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Int J Semiot Law (2011) 24:79–95

DOI 10.1007/s11196-010-9177-6

Linguistic Justice in International Law: An Evaluation


of the Discursive Framework

Jacqueline Mowbray

Published online: 19 June 2010


 Springer Science+Business Media B.V. 2010

Abstract Claims by minority groups to use their own languages in different social
contexts are often presented as claims for ‘‘linguistic justice’’, that is, justice as
between speakers of different languages. This article considers how the language of
international law can be used to advance such claims, by exploring how interna-
tional law, as a discourse, approaches questions of language policy. This analysis
reveals that international legal texts structure their engagement with ‘‘linguistic
justice’’ around two key concepts: equality and culture. Through a close examina-
tion of the way in which these concepts function within international legal dis-
course, the article suggests that this conceptual framework may sometimes
constrain, as well as enlarge, the possibilities for justice for minority language
speakers. Thus while international law may provide a language for challenging
injustices in the linguistic sphere, limitations inherent in this discourse may also
restrict its emancipatory potential.

Keywords Linguistic justice  International law  Legal discourse 


Equality  Culture  Power

1 Introduction

In the late 1980s, a series of cases were brought before the UN Human Rights
Committee by French citizens of Breton origin [4, 6, 17, 19, 23, 35, 38]. The cases
arose from the practice of certain ‘‘militant Bretons’’ [19, para 2.1], who defaced
French road signs in order to protest against the exclusive use of the French
language, and the corresponding absence of the Breton language, on public signs in
Brittany. When various members of the Breton community were charged, as a result

J. Mowbray (&)
Faculty of Law, University of Sydney, Sydney, Australia
e-mail: jacqueline.mowbray@sydney.edu.au

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of these actions, with damaging public property, they asked to present their defence
before the French courts in Breton. The courts refused their requests, on the basis
that the accused were able to speak French. The accused then complained to the
Human Rights Committee, claiming that the courts’ refusal to hear them in Breton
constituted a violation of various rights, including rights to a fair trial, non-
discrimination and freedom of expression.
Cases such as these demonstrate that international law may be relevant to
questions of language policy, that is, to the decisions of states concerning which
languages are used in particular social contexts. Rights enshrined in international
human rights instruments protect language use, and claims based on these rights are
brought before international bodies, such as the Human Rights Committee. In this
way, international law provides a language in which to advance claims for
‘‘linguistic justice’’,1 that is, justice as between speakers of different languages.
In this article, I analyse how the language of international law can be used to
advance such claims, to determine whether international law does indeed contribute
to greater justice in this field. I do so by exploring how international law, as a
discourse, approaches questions of language policy. In particular, I ask how
international legal discourse frames, or conceptualises, issues of language use. And I
ask how this discursive framework affects international law’s engagement with
questions of language policy.
In the first part of this article, I consider the international legal instruments,
jurisprudence and literature on the question of language rights, with a view to
identifying how this general body of material approaches language issues. I conclude
that international legal discourse on language centres around two key concepts:
equality and culture. In general terms, ‘‘language rights’’ are to be protected in order to
ensure equality between speakers of different languages, and in order to protect
languages as an aspect of culture. In the next two sections of the article, I examine
each of these concepts in turn, and consider how focusing on these concepts affects
international law’s treatment of language issues. I note how the meaning of both
‘‘equality’’ and ‘‘culture’’ can be seen as indeterminate and contested, and I consider
how these and other limitations inherent in these concepts may render their
application to problems of contemporary language use difficult. As a result, I
conclude, the discursive framework orients the relationship between international law
and language policy in particular ways, which may sometimes constrain, rather than
enlarge, the possibilities for linguistic justice. Ultimately, therefore, while interna-
tional law provides a language for challenging injustices in the linguistic sphere,
limitations inherent in this discourse may also restrict its emancipatory potential.

2 International Law on Language Use

At the outset I should note that the focus of this article is not on determining the
content of international rights and duties with respect to language. Rather, my aim is

1
‘‘Linguistic justice’’ is a term which is increasingly used in the literature on language policy, to indicate
that language policy raises questions of justice: [10, 39].

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to inquire into the conceptual and discursive framework within which international
law approaches questions of linguistic justice. As a result, in what follows, I do not
conduct a detailed analysis of the relevant international instruments and jurispru-
dence. Rather, I seek to give an overview of the relevant legal provisions, with a
view to uncovering the framework of ideas which underpins international law’s
engagement with questions of language. Since a range of different fields of
international law are relevant to language issues, I first consider each of these areas
of law in turn, and then consider the common concepts which inform international
law’s approach to language policy across these fields.

