The Right of Minority Languages in Domestic Courts ? Realisable Right or Illusory Concept?

AuthorGearóidín McEvoy
PositionBCL (Law & Irish), University College Cork. MSocSc (International Human Rights Law) Candidate, Åbo Akademi, Turku, Finland
Gearóidín McEvoy*
Since the origins of modern International Human Rights Law, minorities and their protection
have been a central issue. It was the mass death, mistreatment and displacement of many
minority groups throughout Europe that jolted States into action by forming the United
Nations and other regional human rights agencies. The realisation of the tragedy that befell so
many minority groups during the Second World War highlighted the necessity to protect the
most vulnerable and unrepresented societies. Despite attempts to address linguistic minority
needs, there exists a fundamental flaw in the concept of ‘nation states’ as May describes, that
renders linguistic minorities (and indeed most minorities) ‘denied legitimate rights to their
existing language’ at the foundation of a state when the establishment of a ‘civic language
and culture is largely limited to, and representative of, the dominant ethnicity or Staatsvolk’.1
There appears, as May details, an innate difference in the approach to linguistic minorities
and religious minorities within the field of international human rights. Fishman notes that:
Unlike ‘human rights’ which strike Western and Westernized intellectuals as fostering
wider participation in general societal benefits and interactions, ‘language rights’ still
are widely interpreted as ‘regressive’ since they would, most probably, prolong the
existence of ethnolinguistic differences. The value of such differences and the right to
value such differences have not yet generally been recognised by the modern sense of
A minority group can be recognised for a number of reasons, in fact what constitutes a
minority can be such a broad concept, that few academics accept the challenge of defining the
term ‘minority’.3 Religion, ethnicity, sexual orientation, nationality or language may all play
a key role in one’s identity as a minority. For the purposes of this paper, however, the focus
will be on groups and individuals (regardless of whatever their State may regard as minority
or ethnic groups) which have as a central part of their identity a language that is not the main
language of the state in which they reside. Furthermore, this paper shall be focusing more so
on traditional groups which often predate the foundation of their home nation and have a
historic and cultural significance (newer languages which may be widely spoken in a state as
a result of recent immigration will not be discussed).
*BCL (Law & Irish), University College Cork. MSocSc (International Human Rights Law) Candidate, Åbo
Akademi, Turku, Finland.
1 Stephen May, Language and Minority Rights: Ethnicity, Nationalism and the Politics of Language (Essex,
Pearson Education Ltd 2001) 92.
2 Joshua Fishman, Reversing Language Shift: Theoretical and Empirical Foundati ons of Assistance to
Threatened Lan guages (Clev edon, Multilingual Matters 1991) 72.
3 John Packer, ‘On the Definition of M inorities’ in John Packer and K ristian Myntti (eds), The Protection of
Ethnic and Ling uistic Minori ties in Europe (Åbo Akademi, Institute for Human Rights 1993) 23.
‘It is clear from a whole set of declarations, recommendations and international treaties that
respect for regional or minority languages implies that individuals who speak one of them
must be able to use it in public as well as in private’.4 The public element which will be
described in this paper is the right (if one such exists) to use one’s minority language within
their national courts, and if so, to what extent does this right stretch and from where do such
rights stem?
The use of minority languages in court systems is more than a mere vindication of an
individual who wishes to use his or her mother tongue. ‘Bringing regional and minority
languages into government and justice is an essential factor in stimulating and modernising
them, updating their terminology and developing their potential in these fields’.5
Through process of elimination I will discuss in turn the various European instruments which
can claim relevance to linguistic protection and highlight how the European Charter for
Regional or Minority Languages is the most relevant method of language protection through
its provisions on the use of regional or minority languages in domestic courts, in an attempt
to decipher whether or not the right to use one’s language in court is in existence.
Although it may seem that a right of use of a minority language within a domestic court
would encompass only that specific element in order to adequately realise such a right, other
rights and obligations of the state may come into play. For a complete and achievable right to
use a regional or minority language within national courts, it is necessary first to discuss to
what extent such a right may go.
For example, if the requirement is to provide for an interpreter when a party to the
proceedings opts to use a regional or minority language (RML) and the other parties and/or
the judges and legal professionals involved in the proceedings do not speak that language,
then to whom ought the cost of the interpreter be apportioned? Similarly, in what
circumstance might an interpreter be called for? Is it necessary for the RML speaker to have
no command of the language of the court, or is it sufficient that he or she chooses to speak
only the RML? Further, if the scope of such a right extends past mere interpretation and
obligates the national court to conduct proceedings in a RML of the State, further issues are
raised. In a criminal trial, must the judges and legal professionals be capable of conducting
proceedings entirely in the RML? If so, is there an obligation on the State to ensure that legal
training includes training in such a RML? Is there to be a quota of judges assigned to the
bench who must have a workable knowledge of the RML? In civil cases, where parties
disagree on the language to be used, how is a solution reached? Prior to court proceedings,
4 Jean-Marie Woehrling, The Europ ean Charter for Regional or Minority Languages: A Critical Commentary
(Strasbourg, Council of Europe Publishing 2005) 159. Woehrling refers to the Declaration on the Rights of Per
sons belonging to National or Ethnic, Religious and Linguistic Minorities, as well as t he Oslo rec ommendation
of 20 September 1996 (under the OSCE Commissioner for National Minorities).
5 ibid 161.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT