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Language and Law

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University of Groningen
Faculty of Law

Language and Law

by Dimitry Kochenov & Fernand de Varennes

April 2014

University of Groningen Faculty of Law Research Paper Series

No. 08/2014

This paper can be downloaded without charge from the

Social Science Research Network Electronic Paper Collection
Available at SSRN: http://ssrn.com/ abstract=2405581

Electronic copy available at: http://ssrn.com/abstract=2405581

 Language and Law
Dimitry Kochenov & Fernand de Varennes

Forthcoming in F. Hult and D. Johnson (eds.), Research Methods in Language Policy and Planning, Wiley, 2014.
Please consult the volume for the final version of this chapter.

Abstract This elementary introduction into the difficult relationship between language and
law written for non-lawyers outlines some key steps in the development of the legal
approaches towards allowing people to speak their own language and outlines several key
trends in the recent developments relevant in this field: a shift from the culture of authority
to the culture of justification and the acceptance of the ethos of rights in approaching the
relationship between law and language as opposed to the ethos of duties prevalent in the
past.

Introduction

Law is an a priori biased system: really neutral constitutionalism, as Tully has

demonstrated, it impossible (1995). A State and its laws often – though not universally –
operate on the basis that a country’s population must be united by a common and exclusive
language. The task of the institutions and procedures, both at the national and international
level, is to tame this innate bias. This is done through approaching law through rights as
opposed to duties and restating the need for justification as opposed to unquestionable
authority. The study of the law, then, in the contemporary understanding at least, is the
scrutiny of the ways in which the law interacts with the world through protecting and
empowering individuals and groups and taming powerful interests. The evolution of the
approaches to language across the national legal orders around the world; in international
law operating between states and international organizations; and also in supranational law
of regional organizations, like the European Union, is becoming more and more tolerant
vis-à-vis the idea of linguistic diversity and the protection of the speakers of the languages

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not designated as official or “correct” (Salamun 2009). The chapter will make an outline of
the most crucial international and regional legal documents in force, dealing with linguistic
rights, documenting the core features of “international language law” landscape.

Justification and rights

In the past the persuasive power of the law was usually sought in its sheer authority,
explained through the figure of a mythical (or real) lawgiver (Tilly 1992), coupled with the
ideology of total obedience and a presumption of an existing prima facie obligation to
obey. The developments of the last half a century brought a gradual shift from such
“culture of authority” to the “culture of justification” (Cohen-Eliya and Porat 2013): law is
only sound as long as it is justified by reason, necessity, common sense, or other
considerations accepted as legitimate – not just by the raw power alone. Besides, the
general context of the global legal-political developments over the last century has been a
gradual move towards rights as meta legal-historical research demonstrates (Kennedy
2006).
Given that the picture is not static, however, different legal principles and
approaches regularly come to replace each-other. The idea of the law’s malleability is
attuned to the nature of the legal text in the contemporary environment of justification and
understanding the law through rights: since justification then ultimately means weighing
one interest or right against another, the outcome of such weighing depends as much on the
entitlement in question stated in the legal text as on the level of the potential infringement
of some other value your concrete entitlement is weighted against (Tsakyrakis 2014). Any
such weighing, although following, at least on paper, some clear rules and stages (Alexy
2010), is ultimately nothing else but a purely rhetorical exercise. To be clear, its rhetorical
nature is the key consideration behind its appeal (Neyer 2014). Importantly, the text stating
your rights is almost always contextualized with far-reaching results for the claimants of
rights: a right can be interpreted away, when someone else’s right, interest or entitlement in
your concrete situation prevails as a result of the application of a balancing exercise

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(Tsakyrakis 2009). Law is thus not always an instrument of high precision. Its main tool is
language.
Studying the law thus implies at least two things. First of all, an academic lawyer
describes and interprets the law in force, thereby building a coherent and workable system
of rules for societal relations and interactions to be governed by, also evaluating it against a
normative ideal of justice, which usually focuses on coherence (Vick 2004: 179).
Secondly, she suggests improvements of the current system in terms of proposals to the
law-giver, novel interpretation of existing provisions, distillation of the commonly
accepted principles and otherwise attempting to improve the way how the society is run
(id.).

