Language, education and the European Convention on Human Rights in the twenty-first century

Language, education and the European Convention on Human Rights in the twenty-first century

Katherine Williams and Bernadette Rainey’ Centre for Welsh Legal Affairs, Department of Law, University of Wales, Aberystwyth

In the Belgian Linguistic case the European Court of Human Rights held that legislation regarding language in education which was based on the principle of territoriality did not offend against the rights guaranteed in Article 2 of Protocol 1 or Article 8 of the European Convention on Human Rights, whether taken alone or in conjunction with Article 14 on non-discrimination. That ruling was given some 35 years ago, and this paper considers whether developments since then might lead the European Court of Human Rights to decide similar issues differently i f they arose today. However, having considered the situation, including instruments which have been adopted specifically to deal with language rights and minority rights, the conclusion is reached that the European Court of Human Rights would be likely to continue to allow a fairly wide margin of appreciation to states in the highly sensitive and controversial area of language rights and how they should be protected.

INTRODUCTION

This paper will consider the position under the European Convention on Human Rights (ECHR) in relation to language and education. It has been prompted by the increased interest in the ECHR on the part of public authorities and legal circles in the UK in the last few years because of the enactment of legislation making the Convention rights enforceable in the UK courts against public bodies, and creating a generally applicable duty for the courts to interpret all legislation in a manner consistent with the ECHR where possible.’ The authors’ particular interest in the issue of language and education arises against a background of the situation in Wales regarding the teaching of Welsh and the provision of education through the medium of Welsh. There has been some interest in whether the ECHR has any implications for the availability of Welsh-medium teaching, for example, in relation to parents who might wish to assert a right to have their child taught through the

* This work is part of a three-year research project on education, human rights and devolution funded by the A r t s and Humanities Research Board. 1. Human Rights Act 1998. For a general discussion of the legislation, see S Tierney ‘The Human Rights Bill: Incorporating the European Convention on Human Rights into UK law’ [ 19981 4 EPL 299.

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medium of Welsh,* or in relation to parents who object to certain subjects being taught through the medium of Welsh,3 or a s regards Welsh as a compulsory subject on the c u r r i ~ u l u m . ~ The object of this paper is not to consider the way in which these matters are currently dealt with in Wales but, rather, to examine whether they are matters on which claims might successfully be brought under the C o n ~ e n t i o n . ~

In order to determine whether the ECHR has any implications for such questions, it is necessary to revisit the f i s t major case decided by the European Court of Human Rights in relation t o education, and the only case which has

2. No right exists to a place in a Welsh-medium school, although such schools exist in many parts of Wales, including those where Welsh is not the majority’s first language. In primary schools, 17.9% of pupils in Wales receive all or most of their teaching in Welsh, 2.4% have part of the curriculum in Welsh and 78.1% learn Welsh as a second language. In secondary schools, 23% of schools offer Welsh as the medium for instruction for at least half of their foundation subjects and 14% of pupils study Welsh as a first language. (Figures from Welsh in Schools National Assembly of Wales Statistical Bulletin SB 48/2001 (December 2001), also quoted in The Welsh Language in Education in Wales Paper presented to Education and Lifelong Learning Committee on National Assembly, ELL 19-01(P2) (12 December 2001), available at www.wales.gov.uk/assemblydata/ 3C14D376000EA5340000348B00000000.rtf. It is not possible to assess the demand for places as there are no figures kept on this. In some areas (mostly rural) there appear to be more places than there are pupils, whilst others are working at close to capacity: see The Welsh Language in Education in Wales above. Note that some, such as Rhieni Dros Addysg Gymaeg (Parents for Welsh-Medium Education), claim that demand is greater than these figures suggest (in their evidence to the Education and Lifelong Learning Committee, ELL 03-02 (7 February 2002) p 1, available at www.wales.gov.uk/ assemblydatd3CSAA38700OB55B40000457500000000.html. I

3. For example, the teaching of science and mathematics through the medium of Welsh was opposed by some parents of children in a Welsh-medium school. See Assembly Minister’s Report to the Education and Lifelong learning Committee, ELL 04-01 (14 February 2001) p 1, available on the website of National Assembly for Wales: www.wales.gov.uk/ assemblydata/3A8930FC000618BB0000131B0000.htm1. 4. See, for example, the debate in the National Assembly for Wales Record of Proceedings (15 June 1999) pp 74-87. There was some discussion of whether Welsh should be compulsory up to Key Stage 4 in all schools; Monmouth, in particular, with only 2% Welsh- speaking, were interested in altering the situation. This was one of the areas considered by the Education and Lifelong Learning Committee but was not included in the final report. See www.wales.gov.ukfl<eypubassemedlearnin~conten~welsh-lang-~nal-e.rtf. 5. Although this paper takes Wales as its example, much of the discussion is equally relevant in a number of other member states of the Council of Europe, in particular, some of the newer members have minority groups and they might also be tackling such questions. For example, Spain has already dealt with such a situation in Catalonia (see J R Kasha ‘Education under Catalonia’s Law of Linguistic Normalisation: Spanish Constitutionalism and International Human Rights Law’ (1996) 34 Col J Transnat L 657) and Slovakia has had to face this issue, but its legislation has met with severe problems and criticisms (see D Thomas ‘Slovakia: Language and National Unity’ (2000) 53(1) Par1 Aff 135). Wales has been chosen as it is the most widely spoken and used of the indigenous minority languages in the UK; it is the only indigenous minority language in the UK to have won strong official support and it is likely to have been one of the factors (both within Wales and at Westminster) behind the support for Welsh devolution. For a full consideration of the status of each of the minority languages in the UK, see R Dunbar ‘Implications of the European Charter for Regional or Minority Languages for British Linguistic Minorities’ (2000) 25 E LR Human Rights Survey 46.

Language, education and the ECHR in the twenty-first century 627

reached the court in which language and education has been an issue.6 The case in question is normally referred to as the Belgian Linguistic case.’ Here, the issue of whether there was a right to education in one’s mother tongue was answered in the negative by the Commission and the European Court of Human Rights. Rejected too was the parents’ claim that to refuse their children mother- tongue state education infringed their right to respect for their ‘philosophical convictions’. The Court also found that, with the exception of one specific aspect of the Belgian legislation at issue,’ the Belgian law in question did not fall foul of the requirements of the ECHR in relation to the principle of non- discrimination. It is perhaps interesting to note that the Court was in no way ambivalent in its ruling;9 it very firmly decided against the applicants. On a number of points, however, the Commission was less categorical and differed in its findings.I0 Furthermore, linguistic and cultural rights were placed on the political agenda when, in 1961, the Consultative Assembly recommended that the Council of Europe draft an Article to provide for teaching in the language of choice, clearly seeing it as a fundamental right. The provision was drafted,I’ but was not passed. Following the decision in the Belgian Linguistics case it was dropped; this provision has still not been adopted.

The case was decided in 1968, some 35 years ago, and the issue was a sensitive cultural matter, so the Court was willing to allow a margin of appreciation to the state in deciding the best course of action.I2 In areas involving cultural and social

6. Other cases have failed at the admissibility stage: see, for example, SM and GC v United Kingdom Application No 23716/94 concerning the availability of Irish language education in Northern Ireland (the applicants failed the admissibility test and the case was not decided on its merits). 7 . Case relating to certain aspects of the laws on the use of languages in education in

Belgium (merits) Judgment of 23 July 1968 (1980) 1 EHRR 252. 8. (1980) 1 EHRR 252 at 3 17-3 19 (resident requirement in six ‘special status’ communes

where French schooling was available, access was denied to non-resident French-speaking families. However, non-resident Flemish speaking families were allowed access to Flemish language schools in same area). 9. In holding that there was no breach of the ECHR on a number of points, the court was

unanimous, although there were two separate opinions on the reasoning which led to the decision. On the finding that one aspect of the legislation did unlawfully discriminate, the court ruled by eight votes to seven. 10. The details of this will be discussed later, but to give an example, the Commission found withdrawal of subsidies in unilingual areas amounted to discrimination based on language under Article 14, when read in conjunction with Article 2 of Protocol 1: Report of the Commission, Series B, p 3 15, para 412. In contrast, the court found no violation in this area: (1980) 1 EHRR 252 at 300. 11. Recommendation 285 (1961) considered inclusion of a minority right in the second Protocol. The proposed wording was: ‘Persons belonging to a national minority shall not be denied the right, in community with other members of their group, and as far as compatible with public order, to enjoy their own culture, to use their own language, to establish their own schools and receive teaching in the language of their choice or to profess and practise their own religion.’ 12. Although it did not expressly talk in terms of ‘margir, of appreciation’. For general discussion of the concept of ‘margin of appreciation’ in the ECHR, see H C Yourow The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence THe Hague: Martin Nijhoff Publishers, 1996); N Lavender ‘The problem of the margin of Appreciation’ (1997) 4 EHRLR 380.

