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DOI 10.1007/s11196-010-9177-6
Jacqueline Mowbray
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.
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.
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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Linguistic Justice in International Law 81
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.
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
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
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
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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Linguistic Justice in International Law 85
3 Equality
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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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Linguistic Justice in International Law 89
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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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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5 Conclusion
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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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