He Tower of Babel: Human Rights and the Paradox of Language



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The Tower of Babel:
Human Rights and the Paradox of Language

Moria Paz


Key human rights instruments and leading scholars argue that minority language rights should be treated as human rights, both because language is constitutive of an individual’s cultural identity and because linguistic pluralism increases diversity. These treaties and academics assign the value of linguistic pluralism in diversity. But, this paper demonstrates, major human rights courts and quasi-judicial institutions are not, in fact, prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Outside narrow exceptions or a path dependent national-political compromise, these enforcement bodies continuously allow the state to actively incentivize assimilation into the dominant culture and language of the majority. The minority can still maintain its distinct language, but only at its own cost. The slippage between the promise of rights and their actual interpretation carries some important political and economic benefits, but the resulting legal outcome does not provide the robust protection of diversity to which lip service is paid. Importantly, the assimilationist nature of the jurisprudence is not indifferent to human rights. However, instead of advancing maximal linguistic diversity as a preeminent norm, the regime that is applied by judicial bodies supports a different set of human rights, those protecting linguistic minorities from discrimination, and promoting equal access of the group to market and political institutions. The result is a tension between two human rights values: pluralism and equality.

“If…the ends of men are many, and not all of them are in principle compatible with each other, then the possibility of conflict – and of tragedy – can never wholly be eliminated from human life, either personal or social. The necessity of choosing between absolute claims is then an inescapable characteristic of the human condition.”1

(Isaiah Berlin, Two Concepts of Liberty)

At the beginning, the whole world had one language and a common speech. But since the Tower of Babel, or at least so the story goes, languages are scattered over the face of the whole earth. This raises a question: what is the function of language and is there a benefit to the multiplicity of languages or is diversity merely an historical accident? Human rights law seems conflicted on the answer.


Major human rights instruments and leading scholars identify two key social values of language: for individuals, language is constitutive of cultural identity (we are what we speak) and for society, linguistic pluralism increases diversity. Since language is central to identity, one’s freedom to use her language is seen as “inherent” in the “dignity of the human person,” and thus falls within the ambit of human rights law.2 Because minority groups are more vulnerable in society, they are at a greater risk of losing their languages, and thereby also their distinct identity. Should this happen, injury would be born both by the minority and by the entire society. For heterogeneity in languages has a positive value: it reflects and enhances cultural diversity, which, in turn, “enriches the world.”3 Having decided both that diversity is a positive good and that international human rights law has a role in promoting it, major treaties and leading scholars take the position that the regime ought to enforce the right of linguistic minorities to maintain a high level of linguistic separatism.4
There is, however, another and perhaps more obvious perspective on the function of language. This function could be called communicative.5 In this view, language is above all an instrumental tool for communication, and linguistic homogeneity facilitates market cooperation and political unification. Here value is assigned to the smooth operation of the market and the political state, and linguistic diversity is seen as generally imposing costs rather than benefits to society.6 This is the natural reading of the Tower of Babel story: when God says “Come, let us go down and confuse their language, so that they will not understand each other” (Gen. 11:7), he does so in order to impose the cost of confusion, not to bestow the gift of diversity.
In spite of the language of treaties and the writings of scholars, I show in this paper that human rights adjudicatory bodies do not, in fact, protect language as constitutive of identity and culture, or in order to encourage diversity. Instead it is the second approach – the communicative - that is actually advanced by these courts and quasi-judicial institutions. The former conception demands strong rights of protection, while the latter inclines toward fair terms of assimilation.
I explain the gap between the broad statements of the discipline and actual judicial practice through the courts’ deference to the state and its cost considerations, as well as a functional interest in stability. Following through on the commitment of mainstream human rights treaties and scholars to protect minority language as a mode of self-expression would require making linguistic differences costless to minorities,7 so that the economic and political opportunities open to minority language speakers would be comparable to those available to the speakers of the majority language with similar characteristics. But, in practice, international human rights enforcement bodies are not prepared to force states to swallow the dramatic cost, financial and otherwise, associated with a robust diversity-protecting regime. In particular, they are not willing to do two things: to allocate the costs of maintaining linguistic difference to the state, and to force the state to affirmatively protect linguistic heterogeneity in the market place by imposing private costs.
In this context of a linguistic laissez-faire policy in the market, courts and quasi-judicial institutions only accommodate the language of minorities in three narrow ways.
First, they provide minorities with procedural protection against irrational prejudice that is based on their language status, and they accommodate certain fundamental human rights that are not language-specific but that have an expression in language. This protection is thin and is focused on the needs of individuals rather than groups; it has a strong due process component. Second, they accommodate minority languages en route to assimilation into the dominant language and culture of the state. Protection here is more robust, but is transitory in nature and is geared toward incentivizing the minority to become “like us” (the majority). A third and final circumstance in which courts protect minority language rights is when doing so is necessary to uphold a preexisting political compromise between the majority and one or more minority groups. This protection is perpetual and thick. But the scope of positive accommodation is limited and reflects politics and the specific history of the country rather than human rights; it is granted only to the minorities that were part of the original political settlement.
Outside these narrow exceptions, the human rights courts and quasi-judicial institutions continuously allow the state to incentivize assimilation into the dominant culture and language of the majority. The only time they require the state to internalize the cost of linguistic difference is as a transitory measure to assist during the acculturation of the minority. In short, human rights law puts in place strong incentives and pressures toward linguistic and cultural assimilation.
Importantly, the assimilationist character of the jurisprudence does not abandon diversity. These international human rights enforcement bodies may still privilege diversity; they are just not willing to ask the state to pay for it (even if this means that some minority languages will disappear).
Similarly, the assimilationist nature of the law-in-action does not simply support statism at the expense of indifference to human rights. Given that the state is not required to distribute resources based on linguistic distinctions in the market sphere, market pressures will naturally drive society toward linguistic homogeneity.8 Without intervention in the market to ensure that minority language speakers find employment in significant economic markets, members of the minority who cannot communicate in the majority language might fall behind in the larger economic and political hierarchies of the state. The human rights courts and quasi-judicial institutions ask the state to internalize some of the costs involved in transitioning these individuals into the dominant language of the state and the market. In this strategy of equal opportunity for minorities and majorities groups, these intentional enforcement bodies privilege the normative cause of equality - what the International Covenant of Civil and Political Rights preamble calls “the equal and inalienable rights of all members of the human family.”9 The result highlights a tension between two human rights values: pluralism and equality (defined in terms of access of the minority). Ultimately, international courts and quasi-judicial institutions fall on the side of the latter.
To make my claim, I systematically examine the way in which the United Nations Human Rights Committee (“UNHRC”), and the European Court of Human Rights (“ECtHR”) dispose of cases bearing on language. I selected these two institutions because they are the most significant international human rights enforcement bodies operating today.10 Both also create rights that are judicially enforceable by individual submission and that lead to decisions that are of general application.