Law against linguistic diversity

Until the emergence of international human rights law after the Second World War, the
philosophical position in legal theory and legal practice around the world was clearly that
the treatment of a state’s own citizens in relation to language was a matter that was
determined by the state, and the state alone: the essence of the culture of authority.
Although a generalization since there are obviously always a number of exceptions, it
remains true that many governments in recent centuries tended to simply impose an official
language with little regard to the language actually used on the ground in different parts of
the world. European colonial powers such as the British, the French, the Spanish and the
Portuguese, in particular after the 16th century, have adopted legislation and policies where
indigenous and minority languages – even if these languages were spoken by a huge
proportion of the population (and in a number of rare but not unheard of cases even the
language of the majorityi) – were to be extinguished or at least relegated to the home. So
the languages of indigenous peoples in the Americas – but also of minorities such as the
Basque and Catalan in Spain – were at times portrayed as obstacles to the emergence of a
modern, centralized state, or as threats to national unity, and therefore had to be removed,
as 18th century legislation from Carlos III of Spain makes clear (Real Cédula, 1770).
Contrary to the view of law as a neutral discipline, and thus disinterested in language, these

3
examples show how it was perceived necessary to use the law to eliminate indigenous and
other languages and impose Castilian as the language for all subjects. As the monarch’s
legislation of 1770 makes it clear, this was necessary so that Castilian would become the
only language of the realm – law was deployed as a means to an end.
Even in the last century, it was not uncommon to punish indigenous or minority
children in school if they did not speak the official language: Aboriginal children in
Canada, in Australia, in the United States, in Taiwan and Finland were at times punished,
humiliated and even beaten for talking their own language. In Turkey, it was forbidden to
teach the Kurdish language, and until relatively recently so was broadcasting Kurdish
songs, publishing in Kurdish, or even having a Kurdish name. In Bulgaria in the 1980s, a
law made speaking Turkish in public an offence: there was a joke in Bulgaria that Turkish
was the most expensive language in the world because if you used it in the street you could
be fined hundreds of leva, the Bulgarian currency. Also in the 1980s, some local
authorities in Florida went so far as to attempt to ban the official use of all languages
except English – even the Latin used to identify animal species in public zoos – as well as
forbidding translation in Spanish or other languages for public health care purposes for
pregnant women and in public hospitals, because English was to be the exclusive official
language for local authorities.
It should not be thought that such incidents are “accidental” nor state authorities
and the law neutral because, it is sometimes argued, everyone is subjected to the same
official language. There are in different parts of the world a variety of ideological support
for the position that the state must be monolingual – that is, not only to have a common
language, but to impose even forcibly if necessary an exclusive language on everyone
living in a country. These vary from, following Patten, an opportunity to work in modern
economy portrayed of course as only possible in the official, national language, to
facilitating deliberative democracy and societal dialogue but only through one language to
the exclusion of all others, fostering efficiency of the state in its service provision –
including medical care and education – even though not everyone will be able to access
these if they are only provided in a language not well understood, and, finally ‘a common
language could, in turn, become one of the defining bonds of a common identity’ (2009,
105–6).

4
 Yet, the above reference to a common language is actually misleading, since what it
actually refers to is an exclusive language: there can be only one language, so obviously it
is theoretically common, if in reality not shared to the same degree by all. What is crucial
is that a common language need not be exclusive: and it is only “democratic” if you ignore
the interests and views of those who do not share the majority language or are not as fluent
in it as members of the linguistic majority. Democracy, when used to justify an exclusive
common language, is only democratic if you disregard a segment of the population – and
deny them a variety of rights or interests in the area of language.
The number of falsehoods, which justifications of an exclusive language akin to
Patten’s usually contain is quite disturbing: the claim that State institutions are “more
efficient when they operate in a single language only” (Id, 105) is actually only true if
everyone in a country is completely fluent in the official language, something which is
almost an impossibility in most countries of the world. On the contrary, State institutions
are “more efficient” when they operate in the language(s) actually understood or mastered
by the population of a country, which in many cases is not a single language.

