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0.4.6.2. The Oslo Recommendations Regarding the Linguistic
Rights of National Minorities & Explanatory Not, of February 1998
Other languages
Source of translations: Linguapax
Kalmyk
Kurdish
Crimean Tatar (Latin scriptí)
Crimean Tatar (Cyrillic script)
English version
In its Helsinki Decisions of July 1992, the Organisation for Security
and Cooperation in Europe (OSCE) established the position of High Commissioner
on National Minorities to be "an instrument of conflict prevention
at the earliest possible stage". This mandate was created largely
in reaction to the situation in the former Yugoslavia which some feared
would be repeated elsewhere in Europe, especially among the countries
in transition to democracy, and could undermine the promise of peace and
prosperity as envisaged in the Charter of Paris for a New Europe adopted
by the Heads of State and Government in November 1990.On 1 January 1993,
Mr. Max van der Stoel took up his duties as the first OSCE High Commissioner
on National Minorities (HCNM). Drawing on his considerable personal experience
as a former Member of Parliament and Foreign Minister of The Netherlands,
Permanent Representative to the United Nations, and long-time human rights
advocate, Mr. Van der Stoel turned his attention to the many disputes
between minorities and central authorities in Europe which had the potential,
in his view, to escalate. Acting quietly through diplomatic means, the
HCNM has become involved in the following States: Albania, Croatia, Estonia,
Hungary, Kazakstan, Kyrgyzstan, Latvia, the Former Yugoslav Republic of
Macedonia, Romania, Slovakia and Ukraine. His involvement has focused
primarily on those situations involving persons belonging to national/ethnic
groups who constitute the numerical majority in one State but the numerical
minority in another (usually neighbouring) State, thus engaging the interest
of governmental authorities in each State and constituting a potential
source of inter-State tension if not conflict. Indeed, such tensions have
defined much of European history.In addressing the substance of tensions
involving national minorities, the HCNM approaches the issues as an independent,
impartial and cooperative actor. While the HCNM is not a supervisory mechanism,
he employs the international standards to which each State has agreed
as his principal framework of analysis and the foundation of his specific
recommendations. In this relation, it is important to recall the commitments
undertaken by all OSCE participating States, in particular those of the
1990 Copenhagen Document of the Conference on the Human Dimension which,
in Part IV, articulates detailed obligations relating to national minorities.
It is also important to note that all OSCE States are bound by United
Nations obligations relating to human rights, including minority rights,
and that the great majority of OSCE States are also bound by the standards
of the Council of Europe.After five years of intense activity, the HCNM
has been able to identify certain recurrent issues and themes which have
become the subject of his attention in a number of States in which he
is involved. The linguistic rights of national minorities, i.e. the right
of persons belonging to national minorities to use their language in the
private and public spheres, is such an issue. International human rights
instruments refer to this right in a number of different contexts. On
the one hand, language is a personal matter closely connected with identity.
On the other hand, language is an essential tool of social organisation
which in many situations becomes a matter of public interest. Certainly,
the use of language bears on numerous aspects of a State's functioning.
In a democratic State committed to human rights, the accommodation of
existing diversity thus becomes an important matter of policy and law.
Failure to achieve the appropriate balance may be the source of inter-ethnic
tensions. It is with this in mind that, in the summer of 1996, the HCNM
requested the Foundation on Inter-Ethnic Relations to consult a small
group of internationally recognised experts with a view to receiving their
recommendations on an appropriate and coherent application of the linguistic
rights of persons belonging to national minorities in the OSCE region.
A similar request from the HCNM had previously resulted in the elaboration
of The Hague Recommendations Regarding the Education Rights of National
Minorities and Explanatory Report. Insofar as The Hague Recommendations
address comprehensively the use of the language or languages of national
minorities in the field of education, it was decided to exclude this issue
from consideration of the experts. The Foundation on Inter-Ethnic Relations
- a non-governmental organisation established in 1993 to carry out specialised
activities in support of the HCNM - facilitated a series of consultations
of experts from various pertinent disciplines, including two meetings
in Oslo and one in The Hague. Among the experts consulted were jurists
specialising in international law, as well as linguists, advocates and
policy analysts specialising in the situations and needs of minorities.
Specifically, the experts were: Professor Gudmundur Alfredsson, Co-Director,
Raoul Wallenberg Institute (Sweden); Professor Asbjørn Eide, Senior
Fellow, Norwegian Institute of Human Rights (Norway); Ms. Angelita Kamenska,
Senior Researcher, Latvian Centre for Human Rights and Ethnic Studies
(Latvia); Mr. Dónall Ó Riagáin, Secretary General,
European Bureau of Lesser Used Languages (Ireland); Ms. Beate Slydal,
Advisor, Norwegian Forum for the Freedom of Expression (Norway); Dr. Miquel
Strubell, Director, Institute of Catalan Sociolinguistics, Government
of Catalonia (Spain); Professor György Szepe, Department of Language
Sciences at Janus Panonius University (Hungary); Professor Patrick Thornberry,
Department of Law, Keele University (United Kingdom); Dr. Fernand de Varennes,
Director of the Asia-Pacific Centre for Human Rights and the Prevention
of Ethnic Conflict (Australia); Professor Bruno de Witte, Faculty of Law,
University of Maastricht (The Netherlands); Mr. Jean-Marie Woehrling,
Institut de droit local alsacien-mosellan (France). Insofar as existing
standards of minority rights are part of human rights, the starting point
for the consultations was to presume compliance by States with all other
human rights obligations including, in particular, equality and freedom
from discrimination, freedom of expression, freedom of assembly and of
association, as well as all the rights and freedoms of persons belonging
to national minorities.
It was also presumed that the ultimate object of all human rights is the
full and free development of the individual human personality in conditions
of equality. Consequently, it was presumed that civil society should be
open and fluid and, therefore, integrate all persons, including those
belonging to national minorities. Insofar as the use of language is also
a fundamentally communicative matter, the essential social dimension of
the human experience was also fully presumed.The resultant Oslo Recommendations
Regarding the Linguistic Rights of National Minorities attempt to clarify,
in relatively straight-forward language, the content of minority language
rights generally applicable in the situations in which the HCNM is involved.