2.1 Minority Protection

At the international level, language rights were first protected in the inter-war
minorities treaties, which provided protection for racial, religious or linguistic
minorities.2 Article 27 of the International Covenant on Civil and Political Rights
(ICCPR) is the modern successor of the minority treaty system. It provides:
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
other members of their group, to enjoy their own culture, to profess and
practice their own religion, or to use their own language.
A number of other international instruments specifically protect minority rights,
including the rights of minorities to use their own languages. These include the UN
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities;3 the UN Declaration on the Rights of Indigenous Peoples;4
the International Labour Organization (ILO) Indigenous and Tribal Peoples
Convention 1989;5 the Council of Europe’s Framework Convention for the
Protection of National Minorities (‘‘European Framework Convention’’);6 the 1990
Copenhagen Document, produced by the Organization for Security and Cooperation
in Europe (OSCE)7 and the subsequent 1998 Oslo Recommendations on Linguistic
Rights of National Minorities.8 In addition, the European Charter for Regional or
Minority Languages (‘‘European Charter’’), which entered into force in 1998,
specifically protects minority languages within Europe, by requiring states to
implement a minimum number of measures to promote these languages.

2
In the Minority Schools in Albania opinion [22], for example, the Permanent Court of International
Justice held that the treaties required that the Greek minority in Albania be allowed to maintain their own
schools, to instruct their children in Greek language and culture.
3
See, in particular, art 2(1).
4
See, in particular, art 13.
5
See, in particular, art 28.
6
See, in particular, art 10.
7
See, in particular, art 32.
8
The Oslo Recommendations were developed under the auspices of the OSCE High Commissioner for
National Minorities, to encourage states to adopt best practice measures in relation to minority rights
issues. They are not formally binding, but are persuasive as a statement of best practice.

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2.2 Non-Discrimination

Numerous provisions in international law prohibit discrimination on the basis of


certain characteristics, one of which is language. Article 26 of the ICCPR, for
example, provides that ‘‘all persons are equal before the law and entitled without
any discrimination to the equal protection of the law’’. It prohibits discrimination
‘‘on any ground such as … language’’. Other relevant provisions include article 7 of
the Universal Declaration of Human Rights (UDHR), article 14 and Protocol 12 of
the European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR), article 24 of the American Convention on Human Rights, and
article 3 of the African Charter on Human and Peoples’ Rights. The International
Convention on the Elimination of All Forms of Racial Discrimination may also be
relevant in addressing linguistic discrimination, to the extent that this may be seen
as aspect of racial discrimination.
Non-discrimination provisions are frequently invoked in language claims brought
before international courts and tribunals. In Diergaardt v Namibia [12], for
example, it was held that a state instruction to civil servants not to communicate
with the applicants in their mother tongue, Afrikaans, even if the civil servant in
question could speak Afrikaans, was discriminatory and contrary to article 26 of the
ICCPR. Similarly, the European Court of Human Rights found that the Czech
Republic violated the non-discrimination provisions of the ECHR, when it placed a
large number of Roma children into ‘‘special schools’’ on the basis of tests in the
Czech language, which many of the children did not speak [11].

2.3 Freedom of Expression

Freedom of expression is protected under various provisions of human rights law,


including article 19 of the ICCPR.9 If this right to freedom of expression extends to
cover not only the content of the expression, but also the language in which it is
expressed, then it could be said that international law requires that individuals be
free to express themselves in their own language. This was indeed the conclusion of
the Human Rights Committee in the cases of Ballantyne v Canada [3] and Singer v
Canada [36]. These cases concerned laws in Quebec which required all outdoor
commercial advertising to be in French only. The applicants belonged to the
English-speaking minority within Quebec, and wanted to advertise their businesses
to their clientele, who were primarily English-speaking, using English. They argued
that the language laws, which prevented them from doing so, violated their right to
freedom of expression under article 19. The Committee agreed, adopting a wide
definition of freedom of expression, which has subsequently been endorsed by other
statements of relevant international bodies.10

9
See also article 19 of the UDHR, article 10 of the ECHR, article 13 of the American Convention on
Human Rights and article 9 of the African Charter on Human and Peoples’ Rights.
10
For example, the Human Rights Committee has criticised the Dominican Republic for restricting
freedom of expression by prohibiting broadcasting in languages other than Spanish: [34, para 462].

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Linguistic Justice in International Law 83

2.4 Cultural Diversity and Access to Culture

A range of international instruments seek to protect the use of different languages in


