Belarusian and Russian. On the other hand, one of these languages is in fact
the language of a national minority. This situation makes the legally established language
hierarchy in Belarus more complicated than in most countries of the region. On the
one hand, this complexity concerns the relationship between two official languages and
1 Schpflin, George. Nations Identity Power: The New Politics of. Europe (Hurst and Co., London, 2000), 116-8.
2 The Oslo Recommendations regarding the Linguistic Rights of National Minorities & Explanatory Note, OSCE High Commissioner on National Minorities, February 1998, 1-33, at 11. http://www.osce.org/hcnm/67531?download=true.
3 Conference Report Linguistic Rights of National Minorities ten years after the Oslo Recommendations and beyond.
Safeguarding Linguistic Rights: Identity and Participation in Multilingual Societies, OSCE High Commissioner on National Minorities and the Norwegian Centre for Human Rights, 18-19 June 2008, 1-37, at 9. http://www.osce.org/hcnm/37403?download=true.

Hanna Vasilevich. Linguistic Rights in Belarus: Law and Practice

127

facilities provided by the state for their use in public. On the other hand, one of the de

by the Moscow policies aimed at rapprochement of the nations and the imposition of the

facto minority languages, i.e. Russian, enjoys special status and treatment in the state,

Russo-centric historical canon, which saw all pre-Soviet state formations of the territory

which makes it different from other minority languages used in Belarus.

of Belarus as foreign. Hence, the Soviet central authorities treatment of the Belarusian

This chapter deals with this specific linguistic situation by describing its develop-

language as a second-class language less suitable for different spheres of life was the

ment and providing analysis of the current linguistic situation in the country. At the same

result of the economic reality, cultural policies and imperial nature of the Soviet fed-

time, it depicts the role and spread of the national minorities languages and analyzes

eration.9 The Belarusian SSR officials were to become a part of this scheme, since their

their relations vis--vis the state languages.

political loyalty was also determined by their loyalty in the sphere of language use.10 Moreover, any public support of the Belarusian language by the Belarusian SSR key officials, like
Piotr Maera, could have resulted in their immediate removal by Moscow.11 This approach

2. Languages in Belarus: Law and Practices


During the last two centuries, the Belarusian language faced significantly different periods of existence as the authorities policies varied from official prohibition to official promotion. Regardless of the context of these policies, the Belarusian language was always
an important cultural marker of the Belarusian national identity and its distinctiveness.
The last Soviet census, in 1989,) showed that 77.9% of the Belarusian SSR population were
ethnic Belarusians and that 74.5% of the BSSRs entire population identified Belarusian
as their native language (in Belarusian: rodnaja mova).

At the same time, the four post-war censuses organized in the Belarusian SSR
showed that among ethnic Belarusians the number of those who indicated Belarusian as
their mother tongue was high but nevertheless declining from 93.2% in 1959 to 90.1% in
1970, 83.5% in 1979, and 80.2% in 1989.5 Within the same period, the number of persons
of all ethnicities residing in the Belarusian SSR and declaring Russian as their mother
tongue had grown from 13.7% in 1959 to 28.3% in 1989.6 Moreover, the Belarusian language
was affected by creolization and spreading of the mixed Belarusian-Russian vernacular
called trasianka.7
This decline was largely determined by the promotion of the Russian language as
the language of inter-ethnic communication throughout the Soviet Union. Concerning the
Belarusian situation, this was formulated by Khrushchev in 1959 in his statement at the
Belarusian State University: The sooner we all start speaking Russian, the faster we shall

Integration andExclusion

build communism.8 Moreover, in the Belarusian case, this formulation was accompanied

128

4 O narushenii lingvisticheskih prav korennoy natsii Respubliki Belarus. Belarusian Helsinki Committee and Belarusian
Language Society, n.D. http://languages.miensk.com/tbm/parusenni.htm.
5 Ioffe, Grigory. Understanding Belarus: Questions of Language in Europe-Asia Studies, vol. 55, no. 7 (2003), 10091047,
at 1014.

by the Soviet authorities, which could be considered discriminatory from a legal point of
view, has largely contributed to the creation of the image of Belarus as the most Sovietized
and Russified union republic, with the titular language performing the role of a colourful
folkloristic attribute but not a dominant language of everyday public communication.12
Hence, it is the Belarusian language whose preservation and status restoration
was in the late 1980s the main matter of concern for Belarusian intellectuals and a newly
emerged cultural and political movement. Public opinion in Belarusian society favoured
additional legal protection of the titular language status, which subsequently resulted
in the adoption of the Law on Languages in the BSSR on 26 January 1990.13 This legal act
emerged as a result of a wider popular discussion in which more than 20,000 people
took part.14 The law introduced a protective approach towards the Belarusian language,
as confirmed in its preamble acknowledging the threat to the languages very existence.
The Belarusian language was recognized as the only state language of Belarus, whereas
the Russian language received the status of the language of inter-ethnic communication.
Moreover, the use of languages in private life was not covered by the law, while certain
positions should have been implemented not immediately but within three to ten years.15
The language hierarchy established by the Law on Languages was confirmed in
the Constitution of the Republic of Belarus adopted on 15 March 1994. Article 17 stated
that Belarusian should be the state language, whereas the freedom to use Russian as
9 Zaprudnik, Jan. Mova i lada in Bielarus No. 334 (1987), 17.
10 Ibid.
11 Korsak, Viaasla. Teliemastactva i Teliestabinas (Interview with Hienad Burakin) in: Bolshoi, no. 5(23) (2012), 9698, at 97.
12 Vasilevich, Hanna and Kascian, Kiryl. The Phenomenon of Lukaenka: How Belarus Broke with Democracy? in: W. T.
Bagatelas et al. (eds.) Studies in Contemporary International Relations and Politics: New Europe and Beyond (Budrich
UniPress, Leverkusen, 2010), 239-260, at 240.
13 Snapkoski, Uladzimir. Elita i Mova in: Aniamiennie. Z Kroniki Zniennia Bielaruskaj Movy. (Gudas, Vilnia, 2000).
http://knihi.com/anon/Aniamiennie_Z_kroniki_zniscennia_bielaruskaj_movy.html#chapter10.

7 Trusa, Aleh. Again on the Belarusian Trasianka in Belarusian Review vol. 25, no. 2, 12-13, at 13.

14 Zaprudski, Siarhiej. Hramadskaje Scviardennie Bielaruskaj Movy i Paruenni Pravo Bielaruskamonych Liudziej in:
Aniamiennie. Z Kroniki Zniennia Bielaruskaj Movy. (Gudas, Vilnia, 2000). http://knihi.com/anon/Aniamiennie_Z_kroniki_zniscennia_bielaruskaj_movy.html#chapter12.

8 Silitski, Vitaly and Zaprudnik, Jan. The A to Z of Belarus (Scarecrow Press, Lanham, 2010), 34.

15 Ibid.

6 Smaliauk, Ale. Ruskija Bielarusi. Kamunikat Belarusian Internet Library. n.D., http://kamunikat.org/7982.html.

Hanna Vasilevich. Linguistic Rights in Belarus: Law and Practice

129

the language of inter-ethnic relations was guaranteed by the state. Moreover, Article 50

question was formulated and the persistence of Soviet patterns of represen-

ensured the right to use the mother tongue and choose the language of communication

tation in the language area militated toward a positive (yes) vote.17

as well as freedom to choose the language of upbringing and education. The same provi-

Goujon further addresses the agenda of the Lukashenka government aimed to con-

sions as listed in Article 50 of the constitution as well as rights to use native language in

demn the language policies of 199194 and portray it as designed to discredit Belarusian

communication, media, publishing, and the religious sphere are foreseen by the Law on

people so that

National Minorities in the Republic of Belarus adopted on 11 November 1992.

the 1990 Language Law was presented as being imposed from the top largely

Thus, independent Belarus at the beginning of its existence maintained lan-

by Popular Front members, without any consideration of the opinion of the

guage-related legislation, which included the following hierarchy:

people. The program linked to the realization of law was denounced because

Belarusian as the state language;

of its constraints, i.e. the fact that it forced people to speak Belarusian.18

Russian as the language of inter-ethnic communication and simultane-

Regardless of each voters choice at the referendum, the language issue in Belarus

ously a minority language;


Other minority languages, none of which was specifically mentioned.

became a highly politicized matter. On the one hand, the then-valid language hierarchy
was directly linked with the political party of the Belarusian Popular Front (BNF), thus
the Belarusian language was often labelled by its political opponents as beneefaskaja
mova; i.e., the language used by the members of the BNF.19 On the other hand, various

3. Referendum 1995:
A Deteriorating Remedy?
The key role in the formation of the contemporary linguistic situation in Belarus belongs
to the 1995 referendum, as its outcomes changed the hierarchy of languages in Belarus
by granting Russian equal status with Belarusian. Consequently, Article 17 of the constitution was changed as follows: The Belarusian and Russian languages shall be the official
languages of the Republic of Belarus. In compliance with this constitutional amendment,
all language-related provisions of the specific laws were changed to secure the new linguistic status quo.

experts, like the former Belarusian MP Siarhiej Navumyk20 and the former judge of the
Belarusian Constitutional Court Michail Pastucho21, argue that the 1995 referendum was
inconsistent with Belarusian constitutional law, both contextually and procedurally. The
former means that, according to Belarusian legislation, the question of the status of the
official languages could not be put to the referendum. The latter concerns the fact that
the appointment of the referendum was inconsistent with the constitution.22
However, in practical terms, the 1995 referendum marked the beginning of the
officially sponsored reversal of 199195 achievements in the language sphere.23 Thus, the
new language policies largely complied with president Lukashenkas public statement
disgracing Belarusian language and encouraging wider use of Russian:
The people who speak Belarusian cannot do anything else apart from speak-

According to the official data, the re-introduction of the co-official status of the

ing the Belarusian language, because it is impossible to express anything

Russian language was supported by 83.3% of those who cast their vote at the referendum,
constituting 54% of all voters included in the voting lists. There are different explanations
for these figures. Some scholars, like Grigory Ioffe, argue that the reintroduction of the
Russian language was a natural process, as the referendum legitimised the actual linguistic situation.16 Others, like French scholar Alexandra Goujon, stress that
the 1995 referendum, which appealed to the sovereignty of the people and
Integration andExclusion

provided citizens with an illusionary choice all the conditions were ar-

130

ranged to incite citizens to answer positively to the question of equal status


between the Russian and Belarusian languages. In addition to the propaganda against the supporters of Belarusian language, the way in which the
16 Ioffe, 1031.

17 Goujon, Alexandra. Language, Nationalism, and Populism in Belarus, in Nationalities Papers, vol. 27, no. 4 1999), 661677, at 666.
18 Ibid.
19 Ibid.
20 Navumyk, Siarhiej. The 1995 Referendum on National Symbols and Official Languages was not Legitimate in Belarusian Review, vol. 25, no. 2(2013), 8-10.
21 Pastucho, Michail. Ci Zakonny Referendum 1995 Hodu Adnosna Nadania Dziaranaha Statusu Ruskaj Movie? in:
Aniamiennie. Z Kroniki Zniennia Bielaruskaj Movy. (Gudas, Vilnia 2000). http://knihi.com/anon/Aniamiennie_Z_kroniki_zniscennia_bielaruskaj_movy.html#chapter13.
22 It is also argued that the formulation of the referendum question on the equal status of two languages was legally
illiterate, as it can be interpreted as either a confirmation of the real linguistic situation in the country or as legal
acknowledgement of the de facto parallel use of two languages. Thus, the positive answer to the referendum question
should not automatically mean recognition of the Russian language as the state language, which is why the referendum
results did not have to lead to the constitutional changes. See: Ibid.
23 Ioffe, 1031.

Hanna Vasilevich. Linguistic Rights in Belarus: Law and Practice

131

great in Belarusian. Belarusian is a poor language. There are only two great

interrelations between the two official languages, particularly in the spheres of education

languages in the world Russian and English.

and public life.

24

The implementation of the new linguistic status quo had two dimensions: political

Thus, the percentage of first-year students enrolled in classes with Belarusian as

and legal. In political terms, it has facilitated the process of a latent Russification, par-

the language of instruction has dropped from 68.5% in 199293 to 28.7% in 199798 and

ticularly in public life and education. In legal terms, it resulted in 1998 amendments to

16.7% in 200809.26 The following table illustrates this trend with data on the language of

the Language Law and thus encouraged the unequal bilingualism practices in Belarus, as

instruction for first-year students enrolled in primary schools in Belarus.

the stipulations concerning use of the Russian language were added by two
conjunctions: and and or. The new version of Article 7 declares, for example, Acts from the higher organs of State power and administration are

Table 1: Percentage of the first year students in primary schools in Belarus with
Belarusian language of instruction27:

adopted and published in Belarusian and (or) in Russian. This law does not
protect the equality of language because it does not require the official documents to be published in both languages.

25

Thus, the new version of the Language Law was inconsistent with the constitution,
which stipulates the equal status of two languages and therefore presumes the obligation of public bodies to produce all official documents in both Belarusian and Russian.
Hence, the referendum established a new hierarchy of the languages in Belarus:
Russian as the state language alongside Belarusian and simultaneously
one of the minority languages, the de facto dominant language of public
administration, business, media and education;
Belarusian as the state language alongside Russian, the de facto secondary
language in the main areas of public life;
Other minority languages, none of which were specifically mentioned.

City of Minsk
Brest Region
Viciebsk Region
Homie Region
Hrodna Region
Minsk Region
Mahilio Region
Total

199293

199394

199495

199596

199697

199798

48.30
76.00
58.10
72.30
82.90
86.90
53.00
68.50

58.60
79.70
65.50
75.70
87.50
92.60
72.80
75.30

58.00
79.50
62.30
82.80
86.90
91.30
65.10
76.00

19.50
37.00
28.90
26.10
61.40
67.80
25.80
37.90

11.00
31.00
26.00
23.00
50.00
61.00
23.00
33.00

7.30
27.30
25.30
22.10
44.10
52.90
23.00
28.70

Similarly, the percentage of students enrolled in secondary education in Belarusian-language schools and classes decreased from 69% in 1994-95 to 19.1% in 201011.28
This decreasing trend continued in the following years such that in 201415 the percentage of secondary school students in classes with Belarusian as the language of instruction had dropped to 14.5%.29 The following table shows the dynamics in the Belarusian

4. Belarusian Language
in the Republic ofBelarus

regions in 201015.

As previously mentioned, the Belarusian Language Law adopted in 1990 recognized Belarusian as the sole state language in Belarus. This status was also confirmed in the Constitution of the Republic of Belarus, adopted on 15 March 1994, whose Article 17 foresaw
that Belarusian should be the state language, whereas the freedom to use Russian as the
Integration andExclusion

language of inter-ethnic relations was guaranteed by the state. The amendments made

132

to the constitution as a result of the 1995 referendum have significantly changed the

26 O narushenii lingvisticheskih prav korennoy natsii Respubliki Belarus; Tumar, Barys. Dramatynaja Situacyja z Bielaruskamonym konictvam, Naa Niva, 22.09.2009, http://nn.by/?c=ar&i=23160.
27 Source: O narushenii lingvisticheskih prav korennoy natsii Respubliki Belarus.

24 Shoemaker, M. Wesley. Russia and The Commonwealth of Independent States 2014 (Rowman & Littlefield, Lanham, 2010),
156.
25 Goujon, 667.

28 Tumar; Infagrafika: Toki 19% konika navuajucca pa-bielarusku, u Miensku 2%. RFE/RL, Belarusian service,
01.09.2011, http://www.svaboda.org/content/article/24314462.html.
29 Marcinovi, Jahor. Stranyja Liby Rusifikacyi: z 2010 Hoda Kokas Bielmonych Vunia Zmienylasia na 43 Tysiay,
Bielmonaje Studenctva Praktyna Likvidavana, Naa Niva, 04.07.2015, http://nn.by/?c=ar&i=152272.

Hanna Vasilevich. Linguistic Rights in Belarus: Law and Practice

133

training and education is settled by the founder of each educational institution or by

Table 2: Percentage of all students enrolled to the secondary schools


withBelarusianlanguage of instruction in 201011 and 20141530:
Academic year 201011, Academic year 201415,
%
%
City of Minsk
Brest Region
Viciebsk Region
Homie Region
Hrodna Region
Minsk Region
Mahilio Region

2.30
24.50
18.60
18.00
21.80
31.90
16.90

2.30
20.60
12.10
12.80
16.90
25.70
12.70

the individual entrepreneur eligible for educational activities. Nevertheless, regardless

Dynamics,
%
100.00
84.10
65.10
71.10
77.50
80.60
75.10

of the language of instruction, both Belarusian and Russian are compulsory subjects at
the school level (art. 90.3-4). Despite the declaration of equality and freedom of choice,
no actual choice exists. The Russian language is by default the language of instruction
at most urban secondary schools and universities in Belarus. As a result of the countrys
legislation and the practice of its implementation, in many cases, in order to exercise
their constitutional right for primary or secondary education in the Belarusian language,
parents have to submit special requests to relevant education authorities, which is a
time-consuming and not always effective effort.
The aforementioned legal framework and state policy in the sphere of education
require closer attention to the two national censuses conducted in Belarus in 1999 and

Thus, during the last five years, in all Belarusian regions, the number of secondary school students educated in Belarusian-language schools decreased from one out
of six to one out of three, while their share in the Belarusian regions ranges from one
out of eight to one out of four. The only exception is the city of Minsk, where this figure
was marginal and remained constant; however, this situation is typical in nearly all of
the other big urban centers of Belarus. For instance, in the third-largest Belarusian city,
Mahilio, with a population of more than 350,000, there is only one child who attends a
Belarusian-language class.31 In higher and post-secondary education, the percentage of
students receiving Belarusian-language instruction is 0.1 and 0.2%, respectively.32
Hence, the virtual lack of Belarusian-language post-secondary and higher educational programmes seems to be an additional obstacle in civic activists attempts to
increase the number of students and parents interested in an education in Belarusian.
Another obstacle is the Belarusian education system, largely inherited from the Soviet
period and therefore characterized by the actual dominant position of the Russian language. Thus, a reference to the Belarusian domestic legislation on education is necessary.
The Code of the Republic of Belarus on Education (2011) refers to both state languages
as the main languages of upbringing and education in Belarus (art. 90.1). Moreover, the
equality of the Belarusian and Russian languages is declared to be one of the pillars of
the state policies in the field of education (art. 2.2.9). In addition, citizens are provided

Integration andExclusion

with the right to choose one of the state languages as the language of upbringing and

134

education, whereas the state declares its participation in creating the conditions for
its citizens to exercise this right (art. 90.1). At the same time, the question of language
30 Sources: Ibid; Infagrafika.
31 Vasilevich, Hanna. Belarus Abnormal Bilingualism in Belarusian Review, vol. 25, no. 1 (2013), 12-13, at 13.
32 Marcinovi.

2009. In 1999, nearly 74% of Belarus population indicated Belarusian was their mother
tongue, while only 37% spoke primarily Belarusian at home; among the titular nation, the
latter figure was 41%.33 This census demonstrated the growing share of ethnic Belarusians
and persons with Belarusian as a native language. The figure of just 37% speaking primarily Belarusian at home can be explained by language politicization and by the words of
Aleh Trusa, former MP and head of the Belarusian Language Society, according to whom
a Belarusian doesnt speak Belarusian, he keeps silence the Belarusian way, but when
a proper leader comes along, the Belarusian will start talking.34
The 2009 census demonstrated further growth in the percentage of ethnic Belarusians accompanied by a decrease in people with Belarusian as the mother tongue and
primary language in daily life (53 and 23%, respectively).35
Although the number of those speaking Belarusian as their primary language is
disproportionally lower than those who consider Belarusian a native language, a linear
comparison of the two censuses is not possible, as it does not embrace the methodological change in interpretation of the respondents answers. There are at least three issues
to address in this regard.
First, while in 1999 the interpretation of a mother tongue resembled the Soviet
approach, with a symbolic linkage between the ethnic background and the language, the
2009 census referred to it as the language learned first in early childhood. Such a formulation implied a single answer, while its critics argued that each human being can change
his or her views throughout life, which makes the measurement proposed by the census
incorrect. Second, neither of the censuses normatively recognized trasianka, a mixed way
33 Ioffe (2003), 1015.
34 Ibid, 1035.
35 Vyniki pierapisu: Dla 53% nasielnictva bielaruskaja mova rodnaja, RFE/RL, Belarusian service, 08.09.2010, http://
www.svaboda.org/content/article/2151688.html.

Hanna Vasilevich. Linguistic Rights in Belarus: Law and Practice

135

of speaking that embraces a very large diapason of a vernacular speech from predomi-

dren, billboards aimed at language promotion, and effective lobbying for the Belarusian

nantly Russian pronunciation with elements of the Belarusian language to predominantly

language before authorities, businesses, or sport institutions.41 Positive development of

Belarusian vernacular with elements of the Russian language.36 Hence, identifying tra-

these endeavors backed by government support may contribute to changes in the current

sianka with either the Belarusian or the Russian language is often an issue of personal

linguistic situation in Belarus in a mid-term perspective.

perception and political situation. Moreover, as the director of the Language Institute of
the National Academy of Sciences Aliaksandr Lukaaniec admits, people often narrowly
identify Belarusian with just the literary language, although in reality it has two literary
standards (official variant and the so-called tarakievica) and a huge variety of popular vernaculars, including trasianka.37 Therefore the scope of the Belarusian language is
much wider than is generally believed, which may potentially be used as a wider basis for
the development of the national language in order to secure the basis for its full-fledged
functioning within Belarusian society.38 Third, the Belarusian language was a victim of
long-term politicization, both domestic and external, that included political confrontation within Belarus and Lukashenkas policies aimed at a closer cooperation with Russia.
When the integration processes significantly slowed due to active and rather aggressive
Russian policies interpreted by many analysts and observers as a threat to the Belarusian sovereignty, Lukashenka changed his rhetoric regarding the Belarusian language.
In December 2010, he stressed that the state would not allow the language to be turned
into a weapon of political confrontation or discrimination and underlined that neither
forcible Belarusization nor any Russification would occur in Belarus. Lukashenka argued
that this is a conscious choice of the Belarusian nation (in Belarusian: narod) as the
recognition of Belarusian and Russian languages complies with the historical traditions
and current linguistic situation in the country.39 Thus, the state has started declaring its
support of the Belarusian language under the legally recognized bilingualism. However,
despite these declarations, their practical implementation faces numerous challenges,
as Belarusian public servants would rather oppose radical changes that would require additional work for them and considerably change the long-established rules while
the population largely respects the Belarusian language, but does not protest against
the current language status quo.40 Thus, the promotion of the titular language is being
performed with both top-down and bottom-up approaches. The latter was embodied by

Integration andExclusion

various initiatives, including informal language courses for adults and groups for chil-

136

36 Lukaaniec, Aliaksandr. Dziaanaje Dvuchmoje i Stan Bielaruskaj Movy Hramadstvie. Scientific and Analytical Report, 2010.
37 Kony rabotnik dziaanaj i niedziaanaj ustanovy pavinien reana valoda abiedzviuma dziaanymi movami (Interview with Aliaksandr Lukaaniec). Zviazda, 05.08.2011, http://www.zvyazda.minsk.by/ru/issue/article.php?id=83853.
38 Ibid.
39 Lukaenka: patencyjal bielaruskaj kultury niedastatkova vykarystovajecca dlia farmiravannia i macavannia minarodnaha imidu krainy, BELAPAN, 06.12.2010. http://belapan.com/archive/2010/12/06/432215_432225.
40 Vasilevich, 13.

5. Russian Language in Belarus:


A Dominant Minority Language
As a result of the 1995 referendum, the Russian language was granted the status of the
state language in Belarus alongside Belarusian. In practice, this meant not only a change
of the language hierarchy but also the removal of an additional legal protection for the
Belarusian language. Hence, the changed linguistic status quo in Belarus has affected
numerous spheres of life, particularly education and the public sphere.
Considering the peculiarities of the Belarusian system of secondary education,
which has only four schools with languages of instruction other than Belarusian and
Russian (two Polish and two Lithuanian), the changes in the sphere of education can be
seen within the Belarusian-Russian linguistic dichotomy. This means that the decrease in
the share of students enrolled in secondary schools with Belarusian as the language of
instruction described previously in this chapter was achieved by an increase in the share
of those attending schools with Russian as the language of instruction. However, as the
data from the previous section demonstrate, there is still a huge discrepancy between
those who get secondary (14.5% as of 2015) and higher education (0.1% as of 2015) in Belarusian. These figures imply that virtually all other students in Belarus are being taught
in Russian. Thus, the Russian language remains de facto the only language that encompasses all successive stages of education foreseen by the Belarusian education system.
Similarly, the Russian language is the main language of the public bodies and state
media in Belarus. For instance, as of 2011, 72% of all Belarusian newspapers, 81% of magazines, and 85% of books were published in Russian; on all state TV channels, broadcasting in Russian exceeded 90%, although the state radio had reverted numbers in favor of
Belarusian. However, Russian language radio broadcasting in Belarus constituted 42%.42
These figures should be seen from the perspective of the wide availability of Russian
public and private media in Belarus that also provide their services in Russian. More41 Woolhiser, Curt. Belarusian Language Promotion is Impossible without the Governments Support in Belarusian Review, vol. 26, no. 3(2014), 13-17, at 16-17.
42 Arlova, Iryna. Toki 8.5% Knih u Bielarusi Vydajecca na Bielaruskaj Movie, Zatra Tvajoj Krainy, 20.07.2012, http://www.
zautra.by/art.php?sn_nid=10979&sn_cat=6.

Hanna Vasilevich. Linguistic Rights in Belarus: Law and Practice

137

over, nearly all public institutions have websites in Russian, and it is frequently the only

achievements, but also the living space for the multimillion Russian world

language version available. Thus, the Russian language enjoys a full-fledged functional

which, of course, is much broader than Russia itself.45

status in the Republic of Belarus, being de facto the dominant language of public admin-

Within the framework of this concept, the policies of the Russian Orthodox Church,

istration, media, education, and business. Moreover, the Russian language has the full

which is a dominant religious denomination in Belarus, are focused on the Russo-centric

support of the Belarusian authorities, often at the expense of Belarusian.

concept of homeland and emphasize its multi-ethnic nature. Hence, according to the

This stance of the Belarusian state requires an additional reference to two last

Moscow Patriarch Kirill,

censuses. According to the 1999 census, Russian was the native language for 24.1% of the

the Church is called Russian not on the ground of ethnicity. This designation

Belarusian population, while 62.8% used it as the primary language of home communi-

indicates that the Russian Orthodox Church performs the pastoral mission

cation. In the 2009 census, the figures were 41.5 and 70.2%, respectively. Despite the

among the peoples which take Russian spiritual and cultural tradition as the

aforementioned methodological differences between the censuses, and the apparently

basis of their national identity, or, at least, as a substantial portion thereof.46

different interpretations of popular vernaculars, including trasianka, there are two issues

Thus, the Russian Orthodox Church, with its multi-ethnic nature, emphasizes the

to be emphasized. First, there is a growing trend of using Russian among the Belarusian

primary role of Russian culture in it, although it does not question the sovereignty of

population, both as the first and as the main language of communication. This trend can

any affiliated state. However, it is obvious that this vision promotes a Russo-centric and

be interpreted as one of the outcomes of the abnormal bilingualism policies promoted

thus hierarchical view of the history and culture of Belarus, or any other country, such as

by the Belarusian authorities, particularly in the sphere of education. Consequently, the

Ukraine or Moldova, that is associated with the Russian world. According to this concept,

Russian language in Belarus may be seen from three perspectives. First, it is the language

the Russian minority in various states, within a wider linguistic sense, should include

of a Russian national minority, which, according to the 2009 census, constitutes 8.3% of

themselves into local life, know traditions and culture, but they should preserve their

Belarus population. This implies that this community is subject to protection under the

indissoluble connection to the Russian world.47

43

Belarusian Minorities Law. Moreover, it is a subject of protection and support from its kin-

Third, the close economic and political ties between Belarus and Russia should be

state, i.e. the Russian Federation. However, as Russian foreign policy doctrines demon-

taken into account. The promotion of the Russian language in business and the public

strate, Russia takes the role of merely protector and promoter of the rights and interests

sphere is partly explained by the Russian-oriented business activities and economic ex-

of not only ethnic Russians and other peoples residing in Russia but also so-called

pedience related to the burden of translation and documentation. As a result, within the

Russian-speaking groups. This expands its potential impact from the ethnic identity to

scope of the official bilingualism, Belarusian language use is limited to various manifes-

the linguistic one and targets people who use Russian as their first language or language

tations of the cultural sphere and to private communication. Thus, being both a language

of primary communication.

of an ethnic minority and an official language of the state, the Russian language enjoys

Second, the issue of the Russian language is closely linked with the concept of the

the support of both the Republic of Belarus and the Russian Federation, being therefore

Russian world (in Russian: Russkiy mir) actively promoted by the Kremlin and supported

promoted to the role of the dominant language of public administration, business, me-

by the Orthodox Church. This framework interprets the notion of world as a trans-state

dia, and education in Belarus.

and transcontinental community which is united by its affiliation to a particular state and
the loyalty to its culture.44 The role of Russian language within this concept, according to
Vladimir Putin, is viewed as
the language of the historic brotherhood of nations, the language of interIntegration andExclusion

national communication. It preserves not only an entire layer of truly global

138

45 Putin, Vladimir. Poslanie Federalnomu Sobraniyu Rossiyskoy Federatsii, President of Russia website, 26.04.2007,
http://archive.kremlin.ru/appears/2007/04/26/1156_type63372type63374type82634_125339.shtml.
43 Vyniki pierapisu.

46 Vystuplenie na torzhestvennom otkrytii III Assamblei Russkogo mira, Moscow Patriarchate website, 03.11.2009, http://
www.patriarchia.ru/db/text/928446.html.

44 Tishkov, Valery A. Russkiy Yazyk i Russkoyazychnoe Naselenie v Stranakh SNG i Baltii in Vestnik RAN, 78, no. 5 (2008),
415-422, at 416.

47 Zamestitel predsedatelya OVTsS: Russkiy mir eto tsivilizatsionnaya obshchnost, obrazovannaya obshchimi tsennostyami i obshchim opytom obshchestvennogo stroitelstva, idem, 17.06.2010, http://www.partiarchia.ru/db/text/26208.html.

Hanna Vasilevich. Linguistic Rights in Belarus: Law and Practice

139

6. Other Languages of Belarus:


Poor Cousins?
As mentioned above, the Belarusian Constitution guarantees the right to use the mother
tongue and choose the language of communication as well as freedom to choose the
language of upbringing and education (art. 50). In addition, the Belarusian Minority Law
guarantees the persons belonging to national minorities the right to use their mother
tongues in the media and the religious sphere. However, none of the Belarusian domestic legal acts specifically mentions any language other than Belarusian or Russian. This
means that
there is no list of specific minority languages established by the Belarusian
legislation; and
none of the minority languages in Belarus other than Russian enjoys preferential status granted by the state.
Hence, it is impossible to analyze the situation of every single minority language in
Belarus. Therefore, it seems logical to focus on some of them. In addition to Belarusian
and Russian, there were two other languages Polish and Yiddish that enjoyed official
status in the territories of todays Belarus. Moreover, the Belarusian secondary school
system ensures the possibility for members of certain minorities to get an education in
their native languages. The 120 secondary educational establishments offer the possibility of learning languages in different forms as a school subject, as an elective course,
or in club activities. They cover approximately 5,000 students (including 4,671 who learn
Polish; 262, Hebrew; 52, Ukrainian; and 15, Lithuanian).48 However, only Polish and Lithuanian communities in some areas of the Hrodna region of Belarus have the opportunity to
study full educational programmes in their mother tongues. Hence, the situation of these
three minority languages Polish, Yiddish and Lithuanian will be discussed.

6.1. Polish
The Polish language has a centuries-old historical presence in todays Belarus due to

divided Belarus, the Polish language enjoyed official status: it was the sole state language
in the territories controlled by Poland and one of four official languages of the Belarusian
SSR (along with Belarusian, Russian, and Yiddish). The current Belarusian-Polish border
was established in August 1945 in compliance with the Polish-Soviet border treaty.49 This
process was accompanied by population transfers between Poland and the Belarusian
SSR that seriously affected Belarus Polish minority, as its educated, urban, and rich
segments opted to leave.50 Moreover, the last school with Polish as the language of instruction was liquidated in Hrodna in 1948, while the hostile attitudes of the Soviet authorities towards the Roman Catholic Church in Belarus created significant obstacles for
the effective functioning of this pillar of Polish identity.51 As a result, the revival of Polish
cultural life in Belarus started in the second half of the 1980s, when the first classes with
Polish language instruction were opened and regular religious services in Polish became
possible. There are currently two schools with Polish language instruction functioning in
Belarus, in Hrodna and in Vakavysk, with approximately 540 students altogether.52 In addition, as of 2011 there were three newspapers and four magazines published in the Polish
language in Belarus. However, the presence of the Polish language in the public space
differs significantly from region to region. In general, according to the 2009 census, only
5.4% of the Belarusian Polish community of 294,549 declared Polish as their native language, and only 1.3% of the community uses it as the primary language of home communication. In the Hrodna region, where most of the Polish minority resides, the latter figure
was 5.6% in 1999 and 5.2% in 2009. Hence, it is not uncommon that persons belonging to
the Polish minority in Belarus have to learn Polish as a foreign language due to the more
than four decades during which Polish school, media, and books were virtually absent in
Belarus.53 The policies of Poland focused on the support of the Polish communities of the
former USSR and designed a Polish card (in Polish: Karta polaka) to support the interest
of people of Polish ancestry in Belarus in learning the language. At the same time, the
main sphere of public life where Polish language is sustainably present is religion. The
Roman Catholic Church actively uses the Polish language in its services, making it the de
facto co-official language, along with Belarusian, of this denomination. Thus, the Polish
language is still present in the public space of Belarus, although it is rather limited to

the two countries political alliance within the Commonwealth of Both Nations (the first
Integration andExclusion

Rzeczpospolita). After the collapse of the Russian Empire and subsequent political per-

140

turbations, the territory of todays Belarus became divided between the re-established
Poland and the Soviet Union, where the Belarusian SSR was formed. In both parts of the
48 Kutuzava, Natallia. Pravo na Obuchenie na Yazyke Natsionalnogo Menshinstva: Zakonodatelnoe Obespechenie i Spetsifika Realizatsii v Belarusi, Bielaruski Forum za Ronas, n.D., http://rounasc.info/sites/default/files/u1/7_pravo_na_obuchenie_na_yazyke_nacionalnogo_menshinstva_zakonodatelnoe_obespechenie_i_specifika_realizacii_v_belarusi.pdf.

49 Trusa, Aleh. Nieviadomaja Nam Kraina: Bielaru u Jaje Etnahrafinych Mieach (Knihazbor, Minsk, 2009), 94-96.
50 Jzyk polski na Biaorusi, Polish Educational Society in Hrodna website, http://pmsgrodno.org/jzyk-polski-na-biaorusi.
51 Gowacka-Grajper, Magorzata. Zbiorowoci Polskie w Zachodnich Republikach Byego ZSRR, Studia BAS, no 2(34)
(2013), 5184, at 69.
52 Kutuzava.
53 Jak uczy si jzyka polskiego na Biaorusi. Liczby i fakty, Embassy of the Republic of Belarus in the Republic of Poland
website, n.D., http://poland.mfa.gov.by/pl/embassy/news/f5026a6dfa11ae10.html.

Hanna Vasilevich. Linguistic Rights in Belarus: Law and Practice

141

the areas where members of the Polish minority and adherents of the Roman Catholic
Church reside.

6.3. Lithuanian
Belarus is home to a rather small Lithuanian minority that, according to the 2009 census,

6.2. Yiddish

is composed of 5,087 persons. A significant portion of this community is concentrated

After the annexation of the Belarusian lands by the Russian Empire in the late 18th cen-

schools located in these areas that provide education in Lithuanian: a private secondary

tury, they were included in the so-called Pale of Settlement- for the Jewish population,
who were not allowed to live outside cities and towns.54 As a result, at the end of the 19th
and beginning of the 20th century, Jews formed an ethnic majority of 53.5% of Belarus
urban population.55 In the 1920s, the Belarusian SSR became one of the leading centers
of the Soviet Jewish culture, with Yiddish schools, theater, newspapers, and publishing
houses.56 Moreover, Yiddish was one of four official languages of the BSSR. However,
Jews were one of the most affected ethnic groups during the Nazi occupation of Belarus.
According to various estimations, the number of Holocaust victims among Belarusian
Jews ranges from 245,000 to 811,000.57 As Belarus-born Israeli historian Leonid Smilovitsky
observes, [t]he greatest number of victims was Yiddish speakers, non-intellectuals who
lived in small towns, and clung to the old Jewish traditions of the Pale.58 The Yiddish

in rural areas in northwestern Belarus, adjacent to Lithuania. There are two secondary
school in the village of Pieliasa (district of Voranava) and a public secondary school in
the village of Rymdziuny (district of Astraviec), with 135 students altogether.59 The school
in Pieliasa was established by the Lithuanian Ministry of Education and Science, and the
education process is conducted according to the education programmes of the Republic of Belarus. Moreover, in the secondary school in Pieliasa, the Lithuanian language
has been included in the curriculum since 1956.60 This makes the Lithuanian community
unique in the post-war Belarusian SSR, as it was the only minority except the Russian
that could learn its native language as a part of the school curriculum. However, use of
the Lithuanian language in Belarus is rather limited in geographical terms to the areas of
compact residence of Belarus Lithuanian minority, as this language has never played any
particular role in the terrains of todays Belarus.

language never survived these losses due to the linguistic assimilation of Belarusian
Jews in the post-war period and their massive immigration to Israel, the United States,
and other countries in the late 1980s and the 1990s. Another obstacle to the revival of
Yiddish in Belarus is the fact that it is not Yiddish but Hebrew that is the official language
of the State of Israel. This fact potentially determines the choice of language to learn by
the younger generation of Belarusian Jews. For instance, according to the 2009 census,
only 1.9% of Belarusian Jews recognized the language of their nationality as their native
language, although the census data do not specify whether this was in fact Yiddish, Hebrew, or both. Hence, once widely spoken in Belarusian cities and towns, Yiddish has now
almost vanished. It may still be spoken by the older generations, but its public presence
is limited to the Jewish-related cultural events where pieces of literature or music are
performed in the language.

7. Conclusion
The linguistic situation in Belarus is characterized by asymmetric official bilingualism,
where the Russian language dominates nearly all spheres of public life while the role of
the Belarusian language is limited to the sphere of culture. The educational process is
dominated by the Russian language, particularly in post-secondary and higher education,
which is conducted almost exclusively in Russian. Thus, due to the lack of language facilities provided by the state, Belarusian-speaking citizens have to make additional efforts
to exercise their rights, particularly in the sphere of education. The organization of an
education process in other minority languages is possible in practice only in the areas
where they form a significant share of the population, as it requires active participation
of the parents and guardians of the students.

Integration andExclusion

54 Sahanovi, Hienad and ybieka, Zachar. Djiny Bloruska (Nakladatelstv Lidov Noviny, Praha, 2006), 126.

142

55 Latyonak, Aleh and Miranovi, Jahien. Historyja Bielarusi ad Siaredziny XVIII st. da Paatku XXI st. (Instytut bielarusistyki, Vilnia, 2010), 56.
56 Ehrlich Mark Avrum. Encyclopedia of the Jewish Diaspora: Origins, Experiences, and Culture, vol. 1 (ABC-CLIO, Santa Barbara, 2009), 949.
57 Smilovitsky, Leonid. Jewish Life in Belarus: the Final Decade of the Stalin Regime (1944-53) (CEU University Press, Budapest and New York, 2014), 15.
58 Ibid, 16.

The Russian language also dominates in media, although there is room for Belarusian and other languages in this sphere. Moreover, persons belonging to ethnic minorities have access to the media of their kin-states, including Internet and traditional
59 Kutuzava.
60 Kuzniaenkava, Tacciana and Valyniec, Natallia. V Grodnenskoy Oblasti Otkryty Dve Shkoly s Obucheniem na Litovskom
Yazyke, Hrodzienskaja Prada, 25.11.2013, http://grodnonews.by/category/kul-tura/news22593.html.

Hanna Vasilevich. Linguistic Rights in Belarus: Law and Practice

143

media, in varying degrees. However, despite the fact that minority-related texts appear

of Belarusian language facilities might lead to changes in the countrys linguistic situa-

in the media, Belarusian TV does not have minority-focused programming. Thus, the

tion in a mid-term perspective.

current language hierarchy, established by law and governmental practices, leads to the

However, the most important step should be made by the state and involves

promotion and apparent assimilation of the population into the Russian language. As

changing its attitude concerning the language of instruction in secondary and higher

for minorities other than Russian, they are mostly invisible in the public sphere, as their

education, both in law and in practice. The ineffective and time-consuming mechanism

activities are limited to cultural events and religious practices.

currently applied should be changed so that parents who want their children to be in-

However, the authorities stress the importance of the Belarusian language for the

structed in Belarusian or a minority language other than Russian do not have to make

representation of the Belarusian cultural space. It is considered the nations honour as well

additional efforts to exercise their legitimate rights. This also requires a change in the

as an integral part of world culture. That is why it is particularly underlined that the Belar-

attitude of local authorities towards the wider promotion of Belarusian- and minori-

usian language plays a significant role as an important factor of national identity, symbol

ty-language education, as decisions to open or close schools and classes are made by

and means of national identification. At the same time, neither the titular language nor

local executive committees.

61

Russian can be regarded as minority languages in the current Belarusian situation.


Moreover, the Belarusian authorities acknowledge the difference between the de
jure equal legal status of the two state languages and the de facto situation of the Belarusian and Russian languages in Belarus. Hence, there is an understanding among the authorities as far as possible improvements of the countrys legislation so that the language
of the titular nation in Belarus would not remain the second-class language in most
communicative spheres within Belarusian society.62 However, this can be achieved only
if special emphasis is placed on explanation of the current language-related legislation.
The Belarusian Constitution confirms the equal legal status of the Belarusian and
the Russian languages in Belarus and ensures everyone the right to use his native language and to choose the language of communication. However, nearly all specific provisions related to the use of languages contain the formulation Belarusian or Russian
or one of the official languages. As a result, this either/or model does not exclude
Belarusian, but neither does it provide measures necessary for promoting the language,
particularly in areas with insufficient language facilities. To put it succinctly, the either/or
framework does not contribute to changes in the existing linguistic status quo. A possible
replacement for the either/or model the phrase both Belarusian and Russian is not
considered, often justified by the considerable costs the state cannot afford.
Nevertheless, this status quo creates opportunities for the promotion of the Belarusian language that may be performed through both top-down (particularly in areas
where the state declares its support for the national language) and bottom-up (various
Integration andExclusion

civic initiatives) approaches. It can be assumed that positive development and promotion

144

61 Lukaaniec.
62 Ibid; Kony rabotnik dziaanaj i niedziaanaj ustanovy pavinien reana valoda abiedzviuma dziaanymi movami
(Interview with Aliaksandr Lukaaniec).

Hanna Vasilevich. Linguistic Rights in Belarus: Law and Practice

145

The Importance of Name


inSelf-Determination
Katarzyna Miksza

1. Introduction
The issues of names and language are inseparable. Name is a linguistic term that could
be described as an onomastic form, a personal name that children acquire from their
parents or a wife acquires from a husband1. Moreover, it is a part of a culture and tradition. Nevertheless, analyzing the issue of names from only the linguistic point of view is
a serious mistake. There are two principal arguments to support such line of reasoning.
Although names are part of language, due to increased migration and the mixture of
people of different origins, it can be difficult to determine to which language the name
belongs. For instance, in Lithuania the surname Mika could be treated as a typical
Lithuanian surname, yet linguistic examination shows that it can also be a Hungarian or
Polish surname. Thus, pronunciation and spelling of the name will depend on the ethnic
origin of the person bearing it, not on the origin of the name itself.
Furthermore, it is important to bear in mind that a name is considered a personality right. A persons identity constitutes several parts. These can be family bonds or those
belonging to a religion, a nation, and a country. All these bonds are often reflected in
ones name. The matter of names is of a very delicate nature. To have a name means to be
someone in society, in a family. The name has a direct effect on a person. As Lvi-Strauss
Claude said, every Christian name has a conscious or unconscious cultural connotation

1 Bubak, Jzef, Proces ksztatowania si polskiego nazwiska mieszczaskiego i chopskiego, (Krakw 1986), 24.

Katarzyna Miksza. The Importance of Name inSelf-Determination

147

which parades the image others form of its bearer, and may have a subtle influence in

tributes, profession, origin, etc. The acquisition of the second name was informal and has

shaping his personality in a positive or negative way .

arisen from the need to distinguish persons with the same forenames.

The truth is that the regulation of names fringes upon private and public law. Name

Names initially of a remarkably personal character gradually turned into surnames

is the major mean of identification of an individual. It appears on all official documents

common for the whole family. Names have long mainly expressed belonging to the family.

for that person (identificaiton cards, passports, driver licenses, etc.). However, public law

For instance, in the 14th century in Poland surnames with the ending -ski were common

issues concerning names cannot be above private law issues. These private law issues are

for the whole family, and they are handed down from generation to generation, from hus-

reflected in the connection between a persons name and his or her family relations and

band to wife6. The rules that a wife ex lege acquires the name of her husband, and a child

ethnic belonging. The main purpose of this chapter is to emphasize the private character

the name of the father, were applied broadly in the world up to the 20th century. Now, the

of names by presenting their functions from historical and contemporary points of view.

individuality of a person is emphasized, which is also reflected in the approach to naming

Moreover, it aims to find the balance between the states interests in identifying its na-

a person. The perfect example is the change in Polish regulations on names of spouses.

tionals and a persons right to a name.

