The Linguistic Human Rights paradigm (LHR)

LG474 notesLanguage Rights

Peter L PatrickUniv of Essex

Terminology “LHR” is a term widely identified since 1980s w/a

certain school or approach to language rights• Best-known exemplar: Tove Skutnabb-Kangas• Others: Eduardo Hernández-Chávez, Miklós

Kontra, Stephen May, Robert Phillipson, etc. I use LHR to refer to this position, as is common It has attracted critics in recent years:

• Eg Jan Blommaert, Monica Heller, Alastair Pennycook, J Freeland & D Patrick book etc.

I’ll use Language Rights/LR as neutral/inclusive

Development of Human Rights Negative rights: equal protection of laws, national self-

determination, freedom of speech/opinion & from tyranny• Universal Declaration of Human Rights, UN Charter (1940s)

Move towards positive rights: protection of minorities, freedom from discrimination, educational & economic rights, maintenance of identity, full civic participation• Conventions on.. Discrimination, Civil & Political Rights (1960s)

Decentralisation, special measures for endangered groups• Rights of Child, Oslo Recommendns, Indigenous Peoples (1989+)

Civil rights/national context > Universal HR/global context

Development of Language Rights Language as one basis for fundamental freedoms:

• “w/o distinction as to race, sex, language or religion” etc• Non-discrimination but w/o interest in language rights per se

Language as instrumental to delivery of other rights:• Be informed of charges, have interpreter assistance (CCPR)

Language as inalienable community/cultural property• Linguistic minorities’ rights to use their own language (CCPR)

• Right to take part in cultural life (ESCR), respect for child’s language and identity (CRC), detailed minority LRs

Language rights that are explicitly recognized in international law

Legal positivism: HRs are what the laws say they are Those recognized in international treaties which are

legal instruments, such as: International Covenant on Civil and Political Rights, International Covenant on Economic, Social and

Cultural Rights, UN Declaration on the Rights of Persons belonging to

National, Ethnic, Religious &Linguistic Minorities European Convention on Rights of National Minorities

Language rights explicitly recognized in national law

Provisions related to language in national constitutions• use of a language the individual understands in relation to

arrest, detention, and criminal charges (Jamaica 1962)• declaration of national languages, official languages and

territorially-limited official languages • (eg Malaysia 1957: Malay, Malay/English, any native

language in current use in the state of Sabah or Sarawak)• equality before the law w/o discrimination due to language

(eg Iraq 1970 Interim Constitution)• legislate multilingualism in balanced/equitable fashion (eg

South Africa 1994)

Basic patterns of language rights UN Sub-Commission on the Prevention of Discrimination and

Protection of Minorities (1967) found 4 basic patterns  1. All the languages spoken by the main linguistic groups are

given official status.• Switzerland; Belgium; Singapore (Diglossia)

2. Some minority languages designated official languages• Canada, Finland, New Zealand, Israel• Quebec passed restrictive legislation to protect French, but

Charter of the French Language was found to infringe on freedom of expression and struck down (Del Valle 2003 338-9)

• CSC did suggest that instead of exclusive use of French, requiring bilingualism would be constitutional

Basic patterns of language rights II 3. Some minority languages are granted official status but

only at a regional level.• Exs: Italy, Nigeria, Austria, Ghana, Iraq (Kurdish)

4. Minority languages are refused official status, but their status is protected in part via constitutions, treaties, national legislation• USA, Poland, Denmark, Sweden, Denmark, Bulgaria, Sri Lanka

A 5th case not noted by the UN Sub-Commission, where majority languages are not recognised as languages:• Ex: Jamaican Creole – constitution recognises minimal

guarantees in context of criminal prosecution – de facto not available in Creole

HR: Law or Morality? So, some Human Rights are already embodied in these

international legal instruments – ‘the law’ as it is Other HRs are ‘aspirational’ or ‘normative’ – not part of

law now, but ‘what should be’ – what people are justly entitled to, or governments should (not) do

Law carries greater weight than morality, but it is also intended to be normative – to express ‘what should be’ – a society’s view, at a point in history

Many so-called language rights are not (yet) legally guaranteed, but merely aspirational (at present)

