Language Rights And The Law In The European Union 3030330117, 9783030330118, 9783030330125

Table of contents :
Preface......Page 6
Acknowledgements......Page 9
Contents......Page 11
1 Introduction......Page 12
References......Page 16
Part I European Union Language Legislation......Page 18
2 Language Rights in the 2004 Draft of the European Union Constitution......Page 19
Language Conflict in the EU......Page 23
Official Languages......Page 25
Provisions for Official Languages......Page 26
Linguistic Rights of All Citizens......Page 28
Revising the EU Constitution Regarding the Linguistic Rights of Regional Minority Languages......Page 30
Conclusion......Page 31
References......Page 32
3 Language Rights in the Treaty of Lisbon......Page 34
Official Languages in the EU......Page 36
Legislation Concerning Minority Languages in the EU......Page 39
Official Languages......Page 44
Linguistic Rights of All Citizens......Page 47
Language Rights of Linguistic Minorities......Page 48
Revising the Treaty of Lisbon Regarding the Linguistic Rights of Minority Languages......Page 53
Conclusion......Page 55
References......Page 56
Part II Language Legislation in European Union Member States......Page 62
4 Language Rights and the Law in Catalonia......Page 63
Language Rights in the Spanish Constitution and the Statute of Catalonia of 1979......Page 66
Language Rights in the Statute of Catalonia of 2006......Page 67
Ruling of the Constitutional Court of Spain and Catalonia’s Bid for Secession......Page 70
Catalonia’s Secession in Constitutional and International Law......Page 74
Improving Language Rights in Catalonia......Page 77
Conclusion......Page 80
References......Page 81
5 Language Rights and the Law in Denmark......Page 86
Legislation Concerning Immigration to Denmark......Page 93
Language Legislation Concerning Naturalization in Denmark......Page 98
Language Legislation Concerning Danish Preschools......Page 100
Language Legislation Concerning Danish Schools......Page 103
Language Legislation Concerning Danish Higher Education......Page 105
Conclusion......Page 109
References......Page 110
6 Summary, Conclusion, and Directions for Future Research......Page 116
References......Page 127
References......Page 129
Index......Page 146

Citation preview

Language Rights and the Law in the European Union

Eduardo D. Faingold

Language Rights and the Law in the European Union

Eduardo D. Faingold

Language Rights and the Law in the European Union

Eduardo D. Faingold School of Language and Literature The University of Tulsa Tulsa, OK, USA

ISBN 978-3-030-33011-8 ISBN 978-3-030-33012-5  (eBook) https://doi.org/10.1007/978-3-030-33012-5 © The Editor(s) (if applicable) and The Author(s) 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: © Melisa Hasan This Palgrave Pivot imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

In memory of my father, ENRIQUE FAINGOLD (1925–2012)

Preface

Language issues have been of importance to the national identity of the countries in the European Union for a long time. Countries such as Spain and Denmark have recognizable interests and ways of dealing with language questions. In this book, I examine the language policies that result from the promulgation of linguistic rights in European Union Law (the 2004 Draft Constitution and the Treaty of Lisbon) and the constitutions and legal statutes of selected countries in the European Union (Spain and Denmark). This work began as a side project that entailed a critical contemplation of the language rights of individuals and groups in the constitutions of the world (Faingold, 2004) and the 2004 draft of the European Union constitution (Faingold, 2007) more than a decade ago. Throughout my academic career, my professional fields of research and interest have included bilingualism, psycholinguistics, sociolinguistics, historical linguistics, and the biographical study of immigrants and exiles. Where the topic of language rights in the European Union was concerned, I had to rely on my own observations of the European political scene and on reading newspapers, magazines, and the works of scholars and activists. I felt that I was standing on shaky ground. Mostly because of oftenheard claims about the law that seemed to me to be erroneous and misleading, for example, that UN resolutions and the UN Universal Declaration of Human Rights, or, more to the point, the European Charter for Regional or Minority Languages, all have force of law and confer rights to individuals or groups and are more than aspirational, vii

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as opposed to, say, the European Convention on Human Rights. That is why, to satisfy my curiosity, in the mid-2000s, I decided to embark on the study of Language Rights and the Law in the European Union. The project would eventually include analyzing the 2004 draft EU Constitution, which failed the ratification process (Faingold, 2007; Chapter 2 of this book), the Treaty of Lisbon, produced in the aftermath of the failed ratification of the 2004 draft EU Constitution (Faingold, 2015; Chapter 3 of this book), and the study of the constitutions and statutes of selected EU countries, where indigenous or immigrant minority language-speakers live in large numbers (Spain and Denmark) (Faingold, 2016; Chapters 4 and 5 of this book). Earlier versions of some of the chapters in this book appeared in the journal Language Problems and Language Planning (Chapters 2–4), published by John Benjamins. Permission to use these articles in this book are properly acknowledged in the acknowledgements section. I have extensively revised and updated previously published research and provided new information to account for major political changes in the European Union, for example, the suspension of Catalonia’s political autonomy by the Spanish government in the aftermath of the declaration of independence by the Parliament of Catalonia in 2017; the rise of Euroscepticism in the European Union; and, last but not least, Brexit. This work also accounts for changes in my thinking. For example, the rejection of views of language rights for linguistic minorities which had been widely and unexaminedly accepted that the language rights of indigenous minorities necessarily supersede the language rights of immigrant minorities. Some arguments were made more clear or concise, while others were expanded. A number of errors were corrected, mostly minor mistakes. Three completely new chapters were written especially for this book (Chapters 1, 5, and 6). Revisions to Chapter 2 have benefited from comments by audiences at the Researching Language and the Law Conference, Bergamo, Italy, June 2009. Revisions to Chapter 3 have benefited from comments by audiences at the 1st Worldwide Congress for Language Rights, Teramo, Italy, May 2015, the Multidisciplinary Approaches in Language Policy and Planning Conference, Calgary, Canada, September 2015, and the 3rd ISA Forum of Sociology, RC25, Language Representation: Struggles in the Global Age, Vienna, Austria, July 2016.

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Revisions to Chapter 4 have benefited from comments by audiences at the Communication in the “Country of Babel”: Language Ideological Debates on Contact Varieties Conference, Bern, Switzerland, November 2015, the Multidisciplinary Approaches in Language Policy and Planning Conference, Calgary, Canada, September 2016, and the Language Policy Forum, Sheffield Hallam University, Sheffield, UK, May 2018. Revisions to Chapter 5 have benefited from comments by audiences at the symposium of the Study Group on Language and the United Nations, The United Nations at 75: Listening, Talking, and Taking Action in a Multilingual World, New York, May, 2019, and the Multilingual Childhoods: Education, Policy, and Practice Conference, Hamar, Norway, May 2019. Tulsa, USA

Eduardo D. Faingold

References Faingold, E. D. (2004). Language rights and language justice in the constitutions of the world. Language Problems and Language Planning, 28, 11–24. https://doi.org/10.1075/lplp.28.1.03fai. Faingold, E. D. (2007). Language rights in the 2004 draft of the European Union Constitution. Language Problems and Language Planning, 31, 25–36. https://doi.org/10.1075/lplp.31.1.03fai. Faingold, E. D. (2015). Language rights in the European Union and the Treaty of Lisbon. Language Problems and Language Planning, 39, 33–49. https:// doi.org/10.1075/lplp.39.1.02fai. Faingold, E. D. (2016). Language rights in Catalonia and the constitutional right to secede from Spain. Language Problems and Language Planning, 40, 146–162. https://doi.org/10.1075/lplp.40.2.02fai

Acknowledgements

I am grateful to Prof. Lani Guinier, Harvard Law School, for her advice to approach the laws of the United States and all other countries critically when dealing with issues concerning minorities, and to Bishop Samuel Ruiz, formerly of Chiapas, Mexico, for challenging me to use my knowledge of linguistics for the benefit of minorities, during my tenure as a fellow of the Salzburg Seminar, Schloss Leopoldskron, Salzburg, Austria, 1999, Session 372, Race and Ethnicity: Social Change through Public Awareness. I am grateful also to Prof. Dr. Armin von Bogdandy, Director of the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany, for an invitation to do research at his institute in 2014, where the idea for this book was conceived. Chapter 2 originally appeared in Language Problems and Language Planning, volume 31: 1 (2004), pp. 25–36. ©  John Benjamins Publishing Company. Reprinted with permission. Chapter 3 originally appeared in Language Problems and Language Planning, volume 39: 1 (2015), pp. 33–49. ©  John Benjamins Publishing Company. Reprinted with permission. Chapter 4 originally appeared in Language Problems and Language Planning, volume 40: 2 (2016), pp. 146–162. © John Benjamins Publishing Company. Reprinted with permission.

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ACKNOWLEDGEMENTS

I am indebted to the Office of the Dean of Arts and Sciences at the University of Tulsa and the W. K. Kellogg Foundation for grants to travel to Salzburg, Austria to attend Session 372 of the Salzburg Seminar in the fall of 1999, where my interest in language rights was piqued for the first time. This research was supported in part by 10 University of Tulsa Faculty Research Grants in 2003, 2010, 2013 (twice), 2014–2019.

Contents

1 Introduction 1 Part I  European Union Language Legislation 2 Language Rights in the 2004 Draft of the European Union Constitution 9 3 Language Rights in the Treaty of Lisbon 25 Part II Language Legislation in European Union Member States 4 Language Rights and the Law in Catalonia 55 5 Language Rights and the Law in Denmark 79 6 Summary, Conclusion, and Directions for Future Research

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References 123 Index 141 xiii

CHAPTER 1

Introduction

Abstract This chapter presents the issues, themes, and goals of the book, and provides an outline of the chapters in the book. Keywords European Union · Language rights · Language policy · Language minorities

In many regions of the world languages coexist uneasily. Whether real or apparent, a dominant-subservient relationship exists between speakers of many majority and minority languages. The drafting of explicit language legislation, especially in a constitution, highlights the existence of conflicts among languages coexisting within the same nation. Ideally the purpose of language legislation should be to solve such conflicts by legally defining the status and use of coexisting languages (Faingold, 2004; Tully, 1995; Turi, 1994). One or more languages can be targeted for promotion and development through the drafting of explicit language legislation that specifies both language rights for individuals and groups and legally enshrining language obligations by the nation. In practice, however, language legislation is sometimes used to enshrine the dominant rights of one language group over another, rather than to solve conflicts among speakers (Faingold, 2004, 2007, 2015). One example of explicit language legislation is Title 7, Sections 16–22, of the Canadian Constitution, which specifies the right to public instruction of speakers of the two official languages of © The Author(s) 2020 E. D. Faingold, Language Rights and the Law in the European Union, https://doi.org/10.1007/978-3-030-33012-5_1

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Canada, English, and French (Burnaby, 1996; Mackey, 2010; MacMillan, 1998). Another example is the post-apartheid constitution of the Republic of South Africa, which came into effect in May 1994, in which eleven languages are listed as having official status nationally. Many other languages, in addition to the official languages, are promoted for development and use (Alexander, 2004; du Plessis, 2000; Reagan, 2004). In contrast, such diverse nations as the United States, Uruguay, Japan, and the Netherlands have no explicit language legislation nor do they promote any official languages in their national constitutions (Faingold, 2004). This, of course, does not mean that these nations have no implicit language policies that promote the languages of the majority (e.g., English in the United States; see Phillipson & Skutnabb-Kangas, 1996; Ricento, 1996; Shohamy, 2006). This work analyzes the language policies that result from the promulgation of linguistic rights in European Union Law (the 2004 EU draft constitution and the Treaty of Lisbon) and in the constitutions and legal statutes of selected countries in the European Union, such as Spain and Denmark. In the EU there exist regions in which speakers of minority languages were conquered or incorporated and the languages spoken by them were suppressed or neglected. In recent years, the EU has seen a resurgence of claims for language recognition by minority groups representing considerable populations (e.g., Basque, Catalan, and Galician in Spain). For these reasons, it is interesting to study the linguistic laws promulgated in the European Union, at the supranational level in European Union law as well as at the national level in the constitutions and statutes of selected EU countries, or the lack thereof, as a response to the demands for linguistic rights by indigenous and immigrant sectors of the population who do not speak the majority language as a first language or who may seek to maintain the use of one or more minority languages. The point of this study is to look beyond one single case and to learn of other ways of managing issues. Spain, an EU country with important linguistic regional minorities (e.g., Basque, Catalan, and Galician), but with no significant non-Spanish-speaking immigrant minorities living within its territory, provides a unique opportunity for the study of language rights and language policy for regional minorities (e.g., Catalan) in a European and broader international contexts. On the other hand, Denmark, one of the few EU countries with no significant regional minorities (with the exception of the German-speaking minority in South Jutland), but with significant immigrant minorities living there, provides a unique opportunity for a case study of migration and language policy in a European context.

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In presenting these case studies together, I aim to facilitate not only the understanding and improvement of implicit and explicit language policies, such as the legislation and planning of bilingual acquisition and education and linguistic corpora (e.g., dictionaries, grammars, school curricula, standards for broadcasting, the language of journals and newspapers, bills, laws, etc.) but also access to comparable information for the development of new theoretical perspectives about the operation of languages in legal, social, and political contexts. The book offers insights not only for the benefit of those in charge of drafting legislation but also for students, scholars, and the general public in the area of language policy and language rights. It shows how the European Union and its associated countries could recognize and accommodate linguistic diversity. Thus, this book focuses on the degree of protections afforded to both indigenous and immigrant linguistic groups in the European Union. Second, political, historical, economic, and social developments relevant to the focus of this work are analyzed and discussed for each case. Finally, I aim to offer insights to those in charge of drafting legislation in the area of language rights and to discover whether European Union legislation and the constitutions and statutes of selected European countries can recognize and accommodate linguistic diversity. This chapter presents the issues, themes, and goals of the book, and provides an outline of the chapters in the book. Chapter 2 analyzes the 2004 draft of the European Union Constitution which contains legal language defining the linguistic obligations of the EU and the language rights of its citizens. It shows that the 2004 draft fails to achieve language justice for European Union citizens who speak regional minority languages. These minority languages include Catalan, Basque, and Galician in Spain, Welsh in the UK, and others. This chapter argues that future drafts of the European Union Constitution should emulate the constitutions of countries that have a similar geopolitical make up situation to the one currently found in the European Union (i.e., countries that recognize the rights of minorities having or seeking autonomy within their territory) and draft specific provisions to protect the linguistic rights of such minorities; or draft linguistic protections similar to those enacted by countries that recognize the linguistic rights of individuals and groups as fundamental (e.g., South Africa). Future drafts of the European Union Constitution could pay heed to earlier pronouncements and bodies created by the European Union to support minority languages, such as the

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European Bureau for Lesser-Used Languages and the European Charter for Regional and Minority languages. Chapter 3 studies the Treaty of Lisbon for language defining the linguistic obligations of the European Union and the language rights of its citizens. The Treaty fails to address the rights of minority language speakers in the European Union, including, most perilously, the rights of minorities who are seeking to secede from their own countries (e.g., Catalonia and Scotland) and minorities who have used violence in their quest for political rights (e.g., the Basque Country and Corsica). It calls for a more pluralistic approach to language legislation and for de jure language rights for speakers of minority languages in the European Union, especially for speakers of official minority languages, such as Catalan, Basque, and Galician in Spain, Scottish Gaelic and Welsh in the UK, and others. Here as well, future revisions of the Treaty of Lisbon may need to pay heed to earlier pronouncements and bodies created by the European Union to support minority languages, such as the European Bureau for Lesser-Used Languages and the European Charter for Regional and Minority languages. The reason to single out minority languages that enjoy some degree of official recognition in their own countries is that conflict between these languages and the majority language may exacerbate existing claims of self-determination or secession from a country in the European Union. Chapter 4 examines the language rights of linguistic minorities (e.g., Catalan, Galician, and Basque) in Spain vis-à-vis the Spanish-speaking majority with special focus on Catalan-speakers in Catalonia. Legal discourses as stated in the Catalonia Statutes of Autonomy of 1979 and 2006 and the Spanish Constitution of 1978 are exhaustively studied. The chapter also analyzes the ruling of the Constitutional Court of Spain of 2010 which annulled or reinterpreted articles of the Statute of Catalonia of 2006, including Article 6.1, which declares Catalan as the “preferential” language of Catalonia. The chapter offers suggestions for improving language rights for speakers of Catalan, both within the Spanish state and the European Union, to help de-escalate language conflict between Catalonia and the Spanish state. For example, the two sides may seek to amend Catalonia’s Statutes of Autonomy, as per Article 148 of the Spanish Constitution, which provides the legal mechanisms for expanding language rights for Speakers of Catalan in Catalonia (e.g., allowing communications with Spain’s national state institutions in Catalan; supporting the dissemination of Catalan language and culture in Spanish regions that share a Catalan

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cultural and linguistic heritage in Valencia and the Balearic Islands; seeking expanded language rights within the European Union). Chapter 5 studies the ways in which Denmark addresses the issue of language rights of immigrant minorities. The chapter examines Denmark’s language legislation, especially laws with provisions that protect the language rights of the Danish-speaking majority and hinder the language rights of immigrants. Growing negative feelings toward immigration in Denmark has become associated with the growing number of Muslim immigrants and their descendants, leading to the passing of a wide array of laws with provisions that have increasingly hampered the language rights of nonWestern immigrants in the areas of naturalization and education, including laws that promote Danish mainstream culture and language in the educational system from kindergarten to high school, and disregard the languages and cultures of immigrant children. These laws greatly restrict or outrightly ban mother tongue education for immigrant children from non-Western countries but offer it to children from EU member states, the EEA area, and the Faroe Islands and Greenland. Other laws make excessive demands in Danish proficiency for non-Western (mostly Muslim) immigrants seeking to obtain residence or naturalization but establish no such language requirements for Western immigrants working at universities. Chapter 6 summarizes the findings of the book and offers directions for future research for the study of language rights in the European Union, for example, the need to closely scrutinize the view that the language rights of indigenous minorities necessarily supersede the language rights of immigrants in the EU and elsewhere (e.g., Kymilcka, 1995; May, 2008); the study of language rights and the law affecting immigrants in other Scandinavian countries, especially countries which are EU member states (e.g., Sweden) or associated states (e.g., Norway); and, last but not least, the possible effects of the UK exiting the EU (Brexit) on the revitalization of regional minority languages spoken in the UK (the Celtic languages) and on the status of English as an official or working language of the EU are outlined.

References Alexander, N. (2004). The politics of language planning in post-apartheid South Africa. Language Problems and Language Planning, 28, 113–130. https://doi. org/10.1075/lplp.28.2.02ale. Burnaby, B. (1996). Language policies in Canada. In M. Herriman & B. Burnaby (Eds.), Language policies in English-dominant countries (pp. 159–219). Clevedon, UK: Multilingual Matters.

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du Plessis, T. (2000). South Africa: From two to eleven official languages. In K. Deprez & T. du Plessis (Eds.), Multilingualism and government (pp. 95–110). Pretoria, South Africa: Van Schaik. Faingold, E. D. (2004). Language rights and language justice in the constitutions of the world. Language Problems and Language Planning, 28, 11–24. https:// doi.org/10.1075/lplp.28.1.03fai. Faingold, E. D. (2007). Language rights in the 2004 draft of the European Union constitution. Language Problems and Language Planning, 31, 25–36. https:// doi.org/10.1075/lplp.31.1.03fai. Faingold, E. D. (2015). Language rights in the European Union and the Treaty of Lisbon. Language Problems and Language Planning, 39, 33–49. https://doi. org/10.1075/lplp.39.1.02fai. Kymilcka, W. (Ed.). (1995). The rights of minority cultures. Oxford, UK: Oxford University Press. Mackey, W. E. (2010). History and origins of language policies in Canada. In M. A. Morris (Ed.), Canadian language policies in comparative perspective (pp. 18–66). Montreal, Canada: McGill-Queen’s University Press. MacMillan, M. (1998). The practice of language rights in Canada. Toronto, ON, Canada: University of Toronto Press. May, S. (2008). Language and minority rights: Ethnicity, nationalism, and the politics of language. New York: Routledge. Phillipson, R., & Skutnabb-Kangas, T. (1996). English-only worldwide or language ecology. TESOL Quarterly, 30, 429–452. https://doi.org/10.2307/3587692. Reagan, T. (2004). Multilingualism in South Africa: “Dit is nou ons erns”. Language Problems and Language Planning, 28, 107–111. https://doi.org/10. 1075/lplp.28.2.01rea. Ricento, T. (1996). Language policy in the United States. In M. Herriman & B. Burnaby (Eds.), Language policies in English-dominant countries (pp. 122–158). Clevedon, UK: Multilingual Matters. Shohamy, E. G. (2006). Language policy: Hidden agendas and new approaches. New York, NY: Routledge. Tully, J. (1995). Strange multiplicity: Constitutionalism in an age of diversity. Cambridge, UK: Cambridge University Press. Turi, G. (1994). Typology of language legislation. In T. Skutnabb-Kangas & R. Phillipson (Eds.), Linguistic human rights: Overcoming linguistic discrimination (pp. 111–119). Berlin, Germany: Mouton de Gruyter.

PART I

European Union Language Legislation

CHAPTER 2

Language Rights in the 2004 Draft of the European Union Constitution

Abstract This chapter analyzes the 2004 draft of the European Union Constitution which contains legal language defining the linguistic obligations of the EU and the language rights of its citizens. It shows that the 2004 draft fails to achieve language justice for European Union citizens who speak regional minority languages. These minority languages include Catalan, Basque, and Galician in Spain, Welsh in the UK, and others. The chapter argues that future drafts of the European Union Constitution should emulate the constitutions of countries that have a similar geopolitical make up situation to the one currently found in the European Union (i.e., countries that recognize the rights of minorities having or seeking autonomy within their territory) and draft specific provisions to protect the linguistic rights of such minorities; or draft linguistic protections similar to those enacted by countries that recognize the linguistic rights of individuals and groups as fundamental (e.g., South Africa). Future drafts of the European Union Constitution could pay heed to earlier pronouncements and bodies created by the European Union to support minority languages, such as the European Bureau for Lesser-Used Languages (EBLUL) and the European Charter for Regional and Minority languages. Keywords European Union · Constitution · Language rights · Language policy · Language minorities

© The Author(s) 2020 E. D. Faingold, Language Rights and the Law in the European Union, https://doi.org/10.1007/978-3-030-33012-5_2

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At the time of negotiations of the Treaty establishing the European Community (TEC) (Treaty of Nice) in 2000, it was recognized that the Nice Treaty would not be of help to prepare the EU for enlargement (Cogwill & Cogwill, 2004). In October 2000, about two months before their close, (the Nice Treaty negotiations) were punctuated by a spectacular bad tempered row between big and small member states at a special European Council meeting in Biarritz. The final conference of EU leaders in Nice was a gladiatorial cliffhanger of unusual bitterness that lasted four days and ended just before dawn on a December Monday morning…Nice finally achieved messy compromises on the issue of the intergovernmental conference: the Commission’s size, reweighting votes in the Council of Ministers, the allocation of seats in the European Parliament, the rules of enhanced cooperation and a limited extension of qualified majority voting in the Council to some 30 Treaty articles where previously unanimity applied. (Norman, 2003, p. 15)

As a result, a decision was made to attach a declaration to the Nice Treaty in 2001 to establish a Convention on the Future of the European Union, the Laeken Declaration, with the aim of enacting a constitution for Europe at some point in the future (Norman, 2003). The Laeken Declaration identified a number of agenda items for future discussion by the heads of government of the European Union: – how to establish and monitor a more precise delimitation of powers between the European Union and the Member States, reflecting the principle of subsidiarity; – the status of the Charter of Fundamental Rights of the European Union, proclaimed in Nice, in accordance with the conclusions of the European Council in Cologne; – a simplification of the Treaties with a view to making them clearer and better understood without changing their meaning; – the role of national parliaments in the European architecture (Cogwill & Cogwill, 2004, p. v). To this end, in the aftermath of the Laeken Declaration, the Convention to draft a Treaty Establishing a Constitution for Europe was established in March 2002.