In addition, the standards have been interpreted in such a way as to ensure
their coherence in application. The Recommendations are divided into sub-headings
which respond to the language related issues which arise in practice.
A more detailed explanation of the Recommendations is provided in an accompanying
Explanatory Note wherein express reference to the relevant international
standards is to be found. It is intended that each Recommendation is read
in conjunction with the specifically relevant paragraphs of the Explanatory
Note. It is hoped that these Recommendations will provide a useful reference
for the development of State policies and laws which will contribute to
an effective implementation of the language rights of persons belonging
to national minorities, especially in the public sphere.Although these
Recommendations refer to the use of language by persons belonging to national
minorities, it is to be noted that the thrust of these Recommendations
and the international instruments from which they derive could potentially
apply to other types of minorities. The Recommendations which follow below
are meant to clarify the existing body of rights. They are not meant to
restrict the human rights of any person or groups of persons.
THE OSLO RECOMMENDATIONS REGARDING THE LINGUISTIC RIGHTS OF NATIONAL MINORITIES
NAMES
1) Persons belonging to national minorities have the right to use their
personal names in their own language according to their own traditions
and linguistic systems. These shall be given official recognition and
be used by the public authorities.
2) Similarly, private entities such as cultural associations and business
enterprises established by persons belonging to national minorities shall
enjoy the same right with regard to their names.
3) In areas inhabited by significant numbers of persons belonging to a
national minority and when there is sufficient demand, public authorities
shall make provision for the display, also in the minority language, of
local names, street names and other topographical indications intended
for the public.
RELIGION
4) In professing and practicing his or her own religion individually or
in community with others, every person shall be entitled to use the language(s)
of his or her choice.
5) For those religious ceremonies or acts pertaining also to civil status
and which have legal effect within the State concerned, the State may
require that certificates and documents pertaining to such status be produced
also in the official language or languages of the State. The State may
require that registers pertaining to civil status be kept by the religious
authorities also in the official language or languages of the State.
COMMUNITY LIFE AND NGOs
6) All persons, including persons belonging to national minorities, have
the right to establish and manage their own non-governmental organisations,
associations and institutions. These entities may use the language(s)
of their choosing. The State may not discriminate against these entities
on the basis of language nor shall it unduly restrict the right of these
entities to seek sources of funding from the State budget, international
sources or the private sector.
7) If the State actively supports activities in, among others, the social,
cultural and sports spheres, an equitable share of the total resources
made available by the State shall go to support those similar activities
undertaken by persons belonging to national minorities. State financial
support for activities which take place in the language(s) of persons
belonging to national minorities in such spheres shall be granted on a
non-discriminatory basis.
THE MEDIA
8) Persons belonging to national minorities have the right to establish
and maintain their own minority language media. State regulation of the
broadcast media shall be based on objective and non-discriminatory criteria
and shall not be used to restrict enjoyment of minority rights.
9) Persons belonging to national minorities should have access to broadcast
time in their own language on publicly funded media. At national, regional
and local levels the amount and quality of time allocated to broadcasting
in the language of a given minority should be commensurate with the numerical
size and concentration of the national minority and appropriate to its
situation and needs.
10) The independent nature of the programming of public and private media
in the language(s) of national minorities shall be safeguarded. Public
media editorial boards overseeing the content and orientation of programming
should be independent and should include persons belonging to national
minorities serving in their independent capacity.
11) Access to media originating from abroad shall not be unduly restricted.
Such access should not justify a diminution of broadcast time allocated
to the minority in the publicly funded media of the State of residence
of the minorities concerned.
ECONOMIC LIFE
12) All persons, including persons belonging to national minorities, have
the right to operate private enterprises in the language or languages
of their choice. The State may require the additional use of the official
language or languages of the State only where a legitimate public interest
can be demonstrated, such as interests relating to the protection of workers
or consumers, or in dealings between the enterprise and governmental authorities.
ADMINISTRATIVE AUTHORITIES AND PUBLIC SERVICES
13) In regions and localities where persons belonging to a national minority
are present in significant numbers and where the desire for it has been
expressed, persons belonging to this national minority shall have the
right to acquire civil documents and certificates both in the official
language or languages of the State and in the language of the national
minority in question from regional and/or local public institutions. Similarly
regional and/or local public institutions shall keep the appropriate civil
registers also in the language of the national minority.
14) Persons belonging to national minorities shall have adequate possibilities
to use their language in communications with administrative authorities
especially in regions and localities where they have expressed a desire
for it and where they are present in significant numbers. Similarly, administrative
authorities shall, wherever possible, ensure that public services are
provided also in the language of the national minority. To this end, they
shall adopt appropriate recruitment and/or training policies and programmes.
15) In regions and localities where persons belonging to a national minority
are present in significant numbers, the State shall take measures to ensure
that elected members of regional and local governmental bodies can use
also the language of the national minority during activities relating
to these bodies.
INDEPENDENT NATIONAL INSTITUTIONS
16) States in which persons belonging to national minorities live should
ensure that these persons have, in addition to appropriate judicial recourses,
access to independent national institutions, such as ombudspersons or
human rights commissions, in cases where they feel that their linguistic
rights have been violated. THE JUDICIAL AUTHORITIES
17) All persons, including persons belonging to a national minority, have
the right to be informed promptly, in a language they understand, of the
reasons for their arrest and/or detention and of the nature and cause
of any accusation against them, and to defend themselves in this language,
if necessary with the free assistance of an interpreter, before trial,
during trial and on appeal.
18) In regions and localities where persons belonging to a national minority
are present in significant numbers and where the desire for it has been
expressed, persons belonging to this minority should have the right to
express themselves in their own language in judicial proceedings, if necessary
with the free assistance of an interpreter and/or translator.
