Language Rights and the Law in the European Union

Eduardo D. Faingold

Language Rights and the Law in the European Union

Eduardo D. Faingold

Language Rights and the Law in the European Union

Eduardo D. FaingoldSchool of Language and LiteratureThe University of TulsaTulsa, OK, USA

ISBN 978-3-030-33011-8 ISBN 978-3-030-33012-5 (eBook)https://doi.org/10.1007/978-3-030-33012-5

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In memory of my father,ENRIQUE FAINGOLD

(1925–2012)

vii

Preface

Language issues have been of importance to the national identity of the countries in the European Union for a long time. Countries such as Spain and Denmark have recognizable interests and ways of dealing with language questions. In this book, I examine the language policies that result from the promulgation of linguistic rights in European Union Law (the 2004 Draft Constitution and the Treaty of Lisbon) and the consti-tutions and legal statutes of selected countries in the European Union (Spain and Denmark).

This work began as a side project that entailed a critical contemplation of the language rights of individuals and groups in the constitutions of the world (Faingold, 2004) and the 2004 draft of the European Union constitution (Faingold, 2007) more than a decade ago. Throughout my academic career, my professional fields of research and interest have included bilingualism, psycholinguistics, sociolinguistics, historical lin-guistics, and the biographical study of immigrants and exiles. Where the topic of language rights in the European Union was concerned, I had to rely on my own observations of the European political scene and on reading newspapers, magazines, and the works of scholars and activists.

I felt that I was standing on shaky ground. Mostly because of often-heard claims about the law that seemed to me to be erroneous and misleading, for example, that UN resolutions and the UN Universal Declaration of Human Rights, or, more to the point, the European Charter for Regional or Minority Languages, all have force of law and confer rights to individuals or groups and are more than aspirational,

as opposed to, say, the European Convention on Human Rights. That is why, to satisfy my curiosity, in the mid-2000s, I decided to embark on the study of Language Rights and the Law in the European Union. The project would eventually include analyzing the 2004 draft EU Constitution, which failed the ratification process (Faingold, 2007; Chapter 2 of this book), the Treaty of Lisbon, produced in the aftermath of the failed ratification of the 2004 draft EU Constitution (Faingold, 2015; Chapter 3 of this book), and the study of the constitutions and statutes of selected EU countries, where indigenous or immigrant minority language-speakers live in large numbers (Spain and Denmark) (Faingold, 2016; Chapters 4 and 5 of this book).

Earlier versions of some of the chapters in this book appeared in the journal Language Problems and Language Planning (Chapters 2–4), published by John Benjamins. Permission to use these articles in this book are properly acknowledged in the acknowledgements section.

I have extensively revised and updated previously published research and provided new information to account for major political changes in the European Union, for example, the suspension of Catalonia’s polit-ical autonomy by the Spanish government in the aftermath of the dec-laration of independence by the Parliament of Catalonia in 2017; the rise of Euroscepticism in the European Union; and, last but not least, Brexit. This work also accounts for changes in my thinking. For example, the rejection of views of language rights for linguistic minorities which had been widely and unexaminedly accepted that the language rights of indigenous minorities necessarily supersede the language rights of immi-grant minorities. Some arguments were made more clear or concise, while others were expanded. A number of errors were corrected, mostly minor mistakes. Three completely new chapters were written especially for this book (Chapters 1, 5, and 6).

Revisions to Chapter 2 have benefited from comments by audiences at the Researching Language and the Law Conference, Bergamo, Italy, June 2009.

Revisions to Chapter 3 have benefited from comments by audiences at the 1st Worldwide Congress for Language Rights, Teramo, Italy, May 2015, the Multidisciplinary Approaches in Language Policy and Planning Conference, Calgary, Canada, September 2015, and the 3rd ISA Forum of Sociology, RC25, Language Representation: Struggles in the Global Age, Vienna, Austria, July 2016.

viii PREFACE

Revisions to Chapter 4 have benefited from comments by audiences at the Communication in the “Country of Babel”: Language Ideological Debates on Contact Varieties Conference, Bern, Switzerland, November 2015, the Multidisciplinary Approaches in Language Policy and Planning Conference, Calgary, Canada, September 2016, and the Language Policy Forum, Sheffield Hallam University, Sheffield, UK, May 2018.

Revisions to Chapter 5 have benefited from comments by audi-ences at the symposium of the Study Group on Language and the United Nations, The United Nations at 75: Listening, Talking, and Taking Action in a Multilingual World, New York, May, 2019, and the Multilingual Childhoods: Education, Policy, and Practice Conference, Hamar, Norway, May 2019.

Tulsa, USA Eduardo D. Faingold

references

Faingold, E. D. (2004). Language rights and language justice in the constitu-tions of the world. Language Problems and Language Planning, 28, 11–24. https://doi.org/10.1075/lplp.28.1.03fai.

Faingold, E. D. (2007). Language rights in the 2004 draft of the European Union Constitution. Language Problems and Language Planning, 31, 25–36. https://doi.org/10.1075/lplp.31.1.03fai.

Faingold, E. D. (2015). Language rights in the European Union and the Treaty of Lisbon. Language Problems and Language Planning, 39, 33–49. https://doi.org/10.1075/lplp.39.1.02fai.

Faingold, E. D. (2016). Language rights in Catalonia and the constitutional right to secede from Spain. Language Problems and Language Planning, 40, 146–162. https://doi.org/10.1075/lplp.40.2.02fai

PREFACE ix

xi

acknowledgements

I am grateful to Prof. Lani Guinier, Harvard Law School, for her advice to approach the laws of the United States and all other coun-tries critically when dealing with issues concerning minorities, and to Bishop Samuel Ruiz, formerly of Chiapas, Mexico, for challenging me to use my knowledge of linguistics for the benefit of minorities, during my tenure as a fellow of the Salzburg Seminar, Schloss Leopoldskron, Salzburg, Austria, 1999, Session 372, Race and Ethnicity: Social Change through Public Awareness. I am grateful also to Prof. Dr. Armin von Bogdandy, Director of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany, for an invitation to do research at his institute in 2014, where the idea for this book was conceived.

Chapter 2 originally appeared in Language Problems and Language Planning, volume 31: 1 (2004), pp. 25–36. © John Benjamins Publishing Company. Reprinted with permission.

Chapter 3 originally appeared in Language Problems and Language Planning, volume 39: 1 (2015), pp. 33–49. © John Benjamins Publishing Company. Reprinted with permission.

Chapter 4 originally appeared in Language Problems and Language Planning, volume 40: 2 (2016), pp. 146–162. © John Benjamins Publishing Company. Reprinted with permission.

I am indebted to the Office of the Dean of Arts and Sciences at the University of Tulsa and the W. K. Kellogg Foundation for grants to travel to Salzburg, Austria to attend Session 372 of the Salzburg Seminar in the fall of 1999, where my interest in language rights was piqued for the first time. This research was supported in part by 10 University of Tulsa Faculty Research Grants in 2003, 2010, 2013 (twice), 2014–2019.

xii ACKNOWLEDGEMENTS

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contents

1 Introduction 1

Part I European Union Language Legislation

2 Language Rights in the 2004 Draft of the European Union Constitution 9

3 Language Rights in the Treaty of Lisbon 25

Part II Language Legislation in European Union Member States

4 Language Rights and the Law in Catalonia 55

5 Language Rights and the Law in Denmark 79

6 Summary, Conclusion, and Directions for Future Research 109

References 123

Index 141

CHAPTER 1

Introduction

Abstract This chapter presents the issues, themes, and goals of the book,and provides an outline of the chapters in the book.

Keywords European Union · Language rights · Language policy ·Language minorities

In many regions of the world languages coexist uneasily. Whether real orapparent, a dominant-subservient relationship exists between speakers ofmany majority and minority languages. The drafting of explicit languagelegislation, especially in a constitution, highlights the existence of conflictsamong languages coexisting within the same nation. Ideally the purposeof language legislation should be to solve such conflicts by legally definingthe status and use of coexisting languages (Faingold, 2004; Tully, 1995;Turi, 1994). One or more languages can be targeted for promotion anddevelopment through the drafting of explicit language legislation that spec-ifies both language rights for individuals and groups and legally enshrin-ing language obligations by the nation. In practice, however, languagelegislation is sometimes used to enshrine the dominant rights of one lan-guage group over another, rather than to solve conflicts among speakers(Faingold, 2004, 2007, 2015).One example of explicit language legislationis Title 7, Sections 16–22, of the Canadian Constitution, which specifiesthe right to public instruction of speakers of the two official languages of

© The Author(s) 2020E. D. Faingold, Language Rights and the Law in the European Union,https://doi.org/10.1007/978-3-030-33012-5_1