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At the time of the negotiations leading to the draft of the European Union constitution (Draft Constitution), there were three major treaties functioning as the key legislation of the European Union: the Treaty on European Union (TEU) (Maastricht Treaty, effective since 1992), theTEC (Nice Treaty, effective since 2003), and the Treaty establishing the European Atomic Energy Community (EURATOM Treaty, effective since 1958). In addition to the main treaties, at the time of the Convention, there were a number of acts and treaties supplementing and amending the three key treaties, including, most importantly, the four accession treaties leading to the enlargement of the EU, in 1973 (Denmark, Ireland, UK), 1981 (Greece), 1986 (Portugal, Spain), and 1995 (Austria, Finland, Sweden). After eighteen months of negotiations, the text of the Draft Constitution was presented to the European Council on July 18, 2003 (Norman, 2003). It was subsequently reviewed by the European Union’s Legal experts and later on by the Intergovernmental Conference under the Italian Presidency. However, negotiations stalled in December of 2003, due to a number of irreconcilable issues in the text, mainly a dispute over the distribution of the number of weighted votes in the Council, between France and Germany, on the one hand, and Spain and Poland, on the other (Cogwill & Cogwill, 2004). In 2004, following renewed negotiation that succeeded in reconciling differences between the Member States, the Treaty Establishing a Constitution for Europe was agreed on June 18, 2004, in Brussels, and formally signed on October 29, 2004, in Rome (Norman, 2003). Interestingly, as one author notes, the signing of the Treaty in Rome in 2004 “reflected a certain symmetry, in that the Constitution represents the start of a new European Union, and Rome had been the place where the first Treaty of Rome had been signed in 1957, to establish the European Economic Community” (Cogwill & Cogwill, 2004, p. vi). The main goal of the 2004 Draft Constitution was to get European institutions ready for further enlargement and to organize existing European legislation into a single document, embracing the two principal treaties (TEU and TEC), and the (now) five Treaties of Accession, which included the 2004 enlargement (Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia) (Cogwill & Cogwill, 2004). Thus, under the Draft Constitution:

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– all the existing Treaties are repealed and replaced by the Constitution; – the Constitution forms the basis of a new European Union and replaces the existing European Union; – gives legal personality to the Union; – states that the Constitution and European law has primacy over Member States; – gives the Charter of Fundamental Rights legal status; – draws together into two Protocols all of the Treaties of Accession, including the recent accession of the ten new Member States; – includes the explanations to the Charter of Fundamental Rights as a Declaration; – introduces a Union Minister for Foreign Affairs; – introduces an appointed President of the European Council, who will be in post for two-and-a-half years; – defines the areas of exclusive competence of the Union and the areas of shared competence with the Member States; – redefines the co-decision process as the ‘ordinary legislative procedure’ and terms other methods of voting in the Council as ‘special legislative procedures’. – extends qualified majority voting under the ordinary legislative procedure (co-decision) to forty-four areas, of which nineteen are new areas. Sixteen areas are extended to qualified majority voting in the Council through the special legislative procedures, with five new areas (Cogwill & Cogwill, 2004, p. x). The Draft Constitution created also the Symbols of the Union, including the flag, the anthem (based on Ode to Joy, form the final movement of Beethoven 9th Symphony), the motto (varietate concordia, “united in diversity”), and the public holiday (May 9, the date in 1950 in which plans to pool German and French coal and steel production were first discussed). It established the Euro as the currency of the Union, even though only about half of the Member States have adopted it as their currency. Prominently, the Draft Constitution established also the rules for voluntary withdrawal from the Union: Any Member State may decide to withdraw from the Union and the process of withdrawal would be expected to take up to two years…The new provisions appear to make the process of withdrawal from the Union a difficult process and would involve a complicated combination of national law, European

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law, and international law, together with a lengthy negotiation period. The process of withdrawal would itself need a Treaty to define the terms of both the separation and the new relationship…There are no provisions laid down on how the negotiations for withdrawal would take place and over what timeperiod, or what the nature of the relationship would be after withdrawal. In addition there are no provisions for withdrawal from the Single Currency. (Cogwill & Cogwill, 2004, p. xxi)

The Draft Constitution established by the Treaty was submitted to each of the member states for ratification, with the expectation that, if ratified, it would enter into force on November 1, 2006, or, failing that, the first day of the second month after the last Member State has ratified the Treaty. Spain approved the text by 76.7% in favor of a referendum in February of 2005. Greece, Italy, Hungary, Lithuania, Slovakia, and Slovenia ratified it by parliamentary votes, while in Austria, Belgium, and Germany it passed one chamber of parliament at the time French and Dutch voters went to the polls to accept or reject it (Norman, 2005). Nevertheless, to the disappointment of those countries which had approved it, in a first of what would have been a series of referenda in several of the member states, the Draft Constitution was rejected by French voters on May 29, 2005, and by Dutch voters on June 1, 2005 (BBC News, May 30, 2005). Thus, the French and Dutch electorates gave their verdict on the goal to establish a constitution for Europe, dooming the treaty’s chances of passage. This chapter analyzes the 2004 Draft Constitution for language that defines the linguistic obligations of the EU and the language rights of its citizens, arguing that the Draft Constitution fails to achieve language justice for EU citizens who speak regional minority languages (Shuibhne, 2004) and that the EU should select a type of constitution that is appropriate to its particular geopolitical situation. A more pluralistic approach to language legislation seems called for—one that recognizes explicitly the entitlement of minority groups of citizens within the EU member states for minority language rights. These minority groups include the Catalans, the Basques, and the Galicians in Spain, the Welsh in the UK, and several others. In future drafts of the EU Constitution, language legislation explicitly addressing European regional minority languages, especially languages that have official status in the constitutions of their own countries, but not in the Draft Constitution, such as Catalan, Basque, and Galician, which have official status as regional languages in Spain, is more likely to help solve conflicts by defining legally the status and use of such languages.

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Language Conflict in the EU Conflicts within language minorities may result from the marked disparities between the large number of speakers of “major” minority languages, such as Catalan, Galician, and Basque, with over seven, three, and one million speakers, respectively, and the small number of speakers of “minor” minority languages, such as Breton, Frisian, and Friulian, with less than half a million speakers each, let alone Corsican and Sorb, with only a few thousands of speakers each. Clearly, Catalan, Galician, and Basque have so many speakers that their status as minority languages may be inadequate (Ammon, 2003; Phillipson, 2003). In addition, conflicts between certain minority and majority official languages may result from the disparities between the small number of speakers of “minor” official languages, such as Estonian, Irish, Latvian, and Maltese, and that of speakers of “major” non-official languages (e.g., Catalan, Basque, Welsh): EU institutional support for multilingualism applies only to those languages that happen to be official. Estonian and Latvian, each with a little over one million speakers (already qualify); Catalan, with more speakers than Danish and Finnish, still won’t. Choice of which languages are upgraded to the supranational level as EU official languages is grounded in the principle that states have a single dominant national language…The family gathered around the European table in Brussels has many linguistic members missing, since the only ones who are welcome are those who became head of the family back home. (Phillipson, 2003, pp. 111–112)

Finally, there are conflicts within the official and working languages of the bigger EU states: The EU’s regime of official languages dating back to 1958 call all the official languages at the same time “working languages” of the Community’s political bodies…However, the regulation explicitly leaves it up to each political body to use the official languages according to its needs or circumstances (Art. 6). This option provides for the distinction between those official languages which at the same time function as working languages and the others which do not. This distinction has become more noticeable with the accession of new member states and additional official languages…French has always, until very recently, been the unchallenged primary working language of the EU’s political bodies. The reasons were that France managed to have

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all the previous political bodies installed in officially French-speaking territories (Brussels, Strasbourg, Luxemburg), that French had a great tradition as a language of international diplomacy and that Germany, which alone could have seriously challenged French preeminence, had been defeated not only military but also morally as a consequence of Nazism and could not, therefore, openly defend its national interests. Nevertheless, German was clearly the second important working language of the Community’s political bodies with Italian and Dutch playing a noticeable role too, until Britain and Ireland joined the Community in 1973. Thereafter, English very quickly became an important working language, more important than German from the beginning, but staying behind French until very recently. (Ammon, 2003, p. 402)

The EU Draft Constitution as a Type of Constitution Faingold (2004) categorizes different types of constitutions. Under this typology, the 2004 Draft Constitution is a Type 16 constitution, similar to the constitutional models adopted by such countries as Cambodia (1993), Cyprus (1960), Kenya (1963), Kuwait (1962), Mali (1962), and Zambia (1991). Type 16 is defined as follows: “Official language; no national language; provisions for official language; provisions for all” (Faingold, 2004, p. 17). Thus, states that adopt a Type 16 constitution (1) designate one or more official languages but (2) do not designate a national language, (3) establish language provisions to protect the official languages, and (4) establish provisions to protect the linguistic rights of all citizens. A constitution of this type is deemed inappropriate because it does not explicitly recognize the linguistic rights of regional minority groups having autonomy or official language status within EU member states, such as Basque, Catalan, and Galician in Spain and Welsh and Gaelic in the UK. I contend that the EU could select a type of constitution more appropriate to its particular geopolitical situation. The following three sections identify passages in the proposed EU Draft Constitution that define the language obligations of the state and the EU and the language rights of individuals and groups, namely Articles I-2, I-3, I-10, II-82, II-101, III-128, III-176, III-282, III-315, III-433, IV-448. I will deal with each of these in turn.

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Official Languages The following article in the proposed EU Draft Constitution establishes the official languages for the Constitution. Article IV-448: Authentic texts and translations 1. This Treaty, drawn up in a single original in the Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States. 2. This Treaty may also be translated into any other languages as determined by Member States among those, which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.

The Article makes no mention of the linguistic rights of regional minority languages. Catalan, Basque, and Galician, while they have official status in Spain, albeit as regional languages, are neither official languages of the EU nor of the EU Draft Constitution. It is worth stressing at this point that Catalan has far more native speakers than several official EU languages (e.g., Estonian, Irish, Latvian, Maltese) (see Chapters 3 and 4). Clearly, Catalan “has so many speakers that its status as only a regional official language of Spain appears inadequate to many of its speakers. Catalonia not only aspires to a comparable status for the Catalan-speaking region in France but also for some official recognition on the EU level” (Ammon, 2003, p. 398).

Provisions for Official Languages The following three articles in the EU Draft Constitution state provisions for official languages: Article I-10: Citizenship of the Union 2. Citizens of the Union…shall have:

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d) The right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Constitution’s languages and to obtain a reply in the same language. Article II-101: Right to good administration 4. Every person may write to the institutions of the Union in one of the languages of the Constitution and must have an answer in the same language. Article III-128: Non-discrimination and citizenship The languages in which every citizen of the Union has the right to address the institutions or bodies…and to have an answer are those listed in Article IV-448 (1).

Here too, the linguistic rights of regional minority languages go unaddressed. Articles I-10, II-101, and III-128 give no provisions to protect the linguistic rights of speakers of regional minority languages such as Catalan, Basque, and Galician, nor of speakers of other regional minority EU languages such as Welsh. These key articles target the official and working languages of the EU for protection and pay no attention to earlier pronouncements created by the EU to support minority languages, such as the European Bureau for Lesser-Used Languages (EBLUL) and the European Charter for Regional and Minority Languages. Not surprisingly, the Catalans (Hicks & Klinge, 2005; Watson, 2005), Basques (Hizkuntz Eskubideen Behatokia/Observatory of Linguistic Rights, 2005), and Welsh (Plaid Cymru/The Party of Wales, 2004) were not happy with the EU Draft Constitution’s approach to language rights. Reading the position papers mentioned above, by Catalan, Basque, and Welsh political parties, and others, one cannot avoid feeling a pervading atmosphere of disenfranchisement in some important regions of Europe at the time the EU Draft Constitution was drafted by the Convention. As one well known academic and language rights activist aptly describes the situation: “(The Draft Constitution) does even less than the Framework Convention on the Protection of Minorities” (Skutnabb-Kangas, cited by Hicks, 2004; see also Chapter 3). The feelings of disenfranchisement that pervade the Catalans, for example, are most clearly expressed by Tenma665, a participant in the Unilang Forum on the internet (http://home.unilang.org/main/forum/ viewtopic.php):

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Many people in Catalonia were against it because this constitution gives more power to the state…Regions become disempowered…You can say that there are institutions which care for these regions, but sub-national entities become nullified against the power of the State and the infrastructure of the Central Government of the country. Catalan is still not an official language of the European Union, and many people got angry…seeing the government promises to make it become official were just promises. I guess our language is still considered as something folkloric, if not invisible. (Tenma665, Unilang Forum)

Linguistic Rights of All Citizens The following three articles in the EU Draft Constitution deal with linguistic pluralism and linguistic diversity in the European Union. Article I-2: The Union’s values The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to the Member States in a society of pluralism, tolerance, justice, solidarity and non-discrimination. Article I-3: The Union’s objectives 3. (The Union) shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced. Article II-82: Cultural, religious and linguistic diversity The Union shall respect cultural, religious and linguistic diversity.

The following four articles in the EU Draft Constitution deal with the linguistic rights of all citizens in the areas of intellectual property, education, and trade, and the adoption of regulations governing the languages of the European Union institutions. Article III-176 A European law of the Council shall establish language arrangements for the European intellectual property rights. The Council shall act unanimously after consulting the European Parliament.

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Article III-282 The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and complementing their action. It shall fully respect the responsibility of the Member States for the content of teaching and the organization of education systems and their cultural and linguistic diversity…Union action shall be aimed at: (a) developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States; (b) encouraging mobility of students and teachers, inter alia by encouraging the academic recognition of diplomas and periods of study. Article III-315 The Council shall also act unanimously for the negotiation and conclusion of agreements: (a) in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union’s cultural and linguistic diversity. Article III-433 The Council shall adopt unanimously a European regulation laying down the rules governing the languages of the Union’s Institutions, without prejudice to the Statute of the Court of Justice of the European Union.

“Pluralism,” “equality,” “non-discrimination,” “diversity,” “the languages of the Member States,” and “the languages of the Union’s institutions” are the terms that seem to avoid mentioning by name the regional minority languages. More to the point, it is unclear as to what languages and linguistic practices are covered under the notions of pluralism and respect for diversity. Given the language politics of various member states (e.g., France, Greece, Italy) this is not surprising. The question also arises whether under articles I-2, I-3, II-82, III-176, III-282, III-315, and III-433, large immigrant minorities, such as the Turks in Germany, or speakers of official EU languages living in other states of the EU where they are a minority, such as Finnish speakers in Sweden (see Hautamaki, 1998), will have the same, additional, or fewer linguistic rights than, say, the Catalans, the Basques, the Galicians, and the Welsh. In fact, the question arises whether these linguistic groups will have any linguistic rights at all under the above-mentioned articles (see Chapter 3). It is hard to avoid the impression that the EU Draft Constitution offered big words and little else to speakers of minority languages (see, especially, Article I-2). The Draft Constitution, especially its linguistics articles, should

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have aimed to reassure EU citizens that language rights for all, including linguistic minorities, were high on the EU’s constitutional agenda. Instead, it fails to do that and is notable for the lack of provisions to protect minority languages. Key parts of the Draft Constitution target the official and working languages of the EU rather than (or in addition to) minority languages (regional or otherwise). In fact, the 2004 draft of the EU Constitution does less to protect the rights of linguistic minorities than previous pronouncements and bodies of the EU, such as the European Charter for Regional or Minority Languages and EBLUL (see Chapter 3).

Revising the EU Constitution Regarding the Linguistic Rights of Regional Minority Languages In the 1980s and 1990s…historic nations with long established states, such as Catalonia in Spain and more recently Scotland and Wales in the UK, sought and won greater control of their affairs…70 to 80 percent of Community programmes were managed by local and regional authorities in the member states, suggesting that their role as partners of the Union should have greater recognition. These developments called into question the role the regions should have in a constitutional treaty…The regional issue would grow in importance with enlargement because many of the nation states joining the Union would be smaller, but far better represented in Union institutions, than regions such as Scotland, Catalonia, or Flanders. (Norman, 2003, p. 133)

However, language rights for regional minorities in the EU, or, as a matter of fact, language rights for any minority in the EU, never became an issue at the constitutional convention, let alone a constitutional issue deemed worthy of consideration in the drafting of the EU Draft Constitution. The Treaty of Maastricht recognized an increased role for the regions in the Union by allowing member states to be represented in the Council of Ministers by a regional minister if they so chose and by setting up the committee of the Regions as an advisory body. But the committee, which had observer status in the Convention and which wanted to increase its powers, was an imperfect reflection of Europe’s regional diversity…The Praesidium decided the role of local and regional authorities should be the subject of a plenary

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debate on 7 February 2003. This reached general consensus that the regions should be recognized in the opening articles of the constitutional treaty but revealed divisions over whether regions should have direct recourse to the European Court of Justice in cases where they considered the principle of subsidiarity was infringed. The plenary was similarly divided over the future role and composition of the Committee of Regions. (Norman, 2003, p. 133)

An alternative constitutional approach, which might better address the needs of linguistic minorities in the Draft Constitution, would have been what I have described as a Type 12 constitution—one adopted by nations that recognize the linguistic rights of minorities having or seeking autonomy within their territory (Faingold, 2004). I describe it as follows: “Type 12: Official language; no national language; provisions for minorities; provisions for majorities; provisions for all” (Faingold, 2004, p. 16). States that adopt a Type 12 constitution (1) specify one or more official languages, (2) do not specify a national language, (3) establish provisions to protect the language rights of minorities and majorities, and (4) establish provisions to protect all citizens. Eighteen nations have this type of constitution: Azerbaijan (1995), Ecuador (1998), Estonia (1972), Georgia (1995), India (1996), Iran (1979), Kazakhstan (1995), Lithuania (1992), Mongolia (1992), Peru (1993), Romania (1970), Russian Federation (1993), Slovakia (1992), South Africa (1996), Tajikistan (1994), Turkmenistan (1992), Ukraine (1996), and Uzbekistan (1992). Future drafts of the EU Constitution could emulate the constitutions of countries that have a similar geopolitical situation to the one found in the EU, i.e., countries that recognize the linguistic rights of minorities having or seeking autonomy within their territory and draft specific provisions to protect the linguistic rights of such minorities, such as India and the Russian Federation, or countries that recognize as fundamental the linguistic rights of individuals and groups (e.g., South Africa). Most importantly, in a future draft of the EU constitution, one cannot stress enough the need to target not only official and working languages of the EU for protection and promotion but also regional and minority languages, by paying heed to earlier pronouncements and bodies created by the EU to support minority languages, such as EBLUL and the European Charter for Regional and Minority Languages (see Chapter 3). Last but not least, future drafts of the EU constitution will get benefit from seeking state-of-the-art advice from politicians and experts in language policy (see, for example, Nitobe Symposium, 2005; Phillipson, 2003; Tully, 1995).

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Conclusion An exhaustive analysis of the 2004 EU Draft Constitution showed that the text of the Draft Constitution targets the official and working languages of the EU for promotion but provides no legal protections to speakers of non-official EU languages, whether indigenous or immigrant. The Draft Constitution does even less to protect the rights of linguistic minorities than previous pronouncements and bodies of the EU, such as the European Charter for Regional or Minority Languages and the European Bureau of Lesser-Used Languages. The chapter supported a constitutional approach which better addresses the needs of linguistic minorities in the Draft Constitution: one adopted by nations that recognize the linguistic rights of minorities having or seeking autonomy within their territory, establishing provisions to protect the language rights of minorities in their constitutions and/or statutes.

References Ammon, U. (2003). Present and future language conflicts as a consequence of the integration and expansion of the European Union (EU). In A. Valentini, P. Molinelli, P. Cuzzolini, & G. Bernini (Eds.), Ecologia linguistica: Atti del XXXVI congresso internazionale della societa di linguistica italiana (pp. 393–405). Rome, Italy: Bulzon. Cogwill, A., & Cogwill, A. (2004). The European constitution in perspective: Analysis and review of “The treaty establishing a constitution for Europe”. Highfield, UK: British Management Data Foundation. Faingold, E. D. (2004). Language rights and language justice in the constitutions of the world. Language Problems and Language Planning, 28, 11–24. https:// doi.org/10.1075/lplp.28.1.03fai. Hautamaki, P. (1998, April 8). Who’s whingeing now? Newsletter of the Finnish Institute in London. Hicks, D. (2004). Does the EU have a language policy? Mercator Legislation Conference, Tarragona. Retrieved from http://www.ogmios.org/2311.htm. Hicks, D., & Klinge, S. (2005). MEPs say “yes” to constitution amid heated debate over language rights and “national minorities”. Retrieved from http://www. eurolang.net/news. Hizkuntz Eskubideen Behatokia/Observatory of Linguistic Rights. (2005). Assessment of the European constitutional treaty from the perspective of language rights. Basque Country: Iruña.

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Nitobe Symposium. (2005, July 30–August 1). Language policy implications of the expansion of the European Union: Concluding document. 4th Nitobe Symposium, Vilnius, Lithuania. Norman, P. (2003). The accidental constitution: The story of the European convention. Brussels, Belgium: EuroComment. Norman, P. (2005, May 18). The EU’s “accidental” constitution. Financial Times. Phillipson, R. (2003). English-only Europe? Challenging language policy. London, UK: Routledge. Plaid Cymru/The Party of Wales. (2004). Fighting hard for Wales: A manifesto for the European Parliament elections 2004. Cardiff, UK: Plaid Cymru. Shuibhne, N. N. (2004, February 27–28). Does the EU constitution contain a language policy? 2nd Mercator International Symposium, Europe 2004: A New Framework for All Languages? Tarragona, Spain. Tully, J. (1995). Strange multiplicity: Constitutionalism in an age of diversity. Cambridge, UK: Cambridge University Press. Watson, G. (2005). Speech on the European constitution: Convergéncia Democrática de Catalunya. Retrieved from http://www.grahamwatsonmep.org/speeches/ 16.html.

CHAPTER 3

Language Rights in the Treaty of Lisbon

Abstract This chapter studies the Treaty of Lisbon which contains legal language defining the linguistic obligations of the European Union and the language rights of its citizens. The Treaty fails to address the rights of minority language speakers in the European Union, including, most perilously, the rights of minorities who are seeking to secede from their own countries (e.g., Catalonia and Scotland) and minorities who have used violence in their quest for political rights (e.g., the Basque Country and Corsica). It calls for a more pluralistic approach to language legislation and for de jure language rights for speakers of minority languages in the European Union, especially for speakers of official minority languages, such as Catalan, Basque, and Galician in Spain, Scottish Gaelic and Welsh in the UK, and others. Future revisions of the Treaty of Lisbon may need to pay heed to earlier pronouncements and bodies created by the European Union to support minority languages, such as the European Bureau for LesserUsed Languages and the European Charter for Regional and Minority languages. Keywords European Union · Treaty of Lisbon · Language policy · Language rights · Language minorities

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In the wake of the rejection of the 2004 Draft Treaty Establishing a Constitution for Europe (hence Draft Constitution) (European Union, 2004) by Dutch and French voters in 2005, it became clear that it was politically impossible for the Draft Constitution to be accepted by all member states without major revisions (Faingold, 2007; see Chapter 2). At the same time, the heads of state and governments of European Union (EU) member states realized that a pressing need existed to produce a new treaty as soon as possible (Piris, 2010) to avoid giving the impression to the world that the European Union was in crisis and to assuage a deepening feeling of distrust among member states, or “Euroscepticism” (Romaine, 2013, p. 129). Following the rejection of the Draft Constitution (Faingold, 2007; see Chapter 2) in new rounds of negotiations among member states, an outline of a deal started to emerge. For those member states that had ratified the Draft Constitution (e.g., Spain, where the Draft Constitution had the highest electoral support), it was important that a new treaty keeps as many of its concrete legal reforms as possible (Lorenzo & Moore, 2009). For those member states that had rejected the Draft Constitution, especially France, the Netherlands, and the UK, a future treaty would have to renounce entirely the notion of a “Constitution for Europe” and aim instead to produce a classic amending treaty, as was done previously in Maastricht, Amsterdam, and Nice. For these states, the notion of constitutionalization would have to be abandoned, along with the words “constitution” and “constitutional,” “minister,” “law,” “flag,” “anthem,” and any other words implying that the EU was being transformed into a single state (Piris, 2010, p. 32). Following negotiations, in an intergovernmental conference with the representation of EU member states, a new treaty amending existing treaties was signed by all member states in Lisbon on December 13, 2007, effective December 1, 2009. As with previous treaties, this treaty came to be called by the name from the city in which it was signed: the Treaty of Lisbon. This chapter analyzes the Treaty of Lisbon (hence the Treaty) (European Union, 2007) for language defining the linguistic obligations of the EU and the language rights of its citizens. As with the Draft Constitution, legal provisions in the Treaty fail to address the rights of minority language speakers in the EU, including, most perilously, the language rights of minorities who are seeking (or have tried) to secede from their own countries (e.g., Catalonia and Scotland) and minorities who use (or have used)

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violence in their quest for political rights (e.g., Basque Country and Corsica) (see Chapter 2). The chapter calls for a more pluralistic approach to language legislation and for de jure language rights for speakers of minority languages in the EU, especially for speakers of official minority languages, such as Catalan, Basque, and Galician in Spain, Scottish Gaelic and Welsh in the UK, and other countries where minority languages constitute a major component of the nation’s multilingual identity (Baxter, 2013; Cloots, 2015; May, 2003; Milian-Massana, 2008; Strubell, 2007; Williams, 2000). The reason to single out minority languages that enjoy some degree of official recognition in their own countries is that conflict between these languages and the majority language may exacerbate existing claims of self-determination or secession by speakers of minority languages. Also, to avoid political conflicts in the EU, future legislation could recognize the rights of some languages with territorial status, but without recognizing them as official languages of the state (e.g., Breton, Corsican, Occitan, and Sardinian). Explicit language in legislation can help to solve conflicts between speakers of majority and minority languages by defining legally the status and use of such languages (Faingold, 2004; but see Faingold, 2011, 2012a, 2012b, 2013, 2014, 2016b, 2018, for de jure language hindering the language rights of minorities in the United States). Finally, the chapter aims to provide expert advice about language policy to aid political decision-makers in drafting new language legislation that might help solve linguistic conflicts arising among speakers of majority and minority languages in the EU (Strubell, 2007; Tully, 1995; Turi, 1994).

Official Languages in the EU In 1958 the European Community (EC) enacted legislation declaring the languages of the member states at the time as the official and working languages of the Community (Dutch, French, German, and Italian). A long standing decision from 1958 still affects the present situation of languages within the European Union. At the time, when the languages used in the six original member States of the European Common Market were very few when compared with today’s 24 languages, it seemed quite logical to provide in EEC Regulation 1/1958 that: “Article 1. The official languages and the working languages of the institutions of the Community should be Dutch, French, German, and Italian”…Under this rule, workloads could be managed reasonably well, considering that minor (in terms of number

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of speakers) languages such as Luxembourg language (Lëtzebuergesch), or Belgium’s Flemish spoke, were not granted the title of “official languages”. (Ferreri, 2018, p. 373)

Since then, many more countries have become part of the EU. Accordingly, the number of official and working languages has increased, and today the EU has 24 official and working languages: Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, and Swedish (http://ec.europa. eu/languages/languages-of-europe/eu-languages_en.htm). Croatian is the most recent addition as of July 1, 2013 (http://www.eu-croatia.org/ eu-croatia). At the time of writing this book (June 2019), it is unclear whether English will continue to be an official and/or working language of the EU once the process of the UK exiting the EU (Brexit) is finalized (Daily Mail, June 23, 2016; The Telegraph, June 28, 2016; see Chapter 6). The European Union’s commitment to multilingualism, at least in part, is repeated in EU legislation enacted in the aftermath of seven EU enlargements, in 1973 (Denmark, Ireland, UK), 1981 (Greece), 1986 (Portugal, Spain), 1995 (Austria, Finland, Sweden), 2004 (Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia), 2007 (Bulgaria, Romania), and 2013 (Croatia). All 24 official and working languages are accepted as official media because the fundamental treaties of the European Union and its binding decisions are required to come before national law in the member states for approval as per EU regulations (de Swaan, 2001). Documents may be sent to EU institutions and a reply received in any of the official and working languages (de Witte, 2008; Milecka, 2011). In addition, in meetings at the highest level of the European Council and in plenary sessions of the European Parliament, simultaneous interpretation is provided and all documents are translated into all official and working languages of the EU, including the Official Journal of the European Union. However, despite these de jure requirements, due to time and budgetary constraints, few working documents are translated into all official and working languages (http://ec.europa.eu/languages/languages-of-europe/eulanguages_en.htm). “Problems related to the management of several versions of European documents have obviously become much more serious with the joining of several new countries, especially those belonging to Central and Eastern Europe” (Ferreri, 2018, p. 373).

