Adam Pawłowski Language in the Constitutions of Selected European Countries Series A: General & Theoretical Papers ISSN 1435-6473 Essen: LAUD 2004 Paper No. 627 Universität Duisburg-Essen Adam Pawłowski Wroclaw University (Poland) Language in the Constitutions of Selected European Countries Copyright by the author Reproduced by LAUD 2004 Linguistic Agency Series A University of Duisburg-Essen General and Theoretical Fachbereich 3 Paper No. 627 Universitätsstr. 12 D- 45117 Essen Order LAUD-papers online: http://www.linse.uni-due.de/linse/laud/index.html Or contact: [email protected] Adam Pawłowski Language in the Constitutions of Selected European Countries Motto: The constitution of a country should be such that it does not disturb the constitutions of its citizens. Stanisław Jerzy Lec, Unkempt Thoughts Introduction Language has never been a particularly significant area of legislative concern in the Euro- pean legal tradition. In contrast to the fundamental questions, such as a nation's political system, the rights and duties of its citizens, the competencies of its organs of power, or the defence system, the regulation of questions regarding language have rather appeared in acts of lesser importance, as elements of improvisational politics, most often politics of repres- sion of minority groups. However, the process of European integration, which has been go- ing on since the Second World War, and with it the progressing democratisation of the rela- tions between state institutions and citizens and/or groups of citizens, has forced most Euro- pean governments to introduce provisions regarding language into their legal systems. This was done both with regard to the protection of national identities of the nations forming the EEC, later the EU, as well as to the prevailing (albeit limited) recognition of the rights of ethnic and linguistic minorities to self-determination, including the cultivation and devel- opment of their cultures and languages. 1 Language in European Legislation The Treaty of Rome of 1958, which established the European Economic Community, also established the framework of European policy regarding language1. Art. 1282 par. 1 of this charter states that “The Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore.” Article 1263 par. 1 states that “The Community shall contribute to the development of quality education by encouraging coop- eration between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diver- sity.” In the same article appears a further postulate of the protection of a European heritage: “conservation and safeguarding of cultural heritage of European significance”, although languages are not yet mentioned as elements of this heritage. The content of these provisions, being as they are the acquired legal property of the EU (acquis communautaire), was retained and broadened in later documents of the EU. Ar- ticle 21 of the Treaty of Nice of 2001 speaks of a prohibition on discrimination based on various criteria, including language: “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language [emphasis mine – AP], relig- ion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.”4 The famous Article 22 guar- antees respect for cultural and linguistic diversity: “The Union shall respect cultural, reli- gious and linguistic diversity”. In Art. 41 par. 4 we read that any citizen may correspond with EU institutions in any one of the official languages: “Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.” Provisions concerning linguistic equality and minority language rights appeared in other European documents5, also before 1958, finding their full expression in the European Charter on Regional and Minority Languages6, proclaimed by the Council of Europe in 1 The text of the treaty, as consolidated text, may be found under the address: http://europa.eu.int/eur-lex/en/search/search_treaties.html. In addition, all the documents cited here are also available in electronic form at the Web-page: http://www.lingwistyka.uni.wroc.pl/~pawlowski/jue. 2 In the Amsterdam Treaty (consolidated text) this is Art. 151. 3 In the Amsterdam Treaty (consolidated text) this is Art. 149. 4 A similar wording is in the Universal Rights of Man, accepted by the UN in 1948. 5 Compare, e.g. Art. 6, par. 3 and Art. 14 of the so-called European Convention on Human Right (Conven- tion on the protection of human rights and basic freedoms), ratified by the Council of Europe in 1950. Other references to European legislation are provided by A. Theme (Theme 2002: 21–23). 6 French and English versions are available at http://conventions.coe.int/Treaty/en/Treaties/html/148.htm. A relatively current list of those countries which have signed and/or ratified the ECRML is available at: http://www.bzh.com/identite-bretonne/charte/fr-tableau.html. 2 1992. An extremely liberal expression of the ideology of ecology, upon which the majority of provisions protecting weak or disappearing languages is based, is the Universal Declara- tion of Linguistic Rights7, which was proclaimed in 1996 by a forum of non-governmental organisations (cf. Gajda 1998: 14). Although this document has no force from the legal point of view, as the quintessence of the ecological world view it provides interesting read- ing for the linguist. A further document subscribing to the ecological trend, also without legal force but with great symbolic meaning and, in addition, of practical, scientific and popularisation value, is the UNESCO Red Book of Endangered Languages8. Language in the Constitutions of European Countries Without denying in the least the significance of supranational European legislation, it must be emphasised that it is the constitutions which define the legislative frameworks of the ma- jority of countries of the EU9. It is true that, as acts of law which are largely quite general, they do not regulate particular questions, such as the language of advertising, press an- nouncements or the labelling of goods, but every law, also those concerning language, must comply with the constitution; there would otherwise be grounds for legal action against it before the relevant constitutional court. The ratification of bilateral and/or supranational agreements also requires prior coordination with the relevant legislative bodies of the given countries. A comparison of the legal status of language in selected European countries on the ba- sis of constitutional provisions was therefore recognised as a worthy subject of considera- tion. Not all European constitutions were analysed, but only those regarded as the most rep- resentative of the model solutions described below. In addition, with regard to the political context (integration, work on a European constitution), EU member nations as well as can- didate nations and those lying directly within the sphere of interest of the EU were included in the study. In view of these considerations, an analysis of laws or other detailed legal acts concerning language was not conducted. Constitutions as documents of a fundamental char- acter are therefore viewed as sufficiently appropriate descriptions of the direction and framework of policy regarding language, while a comparison of laws about language would require an additional description of the specific situation of each country. 7 English and Catalonian versions are available at http://www.linguistic-declaration.org, French version at: http://www.troc.es/ciemen/mercator/decla-fr.htm. 8 The European chapter of the "Book" can be seen at: http:// www.helsinki.fi/~tasalmin/europe_index.html. 9 An exception is Great Britain, which has no formal constitution. 3 Results An analysis of constitutional provisions allows us to distinguish the following approaches to the question of language: − linguistically neutral (e.g. Germany), − extremely monolingual (France), − moderately monolingual, taking into account the rights of linguistic minorities − (e.g. Austria, Spain, Poland), − multilingual by design (e.g. Switzerland). A. The Linguistically Neutral Model In this case, a constitution neither defines an official language nor contains references to a language as a national or state symbol. Countries having linguistically neutral constitutions include Bosnia and Herzegovina, the Czech Republic, Denmark, Germany, Greece, Hun- gary, Italy, the Netherlands, Norway, Portugal, and Sweden. Although neutral constitutions usually contain articles protecting the rights of linguis- tic and/or ethnic minorities, they do not necessarily allow full linguistic liberalism. Restric- tions are simply transferred to the legislative acts of lesser importance. A good example of a country which has a neutral constitution, but a restrictive language policy is Denmark. This is, however, an exception rather then the principle. In the German constitution, the only reference to language is in Art. 3, which speaks of prohibition of the persecution of and the equality of all citizens before the law, correspond- ing