order to preserve linguistic and cultural diversity. The UNESCO Convention on the
Protection and Promotion of the Diversity of Cultural Expressions (‘‘Cultural
Diversity Convention’’) requires states to protect linguistic diversity as ‘‘a
fundamental element of cultural diversity’’ [Preamble]. The Universal Declaration
on Cultural Diversity, adopted by the General Conference of UNESCO in
November 2001, provides that ‘‘all persons have … the right to express themselves
and to create and disseminate their work in the language of their choice’’ [art 5].
And the European Charter, noted above, requires states to take concrete steps to
protect ‘‘the historical regional or minority languages of Europe’’ in order to
contribute to the ‘‘maintenance and development of Europe’s cultural wealth and
traditions’’ [Preamble]. In addition, a range of international bodies have adopted
measures for the protection of endangered languages.11
While these international instruments emphasise the protection of cultural
diversity, other provisions of international law emphasise the need to ensure access
to culture. Article 15 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR) recognises ‘‘the right of everyone to take part in cultural
life’’, and requires states parties to take steps ‘‘necessary for the conservation, the
development and the diffusion of … culture’’. The importance of culture, and rights
of access to culture, is also emphasised in article 27 of the UDHR, and in
instruments issued by other international organisations, such as UNESCO.12 These
provisions have implications for language use, because language can be seen as a
potential barrier to accessing culture, a barrier which states should seek to overcome
by ensuring that culture is available in the languages of all citizens. So, for example,
in its 1995 report on Mauritius, the Committee on Economic, Social and Cultural
Rights was critical of a short-story writing competition, which formed part of a
series of measures organised to promote cultural activity, but which did not allow
short stories to be submitted in Creole [28, para 41; 29, para 182]. Similarly, the
Committee has inquired into the percentage of cultural programmes available in the
Guarani language in Paraguay [30, paras 31–37, 43], and the role of the Russian
language in ‘‘culture, on television and in the cinema’’ in Belarus [31, para 63].

2.5 Other Rights

Various other rights recognised in international instruments may have implications


for language use, and can be used to make language claims in particular contexts.
For example, the right to a fair trial, and related rights to understand criminal
charges, require that an accused person be provided with an interpreter if he or she

11
See, eg, the UNESCO Endangered Languages Programme and the European Bureau for Lesser Used
Languages.
12
See, eg, the 1976 UNESCO Recommendation on Participation by the People at Large in Cultural Life
and Their Contribution to It.

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does not understand the language spoken by courts and police.13 Other rights which
may affect language use in this way include the right to education,14 labour rights,15
the right to vote and be elected at periodic elections,16 and rights to privacy and
family life.17

2.6 Key Concepts

A range of international legal provisions are therefore relevant to questions of


language use. Each of these areas of international law provides a different basis for
protecting language rights, and each has different implications for language policy.
However, on closer analysis, it is evident that two common concepts underlie the
approach to language rights taken across these disparate fields of international law:
‘‘equality’’ and ‘‘culture’’.
The principle of equality is fundamental to international law’s approach to issues
of language policy. A primary reason language policy raises concerns, from the
perspective of international law, is that requirements to use particular languages can
discriminate against, or disadvantage, speakers of other languages. Non-discrim-
ination provisions explicitly seek to ensure equality between all individuals,
regardless of language. The principle of equality also forms the basis for systems of
minority protection, the purpose of which is to put minorities ‘‘on a footing of
perfect equality’’ [22, p. 17] with other groups in society. Thus article 4 of the
European Framework Convention requires states to promote ‘‘in all areas of
economic, social, political and cultural life, full and effective equality between
persons belonging to a national minority and those belonging to the majority’’. And
the Oslo Recommendations on the Linguistic Rights of National Minorities indicate
that the ‘‘ultimate object’’ of minority language rights is ‘‘the full and free
development of the individual human personality in conditions of equality’’.
The principle of equality informs the approach to language use taken by other
areas of international law, too. The fact that freedom of expression extends to cover
not only the content, but also the language, of expression suggests a concern to
ensure that this right is able to be exercised equally by speakers of different
languages. The right of an accused to be provided with an interpreter, if he or she
does not understand the language spoken by the court, is clearly designed to ensure
equality before the law. And when considering rights of access to culture, the
Committee on Economic, Social and Cultural Rights has consistently raised
concerns about equality of access, and equality of state support for different
languages. So, for example, the Committee has required the UK to give the same
status and degree of support to the Irish language in Northern Ireland as it currently
gives to Gaelic and Welsh [32, para 20, 32].

13
See, eg, ICCPR, arts 14(3)(a), (f).
14
See, eg, ICESCR, art 13; ECHR, art 2 of the First Protocol; [5].
15
See, eg, ILO Migrant Workers Recommendation 1975, arts 7(a)(1), 21 and 22.
16
See, eg, ICCPR, art 25; [20, 26].
17
See, eg, ICCPR, arts 17 and 23; ECHR, art 8.

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Concerns about equality therefore pervade international law’s engagement with