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In the day-to-day operations of the EU, the most frequently used languages are English and French, followed by German, which are referred as “procedural,” “vehicular,” “in-house,” or “administrative” languages (Phillipson, 2003, p. 120), with English as the dominant working language at the institutional level (Ammon, 2006; de Witte, 2008; Ferreri, 2018; Forchtner, 2014; Krzyzanowski, ˙ 2014; Longman, 2007; Nic Craith, 2006; Wodak, 2014), except for the European Court of Justice (ECJ), where French is the single internal working language (Ferreri, 2018; McAuliffe, 2012). Not surprisingly, 67% of Europeans perceive English as one of the two most useful foreign languages, followed by German and French with ratings of 17 and 16%, respectively (Kelly, 2012). Thus, in meetings outside the European Parliament and the European Council, as well as in less formal meetings, multilingualism tends to disappear. Of the 4,000 meetings organized every year, 75% do not benefit from simultaneous interpretation. A great number of reports are given to consultants who generally have to work in English. This practice tends to apply to invitations to tender for signing public contracts financed by the Community budget. Whereas Community regulations explicitly stress the tenderers’ right to express themselves in their own language, they are implicitly invited to use English. When they speak in an official capacity, members of an institution tend to comply with its internal linguistic regime and speak either in English or in French according to the circumstances…As far as programmes are concerned, most of the time these are dealt with in English. (Truchot, 2003, p. 102) Only a restricted number of languages are regularly used as working languages…and among these English is coming to dominate. In consequence, political actors without knowledge of the working languages, particularly English, find it increasingly difficult to do their job…The claim that interpretation and translation have made multilingualism workable is not true, except in the most formal settings. In many exchanges English has become the de facto but an acknowledged lingua franca and, increasingly, those who cannot work in English are disadvantaged. (Wright, 2009, p. 94) It is widely known that the internal working languages of the Commission services are English and French, to the almost exclusion of the other languages (although German is formally the Commission’s third working language, it is very seldom used). It is also known that the European Court of Justice has

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so far conducted its deliberations in French, and that much of its preparatory work takes place exclusively in French. Increasingly, policy documents emanating from European institutions are placed on the internet site of the EU in a few language versions only…There is also a tendency to restrict the range of languages to be used in newly established bodies of the European Union, such as the EU agencies that have mushroomed in recent years. (de Witte, 2008, p. 178)

Thus, in the daily operations of EU organizations, equality among official languages seems to be an illusion. Since the beginning of the EU, an implicit agreement has existed to accept a hierarchy of language use in its dayto-day operations, with English and French at the top of the hierarchy (Ammon, 2006; de Witte, 2008; Forchtner, 2014; Krzyzanowski, ˙ 2014; Longman, 2007; Wodak, 2014). As another author succinctly puts it, “we have de jure linguistic equality within EU institutions but de facto two lingua francas, English and French” (Nic Craith, 2006, p. 52). As a result, English and French speakers are in a more powerful and privileged position in daily interactions within EU institutions because persons with access to those languages have more time to prepare responses while speakers of other languages must wait until translations are produced to prepare their responses (Wright, 2000). English has in fact become the lingua franca of the European Union. In this respect, the European constellation resembles that of India, or for that matter South Africa or Nigeria, where English is also the linking language, as unwanted as it is inexorable, of the land. But there is a difference: robust as they are, the official languages of the EU member states are better protected…than those in the other constellations (i.e., minority languages). (de Swaan, 2001, pp. 174–175)

However, as noted above, it is unclear whether English will continue to be an official and/or working language of the EU once the process of the UK exiting the EU (Brexit) is finalized (see Chapter 6).

Legislation Concerning Minority Languages in the EU In 1981 the EU’s political bodies, in cooperation with the Council of Europe, established the European Bureau of Lesser-Used Languages (EBLUL) to support minority languages and cultural diversity within the

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EU. Except for Albanian, Byelorussian, Tatar, Turkish, and Ukrainian, minority languages supported by the EBLUL are all autochthonous EU languages (http://eblul.eurolang.net/index.php?option=com_content& task=view&id=118&Itemid=56). Since the establishment of the EBLUL, the Council of Europe has established two treaties for protecting regional and minority languages in the EU (i.e., regionally based autochthonous languages spoken by minority groups): (1) the European Charter for Regional and Minority Languages in 1992 (also called ECRML or the Charter) (Council of Europe, 1992), and (2) the Framework Convention for the Protection of National Minorities in 1995 (also called FCNM or the Framework Convention) (Council of Europe, 1995; Thornberry & Martín Estébanez, 2004). According to Article 1 of the Charter: Article 1 – Definitions For the purposes of (the) Charter: “regional or minority languages” means languages that are…traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population; and…different from the official language(s) of that State;…it does not include either dialects of the official language(s) of the State or the languages of migrants. “territory in which the regional or minority language is used” means the geographical area in which the said language is the mode of expression of a number of people justifying the adoption of the various protective and promotional measures provided for in this Charter. “non-territorial languages” means languages used by nationals of the State which differ from the language or languages used by the rest of the State’s population but which, although traditionally used within the territory of the State, cannot be identified with a particular area thereof. (Council of Europe, 1992)

Thus, per Article 1 of the Charter, the rights of speakers of non-territorial languages, including migrants, are not recognized in the EU (Dunbar, 2008). Such languages include those spoken by nomadic people, including Romani, Shelta, Yiddish, and widely used non-European immigrant languages, such as Panjabi, Gujarati, Hindi/Urdu, Bengali, and Sylheti in the UK; Kurdish, Turkish, and Arabic in Germany and the Netherlands; and Berber in France (Extra & Ya˘gmur, 2012; Kuiken & van der Linden,

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2013; Määttä, 2005; Williams, 2009). Similarly, while the Framework Convention offers no definition of the term “minority,” the title of the convention itself implies that non-national minorities (nomads and immigrants) are excluded from the legislation. The exclusion of nomad and immigrant languages from the Charter and the Framework Convention appears to reflect a widely held view among scholars of language policy that nonterritorial minorities are less entitled to language rights than indigenous groups (Kymilcka, 1995; May, 2008) (see Chapter 6). Unfortunately, neither the EBLUL nor the Charter has produced significant results in protecting the language rights of regional or minority languages in the EU, especially in such diverse countries as Italy, Spain, Belgium, and the UK (Arzoz, 2008; Castellà Surribas & Strubell, 2008; Creech, 2005; Fauconnier, 2008; McLeod, 2008). While some member states ratified the Charter (e.g., Austria, Finland, Germany, Spain, Sweden, and the UK), others have failed to ratify (e.g., France, Italy, Malta, Poland, and Romania). Especially detrimental to language minorities in the EU has been France’s declaration that if and when France ratifies the Charter, it will explicitly pronounce that the Charter was not designed to protect specific language minorities, including France’s own six regional languages (Alsatian, Breton, Catalan, Corsican, Flemish, and Occitan), but to protect Europe’s linguistic heritage generally (Määttä, 2005). Coincidentally, or perhaps not, in 1992, the same year in which the Charter was ready for member states’ signatures, France amended its constitution to the detriment of French language minorities in particular: the line “the language of the Republic is French” was added to Article 2, which describes the symbols of the nation. To make things worse, soon after enacting the constitutional amendment, France declared the Charter to be unconstitutional and enacted a new law requiring the compulsory use of French in most official domains (Määttä, 2005). In France, negative attitudes that exist today about regional minority languages have deep historical roots going back to the French Revolution, a time when France’s regional languages were linked with counter-revolutionary attitudes, religious extremism, and general backwardness. Also, some of France’s regional languages are identified with separatist movements that sometimes resort to political violence and terrorism, e.g., the National Liberation Front of Corsica. (Määttä, 2005; see also http://www.thelocal.fr/20130604/corsican-separatists-vow-toattack-france-again.)

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Several factors hindered the ratification of the Charter in France…Some expressed fears of the Charter as a political tool, which could destabilize the country and serve as the catalyst for movements for regional autonomy…Regional languages such as Irish in Northern Ireland and the Basque Country in Spain are frequently associated with nationalism and Separatism. (Nic Craith, 2006, p. 161)

It is worth noting that the Charter consists mostly of a set of principles (Parts I and II), rather than rules, and that the rules that are included (Part III) are not compulsory (Määttä, 2005). Also, the Charter “creates no court or other judicial or quasi-judicial body. It empowers no body to make any rulings on whether the charter’s obligations are being respected, nor does it empower any body to definitively interpret the charter’s provisions” (Dunbar, 2008, p. 53). The Charter does, however, establish a Committee of Experts, “merely instructed to monitor the implementation of the charter and to receive information…(but not) to act as a more or less judicial appeal body” (Council of Europe, 1992, Explanatory Report, paragraph 129; cited by Dunbar, 2008, p. 56). Clearly, the Council of Europe never had the power to enforce the Charter, let alone compel member states to sign, ratify, or implement it, and because many states in the EU have not ratified it, the Charter has had little effect in protecting minority languages in need of protection. More to the point, The European Charter for Regional or Minority Languages implicitly denies any right enjoyed by individuals, since it only contains undertakings by state parties to provide certain benefits and usage for regional or minority languages, not rights for individuals or groups as such. As for the Framework Convention on the Protection of National Minorities, its explanatory report clearly shows that the treaty is only a ‘framework’, meaning that it contains programme-type provisions setting out objectives which governments undertake to pursue. These provisions do not apply directly, leaving once again a measure of discretion in the implementation of the objectives under the treaty. (de Varennes, 2009, p. 31) Lack of definition in the Framework Convention also allows states simply to declare that they have no minorities…There has been increased recognition of a right to language, culture, and identity, but not legally binding international instrument that unreservedly compels states to take proactive measures to protect minority languages. (Leung, 2018, p. 61)

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Most importantly, a number of states have failed to implement the obligations they freely entered into on behalf of language groups, and “time and again the Committee of Experts (COMEX) of the Council of Europe has to grapple with unresponsive governments and senior public officials from within far too many of the 46 signatory states in terms of elucidating precisely how the Framework Convention translates into action at the local level” (Williams, 2009, p. 7). Thus, given the EU’s institutional failure in producing compulsory guidelines and binding legislation and mechanisms in the area of language policy, lack of support for legislation to protect minority language rights by member states and EU institutions is not surprising (Guliyeva, 2013; Krzyzanowski ˙ & Wodak, 2011). Nor it is surprising that the EBLUL, which was never well financed, in 2004 began experiencing serious financial difficulties (Nic Craith, 2006) and its Board of Directors had no other recourse but to end the organization: EBLUL wishes to inform you that at a meeting of its Board of Directors on January 27, 2010, following an internal consultation process with all its member state committees, has decided to end the organization after a quarter century of promoting the cause of Lesser Used Languages in the EU. This is in large part because the funding mechanism of such an organizational model is not suitable in current circumstances. (European Bureau for Lesser Used Languages, 2010)

Soon after the EBLUL closed, the Civil Society Platform on Multilingualism (hence the Platform) was published by the European Union (European Union, 2011). Similar to the EBLUL, the Platform presents policy recommendations for the promotion of regional minority languages and immigrant languages in the EU. However, once again, the Platform consists of principles rather than obligatory rules, and thus seems unlikely to help protect in a significant way EU language minorities. The demise of the EBLUL and the EU’s institutional failure in producing top-down binding language legislation and mechanisms to protect the language rights of minorities may reflect a general bottom-up resistance to such language legislation and institutions. When asked which values the EU best embodied compared to other countries in the world, a majority chose freedom of opinion (64%), peace (63%), social equality and solidarity (61%), tolerance and openness to others (56%), respect for nature and the environment (55%), and respect for history and its lessons

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(52%). While cultural diversity (44%) recorded the largest increase since 2007, when asked to select two items European society should emphasize in order to face major global challenges, social equality and solidarity (45%) ranked highest over cultural diversity and openness to others (17%). This order of priorities has remained unchanged since the question was previously asked in the autumn of 2009. (Romaine, 2013, p. 129)

Language Rights in the Treaty of Lisbon Official Languages The following two articles from the Treaty of Lisbon establish the official languages of the EU and state provisions for their use in communication with EU officials: Final provisions, Article 7 This Treaty, referred to as the Treaty of Lisbon, drawn up in a single original in the Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States. (European Union, 2007) Non-discrimination and citizenship, Article 17d (d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language. (European Union, 2007)

Articles 7 and 17d are copied almost verbatim from Article I-10.2 and Article IV-448.1, respectively, of the Draft Constitution (Faingold, 2007; see Chapter 2). Article 17d, which grants EU citizens the right to communicate with EU authorities in one of the official languages of the Lisbon Treaty and receive an answer in the same language was created to respect the language identity of individuals (Milecka, 2011). However, as with the Draft Constitution, these articles do not mention any rights of minority languages or state provisions to protect the rights of language minorities to communicate with EU authorities. Thus, ironically, Article 17d is titled

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“Non-discrimination and citizenship,” yet it discriminates against those citizens of the EU who are not speakers of the EU official languages by denying them the right to communicate with EU authorities in their own languages. The principle does not guarantee full equality between all European Union citizens and residents irrespective of their mother tongue. The main reason for this is that it applies to the national languages of the Member States, and not to regional languages, some of which have more speakers than some of the national languages (compare Catalan with Danish, or Basque with Maltese), nor to languages of migrant communities. (de Witte, 2008, p. 178)

Thus, Basque, Catalan, and Galician, which have official status as regional languages in Spain, and Welsh, which has official status as a regional language in the UK, are neither official languages of the EU nor of the Treaty (Baxter, 2013; Faingold, 2016a; May, 2003; Milian-Massana, 2008; Williams, 2000), and therefore, their speakers are not allowed to communicate in their native languages with EU authorities. “Speakers of regional and minority languages are excluded from the full benefit of this right…How can one justify that it is granted to those who speak Maltese and not to those who speak Catalan?” (de Witte, 2008, p. 179); or why is a language such as Irish privileged as an official language of the EU when, for example, in the 1993 Irish election “none of the three candidates for the highest office of the country was able to muster much competence in the first official language” (Creech, 2005, p. 106). It is difficult to justify on democratic grounds (although perhaps it could be on economic grounds) why Danish farmers and German industrialists have the right to read materials in their own language, but Breton or Corsicanspeaking wine growers do not. While it may be true that most speakers of minority languages also speak the official language of their state, all of them do not, and certainly not with the level of expertise necessary to process legislative requirements. (Creech, 2005, p. 151)

More to the point, there exist a number, albeit small, of non-official languages spoken natively by millions of speakers in Spain (e.g., Basque, Catalan, and Galician), or by hundreds of thousands of speakers in the UK (e.g., Welsh), that are called minority languages despite having far more native speakers than some EU official and working languages, such as Irish or Maltese with about 100,000 and 200,000 speakers, respectively.

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The conferring of the status of official language and working language to Maltese and Irish…demonstrates that within the Union there continues to be a willingness to privilege the languages that enjoy official status in all the territory of the Member States. The recognition of the Irish language means, once again, that the official languages and the working languages coincide exactly with the languages of the Treaties. (Milian-Massana, 2008, p. 217)

Milian-Massana continues: The same cannot be said with respect to the official languages in part of the territory of the Member States that already possess a notable vitality and are of demographic importance…Indeed, in reality such languages can be considered majority or quasi-majority languages, for reasons of vitality as well as demography…The European Union should grant them differential recognition from the other “regional” languages and should confer on them adequate and sufficient status close to or similar to that of the official languages or of the languages of the Treaties. This recognition must also be reflected in Community secondary legislation, where normally only the official languages of the states are taken into consideration, instead of the official languages in the states…So far, the results obtained fall far short from the aspirations of the speakers of Catalan, Galician, and Basque. For this reason,…the Statute of Autonomy of Catalonia, of 19 July 2006, incorporates and reiterates the old Catalan demands that Catalan language enjoy the status of official language of the Union. (Milian-Massana, 2008, pp. 219–220)

Further, under Article 17d, large immigrant minorities (e.g., Turks in Germany), and millions of speakers of immigrant languages in other EU countries (e.g., Berber in France and Hindi and Urdu in the UK) are denied the right to communicate with EU authorities in their own languages. Clearly, certain languages spoken by regional minorities or immigrants have so many speakers that their lack of official recognition at the EU level may be inadequate (Faingold, 2007, 2016a; May, 2003; Milian-Massana, 2008; Nic Craith, 2006). Finally, addressing the language rights of speakers of regional minority languages in the EU, especially minority languages that enjoy some degree of official recognition in their own countries, such as Catalan, Basque, and Galician in Spain, and Scottish Gaelic and Welsh in the UK, appears to be a politically urgent issue in the EU today. Not addressing such conflicts between speakers of different languages may exacerbate existing claims for self-determination or secession by speakers of minority languages

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(Faingold, 2004, 2007, 2016a). Most importantly, minorities who are seeking to secede from their own countries at the time of this writing (e.g., Catalonia in Spain), and minorities who may use violence in their quest for political, cultural, and linguistic rights (e.g., the Basque Country in Spain and Corsica in France) are leading to a more fragmented European Union that is more unstable and more likely to produce conflict and discordance (see Chapter 4). Linguistic Rights of All Citizens The following article from the Treaty of Lisbon states the linguistic rights of all citizens in the European Union. Article 2.3 (The Union) shall respect its rich cultural and linguistic diversity and shall ensure that Europe’s cultural heritage is safeguarded and enhanced. (European Union, 2007)

Article 2 states the values on which the EU was founded, including “equality” and “the rights of persons belonging to minorities” (Piris, 2010, p. 310). Accordingly, Article 2.3, which is copied verbatim from Article I3 of the Draft Constitution (Faingold, 2007; see Chapter 2), appears to declare not only cultural diversity but also language rights, albeit in vague rhetorical terms (Creech, 2005; Lähdesmäki, 2012). (One) of the elements of cultural diversity is language…Arguably, minority cultures, including 60 regional and minority languages…are a significant part of European cultural heritage…Arguably, ‘respect’ entails equal treatment of EU citizens regardless of their cultural identities; this may entail EU action that varies according to the linguistic needs in question…Furthermore, the phrase ‘linguistic diversity’ could be interpreted broadly to include not only the 23 (now 24) official languages but also any other languages which enjoy official status in all or some part of a Member State…(and) minority and regional languages in the EU irrespective of their legal status and potentially even the languages of immigrant groups. (Guliyeva, 2013, pp. 231–232)

The EU adopted “United in Diversity” as its motto in the failed Draft Constitution’s Article I-8 about the EU’s symbols (see Chapter 2). However, while the Treaty of Lisbon retained much of the text of the Draft

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Constitution, it failed to include the text of Article I-8 of the Draft Constitution, defining the European symbols, namely the flag, anthem, and motto. The omission of the motto “United in Diversity” from the Treaty of Lisbon resulted in a missed opportunity to make “diversity” a legally binding requirement (see Arzoz, 2008). However, “the notion of linguistic diversity itself provides no further information on the extension, quality, or conditions of that diversity,…whether it means linguistic diversity among Member States or also diversity among and inside the Member States” (Arzoz, 2008, p. 153). Importantly, Article 2.3’s reference to linguistic diversity avoids mentioning languages by name. Also, as with the Draft Constitution, it is unclear which linguistic practices are covered under the notion of linguistic diversity in the Treaty of Lisbon. For example, it is unclear whether large immigrant minorities (e.g., Turks in Germany, Russians in the Baltic States) and large endogenous minorities (e.g., Finns in Sweden, Germans in Italy) will have more or fewer rights than speakers of languages with special language status within their own member states (e.g., the Basques, the Catalans, the Galician, and the Welsh). As with the Draft Constitution, it is hard to avoid the impression that the Treaty of Lisbon offers little more than lofty words to speakers of minority languages. Language Rights of Linguistic Minorities The following two articles establish that the Treaty of Lisbon may be translated into languages other than the official languages of the Treaty. Final provisions, Article 53.2 This Treaty may also be translated into any other language as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council. Declarations concerning provisions of the treaties, Declaration 16 Declaration on Article 53(2) of the Treaty on European Union The Conference considers that the possibility of producing translations of the Treaties in the languages mentioned in Article 53(2) contributes to fulfilling the objective of respecting the Union’s rich cultural and linguistic diversity as set forth in the fourth subparagraph of Article 2(3). In this context, the Conference confirms the attachment of the Union to the cultural diversity

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of Europe and the special attention it will continue to pay to these and other languages. The Conference recommends that those Member States wishing to avail themselves of the possibility recognised in Article 53(2) communicate to the Council, within six months from the date of the signature of the Treaty of Lisbon, the language or languages into which translations of the Treaties will be made. (European Union, 2007)

Recall the use of the terms “original,” “authentic,” and “the Treaty languages” in Articles 7 and 17d to define the 23 languages of the Treaty (24 since the addition of Croatian in 2013). One may infer that in Article 53.2 and Declaration 16, translations of the Treaty, regardless of the certified status of such translations, are by definition “non-original” and “non-authentic” and hence of no practical use for communicating with EU authorities. The legal wording in Article 17d seems to support such reading since it declares that EU citizens have “the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.” Therefore, Article 17d, which makes no mention of the right to use any language other than the Treaty languages, seems to protect the Treaty languages at the expense of all other languages of the EU. Given the dubious legal status of translated versions, one may wonder why the Treaty allows for such translations at all. Thus, for example, while Article 53.2 and Declaration 16 would allow Spain and the UK to produce certified versions of the Treaty in regional official languages such as Basque, Catalan, Galician, and Welsh, it is unclear what kind of standing such translations would have in a legal dispute. The truth is that the Treaty does not contribute anything substantial to the official languages in part of the territory of the Member States. The possible translations of the Treaty to these languages would lack official value, as well as practical effects, except for a more ample distribution of the text of the Treaty. Thus, recognition of (official languages in part of the territory of the Member States) is essentially symbolic. Probably, the only important element to be drawn from its contents is the fact that the treaty opens up a distinction between the languages which, in accordance with their constitutional order, enjoy official status in all or part of the territory of the Member States and the other regional or minority languages. This distinction could make it easier

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for the European Union to establish specific recognition in favor of those languages in the future. (Milian-Massana, 2008, p. 206)

Sporadically, since the early 1980s, the European Parliament has taken some, albeit minor, steps to improve the status of certain regional minority languages that have official or devolved status in their own countries (de Swaan, 2001). For example, in 1983, a Parliamentary Intergroup, chaired by MEP Gaetano Arfè and made up of MEPs concerned about the status of minority languages in Europe, invited the European institutions to be more active in advancing legislative measures to protect minority language communities against discrimination. Similarly, the so-called De Pasquale resolution on regional policy and the role of regions, and the New Perspectives on European Community Cultural Action resolution, which mention protections for minority languages, were passed by the European Parliament in 1988 and 1999, respectively (Stolfo, 2009). In 1991, the European Parliament passed the so-called Reading Resolution for the situation of Catalan and other languages of the EU, a move that considered granting official status to Catalan and other languages spoken widely in the EU (European Commission, 1991). In 1994, the so-called Killilea Resolution recommended that the EU enact legislation allowing the use of minority languages in education, justice, public administration, and the media (European Commission, 1994). Last but not least, since the mid-1990s, within the framework of developing a multilingual European identity, a number of language-in-education policy documents were produced by some major EU institutions and bodies, such as the European Commission, the European Council, and the Commission of the European Communities, to support and improve the teaching and acquisition of majority and minority languages in the EU, “with language education working to remove the internal linguistic boundaries of Europe” (Liddicot, 2013, p. 61). Unfortunately, resolutions by the European Parliament or other EU organizations such as those just mentioned had little impact on the lives of minority language speakers in the EU. For example, the Reding Resolution focused on general issues regarding multilingual EU institutions and delayed looking into specific language right cases. Similarly, the Killilea Resolution left all decisions in the hands of member states rather than the EU Parliament. However, more recently, a small majority of the European Parliament decided that speakers of Catalan, Basque, and Galician in Spain and Welsh and Scottish Gaelic in the UK can now communicate with the

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European Parliament in their own language. This decision allows speakers of these languages to write to Parliament and to receive answers in their own languages but not to use them in parliament plenary sessions or in committee meetings (Romaine, 2013; Spongenberg, 2006). At the same time, the European Council decided that some EU documents may be translated into certain additional languages that have official status in a member state if the member state agrees to bear the translation costs and take responsibility for the translation process. To this end, Spain made an agreement with EU institutions and bodies allowing official documents to be translated into Basque, Catalan, and Galician (Guliyeva, 2013). The right to translate official documents into Basque, Catalan, and Galician, and the right to communicate with the European Parliament using certain official minority languages, are clearly steps in the right direction. However, as one noted European jurist reveals, The proposal submitted by the Spanish government, which included the Catalan, Galician, and Basque languages, was somewhat more limited than the Catalan aspiration. In fact, the Spanish government did not request the status of language of the Treaty for Catalan or the other two languages, but only requested recognition of the more important consequence issuing from such status…be also extended to any other language designated by the Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. With this formula, the Spanish government included Catalan, Galician, and the Basque language, given that those three languages, in accordance with the Spanish constitutional order, enjoyed full official status in part of the Spanish territory…With the requirement “in accordance with their constitutional order”, the Spanish proposal sought to limit the extension of the right…to a limited number of languages. (Milian-Massana 2008, p. 204)

Finally, in the 2002 legal case Cyprus v. Turkey (App no. 25781/94 2002 35 EHRR 30), argued by the European Commission on Human Rights (ECHR) before the European Court of Human Rights (ECHR), members of the Greek Cypriot minority of northern Cyprus sought to obtain the right to secondary education in Greek (de Varennes, 2009; de Witte, 2008; Guliyeva, 2013; Karoulla-Vrikki, 2001, 2013). The ECHR argued that

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Education in (English or Turkish language) schools does not correspond to the needs of the persons concerned who have the legitimate wish to preserve their own ethnic and cultural identity. While it is true that Article 2 of Protocol No. 1 guarantees access only to existing educational facilities, it must be noted that…such educational facilities have in fact existed in the past and have been abolished by the Turkish Cypriot authorities…In the Commission’s opinion, the total absence of appropriate secondary schools for Greek Cypriots living in northern Cyprus cannot be compensated by the authorities’ allowing the pupils concerned to attend such schools in southern Cyprus. In fact, this permission is not unconditional in that until recently all pupils were not allowed to return after completion of their studies and even now male students beyond the age of sixteen are not allowed to do so. In these circumstances the practice of the Turkish authorities amounts to a denial of substance of the right to education. (Cyprus v. Turkey, App no. 25781/94 2002 35 EHRR 30; cited by Thornberry & Martín Estébanez, 2004, pp. 61–62)

In a surprising decision, “since the only language rights that are expressly provided for in the ECHR pertain to language use in criminal proceedings” (Creech, 2005, p. 134), the Court agreed with the Commission’s argument of a violation of Article 2 of Protocol No.1: The option available to Greek-Cypriot parents to continue their children’s education in the north is unrealistic in view of the fact that the children in question have already received their primary education in a Greek-Cypriot school there. The authorities must no doubt be aware that it is the wish of Greek-Cypriot parents that the schooling of the children be completed through the medium of the Greek language. Having assumed responsibility for the provision of Greek-language primary schooling, the failure of the TRNC authorities to make continuing provision for it must be considered in effect a denial of the substance of the right at issue. It cannot be maintained that the provision of secondary education in the south in keeping with the linguistic tradition of the enclaved Greek Cypriots suffices to fulfill the obligation…in Article 2 of the first Protocol, having regard to the impact of that option on family life. (Cyprus v. Turkey, App no. 25781/94 2002 35 EHRR 30; cited by Thornberry & Martín Estébanez, 2004, p. 62)

Although Cyprus led to positive change for linguistic minorities because the ECHR decided in favor of the Greek Cypriot minority, this has remained an exceptional decision:

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The right to education implies, in certain circumstances, a right to mother tongue education…So the European Convention on Human Rights offers some meaningful protection for language rights that are ancillary to more general human rights, and that same incidental protection is inherent in the corresponding EU Charter rights, in accordance with the rule of interpretation (laid down in Article 52(3) of the Charter) that Charter rights should be interpreted in the same way as the ECHR rights on which they are based. It is not easy, though, to see the practical implications of this, given the limited scope of the EU Charter. (de Witte, 2008, p. 186)

Finally, it is encouraging to observe that countries can change their attitudes toward language minorities. For example, France, which, as noted earlier, usually does not support granting language rights to minorities, in recent years has enacted legislation and devoted resources to preserve and promote its own regional languages as part of the cultural heritage of the nation (Määttä, 2005). It remains to be seen whether further language legislation to enhance the language rights of minorities in the EU and/or within member states will follow in years to come.