19) In those regions and localities in which persons belonging to a national
minority live in significant numbers and where the desire for it has been
expressed, States should give due consideration to the feasibility of
conducting all judicial proceedings affecting such persons in the language
of the minority.
DEPRIVATION OF LIBERTY
20) The director of a penal institution and other personnel of the institution
shall be able to speak the language or languages of the greatest number
of prisoners, or a language understood by the greatest number of them.
Recruitment and/or training programmes should be directed towards this
end. Whenever necessary, the services of an interpreter shall be used.
21) Detained persons belonging to national minorities shall have the right
to use the language of their choice in communications with inmates as
well as with others. Authorities shall, wherever possible, adopt measures
to enable prisoners to communicate in their own language both orally and
in personal correspondence, within the limitations prescribed by law.
In this relation, a detained or imprisoned person should, in general,
be kept in a place of detention or imprisonment near his or her usual
place of residence.
EXPLANATORY NOTE
TO THE OSLO RECOMMENDATIONS REGARDING THE LINGUISTIC RIGHTS OF NATIONAL
MINORITIES
GENERAL INTRODUCTION
Article l of the Universal Declaration of Human Rights refers to the innate
dignity of all human beings as the fundamental concept underlying all
human rights standards. Article 1 of the Declaration states "All
human beings are born free and equal in dignity and rights..." The
importance of this article cannot be overestimated. Not only does it relate
to human rights generally, it also provides one of the foundations for
the linguistic rights of persons belonging to national minorities. Equality
in dignity and rights presupposes respect for the individual's identity
as a human being. Language is one of the most fundamental components of
human identity. Hence, respect for a person's dignity is intimately connected
with respect for the person's identity and consequently for the person's
language. In this context, the International Covenant on Civil and Political
Rights is of considerable importance. Article 2 of the Covenant requires
States to ensure that the human rights of all individuals within their
territory and subject to their jurisdiction will be ensured and respected
"without distinction of any kind such as... language..." Article
19 of the Covenant guarantees freedom of expression which, as it is formulated
in the Covenant, not only guarantees the right to impart or receive information
and ideas of all sorts, regardless of frontiers, but also guarantees the
right to do so in the medium or language of one's choice. The imparting
and receiving of information also suggests people acting in community.
In this context, Articles 21 and 22 of the Covenant guaranteeing the freedoms
of peaceful assembly and association may be especially relevant. Similarly,
in Europe the freedom of expression stipulated in Article 10 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms
shall be, according to Article 14 of the same convention, "secured
without discrimination on any ground such as... language..." With
expressed reference to both the Universal Declaration of Human Rights
and the European Convention for the Protection of Human Rights and Fundamental
Freedoms, the Council of Europe's Declaration on Freedom of Expression
and Information affirms "that the freedom of expression and information
is necessary for the social, economic, cultural and political development
of every human being, and constitutes a condition for the harmonious progress
of social and cultural groups, nations and the international community".
In this connection, the freedoms of peaceful assembly and association
as guaranteed by Article 11 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms are important.Within the context
of the Organisation for Security and Cooperation in Europe (OSCE), the
same fundamental ideas of freedom of expression, assembly and association
are enumerated in paragraphs 9.1-9.3 of the Document of the Copenhagen
Meeting of the Conference on the Human Dimension. In the Charter of Paris
for a New Europe, the Heads of State and Government of the OSCE participating
States "affirm that, without discrimination, every individual has
the right to:... freedom of expression, freedom of association and peaceful
assembly,..." Article 27 of the International Covenant on Civil and
Political Rights is another key provision which has direct bearing on
the linguistic rights of national minorities. It affirms that "persons
belonging to... minorities shall not be denied the right, in community
with the other members of their group, to... use their own language".
Similarly, Article 2(1) of the UN Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities proclaims
the right of persons belonging to national minorities to "use their
own language, in private and in public, freely and without interference
or any form of discrimination". Article 10(1) of the Council of Europe's
Framework Convention for the Protection of National Minorities stipulates
that States will recognise the right of persons belonging to national
minorities "to use freely and without interference his or her minority
language, in private and in public, orally and in writing." Although
the instruments refer to the use of minority languages in public and in
private, these same instruments do not precisely delimit the "public"
as opposed to the "private" spheres. Indeed the spheres may
overlap. This may well be the case, for example, when individuals acting
alone or in community with others seek to establish their own private
media or schools. What might begin as a private initiative may become
the subject of legitimate public interest. Such an interest may give rise
to some public regulation. The use of minority languages "in public
and in private" by persons belonging to national minorities cannot
be considered without making reference to education. Education issues
as they relate to the languages of national minorities are treated in
detail in The Hague Recommendations Regarding the Education Rights of
National Minorities which were developed for the benefit of the OSCE High
Commissioner on National Minorities by The Foundation on Inter-Ethnic
Relations in collaboration with experts of international repute in the
fields of both international human rights and education. The Hague Recommendations
were developed with a view to facilitating a clearer understanding of
the international instruments pertaining to the rights of persons belonging
to national minorities in this area which is of such vital importance
to the maintenance and development of the identity of persons belonging
to national minorities.International human rights instruments stipulate
that human rights are universal and that they must be enjoyed equally
and without discrimination. Most human rights, however, are not absolute.
The instruments do foresee a limited number of situations in which States
would be justified in restricting the application of certain rights. The
restrictions permitted by international human rights law can be invoked
in life-threatening emergencies and in situations which pose a threat
to the rights and freedoms of others, or in situations which threaten
public morals, public health, national security and the general welfare
in a democratic society . In human rights law, restrictions on freedoms
are to be interpreted restrictively.The rights of persons belonging to
national minorities to use their language(s) in public and in private
as set forth and elaborated in The Oslo Recommendations Regarding the
Linguistic Rights of National Minorities must be seen in a balanced context
of full participation in the wider society. The Recommendations do not
propose an isolationist approach, but rather one which encourages a balance
between the right of persons belonging to national minorities to maintain
and develop their own identity, culture and language and the necessity
of ensuring that they are able to integrate into the wider society as
full and equal members. From this perspective, such integration is unlikely
to take place without a sound knowledge of the official language(s) of
the State. The prescription for such education is implied in Articles
13 and 14 of the International Covenant on Economic, Social and Cultural
Rights and Articles 28 and 29 of the Convention on the Rights of the Child
which confer a right to education and oblige the State to make education
compulsory. At the same time, Article 14(3) of the Framework Convention
for the Protection of National Minorities provides that the teaching of
a minority language "shall be implemented without prejudice to the
learning of the official language or the teaching in this language."