They may be(come) accepted as norms against which legal situations & policies can be evaluated

Rights that are NOT guaranteed non-legally-binding international/NGO-authored documents:

• the Hague Recommendations Regarding the Educational Rights of National Minorities

• intends to influence existing legal standards & recommends specific state practices in area of minority language education

the 1996 Universal Declaration of Linguistic Rights • “aims to encourage the creation of a political framework for linguistic

diversity based on respect, harmonious coexistence mutual benefit”• urges the UN to set up legal and consultative bodies

Some areas remain unclear General problem: do minority language speakers have

rights to use their ML in public functions? Eg schools Do states have an obligation to provide public services,

benefits and privileges in minority languages?• some legal experts say only national minorities have such rights• some believe it is an emerging standard, and• others believe it is well-established in international law.• See constitutions of PR China, Art. 134; Estonia, Art. 51-2

Weaker view: only states which are signed up to legally-binding treaties are obliged to recognize such rights.

(de Varennes)

Individual vs Collective Rights, I Classic liberalism is universalist: no idea of

person as culturally located, no private identity Personal autonomy always comes before group

• Problem: Language can only be maintained in groups Communitarianism: Language is a communal

good by nature, integral to individual identity• Justice b/w groups requires groups to hold diff. rights• Problems: What constitutes a group? Fluidity of identity

(also key problems for the Speech Community concept)

Individual vs Collective Rights, II L(H)Rs often contested, poorly implemented

• Political theory= sceptical of LRs as collective Rs Tolerance-oriented LRs (Kloss 1977): non-interference by state

in private domain; widely accepted (see also Schiffman 1996, www)

• Still an issue for Kurds in Turkey, in Tibet, etc.• Tolerance requires political will, is often unofficial, can expire

Promotion-oriented LRs: use by minority in public Group-differentiated LRs (Kymlicka): vested in individual but

don’t privilege group over individual• Canada: indiv. right to use French; Quebecois group right to

preserve/promote French in face of English dominance• Shift under pressure (eg Irish Eng) makes this a problem

The Universal Declaration of Linguistic Rights

UDLR has clear exs. of aspirational LHRs:• www.linguistic-declaration.org/index-gb.htm• Art. 3.2 calls for “equitable presence” in mass media• Art. 8 calls for resources to ensure lang. maintenance• Art. 17 calls for translation of all official documents

But some are widely established legal rights:• Art.20 Right to trial interpreting in one’s own language

UDLR was presented to UNESCO in 1996 w/the aim of leading to a UN International Convention• This has not happened (yet) and may not

UDLR as communitarian LHR? Liberal view vests rights w/the individual,

• Protects individual against domination by collective,• Supports democracy to integrate the two justly.

UDLR supports collective LRs of language communities in harmony w/individual rights:• Languages are constituted within communities, and that’s where

individual use of them occurs.• LRs must be provided collectively, then, in order that individuals

can choose to exercise them. LHR seeks to have some LRs recognized as universal HRs

(as in UDLR) & applied to evaluate real cases of law & policy. LHR seeks to identify equitable conditions for languages &

speakers, and to turn them into linguistic human rights protected by international law.

Are LHRs universal?, I “Linguistic human rights” (LHR) points to

language rights as a subset of broader HR Also, universal rights in which all humans

participate – to caricature the position:• “Socrates is human, All humans have HR, All humans

have language, Therefore Socrates has linguistic human rights?”

Some language rights aren’t LHRs, however: • Right to study ‘foreign’ language in higher education• Neither universal nor essential, hence not LHR

Hence LHRs require selection & prioritization

Are LHRs universal?, II Why aren’t majority’s LRs specified/guaranteed? because it’s

assumed they have & exercise them already (Kontra 2007)• This assumption is vulnerable: they may be lost ‘at home’.

If only minority LRs are law/policy, can majority ever be adequately motivated to support/enforce them? Political will

Majorities ‘at home’ may be (national) minorities ‘abroad’:• Spanish in USA, French in Canada, Russian in Latvia• Thus all groups have interest in guaranteeing all LRs

Until it goes beyond the minority, they’re not (universal) LHRs.• You need LHRs to keep your language repertoire ‘not-a-problem’• You need to exercise LHRs to make your repertoire a resource.