Revising the Treaty of Lisbon Regarding the Linguistic Rights of Minority Languages The EU’s respect for Europe’s “linguistic diversity” does not shine evenly on all of the languages spoken in the EU…Certain of the Regulation languages are more respected than others. Languages which are not Regulation languages – the minority and regional languages of the Member States – are the neglected stepchildren of the EU. Most of these languages are culturally and economically marginalized, and the EU’s attention to “linguistic diversity” is often motivated by the desired to increase economic cohesion by encouraging the importers and exporters of tomorrow to learn the main languages of commerce. (Creech, 2005, pp. 10–11)

An alternative legal approach that might better address the need of language minorities in the EU is to provide in future revisions of the Treaty of Lisbon de jure language that specifically defines the status and use of regional minority languages and widely spoken immigrant languages (see Chapter 5). This would help solve conflicts between speakers of majority and minority languages (see Faingold, 2004, 2007; see also Faingold,

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2012a, 2012b, 2013, 2014, 2016b, 2018, for de jure language hindering the language rights of minorities in the United States). A future treaty between EU member states could start by revising Article 5b of the Treaty of Lisbon, which aims to combat discrimination in the EU: Title II Provisions having general application, Article 5b In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. (author’s emphasis added; European Union, 2007)

Note that Article 5b targets nearly every existing minority for protection against discrimination (sex, race, ethnicity, religion, disability, age, and sexual orientation) except language. Similarly, in the United States, Title VII of the Civil Rights Act of 1964 was established by the U.S. Congress to protect minorities from discrimination, and it also mentions many classes except language (Faingold, 2012b, 2018): Title VII—Discrimination because of race, color, religion, sex, or national origin It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin (emphasis added); or (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin (emphasis added). (Civil Rights Act, 1964)

In U.S. courts, language discrimination cases in which the term “national origin” has been employed as a stand-in for “language” have yielded mixed outcomes of litigation (Del Valle, 2003; Faingold, 2006, 2016b, 2018). This is because the Civil Rights Act does not define the right of language minorities de jure and allows judges to have a lot of leeway in making decisions in favor or against defendants and plaintiffs in language discrimination cases (Faingold, 2006, 2011, 2016b, 2018). In the United States, a future amendment to the Civil Rights Act, the U.S. Constitution,

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or individual state constitutions may redefine the term “national origin” to include “language” de jure, or perhaps add “language” to the protected categories of “race, color, religion, sex, or national origin” (Faingold, 2012b, 2018). Thus, although the Civil Rights Act explicitly targets national origin, along with racial, sexual, and religious, minorities for protection against discrimination, it is unclear as to what languages and linguistic practices are covered under the notion of “national origin.” In the EU, to target language minorities for protection, a future amendment to the Treaty of Lisbon could add “language” to the protected categories of sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation. Finally, future EU treaties could emulate language legislation found in multilingual countries that recognize the linguistic rights of minorities as fundamental rights (e.g., India and South Africa) and draft legislation to protect their language rights (de Varennes, 1996). One cannot stress enough the need to target for protection and promotion in future EU treaties not only official and working languages but also regional languages (Faingold, 2007) and immigrant languages spoken by large numbers of speakers (May, 2003), by paying heed to EU pronouncements designed to support minority languages, such as the European Charter for Regional or Minority Languages (Council of Europe, 1992) and the Civil Society Platform on Multilingualism (European Union, 2011).

Conclusion The Treaty of Lisbon singles out the official and working languages of the EU but offers no legal protections to minority languages, regional or immigrant, for promotion. Like the Draft Constitution, the Treaty does less to protect the rights of linguistic minorities than previous pronouncements and bodies of the EU, including the European Charter for Regional or Minority Languages, the Framework Convention for the Protection of National Minorities, the EBLUL, and the ECHR. Like Chapter 2, this chapter favored an alternative legal approach that might better address the needs of language minorities in the EU in future revisions of the Treaty of Lisbon: de jure language that specifically defines the status and use of regional minority languages and widely spoken immigrant languages, e.g., revising Article 5b of the Treaty of Lisbon which aims to combat discrimination in the EU by singling out nearly every existing minority for protection against discrimination (sex, race, ethnicity, religion, disability, age, and

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sexual orientation) except language. A future amendment to the Treaty of Lisbon could add “language” to the protected categories mentioned above, to protect language minorities.

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PART II

Language Legislation in European Union Member States

CHAPTER 4

Language Rights and the Law in Catalonia

Abstract This chapter examines the language rights of linguistic minorities (e.g., Catalan, Galician, and Basque) in Spain vis-à-vis the Spanishspeaking majority with special focus on Catalan-speakers in Catalonia. Legal discourses as stated in the Catalonia Statutes of Autonomy of 1979 and 2006 and the Spanish Constitution of 1978 are exhaustively studied. The chapter also analyzes the ruling of the Constitutional Court of Spain of 2010 which annulled or reinterpreted articles of the Statute of Catalonia of 2006, including Article 6.1, which declares Catalan as the “preferential” language of Catalonia. The chapter offers suggestions for improving language rights for speakers of Catalan, both within the Spanish state and the European Union, to help de-escalate language conflict between Catalonia and the Spanish state. For example, the two sides may seek to amend Catalonia’s Statutes of Autonomy, as per Article 148 of the Spanish Constitution, which provides the legal mechanisms for expanding language rights for Speakers of Catalan in Catalonia. Keywords Catalonia · Statute of Autonomy · Spanish Constitution · Language rights · Regional minorities

More than three centuries before the marriage of Isabella I of Castile and Ferdinand II of Aragon in 1469, and the subsequent fusion of the crowns of Castile and Aragon that followed the alliance of the Catholic Monarchs, the © The Author(s) 2020 E. D. Faingold, Language Rights and the Law in the European Union, https://doi.org/10.1007/978-3-030-33012-5_4

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Principality of Catalonia was the senior partner in a strategic compact with the Crown of Aragon which ruled the Mediterranean politically, militarily, and commercially (Azevedo, 2009; Davies, 2012). Even at this early stage of its history, much like a modern state, Catalonia had clearly articulated political, military, and economic goals as well as its own Romance language, Catalan. In the aftermath of the fusion of the two kingdoms, however, Catalonia lost a great deal of political and military autonomy. Nevertheless, it succeeded in keeping its own constitution and government system as well as some of its economic and cultural institutions intact. For example, it kept the right to produce its own currency, to tax its subjects, and to have a Catalan university taught in Catalan (Rovira-Martínez, 2013). In the War of Spanish Succession (1701–1714), Catalonia fought on the losing side against France and Spain. After 1714, Catalonia’s Parliament, government, mint, and university were closed down. Its system of provincial tariffs was abolished, and, most importantly, the use of Catalan by all state institutions, schools, courts, churches, including all book publishing, was banned. The Castilian language and institutions would then dominate Catalonia for more than two hundred years, leading to the decline of Catalan (Davies, 2012; Rovira-Martínez, 2013; Tree, 2013). During the second half of the nineteenth century and into the turn of the twentieth century, Catalan language and culture experienced a fast-paced process of recovery as a result of increasing Catalan nationalism and the accompanying political activities of its leading writers and politicians. This movement, known as the Renaixença, which encouraged Catalan writers to write in their language, which had barely been used for more than two centuries, became the main thrust of a Catalan cultural rebirth. The Renaixença movement became a force for political change that stressed not only Catalonia’s nationalist and cultural aspirations but also the desire to keep a separate identity. Catalonia’s quest for a separate national identity would antagonize the Spanish central government in Madrid for many years to come (Castro, 2013; Mar-Molinero, 2000). At the end of the Spanish Civil War (1936–1939), in which Catalonia again fought on the losing side, the use of Catalan in public and the production and public consumption of Catalan culture were prohibited by General Franco’s dictatorship for more than forty years. As Tree puts it: Franco and the regime he was about to spawn perceived Catalonia to be the single greatest threat to Spanish unity precisely because of the vitality of Catalan, a language he immediately banned everywhere outside the home (though

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even at home one could be arrested for having books in Catalan). Catalan literature had to be published abroad or in clandestine or semi-clandestine form within Catalonia itself. The distribution networks, the magazines, the reviews, and the public debates that had kept the literature so very much alive disappeared completely. (Tree, 2013, p. 151)

In the mid and late 1970s, during the transition from dictatorship to democracy that followed the death of General Franco (1975), Catalonia started to recover its political autonomy, cultural institutions, and linguistic rights (Azevedo, 2009; Connolly, 2013; Pons Parera, 2015). After months of arduous negotiations between the Spanish central government in Madrid and the many regions within Spain, major compromises were made by all sides and a new Spanish Constitution was enacted (Spanish Constitution, 1978). The political establishment and the population of Catalonia, including the majority of the Catalan nationalist movement, participated in the whole process of transition from dictatorship to democracy, playing an enthusiastic and active role in the discussion and preparation of the Spanish Constitution (1978) which led to the establishment of what is now the Self-governed region of Catalonia. The new Spanish Constitution was approved by 90.5% of the votes cast in Catalonia when it was put to vote in a referendum, with the support of the vast majority of the Catalan nationalist movement, which not only participated in the committee that edited the text of the Spanish Constitution, but also campaigned for a “yes” vote (Humlebæk, 2015; Perales-García, 2013; Ruipérez-Alamillo, 2013). The new Spanish Constitution granted the regional governments, including Catalonia, extensive autonomous powers hitherto denied by the Franco regime (Bartkus, 1999; Mar-Molinero, 2000; Pons Parera, 2015; Woolard, 2016; Wright, 1999). Article 148 of the Spanish Constitution declares that Autonomous communities can take over the responsibility for urban and territorial planning; public works; railways and roads which start and end inside the territory; non-commercial ports and airports; agriculture and livestock; forestry; protection of the environment; hydraulic planning, including spas; hunting, and coastal and inland fishing; internal trade fairs; economic development of the autonomous community, in the framework of general economic policy; handicrafts; museums, libraries and music conservatories; monuments and historical heritage; culture, research and the teaching of the Self-governing Community’s language; tourism; sport; social assistance; health and hygiene. (Spanish Constitution, 1978)

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With the exception of not being able to create its own tax system, or enact an immigration and foreign policy, the region of Catalonia is self-governed (Desquens, 2003). With more than 10 million speakers, Catalan constitutes the largest regional minority language in Europe, and is spoken not only across eastern Spain in Catalonia, the Balearic Islands, Valencia, Aragon, and Murcia but also in France, Andorra, and Sardinia in Italy. In spite of its large size and spread, however, Catalan has no national status in any EU country, including, most importantly, Spain, nor is Catalan an official language of the European Union (Faingold, 2015, 2016a; Pons Parera, 2015; see Chapters 2 and 3). Spain, a EU country with important linguistic regional minorities (i.e., Basque, Catalan, and Galician), but with no significant nonSpanish-speaking immigrant minorities living within its territory (ZapataBarrero, 2006, 2010), provides a unique opportunity for focusing on the study of language rights and language policy for regional minorities in a European context, such as the Catalan in Spain. This chapter examines the linguistic rights of Catalonia as stated in its Statutes of Autonomy of 2006 (hence Statute of 2006) (Parliament of Catalonia, 2006) and 1979 (hence Statute of 1979) (Statute of Sau, 1979) and the Spanish Constitution (1978). It also analyzes the ruling of the Constitutional Court of Spain of 2010 (Constitutional Court of Spain, 2010) which annulled or reinterpreted articles of the Statute of 2006, including Article 6.1 which declares Catalan as the “preferential” language of Catalonia. The chapter offers some suggestions for improving language rights for speakers of Catalan within the Spanish state and the European Union, to help de-escalate language conflict between Catalonia and the Spanish state.

Language Rights in the Spanish Constitution and the Statute of Catalonia of 1979 Clause 1 of Article 3 of the Spanish Constitution declares Castilian as the official language of Spain. Clause 2 recognizes the official status of regional languages in the respective Self-governed regions. Thus, the Spanish Constitution allows the use of Castilian in all the Spanish territory, while the use of regional languages is limited to the Self-governing regions.

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Article 3 1. Castilian is the official Spanish language of the State. All Spaniards have the duty to know it and the right to use it. 2. The other Spanish languages shall also be official in the respective Selfgoverning Communities in accordance with their Statutes. (Spanish Constitution, 1978)

Similarly, Article 3 of the Statute of Catalonia of 1979 (Statute of Sau, 1979) states that Catalan is the language of Catalonia and declares that Catalan and Spanish are the official languages of Catalonia. It protects the right of speakers of Catalan and Spanish in Catalonia to use and learn both languages. It also declares that the state has an obligation to ensure language equality between Catalan and Spanish in Catalonia. Article 3 1. The language of Catalonia is Catalan. 2. The Catalan language is official in Catalonia, as also is Spanish, which is official throughout the Spanish State. 3. The Government of Catalonia will ensure the normal and official use of both languages, will take the measures necessary in order to ensure knowledge of them, and will create the conditions making it possible for them to achieve full equality in terms of the rights and duties of citizens of Catalonia. (Statute of Sau, 1979)

In the aftermath of the approval of the Statute of 1979, the use of Catalan grew rapidly in Catalonia, as a language training scheme was established to teach Catalan to civil servants who were expected to acquire an increasingly satisfactory level of oral and written proficiency in this language to earn promotions. This was the first step toward an ambitious revitalization project for the Catalan language which aimed to ensure that Catalan is spoken by government officials, to achieve active and literate bilingualism in its schools, to provide access to language training on demand for adults, and to motivate the population of Catalonia to participate in the recovery of the public use of Catalan (Bartkus, 1999; Woolard, 2016; Wright, 1999).

Language Rights in the Statute of Catalonia of 2006 Since 2000, José María Aznar’s Partido Popular (PP) conservative government in Madrid launched a strong recentralization process, the so-called

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“Second Transition,” which was strongly resented throughout Spain, especially in Catalonia. As a reaction, in 2003, the Catalan elections were won by the left which had promised to pass a new statute that would protect Catalonia’s self-government. In 2006 the Catalan Parliament voted to amend the Statute of 1979 by a vote, with 88.8% voting in favor of the approval of the new Statute. The amended Statute was subsequently approved by the Parliament in Madrid. On March 30, 2006, the Congress vote margin was of 204 in favor and 146 against. Then, on May 10, the Senate approved the amended Statute. On June 18, 2006, a regional referendum in Catalonia approved the new Statute by a vote margin of 73.2% in favor and 20.6 against. It became Organic Law a day after the referendum and came into effect on August 9 of that year (Humlebæk, 2015). The new Statute expanded the powers of the regional government, declared Catalan as the language of “normal and preferential use,” and, in a turn that was perceived as a provocation by the Spanish government in Madrid and by the Castilian establishment, upgraded the status of Catalonia to that of a “nation.” The preamble of the Statute of 2006 notes a vote in the Catalan parliament which declared Catalonia as a nation. The new Statute’s major innovation is that it contains the foundations for a new model of regional financing and a provision for the state to invest in infrastructure (Noguer & Piñol, 2010). Article 6.1 of the new Statute upgrades the position of Catalan from a language of “normal and official use” in the Statute of 1979 to a language of “normal and preferential use” in the Statute of 2006, a move that may be deemed unconstitutional as applied, “enforced in a way that impermissibly restricts…the exercise of constitutional rights” (Scheb II, 2015, p. 59). Paragraphs 2, 3, and 4 of Article 6 state that both Catalan and Spanish are the official languages of Catalonia and provides provisions to protect these languages. They also seek to obtain official status for Catalan within the European Union and other international organizations, and to promote communication and cooperation between Catalonia and other Spanish regions that share a linguistic heritage with Catalonia: Article 6 – Catalonia’s own language and official languages 1. Catalonia’s own language is Catalan. As such, Catalan is the language of normal and preferential use in Public Administration bodies and in the public media of Catalonia, and is also the language of normal use for teaching and learning in the education system.

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2. Catalan is the official language of Catalonia, together with Castilian, the official language of the Spanish State. All persons have the right to use the two official languages and citizens of Catalonia have the right and the duty to know them. The public authorities of Catalonia shall establish the necessary measures to enable the exercise of these rights and the fulfilment of this duty. In keeping with the provisions of Article 32, there shall be no discrimination on the basis of use of either of the two languages. 3. The Generalitat and the State shall undertake the necessary measures to obtain official status for Catalan within the European Union and its presence and use in international organizations and in international treaties of cultural or linguistic content. 4. The Generalitat shall promote communication and cooperation with the other communities and territories that share a linguistic heritage with Catalonia. To this end, the Generalitat and the State may, as appropriate, sign agreements, treaties, and other collaboration instruments for the promotion and external dissemination of Catalan. (Parliament of Catalonia, 2006)

Articles 32 and 33 proclaim the linguistic rights of individuals living in Catalonia, and the obligations of the state of Catalonia toward its citizens, to use either Catalan or Spanish in dealings with the legal system and with public administration bodies and state institutions. Article 32 – Rights and obligations concerning the knowledge and use of languages Each individual has the right not to be discriminated against for linguistic reasons. Legal acts executed in either of the two official languages have, in linguistic terms, full validity and effect. (Parliament of Catalonia, 2006) Article 33 – Linguistic rights and dealings with public administration bodies and state institutions 1. Citizens have the right to linguistic choice. In their relations with institutions, organizations and Public Administration bodies in Catalonia, each individual has the right to use the official language of his or her choice. This right binds public institutions, organizations and administration bodies, including the electoral administration in Catalonia, and, in general, any private bodies depending on them when exercising public functions. (…) 5. The citizens of Catalonia have the right to communicate in writing in Catalan with the constitutional entities and with the State-wide jurisdictional bodies, in accordance with the procedures established by the corresponding

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legislation. These institutions shall attend to and process written communications in Catalan, which shall have in all cases, full legal validity. (Parliament of Catalonia, 2006)

Articles 34 and 35 proclaim the linguistic rights of individuals living in Catalonia, and the obligations of the state of Catalonia toward its citizens, to use either Catalan or Spanish as consumers, in business transactions, and in the field of education. Article 34 – Linguistic rights of consumers and users Each individual, in his or her capacity as user or consumer of goods, products and services, has the right to be attended orally or in writing in the official language of his or her choice. Bodies, companies and establishments that are open to the public in Catalonia are bound by the obligation of linguistic availability within the terms established by law. (Parliament of Catalonia, 2006) Article 35 – Linguistic rights in the field of education 1. Each individual has the right to receive an education in Catalan, as established in this Estatut. Catalan shall be used as the teaching and learning language for university and non-university education. 2. Pupils have the right to receive an education in Catalan at the nonuniversity level. They also have the right and obligation to have a sufficient oral and written knowledge of Catalan and Castilian upon completing compulsory education, whatever their habitual language of use when starting their education. The Catalan and Castilian languages shall be sufficiently represented in the curricula. (Parliament of Catalonia, 2006)

Ruling of the Constitutional Court of Spain and Catalonia’s Bid for Secession Soon after the Statute of 2006 was approved by the parliament of Catalonia, Spain’s conservative party, Partido Popular (PP), with the backing from the central government in Madrid, filed a lawsuit challenging the constitutionality of the new Statute (Connolly, 2013). In 2010, after four years of deliberations, the Constitutional Court annulled or reinterpreted 14 and 27 articles of the Statute respectively. Many of these articles are related to the use of Catalan in Catalonia.

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The Constitutional Court abolished preferential status for Catalan in administration, public mass media, and education (Article 6.1). It ruled that Article 6.1 is unconstitutional because the Statute of 2006 declares that Catalan is the language of “preferred” use of public administration and the media in Catalonia. The court reasoned that, unlike the notion of “normality,” the concept of “preference” transcends the mere description of a linguistic reality and grants priority to one language (Catalan) over another (Castilian), to the detriment of the balance between two equally recognized official languages. In addition, the Constitutional Court ruled that the rights of citizens to know and use Catalan in public (Article 6.2), to address constitutional bodies and the Spanish judiciary in Catalan (Article 33.5), to correspond as consumers or users in any of the official languages (Catalan, Occitan, and Castilian), to use Catalan in public (Article 34), and to receive an education in Catalan (Article 35.1 and the first statement in Article 35.2) are not necessarily unconstitutional but should be subject to further interpretation by the courts. Thus, the Constitutional Court ruled that The words “and preferred” in paragraph 1 of Article 6 are unconstitutional and therefore null…The following provisions:…paragraph 2 of Article 6…; paragraph 5 of Article 33…; Article 34…; paragraph 1 and the first sentence of paragraph 2 of Article 35…are not unconstitutional, provided that they are interpreted in the terms established in the corresponding legal basis indicated. (Constitutional Court of Spain, 2010, pp. 276–287, 394–395, author’s translation)

With the exception of the conservative Partido Popular (PP), the political establishment of Catalonia reacted negatively to the ruling of the Constitutional Court (Castro, 2013). Immediately after the ruling was issued, Catalonia’s President José Montilla appeared before the media to express his disappointment and indignation and called the Catalan people to demonstrate against the Constitutional Court’s ruling, which was also criticized by most Catalan parties. Artur Mas, leader of Convergència i Unió (CiU, Catalan pro-autonomy party) joined Montilla’s call for demonstrations against the ruling. Joan Puigcercós, leader of Esquerra Republicana de Catalunya (ERC, pro-independence leftist party), declared that his party would not comply with the ruling. The Constitutional Court’s decision resulted in large demonstrations organized by Catalan nationalists in Barcelona from December 2009 until

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April 2011. In the aftermath of these demonstrations, Catalan nationalists organized a series of non-binding referenda in which the majority of voters supported Catalonia’s secession from Spain. After another large demonstration in favor of secession in Barcelona on September 11, 2012 (National Day of Catalonia), the government of Catalonia voted in favor of holding a referendum on Catalan independence (Sanchiz, 2013). In January 2013, it adopted a declaration of sovereignty proclaiming Catalonia’s right to self-determination as a sovereign nation. Inspired by secessionist developments in Scotland, Catalonia decided to have its own referendum on independence (Bosch, 2013). There is a distinct difference between Scotland and Catalonia: Scotland is considered a nation by the government of the UK, with its own parliament and full powers over its budget, education, health, and justice systems, and its official national sports teams compete internationally, while the Spanish government has yet to recognize Catalonia’s status as a nation (Solano, 2013). The issue of whether Catalonia would secede from Spain was scheduled to be put to a vote in a referendum on November 9, 2014 (Connolly, 2013). In the aftermath of the decision to hold an independence referendum, the Spanish government, which strongly opposed it, called the referendum unconstitutional and illegal and blocked it in court. Article 149 of the Spanish Constitution gives the Spanish state exclusive power over the holding of referenda. Article 149 1. The State shall have exclusive competence over the following matters: (…) 32. Authorization of popular consultations through the holding of a referendum. (Spanish Constitution, 1978)

In the fall of 2014, Catalonia’s referendum on independence suffered a double blow. First, on September 18, in an independence referendum watched closely by secessionists in Catalonia, Scottish voters chose to stay in the UK by a vote margin of 55% against independence and 45% in favor. Then, a few days later, on September 29, Spain’s Constitutional Court suspended Catalonia’s independence referendum that had been scheduled for November 9, 2014. The decision handed by the Constitutional Court was no idle threat, since Article 8 of the Spanish Constitution allows the

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Spanish state to intervene militarily in its territory “to defend its territorial integrity and the constitutional order”: Article 8 The mission of the Armed Forces, comprising the Army, the Navy and the Air Force, is to guarantee the sovereignty and independence of Spain and to defend its territorial integrity and the constitutional order. (Spanish Constitution, 1978)

In the aftermath of the Constitutional Court’s decision, to avoid a constitutional crisis, Catalonia’s government started to play down all secessionist talk in the region and to backpedal on its decision to hold an independence referendum. Instead, it decided to hold an unofficial, nonbinding, mostly symbolic, poll on the same day in which the independence referendum had been scheduled, November 9, 2014. Results showed that 80% of the voters want Catalonia to be independent. However, compared with Scotland’s referendum, in which 85% of residents participated, voter turnout was much lower in Catalonia. Less than half of eligible voters showed up to vote on poll date in a region of 7.5 million. Nevertheless, this was the biggest show of support in favor of independence ever experienced in Catalonia (http://www.npr.org/blogs/parallels/2014/ 11/10/362952892/referendums-outcome-indicates-catalonias-desirefor-independence). Emboldened by the 2014 poll results, the Government of Catalonia called again for a new independence referendum to take place on October 1, 2017, but on September 7, as requested by the Spanish government, the referendum was declared illegal and suspended by the Constitutional Court of Spain. This time, however, in spite of the ruling of the Constitutional Court, Catalonia decided to go ahead with the referendum. Not surprisingly, the High Court of Justice issued immediate orders to the police to prevent the referendum and to detain various officials responsible for its preparation. On the day of the referendum, the Mossos d’Esquadra (Catalonia’s police) refused to act and, as a result, the Spanish National Police and Guardia Civil intervened and raided several polling stations soon after they opened. On October 27, the Catalan parliament upped the ante and issued a formal declaration of independence from Spain and the founding of an independent Catalan Republic. “Thus, waving their declaration of independence like a red rag to a bull, the Catalan parliament…dared Mariano

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Rajoy (Spain’s prime minster) to do his worst” (The Guardian, October 27, 2017). This month (November 2018), Spain’s attorney general formally charged (Oriol Junqueras, deputy leader of Catalonia) and (17) other secessionist leaders with rebellion and misuse of public funds, among other crimes, for their role in the referendum last year that had been declared unconstitutional, and in the declaration of independence that followed…Mr. Junqueras…could spend 25 years in prison if declared guilty…He and other Catalan separatist leaders were jailed shortly after being ousted by the Spanish government on October 2017. Since then, while they have remained behind bars, the secessionist conflict has festered and continued to split Catalan society, while also threatening Spain’s political stability…The Catalan leader’s trial will be a significant test for Spain’s judiciary, which is under pressure from hard-liners to deliver tough prison sentences that could serve as precedent for any other groups who might seek to break from Spain in the future…The separatists’ trial, expected to start in 2019, is also taking place in exceptional circumstances because the main protagonist of last’s year political turmoil – Charles Puigdemont, the former leader of Catalonia – has successfully resisted Spanish attempts to have him extradited to Madrid. He had fled to Brussels in October 2017, alongside a handful of other members of his Spanish cabinet, after the central government in Madrid ousted him and briefly placed Catalonia under direct rule. (The New York Times, November 28, 2018)

Catalonia’s Secession in Constitutional and International Law As Bartkus puts it: Secession is the formal withdrawal from an established, internationally recognized state by a constituent unit to create a new sovereign state. The decision to secede represents an instance of political disintegration, when the citizens of a sub-system withdraw their political activities from the central government to focus them on a center of their own…Secession is disintegrative in the most fundamental sense: it involves not the overthrow of existing government institutions, but rather the territorial dismemberment of the state…Secession by its very nature, raises the basic question of justification. (Bartkus, 1999, pp. 3–4)

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In some regions of the world, the right of subnational units to unilaterally secede is enshrined de jure in the constitution. For example, Article 50 of the Treaty of Lisbon establishes the right of its member states to secede: Article 50 Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. (European Union, 2007)

The Treaty of Lisbon grants total and absolute legitimacy to the independence aspirations of the citizens of the European Union. Similarly, Article 72 of the USSR Constitution, in the now defunct Soviet Union, established the right of its member republics to secede unilaterally. Article 72 Each Union Republic shall retain the right freely to secede from the USSR. (Soviet Union Constitution, 1977)

On the other hand, in North America, the constitutions of both the United States and Canada show provisions neither authorizing nor prohibiting the secession of states or provinces. Both constitutions are silent on this issue. Yet, secession was deemed unconstitutional by the United States Supreme Court (Texas v. White, 1869) and the Supreme Court of Canada (Reference re Secession of Quebec, 1998) respectively. In Texas v. White (1869), the United States Supreme Court decided that when Texas became one of the United States, it entered into an indissoluble relation. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States. Similarly, in Reference re Secession of Quebec (1998), an advisory opinion by the Supreme Court of Canada concluded that the Canadian province of Quebec does not possess a unilateral right to secede under either domestic or international law. Further, under domestic law, as declared in Canada’s Clarity Act (2000), Quebec’s right to secede would require an amendment to the Constitution of Canada (Connolly, 2013). In contrast, in the Spanish Constitution, the right to secede of Spain’s Self-governing regions is strictly prohibited de jure. Article 2 of the Spanish Constitution declares the indissoluble and indivisible character of the Spanish nation.