NAMES
1) Article 11(1) of the Framework Convention for the Protection of National
Minorities stipulates that persons belonging to national minorities have
the right to use their first name, their patronym and their surname in
their own language. This right, the enjoyment of which is fundamental
to one's personal identity, should be applied in light of the circumstances
particular to each State. For example, public authorities would be justified
in using the script of the official language or languages of the State
to record the names of persons belonging to national minorities in their
phonetic form. However this must be done in accordance with the language
system and tradition of the national minority in question. In view of
this very basic right relating closely to both the language and the identity
of individuals, persons who have been forced by public authorities to
give up their original or ancestral name(s) or whose name(s) have been
changed against their will should be entitled to revert to them without
having to incur any expenses.
2) Names are an important element of corporate identity as well, especially
in the context of persons belonging to national minorities acting "in
community". Article 2(1) of the UN Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities proclaims
the right of persons belonging to national minorities to "use their
own language, in private and in public, freely and without interference
or any form of discrimination". Article 10(1) of the Framework Convention
for the Protection of National Minorities stipulates that States will
recognise the right of persons belonging to national minorities to "use
freely and without interference his or her minority language, in private
and in public, orally and in writing." Article 27 of the International
Covenant on Civil and Political Rights declares that "persons belonging
to... minorities shall not be denied the right, in community with other
members of their group... to use their own language". A person's
right to use his or her language in public, in community with others and
without any interference or any form of discrimination is a strong indication
that legal entities such as institutions, associations, organisations
or business enterprises established and run by persons belonging to national
minorities enjoy the right to adopt the name of their choice in their
minority language. Such a corporate name should be recognised by the public
authorities and used in accordance with the given community's language
system and traditions.
3) Article 11(3) of the Framework Convention states that "in areas
traditionally inhabited by substantial numbers of persons belonging to
a national minority, the Parties shall endeavour... to display traditional
local names, street names and other topographical indications intended
for the public also in the minority language when there is sufficient
demand for such indications". Refusal to recognise the validity of
historic denominations of the kind described can constitute an attempt
to revise history and to assimilate minorities, thus constituting a serious
threat to the identity of persons belonging to minorities.
RELIGION
4) Article 27 of the International Covenant on Civil and Political Rights
affirms that "In those States in which ethnic, religious or linguistic
minorities exist, persons belonging to such minorities shall not be denied
the right, in community with the other members of their group... to profess
and practice their own religion, or to use their own language." Article
3(1) of the UN Declaration on the Rights of Persons Belonging to National
or Ethnic, Religious and Linguistic Minorities stipulates that "Persons
belonging to minorities may exercise their rights... individually as well
as in community with other members of their group, without any discrimination."Religious
belief and its practice "in community" is an area of great importance
to many persons belonging to national minorities. In this context it is
worth noting that the right to one's own religion is unlimited and guaranteed
by Article 18(1) of the International Covenant on Civil and Political
Rights and Article 9(1) of the European Convention for the Protection
of Human Rights and Fundamental Freedoms. However, the freedom to manifest
one's religion and beliefs, including public worship, is subject to a
number of limitations listed in subsidiary paragraphs of the same articles.
These limitations must be prescribed by law and relate to the protection
of public safety, order, health, morals and the protection of the fundamental
rights and freedoms of others. They must be reasonable and proportional
to the end sought, and States may not invoke them with a view to stifling
the legitimate spiritual, linguistic or cultural aspirations of persons
belonging to national minorities.In minority contexts, the practice of
religion is often especially closely related to the preservation of cultural
and linguistic identity. The right to use a minority language in public
worship is as inherent as the right to establish religious institutions
and the right to public worship itself. Hence, public authorities may
not impose any undue restrictions on public worship nor on the use of
any language in public worship, be it the mother tongue of the national
minority in question or the liturgical language used by that community.
5) Religious acts such as wedding ceremonies or funerals may also constitute
legal civil acts determining civil status in certain countries. In such
cases, public interest must be taken into consideration. Keeping in mind
the principle that administrative considerations should not prevent the
enjoyment of human rights, public authorities should not impose any linguistic
restrictions on religious communities. This should apply equally to any
administrative functions which religious communities assume and which
may overlap with civil jurisdiction. The State may, however, require the
religious community to record legal civil acts for which it has authority
also in the official language or languages of the State so that the State
may perform its legitimate regulatory and administrative tasks.