Article 40 of the draft law of marriage of 28 March 1929 provided that a wife acquires her
husbands name. However, she has the right to retain her family name7 by adding it to the
name of her husband. A similar regulation was provided by the Decree on Marriage Law

2. Family Bonds and Name


Today, everyone has a name. A surname is acquired ex lege at the time of birth and
depends on the surnames (or surname) of the parents. The forename gives essentially
no evidence of belonging to a particular family. Unlike surnames that are somehow inherited from ones parents, forename depends entirely on the choice of the parents. It
happens that certain forenames are more common in families than others. For instance,
a child receives a forename from someone the parents give the child a forename they
wear themselves or that was worn by their parents or relatives. Such family forenames
were characteristic in noble families3. However, it may also be that the repetition of the
names within the same family is restricted. For instance, accordingly to Article 34, paragraph 1 of the Italian law on civil status, parents cannot give their child the same name as
a surviving parent, brother, or sister of the child. The acquisition of the forename might
be closely connected with traditions and religion. For instance, Romains used name boys
on the ninth day after birth and girls on the eighth day4. In the Christian religion, it is
connected with baptism. According to different sources, first surnames (second names)

of 1945. In its initial version, the Polish Family and Guardianship Code of 1964 stipulated
that a wife acquire the name of her husband unless she makes a statement regarding
staying with her current name. This regulation was changed in 1998. Later, according to
Polish law, spouses kept their names unless they made a statement about changing it.
It should be emphasized that both name change due to marriage and keeping a current
name indicate a link between a person and a family. The first case highlights the marriage
bond, the second case the origin of the person and the bond with the parents.
It is worth mentioning that divorce or annulment of marriage has no direct influence on a persons surname8. Surname can be changed due to divorce, but only if the
interested party applies for this.
A name as the value of the family increasingly turns into a personal value of a particular person. Situations where family members bear different names have become more
and more frequent. This applies not only to spouses but also children. When the parents
bear different names, children can acquire a name that consists of both parents names.
Therefore, when parents bear different names, the child will acquire a name different
from the name of both the father and the mother. Only siblings will have the same name.

in France appear between the 10th and 11th centuries5. It is worth mentioning that this
second name was a personal one, not common for all family. The second name (surname)
Integration andExclusion

often had a descriptive meaning referring to the persons appearance, characteristic at-

148

2 Lvi-Strauss, Claude, Savage mind, (translated from French by G. Weidenfeld and Nicolson LTD, Hertfordshire, 1966), 185.
3 Bystro, Jan Stanisaw, Ksiga imion w Polsce uywanych, (Warszawa, 1938), 9.
4 Lefebvre-Teillard, Anne, Le nom: droit et histoire, (Paris : Presses universitaires de France, 1990), 16.
5 Lefebvre-Teillard, Anne, Le nom: droit et histoire, (Paris : Presses universitaires de France, 1990), 26-29; Schtzel, Walter,
Les noms des personnes en droit international, (Collected Courses of the Hahue Academy of International Law, Vol. 95,
Brill|Nijhoff, Leiden| Boston, 1958), 184-185.

6 Raszewska-urek, Beata, Ksztatowanie si nazwisk rwnych imionom w Polsce (wiek XIII-XVI), (Warszawa : Slawistyczny
Orodek Wydawniczy, 2006), 208-209.
7 In Polish: nazwisko rodowe.
8 In most of the European legal systems.

Katarzyna Miksza. The Importance of Name inSelf-Determination

149

3. Belonging to a Nation and Name

4. Name and Dignity

A name can also be an expression of the ethnic identity of the person. The spelling of

Earlier analysis leads to the conclusion that a persons name should never be treated

the name would depend on the language and culture of this nation, which identifies a

only as a linguistic category. Protection of the official language of a state and protection

person. This is of particular importance in a situation of national minorities but is also

of the minority groups language are not comparable values. First and foremost, the state

important for migrants. The right to use the names as spelled in the minority language

should evaluate whether its language policy violates any persons right to dignity, which

is guaranteed inter alia under art. 11 of the Framework Convention for the Protection of

is one of the most important constitutional values of our legal culture.

National Minorities. It should be kept in mind that the convention merely establishes

Undoubtedly, from birth every person has a right to a name. This right is formu-

standards for the protection of minorities, and the way they are put into the legislation

lated in Article 7 of the Convention of the Rights of the Child9, which states: the child

of the member is left to the individual legislators.

shall be registered immediately after birth and shall have the right from birth to a name,

Some bilateral agreements by the states contain provisions relating to the names

the right to acquire a nationality and. as far as possible, the right to know and be cared

of national minorities. A good example is a Polish-Lithuanian treaty on friendly relations

for by his or her parents. The convention does not constitute the right to a particular

and good neighborly cooperation. According to Article 14 of the treaty, the Polish minority

name but a general right to be named. It is left to the national legislators to provide de-

in Lithuania and the Lithuanian minority in Poland respectively have the right to use their

tailed regulations on the acquisition of a name. Article 7 of the convention derives from

names and first names in the minority language.

Article 24 of the earlier International Covenant on Civil and Political Rights10. For instance,

The provisions on minority names are also included in national legislation. For in-

the American Convention on Human Rights11 includes more detailed regulation on names.

stance, Article 7 of the Polish Act on National Minorities and Regional Languages provides

Article 18 of the convention states that every person has the right to a given name and

that persons belonging to national minorities have the right to use and spell their first

to the surnames of his parents or that of one of them. The law shall regulate the manner

and last names according to the spelling rules of a minority language. This kind of provi-

in which this right shall be ensured for all, by the use of assumed names if necessary.

Integration andExclusion

sion emphasizes the fact that the name is an element of national identity.

150

There are no particular provisions on names in other human rights documents.

There is no particular law regarding minorities in Lithuania. General provisions

However, other general rules should be applied for the acquisition, alteration, or protec-

regarding names apply also to the names of the persons belonging to ethnic minorities.

tion of the name. Analysis of the various international instruments must start from the

According to these provisions, only the Lithuanian alphabet is used to spell names in civil

Universal Declaration of Human Rights of 10 December 1948. The declaration provides for

documents for Lithuanian nationals. The Lithuanian language is considered to be a con-

the principle of equality of all persons in dignity and rights, non-interference in private

stitutional value. Moreover, the Constitutional Court of the Republic of Lithuania ruled in

and family life, and the principle of equality between men and women as to marriage,

1999 that the constitutional status of the Lithuanian language would be infringed upon

both during the marriage and at its dissolution. Particular attention should be paid to

if exceptions from the spelling of names in Lithuanian language were allowed. Following

the provisions of the Convention on the Elimination of all Forms of Discrimination Against

this reasoning, it becomes apparent that any derogation or exception in spelling names

Women12. Article 15 of the convention requires ensuring women equality with men before

of persons belonging to minorities cannot be provided. On the other hand, protection of

the law, while Article 16, paragraph 1, point G orders guaranteed equal personal rights of

the right of minority groups to use their own language is considered part of international

husband and wife, including in the choice of names.

human rights. Therefore, it may be difficult to reach a balance between the interest of the

The right to protect the name does not explicite flow from the conventional pro-

state in protecting its constitutional values and the interest of the person belonging to a

visions. It derives from other provisions of international conventions, for instance from

minority group in spelling his or her name in his or her own language.

9 Convention of the rights of the Child Adopted and opened for signature, ratification and accession by General Assembly
resolution 44/25 of 20 November 1989entry into force 2 September 1990, in accordance with article 49.
10 International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49.
11 American Convention on Human Rights also known as the Pact of San Jos, adopted inSan Jos,Costa Rica, on 22 November 1969.
12 Convention on the Elimination of all Forms of Discrimination against Women adopted in 1979 by the UN General Assembly.

Katarzyna Miksza. The Importance of Name inSelf-Determination

151

the right to privacy and family rights. The most important in this regard is Article 8 of
the European Convention on Human Rights13. This article is one of the four articles of the
convention formulating the classical rights of the person14. The convention aims at the
assessment of the conformity of national rules or praxis with the fundamental rights. The
examination is limited, however, as it leaves to the states the possibility of restricting
a persons rights due to the national security, public safety, and various other reasons.
This reflects a respect for the cultural and ideological differences between individual
European states15.
The widest and most diverse area protected by art. 8 of the ECHR is private life. A
persons right to private and family life is the right to determine his or her identity and
individuality, which is understood as including, among other things, names and identification with family and others. From Article 8 of the ECHR and the jurisprudence of the
European Court of Human Rights flow certain general standards. First, every person has a
right to a name. Second, the name is one of the principal elements of personal identity

5. Conclusions
Having a name means to be someone in society, to have dignity. One of the ways to insult
a person is to deform his or her name. To refute individuality, personality, and dignity,
Nazis attributed numbers to the prisoners in concentration camps, thus treating people
as a nameless mass18.
All the above-mentioned provisions aim to provide for a persons identity and individuality, and, finally, dignity. Dignity is not only an objective right to honor and respect
but also the subjective feeling of having them. The obligation of each state is to ensure
the protection of the dignity of its residents. The legislator should not raise the question whether the spelling or form of the name could violate states language policy but
whether the absence of a law on names violates a persons dignity. The level of protection
of a perosns fundamental rights should be a measure of the states maturity.

and is under the protection of the ECHR. Furthermore, states should be restricted from
changing the name of a person without his or her consent. Finally, the equal rights of
spouses in choosing the name should be guarenteed16.
The private nature of the name, on the one hand, and its close connection with the
persons dignity, on the other hand, confirm national provisions on personality rights.
These provisions aim at prevention and prohibition of the illegal or incorrect use of ones
name. Violation of the surname arises only in situations when is possible to associate the
name with a person17. The rules might be of a very general nature, as for instance Article
23 of the Civil Code of Poland, which states that personality rights such as name (and others) are under the protection of civil law. Other legal systems could provide more detailed
provisions regarding the name. For instance, articles 2.20 through 2.21 of the Civil Code of
Lithuania not only provide for a right to a name but also for the protection of this right.

Integration andExclusion

13 The European Convention on Human Rights signed in Rome on 4 November 1950.

152

14 Garlicki, Lech, Hofmaski, Piotr, Wrbel, Andrzej, Konwencja o Ochronie Praw Czowieka i Podstawowych Wolnoci. T. I.
Komentarz do artykuw 1-18, Garlicki, Lech (ed.), (Warszawa 2010), 480.
15 Nowicki, Marek Antoni, Wprowadzenie do interpretacji EKPCz, in Europejski Przegld Sdowy (No 1), (Walters Kluwer;
Warszawa 2010), 8.
16 Miksza, Katarzyna, Nazwisko w prawie prywatnym midzynarodowym, (Gliwice, 2015), 80-81.
17 Tylec, Grzegorz, Imi i nazwisko osoby fizycznej oraz ich ochrona w polskim prawie cywilnym, (Wydawnictwo KUL, Lublin,
2013), 67.

18 Kula, Marcin, Najpierw trzeba si urodzi, (Warszawa, 2011), 258.

Katarzyna Miksza. The Importance of Name inSelf-Determination

153

Linguistic Rights of National


Minorities in Romania:
Between Law in the Books
and Law in Practice
Sergiu Constantin

1. Introduction
Romanias rich ethnic and linguistic diversity is reflected by the fact that since the fall
of the communism the state has officially recognized 20 national minorities.1 Few will
dispute the claim that Bucharest has developed in the last two decades an impressive
body of domestic legislation dealing with minority rights, but unfortunately the country
does not yet have a framework law that defines the concept of national minority and
provides a unitary set of general normative principles in this field. Nevertheless, Romania
has signed and ratified the Framework Convention for the Protection of National Minorities (FCNM)2 and the European Charter for Regional or Minority Languages (ECRML).3 While
Bucharest has a measure of discretion as how to implement the legal principles contained in these international instruments, the country undertook an obligation to respect
and uphold minority rights, including the use of the mother tongue in the public sphere.
1 Albanian, Armenian, Bulgarian, Czech, Croatian, German, Greek, Hungarian, Jewish, Italian, Macedonian, Polish, Roma,
Russian, Ruthenian, Serbian, Slovak, Tatars, Turks, Ukrainian.
2 Law No. 33/1995 on the ratification of the Framework Convention for the Protection of National Minorities was published in the Official Gazette No. 82, 4 May 1995.
3 Law No. 282/2007 on the ratification of the European Charter for Regional or Minority Languages was published in the
Official Gazette No. 752, 6 November 2007. It is worth noting that Romania signed the ECRML on 17 July 1995, but it took
more than twelve years to ratify it.

Sergiu Constantin. Linguistic Rights of National Minorities in Romania: Between Law in the Books and Law in Practice

155

This chapter focuses on the linguistic rights of national minorities in Romania and
aims to highlight the discrepancies between law in the books and law in practice. After
an overview of the specific norms regulating the use of minority languages in education,
public administration, and justice, we will examine several practical aspects related to
the implementation of the primary legislation. The conclusions of the chapter summarize
the current state of affairs and highlight the main problems and challenges.

2.1.1. Pre-university Level


Persons belonging to national minorities have the right to study in or learn their mother
tongue at all levels, types, and forms of pre-university education, according to the law.
Depending on local needs, at the request of parents or legal guardians and pursuant to
the law, groups, classes, or establishments with instruction in the languages of national
minorities are organized. High school and vocational school classes with groups of pupils
from different fields can be organized, according to the law, in establishments or sec-

2. Legal Framework
2.1. Minority Languages in Education
The Romanian Constitution guarantees the right of persons belonging to national minorities to learn their mother tongue and to be educated in their own language.4 According
to Law No. 1/2011 on national education,5 Romanian citizens enjoy equal rights of access
to all levels and forms of pre-university and higher education, as well as lifelong learning,
without any form of discrimination.6 The state supports the development of any cultural
identity of all Romanian citizens and an intercultural dialogue and guarantees the right
of persons belonging to national minorities to preserve, develop, and express their ethnic, cultural, linguistic, and religious identity.7 Education is carried out in the Romanian
language as well as in the languages of national minorities and international languages.
In each locality, education establishments or instructional units are organized and operate with instruction in the Romanian language and/or, as appropriate, in the languages
of national minorities, or teaching is provided to each pupil in his or her mother tongue
in the nearest locality enabling this process. Learning Romanian in school as the official
state language is compulsory for all Romanian citizens. Curricula should include the necessary and sufficient number of hours required to learn the Romanian language. According to the law, public administration authorities must provide the material and human
resources that enable learning the Romanian language.8

tions with instruction in the languages of national minorities that are the only ones in
the locality.9
National minorities are entitled to representation in the management bodies of
education establishments, school inspectorates, or equivalent institutions, in proportion to the number of classes and in observance of professional competence criteria,
according to the law. In schools that also provide instruction in the languages of national
minorities, one of the principals shall be a teacher from among such minorities, in observance of professional competence criteria.10 The structure of school inspectorates in
counties with education in languages of national minorities also includes school inspectors for this type of education. Such school inspectors are appointed in observance of the
procedures set forth by the law, in consultation with the parliamentary group of national
minorities.11
By way of exception, in localities with a demand for education in the mother tongue
of a national minority, the number of pupils in the structures of study may be less than
the minimum provided by the law.12 Decisions on the setting up and functioning of such
study structures lie with the Ministry of Education (MoE), subject to consultation with the
board of directors of the education establishment in question.13
At least one school with legal personality for each mother tongue, regardless of
the number of pupils, operates in the range of a territorial-administrative unit with several education establishments with instruction in the languages of national minorities.
Lower or upper secondary education establishments with instruction in the languages

Integration andExclusion

9 Art. 45(2) and (4) of Law No. 1/2011.

156

4 Art. 32(3) of the Romanian Constitution.


5 Law No. 1/2011 on national education was published in the Official Gazette No. 18, 10 January 2011, and entered into
force 30 days later. By way of exception, some provisions of the law were not enforceable immediately. For details, see
Art. 361(3) of Law No. 1/2011.
6 Art. 2(3) and (4) of Law No. 1/2011.

10 Art. 97(1) of Law No. 1/2011 specifies that in the case of education establishments with instruction only in the languages
of national minorities, the principal must speak the language in question. In the case of education establishments
with sections with instruction in the languages of national minorities, one of the principals must speak the language in
question. In these cases, the principal is appointed in consultation with the organization that represents such minority
in the parliament of Romania or, if such minority has no parliamentary representation, in consultation with the parliamentary group of national minorities.
11 Art. 95(4) of Law No. 1/2011.

7 Art. 3(g) and (i) of Law No. 1/2011.

12 Art. 63(1) of Law No. 1/2011s stipulates the average group as well as the minimum and maximum number of children/
pupils for each level of education.

8 Art. 10(1)-(3) of Law No. 1/2011.

13 Art. 63(2) of Law No. 1/2011.

Sergiu Constantin. Linguistic Rights of National Minorities in Romania: Between Law in the Books and Law in Practice

157

of national minorities that are the only ones in a municipality, town, or commune are

pre-university education according to specific school syllabi and textbooks drawn up for

granted legal personality regardless of their number of pupils.

the minority in question. By way of exception, in education establishments with instruc-

14

Pupils who have no possibility of study in their mother tongue in their locality of

tion in the language of a national minority pursuant to the request of parents or legal

residence shall be supported by reimbursement of the cost of transportation to the near-

guardians of the national minority organization represented in the Romanian parliament

est school with instruction in their mother tongue, or receive free accommodation and

or, if such minority has no parliamentary representation, of the parliamentary group

meals in a boarding school with instruction in their mother tongue.

of national minorities, the subject Romanian language and literature is taught from

Teachers who teach groups or classes with instruction only in the language of na-

textbooks used in education establishments with instruction in the Romanian language.

tional minorities must prove their professional competence in the language of that na-

Tests on the subject of Romanian language and literature are drawn up based on a

tional minority and are entitled to training in the language of instruction in Romania or

special syllabus.20

abroad. Teachers who teach the Romanian language and literature are exempted from

In primary, lower secondary, and high school education with instruction in the lan-

demonstrating their professional competence in the language of the respective national

guages of national minorities, the subjects History21 and Geography of Romania are

minority. The language of instruction may be used in internal communication and in com-

taught in those languages,22 according to school syllabi and textbooks identical to those

munication with the parents of pupils and preschoolers in the case of education in the

for classes with instruction in the Romanian language, with the obligation to transcribe

language of national minorities. In primary education with instruction in the languages of

and learn the Romanian toponymy and proper names as well. Lower secondary education

national minorities, grades are communicated in writing and orally, also in the language

with instruction in the languages of national minorities shall include as a subject the

of instruction. Evaluation tests, examination subjects of any kind in pre-university edu-

History and traditions of respective national minorities, with instruction in the mother

cation, and semester papers for pupils attending education in the languages of national

tongue. The school syllabi and textbooks for this subject are approved by the MoE.23

15

minorities are drawn up based on the didactic and methodological requirements set out

The MoE provides teaching materials specific to the subjects taught in the mother

in the national curriculum. In pre-university education, admission and graduation ex-

tongue. For pupils belonging to national minorities, the MoE provides textbooks that may

amination tests may be taken in the language in which the subjects have been studied,

be drawn up in the language of instruction and textbooks translated from Romanian or

according to the law. In the national education system, official school documents, as

textbooks that have been imported and approved by the MoE, in the case of books not

nominated by order of the minister of education, are drafted only in the Romanian lan-

published due to small circulation.24

16

17

guage. However, other school-written documents may be drafted in the language of instruction. Education establishments and institutions may perform and issue, on request
and in return for payment, official translations of school documents.18

2.1.1.2. Study of the Mother Tongue,


Minority History and Traditions

2.1.1.1. Study in the Mother Tongue

For pupils belonging to national minorities who attend education establishments with

In the case of schools with instruction in the languages of national minorities, all subjects are studied in the mother tongue,19 except for the Romanian language and lit-

Integration andExclusion

erature course. The subject Romanian language and literature is taught throughout

158

14 Art. 45(5) and (6) of Law No. 1/2011.


15 Art. 45(11), (14) and (15) of Law No. 1/2011.
16 Art. 46(5) of Law No. 1/2011.

instruction in the Romanian language or in a language other than their mother tongue,
the competent authorities shall ensure, on request and pursuant to the law, the study of
their mother tongue and literature, as well as the history and traditions of the respective
national minority, as part of the core curriculum. The teaching and tutoring activities for
20 Art. 46(1) - (4) of Law No. 1/2011.
21 Art. 46(10) of Law No. 1/2011 specifies that history syllabuses and textbooks shall reflect the history and traditions of
the national minorities in Romania.

18 Art. 10(4) and (5) of Law No. 1/2011.

22 This is another request of the Hungarian minority that was fulfilled by the new law. The abrogated regulation (of Law
No. 84/1995) stipulated that the subjects History of Romanians and Geography could be taught in minority languages only in primary schools. In middle and secondary schools they were taught in Romanian.

19 Art. 46(11) of Law No. 1/2011 specifies that [i]n upper secondary and post-secondary education, where the subjects and
special training modules are taught in the mother tongue, the specific terminology is learnt also in Romanian.