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values, it is sometimes necessary to be cautious in predicting the Court’s current views, given that major social or cultural developments may alter the court’s interpretation of the requirements of the ECHR.13 During the lengthy period since the ruling in question, there have been developments in relation to other instruments on minority rights and the rights of the child.I4 Some of the Court’s own jurisprudence has become more child-centred in its approach,I5 though this is only discernable in certain areas and there is a need for a more consistent approachI6 which would permit, if not encourage, greater child participation in decisions which affect them.” The Council of Europe has grown from a body of 15 member states in 1950 to one of 44 states today. Concerns and fears, as well as achievements and aspirations, of the states may or may not have changed too. For these reasons it may be prudent to consider the Belgian Linguistic case afresh. On the other hand, there are limits to the Court’s willingness and ability to engage in a dynamic or evolutive interpretation of the ECHR provisions.’* Thus, in its reconsideration of the Belgian Linguistic case and the position regarding language and education under the Convention, this paper seeks to examine whether there is any sign that the passage of over 30 years has led to any change in relation to language rights under the ECHR.

THE ECHR: PROVISIONS ON LANGUAGE, EDUCATION AND MINORlTlES

Unlike certain other international human rights instruments, the ECHR does not deal directly with either language rights or the rights of minorities as

13. This is discussed later, but examples can be seen in Znze v Austria (1988) 10 EHRR 394; Johnston v Ireland (1987) 9 EHRR 203; Rees v United Kingdom ( 1987) 9 EHRR 56 at 67-68; Tyrer v United Kingdom (1979) 2 EHRR 1 at 10; and Murckx v Belgium (1979) 2 EHRR 330 at 346. 14. Framework Convention for the Protection of National Minorities, ETS No 157 (Council of Europe, 1995); European Charter for Regional or Minority languages, ETS No 148 (Council of Europe, 1992); European Convention on the Exercise of Children’s Rights, ETS No 160 (Council of Europe, 1996) (not ratified by the UK); UN Convention on the Rights of the Child, UN.Doc A/44/25 (1989). 15. See the protection of child which was evident in Johnston v Ireland series A No 1 12 (1987) 9 EHRR 203. In the area of education, see the dissenting opinion of Kellberg in the Commission decision in Kjeldsen, Busk Madsen and Pedersen v Denmark (1975) Report of the Commission, European Court of Human Rights, series B, vol2 1 , pp 50-52, where he felt that insufficient stress had been put on the rights of the child; but in Eriksson v Sweden series A 156 (1989) 12 EHRR 183 the court expressly rejected a child’s claim under the second sentence of Article 2 of Protocol 1 . 16. See G Van Bueren ‘Protecting Children’s Rights in Europe - A Test Case Strategy’ (1996) 2 EHRLR 17 1. In particular, Van Bueren notes that children need to be properly considered in all aspects of rights: provision, protection, participation and prevention. She suggests that at present it is only in the area of protection that they are properly catered for. 17. United Nations Convention on the Rights of The Child UN Doc A/44/25 was the first treaty to confim participation rights of children: see U Kilkelly The Childand The European Convention on Human Rights (Aldershot: AshgateDartmouth, 1999) pp 117,137. 18. Precedent and the court is considered below. For discussion on this see J G Merrills The Development of International Law by the European Court of Human Rights (Manchester: Manchester University Press, 1988) pp 12-15; andJohnston v Ireland (1987) 9 EHRR 203 at 219.


such.I9 These rights might be raised within the context of other rights under the Convention, but the absence of an express provision represents a constraint from the start. In the few places where language is mentioned, it is in the context of protecting another right rather than with a view to protecting a right to speak one’s mother tongue per se.*O Education, however, is expressly dealt with in Protocol 1, but it emerged from a lengthy and contentious period of drafting as a rather less robust guarantee than some of the provisions agreed in the main body of the Convention.2’

Due to a lack of consensus on the text of the provision dealing with education, it was agreed to include this right in a Protocol to the main Convention in order to avoid a further delay in signing the latter.22 Disagreement on the drafting of what is now Article 2 of Protocol 1 focused primarily on three issues.2’

First, there was the question of whether the right to education should be stated in positive24 or negative terms.25 Those national delegations in favour of a negative wording were concerned that if it were stated positively, it might be

19. With the exception of some very specific references to language rights in Articles 5(2) and 6(3)(a) and (e), and the fact that protection against discrimination as an individual member of a minority group may be covered by Article 14 in association with another provision. To a limited extent, the Council of Europe has recognised language needs in its Charter for Regional or Minority Languages (1992) and its Framework Convention for the Protection of National Minorities (1999, both of which will be considered below. An attempt was made to add on an additional Protocol to the ECHR on the rights of minorities, which included language rights. It was proposed by the Parliamentary Assembly of the Council of Europe in Recommendation 1201(1993), but was never adopted by the Council of Ministers 20. As, for example, in relation to Articles 5 and 6 of the ECHR. 21. For material on the drafting of Article 2 of Protocol 1, see the collected edn of the Travaux Prkparatoires, vols I-VIII (The Hague: Martinus Nijhoff, 1975); for a overview, see A H Robertson ‘The European Convention on Human Rights: Recent Developments’ (1951) 28 BYIL 359. 22. 8th Session of the Committee of Ministers, Travaux Prkparatoires, n 21 above, vol VII, p 262. 23. For an indication of the differences, see Travaux Prkparatoires, n 21 above, vol VIII. Pp 186-1 88 give four versions of proposed Article 2: text of Assembly, August 195 1; text of Committee on Administrative and Legal Questions, October 1951; text of Committee of Ministers, November 1951; and text of Assembly, December 1951. 24. The original text of the Assembly in August 1950 was in positive terms: ‘Every person has the right to education. The function assumed by the State in respect of education and of teaching may not encroach upon the right of parents to ensure the religious and moral education and teaching of their children in conformity with their own religious and philosophical convictions’: Travaux Prkparatoires, vol VIII, p 186. So too was a separate proposal made by the Belgian delegation to the Committee of Experts in February 1951: ‘Every person has the right to education. Parents have the right to ensure the religious education and the teaching of their children in conformity with their own religious and philosophical convictions. The State in the organisation of public instruction shall respect this right of parents and shall take the necessary measures to ensure its effective exercise’: Travaux Prkparatoires, n 21 above, vol VII, p 192 25. The UK suggested a version whose first sentence was framed in negative terms: ‘No person shall be denied the right to education’: Travaux Prkparatoires, n 21 above, vol VII, p 186. This was later adopted as the first para of Article 2 of Protocol 1.

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interpreted to mean that the states were obliged ‘to take effective measures to ensure that everybody could receive the education which he desired.’ The other delegations did not share this view; they indicated that the right of education referred only to the right of parents to make their own choice of the kind of education which they wanted their children to receive.26

The second issue on which there was disagreement related to the area in which parents’ rights to determine the kind of education given to their children should be protected. This is the right now contained in the second sentence of Article 2 of Protocol 1 but, like the first sentence, it underwent various draftmg changes. The Committee of Experts2’ had expressed the view early on that the ECHR should include the right of parents to choose the kind of education given to their children. This view was advanced as a means of dealing with the tendency of totalitarian regimes to usurp parental rights in relation to children’s education.** However, in the drafting of the second sentence of Article 2 of Protocol 1, there was disagreement as to whether the parental right should be expressed in relation to their children’s religious education or in relation to the whole of their education. One draft referred to the obligation of the state to have ‘regard to the liberty of parents to ensure the religious education of their children in conformity with their own convictions’ .29 The Swedish delegation indicated that it would have preferred the word ‘convictions’ to be replaced with ‘creeds’.3o At the same time, a Danish proposal to include an express reference to parents’ linguistic preferences3’ met with agreement from some delegations, but was regarded by others as being outside the scope of the Convention, and it was withdrawn without having been voted

The text then agreed by the Committee of Ministers reflected some of these changes:

‘No person shall be denied the right to education. In the exercise of any functions which it may assume in relation to education and to teaching, the State shall have regard to the right of parents to ensure the religious education of their children in conformity with their own creeds.’33

The Commission on Legal and Administrative Questions of the Consultative Assembly discussed this provision in October 1951.34 It expressed concern that the revised provision simply required that the state should ‘have regard to’

26. Travaux Prkparatoires, n 21 above, vol VII, pp 200-202. 27. Travaux Prkparatoires, n 21 above, vol I, p 168. This Committee of Government Experts had been set up by the Committee of Ministers to consider the draft proposal of the Protocol 1 rights from the Consultative Assembly. 28. Travaux Prkparatoires, n 21 above, vol 111, p 262. 29. Travaux Prkparatoires, n 21 above, vol VII, p 246. 30. Travaux Prkparatoires, n 21 above, vol VII, p 246. 31. This would have involved adding the following additional sentence to the provision: ‘Parents or others in charge of the education of children shall have the right to decide freely that children in their charge shall attend recognised schools with another teaching language than the language of the country in question’: Travaux Prkparatoires, n 21 above, vol W, p 246. 32. The majority of the Committee of Experts, ‘while having no objection to the principle underlying the Danish proposal, were of the opinion that the Convention on Human Rights was not the most appropriate medium for settling this question’: Travaux Prkpararoires, n 21 above, vol VII, p 302. 33. Travaux Prkparatoires, n 2 1 above, vol VIII, p 186. 34. Travaux Priparatoires, n 21 above, vol VIII, p 10.


the rights of parents rather than the obligation to respect them.35 In addition, it regretted the change in the sentence regarding convictions of parents, noting that for respect for these rights to extend only to religious education, rather than the whole sphere of education, represented an ‘appreciable retreat from the traditional conception of freedom of education’ .36 Tackling what it saw as the reasoning behind this retreat, the Assembly’s Commission on Legal and Administrative questions emphasised that it considered unfounded the fear that the state might be required to establish or support schools reflecting various trends in society. Further, it was concerned that only religious convictions, rather than religious and philosophical convictions, were to be protected under the new version. This revision had been explained as prompted by a fear that respecting parents’ philosophical convictions might entail states having to respect views or ideologies regarded as wholly inconsistent with the rights in the ECHR. The Commission on Legal and Administrative Questions considered this point to have been dealt with already by Article 17 of the Convention in relation to all the rights guaranteed.