COMMUNITY LIFE AND NGOs
6) The collective life of persons belonging to national minorities, their
acting "in community" as stated by the international instruments,
finds its expression in numerous activities and areas of endeavour. Not
least of these is the life of their non- governmental organisations, associations
and institutions whose existence is usually vital for the maintenance
and development of their identity and is generally seen as beneficial
and conducive to the development of civil society and democratic values
within States. Articles 21 and 22 of the International Covenant on Civil
and Political Rights and Article 11 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms guarantee the right
of persons to peaceful assembly and the freedom of association. The right
of persons to act "in community" with other members of their
group - their right to establish and manage their own non-governmental
organisations, associations and institutions - is one of the hallmarks
of an open and democratic society. Article 27 of that same Covenant affirms
that "Persons belonging to... minorities shall not be denied the
right, in community with the other members of their group, to... use their
own language". As a rule, therefore, public authorities should not
be involved in the internal affairs of such entities "acting in community",
nor may they impose any limits on them, other than those permitted under
international law. Article 17(2) of the Framework Convention for the Protection
of National Minorities similarly engages States "not to interfere
with the right of persons belonging to national minorities to participate
in the activities of non-governmental organisations, both at the national
and international levels". Article 2(1) of the International Covenant
on Civil and Political Rights stipulates that each State undertakes "to
ensure to all individuals within its territory and subject to its jurisdiction
the rights recognised in the present Covenant, without distinction of
any kind such as... language". In line with this standard, States
may not discriminate against NGOs on the basis of language nor impose
any undue language requirements on them. This having been said, public
authorities may require that such organisations, associations and institutions
conform to the requirements of domestic law on the basis of a legitimate
public interest, including the use of the official language(s) of the
State in situations requiring interface with public bodies.With regard
to resources, paragraph 32.2 of the Copenhagen Document states that persons
belonging to national minorities have the right "to establish and
maintain their own educational, cultural and religious institutions, organisations
or associations, which can seek voluntary financial and other contributions
as well as public assistance, in conformity with national legislation."
Accordingly, States should not prevent these entities from seeking financial
resources from the State budget and from public international sources
as well as from the private sector.
7) With regard to State financing of non-governmental activities in, among
others, the social, cultural or sports fields, application of the principles
of equality and non-discrimination requires that the public authorities
provide an appropriate share of funding to similar activities taking place
in the language of the national minorities living within their borders.
In this context, Article 2(1) of the International Covenant on Civil and
Political Rights stresses not only that there will be no distinction based
on language in the treatment of individuals, but stipulates in Article
2(2) that States are required to "take the necessary steps... to
adopt such legislative or other measures as may be necessary to give effect
to the rights recognised in the... Covenant". Furthermore, Article
2(2) of the International Covenant on the Elimination of Racial Discrimination,
(which seeks to eliminate any distinction, exclusion, restriction, or
preference based on race, colour, descent, or national or ethnic origin)
stipulates that "States Parties shall, when the circumstances so
warrant, take, in the social, economic, cultural and other fields, special
and concrete measures to ensure the adequate development and protection
of certain racial groups or individuals belonging to them, for the purpose
of guaranteeing them the full and equal enjoyment of human rights and
fundamental freedoms..." Insofar as language is often a defining
criterion of ethnicity as protected by the aforementioned convention,
minority language communities may also be entitled to the benefits of
such "special and concrete measures". At the European level,
paragraph 31 of the Copenhagen Document stipulates that "States will
adopt, where necessary, special measures for the purpose of ensuring to
persons belonging to national minorities full equality with the other
citizens in the exercise and enjoyment of human rights and fundamental
freedoms". Paragraph 2 of Article 4 of the Framework Convention for
the Protection of National Minorities obligates the States Parties "to
adopt, where necessary, adequate measures in order to promote, in all
areas of economic, social, political and cultural life, full and effective
equality between persons belonging to a national minority and those belonging
to the majority"; paragraph 3 of the same Article further specifies
that such "measures adopted in accordance with paragraph 2 shall
not be considered to be an act of discrimination." Moreover, Article
7(2) of the European Charter for Regional or Minority Languages stipulates
that "the adoption of special measures in favour of regional or minority
languages aimed at promoting equality between the users of the languages
and the rest of the population or which take account of their specific
conditions is not considered to be an act of discrimination against the
users of more widely used languages." In this context, therefore,
public authorities should provide an equitable share of resources from
the State budget to the activities of persons belonging to national minorities
in, among others, the social, cultural and sports related fields. Such
support can be made available through subsidies, public benefits and tax
exemptions.
THE MEDIA
8) Article 19 of the International Covenant on Civil and Political Rights,
which guarantees the right to hold opinions as well as the right to express
them, is a fundamental point of reference regarding the role and place
of media in democratic societies. While Article 19(1) provides that "everyone
shall have the right to hold opinions without interference", Article
19(2) proceeds to guarantee to everyone the freedom "to seek, receive
and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through
the media of his choice." Article 10 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms guarantees the
right to freedom of expression in a similar way. The member States of
the Council of Europe reiterated in Article I of the Declaration on the
Freedom of Expression and Information "their firm attachment to the
principles of freedom of expression and information as a basic element
of democratic and pluralist society". On this basis, States declared
in the same instrument that "in the field of information and mass
media they seek to achieve... d. The existence of a wide variety of independent
and autonomous media, permitting the reflection of diversity of ideas
and opinions".Article 9(1) of the Framework Convention for the Protection
of National Minorities states clearly that persons belonging to national
minorities are free "to hold opinions and to receive and impart information
and ideas in the minority language, without interference by public authorities
and regardless of frontiers..." Further on, the same provision engages
States to "ensure, within the framework of their legal systems, that
persons belonging to a national minority are not discriminated against
in their access to the media." Article 9(3) of the Framework Convention
stipulates that States "shall not hinder the creation and the use
of printed media by persons belonging to national minorities." The
same provision requires that "in the legal framework of sound radio
and television broadcasting, [States] shall ensure, as far as possible...
that persons belonging to national minorities are granted the possibility
of creating and using their own media." It is also to be noted that
media may constitute entities of the kind foreseen in inter alia, paragraph
32.2 of the Copenhagen Document which provides for the right of persons
belonging to national minorities to "establish and maintain their
own educational, cultural and religious institutions, organisations or
associations..." Even though the media are not cited expressly in
this standard, the media often plays a fundamental role in the promotion
and preservation of language, culture and identity. Although there can
be no doubt that persons belonging to national minorities have the right
to establish and maintain private media, it is also true that this right
is subject to the limitations provided by international law as well as
such legitimate requirements of the State regarding the regulation of
the media. Article 9(2) of the Framework Convention makes this very clear
by underlining that the freedom of expression referred to in article 9(1)
of the Convention "shall not prevent Parties from requiring the licensing,
without discrimination and based on objective criteria, of sound radio
and television broadcasting, or cinema enterprises." Regulatory requirements,
where justified and necessary, may not be used to undermine the enjoyment
of the right.