24 Art. 45(12) and (13) of Law No. 1/2011.

17 Art. 46(12) of Law No. 1/2011.

23 Art. 46(8) and (9) of Law No. 1/2011.

Sergiu Constantin. Linguistic Rights of National Minorities in Romania: Between Law in the Books and Law in Practice

159

the subjects Minority language and literature and History and traditions of national

at least three candidates.29 Official university documents, as nominated by order of the

minority are carried out based on specific syllabi, methodologies, and textbooks drawn

minister of education, are drafted only in the Romanian language. However, other univer-

up by teams of experts in the language and culture of the national minority in question

sity written documents may be drafted in the language of instruction. Education institu-

and approved by the MoE, according to the law.

tions may make and issue, on request and in return for payment, official translations of

25

university documents.30

2.1.2. University Level


Higher education institutions may establish faculties/lines/sections/study programmes
with instruction in languages of national minorities, according to the law. Higher education for national minorities is carried out in multicultural as well as in multilingual
universities.26 The line of study in multilingual and multicultural universities is organized
by department. The academic staff of a given line of study adopt and draw up their
operation regulations, which establish the procedures of election and other specific aspects of organizational structures of that line of study in compliance with the university
charter. A study section is a form of organization of university education in a language
of the national minorities, which may be institutionalized, both at the university level
and at the faculty level, by the department of the section comprising the related study
programmes and organizational structures. The sections have university autonomy in organizing didactic activities. University education for national minorities in the first cycle
of university studies (i.e., the bachelors degree), the second (i.e., the masters degree),
and the third (i.e., the PhD), as well as in postgraduate education, ensures training in
the mother tongue.27 In multilingual and multicultural universities, at least one vice-dean
is appointed by the dean at the proposal of the teaching staff in the department of the
section or line of teaching in a language of a national minority except when the dean
comes from the section or line of study with instruction in the language of that national
minority. The teaching staff belonging to the section or line of teaching must propose at
least three candidates.28 Similarly, in multicultural and multilingual universities, at least
one pro-rector is appointed by the rector at the proposal of the teaching staff in the
department of the section or line of study with instruction in the language of a national
minority. The teaching staff belonging to the section or line of teaching must propose

Integration andExclusion

25 Art. 46(6) and (7) of Law No. 1/2011.

160

26 Art. 363 of Law No. 1/2011 lists the public higher education institutions with instruction in the language of national
minorities that have the status of multicultural and multilingual universities: Babes-Bolyai University of Cluj-Napoca/
Kolozsvr/Klausenburg (in Romanian, Hungarian, and German languages); University of Medicine and Pharmacy in
Trgu Mure/Marosvsrhely (in Romanian and Hungarian languages); University of Dramatic Arts in Trgu Mure/Marosvsrhely (in Romanian and Hungarian languages).
27 According to Art. 161 of Law No. 1/2011, doctoral studies can be carried out in the Romanian language, in a language
of the national minorities, or in an international language, according to the contract of doctoral studies concluded
between the institution organizing university doctoral studies, the PhD supervisor and the student/PhD candidate.
28 Art. 207(5) (d) of Law No. 1/2011.

3. Minority Languages in the Public Sphere


3.1. Public Administration
The Romanian Constitution establishes the general principle that in the territorial-administrative units where citizens belonging to a national minority have a significant
weight, provision shall be made for the oral and written use of that national minoritys language in relations with local public administrative authorities and decentralized
public services, under the terms stipulated by the organic law.31 According to Law No.
215/2001 on local public administration,32 citizens belonging to a national minority shall
enjoy linguistic rights in any administrative-territorial unit where they represent over
20% of the local population (hereinafter minority administrative-territorial unit [MATU]).
Under this condition, they have the right to use their mother tongue in relations with
local public administration authorities and public institutions subordinated to them, as
well as deconcentrated public services,33 under the terms set forth in the constitution, in
Law No. 215/2001, and in the international treaties ratified by Romania.34 More precisely,
in a MATU, citizens belonging to a respective minority have the right to address in their
mother tongue, orally or in writing, local administrative authorities and bodies subordinated to the local councils, and they shall receive the answer in both Romanian and their
mother tongue.35 Persons who know minority languages shall be employed in the public
relations offices of MATUs local authorities and bodies.36 In a MATU, the agenda of local
29 Art. 211(2) of Law No. 1/2011.
30 Art. 10(4) and (5) of Law No. 1/2011.
31 Art. 120(2) of the Romanian Constitution.
32 Law No. 215/2001 on local public administration was published in the Official Gazette No. 204, 23 April 2001 and entered
into force 30 days later.
33 Deconcentrated public services of various ministries and bodies of central administration function at county and municipality levels: e.g. general directorates for public finance and financial control of the Ministry of Finance, school
inspectorates of the Ministry of Education, public health directorates of the Ministry of Health.
34 Art. 19 of Law No. 215/2001.
35 Art. 76(2) of Law No. 215/2001.
36 Art. 76(3) Law No. 215/2001. Law No. 188/1999 on the status of civil servants contains a similar provision (Art. 108) and
bans any discrimination between civil servants based on ethnic criteria (Art. 27[2]).

Sergiu Constantin. Linguistic Rights of National Minorities in Romania: Between Law in the Books and Law in Practice

161

or county council sessions as well as decisions of normative character shall be made

who are residents in a MATU the right to submit petitions in minority languages and to

public also in the minority language. Decisions of personal character shall be communi-

receive the answer in both Romanian and their mother tongue.44

cated, only upon request, in the mother tongue.37 The MATUs authorities must ensure
the display of the names of localities and public institutions under their authority, as
well as public announcements, in the respective minority language.38 In local councils
where the councilors belonging to a national minority represent at least one-fifth of the
total number, their mother tongue may also be used in council meetings. In such cases,
translation into Romanian shall be ensured by the courtesy of the mayor. All documents
of the council meetings must be drawn up in the Romanian language.39
Government Decision No. 1206/200140 aimed to speed up the implementation process of Law No. 215/2001. It details the rights of national minorities in relations with local
authorities. For example, it stipulates that official ceremonies organized by the local
public administration authorities shall be performed in Romanian but that in a MATU
the language of the respective minority may be also used. Upon request, marriage ceremonies may be performed in the mother tongue of the persons to be married, provided
the marriage officer speaks the respective language. Marital documents and certificates
must be drawn up exclusively in Romanian.41 Government Decision No. 1206/2001 contains
detailed provisions for the implementation of general regulations concerning the use of
toponymy in minority languages, bilingual signs, and names of public institutions.42 Furthermore, it contains twenty-three annexes of minority language names of MATUs where
local authorities have the obligation, according to the law, to display bilingual signs and
names of public institutions.
According to Law No. 340/2004 on the institution of prefect, these representatives

3.2. Justice System


The Constitution establishes the principle that Romanian citizens belonging to national
minorities have the right to express themselves in their mother tongue before courts
of law, under the terms of the organic law. However, the means of exercising this right,
including the use of interpreters or translations, shall be stipulated so as not to hinder
the proper administration of justice and not to involve additional expenses to those
interested.45 According to the Law No. 304/2004 on judicial organization, if one or more
parties demand to express themselves in their mother tongue, the court must ensure,
without charge, the use of an interpreter or a certified translator. When all parties demand or agree to express themselves in their mother tongue, the court must ensure the
exercise of this right, as well as the proper administration of justice, including the right
to an open, public, and adversarial procedure. Nevertheless, the requests and procedural
papers are drawn up only in Romanian. The debates held by the parties in their mother
tongue are recorded in writing under the court presidents dictation and only in Romanian. The objections raised by the parties with respect to translations and their transcription have to be settled by the court after the end of the debates in the case and recorded
in the final document of the proceedings. The interpreter or the translator must sign all
the documents that are drafted or transcribed based upon his or her translation.46

of the central government in the counties are tasked with ensuring the use of minority
languages, according to the law, in relations between citizens and the MATUs public
administration.43 Following a 2014 amendment, Law No. 35/1997 on the organization and
functioning of the ombudsmans office gives citizens belonging to national minorities

37 Arts 39(7), 50 and 94(8) of Law No. 215/2001.


38 Art. 76(4) of Law No. 215/2001.

Integration andExclusion

39 Art. 42(2) of Law No. 215/2001.

162

40 Government Decision No. 1206/2001 on the adoption of application guidelines for the provisions concerning the right
of citizens belonging to national minorities to use their mother tongue in local public administration, as stipulated in
the Law No. 215/2001 on local public administration.
41 Art. 9 of Government Decision No. 1206/2001.

4. Implementation and Practice


4.1. Use of Minority Languages in Education
Law No. 1/2011 brought about far-reaching changes in the education system, but its implementation required a large amount of additional norms and methodologies. The reform process was slowed by various factors, including inter alia the necessary workload,
which was greater than foreseen; the resistance against change from within the system;
and the economic and political crisis that affected the whole country. Undoubtedly, this

42 Arts. 11 and 12 of Government Decision No. 1206/2001. For instance, in a MATU the minority language name shall be displayed on the same sign, under the Romanian name, with the same characters of the same size and color, as described
in Annex 2 hereto. The inscription shall be applied both to entry road signs and to exit road signs. Mayors shall be
responsible for the manufacturing of said road signs. The expenses therefore shall rest with the local budgets.

44 Art. 15(21) of Law No. 35/1997 as introduced by Government Emergency Ordinance No. 48/2014.

43 Art. 19(1)(m) of Law No. 340/2004.

46 Art. 14 of Law No. 304/2004.

45 Art. 128(2) and (3) of Romanian Constitution.

Sergiu Constantin. Linguistic Rights of National Minorities in Romania: Between Law in the Books and Law in Practice

163

situation had a significant negative effect on the implementation of the new regulations,

minorities. The published textbooks are then distributed free of charge to the pupils

and several deadlines set by law have not been met. In the following years, several as-

attending schools with instruction in the minority language.

pects of pre-university education were still ruled by the old methodologies. For instance,

University autonomy was one of the most debated issues since the adoption of

the minister of education approved the new methodologies regarding, firstly, the study in

Law No. 1/2011, which stipulates that the MoE controls how universities exercise their

(or of) the mother tongue and, secondly, textbooks for education in minority languages,

autonomy, carry on their overall mission, and exercise public accountability.50 Moreover,

only towards the end of 2012.47 General new rules regarding the organization and func-

the university charter is adopted only after MoE review of lawfulness (avizul de legali-

tioning of pre-university education institutions were approved only at the end of 2014.

48

tate).51 The issue of university autonomy and the control exercised by the MoE deserves

As another example, in July 2015, the minister of education approved new school syllabi

particular consideration in the context of university education in minority languages.

for primary education in minority languages. The MoE had established working groups

According to Law No. 1/2011, the University of Medicine and Pharmacy in Trgu Mure/

for all recognized national minority groups with the task of elaborating the syllabi for

Marosvsrhely (hereinafter UMP) has the status of a multicultural and multilingual pub-

schools with tuition in the respective minority languages.

lic higher education institution. In summer 2011, the teaching staff of the section with

Integration andExclusion

49

164

Law No. 1/2011 stipulates that the subjects History and Geography of Romania

instruction in Hungarian proposed to the university senate, which was discussing the new

are taught in minority languages according to school syllabi and textbooks identical to

university charter, a series of changes meant to extend the use of the minority language

those used by the mainstream schools. Politicians and teachers belonging to the Hun-

from the classic teaching process (i.e., lectures) to practical learning. The university sen-

garian minority sought to take advantage of the new regulations as soon as possible and

ate refused to take into consideration the requests of the Hungarian academic staff and,

made efforts to have these textbooks available in Hungarian at the beginning of the ac-

according to Law No. 1/2011, submitted the new university charter to the MoE for review.

ademic year 2011-12. They did not want to wait for the new syllabi and textbooks, so they

However, in September 2011, the MoE sent the charter back to the UMP with objections

used the existing ones. The history and geography textbooks for the eight and twelfth

concerning its content and with a recommendation to take into consideration the mi-

grade classes were published in Hungarian in time and distributed for free to pupils at-

nority provisions of Law No. 1/2011. The senate again refused to include in the university

tending schools with instruction in this minority language. While some ethnic Hungarian

charter the amendments proposed by the Hungarian academic staff. Both Romanian and

politicians praised the pragmatism and efficiency of the whole process, representatives

ethnic Hungarian politicians got involved in the argument and hijacked the debate on a

of the civil society raised concerns regarding the quality of translation and criticized

technical issue (i.e., the implementation of the education law) for short-term electoral

the fact that the maps published in the geography textbook for the twelfth grade had

gains in the 2012 local and parliamentary elections. UMP became a battleground for eth-

only Romanian toponymy (although in the text the toponymy is bilingual, Romanian and

no-politics and, four years later, the dispute remains unsolved.

Hungarian). Small minorities have limited qualified human resources for the translation

As mentioned above, the implementation of Law No. 1/2011 is an ongoing process.

of these textbooks into their mother tongue; hence, the process is rather slow. Some of

Indeed, there have been delays in the adoption of the new methodologies for minority

the national minorities face an additional problem regarding the publication of school

schools (and schools with tuition in Romanian where pupils can study their mother tongue

textbooks in general in their mother tongue because, apparently, the smaller the number

as a separate subject). However, this situation did not block the functioning of education

of published copies, the higher the costs of production. Therefore, the Department for

in minority languages or the study of the mother tongue because the educational institu-

Interethnic Relations of the Romanian government financially supports such publications

tions concerned used the old methodologies until the new ones were adopted. Romania

through projects submitted by various organizations of officially recognized national

had a system of teaching minority languages or in these languages before the adoption

47 Order of the minister of education No. 5671/2012 approved the methodology regarding study in the mother tongue of
the subjects Language and literature of the mother tongue, History and traditions of national minorities and Musical education, as well as study of the subject Romanian language and literature. It was published in the Official
Gazette No. 657, 17 September 2012. Order No. 6053/2012 on the approval and authorization of textbooks for education
in minority languages was published in the Official Gazette No. 774, 16 November 2012.

of Law No. 1/2011, which detailed the legal framework for minority education and established legal guarantees for persons belonging to national minorities.52
50 Art. 121 of Law No. 1/2011.

48 Order of the minister of education No. 5115/2014 on the approval of the rules regarding the organization and functioning
of the pre-university education institutions was published in in the Official Gazette No. 23, 13 January 2015.

51 Art. 128(5) of Law No. 1/2011. The MoE has 30 days to issue its review of lawfulness; if it does not do so within this period,
the university charter is considered approved.

49 Order of the minister of education No. 330/2015 approving school syllabi for primary education in minority languages,
preparatory grade, classes IIV, was published in the Official Gazette No. 518, 13 July 2015.

52 For example, Article 20(2) of Law No. 1/2011 stipulates that failure by local authorities to fulfil their obligations related
to the organization and operation of the pre-university education is punishable by law.

Sergiu Constantin. Linguistic Rights of National Minorities in Romania: Between Law in the Books and Law in Practice

165

Nevertheless, it is submitted that access to education in the languages of numeri-

Slovaks57; and minimum in the case of Germans, Greeks, Tatars, and Turks.58 The report

cally small national minorities remains limited, mainly due to the lack of qualified teach-

showed that 79.4% of the surveyed municipalities had bilingual place names signs. Only

ers and textbooks. Moreover, following the adoption of Law No. 1/2011 small minorities

in 6.5% of cases had local authorities failed to apply this provision of Law No. 215/2001.59

have only two options of monolingual education: they attend either a school with instruc-

In two-thirds of the surveyed municipalities, the public institutions subordinated to local

tion in their mother tongue (and study the Romanian language as a compulsory subject)

authorities (e.g. kindergartens, schools) had bilingual names. The local council published

or a school with instruction in Romanian (in which they can study their mother tongue,

its agenda also in a minority language in 56.1% of the cases, and normative decisions

history and traditions as separate subjects). While the large Hungarian minority has the

were made public in a minority language in 50.7% of the municipalities. Roughly only half

qualified human resources to maintain a fully-fledged system of schools in the mother

of the municipalities that answered the questionnaire ensured the exercise of all linguis-

tongue, small minorities struggle to ensure a basic level of instruction in it. According to

tic rights stipulated in Law No. 215/2001.60

the Romanian government, around 23,000 of the countrys educational institutions (e.g.

A 2009 study on Romanias implementation of the ECRML in the field of adminis-

kindergartens, primary and secondary schools, vocational schools) offer instruction in the

trative authorities and public services61 points out how important the territorial concen-

languages of national minorities or have sections in the languages of national minorities.

tration of a minority group is when it comes to linguistic rights. While almost 82% of the

This represents roughly 12% of the total number of pre-university educational institutions

persons belonging to the Croatian minority live in MATUs, less than 3% of ethnic Germans

in Romania. Mostly, persons belonging only to large minorities (e.g. German, Hungarian,

are in this situation.62 The Croatian minority is small but territorially concentrated (mostly

Roma, Russian, Ukrainian) have the possibility of studying in the mother tongue. Some

in rural areas). The German minority is much larger, mostly urban, and territorially dis-

small national minorities (i.e. Armenian, Bulgarian, Croatian, Czech, Greek, Italian, Polish,

persed. The Romanian system seems more advantageous for rural or small town minority

Turkish, and Tatar) benefit to a certain extent from these provisions. However, Hungarian

communities because it is less likely that a minority reaches the 20% threshold in a big

is the language of instruction in around 88% of the total number of institutions and sec-

city.63

tions with tuition in the languages of national minorities.53 This statistical data seems to

According to the 2011 census, 85.2% of the Harghita/Hargita countys population

confirm that the framework established under the provisions of Law No. 1/2011 does not

declared Hungarian as the mother tongue. Around 94% of the countys Hungarian inhabi-

respond well to the actual needs of small minorities.

tants live in MATUs. A 2010 case study64 on the implementation of the existing regulations
regarding linguistic rights in relations to public administration in Harghita/Hargita county

4.2. Use of Minority Languages in the Public Sphere


A 2006 report on the implementation of the minority rights provisions of Law No. 215/200154
points out the uneven impact of the regulation on various minorities and concludes that
positive results depend to a certain extent on the institutional capacity of a minority
community to influence the decision-making process at the local level.55 According to
the report, the impact of Law No. 215/2001 had been significant in the case of Hungarians, Ukrainians, and Croatians56; medium in the case of Bulgarians, Czechs, Serbs, and

they are large communities and/or live concentrated in several MATUs. In most cases, they represent more than half of
the population in these administrative-territorial units.
57 Law No. 2015/2001 affects the linguistic rights of roughly half of the persons belonging to these small minorities. Although some of these communities live concentrated in certain areas, they reach the 20% threshold only in few administrative-territorial units.
58 Law No. 2015/2001 affects the linguistic rights of a limited number of persons belonging to these minorities because in
most administrative-territorial units they do not represent over 20% of the population.
59 Horvt, Rat, Vitos, op.cit. note 54, 225. The research team sent a questionnaire to 522 local administrations and registered data regarding 1249 municipalities. Local authorities of 7% of the surveyed municipalities did not answer the
questionnaire. The rest 7% of the cases regard special situations (e.g. there were no signs at all or, since the last census,
two municipalities merged).
60 Ibid.

Integration andExclusion

53 Comments of the government of Romania on the Third Opinion of the Advisory Committee on the implementation of the
Framework Convention for the Protection of National Minorities by Romania, GVT/COM/III(2013)002, Strasbourg, 5 April
2013, 22-23.

166

54 Horvt, Istvan, Rat, Ramona, Vitos, Katalin, Aplicarea Legislaiei cu Privire la Drepturile Minoritilor Naionale n
Romnia. Drepturi Lingvistice n Administraia Public Local (Implementation of Legislation Regarding the Rights of
National Minorities in Romania. Linguistic Rights in Public Administration), Research Center on Interethnic Relations,
Cluj-Napoca, 2006.
55 Ibid., 226-227. For example, if the minority inhabitants of a MATU represent less than 50% of the local population, it is
more likely that the municipality has no bilingual signs despite Law No. 215/2001 requiring such.
56 Law No. 2015/2001 affects the linguistic rights of more than two-thirds of persons belonging to these minorities because

61 Pop, Daniel, Autorittile Administrative i Serviciile Publice (Administrative Authorities and Public Services), in
Cluer Monica (ed.), Carta European a Limbilor Regionale sau Minoritare n Romnia. ntre Norme i Practici (European
Charter for Regional or Minority Languages in Romania. Between Norms and Practices), Ethnocultural Diversity Resource
Center, Cluj-Napoca, 2009.
62 Ibid., 65.
63 Ibid., 66.
64 Horvth, Istvan, Veress Ilka, Vitos Katalin, Utilizarea Limbii Maghiare n Administraia Public Local i n Instituiile
Deconcentrate din Judeul Harghita (The Use of Hungarian Language in Local Public Administration and in the Deconcentrated Institutions in Harghita County), Working Papers in Romanian Minority Studies no. 27/2010, Romanian Institute for Research on National Minorities, ClujNapoca, 2010.

Sergiu Constantin. Linguistic Rights of National Minorities in Romania: Between Law in the Books and Law in Practice

167

found that local authorities ensure the use of the Hungarian language in most admin-

Currently, it is not possible to assess the implementation of regulations on the

istrative-territorial units surveyed. However, some institutions (e.g. police, mail office)

use of minority languages in judicial proceedings, as no official related data is available.

lack a clear-cut policy regarding the use of minority languages. Moreover, in comparison

Romanian authorities have acknowledged this problem in the countrys initial periodical

to local authorities, the deconcentrated public services of ministries and other central

report on the implementation of the ECRML:

65

administrative bodies are less successful in implementing the minority-related provi-

There are no relevant statistics in the courts of law concerning the use of

sions of Law No. 215/2001. The socio-linguistic impact analysis showed that the majority

the Hungarian language, but it is known from concrete examples that this

of the countys Hungarian population uses the mother tongue in relations with local au-

practice exists, especially in the areas where there is a large concentration

thorities and deconcentrated public services. Nevertheless, there is a clear gap between

of population speaking Hungarian. The lawsuits may unfold in Hungarian

the amount of oral and written communication. Over 80% of ethnic Hungarians living

if all the parties involved do know the language and the documents of the

in the county use Hungarian always or most times in oral communications with public

session are drawn up in Romanian.72

authorities. When it comes to written communications, the figure drops to slightly over

However, the report provides neither details regarding the procedure nor exam-

66

50%. One of the reasons is that local authorities do not have official bilingual adminis67

trative forms. This is a well-known problem, and the Romanian Institute for Research on

It is worth noting that the ECRMLs Committee of Experts expressed regret that

National Minorities has developed an online database of bilingual administrative forms

Romanias initial periodical report was submitted with a delay of nearly 18 months and

(i.e. Romanian and Hungarian). However, these are not official forms, as the government

that it does not provide comprehensive information on the application of the charters

and/or the institutions concerned have not approved the translated text and layout.

provisions. Moreover, [t]he absence of information about the implementation of a con-

68

In October 2010, Romania submitted to the Council of Europe its initial periodical

siderable number of undertakings as well as misunderstandings about the scope of cer-

report on the implementation of the ECRML. According to the government, national mi-

tain undertakings indicate that there exists no structured approach for the application of

norities reach 20% of the total population in 417 localities municipalities, cities, com-

each of the obligations entered into by Romania under the Charter.73 Romania was due

munes in a number of 21 counties.69 However, when it comes to bilingual toponymy,

to submit its second periodical report on the implementation of the ECRML in May 2012,

the report mentions 469 localities (municipalities, cities, communes) in 21 counties that

but the government again failed to meet the deadline. As three years later the situation

also display names in the languages of national minorities. The discrepancy between

is unchanged, Bucharest missed an entire monitoring cycle of the ECRML. Additionally,

the numbers might be the result of a proactive approach of some local authorities who

the government did not submit the countrys fourth report on the implementation of

decided to display bilingual place names even though the local population belonging

the FCNM, which was due in February 2014. This state of affairs speaks volumes not only

to a national minority does not reach the 20% threshold. For instance, according to the

about the failure of Romanian government to fulfill its basic obligations assumed under

government, [i]n eight localities in the country, all in Suceava county, there are bilingual

these international instruments, but also about the lack of political will regarding the

inscriptions in Romanian and Polish on the nameplates. The only municipality in the

implementation of domestic regulations on the linguistic rights of national minorities.

country where the population exceeds the 20% [threshold] is Cacica 23% Polish popu-

Bureaucracy at the central level74 and the limited financial resources of local authorities

lation.71 As another example, the Transylvanian city of Sibiu/Hermannstadt has bilingual

further hinder the implementation process.

