The right to education and minority language

The author is Senior Lecturer in Human Rights and International Law at Murdoch University, Australia, and Senior (Non-resident) Researcher at the European Centre for Minority Issues (ECM), Flensburg, Germany.

This article is largely based on two previously published documents: A Guide to the Rights of Minorities and Language (2001), Constitutional and Legal Policy Initiative (COLPI), Budapest, Hungary, and A. Morawa, ed., “Using the European Court of Human Rights to Protect the Rights of Minorities” in Handbook on the Implementation of Minority Rights, Council of Europe, Strasbourg, France, 2004 and European Yearbook of Minority Issues, Flensburg, Germany.

Introduction

Human rights are based on the acknowledgement and acceptance of the human person in all of his or her diversity. International human rights such as non-discrimination, freedom of expression and religion and others are all founded on the recognition of the intrinsic value of the human person's dignity and worth. These rights are based on tolerance of human differences, such as linguistic and religious differences, and respect and recognition of human diversity. To deny minority individuals access to certain benefits, or to disadvantage them because of their religion or language is - under certain conditions - no longer permissible.

That is what could be described as the basic premise of the right to education in a minority language which can be said to exist in circumstances where to refuse to provide public education in a particular language could be said to be unreasonable or unjustified – and therefore discriminatory.

As is shown in this article, this does not mean that any minority demand for education to be provided in a specific language is automatically a violation of human rights, regardless of the costs or practical difficulties this may raise. It appears to be increasingly understood that there must be a balance between the different interests involved, such as those of individuals whose educational potential may be disadvantaged by a government’s linguistic preferences, as well as the interests of the legitimate State interests and concerns such as those of a practical nature where a State tries to provide services in minority languages but may be restricted because of the lack of financial or human resources.

Basis for claiming use of a particular language in education

When there are a sufficient number and concentration of speakers of a language at the national, regional or local levels, there is a right to have public authorities provide an appropriate degree of service in this language. For example, in local administrative districts where speakers of a language are concentrated, local authorities must generally provide for an increasing level of services in their language as the number of speakers of a particular language increases. Basically, this means that the degree of use of a language must be “proportionate” to the relative importance of the numbers of a language. Proportionality means the more people speak a language, the more officials should provide public services in this language, as far as is reasonably possible.

The above situation would normally occur where State authorities refuse to use a minority language, and it is usually associated in various international instruments as a “minority right”. However, there have been cases where State authorities refuse to use the language of a majority, though this would probably only occur where the linguistic majority has been excluded from political power, as occurred in Rhodesia and Apartheid-era South Africa. Ironically, it has also occurred in Europe, as explained later in this article in the recent context of Cyprus.

This right is not a collective right: it is not a right that any group can assert successfully. It is in fact an individual right based on the application of non-discrimination on the ground of language. As indicated recently by the United Nations Human Rights Committee, [1] the exclusive use of a language by public officials – even the official language of a State - can be discriminatory unless it is justified in the circumstances. Especially if it is simple to provide some degree of services in a language spoken by a substantial or territorially concentrated number of individuals, the refusal to do so could be deemed unreasonable and unjustified, and therefore discriminatory.

Language of Choice and Disadvantage in Education

• Therefore, it seems better to me, if it seems likewise to you, that we turn some books which are most needful for all persons into the tongue which we can all understand; and that you act…to the end that all the youth now in England…apply themselves to it…until the time when they can read English writing well: let those afterwards be instructed further in the Latin language.--Alfred the Great [2]

Children are not simply linguistic blank slates when they enter a school. In probably the closest thing possible to expert unanimity (as opposed to political and popular pronouncements), [3] it is recognised that instruction in the mother tongue is, at least at the initial levels to education, the most effective way to educate students. In other words, to educate children in a language with which they are less familiar is unfavourable to them. Such a disadvantage can in some circumstances be discriminatory if public authorities could reasonably accommodate this disadvantage by providing some degree of use of the language in question.