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Article 2 The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognizes and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them all. (Spanish Constitution, 1978)

Article 2 of the Spanish Constitution explicitly prohibits its selfgoverning communities from seceding (“indissoluble unity of the Spanish nation”). Recall that Article 8 of the Spanish Constitution declares that the Armed Forces of Spain are in charge of protecting the territorial integrity and the constitutional order of the nation (“defend its territorial integrity and the constitutional order”), presumably in case one or more Self-governing regions threatens to secede from the Spanish nation unilaterally or Spain is attacked by a foreign power. Clearly, the Spanish Constitution grants the Spanish state strict de jure rights of sovereignty over its Self-governing regions. Hence, a Selfgoverning region, such as Catalonia, the Basque Country, Galicia, etc., does not seem to possess the unilateral right of secession under domestic law. A legal way to introduce the right of secession in Spanish law would be through the opening of a new constitutional process, leading to the creation of a new federal state in which the right to secede is explicitly stated (Ruipérez-Alamillo, 2013), as it happened when the Czech and Slovak republics were created and dissolved their association by mutual agreement (Beiner, 1998; Philpott, 1998). This is unlikely to happen anytime soon in Spain, since “neither the Spanish State nor its Castilian national majority have ever accepted that Spain could become (again) a federal state” (Vila, 2013, p. 36). “The exit of Catalonia from Spain is not legally feasible in the current constitutional framework, and…this framework is extremely difficult to change” (Balcells, 2013, p. 47). The secession of Catalonia from Spain can be further complicated by a strong consensus among scholars of international law against violating the principle of territorial integrity of states enshrined in the UN Charter, which, in most instances, delegitimizes the right to secede against the will of an existing state (Dugard, 2013; Horowitz, 1998; Pazartzis, 2006; Ruipérez-Alamillo, 2013). According to the majority of international law jurists, secession is a “qualified right” (Dugard & Raiˇc, 2006, p. 94). That is, lacking widespread or serious violations of the fundamental rights of a sub-national group by the nation, there is no unilateral right to secede from it. Before secession can be on the table, all effective and peaceful remedies

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have to be exhausted (Connolly, 2013; Dugard, 2013; Dugard & Raiˇc, 2006; Suksi, 2004). It is worth noting that in a few cases unilateral secession succeeded against the wishes of a parent state in certain contexts, for example in the former Republic of Yugoslavia (Horowitz, 1998; Nielsen, 1998; Moore, 1998). While the constitution of the now defunct state of Yugoslavia prohibited secession de jure, the secession of Croatia succeeded in no small measure because it was unilaterally recognized by Germany, a major European power, and other countries, against the wishes of Yugoslavia (Jovanovic, 2002). To be fair, in the case of Yugoslavia there were clear violations of fundamental human rights, which made recognition of Croatia’s right to secede, if not legal, at least palatable to the international community (Dugard, 2013; Dugard & Raiˇc, 2006). International law would most likely not recognize Catalonia’s right to secede unilaterally from the Spanish state (Connolly, 2013; Dumberry, 2006; Marchildon & Maxwell, 1992). This is because Spain is not a violator of the fundamental rights of the Catalan people. On the contrary, as we have seen, Spain gave Catalonia and the other Self-governing regions a high degree of autonomy and devolution rights through the Spanish Constitution and the Statute of 1979. Hence, neither Catalonia, nor any of the other Self-governing regions, appears to possess a unilateral right to secession under international law. As Connolly succinctly puts it: A successful secession shrinks the territorial reach of the former parent state’s sovereign authority and establishes a new sovereign in its place. At its most extreme, one or more successful secessions might trigger the dissolution (i.e., the legal extinction) of the former parent state, as was the case with Yugoslavia in the 1990s…In fact, in the post-colonial era, it would appear that the right to self-determination never amounts to a unilateral right to secede…There is little support for the proposition that a right to external self-determination exists beyond the colonial context. Even the former colonies, having achieved independence under the banner of self-determination, promptly rejected the notion that the right might be used to adjust their own borders…International law does not grant (Catalonia) a unilateral right to secede. At most, it delineates how independence may be achieved through referendum and negotiation. This position is consistent with international law’s inherent deference to state sovereignty and territorial integrity. (Connolly, 2013, pp. 68–78)

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Improving Language Rights in Catalonia As the previous section argued, Catalonia does not seem to possess a unilateral right to secession under either domestic or international law. However, Catalonia’s possible course of action to protect the rights of its citizens does not need to be limited to either choosing unilateral secession or maintaining the current status quo between the Self-governing region and the Spanish state. The two sides may seek to negotiate a mutually agreed expansion of devolution powers for Catalonia (Connolly, 2013; Desquens, 2003; Dumberry, 2006; Horowitz, 1998; Marchildon & Maxwell, 1992; Pazartzis, 2006; Suksi, 2004). The central government in Madrid needs “to allow an open debate that might facilitate the smoothing of tensions between the center and the periphery” (Perales-García, 2013, p. 110), a debate which, until now, has been rejected by both major political parties, socialist and conservative, in Spain. Most importantly, Spain needs to allow for referenda to take place, whether binding or non-binding, as permitted by paragraph 32 of Article 149 of the Spanish Constitution (see above), to avoid antagonistic nationalism and feelings of resentment among linguistic minorities vis-à-vis the majority. Article 148 of the Spanish Constitution provides the legal mechanism necessary to start a discussion about expanding language rights for Catalonia: Article 148 After five years, the Self-governing Communities may, by amendment of their Statutes of Autonomy, progressively enlarge their powers within the framework laid down in section 149. (Spanish Constitution, 1978)

As permitted by Article 148 of the Spanish Constitution, one possible course of action could be to negotiate a mutually agreed expansion of certain linguistic powers for Catalonia within the Spanish state. For example, to produce official translations from Castilian into Catalan of state documents that could have an important impact on the population of Catalonia (e.g., the Constitutional Court’s decision of 2010). Another option, although constitutionally more complicated, would be for speakers of Catalan to be allowed to communicate with Spain’s national state institutions, and to receive communications of importance to Catalonia, in Catalan (see Article 3 of the Spanish Constitution which strictly limits the use of regional languages to the Self-governing regions). Finally, the Spanish state could allow

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Catalonia to support the dissemination of the Catalan language and culture in Spanish regions (Valencia, Balearic Islands) and even foreign countries (Andorra, Roussillon region of France, Sardinian city of Alghero) that share a Catalan cultural and linguistic heritage (see above Article 6.4 of the Statute of 2006 which proposes to do just that). Here too, constitutional complications may arise because of Article 3 of the Spanish Constitution which limits the use and maintenance of regional languages to the Selfgoverning regions. Another possible course of action could be to seek expanded language rights within the European Union for certain Self-governing regions (see Article 6.3 of the Statute of 2006 which proposes to do just that). In 1991, the European Parliament considered granting official status to Catalan and other languages spoken widely in the EU; and in 1994 the European Parliament recommended that the EU enact legislation allowing the use of minority languages in education, justice, public administration, and the media (see Chapter 3). In the aftermath of these declarations, the European Parliament took some steps to improve the status of certain regional minority languages that have official or devolved status in their own countries, including Catalan, Basque, and Galician in Spain (Ammon, 2006; de Swaan, 2001). For example, in 2006 Spain made an agreement with EU institutions and bodies allowing official EU documents to be translated into Basque, Catalan, and Galician, for which the Spanish government agreed to pay (Guliyeva, 2013; Romaine, 2013; Spongenberg, 2006; see Chapter 3). The right to translate official documents into Basque, Catalan, and Galician, and the right to communicate with the European Parliament using official minority languages, are clearly steps in the right direction to improve the linguistic rights of speakers of Spanish co-official languages in the Selfgoverning regions (Baxter, 2013; European Union, 2011; Romaine, 2013; Wright, 2009; see Chapter 3). Further, in future revisions of the Treaty of Lisbon (European Union, 2007; Piris, 2010), the EU may produce de jure wording that might better address the status and use of regional minority languages in the European Union. This could help solve conflicts between speakers of majority and minority languages in communication with EU institutions as well as within member states which contain minority populations speaking regional official languages, such as Spain (Faingold, 2004, 2007, 2015, 2016a, 2018). For example, Article 5b of the Treaty of Lisbon, which aims to combat discrimination in the EU, may be revised to target language minorities for protection, adding “language” to the other protected categories of

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sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation (Faingold, 2012b, 2015; see Chapter 3). Addressing the language rights of speakers of major regional official languages, as well as other minority languages in Europe, appears to be a politically urgent issue for not only Catalan but also Basque and Galician in the EU today (Phillipson, 2003). Not addressing such conflicts may exacerbate existing claims for self-determination or secession by speakers of minority languages in Spain and other countries of the European Union (e.g., Belgium) (Faingold, 2015; Nic Craith, 2006). Finally, in the European Union, lack of regional participation “has the potential for disconnect between powers devolved to regions within their respective parent states and competency areas falling under the umbrella of the EU: a region might have authority over a particular issue at the domestic level but be unable to fully participate in EU policymaking concerning that issue” (Connolly, 2013, p. 81).

Conclusion This chapter argued that neither Catalonia nor any other Self-governing region in Spain seems to possess a unilateral right to secession under either domestic or international law, and that to protect the rights of its citizens, Catalonia does not need to be limited to either choosing unilateral secession or maintaining the current status quo between the Self-governing region and the Spanish state. I argued that the two sides can negotiate a mutually agreed expansion of devolution powers for Catalonia (or any other Selfgoverning region in Spain), as permitted by Article 148 of the Spanish Constitution. I argued also that the central government in Madrid can allow referenda to take place, as permitted by paragraph 32 of Article 149 of the Spanish Constitution. Finally, I suggested language policy changes that can help ease out antagonistic nationalism and feelings of resentment among the Catalan minority and the Castilian majority, for example, producing official translations from Castilian into Catalan of state documents that could have an important impact on the population of Catalonia; allowing speakers of Catalan to communicate with Spain’s national state institutions, and to receive communications of importance to Catalonia, in Catalan; allowing Catalonia to support the dissemination of the Catalan language and culture in Spanish regions and foreign countries that share a Catalan cultural and linguistic heritage; and by seeking expanded language rights within the political institutions of the European Union.

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Dumberry, P. (2006). Lessons learned from the Quebec secession reference before the Supreme Court of Canada. In M. G. Kohen (Ed.), Secession: International law perspectives (pp. 416–451). Cambridge, UK: Cambridge University Press. European Union. (2007). Treaty of Lisbon amending the treaty on European Union and the treaty establishing the European Community. Official Journal of the European Union, 50, 2007/C 306/01. European Union. (2011, June 6). Civil society platform on multilingualism: Policy recommendations for the promotion of multilingualism in the European Union. Brussels, Belgium: European Union. Faingold, E. D. (2004). Language rights and language justice in the constitutions of the world. Language Problems and Language Planning, 28, 11–24. https:// doi.org/10.1075/lplp.28.1.03fai. Faingold, E. D. (2007). Language rights in the 2004 draft of the European Union Constitution. Language Problems and Language Planning, 31, 25–36. https:// doi.org/10.1075/lplp.31.1.03fai. Faingold, E. D. (2012a). Official English in the constitutions and statutes of the fifty states in the United States. Language Problems and Language Planning, 36, 136–148. https://doi.org/10.1075/lplp.36.2.03fai. Faingold, E. D. (2012b). Language rights in the United States constitution and the Civil Rights Act of 1964. In P. Miller, J. Watkze, & M. Montero (Eds.), Readings in language studies, volume 3. Language and identity (pp. 447–457). Grandville, MI: International Society for Language Studies. Faingold, E. D. (2015). Language rights in the European Union and the Treaty of Lisbon. Language Problems and Language Planning, 39, 33–49. https://doi. org/10.1075/lplp.39.1.02fai. Faingold, E. D. (2016a). Language rights in Catalonia and the constitutional right to secede from Spain. Language Problems and Language Planning, 40, 146–162. https://doi.org/10.1075/lplp.40.2.02fai. Faingold, E. D. (2016b). Language rights for minorities and the right to codeswitch in the United States. In P. C. Miller, B. G. Rubrecht, E. A. Mikulec, & C. T. McGivern (Eds.), Readings in language studies, volume 6: A critical examination of language and community (pp. 1–13). Grandville, MI: International Society for Language Studies. Faingold, E. D. (2018). Language rights and the law in the United States and its territories. Lanham, MD: Lexington Books. Guliyeva, G. (2013). Education, languages and linguistic minorities in the EU: Challenges and perspectives. European Law Journal, 19, 219–236. https://doi. org/10.1111/j.1468-0386.2012.00614.x. Horowitz, D. L. (1998). Self-determination: Politics, philosophy, and law. In M. Moore (Ed.), National self-determination and secession (pp. 181–214). Oxford, UK: Oxford University Press. Humlebæk, C. (2015). Spain: Inventing the nation. London, UK: Bloomsbury.

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Jovanovic, M. (2002). National self-determination as a legitimate way towards European Union: The case of former Yugoslavia. International Journal on Minority and Group Rights, 9, 71–79. Retrieved from http://0-heinonline. org.library.utulsa.edu/HOL/Page?handle=hein.journals/ijmgr9&id=1&size= 2&collection=journals&index=journals/ijmgr. Marchildon, G., & Maxwell, E. (1992). Quebec’s right of secession under Canadian and international law. Virginia Journal of International Law, 32, 583–623. Retrieved from http://0-heinonline.org.library.utulsa.edu/HOL/ Page?handle=hein.journals/vajint32&id=1&size=2&collection=journals& index=journals/vajint. Mar-Molinero, C. (2000). The Iberian Peninsula: Conflicting linguistic nationalisms. In S. Barbour & C. Carmichael (Eds.), Language and nationalism in Europe (pp. 83–104). Oxford, UK: Oxford University Press. Moore, M. (1998). The territorial dimension of self-determination. In M. Moore (Ed.), National self-determination and secession (pp. 134–157). Oxford, UK: Oxford University Press. Nic Craith, M. (2006). Europe and the politics of language. Basingstoke, UK: Palgrave Macmillan. Nielsen, K. (1998). Liberal nationalism and secession. In M. Moore (Ed.), National self-determination and secession (pp. 103–133). Oxford, UK: Oxford University Press. Noguer, M., & Piñol, A. (2010). El estatuto catalán en 10 preguntas. Retrieved from http://elpais.com/elpais/2010/06/28/actualidad/1277713031_ 850215.html. Parliament of Catalonia. (2006). Statute of Catalan Autonomy. Retrieved from http://www.parlament.cat/porteso/estatut/estatut_angles_100506.pdf. Pazartzis, P. (2006). Secession and international law: The European dimension. In M. G. Kohen (Ed.), Secession: International law perspectives (pp. 355–373). Cambridge, UK: Cambridge University Press. Perales-García, C. (2013). How did we get here? In L. Castro (Ed.), What’s up with Catalonia? The causes which impel them to separation (pp. 105–112). Ashfield, MA: Catalonia Press. Phillipson, R. (2003). English-only Europe? Challenging language policy. London, UK: Routledge. Philpott, S. (1998). Self-determination in practice. In M. Moore (Ed.), National self-determination and secession (pp. 79–102). Oxford, UK: Oxford University Press. Piris, J.-C. (2010). The Lisbon Treaty: A legal and political analysis. Cambridge, UK: Cambridge University Press. Pons Parera, E. (2015). The position of Catalan in higher education in Catalonia. In F. X. Vila & V. Bretxa (Eds.), Language policy in higher education: The case of medium-sized languages (pp. 153–180). Bristol, UK: Multilingual Matters.

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Romaine, S. (2013). Politics and policies of promoting multilingualism in the European Union. Language Policy, 12, 115–137. https://doi.org/10.1007/ s10993-013-9277-8. Rovira-Martínez, M. (2013). Our September 11th (1714). In L. Castro (Ed.), What’s up with Catalonia? The causes which impel them to separation (pp. 207–214). Ashfield, MA: Catalonia Press. Ruipérez-Alamillo, J. (2013). La nueva reivindicación de la secesión de Cataluña en el contexto normativo de la constitución española de 1978 y el Tratado de Lisboa. Teoría y Realidad Constitucional, 31, 89–135. Retrieved from http:// espacio.uned.es/fez/eserv/bibliuned:TeoriayRealidadConstitucional-201331-6010/Documento.pdf. Sanchiz, V. (2013). Catalonia or Catalan countries? In L. Castro (Ed.), What’s up with Catalonia? The causes which impel them to separation (pp. 153–156). Ashfield, MA: Catalonia Press. Scheb, J. M., II. (2015). Criminal law (7th ed.). Stamford, CT: Cenage Learning. Solano, X. (2013). A Scottish referendum for Catalonia. In L. Castro (Ed.), What’s up with Catalonia? The causes which impel them to separation (pp. 167–172). Ashfield, MA: Catalonia Press. Soviet Union Constitution. (1977). Retrieved from http://www.constitution.org/ cons/ussr77.txt. Spanish Constitution. (1978). Retrieved from http://www.eui.eu/Projects/ InternationalArtHeritageLaw/Documents/NationalLegislation/Spain/ spanishconstitution1978.pdf. Spongenberg, G. (2006). Catalan, Basque and Galician get EU language boost. Retrieved from http://euobserver.com/political/22007. Statute of Sau. (1979). Retrieved from http://web.gencat.cat/en/generalitat/ estatut/estatut1979/. Suksi, M. (2004). Keeping the lid on the secession kettle: Emergence into any other political status as a mode of self-determination and as a frame for substate arrange´ ment. Turku, Finland: Åbo Academic University. Tree, M. (2013). Catalan language literature: What’s going on? In L. Castro (Ed.), What’s up with Catalonia? The causes which impel them to separation (pp. 147–152). Ashfield, MA: Catalonia Press. Vila, F. X. (2013). It’s always been there. In L. Castro (Ed.), What’s up with Catalonia? The causes which impel them to separation (pp. 31–38). Ashfield, MA: Catalonia Press. Woolard, K. A. (2016). Singular and plural: Ideologies of linguistic authority in 21st century Catalonia. Oxford, UK: Oxford University Press. Wright, S. (1999). Language, democracy and devolution in Catalonia. Clevedon, UK: Multilingual Matters.

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Wright, S. (2009). The elephant in the room: Language issues in the European Union. European Journal of Language Policy, 1, 93–120. https://doi.org/10. 3828/ejlp.2009.2. Zapata-Barrero, R. (2006). The Muslim community and Spanish tradition: Maurophobia as a fact, and impartiality as a desideratum. T. Modood, A. Triandafyllidou, & R. Zapata-Barrero (Eds.), Multiculturalism, muslims, and citizenship: A European approach (pp. 143–161). London, UK: Routledge. Zapata-Barrero, R. (2010). Dynamics of diversity in Spain: Old questions, new challenges. In S. Vertovec & S. Wessendorf (Eds.), The multiculturalism backlash: European discourses, policies, and practices (pp. 170–189). London, UK: Routledge.

CHAPTER 5

Language Rights and the Law in Denmark

Abstract This chapter examines Denmark’s language legislation, especially laws with provisions that protect the language rights of the Danish-speaking majority and hinder the language rights of immigrants. Growing negative feelings toward immigration in Denmark have become associated with the growing number of Muslim immigrants and their descendants, leading to the passing of a wide array of laws with provisions that have increasingly hampered the language rights of non-Western immigrants in the areas of naturalization and education, including laws that promote Danish mainstream culture and language in the educational system from kindergarten to high school, and disregard the languages and cultures of immigrant children. These laws greatly restrict or outright ban mother tongue education for immigrant children from non-Western countries but offer it to children from EU member states, the EEA area, and the Faroe Islands and Greenland. Other laws make excessive demands in Danish proficiency for non-Western (mostly Muslim) immigrants seeking to obtain residence or naturalization but establish no such language requirements for Western immigrants working at universities. Keywords Denmark · Language policy · Language rights · Immigrants · Muslims

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In the aftermath of Denmark’s defeat in the wars of the middle of the seventeenth century (1657–1660) against Sweden, the Danish provinces on the Scandinavian peninsula east of the Øresund (Scania) were surrendered to Sweden. Danish losses amounted to nearly a third of its territory and a corresponding proportion of its population at the time. Afterwards, Sweden embarked on a determined campaign to eradicate all traces of the Danish language from southern Sweden. About a century and a half later, following Napoleon’s victory over Russia in the summer of 1807, France succeeded in making Denmark join the coalition in France’s war against England. England reacted very quickly, delivering an ultimatum to Denmark to either confine its fleet to port or to surrender it for the duration of the war. In the meantime, French troops waited in Denmark’s southern border ready to invade, while Swedish troops waited to invade Norway (which was part of the Kingdom of Denmark at the time). The military impasse was broken by England’s attack which landed troops in Copenhagen in August 1807 bombarding the city from August 16 to September 5. With Copenhagen burning, Denmark, which had unsuccessfully tried to remain neutral in the war, surrendered, and, most importantly, was forced to hand over Norway (which possessed vast natural resources and had been a part of the Kingdom of Denmark since 1387) to Sweden (Jespersen, 2011). Thus, in the aftermath of the Napoleonic Wars, in which Denmark again fought on the losing side, the loss of Norway meant a significant change in the composition of Denmark’s population. Nevertheless, Denmark was able to remain an independent kingdom and keep the twin duchies of Schleswig and Holstein, Greenland, the Faroe Islands, and Iceland. About half a century later, Denmark became involved in a conflict with a revolutionary army allied to Prussia over the status of Schleswig and Holstein (which were ruled as separated duchies within the Kingdom of Denmark). Due to international pressure by Russia, France, and England, Prussia soon withdrew from the war and the revolutionary army was defeated. As a result, the Kingdom of Denmark succeeded again in retaining the two duchies in what became known as the First Schleswig War (1848–1851). In the aftermath of the First Schleswig War, emboldened by the unqualified support from most of the major European powers (even though it had agreed to preserve the special status of Schleswig and Holstein), Denmark tried to incorporate the two duchies into the Kingdom of Denmark by altering the Danish Kingdom’s Constitution, in an attempt to change the status quo in Schleswig and Holstein. As a result, Denmark ignited the spark that started the Second Schleswig War in 1864, this time against the

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vastly superior army of the Prussian-Austrian alliance. The war ended with the Danish army being soundly defeated and with the incorporation of the two duchies into Prussia and later into Germany (Jespersen, 2011). Again, strikingly, Denmark was able to remain an independent kingdom and to keep the North Atlantic islands of Greenland, the Faroe Islands, and Iceland (which, less than a century later, and without much fanfare, became an independent country with President Roosevelt’s support during World War II on June 17, 1944) (https://history.state.gov/countries/Iceland). Thus, in the aftermath of the loss of the Scanian territory in the Scandinavian peninsula to Sweden in the seventeenth century and the loss Norway in the early nineteenth century to Sweden, which were followed by the loss of the twin duchies of Schleswig and Holstein to Germany in the midnineteenth century and by the independence of Iceland during World War II, Denmark became a much smaller and more ethnically and linguistically homogenous country. Danish was the predominant language with pockets of minority language speakers of German in southern Denmark (Korsgaard, 2006). In contrast with the other major Scandinavian countries (Finland, Norway, and Sweden) and most EU countries, Denmark today has no significant indigenous linguistic minorities living in its territory (with the exception of the German-speaking minority in South Jutland). Denmark has also not traditionally been as attractive to immigrants as the two neighboring countries to its north and south (Sweden and Germany). As a result, it is significantly less multilingual and multicultural than many other European countries. The German-speaking minority inhabits the southern and eastern parts of South Jutland and comprises a population of between 15,000 and 20,000 speakers. In addition to German and Danish, a large number of the German-speakers, especially within the rural population, also speak Sønderjysk, a South Jutland dialect of Danish, in daily life, while the rest of the German-speaking population traditionally speak High German and Danish (http://minorityrights.org/minorities/germans-of-south-jutland/). The official status of German as a minority language in Denmark is recognized by a bilateral agreement between the governments of Denmark and Germany and by two EU agreements: (1) the 1955 CopenhagenBonn Declarations, which recognize the German minority in South Jutland, grant the German minority the right to education in the German language; (2) the 1997 Danish ratification of the European Framework Convention for the Protection of National Minorities, which recognizes

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the German minority as a national minority in South Jutland, provides the right to equality and non-discrimination in daily life (economic, political, cultural, educational, social, etc.) and, more importantly, grants the right of individuals to learn the minority language and to set up and manage language minority educational institutions; and (3) the 2001 Danish ratification of the European Charter for Regional or Minority Languages, which designates German in South Jutland as a regional minority language, provides for preschool, primary, and secondary education in German (when a sufficient number of students request it) as well as for the training of teachers necessary to implement the teaching of German language, culture, and history in minority institutions (Hegelund, 2002). The German minority is especially guaranteed equal rights as those of the Danish majority…with the added force of special provisions and rights which are given as group rights to the German national minority in its traditional territory…(The) recognition of the German national minority in the Danish ratification of the Framework Convention and the European Charter has not required and will not require any profound changes in the legislation nor in the practice established by the 1955 Copenhagen-Bonn Declarations. (Hegelund, 2002, p. 95)

With a population of fewer than 50,000 people, the Faroe Islands, an archipelago of 18 small islands located in the North Atlantic, between Scotland, Iceland, and Norway, are an autonomous country within the Kingdom of Denmark. The official language of the Faroe Islands is Faroese, but Danish is required for official purposes and taught in school. Faroese is derived from Old Norse, the language spoken by Norsemen who settled the islands in the eighth century. In spite of the Faroe having lost their independence in the eleventh century, first to Norway and later to Denmark, Faroese developed as a separate language, which survives until the present day, and is spoken by about 75,000 people, including an estimated 25,000 speakers in Denmark, by one (probably high) estimate (https:// www.faroeislands.fo/). In spite of being surrounded by Danish (films, TV, popular books, comics, magazines, computer software, food packaging, technical manuals), Faroese is spoken by the entire population of the islands, but few books have been published in this language, and only a few foreign books, mostly great classics and popular children books (e.g., Harry Potter), have been translated into it (Benati, 2009).