9) The issue of access to publicly funded media is closely linked with
the concept of freedom of expression. Article 9(1) of the Framework Convention
stipulates that the freedom of expression of persons belonging to national
minorities includes the freedom to impart information and ideas in the
minority language, without interference by public authorities, and goes
on to say that "members of minorities shall not be discriminated
against in their access to the media." Article 9(4) of the Framework
Convention stipulates that "Parties shall adopt adequate measures
in order to facilitate access to the media for persons belonging to national
minorities." This implies that a national minority consisting of
a substantial number of members should be given access to its fair share
of broadcast time, on public radio and/or television, with the numerical
size of the minority in question having a bearing on its share of broadcast
time. Numerical strength and concentration, however, cannot be seen as
the only criteria when judging the amount of broadcast time to be allocated
to any given national minority. In the case of smaller communities, consideration
must be given to the viable minimum of time and resources without which
a smaller minority would not meaningfully be able to avail itself of the
media. Moreover, the quality of the time allotted to minority programming
is an issue that needs to be approached in a reasonable, non-discriminatory
manner. The time-slots allotted to minority language programming should
be such as to ensure that persons belonging to a national minority can
enjoy programming in their language in a meaningful way. Hence, public
authorities should ensure that this programming is transmitted at reasonable
times of the day.
10) In an open and democratic society the content of media programming
should not be unduly censored by the public authorities. The freedom of
expression as guaranteed by Article 19(1) of the International Covenant
on Civil and Political Rights and Article 10(1) of the European Convention
for the Protection of Human Rights and Fundamental Freedoms is important
in this regard. Any restrictions which might be imposed by the public
authorities must be in line with Article 19(3) of the Covenant which stipulates
that these restrictions "shall only be such as are provided by law
and are necessary a) For the respect of the rights and reputations of
others, b) For the protection of national security or of public order
(ordre public), or of public health and morals." Article 10(2) of
the European Convention for the Protection of Human Rights and Fundamental
Freedoms stipulates almost identical restrictions on any interference
by public authorities with the enjoyment of freedom of expression.Mechanisms
should be put in place to ensure that the public media programming developed
by or on behalf of national minorities reflects the interests and desires
of the community's members and is seen by them as independent. In this
context, the participation of persons belonging to national minorities
(acting in their private capacity) in the editorial process would go a
long way in ensuring that the independent nature of the media would be
preserved and that it would be responsive to the needs of the communities
to be served. In line with the principle of equality and non-discrimination,
the composition of public institutions should be reflective of the populations
they are designed to serve. This also applies to public media. Article
15 of the Framework Convention engages States to "create the conditions
necessary for the effective participation of persons belonging to national
minorities in cultural, social and economic life and in public affairs,
in particular those affecting them." Article 2 of International Labour
Organisation Convention No. 111 Concerning Discrimination in Respect of
Employment and Occupation is more explicit in committing States to "pursue
a national policy designed to promote... equality of opportunity and treatment
in respect of employment and occupation, with a view to eliminating any
discrimination in respect thereof." The non-discriminatory hiring
of persons belonging to national minorities to work in the media will
contribute to the representativity and objectivity of the media.
11) In keeping with the spirit of Articles 19(2) of the International
Covenant on Civil and Political Rights and Article 9(1) of the Framework
Convention for the Protection of National Minorities and of the principle
of non-discrimination, access to programming in the language of persons
belonging to a national minority, transmitted from another State or from
the "kin-State", should not justify a diminution of programme
time allotted to the minority on the public media of the State in which
its members live. Transfrontier access to information and media networks
is a fundamental element of the right to information which, in the context
of accelerated technological progress, is of growing importance. Consequently,
when cable licensing is involved, for example, it is not legitimate for
a State to refuse to license television or radio stations based in a kin-State
when the desire for access to these stations has been clearly expressed
by the national minority concerned. This right applies not only to cable
media but also to electronic information networks in the language of the
national minority.As a general matter, the member States of the Council
of Europe resolved in Article III(c) of the Declaration on the Freedom
of Expression and Information "to promote the free flow of information,
thus contributing to international understanding, a better knowledge of
convictions and traditions, respect for the diversity of opinions and
the mutual enrichment of cultures". In relation to media contacts
across frontiers, States should conform their policies to the spirit of
this provision.
ECONOMIC LIFE
12) International instruments make little reference to the rights of persons
belonging to national minorities in the field of economic activity. International
instruments do, however, refer to the right of persons belonging to national
minorities to use their language in public and in private, freely and
without any form of discrimination, orally and in writing, individually
and with others. Article 19(2) of the International Covenant on Civil
and Political Rights and Article 10(1) of the European Convention for
the Protection of Human Rights and Fundamental Freedoms guarantee freedom
of expression with respect not only to ideas and opinions which may be
transmitted to others (i.e. the content of communications), but also to
language as a medium of communication. These rights, coupled with the
right to equality and non-discrimination, imply the right of persons belonging
to national minorities to run their businesses in the language of their
choice. In view of the importance to private entrepreneurs to be able
to communicate effectively with their clientele and to pursue their initiatives
in fair conditions, there should be no undue restrictions on their free
choice of language.Article 11(2) of the Framework Convention stipulates
that "every person belonging to a national minority has the right
to display in his or her minority language, signs, inscriptions and other
information of a private nature visible to the public." In the Framework
Convention the expression "of a private nature" refers to all
that is not official. Hence, the State may not impose any restrictions
on the choice of language in the administration of private business enterprises.
