Accepted for publication in the Journal Ethnicities29th February 2016
LANGUAGE RIGHTS AND THE COUNCIL OF EUROPE: A FAILED RESPONSE TO A MULTILINGUAL CONTINENT?
Abstract
Debates onlanguage rights as integral elements of human rightshave gathered momentum since the early 1990s. International organisations, such as the Council of Europe (CoE) and the United Nations (UN), have advocated linguisticrights through various charters and conventions, albeit with wavering levels of success. This article focuses specifically on the European context and the manner in which the CoE has dealt with language rights in the continent. The EuropeanConvention on Human Rights (ECHR),the European Charter for Regional and Minority languages (ECRML) and the Framework Convention for the Protection of National Minorities (FCPNM) are discussed in light of the region’s contemporary linguisticmakeup. Current inequalities in the application of language recognition provide an area of special concern. For example, while speakers of ‘indigenous’ (or autochthonous) minority languageshaveapparently enjoyed an improving status in recent decades, the position of immigrant (or allochthonous) languages is less clear and current approaches largelyignore linguistic diversity which has been brought by recent mass migration patterns, leading to a somewhat exclusionary system. Through the discussionpossible pathways for better inclusion of immigrantlanguages within current international frameworks, especially those of CoE,are explored.
Introduction
Theemergence of nation states in the 18th and 19thcenturies was coterminous with the establishment of the concept of ‘national language’ through which administration of the stateand national identity would be channelled (Bourdieu, 1991: 46). Such state-building, therefore, provided a sense of ‘normalisation’ and preferential treatment for speakers ofthe majority tongue, while rendering deviant and marginal thosegroups unwilling to assimilate linguistically (May, 2005: 322). Thesehistorical processes of linguistic nationalism, despite the claims of postmodernists,continue to influence systems of belonging and exclusion in contemporary states today(May, 2014a). Speakers of minority languages who have felt omitted from full inclusion within widersocial structures such as education, commerce and civic life have often preserved their linguistic heritage through private ventures such as community schools, literary and cultural movements, or via campaigns for improved government support. Although some statescontinue toview the recognition of languageminorities aspotentially divisive for stateidentity[1], others, especiallyfrom the twentieth century onwards – especially after the horrors inflicted on minorities in World War Two – started toprovide various aspects of official policy for speakers of lesser-used tongues (Pentassuglia, 2004: 9). In the 1980s and 1990s growing regionalist agendas werediscussed further within the framework of organisations such as the EU(Kockel, 2002: 186)[2]. Trenz (2007) has noted that these ‘local’ agendas were facilitated, somewhat ironically, by globalisation. Pan-European integration whilst championing ‘unity in diversity’ between states also influenced notions of ‘unity in diversity’ within states,thus providingnew platforms for the mobilisation of linguistic minorities. The result has been a gradualreassessment ofrelationshipsbetween national governments and their cultural minorities, a process increasingly channelled through international law.
Consequently, Europe has witnessed a growing system of minorityprotection in the past 25 yearsvia organisations such as the Council of Europe (CoE). CoE, established in 1950 to oversee the protection ofhuman rights in the continent, has included various languagerights in a number of its provisions. Such provision to date, however, has been of most benefit to speakers of Autochthonous (indigenous) minority languages. Despite a rise in global migration which has altered the linguistic make-up of European societies over the past century, there is much less focus on language rights for these communities within current frameworks. This is despite the fact that contemporary migration to, and within, Europe in recent decades has provided one of the greatest challenges to the myths of amonocultural and monolingual state.In 2011, there were over 33,000,000 foreign-born residents living in the EU[3], while in some countries like Germany, Britain and France, numbers of foreign-born were larger than the overall population of other Europeanstates (Eurostat, 2011). Migrationprocesses have been influenced by a pull towards core economic regions for employment or education, or even by historical colonial ties. Push factors such as natural disaster, war and poverty have equally contributed to migration patterns to Europe and this has been strikingly illustrated from 2015 onwards. Current trends indicate that diversity issues and questions on language rights will continue to gain prominence, even in those countries which previously had smaller migrant populations.