The point should not be underestimated. A State’s decision to adopt an exclusive language as medium of instruction virtually guarantees that children with limited or no proficiency in the chosen language – usually minorities – will endure serious disadvantages and fall behind as they either struggle to keep up or simply withdraw into a world of their own. [4]

Public Education and Minority Languages

• Does not the sun shine equally for the whole world? Do we not all equally breathe the air? Do you not feel shame at authorizing only three languages and condemning other people to blindness and deafness? Tell me, do you think that God is helpless and cannot bestow equality, or that he is envious and will not give it?--Constantine the Philosopher (Cyril), Ninth Century A.D. [5]

The European Convention and Human Rights

Until recently, particularly in Europe, there has been the widespread – and mistaken – belief, that there is absolutely no right to education in a minority language under traditional human rights treaties such as the European Convention on Human Rights and Fundamental Freedoms.

Many have referred to the decision of the European Court of Human Rights in the Belgian Linguistic Case [6] as concluding that the State has the absolute and unqualified right to determine the official language of instruction in public schools and denied that a right to education in a particular language existed under Article 2 of Protocol (the right to education), even in combination with the prohibition of discrimination (article 14).

This interpretation is in fact an incorrect reading of the decision, since what the European Court actually said was that, given the social and political context at the time in Belgium, the overall linguistic regime which mainly included mono-ilingual Dutch (and French) -language territories for purposes of public schooling was not arbitrary, and therefore was not discriminatory.

This meant that had some aspects been arbitrary, even if it involved an official language, then it would have constituted discrimination under Article 14 applied to Article 2 of the First Protocol. In essence, this is the same reasoning used recently by the United Nations’ Human Rights Committee [7]

Interestingly, the European Court of Human Rights seemed to indicate that public education may automatically be required in a particular language, in “unusual circumstances”, even if at first reading Article 2 of the First Protocol is silent on any linguistic dimension to the right.

In Cyprus v. Turkey, [8] the linguistic policies of Northern Cyprus authorities in the area of public were essentially described as so inadequate in view of the circumstances as to constitute a violation of the Protocol.

The Court noted that children of Greek-Cypriot parents in northern Cyprus wishing to pursue a secondary education through the medium of the Greek language were obliged to transfer to schools in the south, though children could continue their education at a Turkish or English-language school in the north.

Until recently, most experts on “minority rights” had assumed that this would be the end of the matter. The European Court, however, went further:

• 277. In the strict sense, accordingly, there is no denial of the right to education, which is the primary obligation devolving on a Contracting Party under the first sentence of Article 2 of Protocol No. 1 .… Moreover, this provision does not specify the language in which education must be conducted in order that the right to education be respected …
• 278. However, in the Court’s opinion, the option available to Greek-Cypriot parents to continue their children’s education in the north is unrealistic in view of the fact that the children in question have already received their primary education in a Greek-Cypriot school there. The authorities must no doubt be aware that it is the wish of Greek-Cypriot parents that the schooling of their children be completed through the medium of the Greek language. Having assumed responsibility for the provision of Greek-language primary schooling, the failure of the “TRNC” authorities to make continuing provision for it at the secondary-school level must be considered in effect to be a denial of the substance of the right at issue. It cannot be maintained that the provision of secondary education in the south in keeping with the linguistic tradition of the enclaved Greek Cypriots suffices to fulfil the obligation laid down in Article 2 of Protocol No. 1, having regard to the impact of that option on family life (see paragraph 277 above and paragraph 292 below). […]
• 280. Having regard to the above considerations, the Court concludes that there has been a violation of Article 2 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in so far as no appropriate secondary-school facilities were available to them.

Admittedly, the logic used by the European Court is not at first glance very satisfying. It admits on the one hand that Article 2 of Protocol No. 1 is devoid of a linguistic component, but then says there is a linguistic component for secondary education because authorities in Northern Cyprus provided Greek-language primary education, and therefore to stop offering it after primary school “negated” the right to education.

What the latter has to do with the non-existent linguistic component of Article 2 of Protocol No. 1 is never made explicit. The overall result would have made much more sense if the European Court had stated more clearly what it possibly intended, in line with its previous reasoning in the Belgian Linguistic Case, that in light of the circumstances, the restrictions on public education in the Greek language in Northern Cyprus were unreasonable and unjustified because they were so blatantly inappropriate, and therefore discriminatory.

It is probably in this way that the judgment should be properly understood: otherwise, if the main reason - the absence of Greek language secondary education - was in breach of the right to education under Article 2 of Protocol No. 1, it would mean that the authorities of Northern Cyprus could avoid this human rights violation by simply abolishing all education in Greek: this is unlikely to be the direction and spirit of tolerance and inclusion the European Court had in mind.

Education in minority languages in other instruments

In addition to the human rights aspect of the right of education in a minority language in appropriate circumstances, it is increasingly accepted in treaties and other documents dealing with the rights of minorities that where justified or reasonable, a minority language must be used to some degree as medium of instruction in public schools. [9]

These various documents all acknowledge that public education in a minority language must not exclude instruction of the official or majority language. Members of a minority must be able to learn the official language to a reasonable degree of fluency, since to do otherwise would run the risk of excluding minorities from employment or educational opportunities, as well as isolating them from participation in the wider society. This would in turn constitute a discriminatory policy under existing international human rights standards.

It would seem therefore that members of a minority have, at minimum, the right to be taught their language in public schools where practical and justified, even if their numbers are not sufficient for the use of their language as medium of instruction in public schools.

There is no clear guidance as to when such a right arises. The most detailed treaty in this area, the European Charter for Regional or Minority Languages, indicates simply that the numbers must be “sufficient” for this purpose. This could suggest that the mere presence of one or a handful of pupils in a region would not automatically give rise to a right to be taught a minority language in a public school. However, in light of the many international and European instruments which generally refer to a State’s obligation to protect and promote the language (and culture) of minorities, it would seem that what is “sufficient” should be interpreted in a generous and flexible way, and that the number of pupils required in order to be able to claim the right to be taught the minority language should be quite small if a State’s resources make it reasonably practical to accommodate them.

Private Education and Minority Language

Public authorities cannot forbid the establishment or operation of private schools from teaching a minority language or using a minority language as medium of instruction. This is a right which has been recognised in treaties even before the creation of the United Nations. [10] There is widespread recognition of this right in legal and political documents, despite some differences in the way it is formulated. [11] All of the legal and other documents usually add that public authorities may impose the obligation that all students learn the official language up to a reasonable level of fluency. [12]

If public authorities provide assistance to private schools, minority educational facilities would also have to be treated in a non-discriminatory, though not necessarily identical, manner. [13] This means that public authorities must either cease assisting all private schools, or provide assistance to private minority schools teaching in a minority language without discrimination. [14] This has been confirmed, indirectly, in a recent decision of the UN Human Rights Committee addressing a complaint from a religious minority in Canada:

• …[T]he Committee notes that it is not possible for members of religious denominations other than Roman Catholic to have their religious schools incorporated within the public school system… [T]he Committee considers that the differences in treatment between the Roman Catholic religious schools, which are publicly funded as a distinct part of the public education system, and schools of the author’s religion, which are private by necessity, cannot be considered reasonable and objective… [P]roviding funding for the schools of one religious group and not for another must be based on reasonable and objective criteria… [T]he Committee concludes that…the differential treatment between the Roman Catholic faith and the author’s religious denomination is [not] based on such criteria. Consequently, there has been a violation of the author’s rights under article 26 of the Covenant to equal and effective protection against discrimination. [15]

The same reasoning would also apply in the case of private schools teaching in a minority language.

Conclusion

• It cannot be denied that the business of government is easier in a monolingual than a multilingual nation. However, it does not follow that legislation or school policy requiring the use of the official language at all times will give the same results as actual mono-lingualism. On the contrary, it is fairly likely that absolute insistence on the use of the national language by people of another mother tongue may have a negative effect, leading the local groups to withdraw in some measure from the national life. In any event, it seems clear that the national interests are best served by optimum advancement of education, and this in turn can be promoted by the use of the local language as a medium of instruction, at least at the beginning of the school programme. [16]

Minority language education is more of an asset than it is a liability when understood and applied properly. It is not a right which is applicable in every situation where one individual simply demands it. It is rather a result that is consistent with the values of respect for diversity, tolerance and accommodation - rather than rejection - of differences which have become cornerstones of most democratic societies.

Where reasonable, it is therefore appropriate to address the disadvantages that can be encountered by children for whom the majority or official language is not the mother tongue. This means that public authorities may have to provide a proportionate use of a minority language as medium of instruction in public schools as justified in the circumstances, especially in light of the number of individuals affected and the practicalities of the situation.

This clearly emanates as a growing consensus in more recent treaties and other instruments dealing with national minorities and regional languages in the Council of Europe, the OSCE and the European Union institutions.

Footnotes

[1] United Nations Human Rights Committee, Communication No. 760/1997, Diergaardt v. Namibia, views of 25 July 2000.

[2] Harold A. Innis, Empire ad Communications, Press Porépic, Victoria, Canada, 1986, p. 130.

[3] See among many C. Kennedy, ed., Language Planning and Language Education, Unwin Publishers, London, 1983, p. 165, and The Use of Vernacular Languages in Education UNESCO, Paris, 1953, p. 69.

[4] T. Skutnabb-Kangas, Bilingualism or Not: The Education of Minorities, Clevedon, Avon, United Kingdom, 1990, p. 309.

[5] Quoted in Joshua A. Fishman, ed., Readings in the Sociology of Language, Mouton and Co. N.V. Publishers, The Hague, 1968, p. 589.

[6] Cases relating to certain aspects of the laws on the use of languages in education in Belgium, Judgment of 23 July 1968, Series A, No. 6.

[7] Human Rights Committee, Communication No. 760/1997, Diergaardt v. Namibia, views of 25 July 2000.

[8] European Court of Human Rights, Cyprus v. Turkey, Judgment of 10 May 2001 (Grand Chamber)

[9] For example, Article 14 of the Framework Convention for the Protection of National Minorities; Article 8 of the European Charter for Regional or Minority Languages; Article 4 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; and Article 17 of the Central European Initiative Instrument for the Protection of Minority Rights. Non-binding documents confirming this include: Paragraph 12 of the Recommendation 1134 (1990) on the Rights of Minorities; Paragraph 8 of the Recommendation 1201 (1993) on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights; Recommendations 11-16 of The Hague Recommendations regarding the Education Rights of National Minorities; and Section IV of the Report of Experts on National Minorities.

[10] See for example Advisory Opinion on Minority Schools in Albania, (1935) Permanent Court of International Justice, Series A/B, No. 64, 3, at p. 17.

[11] Article 13 of the Framework Convention for the Protection of National Minorities and Article 16 of the Central European Initiative Instrument for the Protection of Minority Rights. Non-legal documents which clarify this right include paragraph 32.2 of the Document of the Copenhagen Meeting of the Conference on the Human Dimension; paragraph 11(ii) of Recommendation 1134 (1990) on the Rights of Minorities; Article 8(2) of Recommendation 1201 (1993) on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights; and Recommendations 8 and 9 of The Hague Recommendations Regarding the Education of National Minorities and Part IV of the Report of Experts on National Minorities.

[12] Article 14 of the Framework Convention for the Protection of National Minorities and Article 17 of the Central European Initiative Instrument for the Protection of Minority Rights. Though not binding, Recommendations 12 and 13 of The Hague Recommendations regarding the Education of National Minorities and paragraph 34 of the Document of the Copenhagen Meeting of the Conference on the Human Dimension are also relevant.

[13] See the non-binding Recommendation 10 of The Hague Recommendations regarding the Education of National Minorities.

[14] The Human Rights Committee did not say that non-discriminative was limited to "negative discrimination". In fact, its decision left open the exact manner by which Canada could comply with non-discrimination: whether this could be done by stopping all funding of private schools ("negative discrimination"), or whether it required "positive discrimination" by providing funding to all private schools. This decision confirms that non-discrimination in international law mandates neither negative nor positive discrimination: it simply requires ending discriminatory practices by most appropriate means.

[15] Waldman v. Canada, Communication 694/1996, Decision of 3 November 1999.

[16] The Use of Vernacular Languages in Education UNESCO, Paris, 1953, p. 693.