questions of language policy. Linguistic justice is understood as requiring equality
between speakers of different languages. However, this does not exhaust
international law’s vision of linguistic justice. Concerns about culture, and the
need to promote and protect culture, also inform international law’s approach to
questions of language policy. International legal instruments concerning cultural
diversity protect language use because language is an aspect of culture, and is
therefore to be valued and preserved as part of the heritage of mankind. The
European Charter protects languages because to do so ‘‘contributes to the
maintenance and development of Europe’s cultural wealth and traditions’’
[Preamble]. And the Cultural Diversity Convention protects linguistic diversity as
an aspect of cultural diversity, ‘‘a common heritage of humanity’’ to be ‘‘cherished
and preserved for the benefit of all’’ [Preamble]. A similar awareness of the link
between language and culture, and the need to protect language as an aspect of
cultural expression, can be seen to inform the law on access to culture under article
15 of the ICESCR. And if language is seen as an aspect of cultural expression, then
the extension of freedom of expression to protect language use can also be seen as
based, at least in part, on the need to protect languages as cultural objects.
The need to protect language as an aspect of culture can also be seen to underlie
systems of minority protection. In the Minority Schools in Albania case, the Court
stated that the purpose of minority rights schemes was not only to ensure equality
between minorities and the majority, but also ‘‘to ensure for the minority elements
suitable means for the preservation of their racial peculiarities, their traditions and
their national characteristics’’ [22, p. 17], in other words, to ensure the preservation
of their distinctive cultural identity. Thus the UN Declaration on the Rights of
Indigenous Peoples affirms that ‘‘all peoples contribute to the diversity and richness
of civilizations and cultures, which constitute the common heritage of humankind’’.
And the European Framework Convention requires states to ‘‘promote the
conditions necessary for persons belonging to national minorities to maintain and
develop their culture’’ [art 5].
In international legal discourse, then, linguistic justice is not only about equality,
but also about culture. Taken together, these two concerns—to promote equality as
between speakers of different languages, and to promote cultural diversity and
expression—can be seen to animate and inform the way in which international law,
as a whole, engages with questions of language policy. The concepts of equality and
culture are thus central to international legal discourse on language. In the next two
sections of this article, I therefore examine each of these concepts in turn and
consider how they may affect international law’s conceptualisation of linguistic
justice.

3 Equality

Before considering how the concept of equality is employed within international


legal discourse, it is first useful to explore the notion of equality generally. A brief
review of the scholarly work on this issue reveals that there is no single, generally

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accepted understanding of equality. Rather, there is a diversity of approaches to the


concept.
One reason for this diversity is that creating equality between individuals with
respect to one variable may lead to significant inequality with respect to other
variables. One of the key questions which theorists considering equality must
answer is therefore: equality of what? The literature contains a wide variety of
answers to this question. As Pojman and Westmoreland [27] note:
Among the competing items to be equalized are welfare, preference
satisfaction, primary goods, economic resources, social status, political power,
capacity for personal fulfilment, opportunity for welfare, and opportunity for
scarce resources and social positions [27, pp. 1–2].
Each of these has different implications for what is required in the name of equality
[7, pp. 52–64].
At the same time, theorists disagree on whether equality of opportunity or
equality of outcome is the relevant goal. Is it sufficient to ensure that all individuals
are offered the same opportunities or does ‘‘real’’ equality require steps to be taken
to ensure that the outcome of providing these opportunities is the same for all? To
complicate matters further, it is possible to identify different understandings of what
‘‘equality of opportunity’’ and ‘‘equality of outcome’’ might mean. Samuel Freeman
[16], for example, has argued that there are four different types of equality of
opportunity: ‘‘formal equality of opportunity’’, which requires that opportunities to
access education, employment and other desirable social positions are formally
open to all; ‘‘fair equality of opportunity’’, which requires, in addition, that
measures be taken to address background injustices which may affect an
individual’s likelihood of accessing desirable social positions; ‘‘equality of
opportunity for groups’’, which requires a proportion of desirable social positions
to be reserved for members of minority groups; and ‘‘perfect equality of
opportunity’’, which requires the elimination of all factors, including ‘‘love,
friendship, religious ties and any other form of association’’ that might influence an
individual’s opportunity of success in life [16, p. 27].
There are therefore a wide variety of approaches to equality. And each of these
approaches has different implications in practice. To employ the idea of equality
usefully, we therefore need to know exactly what we mean by it, and what
implications our chosen approach has for our analysis. However, within international
legal discourse, the concept of equality is not generally defined or interrogated.
Rather, the goal of equality is taken as a starting point for discussion of language
issues, and so difficult questions as to what is meant by equality tend to be obscured:
they are positioned as somehow prior to, and beyond the scope of, the discussion. In
this way, use of equality as a foundational concept within international law on
language may be problematic, as different senses of the term could be used to justify
opposite outcomes. A state law stipulating that radio broadcasting can occur only in a
state’s official language, for example, may satisfy requirements of formal equality of
opportunity, in that theoretically individuals from any linguistic group could start a
radio station and broadcast in that language. However, such a law would fall short of