70

place names (in Romanian and German) although, according to the 2011 census, Germans
represent only 1.1% of the local population.

Integration andExclusion

65 Ibid., 97.

168

ples.

66 Ibid., 98.
67 Ibid., 84-85.
68 Details are available online at http://www.ispmn.gov.ro/eng/page/formulare- (accessed August 2015).
69 Romanias Initial Periodical Report on the Implementation of the European Charter for Regional or Minority Languages
in Romania, MIN-LANG/PR (2010)11, Strasbourg, 26 October 2010, 80.
70 Ibid., 81.
71 Ibid., 57.

Romania also lacks a comprehensive set of secondary legislation (i.e. methodological norms) detailing and clarifying the existing legal framework and facilitating its application. For example, the general regulation regarding the use of minority languages in
72 Ibid., 165.
73 Report of the Committee of Experts on the application of the Charter in Romania, ECRML (2012)3, Strasbourg, 19 June
2012, 7.
74 For instance, in 2012, the Ministry of Administration and Interior split into the Ministry of Interior and the Ministry of
Regional Development and Public Administration. Which is the main institution responsible for the implementation of
regulations regarding linguistic rights of national minorities and data collection? Arguably, the division of tasks is not
clear, and the two ministries pass responsibility between each other.

Sergiu Constantin. Linguistic Rights of National Minorities in Romania: Between Law in the Books and Law in Practice

169

the justice system remains a dead letter if the Ministry of Justice does not issue a specific

2. In public administration, compliance is ensured in areas with a large mi-

methodology on the procedure to follow for the exercise of this right. Furthermore, with-

nority population (especially where a minority is over 50% of the popula-

out explanatory norms, the general wording of primary legislation leaves space for inter-

tion), but the existing legislation is not consistently applied in all munic-

pretation and, sometimes, abuse. The approach of local authorities in a Transylvanian

ipalities where the minority population reaches the legal 20% threshold.

city with an over 40% Hungarian population is illustrative in this regard: in Trgu-Mure/

Therefore, there are still some outstanding issues in this field.

Marosvsrhely there are no proper bilingual street names signs (e.g. Justice Street

3. In the justice system, there is basically no implementation.

would be Strada Justiiei/Brsg Utca in Romanian/Hungarian), but the Hungarian

The adaptability of the education system to the specific needs of national mi-

word for street is added to the Romanian name without translating the latter into

norities is of particular importance. Law No. 1/2011 on education meets the needs and

Hungarian as well (e.g. Justiiei Utca). In the last year, a group of NGO activists started

expectations of large and/or territorially concentrated national minorities, but it takes

to install proper bilingual street signs on private properties with the agreement of the

into consideration less the specificities of small and/or territorially dispersed minority

owners. In April 2015, the local police fined two of these activists on the grounds of a law

groups. For instance, Romanian regulation focuses on the monolingual minority school

that bans illegal advertising. Moreover, the police compelled the owners of the buildings

approach and excludes bilingual forms of education for minorities. Persons belonging to

to remove the bilingual signs or face high fines.

national minorities have only two options for monolingual education: they attend either
a school with instruction in their mother tongue (and study the Romanian language as a
compulsory subject) or a school with instruction in Romanian (in which they can study

5. Conclusions
The situation of Romanias 20 officially recognized national minorities depends on several factors, including inter alia their size, political strength, geographical concentration,
and kin-state support. There are significant differences between these minority groups
in terms of needs and aspirations regarding the use of a mother tongue in education,
public administration, and the justice system. Although Romania has an impressive body
of legal norms dealing with minority rights, Bucharest has not yet passed a single, unitary
framework law on national minorities. Currently, according to the estimation of the Romanian Institute for Research on National Minorities, almost 200 normative acts regulate
various aspects of minority protection. This fragmented legal framework is both complex
and confusing and lacks a clear-cut set of methodological norms. Moreover, bureaucracy,
lack of political will, and limited financial resources further hinder the consistent application of the minority-related regulations.
Currently, it is submitted that the level of implementation is uneven in various fields:
1. In education, despite delays in the ongoing implementation process, one
Integration andExclusion

may speak about an overall compliance with linguistic rights. The main

170

problems regard the adaptability of existing legislation to the specific


needs of small minorities and the extension of instruction in Hungarian at
the university level.

their mother tongue, history and traditions as separate subjects). The large Hungarian
minority has the qualified human resources to maintain a fully-fledged system of schools
in the mother tongue. However, this is not possible in the case of small minorities.75
It is generally acknowledged that the promotion of cultural diversity, intercultural dialogue, and multilingualism are essential elements of an inclusive school. However, Law
No. 1/2011 does not even mention the expression cultural diversity. It simply states that
intercultural dialogue is a principle that governs the Romanian education system. The
2011 reform of the Romanian education system was not conceived in terms of a paradigm
shift from the monocultural approach to a model of education based on cultural diversity
and intercultural dialogue. Moreover, the effectiveness of the minority-related provisions
of Law No. 1/2011 depends on subsequent secondary legislation. The approval of several
methodologies essential for the implementation of the law has been delayed due to various factors such as workload, insufficient human and financial resources, and political
instability. The dispute triggered by the attempt to extend the use of Hungarian language
within the multicultural and multilingual UMP of Trgu Mure/Marosvsrhely is illustrative of the negative effects of political interference in the education system.
Romanian legislation guarantees the use of minority languages in public administration and the justice system. However, there are clear discrepancies between the law in

75 Before the entry into force of Law No. 1/2011, a number of so-called schools with partial tuition in minority language
functioned in the Romanian education system. Pupils belonging to small minorities (i.e., Croatian and Turkish) attended
such schools, in which the number of subjects taught in the minority language varied according to the availability of
qualified teachers having the necessary linguistic knowledge. The share between the subjects studied in Romanian and
those studied in the minority language could have been, for instance, 70 to 30%, 60 to 40% or 50 to 50%.

Sergiu Constantin. Linguistic Rights of National Minorities in Romania: Between Law in the Books and Law in Practice

171

the books and the law in practice. It is obvious that the level of implementation depends
very much on the ethnic structure of the administrative-territorial units. In municipalities
where a national minority represents more than 50% of the population, it can influence
or even control the decision-making process at the local level. Central authorities may
play an important role in MATUs where the minority population is too small to influence
the decisions of the local elected body. In such cases, the prefect has the task of ensuring the proper use of minority languages in relation to local public administration
and de-concentrated public services. The situation of small and/or dispersed minorities
raises legitimate concerns because the impact of the current legal framework on the use
of these minority languages is insignificant. A rather large number of persons belonging
to national minorities do not live in MATUs and therefore cannot exercise even basic
linguistic rights in relation to public administration. A reduction of the 20% threshold
(to 10%, for example) and a better implementation of the existing legal framework would
lead to increasing use of minority languages in the public sphere. However, such positive
development is unlikely to occur, as Romanian politicians have no incentives to improve
the existing situation, especially in the present geopolitical context. Bucharest clearly
lacks a proactive approach when it comes to minority rights. The outstanding delay in
submitting the country reports on the application of the FCNM and ECRML suggests that
the linguistic rights of national minorities represent a marginal topic for the Romanian

Integration andExclusion

government.

172

Language Rights in Italy:


TheCase of South Tyrol
Elisabeth Alber, Marc Rggla

1. Introduction
Compared to other geographical areas, Europe is the area with the highest density of
norms in the linguistic field. This is true notwithstanding the fact that Europe, as a whole,
is much less linguistically diverse than other regions in the world: the European Union
has 7% of the worlds total population but includes only 1% of the worlds linguistic diversity.2 Italy is contributing to this density by being one of the states that most regulates
the field of ethno-linguistic living-together. Excluding immigrant languages, more than a
dozen minority languages and about twenty regional languages and different dialects are
spoken in Italy, with more than half of the population speaking one of them.3
In South Tyrol, the northernmost Italian province bordering Austria and Switzerland, there is hardly any area of public (and, to a considerable extent, private) life that is
not covered by a complex network of norms. In academic literature and public discourse,
it is generally asserted that South Tyrol4 is one of the most successful examples of minority protection through territorial self-government. The province enjoys a far-reaching

1 In course of the common elaboration of this essay, Elisabeth Alber is mainly responsible for the parts 1, 2, 3, 4, 4.5, 5
and Marc Rggla for the parts 4.1, 4.2, 4.3, 4.4. The authors are researchers at the European Academy of Bozen (EURAC)
and can be reached at elisabeth.alber@eurac.edu and marc.roeggla@eurac.edu.
2 P. Juaristi, T. Reagan and H. Tonkin, Language diversity in the European Union. An overview in X. Arzoz (ed.), Respecting
Linguistic Diversity in the European Union, John Benjamins: Amsterdam-Philadelphia, 2008, 47-72.
3 In this estimate, regional languages as Venetian, Tuscan, and Neapolitan are also considered.
4 In Italian and German, the Autonomous Province of South Tyrol is called Provincia Autonoma di Bolzano Alto Adige /
Autonome Provinz Bozen Sdtirol. Bolzano/Bozen is the capital city of the Autonomous Province. Together with the Autonomous Province of Trento (official name: Provincia Autonoma di Trento), South Tyrol forms the Autonomous Region
Trentino-South Tyrol (official name: Regione Autonoma Trentino-Alto Adige/Sdtirol).

Elisabeth Alber, Marc Rggl. Language Rights in Italy: TheCase of South Tyrol

175

autonomy within Italys asymmetric regionalism, and its institutional set-up is based

Autonomous Provinces of South Tyrol and Trentino, resulting in provincial autonomy.9

on the principle of power-sharing among three linguistic groups: German, Italian, and

From 1992 onwards, politics continued to work towards strengthening South Tyrols po-

Ladin . South Tyrol is an alpine with slightly more than half a million inhabitants. Ac-

sition by means of getting new competences transferred by the central level (dynamic

cording to the 2011 census, 69.41% of South Tyroleans are German-speakers, 26.06% are

autonomy). Since the establishment in 2011 of the European Grouping of Territorial Co-

Italian-speakers, and 4.53% are Ladin-speakers. While those belonging to the German lin-

operation (EGTC) Tyrol-South Tyrol-Trentino,10 politics have focused on strengthening the

guistic group mainly inhabit the rural areas, the Italian-speaking population constitutes

position of South Tyrol through the creation of a strong macro-regional European unit.

the majority in the capital city, Bolzano/Bozen, and the Southern part of the province. In

This chapter aims to provide an overview of the regulation and use of language

fact, all major cities have a considerable number of Italian-speakers. The Ladin linguistic

in multilingual South Tyrol. It starts by embedding the South Tyrolean case in the larger

group is territorially concentrated in the Eastern part of the province, in the Ladin Val-

picture of Italys Asymmetric Regionalist State (part 2) and by elucidating language rights

leys (Grdental and Gadertal).

and the position of South Tyrol in Italy (part 3). Part 4 briefly explains the basics of the

From an international law perspective, South Tyrol in many ways epitomizes the de-

South Tyrolean power-sharing system and then delves into the details of the regulation

velopment of both geopolitics and the minority protection system. From the 14th century

and use of language in public administration (part 4.1), the regulation and use of language

onwards, South Tyrol was part of the crown Province of Tyrol, with a clear predominance

in judiciary (part 4.2), the regulation and use of language in media (part 4.3), the regula-

of German and Ladin speakers. After World War I, the territory up to the Brenner Pass

tion and use of language in toponomy (part 4.4), and the regulation and use of language

became part of Italy, and the Italian fascist regime (192243) imposed a series of harsh

in education (part 4.5). The concluding remarks (part 5) summarize the main features and

assimilation policies on the German- and Ladin-speaking inhabitants of the territory.

challenges of the special mechanisms in South Tyrol.

The majority-minority conflict in South Tyrol reached a new dimension after the First
Autonomy Statute entered into force in 1948. By issuing the First Autonomy Statute, the
Italian Parliament thought itself to have fulfilled its obligations enshrined in the international Gruber-De Gasperi Agreement of 19466. The latter agreement confirmed South
Tyrol as part of Italy and provides special provisions to guarantee the minority of German-speakers the complete equality of rights with the Italian speaking inhabitants and
to safeguard the ethnic character and the cultural and economic development of the
German speaking element. However, the First Autonomy Statute ensured far-reaching
autonomy only at the regional level, where Italians were the majority and German-speakers were very easily outnumbered in decision-making. Thus, in the 1960s, the grievances
of the majority German-speaking population of the province escalated into protests and
minor violence, and the South Tyrolean case was discussed at the United Nations.7 After
several years of negotiations, a conflict settlement was reached in 1992, and the implementation of the Second Autonomy Statute (ASt) of 19728 through a set of special normative and institutional measures commenced. The ASt essentially confers all legislative

Integration andExclusion

and administrative powers from the Autonomous Region Trentino-South Tyrol to the two

176

5 Ladin is a Rhaeto-Romance language spoken in the Central and Eastern Alpine area. In Italy, it is spoken in the valleys
of the Dolomite mountain range situated in the provinces of South Tyrol, Trento, and Belluno.
6 The agreement is Annex IV of the Paris Peace Treaty. It provides the international anchoring of the rights of German-speakers in South Tyrol and acknowledges the protective function that Austria plays as the kin-state.

2. The Italian Asymmetric Regionalist State


Historically, from the time of Italys unification it always had a unitary form of government with strong local (linguistic) identities. In 1861, the creation of the Italian State
was based upon a centralist structure, which had the task of guaranteeing political unity
throughout the whole, very diverse, territory. Such a centralist structure should protect
the Italian unification project from existing centrifugal tendencies (for example, in the
south), compensate the institutional weakness of the pre-unification Italian kingdoms,
and accommodate the very long tradition of local authorities under a common and uniform legislation and administrative apparatus. Local authorities were thus conceived as
articulations of state administrations, and regions were not at all foreseen because of the
fear that pre-unitary states could undermine the legitimacy of the new institutions. Only
with the Republican Constitution in 1948 were local autonomies acknowledged (Article 5
of the Italian Constitution), and an asymmetric regionalization process began. Back then,
twenty ordinary and five special regions were foreseen by the Constitutions makers (Article 131 and Article 116 of the Italian Constitution).

7 UN General Assembly Resolution 1497 (XV) of 31 October 1960 and UN General Assembly Resolution 1661 (XVI) of 28 November 1961.

9 The ASt applies generally to both provinces in the same way, but South Tyrol has in addition special provisions regarding the regulation and use of language in the public sphere (see part 4).

8 Presidential Decree (dPR) no. 670 of 31 August 1972

10 Its parts are Tyrol, a Land in Austria, and the two Autonomous Provinces of Bolzano/Bozen and Trento.

Elisabeth Alber, Marc Rggl. Language Rights in Italy: TheCase of South Tyrol

177

Constitutionally, asymmetric regionalism as a new form of political decentralization

Currently, constitutional reform plans undermine the empowerment of (ordinary)

was the compromise between federalists and supporters of administrative regionalism

regions. Among others, concurrent legislation shall be eliminated, as it was identified as

and resulted in the establishment of five peripheral special regions due to geographi-

the main reason for constitutional litigation and legal uncertainty. Accordingly, a dual

cal and distinctive ethno-linguistic characteristics (as well as to circumvent secessionist

system with parallel and independent areas of legislative powers of the state and the

fears). The special regions were vested with broad powers compared to the ordinary re-

regions, whereby most powers would indeed be attributed to the state, should be intro-

gions. The Constitution of 1948 thus provided a regionalist asymmetric structure in which

duced. Such a re-centralization rationale is further widening the gap between ordinary

the special regions enjoyed more autonomy than the ordinary regions that remained for

and special regions.

11

12

a long time on paper and were only established in the beginning of the 1970s. However,
the regions path towards real emancipation was consistently slow. It was only in the
1990s that a meaningful process of empowerment of the regional and local government
level started, primarily triggered by the principle of subsidiarity.13 Even though the regional emancipation process narrowed the gap between the ordinary and special regions,
it was (and is still) far from abolishing it.14
The asymmetrical nature of Italy is particularly visible when it comes to intergovernmental relations and financial autonomy. All five special regions bilaterally negotiate
with the state. Moreover, in the case of the autonomous regions in the North of Italy,
financial autonomy has been crucial. Self-government by means of financial autonomy
helped to successfully govern South Tyrol and was vital for the establishment of its power-sharing system between German-, Italian- and Ladin-speakers.
With regard to the field of minority protection, the decision to opt for a regional,
diversified system led to the establishment of a highly differentiated minority rights regime adjudicating various degrees of protection for recognized minority groups. Following the rationale of asymmetric regionalism, the very existence of such a differentiated
minority regime can, to a certain extent, be interpreted as the driving force behind Italys
regionalization process. Politically speaking, regionalism as a governance technique was
instrumental for the development of minority issues, thus one can assert that regionalism served the purpose of minority rights and minority rights served the purpose of
regionalization.

Integration andExclusion

11 The five special regions are: Trentino-Alto Adige/Sdtirol (South Tyrol), Valle dAosta/Valle dAoste and Friuli-Venezia
Giulia in the North, as well as the two islands Sicily and Sardinia. They are all endowed with a special statute (a basic
law approved as constitutional law of the State). See F. Palermo, Asymmetric, Quasi-Federal Regionalism and the
Protection of Minorities. The Case of Italy, in A. Tarr, R. Williams and J. Marko (eds.), Federalism, Sub-National Constitutions, and Minority Rights, Westport Ct, London: Greenwood Praeger, 2004, 107-131.

178

3. Language Rights in the Italian Constitution


and South Tyrols Position
The Italian Constitution (ItConst) recognizes language as the only distinctive feature to
identify minorities. It recognizes linguistic minorities in Article 6,15 and, interestingly, if
compared to language provisions in other European Constitutions16, there is no article
referring to Italian as an official language in the ItConst. Article 6 of the ItConst means
that special measures are only constitutionally mandatory for linguistic groups. As a rule,
minority rights can only be enjoyed in specific territories, whether at the regional (for
the more numerous and better protected minorities) or municipal level (for the smaller
groups). Strict territorialisation is thus the cause of the extremely asymmetric protection
and promotion of minority rights.
Italys minority regime is by and large based on the assumption that all Italian
citizens are members of the Italian nation, a nation of nations. As a consequence, with
regard to all other minorities, Article 3 of the ItConst establishes the principle of non-discrimination. In other words, in the Italian constitutional tradition, the concept of nation
is understood as demos and not as ethnos, and therefore, legally speaking, in Italy
there are no ethnic but only linguistic minorities.17 The rights of officially recognized
linguistic minorities are not attached to the persons belonging to the respective groups
but to a certain territory where they can be exercised. As a consequence, when it comes
to minority protection at the national level, Italy applies the territorial, not the personal,
principle. In practice, this means that members of the same linguistic minority may be

12 Out of the fifteen ordinary regions, eight are in the North (Piedmont, Emilia-Romagna, Liguria, Lombardy, Marches,
Tuscany, Veneto and Umbria), two are considered to be in central Italy (Lazio and Abruzzo), while five are located in the
South (Apulia, Basilicata, Calabria, Campania and Molise).
13 Put simply, subsidiarity means that local communities should carry out their own tasks autonomously, whereas larger
entities should be left only those tasks that cannot be fulfilled by the smaller and that are of general interest of the
whole.
14 See P. Francesco, South Tyrols Special Status Within The Italian Constitution, in: J. Woelk, F. Palermo and J. Marko
(eds.), Tolerance through Law Self Governance and Group Rights in South Tyrol,. Leiden Boston: Martinus Nijhoff Publishers, 2008, 33-49 (36-37).

15 The article reads: The Republic safeguards by means of appropriate measures linguistic minorities.
16 For example, Article 8 of the Austrian Constitution recognizes German as the official language of the Republic; Article 8
of the Irish Constitution states Irish is the first official language and English the second; Article 3 of the Spanish Constitution recognizes Castillano as the official language of the state.
17 F. Palermo, Asymmetric, Quasi-Federal Regionalism and the Protection of Minorities: The Case of Italy, op. cit., at 114.

Elisabeth Alber, Marc Rggl. Language Rights in Italy: TheCase of South Tyrol

179

treated differently depending on whether or not they live in a certain territorial-admin-

on regional level.19 The Statute of the Autonomous Region Trentino-South Tyrol refers in

istrative unit.

its part concerning the Autonomous Province of South Tyrol to the principle of cultural

A domestic framework to implement Article 6 of the ItConst was only adopted in

autonomy in Article 2 and sets German on a par with the Italian language in Article 99.