Should the State speak the language of the population?

While there are certainly many who consider state monolingualism as an ideal state of
affairs for various reasons, there remains the question as to whether or not human rights
and international law may be used to affect a state’s language preferences and policies; put
in another way, is it for the people to speak the language of the state, or are there situations
where the state must actually speak the language of its population?
Before the Second World War, in part because of the absence of any real protection
of human rights in international law, the situation was very clear: the population of a state
had in international law no “language rights or freedoms” and therefore had, at least in the
eyes of international law, to comply with the exercise of a state’s sovereignty in matters of
language and domestic law. As an analogy, the population in many countries of Europe
had before the 17th century to follow a state’s official religion, sometimes also in the name
of unity or of the principle of a “common religion,” or cuius regio, eius religio: the religion

5
of the state or ruler had to be the religion of the population. The war of religions of the
period led to a series of treaties that at least in Europe contributed to the emergence of an
embryonic right to freedom of religion that limited – slightly – the impact of state in this
area. This however did not extend beyond religion to encompass the relationship between
law and language, since freedom of expression and non-discrimination on the ground of
language among other human rights relevant to linguistic preferences would have to wait a
few more centuries before they would become part of international law.
States were therefore allowed to treat their own population in matters of law and
language in any way they wanted, even so far as forcing their assimilation, beating children
if they did not learn the official language, forcibly change their names, denying them
access to health or even sometimes the right to vote on the ground of language, etc. Not all
countries did this of course, and historically there are many examples of countries where
the state sought to speak the language of its populations, with Switzerland one of the most
long-established examples but also others notably India, Singapore, etc. But there is no
denying that in many parts of Europe and the world, ideologically both from the left and
the right, minority languages were considered undesirable, backward, or uncivilized.
Thus, for John Stuart Mill, one of the fathers of Western liberalism, the linguistic
assimilation of minorities such as the Breton and the Basque was not only desirable, but
also necessary for the sake of modernity:

Experience proves it is possible for one nationality to merge and be absorbed in

another: and when it was originally an inferior and more backward portion of the
human race the absorption is greatly to its advantage. Nobody can suppose that it is
not beneficial to a Breton, or a Basque of French Navarre, to be brought into the
current of the ideas and feelings of a highly civilized and cultivated people-to be a
member of the French nationality... than to sulk on his own rocks, the half-savage
relic of past times... (Mill 1861)

His ideological “opposite” on the left resonated intellectually with this view of the need to
replace linguistic diversity in a state by state monolingualism, though based on what he
considered the forces of historical revolution and development:

6
 There is no country in Europe which does not have in some corner or other one or
more fragments of peoples, the remnants of a former population that was
suppressed and held in bondage by the nation which later became the main vehicle
for historical development. These relics of nations…this ethnic trash always
became the fanatical bearers of counterrevolution and remain so until their
complete extirpation or loss of national character, just as their whole existence in
general is itself a protest against a great historical revolution (Engels 1849).

These views which were also reflected in the prevalent attitude about law and language
remained largely untouchable until after the Second World War, when the gradual turn
from the ethos of duties (to the state) to the ethos of rights commenced. Initial treaties
which were developed after the creation of the United Nations to recognise and protect
human rights in international law were still largely silent on issues of language:
discrimination on the ground of language was prohibited generally, but beyond that there
were almost no actual mention of language except for one provision that referred, in
Article 27 of the International Covenant on Civil and Political Rights (1966, in force
1976), repeated in a few other treaties), to members of a linguistic minority not being
denied the right to use their own language among themselves.