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Greenland, like the Faroe Islands has a small population of about 57,000 people living in an island with an area of 2.17 million km2 , 80% of which is covered with glacial ice. Greenland is an autonomous country within the Kingdom of Denmark (https://www.bbc.com/news/worldeurope-18249474). The official languages of Greenland are Greenlandic (an Eskimo-Aleut language spoken by about 60,000 people, including about 7000 Greenlanders living in Denmark) and Danish (http://www. omniglot.com/writing/greenlandic.htm), but, unlike the Faroe, the study of Danish in school, or its use for official purposes, is not mandatory in Greenland (Björklund, Björklund, & Sjöholm, 2013). In contrast with most other industrialized European countries, the increasing demand for labor in the 1960s and early 1970s in Denmark was mostly met by married women who entered the paid labor force in large numbers (Gulløv, 2012). Nevertheless, a small number of foreignborn workers, or guest workers (gœstearbejdere), came to Denmark from Turkey, Pakistan, and Yugoslavia during the 1960s, until the oil crisis of 1973 ended the need to import workers (Schwartz, 1985). In 1974, there were 6779 citizens from Yugoslavia, 8138 citizens from Turkey, and 3773 citizens from Pakistan living in Denmark, which were outnumbered by 50,669 citizens from the Nordic countries and the EU. While the recruitment of guest workers came to a halt as part of a plan to end immigration in the aftermath of the 1973 oil crisis, those guest workers already in the country were granted permission to stay as well as the opportunity to bring close family members (Nannestad, 2004). Since the 1980s, the number of foreign-born residents has increased sixfold through family reunification programs and the arrival of refugees from Islamic countries, including Iran, Iraq, Lebanon, Kosovo, and Somalia (Mouritsen, 2006; Mouritsen & Hovmark Jensen, 2014). Thus, family reunification and asylum claims became the two non-employment ways around Denmark’s official end of immigration. Yearly statistics for the period 1988-2001 show that between 15% and 27% of the total number of resident permits to foreigners were given to asylum seekers,…while between 25% and 33% were due to family reunification. From 1980 to 2001 the number of immigrants and descendants…rose from 152,958 to 415,331 persons, or from 3.0% to 7.7% of the total population. While the number of immigrants and descendants from western countries has remained almost constant at about 100,000 persons, the number of

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immigrants and descendants of nonwestern countries has increased strongly. (Nannestad, 2004, pp. 757–758)

At the present time, Denmark has an immigrant population of about 10%, including descendants (persons born in Denmark with two foreignborn parents) (Björklund et al., 2013; Lithman, 2013). Of these about two-thirds originate from non-Western countries (see above) and about one-third from Western countries (Lithman, 2013; Schmidt, 2013). At the time of this writing (2018Q2), there are 250,764 immigrants from Western countries and 346,154 immigrants from non-Western countries, and 29,518 descendants from Western countries and 150,993 descendants from non-Western countries, living in Denmark (https://www.dst.dk/en/ Statistik/emner/befolkning-og-valg/indvandrere-og-efterkommere). Since the late 1980s, immigration has become negatively associated with the growing numbers of Muslim immigrants and their descendants (Enoch, 1994; Jenkins, 2011; Jensen, 1999a, 1999b, 2011; Olwig & Paerregaard, 2011; Rytter, 2011, 2013; Schmidt, 2011; Sjørslev, 2011). As one Danish scholar notes, “an increase is visible from the early or mid-1990s in affirmations of national pride and cultural superiority, fear of national culture being threatened by immigration, and support of assimilation (citizenship conditional on ‘learning to behave like Danes’)” (Mouritsen, 2006, p. 75). Particularly, attitudes toward Muslim immigrants became increasingly negative in the aftermath of the cartoon crisis of 2006, when one of Denmark’s large newspapers published a cartoon that depicted the prophet Mohammed wearing a turban containing a bomb (Henkel, 2011; Hervik, 2011), which “caused many to regard the growing number of Muslim immigrants with increased distrust…This anger and suspicion was also directed at the very great majority of peaceful and loyal Danish Muslims” (Jespersen, 2011, p. 229). A variety of surveys, including the European Social Survey, show a significant distinction of attitudes toward immigrants in Denmark, Norway, and Sweden. These surveys show consistently that Sweden is the most liberal in terms of attitudes toward immigrants, while Denmark is the least tolerant, and Norway is in between (Lithman, 2013). Danes are the most likely nationality in the EU to blame minorities (i.e., Muslims) for social problems (e.g., unemployment, education, and crime) (Constant & Schultz-Nielsen, 2004; Grillo, 2011; Jensen, 2011; Sausdal, 2014). “On Eurobarometer…(Denmark) hits an EU low, with Greece and Belgium, on measures of personal feelings of ‘disturbance in daily life’ by the presence

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of other nationalities, other races and particularly other religions ” (Mouritsen, 2006, p. 75). Issues frequently debated include “high unemployment figures; the crime level of immigrants and descendants; the lack of gender equality and differences in child-rearing patterns pertaining to boys and girls in traditional (Muslim) immigrant families; residential segregation in deprived neighborhoods (‘Ghettoes’); and the wearing of scarves” (Mouritsen & Hovmark Jensen, 2014, p. 7). Muslim values are often perceived as being incompatible with liberal Danish values and norms, and a cultural barrier to successful integration on the labor market (‘cultural flexibility’)…When it became apparent that many guest workers stayed and that the number increased through family reunification, critics would increasingly…charge…that immigrants exploited the welfare state, not least because the level of unemployment among immigrants became considerably higher than that among native Danes. (Mouritsen & Hovmark Jensen, 2014, pp. 8–9)

As one Danish scholar further explains, Cultural homogeneity…and the universalistic structures and ideological presumptions of the welfare state…are key to understanding the politics of immigration/integration and its conceptual foundations -- and are thus crucial for understanding major differences between Denmark and other EU member states…Political actors…focus on (and often ideologically exaggerate) the financial burden the newcomers place on the provisions of the welfare system…This has exacerbated negative immigrant stereotyping: refugees are branded as “welfare scroungers” or “refugees of convenience,” who unfairly take advantage of a system that was never intended for their benefit…These stereotypes are based both on the suspicion that the newcomers may not be “real refugees” and, more fundamentally, on the premise that they have not contributed to and do not share the cultural doxa of this small but successful community. (Hedetoft, 2006, pp. 402–405)

This chapter studies the ways in which Denmark addresses the issue of language rights of immigrant minorities. One important reason for this focus is that most scholarship on language rights for immigrant minorities has concentrated attention on the English-speaking world, with a smaller literature on Western Europe. With the exception of Sweden, which has been extensively studied as one of the countries of the world at the cutting edge of experimentation with multicultural policies, Denmark, along

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with the remaining Scandinavian countries, Iceland, Norway, and Finland, has received relatively little attention. Another important reason for this focus is that, while in contrast with the other major Scandinavian countries, Denmark has no large indigenous minorities living in its territory (with the exception of the German-speaking population of southern Jutland), it has seen a steady influx of immigrants from other European and non-European countries throughout its history, especially since the 1960s, as we have seen, the arrival of large groups of immigrants from Turkey, the former Yugoslavia, and Pakistan. In this sense, Denmark, one of the very few European countries with no significant indigenous minorities, provides a unique opportunity for focusing on the study of migration and language policy in a European context. The chapter examines Denmark’s language legislation, especially laws with provisions that protect the language rights of the Danish-speaking majority and hinder the language rights of immigrants. It aims to aid those seeking to improve the quality of language legislation. Lessons learned from studying Denmark’s language legislation can assist in drafting and revising legislation that protects the language rights of minorities, especially immigrants, not only in Denmark but also in other Scandinavian (e.g., Norway and Sweden) and EU countries with large immigrant populations (see Chapter 6).

Legislation Concerning Immigration to Denmark In comparison to other Scandinavian and EU countries, as noted, Denmark is a much smaller and more ethnically and linguistically homogenous country. Also, as we have seen, Denmark is less liberal in terms of attitudes toward immigrants and the most likely country in the EU to blame minorities for social problems in the areas of education and crime. Notably, and not surprisingly, in comparison to other Scandinavian countries, Denmark is also less supportive of multicultural policies. Danish politicians from all agenda-setting parties…have repeatedly stressed that Denmark is not and does not intend to be a multicultural society; positive discrimination (affirmative action) is never contemplated as a solution to integration problems…and cultural diversity more broadly is officially frowned on as an alien, ‘un-Danish’ notion. (Hedetoft, 2010, p. 111)

Since at least the early 1920s, Denmark’s immigration and naturalization policies have traditionally produced more restrictive rules than its Nordic

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neighbors and other EU countries (Boswell & Geddes, 2011; Kelstrup, 2006). “Denmark has some of the strictest immigration/integration policies in Europe…Those fearful of diversity hold on to the belief that the specificity of Danish society must be protected” (Lithman, 2013, p. 255). For example, Denmark is the only Scandinavian country with a residence requirement of nine years, with eight years for refugees and stateless persons, and a rule that excludes aliens who have been sentenced to imprisonment for eighteen months or more from naturalization in perpetuity (Ersbøll, 2006). Since the mid 1990s, immigration policy has set the political agenda in Denmark like nowhere else in Scandinavia and the EU (Green-Pedersen & Krogstrup, 2008; Jørgensen, 2011; Kelstrup, 2006; Kivisto & Wahlbeck, 2013), especially during the election campaigns in 1998, 2001, and 2005, in which the anti-immigrant right-wing Danish People’s Party acquired significant power as a coalition partner in the government (Rydgren, 2004), resulting in a significant tightening of immigration policies (Mouritsen & Hovmark Jensen, 2014). Prominently, the Danish Integration Act of 1999 introduced the concept of integration which became focal to increasingly restrictive immigration rules. For example, to be eligible for social security benefits, refugees and family-reunified immigrants are required to follow an integration program in which newly arrived immigrants acquire “an understanding of the fundamental values and norms of Danish society” (Mouritsen & Hovmark Jensen, 2014, p. 9). The stated goal of 1999 Act is to teach immigrants to participate “on an equal footing with other citizens in the political, economic, work-related, social, religious and cultural life of society; and to induce economic self-reliance” (Mouritsen & Hovmark Jensen, 2014, p. 9). It is worth noting that about two years before it became national policy in Denmark, Aarhus was the first Danish city to establish an integration policy in 1996 (Joppke, 2017). The city new policy’s purpose was to strengthen bonds that tie the local community together, making sure that everybody regardless of ethnic or cultural origin participates actively as citizens in a society where democratic values are fundamental. Importantly, however, in contrast to the national policy created by the Danish government about two years later, the city of Aarhus aimed to insure that minorities have the same opportunities, rights, and duties as other citizens of the city, while at the same time recognizing that minorities may have special needs and may need to receive special services (Jørgensen, 2012). Thus, in Aarhus the

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new integration policy was not created with the purpose of protecting the majority’s culture but to help migrants and refugees lead a dignified life. The actual implementation of the Danish Integration Act takes place at the local level in the municipalities…(which) are responsible for providing immigrants with an integration program…which lasts up to three years. Participation…is also a key condition for obtaining a permanent residence permit…(The program includes) instruction in Danish; courses on social conditions in Denmark; courses on Danish culture and history; as well as job related activities. The programs are based on a detailed plan for each individual…(who)…must in fact sign a piece of paper…to confirm their willingness to obey Danish law, to respect democratic principles, to learn the Danish language (my emphasis), to acknowledge principles of gender equality, to respect liberty of conscience and freedom of speech, to refrain from carrying out terrorism, etc. (Mouritsen & Hovmark Jensen, 2014, pp. 10–11)

Between 2001 and 2011, the Danish Parliament enacted increasingly more restrictive immigration rules, including changes to the rules of admission, especially in the areas of family reunification, permanent residence and naturalization, as well as changes in eligibility of asylum seekers for economic benefits and the introduction of mandatory integration programs for admitted immigrants with concomitant restrictive entitlements to social benefits (Lœgaard, 2013). On November 27, 2001, when Anders Fogh Rasmussen, a right-wing nationalist, was elected Prime Minister with the support of the Conservatives and the right-wing nationalist Danish People’s Party, a new separate Ministry of Refugee, Immigration, and Integration Affairs (Ministeriet for Flygtninge, Indvandrer og Integration) was established to handle immigration matters (Hedetoft, 2010; Jespersen, 2011). As it had been promised during the election campaign, the Ministry of Refugee, Immigration, and Integration Affairs’ first minister set his sights on reducing the number immigrants and asylum seekers coming from countries outside the Nordic countries, the European Union, and North America. As one scholar puts it, “even if the law in theory covered all foreigners, there was common agreement in Denmark that the people who were unwanted by most of the political parties were people from ‘third countries’ (non-Western)” (Hervik, 2011, pp. 168–169). In 2002, the rules established by the 1999 Integration Act were expanded even further, making a test in the Danish language mandatory for immigrants seeking naturalization. New pre-entry requirements that made

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it more difficult to bring a spouse from another country or to reunite a family with members from abroad were enacted, “with exemptions for highly skilled or culturally similar migrants (my emphasis)” (Wallace Goodman, 2010, p. 240), including a 24-year rule requiring applicants for family reunification to be over 24 years of age, meaning that one or both partners cannot marry before they are 24 (Lœgaard, 2013). An attachment rule requiring that couples must prove that they share a greater attachment to Denmark than to another country was introduced, together with a number of new economic restrictions for asylum seekers (Schmidt, 2013). Further, the new rules required that immigrant spouses seeking family reunification pass much tougher tests to obtain citizenship and residence status, including mandatory pre-entry language tests administered in the country of origin (Kostakopoulou, 2010). Social benefits for newly arrived immigrants were also reduced in order to encourage immigrants to join the labor market sooner rather than later and to make Denmark less attractive to other would-be immigrants (Lœgaard, 2013). As a result of the new rules, a significant number of couples were forced to reside in southern Sweden and to commute to Copenhagen on a daily basis (Mouritsen & Hovmark Jensen, 2014). Strikingly, even in cases when immigrant women face violence within the marriage, the Danish Immigration Service is required to determine their right to residence according to the new rules (Schmidt, 2011). Accordingly, “the Danish Organization of Shelters for Battered Women and Children…thus encourages these women to start learning Danish” (Schmidt, 2011, p. 265). In the elections of 2011, the parliamentary majority shifted to a new center-left coalition constituted by the social democrats, the social liberals, and the socialists. One contributory factor to the shift was that the center-right government had been strongly associated with extreme antiimmigrant rhetoric and strict immigration policies. “The tightening of immigration policy had gone too far, or at least far enough” (Lœgaard, 2013, p. 185). Thus, soon after the 2011 election, the newly elected government announced changes to the immigration policies that had been enacted by the former governments, including abolishing the so-called poverty benefits granted to recent immigrants while waiting to receive a residence permit, which were quite low by Danish standards. The rules for family reunification were eased also, allowing immigrant children to stay with their parents in Denmark (Lœgaard, 2013). “The 24-year rule was no longer absolutely decisive but could be modified in agreement with a point

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system, determining the marriage migrant’s qualities as assets for Danish society, including their skills in particular languages (including Danish and English)” (Schmidt, 2013, p. 207). Dual citizenship was introduced, and asylum seekers received work permits while their applications were pending, a process which sometimes could take years (Lœgaard, 2013). Finally, the new government abolished a regulation introduced in early 2011 that would have required immigrants who had been living in Denmark for more than seven years and could not communicate in Danish to pay for interpreting services when consulting a physician or receiving medical services at the hospital (Bischoff et al., 2003; Phelan, 2012; Schepelern Johansen, 2011). Most importantly, the newly elected government ditched the antiimmigrant rhetoric of the previous center-right government, emphasizing respect and tolerance as Danish values, linking the former and the latter to immigration and integration (Lœgaard, 2013). The impact of the new government immigration policy changes on those affected by it cannot be underestimated. In addition to the new policy and rhetorical changes mentioned above, the new government closed the Ministry of Refugee, Immigration, and Integration Affairs and transferred its responsibilities to the Ministry of Social Affairs and Integration (integration of refugees and immigrants into the labor market and educational system), the Ministry of Children and Education (Danish as a second language teaching), the Ministry of Employment (residence permits to work and study), and the Ministry of Justice (asylum, humanitarian residence, family reunification, residence for EU citizens, Danish citizenship, and short-term visas) on October 2011 (Lœgaard, 2013). However, as one scholar notes, It is notable, and worth stressing, that the main components of the former government immigration policies are retained. This includes the 24-year rule and the attachment requirement…, most of the conditions for naturalization introduced by the former government until 2010, and the criteria for receiving asylum…This is a strictly administrative reform which does not involve any substantial changes in the applicable legislation, rules or requirements. But its symbolic significance is…considerable. By this splitting up the old Ministry of Refugee, Immigration and Integration and reassigning the different policy areas to different ministries, the new government signals that the range of issues traditionally addressed under the heading of ‘integration’ are ordinary problems of social or labor market policy. (Lœgaard, 2013, p. 186)

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Last but not least, it is worth noting that Denmark’s rejection of the Maastricht Treaty in 1992 led to what is known as the National Compromise. Denmark signed the Treaty in 1993 but with important reservations, including, most relevant for the purposes of this study, the rejection of European Union supranational powers in the areas of common policy of justice and home affairs (Kelstrup, 2006). For example, Denmark, along with the UK and Ireland, exercised the right under the Treaty of Amsterdam to opt out of discussions that would grant legal residence with equal rights to EU citizens to non-EU residents working in the European Union. Similarly, Denmark, along with the UK and Ireland, opted out of the Directive on the Right of Family Reunion adopted by the European Union in June of 2003 to develop legal frameworks with provisions that protect the right of migrants to be joined by their family members in EU member countries (Boswell & Geddes, 2011). Spouses and minor children are admitted in all member states, although some countries insist on a maximum age (this is 18 in the UK, the Netherlands and Germany, but 15 in Denmark (my emphasis)…11 member states have a waiting period of usually around 2 years (before family members can join their partners). Spain is the shortest at 12 months while Denmark requires 3 years (my emphasis). (Boswell & Geddes, 2011, p. 119)

Finally, in 2009, Denmark, along with the UK and Ireland, opted out of the EU Blue Card program. The Blue Card allows skilled and educated immigrants who have concrete job offers to obtain residence permits of between one and four years in EU countries participating in the scheme, with equal working conditions, access to education and training, and social security benefits for the immigrants and their families. After eighteen months of residence in an EU country, holders of the card and their dependents are allowed to move to another participant country of the EU Blue Card program without going through the usual procedures for admission (Boswell & Geddes, 2011).

Language Legislation Concerning Naturalization in Denmark Denmark neither enacted a law declaring Danish the de jure official language of the country, nor did it enact any language provisions to protect Danish in its constitution. Nevertheless, Danish is treated as the de facto

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official language of Denmark (Hegelund, 2002). For example, as early as 1925, Danish law required that to obtain Danish nationality “applicants should master the Danish language” (Ersbøll, 2006, p. 117). On January 1, 1999, as we have seen, a newly enacted Danish Integration Act instituted a language and culture requirement for immigrants seeking to become naturalized citizens. Specifically, the 1999 Act stipulated that, to become naturalized, immigrants must enroll in new and improved (tougher) courses in Danish language and society (Hervik, 2011), but on June 16 of that year, Circular No. 90 on naturalization exempted disadvantaged groups from the language requirement (Ersbøll, 2006). On June 12, 2002, Circular No. 55 on naturalization further strengthened the language requirement rules to obtain Danish naturalization by requiring a formal examination certificate of Danish language proficiency, knowledge of Danish society, culture, and history. Also, the new rules repealed the language exception for persons over the age of 65. On January 9, 2006, Circular No. 9 on naturalization strengthened the language requirement even further by instituting a Danish language naturalization test that raised the Danish proficiency requirement to the equivalent of a vocational, upper-secondary, or higher education, with little dispensation for disadvantaged groups, including individuals with chronic Post-Traumatic Stress Disorder (PTSD) (Ersbøll, 2006). Exemption from the new language requirements (became) possible only under very special circumstances, such as documented very severe physical or psychological disease resulting in the applicant not being able to fulfill the language requirements…The ministry (was) presumed to refuse applications for exemption of those suffering from PTSD…The Minister for Integration…explained that the reason for the exclusion (was) that PTSD ‘is not a mental disease of such a severe nature’…All applications for exemption shall now be submitted to the Parliamentary Standing Committee on Nationality that makes its decisions in camera. (Ersbøll, 2006, pp. 132–133)

Moreover, and very troublesome, a person seeking residence or naturalization in Denmark has little or no legal recourse in the case of an arbitrary decision by the immigration authorities: There is no in-depth public discussion on the (naturalization) criteria in Parliament. Applicants who fulfill the criteria may count on being naturalized, but they have no legal guarantee; the criteria may be amended at relatively short intervals and even retroactively, and there is no accessible regulation

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on doubtful cases and exemptions from the general criteria, which seems inconsistent with the rule of law…In principle, there are no restraints on the Parliament’s and the Standing Committee’s discretionary powers other than the limitations which follow from international agreements and conventions ratified by Denmark. (Ersbøll, 2006, p. 138)

Language Legislation Concerning Education in Denmark Language Legislation Concerning Danish Preschools With the enactment of the law on child welfare in 1964, which made early child-care education universal in Denmark (Gulløv, 2008), and the growing number of women entering the work force in the 1960s and 1970s, which included most mothers, the number of early child-care institutions and the number of children enrolled in them grew rapidly. At the same time, Danish early childhood education became more professionalized (Bundgaard, 2011). By the last decades of the twentieth century, early childhood education “had come to be regarded as a child’s right” (Gulløv, 2008, p. 133). Nowadays, most Danish parents with small children work outside the home full-time, and 63% of all children aged one to three, and 96% of all children aged three to five, attend preschools (Bundgaard, 2011; Gulløv, 2012). “Though infants do not enter daycare before the end of the first year, though some begin at the age of six months…, most Danish children are in daycare for five to six years” (Gulløv, 2012, p. 97). In Denmark, early childhood education is organized thusly. First, the Danish Parliament enacts legislation that sets the guidelines. Second, the local authorities make decisions about institutional structure and goals, allocation of resources, staffing, and fees. Third, local institutions determine and apply appropriate pedagogical programs within the structural and organizational framework defined by the state and local authorities (Gulløv, 2012). Aside from some local variation in fees, opening hours, resources and activities that result from the decentralized structure of early childhood education, “the guidelines set by the state ensure some uniformity of aims and organization” (Gulløv, 2012, p. 97). Danish day-care institutions include nurseries (vuggestuer) for children aged six months to three years and kindergartens (børnehaver) for children aged three to six or seven years, with compulsory education beginning

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at seven years of age (Gulløv, 2008). Child-care centers are run by certified preschool teachers (pœdagoger), with degrees from teacher-training colleges, where they spend three-and-a-half years of study and 15 months of practical training, assisted by preschool assistants (medhjœlpere) (Gulløv, 2012). Preschool education is non-compulsory, but public authorities are required to provide a place to all children aged 12 months and older, regardless of parental income (Bundgaard, 2011). Most importantly, early childhood education plays a prominent role in the upbringing of children born to low-income families in Denmark, especially families with immigrant backgrounds. Regardless of the family’s employment situation or need of childcare for their children, immigrant families will be assured of a place, free of charge, in a day-care institution “so that they can become exposed to Danish social norms and cultural values and the Danish language (my emphasis)…It is commonly agreed that immigrant children should attend day-care sooner rather than later…between six and eighteen months old” (Bundgaard, 2011, pp. 151–152). “Immigrants and refugees…are given priority placement since public daycare is seen as both an equalizer and a potent force for the successful integration of the young into Danish society…regardless of the social, ethnic and religious background of the family” (Gulløv, 2012, pp. 97–98). The government as well as the municipality ascribes early child-care institutions a role in the process of integrating immigrants by imbuing them with the legitimate power to socialize children in accordance with norms of dominant groups in Danish society…In Denmark today day-care institutions, as organs of society, have taken over the task of socializing children in some important respects by teaching them socially accepted ways of behaving, particularly in cases where professionals doubt the socializing skills of the family. Such doubts seem to be more evident in relation to children of marginalized, non-educated and unemployed immigrant parents, which explains why these children are given priority to access daycare as early as possible. (Gulløv, 2008, p. 135)

As the leader of a Danish municipality’s Family department noted Great efforts (are) made to enrol (immigrant) children in pre-school institutions, into what she termed ‘the official socializing system’…The municipality had established procedures to check automatically the ages of children in every family and, when the children reach day-care age, to write to the families informing them of the different institutional care and opportunities

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available in the district…to…improve their skills in spoken Danish (my emphasis) and…familiarize the children with common norms of social interaction with other people. (Gulløv, 2008, p. 136)

In 2003, the Danish Ministry of Social Affairs policy document En god start till alle born (A good start for all children) noted that “children from parents from non-western countries are strongly represented among those who have difficulties in achieving in the educational system… Kindergarten…is mentioned as a tool…to improve the child’s competencies in the Danish language and other desirable competencies” (Ministry of Social Affairs, 2003; cited by Horst & Gitz-Johansen, 2010, p. 142). A year later, the Danish government’s policy document Regeringens strategi mod ghettoisering (The government’s strategy against ghettoization) noted that “to immigrant children and descendants who grow up in ghetto areas and who go to school in actual ghetto schools, their Danish may become so limited that it is a problem to learn the curriculum in school where the language is Danish” (Government, 2004; cited by Horst & Gitz-Johansen, 2010, p. 142). In 2007, Denmark’s early childhood education was reformulated to meet the increasing demand for “detail documentation, descriptions of objectives and pressure to organize daily activities in learning-centered ways” (Gulløv, 2012, p. 102). To this end, new legislation was enacted “to offer the child a sound and stimulating learning environment, to overcome social inequalities in families, to ease the transition to schools and to facilitate families’ relation to the labor market (Lov om dagtilbud [Law on Public Day-Care], 2007, §1)” (Gulløv, 2012, p. 103). The new law, which was designed to compile all former laws concerning early childhood education, reformulated the aims and obligations of early childcare…Kindergartens prepare children for school with the aim of overcoming social differences. For that reason, children’s fluency in Danish is to be tested at the age of three years (my emphasis) in order to identify difficulties at an early age. The institutional environment is also to be regularly evaluated in relation to specific assessment standards. Institutions must submit an annual report on aims, methods, activities and reflections on outcomes and obstacles in order to ensure children’s preparedness for school. (Gulløv, 2012, p. 103)

To this end, the new 2007 Public School Act, Section 4a, made “mandatory for bilingual children from age of three years to participate in different

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(Danish) language stimulation activities if, according to expert assessment, they are found in need of it, (to)…take place in the kindergartens or in other structured settings for at least 15 hours’ duration per week” (Horst & Gitz-Johansen, 2010, p. 144). Thus, official support for what could be described as the mission civilisatrice (i.e., cultural hegemonic practices) of Denmark’s early childhood education system is tightly regulated by policies and regulations, which promote “cultural familiarity (with Denmark’s mainstream culture) and (Danish) language skills” (Gulløv, 2008, p. 137). At the same time, Danish early childhood education pays no attention to the cultural, linguistic, and religious experiences of immigrant children, which are neither talked about nor included in the daily activities of preschool institutions (Bundgaard & Gulløv, 2006). Language Legislation Concerning Danish Schools The 1984 regulations for mother tongue education (Bekendtgørelse om folkeskolens undervisning af fremmedsprogede elever) stipulated that primary schools offer mother tongue education to bilingual children (unless they receive it in some other way). The purpose of these rules was to ensure that minority children remained in touch with the language and culture of their parents and thus one day would return to their country of origin. The new rules were nearly identical to the old regulations of 1976, with an important new proviso. In 1984 mother tongue education was required to be grounded in the Danish context, and not in the child’s country of origin as in the 1976 rules. In addition, the new rules constrained mother tongue education in a number of ways. First, they required that minority children were entitled to receive mother tongue education only if at least one parent was born abroad and the language used at home was not Danish. Second, it could be offered only if there was a minimum of 12 students per language and if a qualified teacher could be found. Finally, the rules allowed for only 3–5 hours weekly of mother tongue education. Schools which did not offer it were required to refer bilingual children to schools within the county which did offer it (Hegelund, 2002). The impetus for providing mother tongue education in Denmark in the 1970s and 1980s was not an embrace of multiculturalism as, for example, in neighboring Sweden, but an expectation that immigrants would eventually return to their countries of origin when their work was no longer

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needed. Thus, the 1984 rules for mother tongue education, like the preceding 1976 rules, were predicated on the assumption that they would help minority children maintain the language and culture of their parents and thus facilitate their return to the country of origin. However, in the late 1980s and early 1990s, it became obvious that the immigrants and their families were not returning to their home countries and had become a permanent fixture of Danish society. Hence, in 1998, the Department of Education issued new regulations for teaching Danish as a second language in primary schools (Padovan-Özdemir & Moldenhawer, 2017; Salö, Ganuza, Hedman, & Karrebæk, 2018). The new regulations offered supplementary Danish as second language education to bilingual children (when the child had some knowledge of Danish) and basic Danish language education (when the child had little or no knowledge of the language). Further, the new rules allowed for supplementary Danish language education for individuals or groups, and basic language education could be taught to groups (unless the student’s regular class already provided Danish instruction, in which case individual lessons could be provided), always outside of regular classes. The new regulations also allowed for minority children representing one single language group to be placed in bicultural classes for the first 3 or 4 years of primary school, and to receive instruction in Danish as a second language combined with some mother tongue education (Hegelund, 2002). In the 1998 regulations, as noted, mother tongue education was assumed to be of a transitional character, aiming to facilitate the acquisition of Danish by immigrant children as well as their “integration” (accommodation and eventual assimilation) into Danish society. “The mother tongue (was) clearly not ascribed an educational function…, except in limited and transitional circumstances such as bicultural classes…Mother tongue lessons (were) extra-curricular, (took) place outside regular school hours, no guidelines (existed) and students (were) not evaluated and graded” (Hegelund, 2002, p. 161). Furthermore, mother tongue education was restricted to children who spoke a minority language at home and who had at least one parent who had been born abroad (Hegelund, 2002). As we have seen, in the elections of 2001, with the support of the antiimmigrant Danish People’s Party, a new right-wing government coalition was handed a sweeping mandate to reshape immigration policy in Denmark, with an emphasis on the importance of imposing Danish cultural, linguistic, and social values on immigrant minorities living in Denmark, especially in the area of Danish language acquisition and mother tongue education for

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minorities. A new government’s policy announced that municipalities no longer had to provide mother tongue education to children who did not come from EU member states, the EEA area, or from the Faroe Islands and Greenland. Municipalities could continue organizing mother tongue education classes for children originating from countries outside the EU, the EEA, the Faroe, and Greenland but it was no longer obligatory to do so (Salö et al., 2018). In 2002, the new coalition put the final nail in the coffin of mother tongue education for non-Western immigrant children when it ended statesubsidies for mother tongue education of non-Scandinavian and non-EU immigrant minorities (Padovan-Özdemir & Moldenhawer, 2017). As a result, the number of linguistic minority children who received mother tongue education decreased from 75,000 to 7500 in 2008 (Salö et al., 2018). In 2005, the Danish government passed a new law mandating the “enforced teaching of Danish as a second language, including extended access to referring bilingual children to schools other than the district school” (Law no. 594 2005; cited by Horst and Gitz-Johansen, 2010, p. 144). The new law offers additional Danish as a second language instruction to minority immigrant children from 1st to 10th grade and regulates the numbers of children with immigrant background in the schools by establishing a strategy of desegregating so-called ghetto schools (bussing) and/or placing immigrant children in reception classes, selected mainstream classes, or centers of remedial language teaching (Horst & Gitz-Johansen, 2010; Padovan-Özdemir & Moldenhawer, 2017). An important consequence of the 2005 law is that, in Denmark, free choice of schools is no longer a right for children who do not speak Danish at a high enough level. However, because school integration depends on the municipality, the law is not applied uniformly. For example, in the city of Aarhus, immigrant children with limited knowledge of Danish are dispersed among schools in districts where they come in contact with children of Danish origin, whereas in Copenhagen the city encourages immigrant children to choose schools where Danish-speaking children are the majority (Mouritsen & Hovmark Jensen, 2014; see, further, Spindler Møler & Jørgensen, 2013).

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Language Legislation Concerning Danish Higher Education Until the end of the 1980s, Danish was the exclusive language of teaching at universities in Denmark. However, market pressures and the need to internationalize Denmark’s universities changed this during a brief period of five to ten years in the 1990s (Chopin, 2016; Haberland & Preisler, 2015; Hazel & Mortensen, 2013; Mortensen & Fabricius, 2014). In 2007, the Dean of the Business School of Aarhus University, a leader in international education, noted that “English language programs attract the best foreign teaching staff and students and create a unique international research and study environment which will help kickstart an international career for our students” (Haberland & Preisler, 2015, p. 26). In a similar vein, a government paper published in 2009 declared that Danish “universities ought to define relevant aims for programs offered in English in order to be able to attract the best students and researchers nationally and internationally” (Universiteternes sprogstrategier, 2009, p. 5; cited by Haberland & Preisler, 2015, p. 26). The 2009 government paper was followed by a language policy statement by Denmark’s Technical University (DTU), a leading science and technology institution of higher education in Denmark: For an internationally known and recognized university, it is important to be able to function and develop in constant interaction with notable foreign universities. International exchange of students and teachers is important, and this can only be carried out consistently if the language of instruction is English…To ensure that universities have a strong international role and position, and to maintain a high number of MA students, it is important to be able to attract a large number of foreign BA students who will take their MA degree at Denmark’s Technical University. From an economic point of view, this is only feasible if all teaching at the MA level is in English…The DTU produces graduates who can function in an international context, regardless of whether they find employment in Denmark or abroad. By way of preparing them for this, it is essential to train the students in the use of the language of internationalization, i.e., English, for professional as well as everyday contexts. This is done most consistently by using English as the language of instruction. (Universiteternes sprogstrategier, 2009, p. 8; cited by Haberland & Preisler, 2015, p. 26)

However, fearing the emergence of a diglossic development in which Danish would develop into a subordinate lower status language vis à vis

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English, the University of Copenhagen adopted the policy of “parallel languages” (without defining the term) (Chopin, 2016; Haberland & Preisler, 2015; Jürna, 2014). The use of parallel languages refers to the situation in which two languages are considered equal in a particular domain, and where the choice of language depends on what is deemed most appropriate and efficient in a specific situation. At the University of Copenhagen, the use of Danish and English is determined by the principle of parallel language use. (Centre for Internationalization and Parallel Language Use, 2013; cited by Jürna, 2014, p. 244)

It is important to note that Denmark never adopted a nationwide university language policy; nor did it expect that Danish universities would adopt standardized objectives and strategies. The expectation was that universities would develop their own solutions to advance the goals of achieving the internationalization of Danish universities. However, there is one area in which the Danish Ministry of Science and Technology intervenes in the supervision of language policies employed by the universities: the quality of teaching English. The government’s priority is to make sure that the teaching of English is of the highest quality. To this end, universities introduced the certification of language skills for English, though not for other languages, including Danish. For example, the Center for Internationalisering og Parallelsproglighed (CIP) at the University of Copenhagen, administers a test for the certification of university teachers’ English spoken proficiency, Test of Oral English Proficiency for Academic Staff (TOEPAS) (Haberland & Preisler, 2015). At Aarhus University’s School of Business, as the Dean of Aarhus Business School noted in 2007, on all its international MSc programs, all subjects are taught in English. Students can take exams and write their theses in Danish only if their teachers have a sufficient command of the Danish language (Haberland & Preisler, 2015). Another area within Danish universities where English proficiency is now expected is the administration, especially the secretarial staff who interacts with international faculty and students on a daily basis (Jürna, 2014). “Members of the administrative staff are now generally expected to know enough English to be able to communicate with transnationally mobile students…Exam administrators routinely send their messages in Danish and English” (Haberland & Preisler, 2015, p. 35).

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English is now the dominant language of academic publication in Danish higher education, especially in the natural sciences. Similarly, in the social sciences, while Danish is used more frequently, about half of the publications are in English (Haberland & Preisler, 2015). English is the language for research and the medium of instruction for the majority of the international academics at (the University of Copenhagen). (They) do use Danish in a university context, but few see themselves writing academic papers in Danish or giving talks at conferences in Danish. International researchers contribute to new knowledge through their research, but the majority of them do not disseminate the results in Danish. (Jürna, 2014, p. 244)

English is becoming noticeable also as the language of interaction between participants in scientific networks (i.e., editorial boards of academic journals, international conferences) where some (but not all) of the participants speak Danish (Haberland & Preisler, 2015). Most importantly for the purposes of this chapter, Jürna’s (2014) study of the international faculty and graduate students at the University of Copenhagen with over four years length of residence in Denmark reported lack of vocabulary in Danish, but they added lacking sophisticated, nuanced and work-related vocabulary, both for understanding and for formulating complex arguments. Formulating complex arguments in Danish was also considered too time-consuming. One’s own pronunciation in Danish was seen as a hindrance as well. The difficulties among internationals with a longer job experience in Denmark also included specific job tasks, for example correcting written papers by students or lack of linguistic confidence in Danish when serving as an examiner for advanced medical students. (Jürna, 2014, p. 244)

Thus, with the support of Danish university authorities, and with the tacit approval of the Danish government, a diglossic situation in which English is the higher status language seems in fact to be developing at Danish universities. As Jürna’s study of language use by international faculty at the University of Copenhagen shows, “nearly all internationals report using English, but only one third also use Danish” (Jürna, 2014, p. 229). Similarly, “less than one fifth perceive the need for Danish language competencies for academic tasks like teaching, supervision, laboratory work or dissemination of research results either orally or in writing” (Jürna, 2014,

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p. 232). At the University of Copenhagen, as one of the subjects interviewed by Jürna puts it, “Danish is often helpful, but not really required” (Jürna, 2014, p. 229). Revealingly, international faculty at the University of Copenhagen deny any knowledge of a language policy. As one international faculty member interviewed by Jürna notes, “even if there is a language policy in practice, it might not be written down or employees are not directly informed about it or might be aware of this particular information…Everybody speaks English, hence their view that there are no job tasks requiring Danish” (Jürna, 2014, p. 234). Thus, “there are almost no requirements on specific Danish language skills put on internationals from the institutional and managerial level” (Jürna, 2014, p. 232). As one study succinctly puts it, “parallelism is an offer made to students, not a requirement on the teacher” (Haberland & Preisler, 2015, p. 31).

Conclusion This chapter studied the ways in which Denmark addresses the issue of language rights of language minorities. In contrast with the other major Scandinavian countries and most countries in the European Union, as we have seen, with the exception perhaps of the German-speaking population in South Jutland, Denmark has no large indigenous minorities living in its territory. Nevertheless, since the 1960s, Denmark has seen a steady influx of immigrants from mostly non-European (Muslim) countries, with a concomitant sixfold increase in immigration, amounting to about 10% of Denmark’s population today. Also, as we have seen, growing negative feelings toward immigration in Denmark have become associated with the growing numbers (and concomitant visibility) of Muslim immigrants and their descendants, leading to the passing of a wide array of laws with provisions that have increasingly hampered the language rights of non-Western immigrants in the areas of naturalization and education in the first decades of the twenty-first century. This includes laws that promote Danish mainstream culture and language in the educational system from kindergarten to high school but disregard the cultural, linguistic, and religious experiences of immigrant children; laws that greatly restrict or outright ban mother tongue education for immigrant children from non-Western countries but offer it to children from EU member states, the EEA area, and the Faroe Islands and Greenland (even though, as we have seen, the study of Danish in school, or its use for official purposes, is not mandatory in Greenland); and

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one-sided Danish language requirements that make excessive demands in Danish proficiency for non-Western immigrants seeking to obtain naturalization (a requirement equivalent to that of a vocational, upper-secondary, or higher education, with little dispensation for disadvantaged groups) but establish no Danish language requirements for educated Western immigrants working at universities. As one scholar astutely notes, “(immigrant faculty’s) motivation for investing time in learning Danish is never questioned if they can manage to do their jobs in English, whereas migrants who come to Denmark as refugees just have to learn Danish, the language of the host country, within a certain time after arrival in Denmark” (Jürna, 2014, p. 246).

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CHAPTER 6

Summary, Conclusion, and Directions for Future Research

Abstract This chapter summarizes the findings of the book and offers directions for future research for the study of language rights in the European Union, for example, the need to closely scrutinize the view that the language rights of indigenous minorities necessarily supersede the language rights of immigrants in the EU and elsewhere; the study of language rights and the law affecting immigrants in other Scandinavian countries, especially countries which are EU member states (e.g., Sweden) or associated states (e.g., Norway); and, last but not least, the possible effects of the UK exiting the EU (Brexit) on the revitalization of regional minority languages spoken in the UK (the Celtic languages) and on the status of English as an official or working language of the EU are outlined. Keywords Sweden · Norway · Brexit · Northern Ireland · Language rights

I have provided a comprehensive analysis of language rights and the law as they appear in the 2004 Draft Constitution of the European Union and the Treaty of Lisbon, and detailed case studies of the impact of language legislation on regional linguistic minorities in Spain (Catalonia) and immigrants and refugees in Denmark. I have offered new insights on the degree of protection (or lack thereof) afforded to both minority indigenous groups in Spain and immigrant groups in Denmark (i.e., whether EU legislation and © The Author(s) 2020 E. D. Faingold, Language Rights and the Law in the European Union, https://doi.org/10.1007/978-3-030-33012-5_6

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the constitutions and statutes of selected European countries can recognize and accommodate linguistic diversity). In Chapter 2 an exhaustive analysis of the 2004 EU Draft Constitution showed that the text of the Draft Constitution targets the official and working languages of the EU for promotion but provides no legal protections to speakers of non-official EU languages, whether indigenous or immigrant. Chapter 2 showed also that the Draft Constitution does even less to protect the rights of linguistic minorities than previous pronouncements and bodies of the EU, such as the European Charter for Regional or Minority Languages and the European Bureau of Lesser-Used Languages (EBLUL). The chapter supported a constitutional approach which better addresses the needs of linguistic minorities in the Draft Constitution: one adopted by nations that recognize the linguistic rights of minorities having or seeking autonomy within their territory, establishing provisions to protect the language rights of minorities in their constitutions and/or statutes (Faingold, 2004). Similarly, in Chapter 3, the Treaty of Lisbon singles out the official and working languages of the EU but offers no legal protections to minority languages, regional or immigrant, for promotion. Also, like the Draft Constitution, the Treaty does less to protect the rights of linguistic minorities than previous pronouncements and bodies of the EU, including the European Charter for Regional or Minority Languages, the Framework Convention for the Protection of National Minorities, the EBLUL, and the European Commission on Human Rights. Chapter 3 favored an alternative legal approach that might better address the needs of language minorities in the EU in future revisions of the Treaty of Lisbon: de jure language that specifically defines the status and use of regional minority languages and widely spoken immigrant languages. An example includes revising Article 5b of the Treaty of Lisbon which aims to combat discrimination in the EU by singling out nearly every existing minority for protection against discrimination (sex, race, ethnicity, religion, disability, age, and sexual orientation) except language. A future amendment to the Treaty of Lisbon could add “language” to the protected categories mentioned above, to protect language minorities. Chapter 4 argued that neither Catalonia nor any other Self-governing region in Spain seem to possess a unilateral right to secession under either domestic or international law, and that to protect the rights of its citizens, Catalonia does not need to be limited to either choosing unilateral secession or maintaining the current status quo between the Self-governing region and the Spanish state. I argue that the two sides can negotiate a mutually

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agreed expansion of devolution powers for Catalonia (or any other Selfgoverning region in Spain), as permitted by Article 148 of the Spanish Constitution. I argued also that the central government in Madrid can allow referenda to take place, as permitted by paragraph 32 of Article 149 of the Spanish Constitution. Finally, I suggested language policy changes that can help ease out antagonistic nationalism and feelings of resentment among the Catalan minority and the Castilian majority, for example, producing official translations from Castilian into Catalan of state documents that could have an important impact on the population of Catalonia; allowing speakers of Catalan to communicate with Spain’s national state institutions, and to receive communications of importance to Catalonia, in Catalan; allowing Catalonia to support the dissemination of the Catalan language and culture in Spanish regions and foreign countries that share a Catalan cultural and linguistic heritage; and by seeking expanded language rights within the political institutions of the European Union. Chapter 5 studied the ways in which Denmark addresses the issue of language rights of minorities. In contrast with Spain and the other major Scandinavian countries and most EU countries, Denmark has no large indigenous minorities living in its territory (with the exception of the Germanspeaking population in South Jutland). Nevertheless, in recent decades, Denmark has seen a sixfold increase in immigration from mostly Muslim countries, amounting to about 10% of its population today. The visibility of Muslim immigrants and their descendants and the growing negative feelings toward them, especially in the aftermath of 9/11 and the Danish cartoon crisis of 2005, has led to the passing of a wide array of laws with provisions that have increasingly hampered the language rights of non-Western (mostly Muslim) immigrants in the areas of naturalization and education. Anti-immigrant linguistic legislation include laws that promote Danish mainstream culture and language in the educational system from kindergarten to high school but disregard the linguistic and cultural backgrounds of immigrant children; laws that greatly restrict or outright ban mother tongue education for immigrant children from non-Western countries but offer it to children from EU member states, the EEA area, and the Faroe Islands and Greenland; and Danish language requirements that make excessive demands in Danish proficiency for non-Western immigrants seeking to obtain naturalization, but establish no such requirements for educated Western immigrants working at universities. As noted in Chapter 3, per the European Charter for Regional or Minority Languages and the Framework Convention for the Protection

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of National Minorities, the language rights of immigrants are not recognized in the EU, including widely spoken and vital languages such as Hindi, Urdu, and Bengali in the UK, Kurdish and Turkish in Germany, and Arabic and Berber in France. The exclusion of immigrant languages from the Charter and the Framework Convention appears to reflect a widely held view among scholars and other agents of influence in language policy that immigrant minorities are less entitled to language rights than indigenous groups (Kymlicka, 1995; May, 2008). In future research, the view that the language rights of indigenous minorities necessarily supersede the language rights of minority immigrants needs to be closely examined. As time passes migrant languages are spoken by second- or third- rather than first-generation groups and the dividing line between migrancy and indigeneity becomes less obvious. At what point do migrants become indigenous and how does one justify different treatment for such groups?…In recent times, ‘migrants’ have taken up citizenship of the country in which they live and the dividing line between migrants and non-citizens is becoming increasingly dubious. As the status of migrant changes from that of incomer to citizen, it may be logical to ask what the implications for their languages are. The change in status may make the non-recognition of their languages increasingly untenable. (Nic Craith, 2006, p. 162)

Similarly, another influential scholar notes: It may be possible for languages of immigrants to become sufficiently established on the territory of a state that they become, with the passage of time, “a regional or minority language”…It has been speculated, for example, that a language which has been spoken in a state for perhaps four generations may qualify. (Dunbar, 2008, p. 45)

In Chapter 5, I offered a comprehensive and systematic analysis of language legislation affecting immigrants in Denmark. Yet, for a number of reasons, detailed case studies of language rights and the law affecting immigrants in other Scandinavian countries, especially countries which are EU member states (e.g., Sweden) or EU associated states (e.g., Norway) were left out of this book. Detailed studies of language rights and the law affecting immigrants in Sweden (e.g., Bauböck, 2002; Ekberg, 1994; Lokrantz Bernitz & Bernitz,

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2006; Odmalm, 2004; Osadan & Reid, 2016; Runblom, 1994; Scuzzarello, 2014, van Tubergen & Mentjox, 2014) deserve more time and space than I could offer in this work. As one scholar notes, The Scandinavian countries…share much of an ethnocultural heritage, including a shared religious history after the Reformation of Lutheran state churches, and they have very similar languages. Moreover, they are often seen as very similar by outsiders…However, when we examine some of the history, statistics, political dimensions and law-making related to the postSecond World War migration to the Nordic countries, there are obvious and growing differences that need to be appreciated. The trend towards policy convergence in these areas has broken up, now resulting very different rules in a number of arenas, such as policies dealing with the acquisition of citizenship. For granting citizenship, there are now widely differing requirements with respect to length of residence, language acquisition and related issues (my emphasis), and this is also the case with family reunification and spousal admittance rules. Denmark is by far the most restrictive country, with Sweden clearly the most liberal and Norway falling in between. (Lithman, 2013, p. 249)

In regard to Swedish immigration law, the language rights of immigrant minorities in Sweden seem to be protected to a much larger degree than in Denmark. As the authors of a well-informed work note: Sweden does not, contrary to many other countries, have any language requirements (for citizenship). Language requirements have never been provided for Swedish citizenship acts, however, in administrative practice knowledge of the Swedish language was required until the late 1970s…The question of reintroducing language requirements has since then been debated upon several occasions and seems a sensitive issue. It was for example examined in the report of the Commission of Inquiry and in the Government bill preceding the Citizenship Act of 2001. The reintroduction of language requirements was also a big and highly debated issue in the electoral campaign in the parliamentary election of 2002. The Liberal Party made the proposal to increase the Swedishness of the naturalized Swedes. The main arguments against language requirements have been concerns about integration and justice as well as the difficulties in determining and documenting levels of knowledge. (Lokrantz Bernitz & Bernitz, 2006, pp. 529–530)

Similarly, in regard to the right to mother tongue education for immigrant children in Sweden, the authors continue:

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The intention has not been that the immigrants should cut their ties with their native countries. The Swedish policy is reflected, for example, in the so-called ‘home language’ policy where children with immigrant parents are encouraged to preserve linguistic ties with their countries of origin by attending publicly funded language courses where the children learn their native language. The Government’s immigration policy is therefore two-sided, both helping immigrants to preserve links to their country of origin and at the same time also helping them integrate into Swedish society. (Lokrantz Bernitz & Bernitz, 2006, p. 532)