A further revised version agreed by the Committee of Ministers in November 195137 still did not meet with approval in the Consultative Assembly. In the end, the views expressed by the Consultative Assembly were accepted, and Protocol 1 was finally signed in March 1952, with the text of Article 2 reading:

‘No one shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. ’

It is clear that two distinct matters are dealt with in Article 2. The first sentence sets out the right to education, albeit in a negative formulation, a right that is to be enjoyed by the actual person seeking to receive the education. The second paragraph, on the other hand, deals with the right of parents to have their wishes respected in relation to the kind of education that is to be received by their children. That second sentence accords no right to the child to have his or her religious or philosophical convictions r e s p e ~ t e d , ~ ~ although provisions elsewhere in the Convention might be called in aid by the child, and the extent to which parental preferences are respected might be influenced by whether they conflicted with a coherent conviction on the part of the child.

35. Travaux Prkparatoires, n 21 above, vol VIII, p 22. 36. Travaux Prkparatoires, n 21 above, vol VIII, p 24. 37. ‘No person shall be denied the right to receive education. In the exercise of any functions which it may assume in relation to education and to teaching, the State shall have regard to the right of parents to ensure the religious education of their children in conformity with their own creeds and, where schools have been established by the State, to send their children to any other school of their choice, provided that such school conforms with the requirements of the law’: Travaux Prkparatoires, n 21 above, vol VIII, p 56. 38. Eriksson v Sweden (1989) 12 EHRR 183 at 193.

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THE BELGIAN LINGUISTIC CASE

The Belgian Linguistic case represented the first opportunity to interpret the scope of the right to education in addition to considering the principle of non- discrimination.

Six applications were made to the Commission of Human Rights by French- speaking parents complaining about the Belgian legislation on language in education. Belgian legi~lat ion~~ divided Belgium into four language regions - unilingual Flemish, French and German regions, and the bilingual (Flemish and French) region of Brussels. Five of the six applications were from French- speaking parents living in areas designated as unilingual Flemish; the sixth was from French-speakmg parents living in an administrative district with a ‘special status’. Stating that they were acting on their own behalf and on behalf of their children, they complained that, in the designated unilingual Flemish areas, there was no provision for French-language education, and in the special status district the provision for such education was inadequate. Also the subject of their complaints was the withholding of financial support from schools which did not comply with the linguistic requirements for schools in the relevant areas. In addition, the state refused to recognise or ‘homologate’ leaving certificates issued by schools not complying with the linguistic legislation. The applicants claimed that the legislation infringed Articles 8 and 14 of the ECHR and Article 2 of Protocol 1 to the Convention.

As regards the first sentence of Article 2 of Protocol 1, the European Court of Human Rights considered that the negative formulation of the provision had been designed to avoid a text whose interpretation might have required the states to take steps to ensure every person received the education he or she desired. On the other hand, notwithstanding the negative formulation, it held that Article 2 enshrined a right.40 In the Court’s view, since all the contracting states had general education systems when they signed the ECHR and Protocol, the obligation was not to establish such systems. Instead, the states’ duty was to guarantee to persons within their jurisdiction ‘the right, in principle, to avail themselves of the means of instruction existing at a given time’.41 A right whose very nature entailed regulation by the state, education’s regulation could vary in time and place in the light of resources as long as the very substance of the right was not infringed.42 Access alone was only part of the right: education also had to be effective.43 However, the Court’s explanation of ‘effectiveness’ was very restrictive: for education to be ‘effective’, it had to be possible for the person being educated to ‘have the possibility of drawing profit from the education received, that is to say, the right to obtain, in conformity with the rules in force in each State, and in

39. The applications when originally placed before the European Commission of Human Rights challenged legislation of 1932, 1955 and 1959; while the applications were before the Commission the legislation was amended by Acts of 1963. The Commission ruled that the extension of the complaints to the new legislation was admissible: Report of the Commission, European Court of Human Rights (1965) series B, vol I, paras 114-125. 40. (1980) 1 EHRR 252 at 281. 41. (1980) 1 EHRR 252 at 281. 42. (1980) 1 EHRR 252 at 281-282. 43. (1980) 1 EHRR 252 at 281.


one form or another, official recognition of the studies which he has completed’.” While the provision does not set out any specific requirements regarding lang~age,”~ the court considered that the right to education would be meaningless if it did not encompass the right to be educated in the national language or in one of the national languages, but not, as we will see, the parents’ language of choice.

On the issue of the second sentence, the major question was whether the parents’ linguistic preferences could amount to a ‘philosophical conviction’. If so, the issue of whether such conviction had been respected would arise. The Court held that to interpret the terms ‘religious and philosophical’ as covering linguistic preferences would be to distort the ordinary and usual meaning of the terms and ‘read into the Convention something which is not there’. To support this textual interpretation, it referred to the preparatory work on the drafting of the provision and noted the failure to include the Danish proposal which expressly referred to linguistic preferences. Accordingly, it held that the second sentence of Article 2 was ‘irrelevant’ to the issues raised.&

As to the concrete question of whether the first sentence gave a right to education in one’s mother tongue, or language of choice, the Commission and the Court held not. A majority of the Commission4’ held that there was no obligation under the first sentence of Article 2 to establish or subsidise any teaching. In the Court’s view, the f is t sentence of Article 2 of Protocol 1, which does not expressly contain any linguistic requirement, did not enshrine a right to have schools established or subsidised in which education was given in a particular language. Involving only a right of access to ‘educational establishments existing at a given time’, it had not been breached by the prohibition on establishing French-medium education in the Flemish unilingual region. It was sufficient that each of the children in unilingual regions had access to public or subsidised education in the language of the region, one of the state’s national languages. As to whether preventing the establishment of French- language schools in the Flemish unilingual area infringed Article 2 of Protocol 1 taken together with Article 14 of the ECHR on discrimination, the Court observed that Article 14 did not prevent distinctions in treatment if they were founded on objective grounds, were in the public interest and struck a fair balance between the interest of the community and respect for the Convention rights!’ Applying these criteria, the Court held that the legislation under challenge was not arbitrary, being based on the ‘objective element which the region con~ti tuted’~~ as well as being based on a public interest, namely ‘to ensure that

44. (1980) 1 EHRR 252 at 281. 45. In this respect the court contrasted Articles 5(2) and 6(3)(a) and (e). 46. (1980) 1 EHRR 252 at 282. 47. Seven votes to five; of the five dissenting Commissioners who considered there were some positive obligations, two reached the same conclusion as the majority, while three held that the failure to establish or subsidise French-medium education in the Flemish unilingual region infringed the first sentence of Article 2. 48. (1980) 1 EHRR 252 at 284. 49. (1980) 1 EHRR 252 at 293. This aspect of the case has been criticised for the court’s failure to consider demographic change and the linguistic composition of the region: see G Gilbert ‘The Legal Protection Accorded to Minority Groups in Europe’ (1992) XXIII Neth YIL 67 at 88.

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state-supported schools in unilingual regions conducted their teaching in the language of the region’.% Since this did not prevent the establishment of private French-language education, it could not be regarded as a disproportionate measure.5’

As to the parents’ rights under Article 8 of the Convention on family life, the fact that parents living in the Flemish unilingual region who wished their children to be educated through the medium of French had to send them to the Brussels region, Wallonia or abroad was acknowledged by the Court as representing an impact on their family life. However, it held that it did not amount to a breach of Article 8 since the separation of the children from the rest of their families was not a requirement of the legislation, but the result of the parents’ wish to avoid education through the medium of Flemi~h.~’

For these reasons, the Court held that neither the first sentence of Article 2 of Protocol 1 or Article 8 of the ECHR, taken alone or in conjunction with Article 14, had been infringed as long as access to existing establishments providing education in one of the national languages was allowed.

For the same reasons, the Court held that the complete withdrawal of subsidies to French-language schools in the Flemish unilingual region, or even to Flemish schools which provided French-language teaching as a secondary, non- subsidised activity, did not infringe the first sentence of Article 2, alone or in conjunction with Article 14. The Court observed that this measure tended to prevent ‘mixed-language’ schools, and was part of a network of measures aimed at the protection of the ‘linguistic homogeneity’ of the unilingual regions. It held that the result was harsh but did not amount to a violation of the ECHR since, whatever the severity of the measure, it was based on objective criteria, namely to prevent the possibility of education which the state did not want to support benefiting from the subsidy given to education in the regional language. In the Court’s view, ‘this purpose is plausible in itself and it is not for the Court to determine whether it is possible to realise it in another In the light of its stated criteria on the application of Article 14, one might have expected the Court to consider not only the legitimacy of the objective, but also the proportionality of the measures adopted to secure it.% As before, it noted that while the legislation prevented subsidised and non-subsidised education being conducted in the same school, it did not prevent the institution of private French-language schools.