Contemporary international law: Some positive developments

It took quite a long time to clarify whether international law could affect a state’s
representation of language and law, though this only occurred in the second half of the 20 th
century. Both the United Nations Human Rights Committee (UNHRC), the European
Commission on Human Rights (ECHR) and the European Court of Human Rights
(ECtHR) in the 1970s and 80s dealt with a number of claims involving “language rights,”
and in all of these the international bodies refused the requests made where it was argued
that under linguistic freedom public authorities in France, Belgium, the Netherlands or
Ireland also had to use other languages. For the Committee, Commission and Court, the

7
main reason for rejecting all of these cases was that linguistic freedom as such did not exist
in international law, or that the use of a particular language by public authorities had
nothing to do with freedom of expression.ii
Yet these cases in a certain way only indicated in a very narrow area that a
particular right – linguistic freedom – was not part of international law. None of these
cases actually overruled any possible use of international law to restrict a state’s
sovereignty in relation to language preferences and policies, even if these involved a state’s
official language. This was indeed to occur for the very first time in 1993 when an
international body ruled that legislation involving an official language could be affected by
international law (UNHRC (1993) Ballantyne, Davidson, McIntyre v. Canada). After
decades of uncertainty at the international level, it was enunciated that freedom of
expression, while not enshrining “linguistic freedom” as such, does include language as a
form of expression in relation to private activities, including in business, and that this
therefore includes the freedom to express oneself in his or her own language of choice in
private activities. The argument of an exclusive, official language cannot be invoked to
simply set aside this basic right:

11.4 […] The Committee believes that it is not necessary, in order to protect
the vulnerable position in Canada of the francophone group, to prohibit
commercial advertising in English. This protection may be achieved in
other ways that do not preclude the freedom of expression, in a language of
their choice, of those engaged in such fields as trade. For example, the law
could have required that advertising be in both French and English. A State
may choose one or more official languages, but it may not exclude, outside
the spheres of public life, the freedom to express oneself in a language of
one’s choice. The Committee accordingly concludes that there has been a
violation of article 19, paragraph 2.

As surprising as it may sound, it is only in the last few decades that it is now clear that a
state’s language choices in law must still comply with international human rights law, and
that freedom of expression includes language preferences in private activities: the culture

8
of justification, described above, commands states around the world to do their best in
justifying their policies against the international human rights standards.
No one really denies any longer today that the private use of a language is protected by
freedom of expression and that it restricts what a state can do in the name of its official
language in private activities. Additionally, the ECtHR also concurred with the UNHRC
that “provided it respects the rights protected by the Convention, each Contracting State is
at liberty to impose and to regulate the use of its official language or languages in identity
papers and other official documents” (ECtHR (2004) Mentzen v. Latvia). Beyond these
matters, it is less clear how international law affects the use of an official language by
public authorities themselves, and any adjudication by the state’s apparatus as to the
relationship between language and law.
On the one hand, there are some who have looked at these cases and approach and
concluded that international human rights law has nothing to do with the use of a state’s
official language by public authorities themselves.iii The only language rights according to
this perception that are part of international human rights law relate to the private use of
language under freedom of expression and perhaps also under Article 27 of the
International Covenant on Civil and Political Rights which provides for the right of
linguistic minorities to use a language among themselves.
On the other hand, however, it seems that without affecting the choice of an official
language, more recent decisions have admitted – though perhaps not consciously against a
state’s official monolingualism – that authorities must in some situations use other
languages to comply with international human rights standards. Language and law can thus
not be disassociated from a range of “linguistic” human rights. This has been the almost
unnoticed consequence of a number of even more recent decisions emanating from the
ECtHR, the European Court of Justice (ECJ) and the UNHRC. For example, in 2000 the
UNHRC in effect (even if not stated directly) was of the opinion that a non-official
language, Afrikaans, had to be used to some degree by public authorities in addition to
English, the only official language under the Constitution, in order to comply with non-
discrimination on the ground of language, since there was no explanation why it was
reasonable and justified for state authorities in a part of the country with a large proportion
of Afrikaans-speaking population to be ordered to use only English in the circumstances:

9
 10.10 … The Committee notes that the authors have shown that the State party has
instructed civil servants not to reply to the authors’ written or oral communications
with the authorities in the Afrikaans language, even when they are perfectly capable of
doing so. These instructions barring the use of Afrikaans do not relate merely to the
issuing of public documents but even to telephone conversations. In the absence of any
response from the State party the Committee must give due weight to the allegation of
the authors that the circular in question is intentionally targeted against the possibility
to use Afrikaans when dealing with public authorities. Consequently, the Committee
finds that the authors, as Afrikaans speakers, are victims of a violation of article 26 of
the Covenant (UNHRC (2000) J.G.A. Diergaardt v. Namibia).

The following year, the ECtHR concluded that the official language policies in Northern
Cyprus breached the right to education, in combination with the right to private and family
life in such a way that the government had to have in place a high school teaching in the
Greek language, and that only offering public education in Turkish and English was not
sufficient to comply with these rights, even though Turkish was the official language of
Northern Cyprus (ECtHR (2001) Cyprus v. Turkey). In a number of other cases, the ECJ
did not hesitate to rule against a state’s exclusive official language policy if it interfered
with the basic pillars of the EU such as freedom of movement and non-discrimination.iv
These cases are relatively recent and fairly controversial because they directly contradict
the assumption of many that there was no possibility for international law to affect issues
around the choice of what languages public authorities must use.
If there is one certainty from all of the above emanating from these different courts
and international bodies, it is that whether there is a situation of the private use of a
language or the use of a language by public authorities, there is no immunity against
international human rights from a legal point of view, whether one is dealing with an
official language, a national language, a state language or a language with some other kind
of status. Instead of being a neutral matter falling completely within the exercise of a
state’s sovereignty, issues of language and law also reflect fundamental choices which
might affect individuals – and in particular minorities and indigenous peoples – in very

10
basic ways that may be inconsistent with the universal, moral values enshrined in
international human rights.

Law’s crucial role in ensuring linguistic rights and freedom

As a means to an end the law has played a crucial role in limiting the linguistic rights of
individuals for hundreds of years, as monolingualism was more often than not regarded as
an indispensable element of a nation-state. It is because of the law, accurately and
mercilessly serving the nation-building end, that plentiful languages all over the world
have been lost. Even notwithstanding the fact that nationalism does not necessarily require
language intolerance to grow (Anderson 1982), we have been witnessing a resurgence of
newly-proclaimed languages around the world, which only exist in the nationalist minds of
the powers that be – Montenegrin is the latest example, to join Moldovan, Croatian and a
virtually infinite list of others.
Researchers should take the current legal trend – as well as the orthodox
contribution of the law to the suppression and elimination of countless languages fully into
account. Even if now that the general trend in the law’s approach to language seems to be
reversing, the pattern of the past is still acutely decipherable and numerous vestiges of the
culture of sustained violence vis-à-vis linguistic heritage persists until this day. Even worse
than agreeing to name a language differently following a whim of a new ruler, is to speak
an actual language, which is different from the ones approved by the state. All the
numerous international legal documents to the contrary notwithstanding, this often leads to
persecution. Moreover, states often decide for the parents in which language their children
will learn (ECtHR (1968) Belgian linguistics case; see contra ECtHR (2012) Catan and
Others v. Moldova and Russia and ECtHR (2001) Cyprus v. Turkey) will use particular
languages, even with no connection to their actual position in society as a pretext to
discriminate in the job market (Kochenov et al. 2013), and will tie naturalization rituals to
language tests (Kochenov 2011), even if the language tested is not the one spoken in the
region where the new citizen will be residing. There is nothing new in the remarkable
clumsiness usually demonstrated by authorities in charge. As Scott (1999) demonstrated

11
with clarity, “to think like a state” often means to be wrong – and the field of language law
and regulation is in no way different than any other.