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guaranteeing equality of outcome or ‘‘equality of opportunity for groups’’, as it


would, in effect, favour those groups who speak the official language.
More specifically, disputes regarding the meaning of equality carry over into the
legal context in the form of disputes as to what constitutes discrimination. In general
terms, there are two different ways in which discrimination can be understood. Direct
discrimination occurs where a rule treats equals differently. Indirect discrimination
occurs where the rule itself applies equally to all, but the implementation of the rule
affects a particular group disproportionately. Interestingly, both understandings of
discrimination seem to be at work within international legal discourse.
Within discourses on minority protection, discrimination tends to be conceptua-
lised broadly, encompassing indirect as well as direct discrimination. Thus in one of
the earliest cases on minority rights, the Minority Schools in Albania opinion [22],
the Permanent Court of International Justice held that an amendment to the
Albanian Constitution which prohibited private schools in Albania was contrary to
the requirement of equal treatment contained in the relevant minorities treaties. This
was because, although the law in question applied equally to all Albanians, it
disproportionately affected the Greek minority, which would no longer have access
to schools teaching Greek language and culture. In a similar vein, article 4 of the
European Framework Convention requires states to promote ‘‘full and effective’’
equality for national minorities, taking ‘‘due account of the specific conditions of the
persons belonging to national minorities’’. The Committee on the Elimination of All
Forms of Racial Discrimination also appears to embrace a broad understanding of
equality, in that it frequently expresses concern about language policies which are
formally neutral, but which have a disproportionate impact on particular racial
groups. For example, in relation to Saint Lucia, the Committee has noted ‘‘that the
requirement to speak and read English [to participate in elections]… curtails the
right of the indigenous population, the majority of whom are fluent only in Kweyol,
to participate in political elections’’ [33, para 446].
At the same time, however, other areas of international law seem to approach
equality in narrower terms, as requiring only freedom from direct discrimination.
Thus in the Ballantyne case [3], the Human Rights Committee found that there was
no discrimination under article 26 of the ICCPR because the law in question,
requiring outdoor commercial signs to be in French only, applied equally ‘‘to all
those engaged in trade, regardless of their language … This prohibition applies to
French speakers as well as English speakers’’ [3, para 11.5]. In reaching this
conclusion, the Committee rendered the fact that the laws in question would
disproportionately affect English speakers, who were likely to have, and want to
attract, a larger English-speaking clientele, irrelevant.
Similarly in the Diergaardt case [12], although the Committee held that there had
been a violation of article 26, this appears to have been on the basis that the state
specifically ‘‘targeted’’ the Afrikaans language, by instructing its civil servants not
to reply to communications in Afrikaans [12, para 10.10]. The discrimination which
the Committee was concerned about was not, therefore, the inherent, and indirect,
discrimination involved in the requirement that all communications between the
state and its citizens take place only in the official language, English. Rather, the

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Committee focused on the narrower issue of the direct discrimination against


Afrikaans in relation to other unofficial languages.18
My analysis thus far raises two concerns regarding the use of equality as an
animating concept in international legal discourse on language. The first is that the
meaning of equality is complex and contested, both generally and within
international legal discourse. As a result, international law does not speak with
one voice on issues of linguistic equality. While at some times international law
adopts a broad understanding of equality, and concerns itself with cases of indirect
discrimination, at other times it adopts a narrower view and addresses only
situations of direct discrimination. As a whole, then, use of equality as a
foundational concept may complicate, rather than clarify, international law’s
approach to questions of linguistic justice.
The second concern is that, to the extent that international law adopts a narrow
approach to the concept of equality, and focuses on direct discrimination, this tends
to preclude language claims from consideration because, in general, laws imposing
language requirements will apply equally to all. Yet this is exactly the point of
concern for minority language speakers: that these laws fail to provide appropriate
accommodation for those who do not speak the required language and so
disproportionately affect minority language speakers.
Let me add to these two concerns a third. This is that legal approaches to
equality, both broad and narrow, do not address issues of structural disadvantage,
that is, the way in which certain individuals and groups are systematically oppressed
and exploited by others. This point has been made, in particular, by feminist writers,
who argue that traditional ways of considering equality fail to take account of the
systematic disadvantage suffered by women in all spheres of society. As these
writers have demonstrated, the law measures equality by comparing the positions of
individuals: discrimination occurs where two individuals in the same position are
treated differently. This assumes a neutral comparator against which ‘‘sameness’’
and ‘‘difference’’ of position is to be measured, and thus tends to ignore the effects
of structural disadvantage. As Kathleen Mahoney has put it in the context of
women’s rights:
By structuring equality around the male comparator, the assumption is made
that equality exists and that from time to time, individuals will be
discriminated against. The persistent disadvantage women suffer across the
board because of societal biases is obscured [9, p. 240].
This problem applies equally to the position of minority language speakers.
Members of society who do not speak the dominant language may well be
marginalised or excluded in more than one sphere of life. Linguistic minorities, like
other minority groups, may suffer discrimination and disadvantage ‘‘across the

18
This interpretation is supported by the dissenting opinions of Nisuke Ando and Rajsoomer Lallah.
These members objected to the Committee’s finding on this point on the basis that there was no specific
targeting of the Afrikaans language: the law in question ‘‘puts the Afrikaans language exactly on the same
footing as any other native languages spoken in Namibia’’ (dissenting opinion of Nisuke Ando) and no
‘‘more favourable treatment was being given to other unofficial languages’’ (dissenting opinion of
Rajsoomer Lallah, para 8).

