A dog without a bark: a critical assessment of the international law on language rights.

• Author: Abayasekara, Sadhana

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If you dress up as a dog, be prepared to bark.

- Tamil proverb

If you choose to attend the bat's wedding, be prepared to hang upside down.

- Sinhala (1) proverb

ABSTRACT

This article investigates the role of international law in language policy. The post-conflict, multilingual context of Sri Lanka brings out the limitations of international law in achieving linguistic justice. The current language rights regime in international law is piecemeal and tends to cover only minimal 'tolerance' rights. Sri Lanka's official language policy seems to surpass the demands of international law, yet there are significant failures of implementation. The Sri Lankan experience suggests that international law is unable to make a helpful intervention in state language policy while it is focused on encoding a single conception of linguistic justice. International law currently faces the problems of essentialism, universalism, political neutrality and the tension between linguistic diversity and nation-building. Possible alternatives include regional instruments and a case-by-case approach to language policy. International law could provide higher tolerance standards on language rights, but the onus falls on nation-states to implement promotion-oriented rights in the pursuit of linguistic justice.

Introduction

This article investigates the role or international law in influencing stale language policy. The implementation of language rights in contemporary Sri Lanka is taken as a case study. While language policy was a key point of controversy in Sri Lanka, particularly since 1956, language rights now pose a possible pathway for building reconciliation after the civil war. Taking examples from the Sri Lankan context, including how language policy operates in courts, schools and public services, the expectations set by the current regime of language rights in international law are considered and the fundamental issues with the international law on language rights will be drawn out. The issues raised include the problem of essentialism, universalism, political neutrality and the tension between promoting linguistic diversity and nation-building. Finally, it will be argued that international law alone provides an inadequate framework for achieving linguistic justice, and this article will gesture at alternative approaches towards influencing state policy on language rights.

1. The International Law on Language Rights

   There is no comprehensive, overarching framework for the protection of language rights in international law. International law does not actually recognise 'language rights' in a clear, codified form. However, limited rights to language are implied in international instruments protecting other areas of rights, including minority rights, (2) cultural rights, (3) non-discrimination rights, (4) freedom of expression, (5) children's rights, (6) the right to a fair trial, (7) and education rights. (8) Most of the rights relating to language are negative assurances of the non-interference of the state in the private uses of language. Article 27 of the International Covenant on Civil and Political Rights ('ICCPR') states in negative terms that linguistic minorities 'shall not be denied the right ... to use their own language'; this is the most extensive provision on language rights in binding human rights treaty law. (9) Very few rights impose direct, positive measures for stale support of minority languages. The clearest example is the right to a fair trial, which requires the state to ensure that the accused can participate in judicial processes in a language they understand. A more ambiguous example is the recent UNESCO Convention which encourages states to 'adopt measures aimed at protecting and promoting the diversity of cultural expression' including language use. (10)

   As later argued in this article, the 'phoenix' (11) of international law is a frail creature when it comes to language rights. From this brief overview of the relevant agreements, we can already see that international law does not commit to a clear vision of 'linguistic justice'. (12) The rights protected in the major international covenants are weak, minimal 'tolerance' rights. There are no clearly calibrated standards for states to aspire to. Even in the rare instances where stronger, 'promotion-oriented' rights are protected, they tend to be qualified or entail indeterminate standards such that states could easily avoid compliance. For example, the promotion of cultural expression is conditional on states 'taking into account [their] own particular circumstances and needs'. (13) As Dunbar states, language rights are not dealt with as fundamental human rights in international law. Dunbar supports this assertion by pointing to the piecemeal, patchwork nature of the language rights regime, the limits imposed upon these rights and the fact that state obligations are based on non-binding instrumenrs which lack enforcement mechanisms. (14)

   There are relatively stronger arrangements for linguistic rights protection in regional instruments, such as the European Framework convention (15) and the Council of Europe's Minority languages Charter, (16) and also non-binding declarations, such as the UN Declaration on the Rights of Minorities, (17) the Copenhagen Document (18) and the Oslo Recommendations. (19) The Declaration on the Rights of Minorities contains some of the stronger expressions of language rights among international instruments. (20) However, it remains non-binding, 'soft law'; it has not hardened into customary international law since no uniform standards or norms on language rights have been identified. (21) On the other hand, the European region has produced exemplary multilateral agreements, setting a higher standard for positive state obligations than international agreements in this area. (22) Where Sri Lanka is concerned, there are no comparable instruments to ratify in its region.

2. Distinguishing Language Policies: 'Tolerance' and 'Promotion'

   There is a well-recognised distinction in the literature between two core approaches to language rights, originally articulated by Kloss. (23) Firstly, 'tolerance rights' ensure noninterference by the state in the private uses of language. They are regarded as inviolable and the minimum standard in liberal democracies. Even linguistic groups with the weakest language claims, such as immigrants, are generally granted rights such as freedom of expression and freedom from discrimination based on language (in its private usage). As shown previously, most of the rights articulated in international instruments are minimal tolerance rights.

   The second category is 'promotion-oriented rights'. These are more substantial, extending to positive measures to improve language access in public institutions, such as courts, public schools and public services. Kymlicka and Patten further divide promotion rights into two categories. (24) The first type of promotion rights are accommodations granted as a special exception to the general rule that the 'normal' or dominant language will be used in the public sphere (known as the 'norm-and-accommodation' approach). The second approach is based on granting 'official' recognition to minority languages. This is the most generous concession that a state could make. It technically amounts to parity of status, although in practice the majority language may still be preferred in certain institutions.

   Tolerance rights, which simply require the state to withdraw from private language conflicts, are inadequate for linguistic justice. Whether it is acknowledged or not, every state adopts language preferences. A 'hands off' or 'benign neglect' approach to language rights is impossible because states must decide their language(s) of operation. It: is necessary that people working for or served by public institutions understand one another, so there is no way of avoiding language policy. (23) States must consciously consider which languages should be promoted, and in which situations. The basic choice of state language policy is between assimilation towards a common language within the nation-state and encouraging linguistic diversity by protecting weaker languages. (26)

3. Language Policy in SriLanka

   1. A Brief History

      This article evaluates the role of international law in influencing language policy specifically in the contemporary Sri Lankan context. In choosing Sri Lanka as a case study, it is recognised that language has played a role in the Sri Lankan civil war. Sri Lanka endured a bloody, decades-long ethnic conflict between the Sinhalese-dominated government and militant Tamil separatists, led by the Liberation Tamil Tigers of Eelam ('LTTE'), since 1975. The Sri Lankan army claimed a military victory over the LTTE in May 2009. Sri Lanka's current population of 20 million people is composed of approximately 74 per cent people of Sinhalese ethnicity; 12 per cent of Tamil ethnicity, originating from the North and East of the island; 5 per cent of Up-Country Tamils, originating from India; and 7 per cent Tamil-speaking people of Moorish (Muslim) origin. (27) The dominant language is Sinhala, spoken by over 80 per cent of people, whereas the Tamil language is used by around 25 per cent. (28) Language use generally follows ethnic lines as most Sinhalese and Tamil people were educated in their respective mother-tongues with no common language between them. English is spoken by few people in both communities, generally the elite, and has not been an effective link language for bridging the gaps in communication. (29)

      Language policy played a crucial role in the origins of the Sri Lankan conflict. The nationalist movement that culminated in the Official Language Act, No. 33 of 1956 ('Sinhala Only Act) was the single most overt assertion of Sinhalese ethnic dominance over the Tamil minority, thus precipitating the breakdown of Sinhalese-Tamil...