References

Primary sources

1. UNHRC (1990). M.K. v. France. Communication 222/1987, UN Doc. A/45/40,

Vol. II, 127.
2. UNHRC (1991). Yves Cadoret and Hervé Le Bihan v. France. Communication
333/1988, UN Doc. CCPR/C/41/D/323/1988.
3. UNHRC (1993). Ballantyne, Davidson, McIntyre v. Canada. Communications
359/1989 and 385/1989, UN Doc. CCPR/C/47/D/359/1989 and 385/1989/Rev.1.
4. UNHRC (2000). J.G.A. Diergaardt et al. v. Namibia. Communication 760/1997,
UN Doc. CCPR/C/69/D/760/1997.
5. ECt.HR (1986). Fryske Nasjonale Partij v. Netherlands. 45 DR 240.
6. ECt.HR (1965). Inhabitants of Leeuw-St. Pierre v. Belgium. 8 YbkECHR 338.
7. ECt.HR (1968). Belgian linguistics case. 1 EHRR 252.
8. ECt.HR (1970). X. v. Ireland. 13 YbkECHR 792.
9. ECt.HR (2001). Cyprus v. Turkey. 35 EHRR 30.
10. ECt.HR (2004). Mentzen v. Latvia. Decision on admissibility of 7 December 2004.
11. ECt.HR (2012). Catan and Others v. Moldova and Russia. App. nos. 43370/04,
8252/05 and 18454/06.
12. ECJ (1985). Mutsch. C-137/84 [1985] ECR 2681.
13. ECJ (1989). Groener. C-379/87 [1989] ECR 3967.
14. ECJ (2010). Runevič-Vardyn. C-391/09 [2011] ECR I-3787.

12
Secondary sources

1. Alexy, R. (2010). A Theory of Constitutional Rights. Oxford: Oxford University

Press.
2. Anderson, B. (1982). Imagined Communities: Reflections on the Origin and Spread
of Nationalism. London: Verso.
3. Cohen-Eliya, M. and Porat, I. (2013). Proportionality and Constitutional Culture.
Oxford: Oxford University Press.
4. Kennedy, D. (2006). Three Globalisations of Legal Thought: 1850–2000. In D.M.
Trubek and A. Santos (eds.), The New Law and Economic Development: A Critical
Appraisal. Cambridge: Cambridge University Press, pp. 19–73.
5. Kochenov, D. (2011). Mevrouw De Jong gaat eten: EU Citizenship and the Culture
of Prejudice. EUI RSCAS Paper, 2011/06.
6. Kochenov, D., Poleshchuk, V., and Dimitrovs, A. (2013). Do Professional
Linguistic Requirements Discriminate? A Legal Analysis: Estonia and Latvia in the
Spotlight. European Yearbook of Minority Issues, 10, pp. 137–87.
7. Mill, J.S. (1861). Considerations on Representative Government. London: Parker,
Son, and Bourn.
8. Neyer, J. (2014). Justice and the Right to Justification: Conceptual Reflections. In
D. Kochenov, G. de Búrca, and A. Williams (eds.), Europe’s Justice Deficit?
Oxford: Hart Publishing.
9. Patten, A. (2009). The Justification of Minority Language Rights. Journal of
Political Philosophy, 17, pp. 102–28.
10. Salamun, M. (2009). Linguistic Rights of Minorities in the Jurisprudence of
Highest Courts. European Yearbook of Minority Issues, 8, pp. 71–93.
11. Scott, J.C. (1999). Seeing Like a State: How Certain Schemes to Improve the
Human Condition Have Failed. New Haven: Yale University Press.
12. Tilly, C. (1992). Coercion, Capital and European States. Oxford: Basil Blackwell.
13. Tsakyrakis, S. (2009). Proportionality: An Assault on Human Rights? International
Journal of Constitutional Law, 7, pp. 468–93.