Positive v negative rights Classic HR rights/freedoms are often ‘negative’

• Govt must not torture, must allow freedom of speech, religion, assembly, access to legal system etc.

• Protection from state is response to mid-20C fascism A minimal requirement for LHRs is thus: “Don’t

discriminate against linguistic minorities.”• This is part of the tolerance-oriented LR approach

However, non-discrimination often insufficient to provide equality, so ‘negative’ LRs are not enough – further action is required of states.

Case for Positive Rights Language rights require interaction in public

• Linguistic vitality entails maintenance in many domains of language use, incl. public ones

Language loss may occur even w/o discrimination• Shrinking domains, speaker numbers lead to context

where individual rights (requiring interaction) are lost• States can obviously influence many public domains

∴ state must promote ‘positive’ language rights:• Ensure viable use in mass media/court/political debate

Positive rights require the state to take action.

‘Three Pillars’ of LRs If negative rights – the ‘first pillar’ of LRs – are

rooted in the freedom from discrimination, then Positive rights – the ‘second pillar’ – are ‘rooted

in the principle of substantive equality’ (Grin 2003)• In different contexts, differential treatment is needed• External protection promotes fairness: minorities, too,

can now choose to maintain their language/culture The ‘third pillar’ is effective policy & planning:

• Not enough for state to take action – it must succeed• Speakers’ motivation must be understood & engaged

Problem – Resource – Right In many folk views, and centres of policy/power (both

are influenced by language ideologies), minority language/diversity is often seen as a problem to be solved (eg using LPP)• due to fear of desire for political autonomy by minority group

Socio/applied linguists look at language diversity as cultural/economic resources for speakers.

LHR view: language-as-a-right is a positive approach to minority (self-)empowerment.

Rights view is held to be compatible w/resources Both are opposed to language-as-problem view

Case: Refugee ESL classes in US

Asylum seekers: from 1975-91, about 900,000 refugees from Vietnam, Cambodia, Laos arrive• Federal policy: integration / assimilation • Processing centres: Philippines, Thailand, Indonesia

SE Asian refugees get 6 months English classes• Also cultural orientation, and pre-employment skills (job

interviews, filling out applications) In the US, they’re given refugee ESL classes

• 180 hours supported with federal funds

Refugee ESL classes in USA, II

Office of Refugee Resettlement policy (1984): • aim of classes must be to focus on ‘survival English’• track refugees into entry-level jobs

Materials prepared by the Office of Refugee Resettlement:• “What do you say to your supervisor when you make a

mistake?” “I’m sorry. I won’t do it again.”• Students punch a time clock as they enter class• “Company rules” are posted in the classroom: • “Work quickly & accurately - don’t waste time &

materials”• Teacher acts as supervisor

Refugee ESL classes in USA, III

Class time simply not enough to master English• Even with better materials and motivation, etc.

Many refugees are already well educated – but they have no chance for a better job.• Told to “Learn English on the job” – impossible • English Language Amendment movement said to encourage

immigrants to integrate?! (confused with assimilation) Provision of language as a right? Resource?

• For whose benefit: individual refugees? The US state/economy? Substantive equality? Effective policy/planning?

Language Minorities Problem: the resource view typically focuses on

language groups and their communal needs,• I.e. on language minorities. Definition:• “A group numerically inferior to the rest of the population of

a state, in a non-dominant position, whose members – being nationals of the state – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show… a sense of solidarity, directed towards preserving their culture, traditions, religion or language.”

• (F. Capotorti 1991, definition developed for the UN)

Regional or Minority Languages (RMLs)

“Languages traditionally used within a given territory of a state, by nationals of that state who form a group numerically smaller than the rest of the state’s population; & different from the official language(s) of that state.” (European Charter for RMLs)

Definition excludes dialects of official language(s) as well as languages of migrants.

Some states do not recognize any minorities of any kind• E.g. France; Turkey; Greece

…but some MLs (Romany, Sign Languages, Yiddish) are not regionally distributed. These are classes as ‘non-territorial languages’ under the ECRML. (Grin 2003)

LHR Rhetoric, I

Christina Bratt Paulston characterizes LHR: “exhortatory and ideologically based studies in which

language rights are considered a causal variable”, and points out that its aim is to produce “social change or future developments”.