To supplement the discussion, I also briefly draw on the protection of language rights under two domestic courts: the American and Canadian Supreme Courts. I choose these two courts because they stand at opposite poles. The relevant law in the US does not recognize language rights as substantive rights and guarantees only negative liberties that prohibit government interference with one’s language under the First Amendment.11 But the law does offer limited positive linguistic protection, either to help non-English speakers to transition into a monolingual mainstream, or to meet other goals such as due process or perhaps even political participation. The relevant law in Canada (the Canadian Charter of Rights and Freedoms), like US law, protects a number of negative liberties, including freedom of expression, freedom of association, natural justice and a right against discrimination based on their membership in a linguistic community.12 But the Canadian Charter also undertakes to actively preserve and promote Canada’s two “official languages,” French and English, and to protect the positive rights of English- and French-speaking citizens, even when they are a minority. Canadian French and English speakers have the right to use their language in some courts and legislatures, to receive federal government services in those languages, and, when numbers warrant, to have their children educated in their mother tongue.13

I examined all the cases and communications that reached the UNHRC and the ECtHR from their inception to January 2012 in two main areas of conflict: (i) whether the state must facilitate the use of minority language in court proceedings by providing free translators; (ii) whether the state must subsidize parents’ choices concerning the main language in which their children are educated in public schools. In total, I surveyed a little short of 200 communications and cases.



Both the UNHRC and the ECtHR adopt a rights avenue to language issues. But the nature of the rights provided is different.