Notwithstanding the above, the State may require that the official language
or languages of the State be accommodated in those sectors of economic
activity which affect the enjoyment of the rights of others or require
exchange and communication with public bodies. This follows from the permissible
restrictions on freedom of expression as stipulated in Article 19(3) of
the International Covenant on Civil and Political Rights and Article 10(2)
of the European Convention for the Protection of Human Rights and Fundamental
Freedoms. While the limited permissible restrictions expressed in the
aforementioned articles could justify restrictions on the content of communications,
they would never justify restrictions on the use of a language as a medium
of communication. However, protection of the rights and freedoms of others
and the limited requirements of public administration may well justify
specific prescriptions for the additional use of the official language
or languages of the State. This would apply to sectors of activity such
as workplace health and safety, consumer protection, labour relations,
taxation, financial reporting, State health and unemployment insurance
and transportation, depending on the circumstances. On the basis of a
legitimate public interest, the State could, in addition to the use of
any other language, also require that the official language or languages
of the State be accommodated in such business activities as public signage
and labelling - as expressly stated in paragraph 60 of the Explanatory
Report to the Framework Convention for the Protection of National Minorities.
In sum, the State could never prohibit the use of a language, but it could,
on the basis of a legitimate public interest, prescribe the additional
use of the official language or languages of the State.In keeping with
the logic of legitimate public interest, any requirement(s) for the use
of language which may be prescribed by the State must be proportional
to the public interest to be served. The proportionality of any requirement
is to be determined by the extent to which it is necessary. Accordingly,
for example, in the public interest of workplace health and safety, the
State could require private factories to post safety notices in the official
language or languages of the State in addition to the chosen language(s)
of the enterprise. Similarly, in the interest of accurate public administration
in relation to taxation, the State could require that administrative forms
be submitted in the official language or languages of the State and that,
in the case of an audit by the public authorities, relevant records be
made available also in the official language or languages of the State;
the latter eventuality would not require that private enterprise maintain
all records in the official language or languages of the State, but only
that the burden of possible translation rests with the private enterprise.
This is without prejudice to the possible entitlement of persons belonging
to national minorities to use their language(s) in communications with
administrative authorities as foreseen in Article 10(2) of the Framework
Convention for the Protection of National Minorities.
ADMINISTRATIVE AUTHORITIES AND PUBLIC SERVICES
13/14/15) OSCE Participating States are committed to taking measures which
will contribute to creating a dynamic environment, conducive not only
to the maintenance of the identity of persons belonging to national minorities
(including their language) but also to their development and promotion.
As a consequence, these States have undertaken to respect "the right
of persons belonging to national minorities to effective participation
in public affairs" as outlined in paragraph 35 of the Copenhagen
Document. Article 10(2) of the Framework Convention for the Protection
of National Minorities expressly requires States to "make possible
the use of minority languages in communications with administrative authorities."
Paragraph 35 of the Copenhagen Document also makes reference to the possibility
of creating an environment that would be conducive to the participation
of national minorities in public affairs, in their own language, by establishing
"appropriate local or autonomous administrations corresponding to
the specific historical and territorial circumstances of minorities in
accordance with the policies of the State concerned". Article 15
of the Framework Convention engages States to "create the conditions
necessary for the effective participation of persons belonging to national
minorities in cultural, social and economic life and in public affairs,
in particular those affecting them." These provisions engage public
authorities to enable persons belonging to national minorities to deal
with local authorities in their language or to receive civil certificates
and attestations in their own language. In line with the principles of
equality and non-discrimination, these provisions also imply a dynamic
participatory relationship wherein the language of the minority may be
a full-fledged vehicle of communication in local political life and in
the interface between citizens and public authorities including in the
provision of public services. The ethnic representativity of administrative
institutions and agencies designed to serve the population is usually
reflective of a pluralistic, open and non-discriminatory society. In order
to counter the effects of past or existing discrimination within the system,
Article 2 of International Labour Organisation Convention No. 111 Concerning
Discrimination in Respect of Employment and Occupation requires States
to "pursue a national policy designed to promote... equality of opportunity
and treatment in respect of employment and occupation, with a view to
eliminating any discrimination in respect thereof." When designing
and implementing programmes and services intended to serve the public,
it is reasonable to expect that governments committed to the principles
outlined above should take into consideration the expressed desires of
persons belonging to national minorities as well as the principle of numerical
justification. Where the need is expressed and the numbers are significant,
equity requires that taxpayers belonging to national minorities have access
to services also in their own language. This is particularly so in the
case of health and social services which affect the quality of peoples'
lives in an immediate and fundamental manner.In line with the principles
of equality and non-discrimination, administrative authorities are expected
to deal with persons belonging to national minorities in an inclusive
and equitable manner. States must recognise the demographic realities
of the regions under their jurisdiction. Above all, States should not
seek to avoid their obligations by changing the demographic reality of
a region. Specifically Article 16 of the Framework Convention engages
States to refrain from measures which might arbitrarily alter the proportion
of the population in areas inhabited by persons belonging to national
minorities with the objective of restricting the rights of these minorities.
Such measures could consist of arbitrary expropriations, evictions, expulsions
as well as the arbitrary redrawing of administrative borders and census
manipulation.
INDEPENDENT NATIONAL INSTITUTIONS
16) Human rights acquire real meaning for their intended beneficiaries
when the public authorities of the State establish mechanisms to ensure
that the rights guaranteed in international conventions and declarations,
or in domestic legislation, are effectively implemented and protected.
As a complement to judicial procedures, independent national institutions
usually provide quicker and less expensive recourses and are as such more
accessible. Discrimination as referred to in the Convention on the Elimination
of Racial Discrimination is not defined according to criteria relating
strictly to race. Article 1(1) of the Convention stipulates that the concept
of racial discrimination shall mean "any distinction, exclusion,
restriction or preference based on race, colour, descent or national or
ethnic origin which has the purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise, on an equal footing, of human
rights and fundamental freedoms in the political, economic, social, cultural
or any other field of public life." Article 6 of the Convention declares
that "State Parties shall assure to everyone within their jurisdiction
effective protection and remedies, through the competent national tribunals
and other State institutions against any acts of racial discrimination
which violate his human rights and fundamental freedoms contrary to this
Convention..." In this context, the establishment by States of independent
national institutions that can act as mechanisms of redress and compensation,
such as the institution of ombudsperson or a human rights commission is
a measure of a given State's democratic and pluralistic nature. Accordingly,
and with reference to United Nations resolution 48/134 of 20 December
1993, the Council of Europe has encouraged, in Committee of Ministers
Recommendation No. R(97)14 of 30 September 1997, the establishment of
"national human rights institutions, in particular human rights commissions
which are pluralist in their membership, ombudsmen or comparable institutions."