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board because of societal biases’’, to use Mahoney’s expression: think of the


position of immigrants who do not speak the dominant language, or national
minorities, such as the Kurds in Turkey or the Roma in Europe. However, the
systematic disadvantage suffered by linguistic minorities is generally obscured
within international legal discourse, which focuses on discrimination in terms of
sameness and difference. So, for example, in the Ballantyne case [3], the Committee
found that the law in question applied equally to all. In making this assessment,
however, the Committee effectively assumed that, prior to the enactment of the law,
French and English speakers were treated equally. The Committee did not,
therefore, take into account any existing disadvantage which may have been
suffered by the English-speaking minority in Quebec and whether this might have
been worsened by the law in question.
From this discussion, we can conclude that the concept of equality is a complex
and contested one. And this renders its use in discussions of language rights
problematic. Different areas of international law approach the concept differently.
And some adopt a test of direct discrimination that tends to exclude language
policies, which generally apply equally to all, from scrutiny. Further, legal tests for
discrimination do little to bring any structural oppression suffered by minority
language speakers into focus. By narrowing the scope of analysis to formal
questions of sameness and difference, they preclude consideration of broader
structures of power at work and render systematic disadvantage suffered by
minority language speakers invisible.

4 Culture

Raymond Williams, in his book Keywords, describes culture as ‘‘one of the two or
three most complicated words in the English language’’ [40, p. 76]. Not only does
the word have different meanings, in an etymological sense, but it is used in
different ways in different contexts [40, pp. 80–81]. Some of the different senses in
which the word culture is used include culture as civilisation; culture in the
anthropological sense, as a way of life; culture as ‘‘high’’ culture or the arts; culture
as mass or popular culture; culture as commodity, that is, popular culture as
commercialised for economic ends; culture as an instrument of power; culture as
identity, that is, as a way of life and as a resource to be mobilised in support of
identity politics; and culture in the broad sense of any group practice.19 All these
views of culture overlap and blur into each other. However, enumerating them gives
us a sense of the range and complexity of the concept of culture itself.
This complexity renders the use of culture as a key concept in international legal
discourse problematic, as it is almost impossible for discussions about culture to
proceed from a neutral, agreed basis. Take, for example, the conflict between the
European Communities and Canada, on the one hand, and the US, on the other hand,

19
Eagleton cites the example of ‘‘police canteen culture’’. He suggests this view of culture is one which
would cover ‘‘everything from hairstyles and drinking habits to how to address your husband’s second
cousin’’: [14, p. 32].

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regarding trade in audiovisual productions [15]. During the Uruguay Round of trade
negotiations, these two groups disagreed violently regarding measures to liberalise
trade in these products. It is apparent that, in truth, this was not so much a conflict
over the way in which ‘‘culture’’ should be treated under trade rules, but a conflict
between different understandings of culture. The US viewed culture as a
commodity. On this basis, the US argued that film and television products should
be subject to the same trade rules as other commodities. The European Communities
and Canada, however, saw culture as associated with identity. They saw film and
television products as part of their national cultural identity, and felt that increasing
access to their national markets for American film and television would threaten that
identity. The common use of culture as an animating concept thus obscured the real
issues at stake and complicated the discussion.
This problem is compounded in the context of international legal discourse on
language, because each of the relevant areas of international law takes a different
approach to the concept of culture. Discourses of minority rights, for example,
primarily conceptualise culture as a way of life, the purpose of minority rights being
to provide minorities with means for the ‘‘preservation of their racial peculiarities,
their traditions and their national characteristics’’ [22, p. 17]. On the other hand,
instruments which seek to protect cultural diversity focus on cultural products: the
UNESCO Cultural Diversity Convention, for example, protects ‘‘cultural expres-
sions’’. Taking yet another approach, the Committee on Economic, Social and
Cultural Rights originally interpreted article 15 of the ICESCR as requiring access
to ‘‘high culture’’, and then broadened this interpretation to include access to
popular culture also [25, pp. 906–916].20 Thus, as with the concept of equality,
international law does not speak with one voice on the concept of culture, and the
complexity of the concept as a whole tends to be missed within individual areas of
international law.
More fundamentally, however, international legal discourse seems not to account
for the complexity of culture itself. Arjun Appadurai has noted that a key problem
with using the noun ‘‘culture’’ is that it suggests that culture ‘‘is some kind of object,
thing, or substance’’ [2, p. 12]. In other words, it leads to a tendency to essentialise
culture. This is problematic because it does not reflect the reality of culture as
inherently indeterminate and shifting, constantly being reconstituted, appropriated
and negotiated. In a similar way, taking the need to protect ‘‘culture’’ as a starting
point for consideration of language issues produces a tendency, within international
legal discourse, to treat culture as ‘‘some kind of object, thing, or substance’’. This
essentialist view of culture is problematic because it is based on three key
assumptions which have been shown to be incorrect [21, 24].
The first assumption is that cultures are objects: fixed, determinate and static. In
fact, cultures are not fixed objects but processes, constantly changing and evolving.
Anthropologists have demonstrated that cultures change over time in response to
internal and external conditions, and that this development is neither linear nor
organic, but erratic, discontinuous and contested. James Clifford [8], for example,

20
Roger O’Keefe has demonstrated that the Committee now also considers article 15 to refer to culture
as a way of life: [25, pp. 916–923].

