fn73*) E-mail: firstname.lastname@example.org. The present study originates from the author’s introductory paper written in Hungarian for the symposium on Az emberi jogok és a nyelvek (Human Rights and Languages) held in Pécs on 10 October 2008. The paper appeared in Gy. Andrássy and M. Vogl (eds.), Az Emberi jogok és a nyelvek (Pécs, 2010). A revised version of the paper was published in Jogtudományi Közlöny (Journal of Jurisprudence) in 2009. The present article is a longer and revised version in English of this article.
fn11) Ballantyne, Davidson, McIntyre v. Canada, U.N. Doc. CCPR/C/47/D/359/1989 and 385/1989/Rev.1 (1993), pp. 13–14.
fn22) General Comment No. 18. Non-discrimination: 10/11/89, and General Comment No. 23 (50) on Article 27, UN Doc. CCPR/C/21/Rev.1/Add.5.
fn33) The debate over Article 27 of the Covenant unfolded mainly around the issues discussed by Special Rapporteur Francesco Capotorti in his Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, United Nations Publications, New York, 1979.
fn44) For an overview on the minority rights debate of the 1990s in political philosophy and political theory, see W. Kymlicka, Politics in the Vernacular (Oxford University Press, Oxford, 2001) pp. 17–38; for a more comprehensive overview on the debate concerning linguistic and cultural rights in the context of linguistic and cultural diversity in political philosophy and political theory, see A. Patten and W. Kymlicka (eds.), Language Rights and Political Theory (Oxford University Press, Oxford, 2003) pp. 1–51.
fn55) W. Kymlicka, Multicultural Citizenship (Clarendon Press, 1995) p. 6. Some years later Kymlicka wrote about the philosophical debate of the 1990s on minority rights within the liberal rights-based framework: “Looking back over the development of this debate, I am inclined to think that genuine progress has been made, although much remains to be done.” Kymlicka, supra note 4, p. 38.
fn66) F. de Varennes, ‘Language Rights and Human Rights’, in D. Ó Riagáin (ed.), Language and Law in Northern Ireland (Cló Ollscoil na Banríona, Belfast, 2003) pp. 7–8.
fn77) The Polish Minorities Treaty served as a model in this international minority protection system. That is, the same or very similar provisions were inserted into other treaties and the unilateral declarations made by some states. The system obliged only 13 countries to respect freedom of language, but in 1922 the Assembly of the League of Nations adopted a resolution about the possible generalisation of this system. In this resolution the Assembly “expresses the hope that the states which are not bound by legal obligations to the League with respect to minorities will nevertheless observe in the treatment of their racial, religious or linguistic minorities, at least as high a standard of justice and toleration as is required by any of the treaties and by the regular action of the Council.” It may be worth noting here that the Institut de Droit International also included linguistic freedom into its Declaration of International Rights of Man in 1929. These facts all indicate that linguistic freedom was an accepted or an acceptable legal concept for both theory and international law. W. McKean, Equality and Discrimination under International Law (Clarendon Press, Oxford, 1985. pp. 33–45). For the text of the Polish Minorities Treaty, see P. Thornberry, International Law and the Rights of Minorities (Clarendon Press, Oxford, 1991) Appendix 1, pp. 399–403.
fn88) F. de Varennes considers freedom of expression a pillar of his analysis on language rights in contemporary international law. F. de Varennes, Language, Minorities and Human Rights (Martinus Nijhoff Publishers, The Hague, 1996). For more about this in this article see infra note 50.
fn99) Ballantyne, Davidson, McIntyre v. Canada, supra note 1, p. 14. According to de Varennes: “In essence, the Committee recognised that in an entirely non-governmental realm, any attempt at restricting an individual’s language choice clearly violates that individual’s freedom of expression.” De Varennes, supra note 8, pp. 43–44.
fn1010) MacIntyre obviously thought of the Universal Declaration of Human Rights that was adopted in 1948, yet the wrong figure appears (even) in the second and revised edition of his book. A. MacIntyre, After Virtue. A study in moral theory (Gerald Duckworth and Co. Ltd., London, 1985) pp. 69–70.
fn1111) Ibid. pp. 69–70.
fn1212) Discussing “a philosophically respectable concept of human rights”, M. Cranston wrote in 1967 expressly that he took “human rights or the Rights of Man or natural rights” as expressions “to mean the same thing”. M. Cranston, ‘Human Rights, Real and Supposed’, in M. E. Winston (ed.), The Philosophy of Human Rights (Wadsworth Publishing Company, Belmont, 1989) pp. 121–122.
fn1313) For example, four decades after the adoption of the Universal Declaration of Human Rights, M. E. Winston already identified several ways of understanding and justification of human rights, including Mill’s theory of liberty or moral rights, which was originally developed as an alternative to the natural law/rights tradition. M. E. Winston, ‘Introduction: Understanding Human Rights’, in Winston, ibid., pp. 1–41.
fn1414) Although the Member States of the UN ‘pledged themselves’ to the doctrine of human rights in Article 56 of the Charter of the United Nations, the Charter did not provide any specification of these rights. In contrast, the Declaration specified the concept of human rights; however, it had, in principle, only recommendatory force. Therefore, some international lawyers considered the Declaration as the authentic interpretation of the pledge undertaken in the Charter or attributed binding force to it through the Charter, etc. Anyhow, the Declaration does have a high reputation and it influences international human rights legislation.
fn1515) General agreement in philosophy is an exceptional phenomenon; therefore it is remarkable that according to R. Martin “one finds general agreement among philosophers that human rights are moral rights”. R. Martin, A System of Rights (Clarendon Press, Oxford, 1993) p. 74.
fn1616) According to the preamble of the Declaration, “a common understanding of these rights and freedoms is of the greatest importance”.
fn1717) “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed …” < www.ushistory.org/declaration/document/index.htm >.
fn1818) In its Recommendation 1521 (23 May 2001, Csango minority culture in Romania), the Parliamentary Assembly of the Council of Europe stated, in 9 iii, the following: “[T]here should be an option for Roman Catholic services in the Csango language in the churches in Csango villages and the possibility for the Csangos to sing hymns in their mother tongue.”
fn1919) T. S. Kangas, Linguistic Genocide in Education – or Worldwide Diversity and Human Rights? (Lawrence Erlbaum Associates Publishers, Mahwah, New Jersey, 2000).
fn2020) J. Locke, The Second Treatise of Government, §§ 123–124.
fn2121) We can refer even to a judgement of the Supreme Court of Canada: “The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.” Manitoba Language Rights, (1985) 1 S.C.R. p. 744.
fn2222) L. Green, ‘Are Language Rights Fundamental?’, in 25:4 Osgoode Hall Law Journal (1987) pp. 650–669.
fn2323) Ibid., p. 651.
fn2424) A. Carr, ‘Is Business Bluffing Ethical?’, 46 Harvard Business Review 46, (January/February, 1968) pp. 143–144.
fn2525) Such comparisons do not occur in the argument reviewed. Instead, we read the following conclusion: “The interest in language, genuine as it is, takes root and flourishes only late in the process of political development. It cannot be doubted that the familiar democratic rights and rights to welfare are higher on the scale of moral importance. But the fact that some other rights may win out in case of conflict casts no doubt on the foundations of language rights themselves, nor does it support any special view about their force in cases where no such conflicts are. Thus, even if language rights are, as the Supreme Court says, fundamentally rights of political compromise, they may for all that be compromise rights of a fundamental sort.” Green, supra note 22, p. 669.
fn2626) J. Rawls, A Theory of Justice (Belknap, Harvard, Cambridge, 1971) p. 206.
fn2727) For comparison see ibid., pp. 206–207.
fn2828) When we speak about a derived language right here, we mean a language right that derives from a non-linguistic human right and comprises an element of the content of that non-linguistic human right. Conversely, when we speak about an original language right, we mean a language right that does not derive from a particular non-linguistic human right. In this sense, this language right is original. However, this language right is not original in that sense that it derives from the whole set of non-linguistic human rights, i.e. from the whole doctrine.