In the field of international law, as noted above, it is the minority regional languages of Europe which have,overall,witnessed a growing level of coverage within minority rights charters and also within the language policy of numerous states. This perception has been mirrored in some academic scholarship which hasjustified the right of a community to preserve its language on the basis of historical attachment to a particular territory, thus privileging the ‘sons of the soil’ (See Van Parijs, 2011).Indeed, such a principle has benefitted many autochthonous languages. However, the principle of historical attachment clearly does not apply to migrants and, despite the changing nature of European democracies, there is a remarkable lack of engagement with the position and status of immigrant languages (NicCraith, 2006: 147). Such disparities, despite clear alterations to Europe’s linguistic map in the past 50 years, have extended not just to state language planning but also to current provision within international minority rights lawdrafted by bodies such as CoE. This article, therefore, provides an assessment of responses to linguistic diversity by CoE through an evaluation of the coverage of linguisticrights in three relevant documents, the EuropeanConvention on Human Rights, the European Charter for Regional and MinorityLanguages and the Framework Convention for the Protection for National Minorities.Examples from past cases and published monitoring reports are drawn upon to illustrate the paucity of engagement with languages of immigrant communities – even when opportunity arises for such engagement to occur.While the paper refers specifically to the CoE as a case study, issues raised are also significant for the work of other bodies working in the area of human rights like the United Nations (UN) and the Organisation for Security and Co-operation in Europe (OSCE). This paper is timely in that it contributes to issues relating to the inclusion and exclusion of immigrant communities which are all too oftenproblematized within wider discourses of global security. However, before moving to this debate I first assess theoretical considerations within which language diversity has been framed in policy and international law.
Language Rights, Liberal Multiculturalism andPoliticalTheory
Deliberations on multiculturalism andgroup-oriented cultural rights have beenfervently debated since the 1990s within politicaltheory. Such rights might includegeneral language protections for an ethnic group from discrimination or more proactive measures by a state to actively support the maintenance and use of minority languages.While one school of thought advocates a more sympathetic stance towards group-oriented rights (May,2001;May, 2005; Kymlicka, 1995; Kymlicka and Patten, 2003), another has been critical of such approaches (Michaels, 2006; Schlesinger, 1998; Okin, 1999). Group-orientedrights have been viewed with trepidation by many liberal theorists who fear thepoliticisation of ethnic identities, protection of illiberal practices and a subsequent detraction from other issues which are the real cause of social inequality and poverty (Barry,2001: 305). Critics also argue thatculturalrights are additionalrights-based privileges which are not provided to other citizens and are, therefore,incompatible with individualistic democratic principles (Schlesinger, 1998:153).Kukathas (1992), for instance, argues thatindividual rightsare sufficient formembers of ethnic minority groups to participate fully in the public space and there is no need for state interference in the arena of cultural expression, which should be maintained as a private matter.
Other opponents have taken umbrage with the advocacy of minority language rights in general.There is supposedly little reason for either immigrants or indigenous groups to protect their languages given that these speakers will ‘inevitably’ and ‘voluntarily’ shift from their mother language to one which seemingly provides better opportunity for social mobility and cohesion (Edwards, 1985; Edwards, 2003). However, sociological analysis here rejects such assertions andstresses the role that undemocratic power structures have had in actively minoritising certain languages. In this case, language rights are justified as a means to redress inequitable processes such as colonisation, elements of cultural imperialism and institutional racism. Often in the case of immigrants, the socio-economic context of speakers also shapesthe status of a language itself which ultimately determines the political discourse surrounding that language. For example, Spanish, despite the opportunities potentially provided to speakers of such a global language, is often viewed as a barrier to integration in the USA when spoken by a Latino immigrant. Indeed, education policy has witnessed an increasing discouragement of Spanish/English bilingual programmes in some states in favour of English only programmes[4].In this case, the socio-economic standing, ironically of the group,are at the forefront inshaping the discourse about individualSpanish speakers themselves.Therefore, arejection of language rights on the grounds that speakers will inevitably transition to a ‘language of progress’ is deeply flawed in its ignorance of wider social context.