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Linguistic Justice in International Law 91

has shown how the culture of the Mashpee Indians in the US changed over time,
through contact with white settlers, yet retained, adapted and reclaimed traditional
Mashpee customs and practices. According to Clifford, an essentialist, static view of
culture misses this complexity, because it does ‘‘not account for complex historical
processes of appropriation, compromise, subversion, masking, invention, and
revival’’ [8, pp. 338–339].
Similarly, a tendency to adopt an essentialist view of culture in relation to
language claims prevents international legal discourse from taking account of the
reality and complexity of the cultural framework within which languages are used.
For example, international instruments and bodies designed to protect endangered
languages tend not to cover languages which are in serious decline. Thus the
European Charter makes state obligations in respect of languages dependent on ‘‘the
situation of each of these languages’’,21 that is, the extent to which the language in
question is spoken.22 This assumes a linear progression in the decline of language,
such that it is not worthwhile taking protective measures in respect of languages
which have few speakers or are already ‘‘extinct’’. And yet the development of
cultures is not always linear. The Manx language may have been declared ‘‘dead’’ in
1974, but Mark Abley has demonstrated that it is now ‘‘alive and—if not exactly
well—fighting hard for breath’’ [1, p. 99], as people ‘‘go on using the language,
creating fresh traditions every day’’ [1, p. 113]. In adopting a static view of culture,
the Charter ignores the way in which such processes of change and revival occur
within cultures, and thus leaves no room for the possibility that a declining language
may once again become a key feature of minority group culture.
The second assumption upon which the essentialist view of culture rests is that
cultures are separate, autonomous and internally consistent. In fact, cultures are
porous: they appropriate practices from each other, indigenise them and reinvent
them. Hybridity is a characteristic of cultures today. And this means that internally
cultures are never uniform and consistent:
Like the rough ground of language itself, cultures ‘‘work’’ exactly because
they are porous, fuzzy-edged, indeterminate, intrinsically inconsistent, never
quite identical with themselves, their boundaries continually modulating into
horizons [14, p. 96].
Adopting an essentialist view therefore narrows our understanding of the
complexities of culture, and skews our vision of what should and should not be
protected in the name of culture. Again, this phenomenon can be seen at work
within international legal discourse. The European Charter protects only languages
‘‘traditionally used’’ within a particular state ‘‘by nationals of that state’’ [art 1]. And
migrant languages are specifically excluded from the Charter’s scope of operation,
‘‘such languages contributing nothing to the cultural heritage of Europe’’ [37,
p. 444]. The understanding of culture inherent in the Charter is therefore one that
21
See, eg, arts 8–10.
22
This is not to say that the Charter is ‘‘wrong’’ to do this. There may be good, practical reasons why the
Charter limits the obligations it imposes to identifiable, ‘‘traditional’’ languages. But failure to appreciate
the dynamic nature of culture narrows the scope of our vision with respect to both the problem, and the
possible solutions, associated with language policy in this area.

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92 J. Mowbray

fails to take account of processes of cultural mingling, appropriation and reinvention


as a result of immigration and other social change. The view of culture is a rather
nostalgic one, a vision of ‘‘traditional’’ European culture, which fails to appreciate
the way in which migrant communities, for example, the large community of
so-called Gastarbeiter, who migrated to Germany from Turkey in the post-war
period, have become part of the cultural and historical fabric of Europe. At the same
time, the Charter’s vision of cultures as autonomous and internally consistent is
reflected in the fact that it specifically excludes dialects of official languages from
protection [art 1(a)]. This move, which may deny protection to languages such as
Scots and Ulster-Scots [13, p. 56], suggests a reluctance to acknowledge diversity
within cultures (and languages).
The third assumption on which the essentialist view of culture is based is that
‘‘cultures are pre-political domains of shared values and consensual practices’’ [21,
p. 35]. In reality, cultures are never uniform, consistent and uncontested, but are
sites of contestation and negotiation, as the old makes way for the new. Cultures are
therefore sites of power struggle. The essentialist view of culture obscures this
reality and depoliticises questions of culture. Rather than orienting us to notice the
struggles within and between cultures for supremacy, it encourages us to view
culture as something altogether removed from the political sphere. As a result, the
privileged position of dominant groups, both within and among cultures, is put
beyond the scope of consideration.
This assumption that questions of culture are separate from questions of politics
produces a tendency, on the part of international bodies, to limit language claims to
the cultural sphere, thereby ignoring their broader political implications. When
commenting on state reports under the ICESCR, the Committee on Economic,
Social and Cultural Rights makes clear that it considers that article 15 requires states
to promote minority languages in the cultural sphere. However, when it comes to
considering the way in which rights to language and culture play out in a political
context, under the ICCPR and ECHR, the relevant bodies are significantly more
reticent to find that these rights require the state concerned to take action [6, 12, 41].
This disparity suggests that international institutions treat questions of culture as
somehow separate from questions of politics: language claims can be made within
the cultural sphere, but not within the political one. This is problematic because it
obscures the political nature of disputes about language. When states implement
their language policies, this is an exercise of state power, to the advantage of certain
groups (those whose languages are adopted as official languages) and the
disadvantage of others (linguistic minorities). Limiting language claims to the
cultural sphere obscures this political dimension and so leaves existing structures of
power unchallenged.
Use of culture as a depoliticising concept is quite explicit in the context of the
European Charter. The Charter specifically protects languages, not the interests of
their speakers: it does not provide individuals with language rights, but rather
requires states to take steps to protect languages themselves. Close analysis of the
Charter, and the circumstances of its development, suggest that this approach may
have been adopted in order to side-step:

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the thorny issues of recognising national/ethnic minorities, self-determination,


autonomy, and so on. Instead they focused on matters of language and culture
[18, p. 56].
Indeed, particular provisions of the Charter explicitly prevent challenges to the
structure of the state and the status of the official language. The Preamble notes that
‘‘the protection and encouragement of regional or minority languages should not be
to the detriment of the official languages and the need to learn them’’. It also states
that the promotion of regional and minority languages contributes to protecting
‘‘cultural diversity within the framework of national sovereignty and territorial
integrity’’. And article 5 provides that the Charter does not authorise any activity
which would be contrary to ‘‘the principle of the sovereignty and territorial integrity
of States’’. Paragraph 28 of the Explanatory Report to the Charter concludes that
‘‘there is no question of challenging any political or institutional order’’. The
Charter can thus be seen as an attempt to defuse political resistance to the state on
the part of minority groups, by granting limited cultural rights in respect of minority
languages. The effect is to co-opt and neutralise political resistance from minority
groups by reformulating their grievances in terms of cultural claims. In this way,
culture functions as a depoliticising concept.
Use of culture as a key concept within international legal discourse on language
rights therefore limits international law’s engagement with questions of linguistic
justice in a number of ways. This is in part because the word ‘‘culture’’ is capable of
bearing many different meanings, such that its use in discussions of language issues
tends to complicate rather than clarify. But it is also because taking culture as a
foundational concept in international legal discourse on language, as a starting point
for consideration of language rights, produces a tendency to adopt an essentialist
view of culture as an ‘‘object, thing or substance’’ [2, p. 12]. This precludes us from
considering the true complexities of culture and, in particular, the power relations at
work within cultures and in relations between cultures.

5 Conclusion

International law offers linguistic minorities a language in which to advance claims


for linguistic justice. But how does this language operate? And does it really
contribute to greater justice for speakers of minority languages? In this article, I
have considered these questions by analysing how international legal discourse
approaches questions of language policy.
International legal discourse on language centres around the twin concepts of
equality and culture. These two concepts inform and structure international law’s
entire engagement with questions of language policy. However, each of these
concepts is complex and contested, and their application to language issues is
problematic. In particular, these concepts tend to skew our approach to questions of
language use in certain directions: they draw our attention to some questions, while
rendering others insignificant. The meaning of ‘‘equality’’ is difficult to define, but
its use within international legal discourse encourages a focus on measures which

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94 J. Mowbray

are overtly discriminatory, rather than more subtle forms of marginalisation and
exclusion. It also tends to obscure, rather than reveal, structural oppression and
systematic disadvantage suffered by linguistic minorities. Similarly, the way in
which ‘‘culture’’ is conceptualised within international legal discourse encourages
us to protect certain languages rather than others: languages which are spoken by a
significant number of people rather than languages that are virtually ‘‘extinct’’;
languages of national minorities rather than those of immigrants; ‘‘pure’’ or
‘‘authorised’’ versions of languages rather than dialects or creoles. Focusing on the
concept of culture also produces a tendency to ignore the political dimensions of
language disputes, to allow cultural protection without challenging the underlying
structures of power that disadvantage linguistic minorities.
In all these ways, this conceptual framework restricts our understanding of the
problems involved in disputes about language, and constrains our sense of possible
solutions. As a result, international law’s vision of linguistic justice is limited in
certain ways. International law does provide a language for advancing claims to
language rights: a range of different areas of international law protect different
language-related interests. But at the same time, limits inherent in the discourse of
international law also constrain its emancipatory potential. The challenge is
therefore to enrich the discursive framework within which international law
approaches questions of language policy, in order open up new ways of
understanding and articulating language claims, and to refocus our attention on
the issues involved in more productive ways.

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