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Canada, English, and French (Burnaby, 1996; Mackey, 2010; MacMillan,1998). Another example is the post-apartheid constitution of the Republicof South Africa, which came into effect in May 1994, in which eleven lan-guages are listed as having official status nationally. Many other languages,in addition to the official languages, are promoted for development anduse (Alexander, 2004; du Plessis, 2000; Reagan, 2004). In contrast, suchdiverse nations as the United States, Uruguay, Japan, and the Netherlandshave no explicit language legislation nor do they promote any official lan-guages in their national constitutions (Faingold, 2004). This, of course,does not mean that these nations have no implicit language policies thatpromote the languages of the majority (e.g., English in the United States;see Phillipson& Skutnabb-Kangas, 1996; Ricento, 1996; Shohamy, 2006).

This work analyzes the language policies that result from the promul-gation of linguistic rights in European Union Law (the 2004 EU draftconstitution and the Treaty of Lisbon) and in the constitutions and legalstatutes of selected countries in the European Union, such as Spain andDenmark. In the EU there exist regions in which speakers of minority lan-guages were conquered or incorporated and the languages spoken by themwere suppressed or neglected. In recent years, the EU has seen a resurgenceof claims for language recognition by minority groups representing con-siderable populations (e.g., Basque, Catalan, and Galician in Spain). Forthese reasons, it is interesting to study the linguistic laws promulgated inthe European Union, at the supranational level in European Union law aswell as at the national level in the constitutions and statutes of selected EUcountries, or the lack thereof, as a response to the demands for linguisticrights by indigenous and immigrant sectors of the population who do notspeak the majority language as a first language or who may seek to maintainthe use of one or more minority languages.

The point of this study is to look beyond one single case and to learnof other ways of managing issues. Spain, an EU country with importantlinguistic regional minorities (e.g., Basque, Catalan, andGalician), but withno significant non-Spanish-speaking immigrant minorities living within itsterritory, provides a unique opportunity for the study of language rightsand language policy for regional minorities (e.g., Catalan) in a Europeanand broader international contexts. On the other hand, Denmark, oneof the few EU countries with no significant regional minorities (with theexception of the German-speaking minority in South Jutland), but withsignificant immigrantminorities living there, provides a unique opportunityfor a case study of migration and language policy in a European context.

1 INTRODUCTION 3

In presenting these case studies together, I aim to facilitate not only theunderstanding and improvement of implicit and explicit language policies,such as the legislation and planning of bilingual acquisition and educationand linguistic corpora (e.g., dictionaries, grammars, school curricula, stan-dards for broadcasting, the language of journals and newspapers, bills, laws,etc.) but also access to comparable information for the development of newtheoretical perspectives about the operation of languages in legal, social,and political contexts. The book offers insights not only for the benefit ofthose in charge of drafting legislation but also for students, scholars, and thegeneral public in the area of language policy and language rights. It showshow the European Union and its associated countries could recognize andaccommodate linguistic diversity.

Thus, this book focuses on the degree of protections afforded to bothindigenous and immigrant linguistic groups in the European Union. Sec-ond, political, historical, economic, and social developments relevant tothe focus of this work are analyzed and discussed for each case. Finally, Iaim to offer insights to those in charge of drafting legislation in the area oflanguage rights and to discover whether European Union legislation andthe constitutions and statutes of selected European countries can recognizeand accommodate linguistic diversity.

This chapter presents the issues, themes, and goals of the book, andprovides an outline of the chapters in the book.

Chapter 2 analyzes the 2004 draft of the European Union Constitu-tion which contains legal language defining the linguistic obligations ofthe EU and the language rights of its citizens. It shows that the 2004 draftfails to achieve language justice for European Union citizens who speakregional minority languages. These minority languages include Catalan,Basque, and Galician in Spain, Welsh in the UK, and others. This chapterargues that future drafts of the European Union Constitution should emu-late the constitutions of countries that have a similar geopolitical make upsituation to the one currently found in the European Union (i.e., countriesthat recognize the rights of minorities having or seeking autonomy withintheir territory) and draft specific provisions to protect the linguistic rightsof such minorities; or draft linguistic protections similar to those enactedby countries that recognize the linguistic rights of individuals and groupsas fundamental (e.g., South Africa). Future drafts of the European UnionConstitution could pay heed to earlier pronouncements and bodies cre-ated by the European Union to support minority languages, such as the

4 E. D. FAINGOLD

European Bureau for Lesser-Used Languages and the European Charterfor Regional and Minority languages.