Such mechanisms of redress should be made available also to persons belonging
to national minorities who consider that their linguistic and other rights
have been violated.
JUDICIAL AUTHORITIES
17/18) International law requires public authorities to ensure that all
persons who are arrested, accused and tried be informed of the charges
against them and of all other proceedings in a language they understand.
If need be, an interpreter must be made available to them free of charge.
This standard of due process of law is universal in its application and
does not relate to the linguistic rights of national minorities as such.
Rather, the underlying principles are those of equality and non-discrimination
before the law. Respect for these principles is particularly vital in
relation to criminal charges and proceedings. As a consequence, Article
14(3)(a) of the International Covenant on Civil and Political Rights requires
that everyone charged with a criminal offense shall "be informed
promptly and in detail in a language which he understands of the nature
and cause of the charge against him". Article 6(3)(a) of the European
Convention for the Protection of Human Rights and Fundamental Freedoms
stipulates the same requirement in almost identical language. In addition,
Article 5(2) of the aforementioned convention stipulates the same requirement
in relation to arrest. Furthermore, Article 14(3) of the International
Covenant on Civil and Political Rights stipulates the entitlement of everyone
"in full equality"... "(e) to examine, or have examined,
the witnesses against him and to obtain the attendance and examination
of witnesses on his behalf under the same conditions as witnesses against
him". In this connection, Article 14(3)(f) of the International Covenant
on Civil and Political Rights and Article 6(3)(e) of the European Convention
for the Protection of Human Rights and Fundamental Freedoms guarantee
the right of everyone "to have the free assistance of an interpreter
if he cannot understand or speak the language used in court." While
these guarantees concerning expressly the use of language are prescribed
specifically in relation to criminal procedures, it follows from the fundamental
guarantee of equality before courts and tribunals, as stipulated in the
first sentence of Article 14(1) of the International Covenant on Civil
and Political Rights, that legal proceedings of all kinds are to be considered
more perfectly fair to the extent that the conditions are more strictly
equal. This determination, which applies equally with respect to the choice
of language for proceedings as a whole, should guide States in the development
of their policies concerning the equal and effective administration of
justice.More generally, Article 7(1) of the European Charter for Regional
or Minority Languages declares that States shall base their policies,
legislation and practice on such objectives and principles as "the
recognition of the regional or minority languages as an expression of
cultural wealth..." and "the need for resolute action to promote
regional or minority languages in order to safeguard them". Article
7(4) of the European Charter stipulates that "in determining their
policy with regard to regional and minority languages,... Parties shall
take into consideration the needs and wishes expressed by the groups which
use such languages." Moreover, Article 15 of the Framework Convention
engages States to "create the conditions necessary for the effective
participation of persons belonging to national minorities in cultural,
social and economic life and in public affairs, in particular those affecting
them." If one considers the above-mentioned standards while taking
into consideration the importance, in democratic societies, of effective
access to justice, it is reasonable to expect that States should, so far
as possible, ensure the right of persons belonging to national minorities
to express themselves in their language in all stages of judicial proceedings
(whether criminal, civil or administrative) while respecting the rights
of others and maintaining the integrity of the processes, including through
instances of appeal.
19) Insofar as access to justice is vital to the enjoyment of human rights,
the degree to which one may participate directly and easily in available
procedures is an important measure of such access. The availability of
judicial procedures functioning in the language(s) of persons belonging
to national minorities, therefore, renders access to justice more direct
and easy for such persons. On this basis, Article 9 of the European Charter
for Regional or Minority Languages provides that, to the extent feasible
and pursuant to the request of one of the affected parties, all judicial
proceedings should be conducted in the regional or minority language.
The Parliamentary Assembly of the Council of Europe, has come to the same
conclusion in Article 7(3) of its Recommendation 1201 which provides that
"In regions in which substantial numbers of a national minority are
settled, the persons belonging to a national minority shall have the right
to use their mother tongue in their contacts with the administrative authorities
and in proceedings before the courts and legal authorities." Accordingly,
States should adopt appropriate recruitment and training policies for
the judiciary.
DEPRIVATION OF LIBERTY
20) Rule 51, paragraphs 1 and 2, of the United Nations Standard Minimum
Rules for the Treatment of Prisoners as well as Rule 60, paragraphs 1
and 2 of the European Prison Rules of the Council of Europe stress the
importance of the right of the incarcerated to be understood by the prison
administration as well as the importance for the prison administration
to be understood by the inmate population. These provisions do not relate
to minority rights as such. However, taken into consideration along with
the expressed desire of affected populations, their numerical strength
and the principle of equality and non-discrimination, the aforementioned
provisions are even more compelling in regions or localities where persons
belonging to national minorities are present in significant numbers.
21) Rule 37 of the United Nations Standard Minimum Rules for the Treatment
of Prisoners as well as Article 43(1) of the European Prison Rules of
the Council of Europe uphold the right of prisoners to communicate with
their families, reputable friends and persons or representatives of outside
organisations. In view of the importance of such human rights as freedom
of expression and the right to use one's language in public and in private,
it is incumbent upon authorities to respect these rights within the limitations
prescribed by law even in penitentiary institutions. As a rule, prisoners
should be able to communicate in their own language both orally with other
inmates and with visitors and also in personal correspondence. Nevertheless,
certain human rights and freedoms of persons detained for criminal acts
may legitimately be restricted or suspended for reasons of public security
in conformity with the limitations prescribed by the international instruments.
As a practical matter, enjoyment of the linguistic rights of detained
persons may be best facilitated by their detention in a place where their
language is usually spoken.
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