On this point, however, the Commission had, in contrast to the Court, found that the withdrawal of subsidies amounted to a violation of the right to education as stated in the first sentence of Article 2 in conjunction with Article 14.55 The majority of the Commission held that ‘a language system for education,

50. (1980) 1 EHRR 252 at 294. 51. A majority of the Commission came to this conclusion too. Two dissenting members of the Commission found unlawful discrimination on this point. 52. (1980) 1 EHRR 252 at 293. 53. (1980) 1 EHRR 252 at 300 54. Van Dijk and Van Hoof describe the court as applying ‘only a rather loose proportionality test’ in relation to Article 14: P Van Dijk and G J H Van Hoof Theory and Practice of the European Convention on Human Rights (The Hague: Kluwer Law International, 3rd edn, 1998) p 726. 55. By seven votes to five.


organised on a territorial basis, is not necessarily contrary to the Convention’.” However, it considered that the measures were not only designed not to encourage French migration into Flanders, but amounted to serious obstacles to such settlement. In its view, the legislation did not just seek to stop the spread of French language in those areas, but had as its object ‘the assimilation of minorities against their will into the sphere of the regional lang~age’.~’ The Commission considered that this measure was unduly harsh and amounted to a punitive sanction which affected the French-speaking population. Unlike the Court, the Commission held that this amounted to a violation of the right to education taken together with the right to non-discrimination.

In relation to six ‘special status’ communes within the Flemish unilingual region, there was a departure from the principle of territorialitys8 in that French- language nursery and primary schooling was permitted, but the children were required to study Flemish in depth, although in the Flemish-language schools in the same area the teaching of French was optional. The Court held that this did not amount to arbitrary discrimination, given that the region was by tradition Flemish-speaking.

Only in relation to one specific point did the Court find a breach of the ECHR. In the six ‘special status’ communes where French-language schooling was available, access was denied to non-resident French-speaking families. On the other hand, non-resident Flemish-speaking children were permitted access to the Flemish-language schools in the same area. The Court held that the residence requirement affected only French-speaking families. It denied access to existing education establishments on a discriminatory basis, one which could not be justified on objective grounds, and as such it infringed the first sentence of Article 2 of Protocol 1 taken together with Article 14 of the Convention.

Finally, as to the refusal of the authorities to ‘homologate’ the certificates of children who had attended French-speaking schools within the Flemish unilingual area, the Commission held that this amounted to a discrimination on purely linguistic grounds which was incompatible with Article 14.59 The Court, however, considered that the fact that a student could sit an examination before the Central Board ensured that it was possible to obtain official recognition for the studies taken.”

In summary, the Belgian Linguistic case established a number of key principles in relation to language and education. Although the Court refused to regard the f i s t sentence of Article 2 as a wholly negative obligation to refrain from interference, it defined the right to education as the fairly minimal commitment to allow access to whatever education establishments were in existence at the particular time. As such, the f i s t sentence failed to guarantee a right to be taught in one’s mother tongue or in the language of one’s choosing. Nor could the second sentence of Article 2 be relied upon for such a right, since the term religious and philosophical convictions was not to be interpreted as

56. Report of the Commission, n 39 above, series B, p 308, para 405. 57. Report of the Commission,, n 39 above, series B, p 315, para 412. 58. This was due to the increase in the number of French speakers living in this traditionally Flemish-speaking region. 59. Report of the Commission, n 39 above, series B, p 339, para 451. 60. (1980) 1 EHRR 252 at 335-336.

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covering linguistic preferences. Essentially, the case was decided as a case relating to discrimination rather than one on education.

As to the impact of Article 2 of Protocol 1 in conjunction with Article 14 of the ECHR, both the Commission and Court accepted that the application of the territorial principle on language matters would not in itself infringe the Convention. As to the concrete situation, the fact that the state had opted for the territorial approach and had designated regions as unilingual was for the Court an objective factor which justified all but one of the differences in treatment and burdens which the legislation entailed. The Commission, on the other hand, recoiled from what it saw as the strong assimilationist agenda which it considered was being pursued by certain aspects of the legislation.

In terms of the implications of the ruling for what is required of, or permitted to be done by, states dealing with different language groups in its territory, it must be remembered that the Court's ruling related to the particular situation in Belgium. The ruling was made in relation to a state with a definite policy on language and education; what was being challenged was deliberate action rather than the failure to have tackled the issue in the first place. This might have some bearing on whether the Court considered that there were objective grounds for any difference in treatment. It may be easier for a state to justify as rational and objective a policy, even a controversial one, which has been carefully thought through as a means of dealing with a genuine problem within the state than a situation where discrimination results from a failure to have tackled the problem at all. On the other hand, a wholly arbitrary adoption of a territorial approach to language, for example, in a state where the geographical distribution of linguistic groups was in no way regionally based, might well lead the Court to find unlawful discrimination. However, some general points do emerge: if the Court follows its ruling in the Belgian Linguistic case, the situation is clear that a state will not be found to be in breach of Article 2 of Protocol 1 taken alone by virtue of its failure to provide children with an education in their mother tongue or in the language chosen by their parents6' Conversely, to require children to be educated in a particular language, as long as it is one of the national languages, will not amount to a breach of the ECHR right to education either. Nor will a requirement to study a particular language. Parents' rights will not be violated if their linguistic preferences are not respected, since such preferences are not protected within the meaning of the second sentence of Article 2 . Only if there is discrimination in terms of access to education establishments will the Convention be violated. A difference in treatment which can be justified on an objective basis will not, however, amount to such discrimination. The regulation of language matters on a territorial basis has been held by the Court to be an acceptable method in principle in the field of education and, later, in relation to electoral rights.62

61. In the Belgian Linguistic case these issues were one and the same, and the court held that it was unnecessary to consider it: (1980) 1 EHRR 252 at 3 10. 62. Mathieu-Mohin and Clerfayt v Belgium Judgment of 2 March 1987 (1988) 10 EHRR 1 at 18. See also Clerfayt and others v Belgium Application No 27 120/95,8 September 1997 (held inadmissible). In the earlier Clerfayt andhgros v Belgium Application No 10650/83, the Commission had held that the ECHR did not guarantee public representatives the right to use the language of their choice in public bodies: 17 May 1985, DR 42, p 212.


While the Belgian Linguistic case has been criticised by some in relation to its acceptance of assimilationist policies,63 for downplaying the individual right to educationa and in its treatment of min~rities:~ some contemporary reactions were less critical& and even now the decision might be welcomed by those who consider some element of affirmative action to be necessary in certain contexts. Much has to do with how one defines a minority: Gilbert notes that minorities within regions as well as within states require protection,6’ but it is of interest that the 1995 Framework Convention on National Minorities has no definition of a national minority due to the lack of consensus among Council of Europe states on a suitable definition.68 More recently, the Committee on Legal Affairs and Human Rights has suggested that minorities within regions are protected under the Framework C~nvent ion .~~ However, the major purpose of this paper is to consider whether there is likely to be any change in the Court’s view since the ruling in 1968, and it is to this matter we now turn: would the Court be likely to rule on language and education differently today to its judgment in the Belgian Linguistic case?

PRECEDENT AND THE EUROPEAN COURT OF HUMAN RIGHTS

Is it safe for public authorities to rely on the ruling in the Belgian Linguistic case as determinative of states’ obligations in relation to the provision of education in particular languages? The European Court of Human Rights is not bound by its previous decisions, but in practice it follows its earlier decisions in order to build up a consistent and coherent body of interpretation on the ECHR. It has held that where there are ‘cogent reasons’ for doing SO it will be justified in departing from an earlier deci~ion.’~ In a small number of

63. See, for example, Gilbert, n 49 above; H Cullen, ‘Education Rights or Minority Rights?’ (1993) 7 IJ L and Fam 143. 64. See Cullen, n 63 above. 65. See Gilbert, n 49 above, at 88. 66. Contemporary commentary was less clearly critical. For example, Gormley refers to the destabilising influence the language issue was having on the future existence of the state of Belgium, as well as the effect of too controversial a decision on the continuation of the existence of the European Court of Human Rights which was then in its infancy: P Gormley ‘The Development of International Law through cases from the European Court of Human Rights: Linguistic and Detention Disputes’ (1969) 2 Ottowa LR 382. Fawcett justifies a broad margin of appreciation in the regulation of linguistic use within a state as being necessary, and notes that Articles 9 and 10 protect the content of the message not necessarily the form in which it is expressed unless that is necessary to the ideas: J E S Fawcett The Application of the European Convention on Human Rights (Oxford: Clarendon Press, 1969). Both these texts were written prior to the final court decision. 67. Gilbert, n 49 above, at 92. 68. The lack of consensus on the meaning of this term is noted in the Belgian context by A Alen and P Peters ‘The Columberg Report on the Belgian Linguistic Legislation: A Storm in aTeacup’ (1999) 5 EPL 155 at 165-166. 69. Protection of Minorities in Belgium Provisional report of the Committee on Legal Affairs and Human Rights, 18 March 2002 (see the discussion in paras 13-27 of the Report). 70. Cossey v United Kingdom Judgment of the Court, para 35 (1991) 13 EHRR 622 at 639. In Cossey, the court declined to overrule an earlier decision.