1999, with law no. 482. Such a delay was mainly due to the fact that no decision was

Compared to the other autonomous regions, todays South Tyrol is the Italian territory

made with regard to which groups ought to be included. This reluctant attitude was crit-

that enjoys by far the most extensive self-government and in which minorities enjoy the

ically judged by the Constitutional Court, which not only invited parliament to act but

highest degree of protection.

also recognized the differentiated minority protection regime as an unavoidable element


of Italys Constitution (judgment no. 28/1982, no. 62/1992 and 15/1996). In short, law
no. 482/1999 acknowledges the principle of territoriality and recognizes twelve linguistic
minorities.18 Law no. 482/1999 does not apply to autonomous regions. The five Italian
autonomous regions have their own basic law, approved as a constitutional law of the
state. They are vested with legislative, administrative, and financial autonomy and can
negotiate their own bylaws directly with the national government, bypassing parliament.
As mentioned earlier, the autonomous regions largely differ from each other, mainly
by having developed bilateral relationships with the central level differently. Next to the
recognition and protection of linguistic minorities in Article 6 of the ItConst, the ItConst
also articulates the legal guarantee of the special statutes granted to the autonomous
regions. Article 116 reads: Friuli-Venezia Giulia, Sardinia, Sicily, Trentino-Alto Adige/Sdtirol and Valle dAosta/Valle dAoste have special forms and conditions of autonomy
pursuant to the special statutes adopted by constitutional law. This means that the ItConst in some cases recognizes linguistic minorities constitutionally. For example, Article
38 of the Statute of the Autonomous Region of Aosta Valley foresees official bilingualism;
accordingly, public acts can be written either in French or Italian, with the exception of
judicial provisions and education guaranteed in both languages. Article 3 of the Statute
of the Autonomous Region Friuli Venezia Giulia foresees that all citizens are equal and
have equal rights regardless of their linguistic origin; the protection of the Slovene minority derives from a complex pattern of international agreements (e.g. Treaty of Osimo
in 1975) and from various legislative acts regarding administration and schooling (for example, in the Provinces of Trieste and Gorizia) and legislation related to the media sector

4. Language Rights in South Tyrols


Power-Sharing System
The institutional design of South Tyrol is based on the strict separation of the two main
linguistic groups, German and Italian, giving to the third and numerically less consistent
group, the Ladins, the right to be represented as such in the Provincial Government. From
a political science perspective, the entirety of the provisions regulating living-together in
South Tyrol establishes a consociational democracy model, a form of government of consensual ethnic power-sharing with the following core principles: the participation of all
language groups in the joint exercise of governmental power,20 a system of veto rights to
defend each groups vital interests,21 cultural autonomy for the institutionally recognized
groups, language parity between the two major languages and trilingualism with regard
to certain valleys and services, and ethnic proportionality based on a linguistic declaration (or affiliation). The divided governance system permeates everyday life in South Tyrol, ranging from the field of public employment to the educational system, establishing
a detailed regime of linguistic rights in all sectors.
Importantly, all provisions of South Tyrols autonomy, and more decisively all stipulations on the use of language, are enforced through strict legal remedies available to
individuals and groups. At the political level, regulations on language use also envisage
the alternative use of Italian and German in the meetings of the provincial council and
the municipalities; therefore, the use of simultaneous interpretation is foreseen. With

Integration andExclusion

regard to public administration and the judiciary, special provisions are valid. Put simply,

180

18 The groups recognized as minorities by Article 2 law no. 482/1999 are: Albanians, Catalans, Germans, Greeks, Slovenes,
Croatians and the groups speaking French, Provencal, Friulian, Ladin, Occitan and Sardinian. Please note that with the
term German, no German-speakers in South Tyrol are meant but rather German variations spoken in the neighboring
province Trento (Cymbres and Mocheni), in Piedmont and Aosta Valley (Walser), and some small groups in the Province
of Belluno (Veneto Region, Carnic people), as well as German-speakers in the provinces of Vicenza and Udine. As far
as the territorial application is concerned, the law delegates the provincial council with the authority to identify the
territories in which the rights may be applied (Article 3). The initiative can also be taken by citizens and municipal
representatives of the concerned minorities. Substantially, the law lists a consistent number of rights which can be
claimed by the minorities (Articles 4-7). The linguistic minorities listed in the law have the chance to see their mother
tongue being introduced and used in education, in public offices, in the local government, in the judicial system, in the
mass-media, and for place and personal names, albeit in a limited measure.

one can say that Italian is today the dominant language in the judiciary, while German
prevails in public administration.
19 See in detail: regional law no. 38/2001.
20 Article 50 of the ASt mandates that the composition of the provincial government must reflect the ratio of the groups
as represented in the Provincial Council. Also a Ladin member may be part of the provincial governmente by means of
by-election, independently of the proportional principle. The same principle applies to the local bodies (article 61 and
62 of the ASt).
21 Article 56 of the ASt.

Elisabeth Alber, Marc Rggl. Language Rights in Italy: TheCase of South Tyrol

181

4.1. Public Administration and the Quota System

of the language groups.26 To ascertain the exact numbers and strength of the linguistic

As mentioned earlier, one of the key factors of autonomy in South Tyrol is a stable bal-

guage declaration or language affiliation. It is a declaration based on free choice of the

ance of monitored cooperation and segregation between the language groups (Italian,
German, Ladin) living within the Autonomous Province of Bolzano/Bozen. The principles
of cultural autonomy (Article 2) and language parity (Article 99) enshrined in the ASt aim
at preserving the linguistic and cultural identity of the German-speakers within Italy. As
Article 99 of the ASt guarantees equality between the German and Italian languages in the
territory of the Autonomous Province of Bolzano/Bozen,22 all persons living in South Tyrol
have the right to interact with the public administration and the judiciary (details in part
4.2) in German or Italian (article 100 of the ASt),23 and partly also in Ladin. More precisely,
the Ladin minority living in South Tyrol has been widely neglected in the provisions of
the ASt. However, in the by-laws implementing the language provisions of the ASt24 (the
so-called enactment decrees), attention was also given to the linguistic rights of the Ladin group.25 Contrary to the personal principle applying to the use of German and Italian,
for the use of Ladin the territorial principle is valid. In practice, this translates into the
fact that only in the Ladin valleys Ladin is co-official with German and Italian language;
however, the Ladin language can also be used to address public administration in offices
dealing with Ladin interests outside the Ladin valleys (e.g. in the capital city Bolzano/
Bozen). In everyday life, the public administration has the obligation to answer in the
language used by the person who initiated the procedure. In short, the individual makes
the choice between German or Italian (and, where relevant, Ladin). When communication
is started by the administration, it must be carried on in the language presumed to be
the mother tongue of the citizen to whom it is directed, while documents directed to the
public must be bilingual. To guarantee such a separate use of language, public employees
have to be bi(tri)lingual and thus also have posts assigned to them based on the strength

groups in South Tyrol, a very detailed and much discussed instrument is used: the lanindividual. The declarant has to declare him or herself as belonging to one of the three
recognized language groups living in South Tyrol in order to exercise all rights.
In fact, every ten years, at the time of the census, every resident aged fourteen has
to declare their language group, and those who did not make a declaration can neither
participate at a competition for a public post on a province or municipal level nor have
the right to social housing and various social benefits.27 The declaration is revealed only
if needed and remains sealed in an envelope if the declarant does not need it with regard
to politics, a career in administration, or social services. The declaration also ascertains
the numerical strength of the linguistic groups, which then forms the legal foundation
of public life, including the allocation of financial means; in this function, it has been
separated from the personal declaration mentioned previously since 2005. As said, the
personal declaration is only required when, for example, somebody applies for a public
post in order to verify the applicants personal affiliation to a language group. This is because all public jobs are subject to the quota system that is instrumental to the de facto
ethnically divided governance system. In practical terms, this means that the candidates
compete only for the posts reserved for their respective group, not for all of the posts.
It is important to stress that the ethnic quota system applies to all state and semi-state
bodies operating in the province, and to most privatized institutions (railroads and the
postal service, for example).28 The personal declaration keeps lifetime validity as long as
the declarant does not want to change it; if changed, it enters into force only after several
months, in order to avoid its misuse.29 Initially introduced as a reparation mechanism
to gradually balance Italian dominance in the public state service resulting from fascist
oppression, in the last two decades the quota system was applied more flexibly in cases
where it was not likely to find a qualified candidate.30 Even though this instrument was

22 It sets German on a par with Italian, which is the official state language with regard to the bilingual drafting of legislative texts.

Integration andExclusion

23 Articles 99 and 100 are both based on a provision of the Gruber De Gasperi Agreement of 1946.

182

24 dPR no. 574/1988. The decree does not distinguish between members of the national minority and other residents;
everyone can choose their linguistic affiliation, regardless of ethnic identity. The reasons for the delayed definition
of all principles on the use of languages in administration and judiciary were twofold: technical difficulties and a lack
of political will by the central level. Providing for a bi(tri)lingual administration system and a bilingual judiciary is a
complex linguistic task and apart from specialized human resources it requires legal terminology. A bi(tri)lingual
regime can only function if bi(tri)lingual technical terminology is available. To this purpose, the decree established a
Joint Terminology Commission. Its task was and still is to establish and update legal terminology to be used by public
entities, including the standardization of the legal terminology in German related to the Italian legal system. See E.
Alber and F. Palermo, Creating, Studying and Experimenting Bilingual Law in South Tyrol: Lost in Interpretation?, in:
X. Arzoz (ed.), Bilingual Higher Education in the Legal Context, Leiden Boston: Martinus Nijhoff Publishers, 2012, 281-309
(297-303). No indication with regard to the Ladin terminology is foreseen.
25 Article 32 of the presidential decree no. 574/1988. As to the standardizing of legal terminology in Ladin language at
present, both Ladin forms, the Gadertaler Ladin and the Grdner Ladin, are considered literary language in South
Tyrol (decision no. 210/2003 of the Provincial Government).

26 Art. 89 ASt (3): The posts in the lists referred to in the first paragraph, drawn up according to administration and career
shall be reserved for citizens belonging to each of the three linguistic groups in proportion to the numerical strength
of those groups ascertained from the declarations of membership given at the time of the official census of the population.
27 E. Lantschner, G. Poggeschi, Quota System, Census and Declaration of Affiliation to a Linguistic Group, in: J. Woelk, F.
Palermo and J. Marko (eds.), Tolerance through Law Self Governance and Group Rights in South Tyrol, Leiden Boston:
Martinus Nijhoff Publishers, 2008, 219-233.
28 From this follows that at the municipal level the quota is based on the strength of the linguistic groups in that specific
municipality.
29 State law no. 99/2005
30 E. Alber and C. Zwilling, Continuity and Change in South Tyrols Ethnic Governance, in L. Salat et. al. (eds.), Autonomy
Arrangements Around the World, Cluj-Napoca, 2014, 48.

Elisabeth Alber, Marc Rggl. Language Rights in Italy: TheCase of South Tyrol

183

foreseen as limited in time and is increasingly criticized, the majority still views it as a
valid instrument.

While the principle of individual choice of the language is partly attenuated in civil
proceedings, it is definitely not the case in criminal proceedings. Criminal proceedings

31

As pointed out earlier, in order to guarantee bi(tri)lingualism of public officials,

are always conducted in the language of the defendant in order to guarantee the best

every job applicant has to pass the so-called exam of bilingualism (German-Italian) or

chances for the defense. The language is decided at the first meeting, and from that mo-

trilingualism (German-Italian-Ladin). It is an essential requisite and a precondition to

ment on every document has to be drafted in the language chosen by the defendant.34

apply for any public post in South Tyrol. A special commission installed by the Autono-

Whether the right to use the German language applies only to the citizens of the Ger-

mous Province of Bolzano/Bozen supervises the exam process. The exams consist of oral

man community in South Tyrol, and thus the presidential decree no. 574/1988 ought to

and written parts that must be passed with regard to all languages involved. Altogether,

be interpreted in a restrictive way, was subject to controversial discussions. In 1996, the

four difficulty levels exist. Following a judgement of the European Court of Justice, the

European Court of Justice (ECJ) affirmed that within the Autonomous Province of Bolz-

Autonomous Province of Bolzano/Bozen is now obliged to acknowledge equivalent cer-

ano/Bozen citizens of all member states of the European Union had the right to use the

tificates obtained by officially recognized language institutes in other member states (for

German language in court proceedings.35 The ECJ based its decision on a set of principles

example, the Goethe Institut with regard to the German language). The ECJ specified in

deriving from EU citizenship and the prohibition of discrimination. The court clearly rec-

its judgment that the practice of issuing certificates solely by a South Tyrolean provincial

ognized the necessity of a special provision to protect the German minority in South Tyrol

entity it is not in line with EU law. If a language diploma is considered an essential quali-

but also stated that the extension of this provision to EU citizens is not conflicting with

fication when competing for jobs, then it is not permissible that it can be obtained in only

that need. The court argued that a restrictive interpretation of the regulation, hence to

a single province of one EU member state.

consent to use of the German language in court only by the German minority living in the

32

33

Autonomous Province of Bolzano/Bozen, would have been a form of indirect discrimina-

4.2. The Judiciary

tion.36

The provisions regarding the equality of the Italian and German languages not only apply

tive Court for the province of Bolzano.37 The judges of the court must represent in equal

to the public administration but also to the judiciary. Civil lawsuits in South Tyrol can be
either bilingual or monolingual, although for matters of efficiency and to avoid misinterpretations due to translations, in practice most of the proceedings are conducted in only
one language. The court offices have to apply the same provision as the public administration and use the language chosen by the applicant. If the complaint starting the proceeding and the statement of the defense is written in the same language, the process is
monolingual. Otherwise, the proceedings are bilingual, and every party uses its chosen
language. In the case of bilingual proceedings, there is no obligation of translation by the
court offices. Nevertheless, if the parties demand a translation, the documents have to

With regard to administrative issues, the Autonomy Statute foresees an Administranumber the German and Italian language groups, and half are nominated by a decision
of the council of ministers and with the consent of the Provincial Council and appointed
with decree of the President of the Republic. The other half is nominated by the Provincial Council and appointed by decree of the President of the Republic. The main duties
of the Administrative Court are to judge on recourses against regulations of the public
administration within the Autonomous Province Bolzano/Bozen and against regulations
with efficiency in the Autonomous Province Bolzano/Bozen.38 In 2012, 282 trials have been
filed at the Administrative Court, and most of the proceedings were in the areas of construction and urban affairs (36.2%) and public administration (17.7%).39

be translated within fifteen days. However, if documents are addressed to parties outside

Integration andExclusion

the territory of South Tyrol, there is an obligation for translation of German documents.

184

31 The fact that during the last census, in 2011, out of 458,641 linguistic declarations only 4,934 were invalid and 435 were
handed in blank, indirectly reinforces this argument. However, only 458,641 declarations were handed in (not 505,067,
the amount of the resident population as to the census data of 2011). The difference (46,426) comprises citizens with
foreign citizenship residing in South Tyrol (who are not entitled to deliver the linguistic declaration), South Tyroleans
away from the province at the moment of data collection, and persons who deliberately did not want to hand in such a
declaration.

34 dPR no. 574/1988


35 ECJ, case 274/96, Bickel-Franz, judgment of 24.11.1998, [1998] ECR 7637.
36 Gabriel N. Toggenburg, Regional Autonomies and European Integration, in: J. Woelk, F. Palermo and J. Marko (eds.),
Tolerance through Law Self Governance and Group Rights in South Tyrol, Leiden Boston: Martinus Nijhoff Publishers,
2008, 184-186.

32 Further information can be found in German and Italian at: http://www.provinz.bz.it/zdp/themen/die-zweisprachigkeitspruefung.asp (31/082015).

37 Art. 90 ASt.

33 ECJ, case 281/98, Angonese vs. Casa di Risparmio di Bolzano SpA, judgment of 06.06.2001, [2000] ECR 4139.

39 ASTAT, Landesinsitut fr Statistik, Die Zivil- und Verwaltungsgerichtsbarkeit 2013 und 2014, N.10, 3/2015.

38 dPR 426/1984.

Elisabeth Alber, Marc Rggl. Language Rights in Italy: TheCase of South Tyrol

185

minority press and minority issues on a European level.49 In 2015, Midas counted 27 mem-

4.3. Linguistic Rights and Media

ber newspapers from all over Europe and an average of 3.5 million readers.50

Media, especially minority media, not only give access to information but also fulfill a
very important role in creating a common public sphere and preserving, as well as enhancing, a local culture. Italy has signed and ratified the Framework Convention of National Minorities (FCNM) of the Council of Europe, and accordingly it has to guarantee
that persons belonging to national minorities do not face discrimination in their access
to the media. Moreover, it is obliged to adopt adequate measures in order to facilitate
access to the media for persons belonging to national minorities.

40

In Italy, state law regulates access to media. Articles 19 and 20 of that law not only
41

guarantee the transmission of radio and TV in German and Ladin within the Autonomous
Province of Bolzano/Bozen but also oblige the national broadcaster RAI (Radiotelevisione
Italiana) to guarantee access to the broadcasters of the neighboring countries.
However, this sector is an exclusive competence of the Autonomous Province Bolzano/Bozen. As a consequence, and in order to guarantee access to the programs of
neighboring countries, the province founded the RAS (Radio and TV Station South Tyrol)
in 1975. The RAS is a public broadcast with a main goal of providing German and Ladin
42

radio and TV programs. Because of agreements and cooperation with foreign TV broadcasters (most importantly, with the main German , Austrian and Swiss broadcasters ),
43

44

45

46

the South Tyrolean television landscape is highly diverse. Furthermore, the Italian national broadcaster RAI itself broadcasts in South Tyrol approximately eighteen hours of
daily radio programs and approximately two hours of a daily German television program.
The Italian state also guarantees financial support for minority newspapers.

47

48

Therefore, South Tyrol has a variety of print media in both German and Italian. There
are different daily newspapers (in German: Dolomiten, Neue Sdtiroler Tageszeitung; in
Italian: Alto Adige, Corriere dellAlto Adige) and weekly magazines on special topics such
as politics, economy, and society.
In Bolzano/Bozen, Midas, the European Association of Daily Newspapers in Regional

Integration andExclusion

and Minority Languages, has its headquarters. The association focuses on advocating for

186

4.4. Linguistic Rights and Toponomy


Toponomy issues in South Tyrol date back to the fascist regime and its repressive measures against the use of German language. In order to legitimize the Italian claim of the
former territories of the Austro-Hungarian Empire, the German topographic names, including German family names, have been Italianized. From 1922 onwards, a rigorous policy
of Italianization51 of the entire public sphere in South Tyrol, by means of industrialization and migration from the South under fascism, led to the prohibition of the German
language and the artificial introduction of surnames, including in the field of toponomy.
In order to counteract these measures, after World War II the international Gruber-De
Gasperi Agreement between Austria and Italy of 5 September 1946 foresaw, among other
provisions, the right to restore surnames that were Italianized52 and the establishment of
bilingual topograhic naming.53 In general, the Gruber-De Gasperi Agreement provided for
an international anchoring of the interests of German speakers in South Tyrol.
Accordingly, and with the obligation of bilingualism, the Autonomous Province of
Bolzano/Bozen was vested with primary powers in the field of toponomy within the first
Autonomy Statute. The provisions within the Second ASt (Article 8) again vest the primary
power over toponomy in the Autonomous Province of Bolzano/Bozen, with the obligation
that toponomies have to be bilingual in the whole province. With the implementation of
presidential decree no. 574/1988 and the recognition of the equality between the Italian
and German languages (Ladin in the two main Ladin valleys54), bi(tri)lingual place names
became reality. Nevertheless, the discussion regarding an extensive regulation of toponomy is ongoing. Toponomy is still a very sensitive topic in the South Tyrolean community
because of its historical fascist legacy and the fact that it is difficult to handle politically.
Combined with the obligation of bilingualism, regulating toponomy would mean that the
South Tyrolean Provincial Council, composed of a majority of German speakers, legiti-

40 FCNM, Art. 9.

49 Toni Ebner, Gnther Rautz, Midas Minority Daily Association, 2010.

41 State law no. 103/1975 and State law no. 296/2006

50 www.midas-press.org (31/08/2015).

42 Provincial law no. 16/1975.

45 SRF

51 The Italianization policy culminated in the 1939 Option. Back then, Hitler and Mussolini agreed upon the so-called final
solution of the South Tyrolean conflict (the Option): accordingly, the German speakers were forced to choose between keeping their identity by moving to the German Reich and thus giving up their home, and keeping their home by
renouncing the German language and Tyrolean culture and thus agreeing to completely Italianize. A large percentage
of South Tyroleans decided to leave, although only a small part of them really left due to the outbreak of the war.

46 For further information: http://www.ras.bz.it/ (31/08/2015).

52 Art. 1 c).

47 http://www.senderbozen.rai.it/de/wirstellen.php (31/08/2015).

53 Art. 1 b).

48 State law no. 416/1981, State law no. 67/1987, State law no. 250/1990.

54 See also Art. 102 ASt.

43 ZDF, Das Erste, arte, KiKa, 3sat


44 ORF

Elisabeth Alber, Marc Rggl. Language Rights in Italy: TheCase of South Tyrol

187

mizes Italian names of the fascist period. This is viewed as unbearable by both segments

only in the Ladin valleys (with Ladin mother tongue teachers) and for tertiary education

of society and politics. But it is also true that returning to the state of the art before

(where it translates into an extensive use of English in addition to German and Italian).

fascism is not accepted by Italian speakers who grew up with certain Italian toponomies.

The development of the educational system in force today as with all previous

Until now, concrete reform proposals focused either on a rather restrictive (legitimizing

aspects has also to be seen through the lens of history. In 1946, the Peace Treaty con-

only Italian names in use) interpretation of the obligation to bilingualism. Such a flex-

firmed South Tyrol as part of Italy, ensuring that German-speakers would be given spe-

ible interpretation of the obligation of bilingualism would lead to foreseeing mono-

cial provisions. According to Article 1(a) of the Gruber-Degasperi Agreement, enshrined

lingual signs where those are the only ones in use. Another attempt is to differentiate

in Annex IV of the Peace Treaty, they had to be guaranteed elementary and secondary

between macro- and micro-toponomy, with all macro-toponomies strictly bilingual while

teaching in the mother-tongue. German-language schools slowly re-opened in the af-

micro-toponomies could be only in German.

termath of World War II with mother tongue education at the primary and secondary

In 2012, the AVS (South Tyrolean Alpine Club) replaced bilingual signs for trails with

levels. Its organization was extremely difficult due to the fact that there were almost no

new, monolingual German signs. The South Tyrolean Provincial Council backed these ac-

qualified teachers. Teachers of the German mother tongue did not have an appropriate

tions by adopting law no. 15/2012, which states that micro-toponomies (e.g. names of

educational background. As a result, a series of specialization courses were started by

corridors, hamlets, farms, etc.) shall be asserted by a joint commission in the respective

the Austrian University of Innsbruck in cooperation with the Italian University of Padua.56

geographical area and consequently listed in the official directory of the Autonomous

At that time, school enrollment was based on the decision of the parents (as it is today).

Province of Bolzano/Bozen. This law was immediately challenged by the Italian Govern-

With regard to education, the Province of Bolzano under the First Autonomy Stat-

ment before the Constitutional Court because it was in breach of the obligation of bilin-

ute (1948) enjoyed primary legislative powers only in relation to specialized courses in

gualism in toponomy as enshrined in the ASt. Moreover, South Tyrol only has the power

agriculture and commerce. Primary, secondary, and upper-secondary education in the

to reintroduce the German and Ladin names; it cannot abolish the Italian names, by its

Province of Bolzano was granted secondary legislative powers only within the limits of a

own rules. In July 2013, the governing party, the South Tyrolean Peoples Party (SVP), re-

national framework law. Teaching in the mother tongue and mother tongue teaching in

ceived a positive note from the Italian Parliament to establish a round table in order to

the second language was provided. In German-language schools, the teaching of Italian

discuss the issue. The hearing planned for October 2013 was consequently postponed to

(being the official language) was obligatory. On the contrary, Italian-language schools

an indefinite date, and the case is still pending.

did not have to provide German language classes. The teaching and administrative staff

55

were an integral part of the Italian national educational system. Back then, the provincial

4.5. Linguistic Rights and Education

school system had little financial means, and all regional and provincial laws required

Today, in the field of education, separation and the principle of monolingualism are the

Gruber-Degasperi agreement committed Italy to concur in a joint agreement on the re-

rule. Each linguistic group runs its own public schools within the given provincial and national legislative frameworks, from nursery to secondary schools. In schools with Italian
as the language of instruction, all subjects are taught in Italian, while the same principals
apply to schools with German language education. Teachers must also prove their mother
tongue to be employed in schools with the respective vehicular languages of instruction;

Integration andExclusion

thus, German and Italian. Teaching of the second language (this is the official name of

188

Italian in schools with German as the language of instruction and of German in schools
with Italian as the language of instruction) is compulsory. A plurilingual model is in place

approval by the central Government in Rome. For tertiary education, Article 3(b) of the
ciprocal recognition of validity of certain study degrees and university diplomas for the
sake of neighbourly relations. However, it was only in 1979 (also due to changes with regard to the ASt) that German- and Ladin-speakers were set on a par with Austrian citizens
for the sake of access to services in Austria, including access to university and students
benefits.57 Moreover, the Agreement between the Republic of Austria and the Republic of
Italy of 1 October 198358 paved the way for the integrated curriculum on Italian law of the
University of Innsbruck in cooperation with the Italian University of Padua.59
56 Details in E. Alber and F. Palermo, Creating, Studying and Experimenting Bilingual Law in South Tyrol: Lost in Interpretation?, op. cit.
57 Gleichstellungsgesetz, Bundesgesetz 25.01.1979, BGBl. no 57.