The laws to which the UNHRC is expected to adhere under the International Covenant of Civil and Political Rights (“ICCPR”) guarantee a direct and absolute right to the use of a minority language. Article 27 of the ICCPR provides that “persons belonging to… minorities shall not be denied the right…to enjoy their own culture, [and] …to use their own language.”14 This directive is framed in negative terms --- people “shall not be denied the right” to their language. However, the UNHRC, the body charged with interpreting the ICCPR,15 has made clear that Article 27 calls for a positive “legislative, judicial or administrative” commitment on the part of the state “to protect the identity of a minority.”16 Similarly, prominent human rights scholars have also argued in favor of enforcing such a strong affirmative right that contains, in the words of one scholar, “no limitations.”17
The laws that the ECtHR is supposed to enforce under the European Convention of Human Rights (“ECHR”) simply make discrimination on the basis of language in the enjoyment of one of the rights enshrined in the Convention a suspect classification.18 The Convention does not include any specific minority rights or any general standards for the use of language.19 In recent years, however, the ECtHR has greatly expanded the scope of the provision.20 To begin, the Court has developed “burgeoning” minority rights jurisprudence.21 In addition, the ECtHR had confirmed that positive action can be justified under Article 14 to redress situations of systemic disadvantage that are brought about by a history of discrimination.22 Indeed, the Court had previously interpreted Article 14 as a provision that requires positive action to promote material equality when it dealt with some of the other prohibited classifications under Article 14 - including race,23 religion,24 gender and age.25 In theory, the court could also expand Article 14 to mean positive commitment in matters bearing on language, and some prominent scholars have argued that it should do so.26
According to the standard account of both the UNHRC and the ECtHR, the rights of minorities to use and preserve their own languages derive from two of the essential functions mentioned above: the identity-constitutive and diversity-providing natures of language. For example, in its authoritative interpretation of Article 27 ICCPR, the UNHRC explained that the right of a minority to “enjoy and develop …[its] culture and language” is “directed towards ensuring the survival and continued development of the cultural… … identity of the minorities concerned, thus enriching the fabric of society as a whole.” 27 Similarly, in D.H vs. Czech Republic, the ECtHR, acting as a Grand Chamber, noted that “obligation to protect” the “identity” of the minorities under Art 14 is “not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community.”28 The U.S. Supreme Court has also referenced the identity-constitutive role of language: “Language permits an individual to express both a personal identity and membership in a community.”29
These two functions of language also figure prominently in the writings of leading human rights academics. For example, in his famous Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, Francesco Capotorti, the Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, explains the centrality of language to identity: the “dividing line between culture and language,” he notes, “is not as clear as it may appear.”30 In fact, the international legal historian Nathaniel Berman argues that “[F]or over a century [language] has been a crucial element, often the element, in European nationalists’ understanding of identity.”31 Henry Steiner, the former Director of Harvard’s Human Rights Program emphasized that Article 27 “insists on respect for difference,” and that human rights more generally is “hostile” to the imposition of “cultural uniformity.”32 For Steiner, the rationale for “encouraging” cultural diversity is derivative of “[a] basic assumption—namely that differences enrich . . . the world.”33
Given the existing legal framework, we should expect that when members of minorities submit language claims before the UNHRC, the protection that is afforded them will be robust. Equally, we could reasonably anticipate that the ECtHR would be willing to expand Article 14 to provide positive protection for minority languages. Finally, we would assume that for both bodies, linguistic diversity will be the primary concern and the motivation for protection.

II.

The reality is, however, quite different. In practice, the UNHRC and the ECtHR do not insist on a minority group’s right to linguistic preservation. Despite large differences in the law on the books, courts in these jurisdictions converge in practice on a common standard for the protection of minority language speakers. They do not protect minority language rights as fundamental human rights in the conventional sense of necessarily constraining state’s policy within the sphere of sovereignty.34 They do, however, accommodate three different, and much narrower, interests that are not themselves language-specific: they enforce minority language accommodation as a subsidiary mechanism to realize another right, as a transitory right for linguistic assimilation, or as the outcome of a path dependent political arrangement to positively protect specific languages in a particular country.


I will now turn to how these interests emerge in case law. While I will provide only one or two examples for each category of protection, these cases and communications are exemplary of decision-making by the UNHRC and the ECtHR (further examples are referenced in the footnotes).



  1. Subsidiary protection

In the first category, courts accommodate a minority language when doing so is necessary to promote another universally recognized human right— for example, the procedural right to a fair trial.

Consider, for example, Guesdon v France,35 a communication that came before the UNHRC and that dealt with a Breton-speaking person who was charged in French criminal proceedings. In the case, the defendant and his witnesses demanded to give testimony in Breton (a Celtic language very different from French) with the assistance of an interpreter paid by the state. But the French Court denied this request, noting that the defendant and his witnesses were able to speak fluent French.36 The author argued that Breton was the “language [of their] ancestors”37 and “the language which…[they] normally speak.”38

Guesdon alleged violations of both ICCPR Article 14, a right to a fair trial,39 and Article 27, minority language rights. But UNHRC declined to consider the Article 27 allegation and instead decided the case solely on the grounds of Article 14, structuring the language component as a subset of the procedural guarantee. The decision read:

[A]rticle 14 is concerned with procedural equality […]. [T]he requirement of a fair hearing [does NOT] mandate State parties to make available to a citizen whose mother tongue differs from the official court language, the services of an interpreter, if he is capable of expressing himself adequately in the official language.40

After the Committee overruled a due process violation, it “did not find it necessary to address … article 27 of the Covenant in this case.”41

This move of the UNHRC is surprising. The right to a fair trial and the right to speak a minority language afford very different kinds of protections to linguistic minorities. The right to a fair trial protects minority speakers only insofar as is necessary to guarantee due process. Due process is satisfied with merely “adequate” mutual comprehension between an accused and the court. The test for what constitutes an adequate level of linguistic proficiency is pragmatic; fairness dictates only that an accused must understand the charges against him. When the accused cannot do so unaided, a translator must be provided. But the accused does not have a right to choose the language in which he will defend himself or in which the trial will be held. This standard ties language to the value of instrumental communication alone.



In contrast, Article 27 confers on linguistic minorities a fundamental right to “use of their language.” The fact that protected minorities might be bilingual – as many are - is irrelevant to Article 27 protection. Were the Human Rights Committee faithful to this more robust language entitlement, it would have had, at least, to consider whether the accused should be allowed to speak in the minority language, even if he could understand the court’s majority language. Guesdon is not an isolated decision; the Human Rights Committee followed the same reasoning in multiple other communications.42
In ignoring Article 27 protection, the UNHRC effectively converged on the lower standard of protection of minority language speakers in court settings that is offered by the ECHR. The ECHR does not provide a direct right to the use of minority languages equal to that provided by Article 27 ICCPR. Instead, the ECHR only requires language protection insofar as it is strictly needed for an accused to “understand” the charges against him.43 The test for what constitutes a sufficient level of linguistic proficiency is fairly undemanding: in Lagerblom v. Sweden the Court held that the accused should be able “to have knowledge of the case … and to defend himself.”44 Thus, the Brozicek v. Italy decision found a violation of the right to fair trial when the national court did not provide an interpreter for an accused who had no skill in the majority language.45 But in Isop v. Austria the Commission dismissed an application by an accused person who had some skill in the language of the proceedings but felt that his “knowledge of the… [language] . . . [was not] sufficient for a successful prosecution of his claim.”46 Even though it was not the claimant’s first and best language, the court concluded that he suffered no irreparable procedural harm because he was able to understand the proceedings. Protection ends the moment an accused overcomes the language barrier and assimilation into the majority language has begun. The Court repeated this position in numerous other cases.47
Interestingly, the international standard linking the protection of a minority language to due process also aligns with decisions by American courts. This is unexpected; while Article 27 ICCPR provides a seemingly absolute right to the use of minority languages and Article 14 ECHR carries at least the potential of a language right, US law recognizes no substantive language entitlements. In the United States of America ex rel. Rogelio Nieves NEGRON v. State of New York, the United States Court of Appeals, Second Circuit, held that the Court would accommodate the accused’s minority language status only as far as was needed to permit him “to participate effectively in his own defense.”48 Like with the UNHRC and the ECtHR, the emphasis is on fairness: “Consideration of fairness” in the proceedings, the judges explained, demands that the accused does not “sit in total incomprehension as the trial proceeded.”49 But while the defendant has a right to be “present at his own trial,”50 he has no right to choose the language he uses in court.51 As with the decisions of the UNHRC and the ECtHR, here, too, linguistic protection ends as soon as the person has become proficient in the majority language.



  1. Transitional protection

A second circumstance in which human rights courts and other judicial bodies offer protection to minority languages is when doing so is necessary to assist minorities in their efforts to acquire the dominant language and culture. Here the courts accommodate the minority language, but only as a way station to its elimination. The interest in language is purely assimilationist and transitional in nature.