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cases the Court has expressly contradicted an earlier ruling or an aspect of one,7’ and it has noted in others that a departure from an earlier decision might be justified ‘in order to ensure that the interpretation of the Convention reflects societal changes and remains in line with present day condition^'.^^ However, as suggested by Greer,’3 precedent is often difficult to apply in relation to ECHR cases. The discussion in the judgments of the Court and Commission is often very specific to the situations under discussion, and less useful as a more expansive indication of future interpretation of the Convention. Furthermore, because the judgments do not always fully explain decisions and how they interrelate, the interpretation of the Convention and the interplay between rights is made more difficult when attempting to resolve disputes. Although there is an intention to follow earlier decisions, there is no certainty in predicting how the Court will interpret those earlier decisions in later cases involving different situations: precedent is very different from the similar concept in common law. This is made more difficult as the Court often takes on a teleological approach to the interpretation of rights - associating the value of the rights with some other good, usually the good of that society as a whole.

Different methods of interpretation can lead the Court to different conclusions and its emphasis on one approach rather than another has already been noted in relation to the different results which it can reach on the same point. While in some cases it has relied heavily on the framers’ intention^:^ it has also emphasised that the ECHR is a living instrument which must be interpreted in a dynamic way in order to ensure that interpretation reflects current circumstance^.^^ Thus, for example, it cautioned in early cases concerning transsexuals’ rights that the need for appropriate legal measures would be kept under review ‘having regard particularly to scientific and societal developments’.76 On the other hand, there are limits to how far such a dynamic or evolutive interpretation can take the Court: in Johnston v Ireland, it held that, despite social changes, it could not read into the Convention a right to divorce when the contracting states had deliberately not included such a right in the C~nvent ion .~~ Nevertheless, where a right has been provided, the Court has been willing to interpret it beyond what at least some of the contracting states would have envisaged and been prepared to accept at the time of the Convention’s drafting.7x However, it is possible to identify a number of factors which constrain it: as mentioned already, if a deliberate choice was made not to include a right, it may limit the Court; if there is a lack of consensus on a controversial matter, the Court may be more likely to feel constrained; and,

71. For example, in Borgers v Belgium (1993) 15 EHRR 92, the court departed from its ruling in Delcourt v Belgium (1979-80) 1 EHRR 355. On the general issue of precedent and the court, see the discussion in Merrills, n 18 above, pp 12-15. 72. Cossey v United Kingdom (1991) 13 EHRR 622. 73. S Greer ‘Political Theories of the European Convention on Human Rights’ presentation at the Socio-Legal Studies Association Conference, Bristol, 2001. 74. As, for example, in the Belgian Linguistic case. 75. See, for example, Inze v Austria (1988) 10 EHRR 394; Johnston v Ireland (1987) 9 EHRR 203. 76. Rees v United Kingdom (1987) 9 EHRR 56 at 67-68. 77. Johnston v Ireland (1987) 9 EHRR 203 at 219. 78. See, for example, Tyrer v United Kingdom (1979) 2 EHRR 1 at 10; March v Belgium (1979) 2 EHRR 330 at 346.


finally, if a particular decision would have significant resource implications, the Court may be more cautious. Thus, while extending the concept of philosophical convictions in Campbell and Cosans clearly went further than the Travaux Prgparatoires either required or e~pected,’~ the Court was on fairly solid ground in that there was perhaps an identifiable trend against corporal punishment of children: the right was not wholly unconnected from the right to physical integrity embodied in Article 3, and there were no resource implications. On the other hand, to hold that linguistic preferences of parents should be respected could involve substantial resource commitments. The Court could point to the Travaux Prgparatoires and the failure to press ahead with the Danish proposal which expressly dealt with language. Furthermore, there is no great consensus among the contracting states on how minority languages should be dealt with and as to whether the principle of territoriality or that of personality should be accepted. Accordingly, it is less likely that the Court should change its view on this matter. On the other hand, the Court may feel that indigenous minority languages have increased in status and now require to be recognised as philosophical convictions. However, even if the court were to include linguistic preferences as philosophical convictions, the obligation to respect those convictions is not absolute and there is no obligation to set up schools specifically to cater for the wishes of the parents.

CHANGES SINCE THE BELGIAN WNGUZSTZC CASE

Most of the case law which has reached the Court since the Belgian Linguistic case has primarily concerned the second sentence of Article 2 of Protocol 1 of the ECHR. As to the second sentence, the concept of parents’ ‘religious and philosophical convictions’ has been extended slightly, but remains restrictive. The Kjeldsen caseso confirmed that the parental right exists not only in relation to teaching of religious education, but in relation to all aspects of the education and teaching within the school. Accordingly, parents could assert a ‘philosophical conviction’ within the meaning of Article 2 in relation to whether their children should undergo compulsory sex education. However, the Court ruled that the key feature of the second sentence of Article 2 is to prevent indoctrination. The state may set the school curriculum and is not prohibited from conveying information related to religious or philosophical matters as long as this is done in ‘an objective, critical and pluralistic manner’ .81 This reasoning sits easily with the intentions expressed in the preparatory work on the drafting of the provision, although it is possible that some of the delegates involved in the drafting process would not have necessarily agreed with the result.** The concept of philosophical

79. In the earlier cases of Kjeldsen, Busk Madsen and Pedersen v Denmark( 1 980) 1 EHRR 7 1 I (the Danish Sex Education case) and Belgian Linguistics (1980) 1 EHRR 252 itself the court had felt constrained by the Travaux Preparatoires, whereas in Campbell and Cosans (1982) 4 EHRR 293 at 304 they explicitly reject this constraint (note that Justice Sir Maurice Evans, the UK judge, placed greater reliance on the Travaux Prepararoires: at 309). 80. Kjeldsen, Busk Madsen and Pedersen v Denmark (1 980) 1 EHRR 7 1 1. 81. Kjeldsen, Busk Madsen and Pedersen v Denmark (1 980) 1 EHRR 7 1 1 at 73 1. 82. Dissenting Judge Verdross considered that the court had failed to give sufficient regard to the parents’ (strict) religious and moral convictions: see Kjeldsen, Busk Madsen and Pedersen v Denmark (1980) 1 EHRR 71 1 at 734.

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convictions was clearly extended by the rejection of the Travaux Prkparatoires in the case of Campbell and Cosans v United Kingdom.” There, the applicants claimed that the parents’ objection to corporal punishment amounted to a philosophical conviction. The state argued that the issue of punishment was an internal administrative matter for each school and fell outside the definition of teaching and instruction, and therefore outside the scope of ‘philosophical conviction.’ However, the court rejected that narrow interpretation, holding that the education of children involves ‘the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young’.84 Even if the use of corporal punishment were regarded as belonging to the internal administration of a school, it was none the less an integral part of the process by which the school sought to achieve its objectives. Given the text of the second sentence, the court held that the obligation was binding on schools in the exercise of ‘each and every’ function they undertook. Accordingly, the fact that a function might be considered to be ancillary was irrelevant. As to which convictions would be worthy of the label ‘philosophical’, the court held that the term denoted ‘such convictions as are worthy of respect in a ‘democratic society’, and are not incompatible with human dignity; in addition, they must not conflict with the fundamental right of the child to education, the whole of Article 2 being dominated by its first sentence’.85 It described the parents’ views as relating to ‘a weighty and substantial aspect of human life and behaviour, namely the integrity of the person.’86 While in the Belgian Linguisric case the Court relied heavily on the Travaux Prkparatoires, it made little reference to them in Campbell and Cosans. Where in the Belgian Linguistic case the Court regarded itself as limited to the idea of an agnostic belief, it clearly went beyond this in Campbell and Cosans. The concept of a philosophical conviction has been described as a ‘nebulous and even elastic concept’.’’ One commentator asked in 1951 where the line should be drawn between philosophical convictions whose freedom should properly be respected and the convictions of cranks or faddists.88 Robertson and Memlls consider that it is difficult to see why a parent’s views on punishment within a school should be regarded as ‘philosophical convictions’ but not cultural and linguistic preferences ‘which are no less fundamental’. Doubting that it was simply a matter of the time lapse between the decisions they suggest that a more satisfactory explanation would be:

‘. . . to see deciding the scope of Article 2 as less a matter of finding an all- purpose definition of “philosophical convictions” than of demarcating the respective spheres of the individual and the State in the light of contemporary ideas and values. In the Danish Sex Education cases the dominant idea is the State’s duty to give children information. In the Campbell and Cosans case, on the other hand, it is the dignity of the individual, while in the Belgian Linguistic case the recognition that cultural diversity can pose acute

83. Campbell and Cosans v United Kingdom (1 982) 4 EHRR 293. 84. Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 at 303. 85. Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 at 305 (court’s footnotes omitted). 86. Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 at 305. 87. Robertson, n 2 1 above, at 362. 88. Robertson, n 2 1 above, at 362.


constitutional problems led the Court to conclude that language arrangements are best left to the national a~thori t ies . ’~~