She contrasts (1997) this with atheoretical historical and descriptive accounts with LRs

treated as a dependent variable (ie an outcome). To this end, LHR scholars & activists use a number of

strong and vivid terms to describe language situations.

LHR Rhetoric, II Some critics question whether this rhetoric uses

too-strong labels to describe harmful contexts – the drama it lends to the subject matter bothers some people.

LHR scholars & activists might reply (a) Their terms refer truly to charged situations,

and (b) It’s necessary to persuade non-linguists by using compelling language.

Let’s look at definitions of some key terms

LHR concepts: Linguicism

But just how extreme is this rhetoric? Linguicism is defined parallel to racism: “Ideologies, structures, and practices which

are used to legitimate, effectuate, regulate, and reproduce an unequal division of power and resources (both material and immaterial) between groups which are defined on the basis of language.”

(Skutnabb-Kangas 1988)

LHR concepts: Linguistic genocide

“prohibiting the use of the language of the group in daily intercourse or in schools, or the printing and circulation of publications in the language of the group”

Article III(1) of final draft of what became Convention on the Prevention & Punishment of the Crime of Genocide (E794, 1948)

Art.III voted down – NOT part of final convention – but definition agreed by then-UN members, so definition itself valid Skutnabb-Kangas

Direct and indirect prohibition If indigenous or minority children are hit, or left without food, or

have their mouth washed out when they speak their own language, its use has been prohibited.

If a child is made to feel ashamed of her language so that she stops using it in daily intercourse, its use has been prohibited.

If libraries or publishers discriminate against literature in indigenous or minority languages, publication and distribution of publications in these languages is indirectly prohibited.

If there are no minority teachers in the school, and the minority language is not used as the main medium of education and childcare, then the child is indirectly prohibited from using the minority language in daily intercourse or in school.

Five definitions of genocide Article 2 was adopted by the Geneva Convention: (a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;(d) Imposing measures intended to prevent births within the group;(e) Forcibly transferring children of the group to another group

How does linguistic genocide happen? Education thru the medium of a 2nd dominant language

which leads to first displacement and then replacement of mother tongue, can cause serious mental harm to a child.

It can prevent optimal participation in further education, the labour market and democratic participation in decisions

Forcible assimilation and transfer to the majority group, eg: Canadian Innu & Inuit pupils taught by English submersion Deaf students taught by oral assimilationist methods Finnish-immigrant minority members in Sweden

References Del Valle, Sandra. 2003. Language rights and the law in the United States. Clevedon:

Multilingual Matters. De Varennes, F. 2001. A Guide to the Rights of Minorities & Language. COLPI Paper

4. Budapest: Constitutional &Legal Policy Initiative. www.osi.hu/colpi/files/COLPI4.pdf De Varennes, F. 1996. Language, Minorities and Human Rights. The Hague: M Nijhoff Kloss, Heinz. 1977. The American bilingual tradition. Rowley MA: Newbury House. Kontra, Miklos. 2007. A Human Rights approach to minority language rights. In:

Szalma, József, ed., Zbornik Radova Naučni skup s međunarodnim učešćem Jezik, obrazovanje, nauka, kultura, zaštita ljudskih i manjinskih prava u Vojvodini i zemljama u tranziciji, 80–93. Novi Sad: Vojvodanska akademija nauka i umetnosti.

MOST Clearinghouse on Linguistic Rights. www.unesco.org/most/ln2nat.htm Paulston, C Bratt. 1997. Language policies and language rights. In C Bratt Paulston &

R Tucker, eds., 2003. Sociolinguistics: The Essential Readings. Blackwell:  472-482. Report of the Sub-Commission on the Prevention of Discrimination and Protection of

Minorities on its 20th session (1967). UN ESCOR, 23rd session. Skutnabb-Kangas, Tove. 2000. Linguistic genocide in education - or worldwide

diversity and human rights? Mahwah, NJ & London, UK: Lawrence Erlbaum.