fn2929) De Varennes also disagrees with the view that language rights belong to some ‘new’ generation of rights. This view, he writes, “tends to consider language rights as less deserving than “real” human rights”. De Varennes in Ó Riagáin, supra note 6, p. 7.
fn3030) The reason why we restrict these objections to the language right out of the three rights recognised by Article 27 is not only that language rights comprise the focus of this article. The theoretical reason is that the Covenant recognises the right of persons belonging to religious minorities to profess and practise their own religion in a universal couching too in Article 18 as the right of all to freedom of religion. This applies, to a certain degree, to the third right recognised in Article 27, i.e. to the right of persons belonging to ethnic minorities to enjoy their own culture. Although the drafting of the corresponding universal right is questionable, the right itself is recognised in Article 15 of the International Covenant on Economic, Social and Cultural Rights. However, none of the two Covenants recognise the language right set out in Article 27 in such a universal couching and this causes the real inconsistency in relation to Article 27 of the International Covenant on Civil and Political Rights.
fn3131) For example, Thornberry points out that “[f]aithful to the tradition of human rights, the Covenant on Civil and Political Rights recognizes the universality of the listed rights – they apply to ‘every human being’, ‘everyone’, ‘all persons’”. However, he fails to point out that this is not true of the rights listed in Article 27: these rights apply only to “persons belonging to ethnic, religious or linguistic minorities”. Thornberry, supra note 7, p. 170. Similarly, de Varennes, who devotes much attention to whether or not right-holders of the rights recognised in Article 27 include non-nationals, fails to raise the question of why persons belonging to the linguistic majority, be either nationals or non-nationals, are excluded from the definition of the right holders given by Article 27 of the Covenant. De Varennes, supra note 8, pp. 136–140. At the same time, Tomuschat put the right argument, but he raised it in a specific context only and, in any case, he failed to apply the argument to the drafting of Article 27 itself: “If and when a State provides financial support to members of majority groups in respect of activities coming within the scope of Art. 27, it is then required by virtue of the principle of non-discrimination to extend analogous treatment to persons belonging to an ethnic, linguistic or religious minority since non-discrimination applies to each and every right enshrined in the CCPR.” C. Tomuschat, ‘Protection of Minorities under Article 27 of the International Covenant on Civil and Political Rights’, in R. Bernhardt, G. Jaernicke, W. Geck and H. Steinberger (eds.), Völkerreicht als Rechtsordnung Internationale Gerichtsbarkeit Menschenrechte. Festschrift für Hermann Mosler (Springer-Verlag, Berlin, 1983) p. 970. Tomuschat added that Thornberry also provided an analogous consideration in his ‘Is There a Phoenix in the Ashes?’ in 1981. Cf. p. 970.
fn3232) Thornberry, who presents and discusses the travaux preparatoires in detail while interpreting Article 27, does not mention any claim directed to add persons belonging to linguistic majorities to the right-holders of the linguistic right set out in Article 27. Ibid., pp. 141–206.
fn3333) Discussing the UNESCO Declaration on Race and Racial Prejudice, Thornberry mentions that the corollary of the right to be different, i.e. “the right to maintain cultural identity”, is reminiscent to Article 27 of the Covenant, though the UNESCO Declaration “applies to all groups and not only minorities”. Then he comments this difference between the right-holders of the respective definitions: “In practice, of course, dominant majority groups holding political power will avail themselves of the right without support of international human rights law”. Ibid. p. 293.
fn3434) Proponents of such an article were Denmark, the USSR and Yugoslavia.
fn3535) United Nations A/RES/3/217 C General Assembly Fate of Minorities, 10 December 1948.
fn3636) A memorandum submitted by the Secretary-General shows that the Secretariat was fully aware of what the universal nature of the Declaration implies: “Article 2 and 7 of the Declaration not only proclaim the principle prohibiting discrimination; this principle permeates the whole of the Declaration. It is expressed in the preamble and in every article in such terms as: ‘all human beings’, ‘everyone’, ‘no one’, ‘all’ etc.” The Main Types and Causes of Discrimination, UN Doc E/CN.4/Sub.2/40/Rev.1, p. 4.
fn3737) Study of the Legal Validity of the Undertakings Concerning Minorities, UN-Doc. E/CN. 4/367, 1950.
fn3838) C. Inis, National Minorities: An International Problem (New York, Greenwood, 1955) p. 163.
fn3939) Ibid., pp. 164–165.
fn4040) The Main Types and Causes of Discrimination, supra note 36, p. 3.
fn4141) United Nations General Assembly Official Records, Document A/2929, New York, 1955, para. 183.
fn4242) This argument goes back to the League of Nations era, in particular, to the distinction between equality “in law and in fact”. For example, Article 8 of the Polish Minorities Treaty stipulates that “Polish nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Polish nationals. In particular, they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein.” Thornberry, supra note 7, p. 401.
fn4343) A basic source for these considerations and interpretations, as already mentioned, was the Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities by F. Capotorti. See supra note 3.
fn4444) As already seen, this means that the right holders do have the right to their own language and the use of it.
fn4545) As already mentioned, a kind of double recognition occurs, to a certain extent, in relation to the third right recognised in Article 27 of the Covenant, too. This third right is the right to one’s own culture. Article 27 recognises this right as a minority right, in particular as the right of persons belonging to minorities to enjoy their own culture, whereas Article 15 of the International Covenant on Economic, Social and Cultural Rights recognises it as a universal cultural right, “the right of everyone to take part in cultural life”, etc.
fn4646) This does not mean that the relationship between the two articles remained unproblematic: this relationship was sometimes referred to in the debate over the interpretation of Article 27. For example, Thornberry notes that “Article 27 must oblige the State to provide something more than is provided by Article 18; otherwise Article 27 is redundant”. Thornberry, supra note 7, p. 193.
fn4747) The Inter-American Juridical Committee, when endorsing the idea of an international bill of rights in 1944, suggested that if such an instrument is “sufficiently comprehensive” it might “preclude the necessity of making provision for the protection of minorities in countries where there are large minority groups that have long possessed a separate national character” (Inis, supra note 38, p. 75.) In the second half of the 1940s a most influential supporter of human rights was Mrs. Roosewelt who strongly opposed the inclusion of a minority article into the Declaration. She held, inter alia, that “the best solution of the problem of minorities was to encourage respect for human rights”. Thornberry, ibid. p. 136. The standpoint of the UN was close to but not identical with this opinion at the time of the drafting of the Declaration. The “United Nations has not committed itself directly to the theoretical position that the minority problem has been wholly absorbed into the larger problem of human rights, losing its status as a distinct issue calling for separate treatment”. Inis, ibid. p. 154.
fn4848) According to Sieghart “all human rights exist for the benefit of individuals who are weak, and who need protection from oppression, persecution, exploitation and deprivation by those who are strong. If their weakness derives (as it usually does) from some difference which distinguishes them from the dominant group they will see themselves, and be seen by their oppressors, as a minority, regardless of how many of them there are. In that sense, therefore, all human rights exist for the protection of minorities.” P. Sieghart, The Lawful Rights of Mankind (Oxford University Press, Oxford, 1985) p. 168. Dienstein holds a similar standpoint in relation to religious minorities: “While freedom of religion (in all its facets) is guaranteed to everyone, experience demonstrates that those who need it most are members of religious minorities.” Y. Dienstein, ‘Freedom of Religion and the Protection of Religious Minorities’, in Y. Dienstein and M. Tabory (eds.), The Protection of Minorities and Human Rights (Martinus Nijhoff Publishers, Dordrecht, 1992) pp. 154–155.
fn4949) What individual language rights, including freedom of language, do not cover within the language question is primarily the issue of collective language rights or linguistic group rights; these rights and the controversial issue of their recognition are beyond the scope of this article.