Since the Campbell and Cosans case, however, the Court has had little opportunity to rule on the meaning of ‘philosophical convictions’ any further, and the Commission has shown little willingness to extend the boundaries. Even where a religious or philosophical conviction is accepted, it appears that the Court will remain the judge of whether the parents are justified in regarding their conviction as offended by state conduct.” The Court will also be the final arbiter on whether the state has acted unreasonably in not acceding to a particular parental religious or philosophical conviction where it has to balance the various demands on scarce resources. Accordingly, even if the Court moved to include linguistic preferences within the notion of a philosophical conviction, there is no guarantee that this would give parents a right to have their children taught in the parents’ choice of language. In the context of the UK, the state’s reservation to the second sentence of Article 2 would then become an issue. If valid:’ it protects the state from any obligation to commit resources which it considers inappropriate. There are grounds, however, for arguing that the reservation may not be valid; so far it has not been necessary for the Commission to give a conclusive ruling on this in any of the cases where it has arisen.92

89. J G Merrills and A H Robertson Human Rights in Europe: A Study of the European Convention on Human Rights (Manchester: Manchester University Press, 4th edn, 2001) p 247; see also Memlls, n 18 above, p 85: ‘The conclusion is thus inescapable that the Court’s unwillingness to employ the travaux in Campbell and Cosans was not based on the reason given in the judgment, but on the desire to justify a different result.’ 90. In Valsamis v Greece (1997) 24 EHRR 294, the court held that the parents’ Jehovah’s Witness and pacifist beliefs should not have been offended by the purpose of or arrangements of a school parade which their children were required to attend on 28 October, National Day in Greece. 91. In January 1997 in S P v UK Application No 8566179, the Commission questioned whether the UK’s reservation was valid. This occurred in the light of case law such as Belilos v Switzerland (1988) 10 EHRR 466 in which the European Court of Human Rights had stated that Article 64 (now Article 57) excluded reservations couched in terms that were too vague or broad for it to be possible to determine their exact scope and meaning: at 485. The Commission further suggested that if the reservation was valid it was inapplicable to provisions which had entered into force subsequent to the making of the reservation as suggested by the decision in Fischer v Austria (1995) 20 EHRR 349 where Austria unsuccessfully argued that the provisions in force in 1982 and in 1958 were essentially identical provisions: at 365- 366. Either or both of these might allow the validity of the reservation to be questioned. 92. See, for example, Cohen v United Kingdom Application No 25959/94,28 February 1996 -in this case Commission recalled the UKreservation, but found no need to look at it because the case was inadmissible. S e e also Jand B L v UK Application No 14136/88; Graeme v UK ApplicationNo 13887B8; NortkottvUKApplicationNo 13884/88; PandLDv UKApplication No 14135/88; P D v UKApplicationNo 14137188; Connolleyv UKApplicationNo 1413W88; S P v UK Application No 2891 5/95; Wand DM v UK Application No 8566179: In contrast, in Campbell and Cosans v UK (1982) 4 EHRR 293, the court found that the state could not use its reservation on the facts with regard to corporal punishment as the state could take measures to comply with the provision that did not fall within the reservation. For general discussion on validity of reservations under Article 57 of the ECHR (originally Article 64), see Van Dijk and Van Hoof, n 54 above, pp 773-782. See also Belilos v Switzerland series A No 132, pp 25-28, paras 52-59 (1988) 10 EHRR 466 at 466488; Fischer v Austria series A No 312, pp 18-20, paras 37-41 (1995) 20 EHRR 349 at 365-366.

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In terms of the interpretation of the first sentence of Article 2 of Protocol 1, case law since the Belgian Linguistic case has not seen the Court willing to push the right to education much beyond the issue of access to education. As has been commented upon e1sewhe1-e:~ what is at issue is the right to freedom of education and not the social and cultural right to education. As long as access to existing education establishments is allowed on a non-discriminatory basis, the ECHR obligations are complied with. Some have argued that the right must be effective, and this might indeed change the outcome of a case if it were argued that a child was being denied effective education because it is not in their first language and they are unable to understand sufficient to profit from the tuition. Although the Court spoke in the Belgian Linguistic case of the need for education to be effective, as noted above, its notion of effective related only to the recognition of completed studies. Of course, the Court is not obliged to follow that narrow construction. In the Belgian Linguistic case it contrasted Article 2 on education with provisions of the ECHR which expressly mentioned language, using this difference to justify its view that the first sentence of Article 2 made no requirement in relation to language. Yet, it is hard to believe that if Article 6(3) did not expressly refer to the right to an interpreter, the Court would hold a criminal trial to be fair if the accused could understand nothing of it. The fact that language was not mentioned is not conclusive. Nor is it conclusive that a proposal to include a reference to language was not included, since there was no detailed discussion on the merits of that provision. However, the case law is not encouraging. Cases seeking some particular kind of education have not been successful before the Commission and the Court has traditionally been cautious where resources are at issue.94 Even if the right to an effective education were held generally to require education in a child’s mother tongue, and it is presumably the latter which have to be conclusive rather than the parents’ choice of language, the Court would not hold this to be an absolute right, and the reasonableness of provision might well be regarded as a more appropriate question for the national authorities given the resource implications.

Have there been developments which might sway the Court in favour of a different interpretation of the rights in question to the one taken in the Belgian Linguistic case? One could point to developments in relation to minority rights and language rights as well as different perspectives on the rights of children more generally.

As regards language rights, the Charter for Regional or Minority Languages was signed in 1992 and entered into force in 1998.95 The Charter applies in

93. See Cullen, n 63 above. 94. For example cases regarding disability all failed at admissibility stage, see Cohen v United Kingdom Application No 25959194; J and B L v UK Application No 14136188; Graeme v UK Application No 13887188; Northcott v UK Application No 13884/88; P and L D v UKApplication No 14135188; P D v UKApplication No 14137188; Connolley v UK Application No 14138188; S P v UK Application No 28915195; Wand DM v UK Application No 8566179; Simpson V UK Application No 146888189; Smith v UK Application No 15 1861 89; Dahlberg v Sweden Application No 1851 1191; Klerks v Netherlands Application No 252 12/94; Ford v UK Application No 28374195; Keating v UK Application No 297871 96. Found inadmissible by the court in Di Egidio v Italy Application No 36505197; and Lukach v Russia Application No 48041/99. 95. Ratified by the UK on 27 March 2001 and in force in the UK from 1 July 2001 -the UK declared that the Charter would apply to Welsh, Scottish Gaelic and Irish.


relation to a language ‘traditionally used within a given temtory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population; and which is different from the official languages of that State but does not include ‘the languages of migrants’.% Article 7 of the Treaty includes as a general principle on which states are to base the making of law and policy: ‘the provision of appropriate forms and means for the teaching and study of regional or minority languages at all appropriate stages.’ The general principles contained in Article 7 and other provisions in Part I1 of the Charter are made more specific in provisions in Part 111, which includes Article 8 on education. Under that provision, states undertake to make pre-school education, in whole or in a substantial part, available in the regional or minority language, at least to those pupils ‘whose families so request and whose number is considered sufficient’ or, where pre-school education is not within the competence of the public authorities, to favour or encourage the application of these obligation^.^' In relation to primary and secondary education, states must make education available in the relevant language or make a substantial part of the education available in the minority language or make provision for the teaching of the relevant language or to carry out one of these obligations ‘at least to those pupils whose families so request and whose numbers are considered sufficient’.98 In relation to territories where the language has not been traditionally used, the states undertake ‘if the number of users of a regional or minority language justifies it, to allow, encourage or provide teaching in or of the regional or minority language at all the appropriate stages of education’.w However, parties are obliged to undertake to apply only three parts of Article 8. The enforcement system is by reporting, first after one year and then at three- yearly intervals .loo

Likewise, the obligations in the Framework Convention for the Protection of National Minorities, signed in 1995, are fairly minimal. Equal access to education for persons belonging to national minorities which is guaranteed by Article 12 would appear to go no further than the effect of Article 2 of Protocol No 1 taken in conjunction with Article 14. Nor would Article 13 of the Framework Convention, in guaranteeing the right of minority groups to set up and manage private education establishments, go beyond what the Court saw as the right of French speaking parents in the Belgian Linguistic case, especially since Article 13(2) of the Framework Convention makes it clear that the exercise of the right shall not entail any financial obligation for the states. Article 14 of the Framework Convention guarantees the right to every member of a national minority to learn his or her minority language. Where there is sufficient demand, states ‘shall endeavour’ to ensure that persons belonging to minorities have adequate opportunities for being taught the

96. Article 1 -note limitations, for example, the Charter would not cover Russian in Baltic states since it is used by the majority; it would not cover Irish in the Republic of Ireland since the Irish language has official status. However, it does cover Welsh in Wales as this is neither used by a majority within the UK nor is it one of the Official languages of the UK, despite it being an official language in Wales. 97. Article 8( l)(a). 98. Article 8( l)(b) and (c). 99. Article 8(2). 100. Article 15( 1).

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minority language or for receiving instruction in this language, this being without prejudice to the learning of the official language or teaching in the official language. Compliance with the Framework Convention is monitored by the Committee of Ministers of the Council of Europe.Io' Under Article 25, each party must provide information on the measures set up to comply after the first year of the entry into force for the Convention in relation to them and thereafter on a periodical basis or when requested by the Committee of Ministers. A major mark of the lack of consensus on the subject of minority protection, even in a treaty primarily designed to deal with the rights of minorities, is the failure of the treaty to define what is meant by a minority. To some extent this leaves it to each contracting state to define any alleged problems out of existence by denying that the group making the allegations is a minority. If it were applied to the situation in the Belgian Linguistic case, it would raise the question of whether the group of French speakers within the Flemish region was a minority (and likewise Flemish speakers within the French region) or whether a group would be a minority only if a minority within the state as a whole. In discussing this point, the Venice CommissionIoz had noted that in states where powers are decentralised a group who may not be a minority at a state level may become a minority within a region and the Framework Convention should then provide this regional minority protection for its religious, linguistic, cultural and historic features. Recently the Committee on Legal Affairs and Human RightsIo3 has recognised that in light of this and on a true construction of Article 19(c) of the Vienna Convention on the Law of Treaties, as applied to the Framework Convention, regional groups should be recognised as minorities, as any other interpretation would be incompatible with the object and purpose of the Framework Convention.IW The 2002 Draft statement by the Committee noted that a ratification of the Framework Convention on National Minorities which purported to exclude such regional groups should be considered as being incompatible with the Framework Convention.Io5

These measures are designed to make up for the gap in the Convention which fails to protect minority languages as such. While these measures can be hailed as a step forward in recognising the value of protecting minority languages, the obligations are quite minimal. If the European Court of Human Rights were looking for evidence of a groundswell of opinion that education should be provided in a child's mother tongue, it might be inclined to note that even in a Treaty specifically designed to protect languages, the requirements are quite minimal. And yet, the very fact that the states felt the need to make provision additional to what exists in the ECHR might well confirm the Court in its view that Article 2 of Protocol 1 was not designed to, and should not, protect a right

101. Although states outside the Council of Europe can become parties -hence the overlap with some of the Convention rights. 102. The Venice Commission Recommendation 1201 (1993). 103. Protection of Minorities in Belgium Provisional report of the Committee on Legal Affairs and Human Rights, 18 March 2002 (see the discussion in paras 13-27). 104. See especially the fundamental principles set out in Article 3 of the Framework Convention. 105. Protection of Minorities in Belgium Provisional Report of the Committee on Legal Affairs and Human Rights, 18 March 2002, para 27.


to education in one’s mother tongue or language of choice. Indeed, one might come to the conclusion that the rights in these specialised treaties are so limited that any acceptance that the ECHR covered a right to be educated in one’s mother tongue or language of choice would have been a very bold step indeed.

Even in Treaties guaranteeing education as a social and economic right, a fairly light burden is placed on the state. Article 13 of the International Covenant on Economic, Social and Cultural rights merely guarantees the right of parents to send their children to schools outside the state system as long as they conform to minimum education standards.

There is, however, the possibility that more has changed in relation to perspectives on children’s rights. Article 2 of Protocol 1 shares with certain other international instruments on education the characteristic of regarding the child ‘as a valuable but silent receptacle of knowledge’.’” Article 2 protects a child’s right not to be denied access to existing education establishments but, in relation to respect for philosophical and religious convictions, it is the parents’ rights that are respected, no mention being made of the ~hi1d.I~’ Yet this was not an issue in the Belgian Linguistic case, and it is doubtful whether it would increase the likelihood of the Court holding that there was a right to education in one’s mother tongue. What it might do, however, would be to strengthen the Court’s resolve to limit the respect accorded to parental wishes where they conflicted with the child’s right to an effective education. This could arise in relation to the medium through which a child was being educated, but in practice it would be unlikely that a child would argue that education would be more effective if he or she was instructed through the medium of a different language, unless one parent wanted instruction through the medium of a different language whilst the other wished the status quo to continue. However, even without the intervention from the child, the Court could restrict the parental right to choose the language of education if this choice restricted the child’s right to be educated effectively.

On the issue of discrimination, the Court held that Article 2 of the Protocol and Article 14 of the ECHR taken together would not be interpreted as guaranteeing to everyone the right to education in the language of his or her choice. Article 14 is not a free-standing right, and its exercise is tied to the applicability of one of the other rights guaranteed in the Convention. In the Belgian Linguistic case, the Court dealt with the issue of discrimination as one concerning access to education rather than as regards the quality of education.Io8 This could be explained as the result of Article 14 not being a free-standing

106. G Van Bueren The International Law on the Rights of the Child (Dordrecht: Martin Nijhoff Publishers, 1995) p 240. 107. Remarked upon in the Commission in Kjeldsen, Busk Madsen and Pedersen v Denmark, 1975 Report of the Commission, European Court of Human Rights, series B, vol21, p 50. Cf the separate concumng opinion of Kellberg: ‘it is hardly conceivable that the drafters would have intended to give parents something like dictatorial powers over the education of their children.’ Was it inconceivable? Not commented on in the majority opinion in the Commission, 1975 Report of the Commission European Court of Human Rights, series B, vol21, pp 42-50, or judgments in court, (1980) 1 EHRR 71 1 at 725-733. 108. It has been criticised on this basis: see Cullen, n 63 above. See also Van Dijk and Van Hoof, n 54 above, p 644. As highlighted above, the Commission took a wider view than the court on the question of discrimination under Article 14.

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right, or it might be an indication that the Court wished to delve as little as possible into the controversial area of language rights in Belgium. Their unwillingness may be based on the fact that Belgium had made very clear political decisions concerning language, and the Court wished to respect these as honest, though possibly flawed, attempts to resolve linguistic conflict and protect minority languages and cultures; it may not follow this in later cases. Under Protocol 12, the prohibition of discrimination becomes an autonomous right. Instead of prohibiting discrimination in relation to the ‘enjoyment of the rights and freedoms set forth in [the] Convention’, Article 1 of Protocol 12 prohibits discrimination in relation to the ‘enjoyment of any right set forth by law’. Accordingly, if certain rights going beyond what are covered in the Convention are provided for in a contracting state in relation to education, Protocol 12 will prohibit discrimination as between different groups in the enjoyment of those rights. This may therefore give the principle of non- discrimination greater scope, going beyond equality being satisfied by mere access to existing education establishments. However, the Protocol will only enter into force three months after ten states have ratified it, and at present only two states have done so.’09 Exactly how the right to non-discrimination will develop when Protocol 12 enters into force remains to be seen.

WALES: EDUCATION AND LANGUAGE RIGHTS

This broad discussion then needs a more particular examination of how it might relate to the specific situation in Wales. Such an examination is of wider interest, since it suggests that the likelihood of future movement away from the exclusion of language rights from fundamental rights may have differing effects on different language minorities, and for certain language groups in Europe where certain conditions exist, it may not be a negative impact. This conclusion arises from considering, in the light of the findings of this paper, the question: is there any protection for either of the languages, English and Welsh, traditionally used in Wales? English is still used by a majority of those living in Wales, and is the official language of the UK. Welsh is used by a growing minority in the Principality, and within Wales it is an official language and is protected in most areas of public life (in law-making in the Assembly, in dealings with officials in Wales, and in the courts) but it has no status in the UK as a whole. As noted above, there are certain schools in which all instruction is through the medium of Welsh (and English is taught as a foreign language, often from age seven, in many schools; French is started at the same time), some where all instruction is through the medium of English (in most of these, Welsh is taught as a foreign language) and, finally, some where instruction takes place through both languages, usually for different subjects.

To understand these minor shifts and how they might be used in the Welsh context, it is necessary to study certain other cases. First, in the 1990s in Catalonia, Catalan, not Castilian (Spanish) was declared to be the primary

109. Protocol 12 was opened for signature on 4 November 2000. As of 22 October 2002, only two states had ratified: Georgia on 15 June 2001 and Cyprus on 30 April 2002, and 27 states had signed. The UK has not signed.


language to be used in publicly funded educational establishments. In 1994 this move was challenged in the Spanish Constitutional Court, where it was decided that the law was constitutional and should be enforced. It was important that the law of linguistic normalisation whist providing for education in Catalan did permit certain exceptions: it provided that children should begin their education in the language they understand and only as they develop a command of Catalan would it become used as the only means of instruction; children partially educated outside Catalonia might be exempted from the language requirement; finally, to obtain a diploma in Catalonia, pupils had to exhibit proficiency in both Catalan and Castilian. Nothing in the law prohibited the use of Castilian in any official dealings with schools, so that the official language of Spain was protected. The Constitutional Court did not consider the situation under international law. The language situation seems to have been accepted.'I0 This should be contrasted with the situation in Slovakia, where the 1995 language laws, designed to protect the majority Slovak language, are actually seen as discriminatory against minority groups, and external languages and have caused severe political conflict within Slovakia, arguably leading to the election of a more conciliatory government which was willing to legislate for the protection of minority languages."'

