The Right to Use Minority Languages in the Public Sphere: Evaluation of Estonian Legislation in Light of the International Standards

• Author: Kristiina Albi
• Pages: 151-161

Kristiina Albi

The Right to Use Minority Languages in the Public Sphere: Evaluation of Estonian Legislation in Light of the International Standards

1. Introduction

Estonian language legislation has received a lot of attention both at a domestic and an international level. Since its initial drafting, several changes have been introduced to the legislation, partly in response to the criticism made by international organisations. In the course of the drafting process, national security and arguments for the protection of the Estonian language and culture have been of primary concern. However, the possible human rights restrictions have been less considered or escaped attention. According to the Estonian Supreme Court, it is the legitimate purpose of the legislation to protect the Estonian language and culture¹. Nevertheless, every measure that interferes with the exercise of fundamental rights and freedoms has to be also necessary in a democratic society and proportional to the aims pursued. Therefore, the impacts of the regulations on the people belonging to a linguistic minority and to their fundamental rights have to be taken into account as well.

In addition to the equal treatment clause that prohibits discrimination inter alia on the basis of language, the Estonian Constitution enlists among its extensive catalogue of fundamental rights and freedoms also the right to preserve one's national identity (§ 49), right to establish self-governing agencies in the interests of national culture (§ 50), the right to receive responses from state agencies, local governments, and their officials also in the language of the national minority in such localities where at least one-half of the permanent residents belong to a national minority (§ 51) and use the minority language as an internal working language in local governments where the language of the majority of the residents is not Estonian (§ 52).

Not all of these guarantees have been enforced in practice. The overview of the language legislation and practices in the Baltic States reveals rather that the higher the proportion of the Russian-speakers in a given population, the more rigorous the linguistic containment policy is². Yet according to international law instruments, the size of the minority group is one aspect, which determines the extent of state obligations towards the minorities - the more sizeable the minority group, the more extensive possibilities should be provided for the usage of the minority language. Moreover, as different surveys still demonstrate, the Estonian language command among the Russian-speaking population in Estonia is quite modest³ and differences in non-Estonians' linguistic competences are largely dependent on their place of residence⁴.

The present paper first discusses the notion of language rights as they have been codified in international law. Then, Estonian legislation on the usage of minority languages in the public sphere, such as for communication with public authorities, within public bodies and the language of public signs will be analysed in the light of this discussion.

2. Language rights under international law

Estonia is a state party to the main international human rights treaties. The following chapter gives an overview of the main instruments dealing with language rights.

Estonia has ratified the International Covenant on Civil and Political Rights⁵ (ICCPR) and its additional protocol establishing the individual complaint system to the Human Rights Committee. Prohibition of discrimination on the basis of ethnic or national origin is prohibited also by the International Covenant on Prohibition of All Forms of Racial Discrimination⁶. As a member state of the Council of Europe Estonia is a state party to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)⁷, and has ratified also the Framework Convention for the Protection of National Minorities⁸ (FCNM).

Article 27 of the ICCPR sets forth 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 other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language."

The negative wording of article 27 has caused several disputes over the meaning of this article. However, there is an emerging consensus in academic literature that despite the negative wording of the provision it establishes positive duties on states to guarantee the right to use one's language in public and in private⁹. The position of the mere prohibition of intervention is supported by textual interpretation and travauxpréparatoires, while systematic and teleological interpretation support the existence of positive state obligations¹⁰. Accordingly, if to look at the scope of article 27 in light of other rights guaranteed under the ICCPR, such as freedom of religion, expression and right to privacy and non-discrimination, and without providing some additional protection article 27 can be considered to be superfluous (see also the further discussion on the nature of the language rights)¹¹. Article 27 has also been used as a basis to argue for special measures to guarantee substantive equality for persons belonging to minorities¹².

The 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities¹³, which has been inspired by article 27 of the ICCPR, elaborates further on the right to use one's language in public and in private, freely and without interference or any form of discrimination. The Declaration also establishes explicitly the obligation for the states to encourage conditions for the promotion of the identity of the minorities (article 1), to take measures to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law and to create favourable conditions to enable minorities to express their characteristics and to develop their culture, language, religion, traditions and customs (article 4).

The Framework Convention for the Protection of National Minorities of the Council of Europe, ratified by Estonia in 1996, and the European Charter for Regional or Minority Languages (of which Estonia is not a signatory yet) are the first legally binding instruments specialised on minority protection, though the latter has been considered as protecting the languages and not the rights of the persons belonging to the minority group¹⁴. Nevertheless, the Explanatory Report of the Charter also states that although the Charter is not meant to establish any individual or collective rights, "the obligations of the parties with regard to the status of these languages and the domestic legislation which will have to be introduced in compliance with the Charter will have an obvious effect on the situation of the communities concerned and their individual members."¹⁵ Although the Charter includes similarly to the Framework Convention several "escape clauses", e.g. that the state should take measures when it is "justified" by the number of the people speaking the minority or regional language, corresponding to the situation of the particular language or as far as "reasonably" possible, it enlists the obligations of the states parties more precisely¹⁶.

The Framework Convention, as also reflected in the name of the convention, includes mainly programmatic provisions, which establish state obligations to be implemented through domestic legislation. However, the provisions that repeat general human rights, such as the principle of non-discrimination, freedom of religion and freedom of expression, assembly and association, have been considered to be directly applicable¹⁷. The second weakness of the Framework Convention is its supervisory system. The state has to submit periodic reports on the legislative and other measures taken to give effect to the principles set out in the Convention, but there is no individual complaint system. Implementation is monitored by the Committee of Ministers of the Council of Europe, who is assisted by the advisory committee, which consists of members having recognised expertise in the field of the protection of national minorities¹⁸.

The Convention does not define the notion "national minorities", which is left to the states to determine. Accordingly states, when ratifying the FCNM, have made declarations on which groups they consider as national minorities¹⁹. The concept of minority has caused a lot of discussion also in regard to article 27 of the ICCPR²⁰. However, the Human Rights Committee has explicitly stated that the existence of an ethnic, religious or linguistic minority in a given state party does not depend upon a decision of the state, but has to be established by objective criteria²¹. Hence, the "minority" has been defined as a group, which

- is numerically smaller than the rest of the population of the state;

- has ethnic, linguistic or religious characteristics different from those of the rest of the population;

- shows a sense of mutual solidarity focused on the preservation of their culture, traditions, religion or...