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 14. Tsakyrakis, S. (2014). Disproportionate Individualism. In D. Kochenov, G. de
Búrca, and A. Williams (eds.), Europe’s Justice Deficit? Oxford: Hart Publishing.
15. Tully, J. (1995). Strange Multiplicity: Constitutionalism in the Age of Diversity.
Cambridge: Cambridge University Press.
16. Tushnet, M. (1996). Interdisciplinary Legal Scholarship: The Case of History-in-
Law. Chicago-Kent Law Review, 71, pp. 909–35.
17. Vick, D.W. (2004). Interdisciplinarity and the Discipline of Law. Journal of Law &
Society, 31, pp. 163–93.

Author biographies

Dimitry Kochenov is Professor EU Constitutional Law, University of Groningen. His

research focuses on EU citizenship and the principles of law. Recent publications include
Europe’s Justice Deficit? (ed. with G. de Búrca and A. Williams, 2014) and European
Union’s Shaping of the International Legal Order (ed. with F. Amtenbrink, 2013).

Fernand de Varennes is Visiting Human Rights Professor at the Universities of Pretoria,

Hong Kong, and Vytautas Magnus University in Lithuania. Most of his research work
focuses on human and minority rights, and the prevention of ethnic conflicts. Recent
publications include Language Rights… and Wrongs (2014) and “R2P and the Protection
of Minorities”, in Die Schutzverantwortung: Ein Paradigmenwechelsel in der Entwicklung
des Internationalen Rechts? (2013).

14
 i
In a number of colonial contexts, the language of a majority have and even continue to be today largely cast
aside in favour of minority languages such as English, French or Spanish. English is in fact a minority
language in South Africa, yet is increasingly being used to the exclusion of Zulu (and other languages such as
Afrikaans). In Burkina Faso, French is the only language to be used by state authorities: even though less
than 30% of the population is fluent in it.
ii
European Commission of Human Rights (1986) Fryske Nasjonale Partij v. Netherlands, 45 DR 240;
European Court of Human Rights (ECtHR) (1970) X. v. Ireland, 13 Yearbook of the European Convention
on Human Rights 792; ECtHR (1965) Inhabitants of Leeuw-St. Pierre v. Belgium, 8 Yearbook of the
European Convention on Human Rights 338; United Nations Human Rights Committee (UNHRC) (1990)
M.K. v. France, Communication 222/1987, UN Doc. A/45/40, Vol. II, 127; and UNHRC (1991) Yves
Cadoret and Hervé Le Bihan v. France, Communication 333/1988, UN Doc. CCPR/C/41/D/323/1988.
iii
The dissident views of a handful of members of the United Nations Human Rights Committee in UNHRC
(2000) J.G.A. Diergaardt (late Captain of the Rehoboth Baster Community) et al. v. Namibia,
Communication 760/1997, UN Doc. CCPR/C/69/D/760/1997 are illustrative of this position: “So far as the
administration is concerned, English being the official language of the State party, it is obvious that no other
language could be allowed to be used in the administration or in the Courts or in public life. The authors
could not legitimately contend that they should be allowed to use their mother tongue in administration or in
the Courts or in public life, and the insistence of the State party that only the official language shall be used
cannot be regarded as violation of their right…”
iv
See European Court of Justice (ECJ) (1989) Anita Groener v. Minister for Education, C-379/87 [1989]
ECR 3967; ECJ (1985) Ministère Public v. Robert Heinrich Maria Mutsch, C-137/84 [1985] ECR 2681;
ECJ (2010) Malgožata Runevič-Vardyn, Łukasz Wardyn v. Vilniaus miesto savivaldybės administracija,
Lietuvos Respublikos teisingumo ministerija, Valstybinė lietuvių kalbos komisija, Vilniaus miesto
savivaldybės administracijos Teisės departamento Civilinės metrikacijos skyrius, C-391/09 [2011] ECR I-
3787.
.

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