Let’s look at the treatment by the ECtHR of minority languages and their speakers in public schools.
In the Belgium Linguistic Case,52 the European Court dealt with the claim of Francophone parents living in Flanders. The petitioners argued that Belgium implicitly violated the rights of French-speaking minority parents by offering education in state-financed schools in Dutch only, while also withdrawing subsidies from private schools operating in French in that region. In the decision, the Grand Chamber interpreted the right to education under Article 2 of the First Protocol to mean education in the majority language (or languages, as the case may be).53 Outside the national language(s) there are no language rights in the public school system. In fact, the Court emphasized that “conferring on everyone . . . a right to obtain education in the language of his own choice would lead to absurd results.”54 But the Belgium Linguistic Court also provided minorities two possible exits from the regime of “linguistic uniformity” in public schools: parents are free either to bus their children to schools that better reflect their linguistic and cultural preferences or to open unsubsidized private schools where they can direct the education of their children.55
In subsequent cases, the ECtHR elaborated further the terms of negative linguistic freedom in school settings. In Cyprus v Turkey the court held that the option of travel to private schools using the minority tongue as language of instruction must be “realistic,”56 meaning students ought to be able to return home after their education is completed. More recently, the Catan and Others v. Moldova and Russia decision emphasized that the state cannot go out of its way to interfere with the operation of private schools in the minority language.57
At the same time that the ECtHR protects a private zone of negative linguistic freedom for those students who opt out of public education, it also requires the state to provide transitional positive support for those minority students who do seek to assimilate into the dominant language and cultural practices in schools. Consider here Oršuš v Croatia,58 a case brought by Roma primary school students. These petitioners asked to integrate into public-school classes in Croatia that were taught in Croatian (the dominant language). But they were barred from joining these classes, as they failed to pass entry exams conducted in Croatian.
In deciding the case, the Grand Chamber explained that “the decisive factor” of the case was the Roma students’ “lack of knowledge or inadequate knowledge of Croatian, the language used to teach in schools.”59 As such, “the central question to be addressed” was “whether adequate steps were taken by the school authorities to ensure the applicants’ speedy progress in acquiring an adequate command of Croatian ...”60 In answering this inquiry, the Court held that Croatia was under an obligation "to take appropriate positive measures to assist the applicants in acquiring the necessary language skills in the shortest time possible, notably by means of special language lessons.”61 During this transitional time, Roma students could be placed in special classes conducted in Romani with only “supplementary tuition in the Croatian language.”62 But the goal, the Court said, is to get them “quickly integrated into mixed classes” where education “was in Croatian only.”63
Once again, the regime developed by the ECtHR converges with the level of protection offered by the American Supreme Court in surprising ways.
In Lau v Nichols,64 the US Supreme Court dealt with a scenario that echoes Oršuš. The case concerned the failure of the San Francisco school system to provide English language instruction, or other adequate instructional procedures, to approximately 1,800 students of Chinese ancestry who did not speak English and were thus unable to meaningfully participate in the public educational program.
Like the ECtHR decision in the Oršuš, for the US Supreme Court public education means instruction in the majority language: “Basic English skills,” the judges explained, “are at the very core of what … public schools teach.”65 But, similar to the position of the ECtHR, the state is under an obligation to provide non-English speakers with limited positive linguistic protection to transition them into the monolingual system of education. And so the decision in Lau called on California to “take affirmative steps to rectify the language deficiency” of students whose “inability to speak and understand the English language” excludes them from “effective participation in the educational program.”66
Yet again, much like the ECtHR, linguistic protection is narrow. Indeed in Rios v Read, the US District Court announced that the state’s obligation toward the minority students “is not of indefinite duration;” the purpose of legal protection of minority languages in the public school system “is not to establish a bilingual society.”67 In another case, Guadalupe Organization, Inc. v. it Tempe Elementary School District No. 3, the Ninth Circuit explicitly noted the assimilationist nature of linguistic accommodation in public schools: “linguistic and cultural diversity within the nation state… can restrict the scope of the fundamental compact. Diversity limits unity.”68 For the court, the survival of the nation-state depends on the existence of a political culture which "attenuates as it crosses linguistic and cultural lines."69
At the same time, the US Supreme Court, similar to the ECtHR, couples the regime of positive transitional linguistic protection for those who seek to assimilate with a regime of linguistic tolerance in the private sphere for those who choose to opt out. And so, as early as the 1920s, the Court already rejected the states’ attempts to make it a crime to open private schools that use a minority language as the medium of instruction.70
The model of linguistic accommodation developed by the ECtHR, just like the American Supreme Court, is, in short, minimal and transitional. The protection presumably lasts only as long as it is needed to prevent irreparable harm to individual students who might otherwise fall behind because of their linguistic status. Minority speakers are accommodated in the public school system, but only to promote their assimilation into the state and the market. As soon as the language barrier is overcome, the right to special linguistic support may disappear.