55 J.Woelk, Art. 11- Autonome Provinz Bozen, in: R. Hofmann et al. (ed.), Handkommentar -Rahmenbereinkommen zum
Schutz nationaler Minderheiten, 2015, 369.

58 BGBl. no 423/1983.
59 See F. Palermo and E. Alber, Creating, Studying and Experimenting Bilingual Law in South Tyrol: Lost in Interpretation?,

Elisabeth Alber, Marc Rggl. Language Rights in Italy: TheCase of South Tyrol

189

The Second Autonomy Statute (ASt) essentially confers all legislative and adminis-

children in the schools of their choice. This right cannot be abused in order to influence

trative powers from the Autonomous Region Trentino-South Tyrol to the two Autonomous

the language of instruction of the respective school. Following a specific procedure, the

Provinces of South Tyrol and Trentino, resulting in provincial autonomy. According to

school authority has the right to contest and refuse admittance if the pupils language

the ASt and the respective enactment decrees, todays three-tier school system is sub-

skills are considered to be too weak.64 As to the contents, South Tyrol is granted the right

ject to an administration referable to the provincial institutional regime and responds to

to adapt the syllabi to local necessities, notwithstanding their conformity with the fun-

the principle of monolingualism. In practice, this means that in Italian-language schools

damental principles at the national level.

all subjects are taught in Italian and, equally, schools with German language of instruction teach only in German.

tem. Ladin schools are based on the principle of teaching language parity, with the

The ASt attributes to South Tyrol primary and secondary legislative powers with

same number of hours given in German and Italian. Ladin itself is also taught, used as a

regard to the school system (articles 8, 9, and 19 of the ASt). According to Article 8 of the

back-up language and, in the lowest grade, used as a language of instruction. The right

ASt, South Tyrol enjoys exclusive legislative power on nursery schools, school welfare,

to Ladin-language schools is enshrined in Article 19.2 of the ASt. Interestingly, the Ladin

school buildings, and vocational training. Furthermore, the province is entitled to issue

population has always fought for the elaboration of a trilingual primary school system.

laws on primary and secondary education (and teacher training) in conformity with the

The debate continued to be heated with the ASt entering into force in 1972. The SVP de-

principles established by state legislation. Article 19 of the ASt provides for regulation

manded for full autonomy in the school system and was appealing for either a German or

on the language of instruction such as mother tongue instruction and second language

Italian school in the Ladin valleys (in conformity with the right of mother tongue instruc-

teaching. Teaching of the second language (German or Italian) is compulsory and de-

tion throughout all subjects during obligatory education). The dispute culminated in an

termined by provincial law. Article 19 of the ASt also provides for special measures in

appeal against Article 7 of enactment decree no.116/1973, which concerns the principle

schooling contents and the structure and administration of the provincial school system.

of teaching language parity and the use of Ladin as an assistant language. The Constitu-

They are in derogation of the principles established by state law but functional to the

tional Court dismissed the appeal (judgement no. 101/1976), and the Parity Model of Ladin

needs of South Tyrol. This results in three independent school authorities (the Italian,

schools became the official one in the Ladin municipalities.65 This means that in the Ladin

the German, and the Ladin) and in obligatory second language teaching. As to diplomas

valleys there is no possibility of choosing between a school having Italian or German as

obtained in German-language secondary schools, they are equivalent to those of schools

the language of instruction. The teaching model is plurilingual and this could be read

with Italian as the language of instruction. In order to guarantee this equivalence, the Na-

but mainly is not as a de facto discrimination against German- or Italian-speaking chil-

tional Higher Education Council must be consulted with regard to teaching programmes

dren with regard to mother-tongue instruction. Put differently, according to the Constitu-

and examinations. As to the administration of South Tyrols school system, since 1996

tional Court, the right to attend German- or Italian-language schools is precluded in the

the Provincial Government has appointed both the superintendent (in agreement with

Ladin municipalities under the terms of Article 19 of the ASt because of the trilingualism

the National Ministry of Education) and German and Ladin school inspectors (with prior

of the Ladin schools.66

60

61

62

consultation with the National Ministry of Education).63 In the rest of Italy, the regional

Today, this model arouses public interest as far as its multilingualism because of

level is responsible for implementing the overall national education and schooling offer-

both the high success rate of Ladin-speakers in the bi(tri)lingualism exam at the pro-

ings; some administrative tasks are fulfilled by offices at the provincial level.

vincial level and the challenges of creating a more integrated school system.67 In nurs-

The principle of free choice to enroll in either German-, Italian- or Ladin-language

Integration andExclusion

schools is a general rule of the ASt (Article 19.3), and parents have the right to enroll their

190

A particularity within the South Tyrolean education system is the Ladin school sys-

op. cit.
60 Article 30, 33 and 34 of the Italian Constitution refer to the general principles applicable to education, State schools and
the right to free education within the cycle of compulsory education.
61 As provided for in article 6.1 dPR no. 89/1983 (bylaw to the ASt).
62 Article 8 ASt; article 3 of the dPR 89/1983 (bylaw to the ASt).
63 Legislative decree no. 434/1996.

ery school, children are already confronted with three languages. Moreover, English is
64 dPR no. 301/1988 (5).
65 J. Runggaldier, Die parittische Schule der Ladiner in Sdtirol in: G. Pallaver (ed.), Politika10, Jahrbuch fr Politik,
Sdtiroler Gesellschaft fr Politikwissenschaft, Bozen, Edition Raetia, 2010, 477-493 (483-485).
66 G. Rautz, A Minority within a Minority: the Special Status of the Ladin Valleys in: J. Woelk, F. Palermo and J. Marko
(eds.), Tolerance through Law Self Governance and Group Rights in South Tyrol, Leiden Boston: Martinus Nijhoff Publishers, 2008, 279-290 (290).
67 For a good overview see A. Abel, C. Vettori and D. Foris, Learning the neighbours language: the many challenges in
achieving a real multilingual society. The case of second language acquisition in the minority-majority context of South
Tyrol, in: European Yearbook for Minority Issues 9, 2010, Leiden-Boston: Martinus Nijhoff, 271-303.

Elisabeth Alber, Marc Rggl. Language Rights in Italy: TheCase of South Tyrol

191

introduced as a foreign language in elementary school. As to enrollment, the same prin-

Adjustments in the power-sharing system, including the areas discussed in this

ciple as in German- and Italian-language schools is enforced: free choice of the parents.

essay, are now discussed against the backdrop of constitutional re-centralization reform

Teachers have to know all three languages to be employed in Ladin-language schools,

plans, the Europeanization process and the role of South Tyrol in the macro-regional

and nursery and primary school employment is preconditioned by the fact that teachers

Alpine Strategy, the changed political landscape69 and attempts to revise the Second Au-

declare themselves affiliated with the Ladin language group.

tonomy Statute by both technical commissions and citizen participation70, and increased
diversity by means of immigration.
Overall, South Tyrol is generally moving from an ethnic cleavage to a territorial

5. Conclusion
Different levels of regulations characterize the successful conflict settlement in South

one. Accordingly, the new territorial cleavage71, institutionally based on the exclusion of
foreigners, is gradually pushing back the ethnic cleavage. The coming years will show to
what extent this assumption remains valid.

Tyrol: first, the institutionalization of the conflict via a strong collective nature; second,
continuous negotiations about the scope of application of South Tyrols autonomous
powers based on bilateralism and parity between the parts; third, the international anchoring of the South Tyrolean question and the supporting role of external partners/relations (Austria as a kin-state); and fourth, a sophisticated power-sharing system within
South Tyrol based on separation and forced cooperation.
From the perspective of the field of language rights, South Tyrols regime has displayed exemplary character, as the linguistic rights successfully combine linguistic rights
(and duties) of first and second types. Whereas linguistic rights of the first type are the
category of rights when a persons first or main language prompts no discrimination,
linguistic rights of the second type are those connected to and developed for national/
linguistic or historical minorities.68 Moreover, apart from successfully combining these
two categories of rights, in South Tyrol rights connected to both categories are seamlessly intermingled, embedded in Italys asymmetric regionalist structure that provides
for a complex and differentiated treatment of recognized identities throughout the whole
territory.
The question today is not whether South Tyrol is plurilingual but how its plurilinguality will be governed in future. As to linguistic rights, the case of South Tyrol shows
how delicate and important socio-legal frameworks and policies are for both the protection of minority identities and the development of a society embedded in a European
border context. On the one hand, even though each language group remains attached
Integration andExclusion

to its own history and traditions, calls for a more integrated view on how the territorys

192

governance should evolve are increasing; on the other hand, such calls are criticized by
parts of the society and by German-speaking political parties in the opposition (whose

69 Also the political party panorama is primarily organized along ethnic lines. In the 2013 provincial elections, the SVP
for the first time lost absolute majority and the Italian coalition partner was brought into provincial government not
only due to the ethnic proportional representation principle. See S. Constantin and E. Alber, Autonomy and Minority
Representation in South Tyrol, in: L. Komaromi and Z. Pallinger (eds.), Good Governance: Reforming Representation,
Budapest: Pazmany Press (forthcoming).

support has increased over the last years).

70 Provincial law no. 3/2015 foresees a so-called Autonomy Convention to revise the ASt. Citizens next to politicians,
experts and stakeholders shall discuss upon the development of South Tyrol in a process of regular meetings lasting
more than a year.

68 G. Poggeschi, Language Rights and Duties in the Evolution of Public Law, Nomos, Baden-Baden, 2013, 25ff.

71 The success of the autonomy benefits all language groups in the province. See G. Pallaver, Sdtirol: Vom ethnischen
zum territorialen cleavage, in POLITIKA10, Jahrbuch fr Politik, Sdtiroler Gesellschaft fr Politikwissenschaft, Bolzano/
Bozen: Edition Raetia, 2010, 377-405.

Elisabeth Alber, Marc Rggl. Language Rights in Italy: TheCase of South Tyrol

193

Language Rights in Transition:


The Case of Kosovo
Milena Ingelevi-Citak

1. Introduction
Native language is a very important part of identity, which is why respect for each others
language and culture plays a major role in building good relations between people of
different nationalities, especially between the state majority and minorities. At the same
time, proper functioning of a multi-ethnic and multilingual state is an extremely complicated issue because of the multiplicity of factors that impact it. Good inter-ethnic relations and the actual level of enjoyment of minority rights are determined by the adoption
of a legislative framework, political willingness of the state authorities to enforce it, establishment of an effective monitoring system, and peoples awareness of minority rights
and of the need to respect them.
The minority rights protection level in Kosovo is a complex issue worth deeper
analysis. Decades of tensions between ethnic communities and the escalation of a conflict in 1998 and 1999 make minority rights protection in Kosovo very problematic but
crucial for building proper inter-ethnic relations. Clive Baldwin1, a legal advisor for Human
Rights Watch, stated in his report for Minority Rights Group International: Nowhere in
Europe is there such segregation as Kosovo. Nowhere is there such a level of fear for so
many minorities that they will be harassed simply for who they are.2
1 Clive Baldwin is a legal advisor for Human Rights Watch, in 2000-2002 was a member of the OSCE Mission in Kosovo and
served as Head of Advocacy for Minority Rights Group International. Information available at: https://www.hrw.org/
about/people/clive-baldwin (accessed 14.11.2015).
2 Baldwin, Clive, Minority Rights in Kosovo under International Rule, (Minority Rights Group International, London, 2006), 3.

Milena Ingelevi-Citak. Language Rights in Transition: The Case of Kosovo

195

In fact, the legal framework of Kosovo provides a high degree of language rights

decades. According to estimations in 2006 and 2011, the Albanian population grew to

protection and guarantees the use of minority languages in public, in relations with gov-

92.9% of total inhabitants in 2006 (91% in 2011), while the Serbian population significantly

ernment authorities, and in education. However, the key question remains whether this

decreased from 18% in early 1970s to 5.3% in 2006 and only 3.4% in 2011. The Turkish com-

legislation is effective and fully implemented, and whether there is a monitoring system

munity decreased by more than half in last decades, from 1% in the 1970s to 0.4% of the

that can ensure full enjoyment of minority rights.

total population in 2006.5

This chapter provides an analysis of minority language rights protection in Kosovo

The population of Kosovo is multilingual: Albanians as well as Egyptian and Ash-

from 1974 until today. It includes a short overview of the historical development of Koso-

kali communities speak Albanian; the Serbian, Croatian, and Bosniak communities speak

vos legal framework on minority language rights and evaluates briefly its implementation

closely related Slavic languages; Turks speak Turkish; and Roma the Romani language.6

in practice, focusing on three key periods: the legal situation under the SFRY 1974 Consti-

According to the 2011 census, 94.5% of citizens speak Albanian as their native language,

tution, the changes brought by the 1990 Constitution of the Republic of Serbia, and the

while the Serbian language is the second most spoken in Kosovo.7

minority language rights protection established under the auspices of the United Nations
Mission in Kosovo (UNMIK). While presenting the current situation, the chapter will pay
particular attention to provisions of the 2008 Kosovo Constitution and the 2006 Law on
the Use of Languages, including their application in practice. Finally, the chapter will conclude with the difficulties and challenges that Kosovo authorities face and the measures
they have to take to ensure the effectiveness of minority language rights protection.

3. Language Rights in Kosovo:


Historical Overview
The problems with minority rights promotion and protection that Kosovo authorities are
dealing with derive from the turbulent history of the region and complicated post-con-

2. Ethnic Structure of Kosovos Population


Bearing in mind that the ethnic structure and demographic changes of states are closely
related to many political processes and events in modern history, the Kosovo case analysis has to be preceded with a short presentation of its demographic situation, as it has
significantly changed over the last decades.
Kosovo, like many European countries, is multi-ethnic and multilingual. Albanians
form the majority of its population. According to the 1971 census3, Albanians made up
73.7%, Serbs 18.4%, Roma 1.2%, Turks 1%, and others 5.8% of Kosovos total population.4
Kosovo Serbs, complaining of discrimination, marginalization in social and political life,
and ethnic attacks from the Albanian community, had been migrating from Kosovo since
the 1960s, and their number was constantly decreasing. As a consequence of the emigra-

flict inter-ethnic relations. Therefore, a brief look at the development of minority rights
protection in Kosovo since the 1960s will be helpful in explaining the current legal and
actual situation.

3.1. Minority Language Rights


Under the 1974 SFRY Constitution
Between 1968 and 1974, in the period of Yugoslavias decentralization, the autonomy of
Kosovo was significantly expanded. National minorities enjoyed a high degree of rights
protection guaranteed by a legislative and institutional framework.8 In the 1960s, the first
faculties of higher education, affiliated with the University of Belgrade, were opened in
Pristina; however, teaching and studying were carried out solely in the Serbian language.

tion of Serbs, the high birth rate of the Albanian population, and other social and politIntegration andExclusion

ical factors, the ethnic structure of Kosovo faced remarkable changes over the ensuing

196

3 It is worth mentioning that official results of censuses in Kosovo in the years from 1971 to 2011 are sometimes deemed
unreliable. The 1991 census was boycotted by many Albanians, and the 2011 census is considered inaccurate due to a
partial boycott in the northern regions of Kosovo.
4 Statistical Office of Kosovo, Demographic Changes Of The Kosovo Population 1948-2006, (Statistical Office of Kosovo,
Pristina, 2006), 7. Available at: https://ask.rks-gov.net/ENG/pop/publications/doc_details/521-demographic-changes-of-the-kosovo-population-1948-2006 (accessed 14.11.2015).

5 According to data presented by Kosovo Agency for Statistics. The official website: https://ask.rks-gov.net/ENG/ (accessed 14.11.2015).
6 Najvirtova, Andrea and Burema, Lars, Assessing Minority Language Rights in Kosovo, in Horvth, Istvn, Szkely, Ibolya, Szkely, Tnde and Tonk, Mrton (eds.), Minority Representation and Minority Language Rights, (Sapientia, Romanian Institute for Research on National Minorities, Cluj-Napoca, 2014), 82.
7 According to data presented by Kosovo Agency for Statistics. The official website: https://ask.rks-gov.net/ENG/ (accessed 14.11.2015).
8 Najvirtova, Andrea and Burema, Lars, Assessing Minority Language Rights in Kosovo, in Horvth, Istvn, Szkely, Ibolya, Szkely, Tnde and Tonk, Mrton (eds.), Minority Representation and Minority Language Rights, cit., 82-83.

Milena Ingelevi-Citak. Language Rights in Transition: The Case of Kosovo

197

In 1969, all faculties, established earlier as external units of the university, became the

ethnic attacks. After Slobodan Miloevi came to power in 1989, the privileged status of

constituent parts of the newly founded University of Pristina . Since then, education at

Kosovo was gradually revoked, and minority language rights were abolished.15

the tertiary level has been performed in the Albanian and Serbo-Croatian languages.

Under the Miloevi regime, Kosovo Albanians and other minorities of Serbia suf-

The establishment of the University of Pristina gave the Kosovo Albanians access

fered far-reaching restrictions on the public use of their native languages. In March 1990,

to higher education in their own language. The university signed cooperation agreements

in order to improve the situation of Kosovo Serbs, the Programme for the Realization of

on teaching staff and textbooks with University of Tirana, and in a short period of time

Peace and Prosperity in Kosovo, which introduced family planning to Kosovo Albanians

started to play a significant role in the SFRY educational system.

and relocated investments to areas inhabited mainly by Serbs, was adopted. Further re-

10

Under the 1974 SFRY Constitution , imposed by Marshal Tito, Kosovo obtained the

strictions hit media and education. Serbian authorities restricted newspapers publishing

status of a federal unit, and its position in the federal system was equivalent to a re-

in the Albanian language and closed the Kosovo Academy of Arts and Science. In July

publics. The new constitution provided equal rights for all nations and nationalities.

13

1990, the Serbian Assembly promulgated a law that disbanded the Kosovo Assembly and

Moreover, it ensured the equal use of Albanian and Serbian as official languages and a

Executive Council.16 Later that year, Albanian students were expelled from the University

special status for the Turkish language at the municipal level. All minorities were granted

of Pristina, and Albanian professors were dismissed. In order to preserve their national

the right to use their language in public, including the use of language in relations with

identity and culture, Kosovo Albanians were forced to create a shadow government and

governmental institutions and the right to pursue education in the Serbian, Albanian, and

parallel education system.17

11

12

Turkish languages.14

In September 1990, a new constitution18 was enacted, and its provisions provided

Under the rule of the 1974 SFRY Constitution, the most advanced achievements in

further restrictions. The principle of equality of nations and nationalities was replaced

minority language rights promotion and protection were reached. Minority rights were

with a statement that Serbia is a democratic State of Serbian people19. Therefore,

not only guaranteed by legislation, they were implemented and applied by public insti-

Kosovo Albanians were no longer considered a nationality and were perceived as a na-

tutions.

tional minority of Serbia.

However, that level of minority rights protection resulted in a situation when the
Serbian community in Kosovo felt discriminated by the Kosovo Albanian authorities.

The 1990 Constitution of Serbia abolished the equality of two official languages and
provided a primate of Serbian language. Moreover, the Serbian Assembly adopted a new
Law on the Official Use of Language 45/1991, which abolished the minority right to educa-

3.2. Changes Under the 1990 Constitution of Serbia

tion in their native language at the tertiary level.20

The situation changed significantly after Marshal Titos death. The ethnic tensions be-

on 1 September 1996, when the St. Egidio Education Agreement21, negotiated between

tween Albanians and non-Albanians greatly increased, including violent mass riots and

9 Currently, the name University of Pristina is used by two separate units: the Serbian University of Pristina, located
in Kosovska Mitrovica, and the Albanian University in Pristina. The official website of the University in Kosovska Mitrovica: http://www.pr.ac.rs/university/about-university/17-about-university/61-istorijat (accessed 14.11.2015). The official
website of Albanian University in Pristina: http://www.uni-pr.edu/Universiteti/Historiku.aspx (accessed 14.11.2015).
10 See Kola, Paulin, The Search for Greater Albania, (Hurst&Company, London, 2003), 134.

Integration andExclusion

11 See The Constitution of the Socialist Federal Republic of Yugoslavia, Extracts, 1974, in Krieger, Heike (ed.), The Kosovo
Conflict and International Law: An Analytical Documentation 1974-1999, (Cambridge University Press, Cambridge, 2001), 2-5.

198

An important step towards the protection of minority language rights was made
Miloevi and Kosovo Albanian leader IbrahimRugova, was signed.22 The agreement announced the restoration of the education system in Kosovo as well as the return of the
15 For more information on the situation in Kosovo under Miloevi rule see Perrit, Henry, The Road to Independence for
Kosovo: A Chronicle for Ahtisaari Plan, (Cambridge University Press, Cambridge, 2010), 22 et seq.
16 See Malcolm, Noel, Kosovo: A Short History, (New York University Press, New York, 1998), 346-349.
17 Baldwin, Clive, Minority Rights in Kosovo under International Rule, cit., 7.
18 See The Constitution of the Socialist Republic of Serbia, 28 September 1990, in Krieger, Heike (ed.), The Kosovo Conflict
and International Law: An Analytical Documentation 1974-1999, cit., 9.
19 The Preamble of the 1990 Constitution of the Socialist Republic of Serbia.

12 For more information about the legal status of Kosovo under the 1974 SFRY Constitution see Pichl, Elmar, Kosovo in den
jugoslawischen Verfassungssystemen: 1974 bis 1998, in Marko, Joseph (ed.), Gordischer Knoten Kosovo/a: Durchschlagen
oder entwirren? Vlkerrechtliche, rechtsvergleichende und politikwissenschaftliche Analysen und Perspektiven zum jngsten Balkankonflikt, (Nomos, Baden-Baden, 1999),

20 Najvirtova, Andrea and Burema, Lars, Assessing Minority Language Rights in Kosovo, in Horvth, Istvn, Szkely, Ibolya, Szkely, Tnde and Tonk, Mrton (eds.), Minority Representation and Minority Language Rights, cit., 83.

13 Art. 245 of the 1974 Constitution of the Socialist Federal Republic of Yugoslavia.

22 The agreement was negotiated and signed through international mediation provided by Italian Catholic St. Egidio
community. For more information about the community visit their website: http://www.santegidio.org/ (accessed
14.11.2015).

14 See Najvirtova, Andrea and Burema, Lars, Assessing Minority Language Rights in Kosovo, in Horvth, Istvn, Szkely,
Ibolya, Szkely, Tnde and Tonk, Mrton (eds.), Minority Representation and Minority Language Rights, cit., 82-83.

21 See St. Egidio Education Agreement, in Krieger, Heike (ed.), The Kosovo Conflict and International Law: An Analytical
Documentation 1974-1999, cit., 11-12.

Milena Ingelevi-Citak. Language Rights in Transition: The Case of Kosovo

199

Albanian language to schools of all levels. To supervise the agreements implementation

deeply divided, with many displaced people, minorities concentrated in mono-ethnic

and to monitor the process of education system restoration, authorities established a

enclaves, and no vision of integration in the nearest future.

commission consisting of three representatives of each party. Serbian authorities, however, failed to implement the agreement; therefore, its provisions were not applied, resulting in the increasing discontent of Kosovo Albanians.23

3.3. Language Rights in Kosovo Under International Rule


The culmination of the Serbian-Albanian conflict occurred in 1999, after NATOs armed
intervention and the bombing of Yugoslavia. As a consequence, Yugoslavia was forced to
withdraw troops from Kosovo, which was transformed into an international protectorate.24
The UN Mission in Kosovo (UNMIK) was one of the longest and most expensive
international administrations since the United Nations beginning. UNMIK took over the
administration of Kosovo in 1999 and continued it until 2008. Among other issues, it recognized minority rights protection and the promotion of minority languages as some of
its major tasks.
It is worth noting that all regulations of UNMIK acknowledged the equality of both
official languages: Serbian and Albanian. One of the first legal acts adopted under the
international administration was the Constitutional Framework of 2001, which included
regulations on minority rights, among them the use of language. However, its provisions
referred to minority rights so broadly that they were considered ineffective.25 With no
explicit, binding legal provisions concerning the obligation of public institutions to use
both languages equally, the situation in Kosovo continued until the Law on the Use of
Languages was promulgated in 2006. This legal act has been regulating language rights
since then, and, as it is still binding, will be further discussed below.26
Despite serious financial and institutional efforts made by peacekeeping missions,
the actual implementation of minority rights in Kosovo under the UNMIK administration
had failed. It was incapable of ensuring minority rights protection and integration of
ethnic communities. The authorities of Kosovo have not been able to provide protection
of basic minority rights and ensure their participation in public life. Kosovo remained

Integration andExclusion

23 Morozzo della Rocca, Roberto, Community of St. Egidio in Kosovo, (Comunita di SANT EGIDIO, 1998). Available at: http://
www.santegidio.org/news/rassegna/00000/19980530_peaceworks1_EN.htm (accessed 14.11.2015).

200

4. Kosovo Legal and Institutional Framework


on Minority Language Rights
4.1. Legislation of Kosovo on Language Rights
On 17 February 2008, as international negotiations on Kosovos future status extended
without any prospective achievement of an agreement, the Assembly of Kosovo enacted
the declaration of independence27, which evoked protests among Serbia and Kosovos
Serb population. Although Kosovo declared independence more than seven years ago,
the international community is still divided on this matter. However, the current number
of states who recognize Kosovo is 11128, which makes up more than half of UN members.
After the declaration of independence, the main burden of administration in Kosovo
was placed on the European Union. The European Union Rule and Law Mission in Kosovo
(EULEX Kosovo) has taken power from the UN Mission and works towards accompanying
and supporting the government of Kosovo in the process of democratization of the government, the judicial system, and the law enforcement institutions.29
Basic provisions concerning language rights are set in the Constitution of Kosovo,
adopted on 9 April 2008.30 The Constitution was prepared based on the example of the
U.S. Constitution. Due to its provisions, the sovereign of a state is not the nation but
people. The state is defined as a multi-ethnic community, where ethnic minorities are
guaranteed broad rights and representation in public institutions.
Article 5 of the Constitution of Kosovo states that the official languages are Albanian and Serbian, while the Turkish, Bosnian, and Roma languages can be granted such
status at the municipal level. In theory, this means that any public institution can be
addressed in either of two official languages, that citizens can freely choose which to be
educated in, and that there has to be broadcasting in both languages.
In Article 58.2, the Constitution obliges Kosovo authorities to respect the standards
set forth in the Council of Europe Framework Convention for the Protection of National

24 The international military and civil presence in Kosovo was authorized under the UN Security Council Resolution 1244
(1999) adopted on 10 June 1999. Therefore, the United Nations Interim Administration Mission in Kosovo (UNMIK) was
established. The task of the UN mission was to administer the territory, while the Kosovo Force (KFOR) was responsible
for order and safety in Kosovo. See the UN Security Council Resolution S/RES/1244(1999), available at: http://www.
un.org/en/ga/search/view_doc.asp?symbol=S/RES/1244(1999) (accessed 14.11.2015).

27 See Kosovo Declaration of Independence of 17 February 2008. Available at: http://www.assembly-kosova.org/common/


docs/Dek_Pav_e.pdf (accessed 14.11.2015).

25 Baldwin, Clive, Minority Rights in Kosovo under International Rule, cit., 3.

29 For more information about EULEX Kosovo see: http://www.eulex-kosovo.eu/ (accessed 14.11.2015).

26 Najvirtova, Andrea and Burema, Lars, Assessing Minority Language Rights in Kosovo, in Horvth, Istvn, Szkely, Ibolya, Szkely, Tnde and Tonk, Mrton (eds.), Minority Representation and Minority Language Rights, cit., 83.

30 See Constitution of the Republic of Kosovo. Available at: http://www.assembly-kosova.org/?cid=2,100,48 (accessed


14.11.2015).

28 For a current list of states that recognized Kosovo see: http://www.kosovothanksyou.com (accessed 14.11.2015).

Milena Ingelevi-Citak. Language Rights in Transition: The Case of Kosovo

201

Minorities and the European Charter for Regional or Minority Languages. As a conse-

that municipality. If the minority constitutes only 3 to 5% of the municipality population,

quence, Article 81 states that laws on the use of language are considered legislation of

its language is granted the status of a language in official use. As an exception, the Turk-

vital interest, therefore any repeal, amendment, or adoption of new laws on this matter

ish language is granted the status of an official language in the Prizren Municipality.

will require a double majority of all deputies.

The provisions of the Law on the Use of Languages prohibit any discrimination on

Language rights are provided in Article 59 of the Constitution. Due to its provisions,

the grounds of language and ensure the right to communicate with public institutions in

minorities have the right to preserve their language as a part of their identity and heri-

any official language as well as the right to receive any services and public documents in

tage; to receive public education in one of the official languages at all levels to receive

this language. Moreover, the official names of public institutions have to be displayed in

pre-school, primary, and secondary education in their own language to the extent pre-

the official languages, and the official languages have to be used during their meetings

scribed by law; to use without any restrictions their native language in the public and

and work. If needed, the central institutions are obliged to ensure interpretation. Persons

private spheres; and to use their language in relations with public institutions in areas

whose native language is granted the status of an official language or official language

where they represent a sufficient share of inhabitants (the costs of translators in such

in use in the municipality have a right to present submissions and documents, as well

cases have to be borne by the competent authorities). Moreover, Article 59 guarantees

as receive a reply, in their native language. Due to Article 27 of the laws, minorities have

access to public broadcast media in minority languages and provides minorities the right

the right to use the original form of their name and surname in accordance with their

to create and use their own media as well as to have personal names registered in their

linguistic system in all official documents, personal identification, and public registers.

original form and in the script of their language as well as revert to original names that
have been changed by force.
Article 59 contains an interesting provision concerning topographical names. Namely,
it states that ethnic communities have the right to have local names, street names and

According to the Law on the Use of Languages, all laws adopted by the Assembly of
Kosovo have to be issued and published in the official languages, while all promulgated
laws have to be published also in the Bosnian, Turkish, and English32 languages. Court
proceedings have to be held in the official language chosen by the parties.

other topographical indications which reflect and are sensitive to the multi-ethnic and

One year after the adoption of the Law on the Use of Languages, the Language

multi-linguistic character of the area at issue. It is worth noting that this provision is

Commission was established. Its main task was to oversee the implementation of the

quite unclear, even misleading. It does not say that minorities have the right to street or

Law. However, it turned out to be an ineffective mechanism with a marginal role from

local names in their languages, as many people would understand it; rather, it mentions

mid-2010 to mid-2011, only four complaints were received. The main reason the Language

only the right to have names reflecting the multi-ethnic character of the area.

Commission has failed was its lack of proper financing, non-full-time staff, and the fact

As shown above, the Constitution of Kosovo regulates the use of language in a very

that it was little known to the general public.33

general way, while the Law on the Use of Languages31, adopted in 2006, specifies various

In 2012, Kosovo authorities conscious of the inefficiency of the language rights

aspects of language rights. The law regulates the use of language in legislative, executive,

monitoring system initiated a reform. On 4 April 2012, the government adopted a new

and judicial powers, as well as in the private and public spheres, media, education, and

regulation34, based on which the Office of the Language Commissioner within the Office

personal names. Its main tasks, as enumerated in Article 1, are: to ensure the equal status

of the Prime Minister was established. The office has a separate budget and full-time

of both official languages; to ensure the use of official languages in relations with Kosovo

staff. It is mandated to ensure the equality of the official languages and the protection

institutions; to ensure the right of all communities to preserve, maintain, and promote

and promotion of language rights, as well as to improve the implementation of the legal

their language; and to preserve the multilingual character of Kosovo society.

framework. In July 2012, the new Language Commissioner was appointed. Furthermore,

According to Article 2 of the law, all public institutions are obliged to ensure equal
Integration andExclusion

use of the Kosovo official languages, Albanian and Serbian. Moreover, the native language

202

of the minority that constitutes at least 5% of the municipality population and whose
mother tongue is not an official language is granted the status of an official language of

32 Due to the Article 34 of the Law on the Use of Languages, the English language will be used in publishing of the official
documents, work, and contacts of Kosovo institutions during the mandate of international peacekeeping missions. The
end of the EULEX Kosovo mission is foreseen in June 2016.

31 See The Law No. 02/L-37 on the Use of Languages. Available at: http://www.komisioneri-ks.org/repository/
docs/2006_02-L37_en-.pdf (accessed 14.11.2015).

34 See Regulation No. 07/2012 on the Office of the Language Commissioner. Available at: http://www.komisioneri-ks.org/
repository/docs/Uredba_Regulore_Regulation__07_2012.pdf (accessed 14.11.2015).

33 Najvirtova, Andrea and Burema, Lars, Assessing Minority Language Rights in Kosovo, in Horvth, Istvn, Szkely, Ibolya, Szkely, Tnde and Tonk, Mrton (eds.), Minority Representation and Minority Language Rights, cit., 95.

Milena Ingelevi-Citak. Language Rights in Transition: The Case of Kosovo

203

two supporting mechanisms were created: Language Policy Board and Language Policy

restrict minority languages spoken in public. However, post-conflict tensions between

Network.

Serbs and Albanians lead to hostility and even violence against persons speaking the

This reform led to a significant improvement of effectiveness of the institutional

wrong language in public, also including removal and/or destruction of bilingual signs.

framework on linguistic rights and the visibility of the Office achieved a progress. Ac-

As a consequence, minorities are afraid to use their languages outside areas where they

cording to the 2014 report of the Office of Language Commissioner, there has been a

make up the majority.39

considerable increase in the number of complaints received.35 In 2014 the Office received

Regarding the public use of language, it must be noted that Albanian and Serbian

54 complaints and most of them were resolved. Furthermore, the Office in cooperation

are given preference, while other languages are marginalized although, in reality, even

with the European Centre of Minority Issues and United Nations Development Program

the official languages are not equal, as Kosovos government often fails to display official

implemented a thematic project on monitoring and evaluation of language rights.

signs in both official languages.40

36

37

Both the Constitution of Kosovo and the Law on the Use of Languages provide

4.2. Language Rights in Practice

the right to use minority languages in relations with public institutions and to receive

According to the Kosovo legal framework presented above, minorities have broad rights

cial languages. Meanwhile, there are no Serbian native speakers providing translation

to use their mother tongue in the public and private spheres, and every citizen can get
an education in the official language of his choosing and has the right to communicate
in his native language with public institutions. However, the reality is quite different. The
key problems are: lack of full implementation of laws, and lack of awareness of citizens
and public institutions on linguistic rights and obligations.
The Constitution of Kosovo grants all citizens the right to receive an education in
one of the official languages at all levels. In practice, there are two parallel education
systems in Kosovo. One provides teaching in the Serbian language and is operated by the
Ministry of Education of the Republic of Serbia, while the second provides an opportunity
to learn in Albanian and is managed by the Kosovo Ministry of Education, Technology and
Science. Kosovo authorities attempted to integrate both systems by adopting certain
amendments to the Law on Right of Communities and Law on Education in Municipalities.
However, no school managed by Serbia cooperated with Kosovo institutions. This means
that, currently, there is no possibility of learning both official languages in one school.38
Moreover, the existence of two separate education systems restrains the possibilities of

the answer in this language, as well as oblige the publication of all laws in both offiand interpretation in public institutions, despite Serbian is one of Kosovos official languages. Many of language professionals have Albanian as their mother tongue. This leads
to lower quality in the provided translations, with spelling and grammar mistakes. During
the assessment of translation quality in the municipal and central level institutions, the
Serbian and Turkish translations were rated lower than the original Albanian versions.41
Moreover, certain concerns raises the increasing monolingualism among civil servants
working in public institutions. Another issue is lack of certification or training system for
translators.42 There is no university degree in translation studies in any of the official languages available in Kosovo. Many difficulties in hiring qualified professionals have been
reported, as well as lack of recruitment policy based on criteria of language proficiency,
working experience or academic background.43
As shown above, there is a huge discrepancy between legislation and reality as a
result of political unwillingness to provide minority rights protection and implement legal
framework on this issue, due both to the lack of financial or technical capacities and as
a consequence of continued ethnic tensions.

integration and carries negative implications for Serbian-Albanian relations.


Another important issue is the freedom to use a native language in the private and

Integration andExclusion

public spheres. There are no reports confirming that Kosovo authorities were trying to

204

35 Although, it is worth mentioning, that more than 50% of complaints were received from Albanians, while problems
concerning the linguistic rights protection applies mostly to Serbs, Turks and other minorities.
36 See Report of the Office of Language Commissioner, Annual Report 2014, (Office of Language Commissioner, Pristina,
2015). Available at: http://www.komisioneri-ks.org/repository/docs/ZKGJ_VERSIONI_ANGLISHT_2007.PDF (accessed
4.12.2015).

39 Baldwin, Clive, Minority Rights in Kosovo under International Rule, cit., 22.
40 Najvirtova, Andrea and Burema, Lars, Assessing Minority Language Rights in Kosovo, in Horvth, Istvn, Szkely, Ibolya, Szkely, Tnde and Tonk, Mrton (eds.), Minority Representation and Minority Language Rights, cit., 93-94.
41 See Report published by the Office of Language Commissioner/ Office of the Prime Minister of the Republic of Kosovo
in cooperation with the European Centre of Minority Issues Kosovo and the United Nations Development Program,
Monitoring and Evaluating of Language Rights in Kosovo, (Office of Language Commissioner/ Office of the Prime Minister of the Republic of Kosovo, March 2015). Available at: http://www.komisioneri-ks.org/repository/docs/Anglisht_Finale_160315.pdf (accessed 4.12.2015).

37 For more information about this project see: http://www.ecmikosovo.org/?p=4778 (accessed 4.12.2015).

42 See Report of the OSCE Mission in Kosovo, Municipal language compliance in Kosovo, (OSCE Mission in Kosovo, 2014).
Available at: http://www.osce.org/kosovo/120010 (accessed 14.11.2015).

38 Najvirtova, Andrea and Burema, Lars, Assessing Minority Language Rights in Kosovo, in Horvth, Istvn, Szkely, Ibolya, Szkely, Tnde and Tonk, Mrton (eds.), Minority Representation and Minority Language Rights, cit., 96-97.

43 See Report of the Office of Language Commissioner/Office of the Prime Minister of the Republic of Kosovo, Monitoring
and Evaluating of Language Rights in Kosovo, cit., 79-80.

Milena Ingelevi-Citak. Language Rights in Transition: The Case of Kosovo

205

5. Conclusion
The minority right to use a native language in everyday life deserves particular attention
in a multi-ethnic and multilingual state. Full implementation of minority language rights
is a prerequisite to effective participation in public life and equal access to all services.
There is a sophisticated legal and institutional framework for the protection of

international standards, and despite some progress in its implementation, there are still
many problems to overcome.
To conclude, recommendations for Kosovo in the words of Clive Baldwin: there
is a radical need for change in mindset and in practice Rights that exist on paper are
made meaningless, and any fragile sense of security minorities have is consistently undermined.44

minority language rights in Kosovo. Its provisions oblige all public institutions to ensure
the equal use of Kosovos official languages, provide education on all levels in both Albanian and Serbian (and also Bosnian and Turkish at the primary and secondary level),
and ensure the free use of national language in everyday life. Thus, we can conclude that
the legislation of Kosovo is modern and comprehensive and follows (and sometimes even
exceeds) the international standards of minority rights protection provided inter alia by
the Framework Convention for the Protection of National Minorities and the European
Charter for Regional or Minority Languages. However, legislation without implementation
is insufficient to protect minority rights and ensure an effective participation in social,
economic, and political life for every community inhabiting the state.
Despite the considerable changes in legislation in Kosovo, and the improvement
of minority rights protection in the legal field, there is still a drastic need for full implementation of the legislative framework and major changes in the mindset of both citizens
and authorities. The current legislation does not oblige learning both official languages
or provide a proper institutional framework, making communication between Albanians
and Serbs problematic. As a consequence, the effective enjoyment of language rights is
possible only inside minority-inhabited areas, leading to their isolation.
There is no easy solution for the problems presented in this chapter. However, we
must be aware that the rule of law, minority rights protection, and integration between
all communities of the state are extremely important for reconstruction of the post-conflict society. There will be no stability, peace, or development without proper integration.
Exclusion of minorities in mono-ethnic enclaves and distrust and fear between communities are destructive and can only bring further escalation of inter-ethnic tensions, or
even restart a conflict. Therefore, the integration policy, guarantees of real equality for
all, and the effective protection of minority rights are the keystone to building a stable,

Integration andExclusion

healthy, and prosperous multi-ethnic state.

206

Some of the problems discussed above could be solved by the implementation


and application of minority rights in a meaningful way. Kosovo authorities are obliged
to ensure minority rights not only by adopting ambitious legislation but also by implementing it. Although the Kosovo legal framework on minority rights goes far beyond the
44 Baldwin, Clive, Minority Rights in Kosovo under International Rule, cit., 3.

Milena Ingelevi-Citak. Language Rights in Transition: The Case of Kosovo

207

6. Bibliography
Annual Report of the Office of Language Commissioner, Annual Report 2014, (Office of Language
Commissioner, Pristina, 2015). Available at: http://
www.komisioneri-ks.org/repository/docs/ZKGJ_
VERSIONI_ANGLISHT_2007.PDF (accessed 4.12.2015).
Baldwin, Clive, Minority Rights in Kosovo under International Rule, (Minority Rights Group International, London, 2006), 3, 7, 22.
Constitution of the Republic of Kosovo, available
at: http://www.assembly-kosova.org/?cid=2,100,48
(accessed 14.11.2015).
Kola, Paulin, The Search for Greater Albania,
(Hurst&Company, London, 2003), 134.
Kosovo Declaration of Independence of 17 February 2008. Available at: http://www.assembly-kosova.org/common/docs/Dek_Pav_e.pdf
(accessed
14.11.2015).
Krieger, Heike (ed.), The Kosovo Conflict and International Law: An Analytical Documentation 19741999, (Cambridge University Press, Cambridge,
2001), 2-5, 9, 11-12.
Malcolm, Noel, Kosovo: A Short History, (New York
University Press, New York, 1998), 346-349.
Morozzo della Rocca, Roberto, Community of St.
Egidio in Kosovo, (Comunita di SANT EGIDIO, 1998).
Available at: http://www.santegidio.org/news/
rassegna/00000/19980530_peaceworks1_EN.htm
(accessed 14.11.2015).

Integration andExclusion

Najvirtova, Andrea and Burema, Lars, Assessing


Minority Language Rights in Kosovo, in Horvth,
Istvn, Szkely, Ibolya, Szkely, Tnde and Tonk,
Mrton (eds.), Minority Representation and Minority Language Rights, (Sapientia, Romanian Institute
for Research on National Minorities, Cluj-Napoca,
2014), 82-83, 93-97.

208

Perrit, Henry, The Road to Independence for Kosovo: A Chronicle for Ahtisaari Plan, (Cambridge University Press, Cambrigde, 2010), 22 et seq.
Pichl, Elmar, Kosovo in den jugoslawischen Verfassungssystemen: 1974 bis 1998, in Marko, Joseph
(ed.), Gordischer Knoten Kosovo/a: Durchschlagen

oder entwirren? Vlkerrechtliche, rechtsvergleichende und politikwissenschaftliche Analysen


und Perspektiven zum jngsten Balkankonflikt,
(Nomos, Baden-Baden, 1999), 75 et seq.
Regulation No. 07/2012 on the Office of the Language Commissioner. Available at: http://www.
ko m i s i o n e r i - k s.o rg / re p o s i t o r y / d o c s / U re d ba_Regulore_Regulation__07_2012.pdf (accessed
14.11.2015).
Report of the OSCE Mission in Kosovo, Municipal
language compliance in Kosovo, (OSCE Mission in
Kosovo, 2014). Available at: http://www.osce.org/
kosovo/120010 (accessed 14.11.2015).
Report published by the Office of Language Commissioner/ Office of the Prime Minister of the Republic of Kosovo in cooperation with the European
Centre of Minority Issues Kosovo and the United
Nations Development Program, Monitoring and
Evaluating of Language Rights in Kosovo, (Office
of Language Commissioner/ Office of the Prime
Minister of the Republic of Kosovo, March 2015).
Available at: http://www.komisioneri-ks.org/repository/docs/Anglisht_Finale_160315.pdf
(accessed 4.12.2015).
Statistical Office of Kosovo, Demographic Changes
Of The Kosovo Population 1948-2006, (Statistical Office of Kosovo, Pristina, 2006), 7. Available: https://
ask.rks-gov.net/ENG/pop/publications/doc_details/521-demographic-changes-of-the-kosovo-population-1948-2006 (accessed 14.11.2015).
The Law No. 02/L-37 on the Use of Languages. Available at: http://www.komisioneri-ks.org/repository/docs/2006_02-L37_en-.pdf (accessed 14.11.2015).

Published by Artprint
cell +370 684 76445
e-mail info@artprint.lt
Printed in Lithuania