In the debates between group-oriented versus individual rights some scholars have also argued that social and historical factors cannot be ignored. Patten, for instance,notes thatassumptions which prioritise individual rightsignore thatmajority populations often ‘seek to fashion the state in their own image’ and ‘see their own values, traditions, norms, and identity expressed in meaningful ways in public institutions’ (2014a: 3). This process actively includes some groups more than others which has clear implications for civic participation andequality. Nowhere is this more evident than withinnational language policy where one vernacular is often promoted in the public space while non-majority languages are regularly viewed by authorities as barriers to integration (Kymlicka, 1995; Taylor, 1994; Parekh, 2000).Moreover, a focus only on individual rights ignores the fact that shared aspects of a person’s cultural identity, like language, are central to the overall makeup of their individual identity (See May, 2011: 267). Consequently, a school of thought which advocates group rights contends that to provide minorities with rights which rebalance their marginal status is vital in pursuingmore equal and democratic societies – an approach termed ‘liberal multiculturalism’[5].Liberal multiculturalism maintains a fundamentalsupport forindividualliberalvalues, yet acknowledges the importance of cultural expression formembers of minorities in fully accessing these freedoms.This might include a respect for religiousbelief, dress and customs or more advocative examples likestatefunding for community organisations,ethnically-based schooling, orlanguage recognition[6]. Liberal multiculturalism is,therefore,viewed by supporters, such as Will Kymlicka, ascentral inassisting members of minoritygroups to participate more fully as active citizens in the public life of the state in which they reside.Thus liberal multiculturalism helps to incorporatevarious ethnic, linguistic and religiousgroups under a wider umbrella of state citizenship which still has the individual’s rights at its core(Kymlicka, 1995; Kymlicka, 2007).
The major controversy,however,arises in relation to how liberal multiculturalists propose rights be applied to immigrants vis-à-vis indigenous national minorities. For instance, the deep historical attachmentthat an indigenous minority has to a particular territory is viewed as requiring some specific rights tailored to the needs of such communities. This might include the devolution of political authority to local/regional governments[7] which, in turn, might influence policy to support a regional language in areas like education, media, culture and wider public life. For instance, state-funded education in such regions might facilitate the learning of a regional language, or even full instruction in that language. Such significant civic support, as noted earlier, has often been justified as redress for aggressive historical processes of linguistic homogenisation by the state. These more robustmeasures are often classified aspositive language rights (Kloss, 1971)[8].
Immigrants, with a shorter historical connection to the territory are viewed by some liberal multiculturalists as more likely to be making demands associated with integration (Kymlicka, 1995: 96). For instance, they might demand less robustinclusion ofaspects of their culture and language within state educationwhen compared with national minorities. Immigrants may also request publicly-funded programmes which support acquisition of the majority language. Likewise, public sector interpreting might encourage engagement between immigrants and state in areas like health and the justice sector. Whilst not on the same scale as demands made by national minorities, these could be described as ‘lighter’ variants of promotion-oriented rights. Another approach in the application of rights to immigrants may include only broad standards of non-discrimination through the introduction of race relations laws which protect groups, such as linguistic minorities, from overt prejudice in the wider public sphere. This approach has been drawn upon by those governments which avoid more active measures of support but which nonetheless have committed in principle to treat immigrant minorities justly[9]. Application of rights in this less robust way fall into Kloss’ (1971)description oftolerance-oriented rights.