  1. Political protection

A third and final circumstance in which courts protect minority language rights is when doing so is necessary to uphold a preexisting path-dependent political compromise between the majority and one or more minority groups. In contrast to the interest in minority languages that is directed towards subsidiary or assimilationist ends, this third kind of protection is perpetual and very strong. But, importantly, this thick protection is afforded to only a limited number of languages, and is thus a far cry from a universal human right.

In order to introduce this category of protection, I begin by examining the way in which the Canadian Supreme Court disposes of cases bearing on language conflicts.71

In the seminal case of Mahé v Alberta72 the Canadian Supreme Court dealt with the claim of French-speaking parents dissatisfied with the quality of the French-language schools provided by their government. They asked for a new school that would be administered by a committee of parents with an autonomous French school board. Their request was rejected and they brought action against the government of Alberta. In reaching the decision, the Court upheld the position of the parents. The judges reiterated the standard account of minority language rights by emphasizing the critical role of language in cultural identity.73



Ultimately, however, the Court did not decide the case on the basis of the identity-constitutive function of language. Instead the judges explained that the protection of language rights in Canada was the result of a “compromise"74 to “preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language flourishes, as far as possible, in provinces where it is not spoken by the majority of the population…”75 The Supreme Court repeated its position of language rights as “expression of a valid political choice”76 in many other cases.77

Here, the protection of French and English is robust and is much more generous than either subsidiary accommodation of minority languages in the service of another right or transitory protection on the way to linguistic assimilation. It involves a genuine commitment of the majority to the minority language and “places positive obligations on government to alter or develop major institutional structures” and to enact specific “legislative schemes providing for [the] minority language.”78  But this thick accommodation is carefully fenced and the judges are explicit about who is protected and who is not. The “precise scheme”79 provides positive rights only to the two official languages and their speakers. The result is a persistent inequality between linguistic communities.80 In fact, in delivering the Mahé judgement, Chief Justice Brian Dickson recognized that this special status would create inequalities between linguistic groups in that “it accords . . . . the English and the French, special status in comparison to all other linguistic groups in Canada.”81 But this inequality is accepted precisely because it is the product of political compromise and negotiation. As the Chief Justice noted, “it would be totally incongruous to invoke in aid of the interpretation of a provision which grants special rights to a select group of individuals, the principle of equality intended to be universally applicable to ‘every individual.’”82

This type of linguistic protection, derivative of an original political arrangement that is specific to the particular history of the country, affords protection only as a collective benefit that is attached to people who are defined as members of the linguistic group. Thus individualized decision–making as to linguistic identity is unavailable.83 Indeed French speakers in Québec were denied access to publically-financed English language schools because they “are members of the French language majority” 84 and, as such, their objective in having their children educated in English simply does not fall within the purpose of the law. Similarly, English-speaking students outside Québec were refused public education in French as they “do not have a constitutional right to have their children educated in French as a matter of choice.”85

While the terms of the linguistic settlement afford positive protection to the French and English languages (and the normative basis of protection is generally accepted by the majority as justified), it leaves Canadian speakers of other tongues not much better protected than if they lived in a country that recognizes no substantive language rights. In this situation, their language is accommodated only if it falls under the same two narrow categories – subsidiary and transitional – identified earlier. A Vietnamese immigrant to Canada is, therefore, not treated any differently under the Canadian language regime than had she lived in the USA.

What happens when such national compromises reach international human rights courts and quasi-judicial institutions? In Ballantyne v. Canada, certain stipulations of the Canadian national bargain were challenged before the UNHRC. The communication dealt with the claim of English-speaking business owners in the province of Québec who disputed local legislation prohibiting them from using English in advertising. In its decision, the Human Rights Committee was extremely deferential to the terms of the historic compromise between the majority and minority language speakers in the country. The Committee emphasized that the objective of the Canadian government “to protect the vulnerable position in Canada of the francophone group” is “legitimate.”86 Indeed, Canada is permitted to choose that only the French language will be used in “the sphere of public life” in Québec.87

Like the UNHRC, the ECtHR also differs to the terms of national political settlements reached between linguistic minorities and majorities on the national level. The treatment of French speakers in Belgium is a case in point.

In the 1960s to 1980s, Belgium concluded a complex set of legal arrangements that essentially divided the country into separate territories, each with a single official language.88 This “territorial system” created linguistic minorities within each separate territory. During the same period, French speakers living in Flemish regions brought a series of cases that contested this settlement. I will give one example to demonstrate the way in which the European Court upheld the terms of territorial monolingualism in Belgium.89






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