Chapter 3 studies the Treaty of Lisbon for language defining the lin-guistic obligations of the European Union and the language rights of itscitizens. The Treaty fails to address the rights of minority language speakersin the European Union, including, most perilously, the rights of minoritieswho are seeking to secede from their own countries (e.g., Catalonia andScotland) and minorities who have used violence in their quest for politicalrights (e.g., the Basque Country and Corsica). It calls for a more pluralisticapproach to language legislation and for de jure language rights for speak-ers of minority languages in the European Union, especially for speakers ofofficial minority languages, such as Catalan, Basque, and Galician in Spain,Scottish Gaelic and Welsh in the UK, and others. Here as well, future revi-sions of the Treaty of Lisbon may need to pay heed to earlier pronounce-ments and bodies created by the European Union to support minoritylanguages, such as the European Bureau for Lesser-Used Languages andthe European Charter for Regional and Minority languages. The reason tosingle out minority languages that enjoy some degree of official recogni-tion in their own countries is that conflict between these languages and themajority language may exacerbate existing claims of self-determination orsecession from a country in the European Union.

Chapter 4 examines the language rights of linguistic minorities (e.g.,Catalan, Galician, and Basque) in Spain vis-à-vis the Spanish-speakingmajority with special focus on Catalan-speakers in Catalonia. Legal dis-courses as stated in the Catalonia Statutes of Autonomy of 1979 and2006 and the Spanish Constitution of 1978 are exhaustively studied. Thechapter also analyzes the ruling of the Constitutional Court of Spain of2010 which annulled or reinterpreted articles of the Statute of Cataloniaof 2006, including Article 6.1, which declares Catalan as the “preferen-tial” language of Catalonia. The chapter offers suggestions for improvinglanguage rights for speakers of Catalan, both within the Spanish state andthe European Union, to help de-escalate language conflict between Cat-alonia and the Spanish state. For example, the two sides may seek to amendCatalonia’s Statutes of Autonomy, as per Article 148 of the Spanish Consti-tution, which provides the legal mechanisms for expanding language rightsfor Speakers of Catalan in Catalonia (e.g., allowing communications withSpain’s national state institutions in Catalan; supporting the disseminationof Catalan language and culture in Spanish regions that share a Catalan

1 INTRODUCTION 5

cultural and linguistic heritage in Valencia and the Balearic Islands; seekingexpanded language rights within the European Union).

Chapter 5 studies the ways in which Denmark addresses the issue of lan-guage rights of immigrantminorities. The chapter examinesDenmark’s lan-guage legislation, especially laws with provisions that protect the languagerights of the Danish-speaking majority and hinder the language rights ofimmigrants. Growing negative feelings toward immigration in Denmarkhas become associated with the growing number of Muslim immigrantsand their descendants, leading to the passing of a wide array of laws withprovisions that have increasingly hampered the language rights of non-Western immigrants in the areas of naturalization and education, includinglaws that promote Danish mainstream culture and language in the educa-tional system fromkindergarten to high school, and disregard the languagesand cultures of immigrant children. These laws greatly restrict or outrightlyban mother tongue education for immigrant children from non-Westerncountries but offer it to children from EU member states, the EEA area,and the Faroe Islands and Greenland. Other laws make excessive demandsin Danish proficiency for non-Western (mostly Muslim) immigrants seek-ing to obtain residence or naturalization but establish no such languagerequirements for Western immigrants working at universities.

Chapter 6 summarizes the findings of the book and offers directions forfuture research for the study of language rights in the European Union, forexample, the need to closely scrutinize the view that the language rights ofindigenous minorities necessarily supersede the language rights of immi-grants in the EU and elsewhere (e.g., Kymilcka, 1995; May, 2008); thestudy of language rights and the law affecting immigrants in other Scan-dinavian countries, especially countries which are EU member states (e.g.,Sweden) or associated states (e.g., Norway); and, last but not least, thepossible effects of the UK exiting the EU (Brexit) on the revitalization ofregional minority languages spoken in the UK (the Celtic languages) andon the status of English as an official or working language of the EU areoutlined.

References

Alexander, N. (2004). The politics of language planning in post-apartheid SouthAfrica. Language Problems and Language Planning, 28, 113–130. https://doi.org/10.1075/lplp.28.2.02ale.

Burnaby, B. (1996). Language policies in Canada. In M. Herriman & B. Burnaby(Eds.), Language policies in English-dominant countries (pp. 159–219). Cleve-don, UK: Multilingual Matters.