fn5050) For example, the reasoning of Fernand de Varennes reads as follows: “[T]he argument that language does not really affect the substantive right to freedom of expression, as long as one has an accessible language in which to express one’s opinion, would appear fallacious … Logically, if one can freely express an opinion or idea through a particular style of art, a nonverbal medium, one can also express an opinion or idea through another particular medium, a specific language. To maintain that allowing an individual to express himself in only the English language, for example, has no effect on his freedom of expression is like saying an artist may paint anything as long as the style utilised is abstract, and that such a restriction in no way infringes on the artist’s freedom of expression”. De Varennes, supra note 8, p. 48. For a similar argument combined with the principle of non-discrimination see Gy. Andrássy, Nyelvi jogok, (Language Rights) (Janus Pannonius Tudományegyetem, Pécs, 1998) pp. 84–89.
fn5151) For example, Article 9 of the Framework Convention sets out that the “Parties undertake to recognise that the right to freedom of expression of every person belonging to a national minority includes freedom to hold opinions and to receive and impart information and ideas in the minority language, without interference by public authorities and regardless of frontiers”.
fn5252) Naturally, when universalising these rights not only persons belonging to the linguistic majority but persons belonging to those linguistically concerned minorities that are not national minorities must also be taken into consideration.
fn5353) The limits may not always be categorical. For example, some States Parties provide the opportunity for education in mother tongue for speakers of non-official languages not in the whole territory of the state. Furthermore, it seems that no State Party objects to studying in mother tongue in another country.
fn5454) Instead of or in addition to the legal institution of official language, the legal institution of national language and state language also exist in the legal systems of the States Parties. Nevertheless, in this article we limit our analysis to the institution of official language and, for the sake of simplicity, we will use the term ‘official language’ for national and state languages as well.
fn5555) This difficulty had already been realised and expressed in various ways much before the recent debates. The earliest note in all probability was made on it in the preamble of the Act XLIV on the Subject of Equality in National (Ethnic) Rights adopted by the Hungarian Parliament in 1868. See Magyar Törvénytár, Vol. I, 1000-1873, Franklin Társulat, Budapest, 1912. pp. 422–427. For a short outline in the English language literature on the issue of this difficulty and its possible solutions before 1991, see J. Pool, ‘The Official Language Problem’, in 85:2 American Political Science Review (1991) pp. 495–497.
fn5656) He must have this right, otherwise he may be punished for complying with his legal obligation, which would be in sharp contradiction to the whole concept and logic of law. Therefore, if someone has a legal obligation to do something, he must have, conceptually, the legal right, too, to do the same thing.
fn5757) We call this legal right implicit language right as the law recognises it implicitly, by the mere adoption of an official language on the one hand, and, as the law does not recognise it explicitly in most cases at all on the other. That is, the right in question derives from the legal institution of official language, but it does not comprise, in most cases, an explicit element of the legal system. It must be noted that this implicit language right is not the only one that derives from the legal institution of official language. For a more detailed analysis on the issue, see Andrássy, supra note 50, pp. 31–48.
fn5858) To make all of the languages used in the country official is not enough. That is to say, some native speakers of all the remaining languages spoken in the world may come to the country as investors or tourists or may become immigrants in the country, and the equal right to freedom of language would require that they also enjoy the right to use their languages as official languages.
fn5959) Such an option is not only imaginable but comprised reality in many European countries for centuries in the Middle Ages and afterwards, when Latin was used for official purposes. Nevertheless, Latin was not a completely neutral language as it belonged to a particular language family.
fn6060) Esperanto is not a completely neutral language as it is based mainly on Indo-European languages.
fn6161) Nevertheless, if the States Parties spent a significant part of the money they spend now on foreign language teaching on teaching of Esperanto or another nearly neutral language, they would probably be able to overcome the obstacles of the introduction of such a language as official language in a reasonable period. Nevertheless, such a neutral language must not become the language of public education and may not become the sole official language in a narrower sense, either. That is, to make such a neutral language official could further moderate but it could not eliminate inequality in rights relating to official languages.