If one uses these situations along with the Charter for Regional or Minority Languages 1992, an interesting position emerges. The Charter would protect Welsh but not English. If Wales were to give Welsh an educational status similar to that of Catalan in Catalonia, it might well be supported by international law. In this situation, English speaking parents would run into the difficulty that the ECHR gives no fundamental right to choose the language in which children are instructed. Protocol 1, Article 2 requires that it be one of the official languages, but within Wales, Welsh might well meet this English has no protected status within the constitutional law in the UK and therefore there may be no protection. However, were they to declare that English would be the only means of instruction, this situation might be different. Again parents wishing their children to enjoy instruction through the medium of Welsh would have no fundamental right on which they could call. However, Welsh is recognised and therefore protected under the United Kingdom's signature of Charter for Regional or Minority Languages 1992. Welsh has been given legal status by a number of Acts of the Westminster Parliament, and is an official language in Wales.'I3 In this situation, although the Charter is very weak, in its requirements it might be sufficient to prevent the withdrawal of instruction where it has previously been enjoyed, even if it is insufficiently strong to require that provision be either increased or created.'I4 In this scenario instruction through the medium of Welsh might gain more protection than instruction through the medium of English.

110. see Kasha, n 5 above. 111. See Thomas, n 5 above, at 135-141. 112. Particularly if the Parliamentary Assembly adopts the territoriality principle suggested in the 2002 Provisional Report of the Committee on Legal Affairs and Human Rights Protection of Minorities in Belgium, 18 March 2002, esp paras 13-27. 113. See, for example, Welsh Language Act 1993, c 38; Government of Wales Act 1998, c 38, ss 47 and 120. 114. The only exception to this might arise if there were no longer a sufficient demand for instruction through that language.

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There is one way in which English might claim a similar position, though this is rather a tenuous position: Article 8, like Article 2 of Protocol 1 of the ECHR, is couched in negative terms, namely the non-interference of the state with private and family life. As indicated above in the consideration of the Belgian Linguistic case, an argument based on Article 8 would be likely to fail, but here a very different point is being made - that the interpretation of the negative right in Article 2 or Protocol 1 might today be given a limited positive interpretation. The Court has found that the Article 8 right can carry positive obligations. As regards family life, once a family relationship is established, the state may have to ensure respect for them through actions such as legislation. In Murckr'ls the Court found that where a state determines a regime applicable to certain family ties, it must act in a manner calculated to allow those concerned to lead a normal family life. In Airey'I6 the applicant was claiming violation of Article 8, as the Irish government had refused to grant legal aid for a judicial separation from an abusive husband. The Court decided that state was obliged to make judicial separation effectively accessible to the applicant in order to ensure that the right to private or family life would be effe~tive."~ An analogy may be drawn here with the right of education under Article 2 of the first Protocol and that in Article 8. Although both are negative rights, once the right is recognised, some positive action may have to be taken to make the right effective or there is at least an obligation not to remove what has become an expectation. However, there is a difference in the development of the case law.

In part this arises from our examination of the Court's position: in part from the provisions of the Government of Wales Act 1998. Under Article 2 of Protocol 1 of the ECHR, the Court has found that there is no obligation to establish or subsidise educational institutions, but only to make existing institutions effective. It could be argued that the Court has gone further under Article 8 by saying that the state may be forced to make new regulations or remove state impediments1I8 to carry out its obligations under the Convention. The Court has seemed reluctant to interfere in the educational systems of the member states by imposing on them the positive obligations such as those possible under Article 8. However, it might be willing to prevent interference with an existing situation, so it might prevent the removal of instruction through either language to protect an expectation that there will be a choice where that expectation has been encouraged and financed at a state level. Such action may be more likely at a national court rather than an international court, which, acting as a supervisory body, is reluctant to interfere with a state's discretion.

As already indicated, it seems unlikely that the Court would grant an absolute right to enjoy education in ones chosen language (or one's mother tongue) or provide for a positive obligation. However, domestic courts may well now have to deal with this situation and, whilst they are very unlikely to recognise any language rights in education, they might refuse to allow complete or effective withdrawal of education through a particular language

115. March v Belgium (1979) 2 EHRR 330. 116. Airey v Ireland (1979) 2 EHRR 305. 117. See also Xand Y v the Netherlands series A, p 91, 1985. 118. March v Belgium (1979) 2 EHRR 330.


where a state has encouraged or permitted an expectation about the provision of education in a particular language and where there is still sufficient demand for its provi~ion."~ So, within the UK, the court would not recognise a right to be taught through the medium of Scottish Gaelic, Irish or even Welsh. However, in relation to Welsh in Wales there has been political and financial support for dual provision (Welsh and English) in most areas of Wales and a requirement to study both Welsh and English languages up to Key Stage 4. In this situation, the court might be wary of permitting interference with this situation. It might be very difficult to withdraw either language from the curriculum. Furthermore although the European Court of Human Rights allows a margin of appreciation in this question, where the state has given an expectation and there would not be greater funds than presently being used there might also be a problem with the withdrawal of either language, certainly the withdrawal of Welsh.

In the particular situation of Wales, the Government of Wales Act 1998 adds a further dimension. Section 1 2OiZ0 requires the National Assembly to guarantee equality in all its dealings. This is the broadest guarantee of equality in the UK, as there are no groups or types of equality that are listed as being protected or excluded - it might encompass gender, race, religion, poverty, language, age and so on. Clearly, it only pertains within the limited powers of the Assembly, but in the area of education they presently enjoy wide powers, both in the making of subordinate legislation and as the controlling body for educational establishments within Wales. Within this context, language might well be viewed as an area in need of protection as to equal status. One could see this being used by parents who want to choose the language of instruction for their children to be able to choose at least Welsh or English. Furthermore, as equality is not qualified within the Government of Wales Act 1998, it might be open to the Assembly to take certain measures to guarantee equality, in this case positive action to bring Welsh up to equal usage and status with English within the Principality and, within this, as long as there was protection for English to be learnt to a high level of proficiency, one might countenance measures such as those used in Catalonia to protect Catalan. However, as within Catalonia, they might have to invest heavily in promoting and supporting present English speakers in the learning of Welsh by permitting them year-long sabbaticals.

Such a picture is not meant to portray a situation that is currently likely to emerge but rather to portray the possible implication of the present legal positions, international and national. In the UK, particularly in Wales, as in many European states, the pressures arising out of indigenous language rights are increasing, and states may soon choose to resolve the issue. The hope is that in so doing they will choose to grant them the status of fundamental rights within their jurisdiction.

119. When applying the ECHR in domestic courts it is arguable that they cannot apply the margin of appreciation doctrine and so state authorities will not have amount of discretion given to them by the Strasbourg organs: see R Singh 'Is There a Role for the Margin of Appreciation in National Law After the Human Rights Act' (1999) 1 EHRLR 15. 120. Government of Wales Act 1998, c 38, s 120(1): 'The Assembly shall make appropriate arrangements with a view to securing that its functions are exercised with due regard to the principle that there should be equality of opportunity for all people.'

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CONCLUSION

It is true that a lengthy period has elapsed since the Belgian Linguistic case was decided. There have been significant developments within and outside the Council of Europe in relation to minority rights and children's rights. Nonetheless, it remains the case that language issues are still highly sensitive in many bilingual or multilingual states.'?' They are also of great political sensitivity: not surprisingly, the response to territorial or maternal language as the ruling principle is one on which there is no complete consensus within the Council of Europe.'22 Given the lack of consensus, the position is that the European Court of Human Rights has accepted the territorial principle as a reasonable basis on which a state may seek to regulate and protect its different languages. Case law since the Belgian Linguisric case has shown that it has not changed its view that the territorial principle is not in itself offensive to the ECHR.IZ3 While in some areas the Court has gradually cut down the margin of appreciation available to states, the fact that the number of states within the Council of Europe with linguistic minorities has increased makes it less likely that the Court will further curtail states' room for manoeuvre in this highly sensitive area. This conclusion seems stronger when the European Charter of Regional or Minority Languages intentionally avoided bestowing on language rights the status of a fundamental right. Furthermore, by distinguishing between traditional or indigenous language groups and migrant groups it severely questioned the possibility of language rights being considered as fundamental rights.'24

The discussion of language and education within Wales might, however, suggest a different practical approach. On the one hand, as we have seen, language is unlikely in the foreseeable future to be recognised as a fundamental right within the ECHR. On the other hand, the pressures to provide for minority languages seem to be increasing. It may thus be time for the states to face language rights and the position of minority languages within their territories head on in order to resolve the issues, rather than hiding behind the lack of a fundamental right. The Convention was only ever intended to set out the base of fundamental rights below which no state should be permitted to fall, not an outline of the perfect position in relation to rights; states can, and possibly should, rise above the ECHR position and grant linguistic rights in education.

121. See, for example, the debates on the Columberg Report concerning the Belgian Lingistic legislation adopted by the Committee of Legal Affairs and Human Rights, Council of Europe, September 1998 (draft resolution). For analysis of the Report, see Alen and Peeters, n 68 above, at 165-166. 122. Different approaches are taken within states to language issues: see V Van Dyke 'Equality and Discrimination in Education' (1973) 17 I Studies Q 4 at 375. 123. Muthieu-Mohin and Clerjiuyt v Belgium Judgment of 2 March 1987; (1988) 10 EHRR 1 at 18. See also Clerjiuyr undors v Belgium Application No 27120/95,8 September 1997 (held inadmissible). In these cases issue was that of voting rights under Article 3 of Protocol 1 . In Clerjiuyt and Legros v Belgium Application No 10650l83, the Commission had held that the ECHR did not guarantee public representatives the right to use the language of their choice in public bodies. 124. Dunbar, n 5 above, at 49-50.

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Language, education and the European Convention on Human Rights in the twenty-first century