The dichotomy between immigrants and national minorities described abovehas again irkedthose traditional/orthodox liberalists who have fundamental problems with the group-based focus of liberal multiculturalism (See Pogge, 2003). Differentiation betweenthe two groups of minorities is illustrative for them of the inequalities that liberal multiculturalism facilitates because one category of minorities, indigenous groups, appears to be supported more than the category of immigrant minorities. Second, while it is likely that a state will be able to provide support to its establishedindigenous group, the sheer number of different immigrant minorities in superdiverse societies render it unlikely in practical terms that all these groups can be recognised in the same way – yet another example of differential treatment.For example, while in some cases it might be feasible for larger immigrant groups to receive more significant financial state support (or positive rights), other smaller groups may only be covered by general notions of non-discrimination. In some cases, proactive policy responses to certain immigrant groups might be encouraged by a government if an immigrant group is large enough to have substantial weight at election time. In such cases governmental self-interest might be the rationale for support, rather than a search for equality. However, supporters of liberal multiculturalism argue that overall this is a process which actively increases the scope of rights to members of marginalised groups and thus extends the reach of democratic values.
Despite the reservations, at a practical level a multicultural agendahas emerged as a prominent framework within many states and global human rights organisations[10].Generaltendencies, as will be illustrated throughout this paper,havewitnessed more robust application of promotion-oriented rights to national minorities while tolerance-oriented rights have,more often than not,been regarded as appropriateforimmigrants(Kymlicka and Patten, 2003).Tolerance rights, however, have frequently been interpreted by states as requiring a largely apathetic attitude.In practical terms this is especiallyproblematic when there is a large immigrant group on a given territory and a state’s apathetic response might be construed by that group as social and cultural marginalisation. When a sizeable immigrant community is requesting language support it is difficult for a state to ignore this entirely and in some instances a “where numbers warrant” principle has been drawn upon to apply some promotion-oriented rights to such groups.This pathway to rights for immigrants has controversially been situated within a number of international charters and conventions, such as the CoE’s FCPNM, yet it has rarely been utilised in the application of this legal mechanism to date. While a tactic like this might be criticised as creating distinctions between larger and smaller immigrant communities, it at least attempts to increase the scope for applying language rights.As May (2014: 388) notes,such pathways in international law provide “greater linguistic democracy” which“is not necessarily the same as ethnolinguistic equality”. Therefore, this paper notes that while it is useful to draw distinctions between the language rights of immigrants and national minorities in some circumstances, this need not become an intransigent approach which compartmentalises national minorities and immigrants into two very different spectrums of inflexible coverage.Given the that social, cultural, historical and, indeed, contemporary contexts for policy-making differ from one jurisdiction to the next, anapproach which is more considerate and open to these complexconditions is required.
It is the issue of improving the application of language rights to immigrants in Europe which form a central point of concern throughout this chapter. Special attention isplaced on theCoE,an organisation concerned with furthering ‘European unity, protecting human rights and facilitating social and economic progress’ (Clements, 1994: 2), and which has also played a fundamental role in advocating language rights in the continent. I look at three piecesof CoE legislation and analyse the approach towards language rights within them. First, I consider theEuropean Convention on Human Rights (ECHR) and the European Charter for Regional and Minority Languages (ECRML) which might be considered less flexible in their approach. Finally, I reflect upon theFramework Convention for the Protection of National Minorities (FCPNM) which, although potentially more accommodative to migrants due to its legal design, has seen only limited discussion of allochthonous language rights. Here, I am critical of the FCPNM’s monitoring procedure which has not adequately progressed this matter in the twenty years since the document was drafted, despite the potential to do so. Discussion ofthis legislation also providesan empirical base by which to explore the many theoretical concerns raised above. This article, it should be noted, is not arguing for a whole system of new rights for immigrant groups, or indeed for new legislation. Rather,it is concerned with exploring the potential of already existing mechanisms, especially the FCPNM, as a means of widening the reach/scope of language rights in contemporary Europe to include the languages of immigrant populations.