fn6262) Thornberry draws a similar conclusion: “From the point of view of the minority, however, the selection of a particular language as official may place members of the minority at a disadvantage; it would seem incumbent upon the State to ensure that this disadvantage is, as far as possible, eliminated”. Supra note 7, pp. 199–200.
fn6363) The question of whether immigrants do have a moral right to claim official status for their languages in a receiving state and, conversely, the rights of individuals of the receiving state in relation to such a possible claim are debated in the recent literature in political philosophy and political theory. An influential solution to this problem is the ‘consent theory’, which is usually associated with W. Kymlicka’s Multicultural Citizenship (Clarendon Press, Oxford, 1995). It is worth noting, however, that the view was widely known and applied by states much before. For example, such a preceding form of the view from 1960 distinguished ‘minorities by will’ i.e. voluntary minorities and ‘minorities by force’. See Thornberry, supra note 7, pp. 9–10. Anyway, the point of the theory is that immigrants give their consent to ‘wave’ their right to claim official status for their languages in the receiving society. This theory has recently been criticised in various ways; however, the basic assertions seem to be defendable. For more details see A. Patten, ‘Who Should Have Official Language Rights?’, in Supreme Court Law Review (2006). In any case, this philosophical debate appears to support the dividing line laid down in this article between the rights of those non-immigrant individuals whose language is traditionally used in their country and the rights of those whose language is not traditionally used in their country for official status for their languages.
fn6464) Some problems may arise even in such cases; good examples are, in relation to European Community Law Case 137/84 (1985) ECR and Case C-274/96 (1998) ECR.
fn6565) It must be noted that this definition of the right-holders is, to some extent, changed, simplified or refined in the proposed amending article by determining these right-holders as citizens of the respective country. This drafting corresponds to the definition of the right-holders of political rights given first in Article 21 of the Declaration and then in Article 25 of the Covenant.
fn6666) A similar dividing line appears in political philosophy, too, e.g. in Kymlicka’s differentiation between ‘national minorities’ and ‘ethnic groups’ and his corresponding theory on ‘multinational’ and ‘polyethnic’ countries, as well as the respective right-claims. Kymlicka, supra note 63, pp. 10–33.
fn6767) See Thornberry, supra note 7, pp. 331–338 and de Varennes, supra note 8, pp. 250–274. Simultaneously, the UN Declaration on the Rights of Indigenous Peoples of 2007 also proclaims rights that provide, in certain fields, some quasi-official status for indigenous languages and make it possible to extend this status.
fn6868) The Sámi indigenous language used in some parts of Finland is not recognised as an official language but the Sámi Language Act of 2003 provides regulations which make this language in practice a co-official language.
fn6969) The most frequent discussion on the issue is likely to take place in the European Union and there are always some who consider the same cost high or low. See for example A. Forrest, ‘The challenge of languages in Europe’, No. 3 Terminologie et Traduction (1998) p. 107, and E. Wagner, ‘Quality of Written Communication in a Multilingual Organisation’, No. 1 Terminologie et Traduction (2000) pp. 5–11.
fn7070) Pool elaborated a scheme of assumptions within which he analysed the issue fairly and effectively. Nevertheless, he did not count with the legal institution of regional and local official languages and some other factors that seem to be important today. Therefore, such a careful analysis today can and ought to complement and change his assumptions. Pool, supra note 55, pp. 497–514.
fn7171) This issue of contrasting costs with rights and principles, e.g. with the principle of equality, arises naturally on European Union level, too. For an analysis of this issue see B. de Witte, ‘Language Law of the European Union: Protecting or Eroding Linguistic Diversity?’, in R. C. Smith (ed.), Culture and European Union Law (Oxford University Press, Oxford, 2004) pp. 219–224.
fn7272) The Report of the Unesco Meeting of Specialists of 1951 defined official language as follows: “A language used in the business of government – legislative, executive and judicial.” See The Use of Vernacular Languages in Education, UNESCO, ED. 57. III. 8aA Paris, 1953. p. 46.