In Sum, The extension of the possibilities to submit notifications, the rather generous provisions on naturalization, the acceptance of dual citizenship and the prohibition against denaturalization all indicate that Sweden has a generous attitude towards the individual… As an example…one may point to the fact that knowledge of the Swedish language is not required. One reason, for instance, is that language requirements are considered unfair, as some groups of people would have trouble learning a new language. According to the legal history of the Citizenship Act of 2001, the Swedish policy in this area is based on the idea that the immigrant has his or her own responsibility to learn the Swedish language, and that the immigrant is expected to do his or her best on the basis of own individual qualifications. Swedish authorities are primarily responsible for organizing language courses, and the question of language fluency is therefore the task of the educational system. (Lokrantz Bernitz & Bernitz, 2006, pp. 544–545)

As with Sweden, detailed studies of language rights and the law affecting immigrants in Norway deserve more time and space than I could offer in this work (Brochmann & Djuve, 2013; Lithman, 2013; Mahmoud, 2013; Wikan, 2002). For example, as one comprehensive study of immigration in Norway notes: There are fundamental values…on which there exist political agreement in Norway, such as the value of democracy, gender equality and the rights of the child. This implies a clear freedom of choice for all inhabitants…Freedom of choice cannot be interpreted to mean that immigrants can choose to stand entirely outside of Norwegian society, for example by refraining from learning Norwegian or acquiring any knowledge about Norwegian Society…The core of the policy regarding immigrants is that they shall be able to participate in society without being required to assimilate culturally…A more accurate

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formulation of the intention entailed in the principle of freedom of choice is respect for the immigrants’ language and culture…In relation to the goal of real equality, the principle of respect will have to be subordinate. (my emphasis; Norwegian Parliament’s Goals and Objectives for Immigration Policy, 1987–1988, p. 49; cited by Wikan, 2002, pp. 70–71)

Unlike in Danish preschools (see Chapter 5), the use of immigrant languages in Norway’s early childhood education is encouraged along with the acquisition of Norwegian. As prescribed by the Norwegian framework plan for kindergartens, early childhood education staff in Norway is required to “encourage multilingual children to use their mother tongue while also actively promoting and developing the children’s…Norwegian skills” (Kunnskapsdepartementet, 2017; cited by Gram Garmann, Romøren, Tkachenko, & Bratland, 2019, p. 23). Similarly, Section 2–8 of the Norway Education Act of 1998, in force since 2010 (amended in 2010, 2011, 2012, 2013, and 2014), grants minority language students the right to receive some schooling in their mother tongue in primary and secondary education. Adapted language education for pupils from language minorities, Section 2-8 Pupils attending the primary and lower secondary school who have a mother tongue other than Norwegian or Sami have the right to adapted education in Norwegian until they are sufficiently proficient in Norwegian to follow the normal instruction of the school. If necessary, such pupils are also entitled to mother tongue instruction, bilingual subject teaching, or both. The mother tongue instruction may be provided at a school other than that normally attended by the pupil. When mother tongue instruction and bilingual subject teaching cannot be provided by suitable teaching staff, the municipality shall as far as possible provide for other instruction adapted to the pupils’ abilities. (Norway Education Act, 1998)

As in Denmark, immigration reform has become a hot topic in Norway in recent years, leading to the passing of new (and tougher) language rules for permanent residency and citizenship in 2016. Before the new rules were enacted (like in Sweden), in Norway

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There (were) no requirements to pass any test to gain permanent residency or to be naturalized, only to have attended the obligatory (Norwegian language) course. And exemptions from this requirements (were) given if sufficient Norwegian skills (could) be documented, or if health or other problems (resulted) in exemptions being given. (Brochmann & Djuve, 2013, p. 238)

The new rules require that knowledge of Norwegian must now be demonstrated by immigrants up to 67 years of age to receive permanent residency or citizenship. There are now two tests applicants must pass to obtain permanent residency in Norway: the oral Norwegian language test at A1 level and the Social Studies test in whichever language one chooses. As before, immigrants also need to take 300 or 600 hours of classes. The new permanent residency rules apply to applicants who are between 18 and 67 years old and who submitted their application after December 17, 2016. To obtain Norwegian citizenship, as of January 1, 2017, new citizens must also pass two tests: the Norwegian oral test at minimum A2 level and the new citizenship test in Norwegian. The test is very similar but not identical to the Social Studies test for Permanent Residency, but even if applicants already passed the Social Studies test for their Permanent Residency, they need to pass this test again, this time in Norwegian. The new citizenship regulations apply to applicants who are between 18 and 67 years old and who submitted their application after January 1, 2017 (https://norskbloggen.no/new-rules-for-immigration-to-norway/). The Norwegian language test consists of written and oral tests. The oral test is divided into a conversation part and an individual speaking part. The written test consists of three parts: listening (25–50 minutes), reading (75 minutes), and written presentations (90 minutes). Applicants who have the right and the obligation to participate in free Norwegian language classes can take the test for free once. To retake the test or parts of the test, applicants are charged a fee which is set by each municipality. Applicants who have a visual or hearing impairment can apply for an adapted version of the test for the visually impaired or sign language users (https://www.kompetansenorge.no/norwegian-languagetest/#ob=10849,10860,12807,11082,19426,19429). If the new rules and Norwegian language tests for permanent residency and citizenship are any indication, future studies might reveal that Norway is becoming less tolerant toward immigrant languages. New research might confirm that the language rights of immigrant minorities are protected

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by Swedish law to a greater degree than Danish and/or Norwegian law protects the language rights of immigrants in Denmark and Norway. At the time of this writing (early June, 2019) one can only speculate about the possible effects of the UK exiting the EU (Brexit) (Shipman, 2016) on language policy and language rights, such as the revitalization of regional minority languages spoken in the UK (the Celtic languages) and on the status of English as an official or working language of the EU. Brexit will probably have a negative impact on the Celtic languages in the UK, most of which are deemed endangered languages in need of revitalization (Irish, Welsh, Gaelic, and Cornish), due to the expected loss of access to EU funding and programs for language planning and development in Wales, Scotland, Northern Ireland, and Cornwall. According to the European Language Equality Network (ELEN), in a joint statement issued on December 13, 2018, by its Welsh, Scottish, Irish, and Cornish member organizations: These language communities in Wales, Scotland, the North of Ireland, and Cornwall are faced not only with losing direct funding via programmes such as Erasmus Plus, Creative Europe and Horizon 2020, but also significant…funds such as the Social Funds, Interreg, Growth, LEADER and ERDF, all of which have created sustainable employment for Celtic speakers in sector such as agriculture, fishing, tourism and higher education. Outside the Common Agricultural Policy, agriculture and the rural economy will face huge challenges – and these are extremely important sectors where Celtic languages live and work. (European Language Equality Network, 2018, p. 1)

As the ELES report continues: Over the last few years Irish language groups have increased their participation in European funded projects, many of these groups will now be disqualified from applying because they are located in the North. It will also affect groups in the south who would be making joint applications with groups in the North, and who would be delivering projects through the medium of Irish. Many of these projects will no longer be viable. (European Language Equality Network, 2018, p. 2)

Most troublesome, the loss of EU funding for cross-border Irish language projects and the termination of the cooperation agreements between Gaelic groups in the Republic of Ireland and Northern Ireland/the North of Ireland, enshrined in the Good Friday Agreement signed in Belfast on

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April 10, 1998, could have a negative impact for upholding the Belfast Agreement, which has been instrumental for keeping the peace in the region for more than two decades. For example, the loss of EU funding for PEACE IV, LEADER, and Interreg, and the termination of the agreement that established the Irish language promotion body Foras na Gaeilge, which operates on an all-Ireland basis, and the language promotion scheme in Northern Ireland, which relies on contacts with vernacular Irish-speaking communities in the Gaeltacht regions in the Republic of Ireland, could reignite the conflict between Catholics and Protestants in Northern Ireland (European Language Equality Network, 2018). Also troublesome is the fact that significant funding from the EU, which is being used to support the Gaelic language in Scotland, a region of the UK which voted Remain by a wide margin (62%), will be lost. It is worthwhile remembering that not long ago, in 2014, in an independence referendum in which the question “Should Scotland be an independent country” was asked, the No side won by a relatively small margin (55%) (see Chapter 4). One can only speculate how the electorate in Scotland would answer this same question today. It is possible that if the same question is asked in the near future, the Yes vote could win and Scotland could become an independent country and, most importantly, join the EU as a member state. Also, since Cornwall relies solely on EU funding that supports not only Cornish language and culture schemes but also infrastructure projects, the loss of EU funding with no replacement from the UK Government might deal a fatal blow to efforts to revitalize this language, which became extinct as a first language in the nineteenth century and has since been maintained in its endangered form (Ager, 2007). Last but not least, a major negative impact of Brexit on the regional linguistic minorities of the UK will result in their being excluded from the protections, albeit small, afforded to them by the Treaty of Lisbon, the EU Charter of Fundamental Rights, and the European Court of Human Rights (see Chapter 3). Finally, as noted in Chapter 3, one can ask whether English will continue to be an official and/or working language of the EU once the process of the UK exiting the EU is finalized. The regime of (official) languages might be adjusted as the English constituency will be much reduced, comprising just the Irish and the Maltese.

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Interestingly, a formal application to include English as an official EU language will have to be made, since only the UK had requested this in 1973. Each member state may notify one official language, thus Ireland – several years after its accession to the EU – requested Irish and Malta, on accession, requested Maltese, making English, officially at any rate, redundant, or no longer accepted after the UK leaves. At any rate, changes to the EU language regime must be agreed upon unanimously by the Council of Ministers, making the removal of English from the official languages unlikely, albeit not impossible. (Salama-Carr, Carsten, & Campbell, 2018, p. 212)

However, as the authors speculate: English will still be in use but what might well follow is that the highly specialized, high register, sophisticated English language skills normally performed by native English speakers will be more frequently performed by non-native speakers who learn English in their own countries and enhance it through the means of social media and the internet. One only hopes that the command of English of such linguists will be much better than that of their ministers who choose to speak it instead of their mother tongue…For pragmatic reasons and as a lingua franca, English will continue to be used within the walls of the EU, in meetings and debates. (Salama-Carr et al., 2018, p. 212)

In a similar vein, another author speculates, Whether Brexit will result in the weakening of the status of English within the Union, or whether this process will, ironically, strengthen the power of English as the principal working language of the EU, as well as the primary L2 among Europeans. One possibility here is that…Brexit…will clear the sociolinguistic space for the emergence of an authentic European English, used by members of the EU as a ‘second language’…serving the needs of the European Union as a common link language for administration and cooperation between states. (Modiano, 2017, p. 313)

In short, future research might reveal that the UK exiting the EU will have negatively affected the process of revitalization of regional minority languages spoken in the UK (the Celtic languages). It might also show that Brexit diminished the status of English as an official and/or working language of the EU; or, perhaps, a new dialect of European English will emerge in its aftermath.

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Index

A Aarhus, Denmark, 87 Aznar, José María, 59

B Bartkus, V.O., 57, 59, 66 Basque, 2–4, 13–17, 19, 27, 36, 37, 39–42, 58, 71, 72 Blue Card program, of EU, 91 Breton, 14, 27, 32, 36 Brexit, 5, 28, 30, 117–119

C Canada, 2 Constitution of, 67 Supreme Court of, 67 cartoon crisis of 2006, 84 Castilian, 56, 58–63, 68, 70, 72, 111 Catalan as regional minority language, 13, 16, 17, 37, 71 Catalonia Statutes of Autonomy of 1979 and 2006 on, 4

Constitutional Court of Spain on, 4, 58 culture, 4, 56, 71, 72, 111 European Parliament on, 41, 42, 71 in Catalonia, 4, 56–62, 64, 70, 72, 111 language rights for, 4, 27, 37, 58, 72 nationalism, 56, 72, 111 Spain and, 2, 4, 15, 16, 27, 36, 37, 41, 58, 69–72, 111 Spanish and, 4, 42, 56, 58–61, 63, 66, 70–72, 111 under Franco, 56 Catalan Parliament, 60, 65 Catalonia Renaixença movement in, 56 as nation, 20, 60, 64 as self-governing region, 68, 69, 72, 110, 111 Catalan in, 4, 56–62, 64, 70, 72, 111 CiU in, 63 Constitutional Court on, 64, 65 history of, 56 in Spanish Civil War, 56

© The Editor(s) (if applicable) and The Author(s) 2020 E. D. Faingold, Language Rights and the Law in the European Union, https://doi.org/10.1007/978-3-030-33012-5

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142

INDEX

in War of Spanish Succession, 56 independence referendum, 64, 65 language equality in, 59 language rights in, 4, 26, 70 official languages of, 59–61 PP on, 60, 62, 63 secession, from Spain, 64, 68 Spanish Constitution on, 57, 69 Spanish government on, 60, 64 Statute of Autonomy of 1979, 4 Statute of Autonomy of 2006, 4, 37, 58 citizenship, 84, 89, 90, 112, 113, 115, 116 CiU. See Convergència i Unió Civil Rights Act of 1964, 45 Civil Society Platform on Multilingualism, 34, 46 Committee of Experts, in ECRML, 33 Connolly, C.K., 57, 62, 64, 67, 69, 70, 72 Constitutional Court of Spain, 4, 58, 63, 65 constitutional law, 32, 68 constitutions Canadian, 1 EU, 2, 3, 11–13, 20, 21, 109 EU Draft Constitution, 2, 11, 15–20, 22, 110 South Africa, 2, 21 Spanish, 4, 57–59, 64, 65, 67–72, 111 Type 12, 21 Type 16, 15 U.S., 45, 67 USSR, 67 Convention on the Future of the European Union (Laeken Declaration), 10 Convergència i Unió (CiU), 63 Cornwall, 117, 118 Corsican, 14, 27, 32

Croatia, 28, 69 cultural diversity, 31, 35, 38, 40, 86 Cyprus, 11, 15, 28, 42, 43 Cyprus v. Turkey (2002), 42, 43

D Danish Immigration Service, 89 Danish Integration Act of 1999, 87, 92 Danish language, 80, 88, 92, 95, 97, 100–103, 111 Danish Parliament, 88, 93 Danish People’s Party, 87, 88, 97 de jure language rights, 4, 27 Denmark Aarhus, 87 cartoon crisis of 2006, 84 child welfare in, 93 Danish Integration Act, 88 Danish language in, 80, 92, 97 day-care institutions, 93 Department of Education, 97 dual citizenship in, 90 early childhood education in, 93–96 education in, language legislation on, 5, 86, 112 English language taught in, 99 Faroese in, 82 German-speakers in, 2, 81, 102 higher education in, 99 immigrant children in, 89, 94, 96 immigrant minorities in, 5, 97, 113 immigrants to, 84, 86, 89, 109, 112, 117 immigration policies, 87, 89, 97 integration policy, 87 language legislation in, 86, 109 language rights of immigrant minorities in, 5, 85, 86, 102, 112, 113, 116 language rights of linguistic minorities in, 4

INDEX

linguistic homogeneity of, 86 Ministry of Refugee, Immigration, and Integration Affairs, 88 Ministry of Science and Technology, 100 Ministry of Social Affairs, 95 mother tongue education in, 96, 97 multiculturalism and, 96 Muslim immigrants in, 5, 84, 102 National Compromise in, 91 nationalists, 88 naturalization policies, 86 on Blue Card program of EU, 91 on Treaty of Amsterdam, 91 preschools, language legislation on, 5, 86, 109, 112 Public School Act of 2007, 95 refugees in, 103, 109 schools, language legislation on, 5, 86, 109, 112 Sweden and, 80, 81, 84, 113 University of Copenhagen, 101 Denmark’s Technical University (DTU), 99 Directive on the Right of Family Reunion, EU, 91 discrimination, 41, 45, 46, 61, 71, 86, 110 diversity cultural, 18, 19, 30, 35, 38, 39, 86 linguistic, 3, 18, 19, 38, 39, 44, 110 multiculturalism and, 96 Treaty of Lisbon on, 39 Draft Constitution, of EU as Type 16 constitution, 15 France against, 26 language rights in, 13, 15, 17, 20, 26, 109, 110 official languages in, 16 on linguistic minorities, 20–22, 46, 110

143

on minority languages, 2, 13, 19, 20, 46, 110 on Symbols of the Union, 12 rejection of, 26 Treaty of Lisbon and, 2, 38 DTU. See Denmark’s Technical University

E EBLUL. See European Bureau for Lesser-Used Languages EC. See European Community ECHR. See European Commission on Human Rights; European Court of Human Rights ECJ. See European Court of Justice ECRML. See European Charter for Regional and Minority Languages education early childhood, 93–95, 115 higher, 92, 103, 117 in Norway, 115 language legislation on, 3, 41, 71 language rights and, 5, 102 mother tongue, 5, 44, 96–98, 102, 111, 113 preschool, 94 ELEN. See European Language Equality Network English, 2, 5, 15, 16, 28–30, 35, 43, 90, 99–103, 117–119 Esquerra Republicana de Catalunya (ERC), 63 Estonian, 14, 16, 28, 35 EU. See European Union European Bureau for Lesser-Used Languages (EBLUL), 17, 20–22, 30–32, 34, 46, 110 European Charter for Regional and Minority Languages (ECRML), 4, 17, 21, 31, 111

144

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European Commission on Human Rights (ECHR), 42, 46, 110 European Community (EC), 27 European Court of Human Rights (ECHR), 42, 118 European Court of Justice (ECJ), 21, 29 European Framework Convention for the Protection of National Minorities, 81 European Language Equality Network (ELEN), 117, 118 European Parliament, 10, 17, 18, 28, 35, 40–42, 71 European Union (EU) “United in Diversity” motto of, 38 Blue Card program of, 91 Constitution, 2, 3, 11–13, 20, 21 constitutional convention, 20 cultural diversity of, 31 Directive on the Right of Family Reunion, 91 Draft Constitution of, 2, 15–20, 22, 109, 110 EBLUL of, 17, 20–22, 30, 34 ECRML in, 3, 4 English language in, 119 immigrant languages in, 34, 37, 44, 46, 110 intergovernmental conference of, 26 Laeken Declaration on, 10 language conflict in, 4, 14, 58 language policy failures of, 34 language rights of all citizens in, 3, 4, 13, 20, 26 language rights of indigenous minorities in, 5 languages spoken in daily operations of, 30 law, 2 linguistic diversity in, 3, 18, 44 linguistic minorities in, 20, 46, 110

minority languages in, 3, 4, 13, 17, 20, 21, 27, 31, 32, 35–38, 41, 46, 71, 72, 110, 117 multilingualism in, 14, 28 Official Journal of, 28 official languages in, 14–16, 18, 30, 35, 36, 58 officials, communication with, 35 Spain and, 2, 38, 42, 58, 71, 72, 111 TEC and, 11 TEU on, 11 UK and, 5, 11, 28, 30, 37, 91, 117–119 voluntary withdrawal from, 12 working languages in, 5, 14, 17, 20–22, 28, 30, 36, 46, 110, 117–119 Euroscepticism, 26 F Faroe Islands, 5, 82, 83, 98, 102, 111 Faroese, 82 Ferdinand II (king), 55 First Schleswig War, 80 France against Draft Constitution, of EU, 16, 26 linguistic minorities in, 16 on ECRML, 112 regional minority languages in, 16 Franco, Francisco (general), 56, 57 French, 2, 12–16, 26–30, 32, 35, 80 French Revolution, 32 Frisian, 14 Friulian, 14 G Gaelic, Scottish, 4, 15, 27, 37, 42, 117, 118 Galician, 2–4, 13–17, 19, 27, 36, 37, 39–42, 58, 71, 72

INDEX

German, 12, 15, 16, 27–29, 35, 81, 82 Good Friday Agreement, 117 Greek, 16, 28, 35, 42, 43 Greek Cypriot minority, 42, 43 Greenland, 5, 80, 81, 83, 98, 102, 111 H higher education, 92, 99, 101, 103, 117 I immigrants in Norway, 84, 117 in Sweden, 84, 96, 112–114 languages of, 32, 34, 37, 38, 44, 46, 110, 112, 115, 116 minorities, 2, 5, 19, 32, 37, 39, 58, 85, 97, 98, 112, 113 Muslim, 5, 84, 85, 102, 111 immigrants, to Denmark children, 89, 94, 96 immigration policy on, 87, 89, 97 language legislation on, 5, 86, 109, 112 language rights of, 5, 85, 86, 102, 112, 113, 116 Muslim, 5, 84, 102 naturalization process, 88 immigration law, 113 immigration policies, in Denmark, 87, 90, 97 independence referendum, in Catalonia, 64, 65, 118 indigenous minorities, 5, 86, 102, 111, 112. See also Catalan integration, 85–88, 90, 94, 97, 98, 113 international law, 13, 67–70, 72, 110 Ireland, 11, 28, 91, 117, 119 Irish, 14, 16, 28, 33, 35–37, 117–119 Isabella I (queen), 55 Islamic countries, refugees from, 83

145

K Killilea Resolution, 41 Kingdom of Denmark, 80, 82, 83 L Laeken Declaration, 10 language conflict, in EU, 4, 14, 58 conflict, in Spain, 4 discrimination, 45, 46 equality, 59 in EU daily operations, 30 multilingualism, 14 non-official, 14, 36 policies, 2, 3, 100 Treaty of Lisbon on, 4, 26, 39, 40, 46, 47, 71, 110 working, 5, 14, 15, 17, 20–22, 27–30, 36, 37, 46, 110, 117–119. See also official languages language legislation EBLUL as failed, 34 in Denmark, 86, 109 language rights in, 3, 5, 34, 44, 46, 86 minority languages and, 1, 13, 27 of EC, 27 on education, in Denmark, 5, 86, 112 on higher education, in Denmark, 99 on immigrant minorities, in Denmark, 5 on mother tongue education, 5, 96 on preschools, in Denmark, 5, 86, 109 on schools, in Denmark, 5, 86, 109, 112 on Danish language, 93, 96, 99 on preschools, in Denmark, 93 pluralistic approach to, 4, 13, 27

146

INDEX

language minorities. See linguistic minorities language rights de jure, 4, 27 cultural diversity and, 38 for Catalan, 4, 27, 37, 58, 72 in Catalonia, 4, 26, 70 in Draft Constitution, of EU, 13, 15, 17, 20, 26, 109, 110 in education, 5, 102 in language legislation, 3, 5, 34, 44, 46, 86 in Norway, 86, 114, 117 in Spain, 4, 58, 111 in Spanish Constitution, 4, 70 in Statute of Catalonia of 1979, 59 in Statute of Catalonia of 2006, 4 in Sweden, 5, 85, 112–114 in Treaty of Lisbon, 4, 26, 109 of all citizens, 3, 4, 13, 20, 26, 38 of immigrant minorities, in Denmark, 5, 85, 86, 102, 112, 113, 116 of indigenous minorities, in EU, 5 of minority languages, Treaty of Lisbon on, 45, 110 of regional minority languages, 13, 37, 117 language rights, of linguistic minorities in Denmark, 4 in EU, 20, 46, 110 in EU Draft Constitution, 13, 15, 17, 19, 20, 26, 109, 110 in Spain, 4 in Treaty of Lisbon, 45, 110 Latvian, 14, 16, 28, 35 law constitutional, 32, 68 EU, 2 immigration, 113 international, 13, 67–70, 72, 110. See also language legislation

linguistic diversity, 3, 18, 19, 38, 39, 44, 110 linguistic groups, 3, 19 linguistic minorities Cyprus v. Turkey and, 43 conflicts within, 27 discrimination against, 46 in EU, 20, 46, 110 in France, 16 in Spain, 109 indigenous, 22, 81 numbers of speakers, 17, 19, 71. See also immigrants; minority languages; regional minority languages linguistic minorities, language rights of in Denmark, 4 in EU, 20, 46, 110 in EU Draft Constitution, 13, 19, 21, 22, 46, 110 in Spain, 4 in Treaty of Lisbon, 45, 110. See also Denmark; language legislation linguistic pluralism, 18 linguistic rights. See language rights

M Maastricht Treaty, 11, 91 Maltese, 14, 16, 28, 35–37, 118, 119 Mas, Artur, 63 Members of the European Parliament (MEPs), 41 Milian-Massana, A., 27, 36, 37, 41, 42 minority languages de jure language rights, for speakers of, 4, 27 defining, 27 EBLUL and, 21, 31, 32, 34 ECRML on, 4, 21 EU Draft Constitution on, 19 European Parliament on, 41, 42, 71

INDEX

in EU, 13, 17, 20, 21, 26, 27, 31–35, 37, 41, 46, 71, 110 language legislation and, 4, 13, 27 official languages and, 27, 30, 36, 71 official recognition of, 27, 37 Treaty of Lisbon and, 2, 4, 39, 44, 46, 71, 110. See also immigrants; indigenous minorities; regional minority languages Mohammed (prophet), 84 Montilla, José, 63 mother tongue education, 5, 44, 96–98, 102, 111, 113 multiculturalism, 96 multilingualism, 14, 28, 29 Muslim immigrants, in Denmark, 5, 84, 102, 111 N Napoleonic Wars, 80 nationalism, 33, 70 Catalan, 56, 72, 111 Danish, 88 naturalization policies, of Denmark, 86 New Perspectives on European Community Cultural Action resolution, 41 Nice Treaty, 10, 11 nomad languages, 32 non-discrimination, 17–19, 35, 36, 82 non-official languages, 14, 36 Northern Ireland, 33, 117, 118 Norway, 5, 80–82, 84, 86, 112–116 Norway Education Act, 115 O official documents, in Spain, 42, 71 Official Journal of the European Union, 28 official languages Castilian as, 58, 61, 63

147

in EU, 14–16, 18, 30, 35, 36, 58 in EU Draft Constitution, 16 in Treaty of Lisbon, 35, 39, 71 minority languages and, 27, 30, 36, 71 of Catalonia, 16, 18, 37, 59–61 of Greenland, 83 of Spain, 16, 58 provisions for, in EU Draft Constitution, 16 regional languages as, 16, 36, 38, 58

P Pakistan, 83, 86 Parliamentary Intergroup, of European Parliament, 41 Partido Popular (PP), 59, 62, 63 pluralism, 18, 19 Post-Traumatic Stress Disorder (PTSD), 92 PP. See Partido Popular preschool, 82, 93, 94, 96 Prussia, 80, 81 PTSD. See Post-Traumatic Stress Disorder Public School Act of 2007, 95 Puigcercós, Joan, 63

Q Quebec, 67

R Rasmussen, Anders Fogh, 88 Reding Resolution, 41 Reference re Secession of Quebec (1998), 67 refugees, 83, 85, 87, 88, 90, 94, 103, 109 regional minority languages as official languages, 71

148

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Catalan, as largest in Europe, 58 German as, in Denmark, 82 in France, 32 in Spain, 13, 58 in Treaty of Lisbon, 44, 46, 71, 110 in UK, 3, 5, 117, 119 language rights of, 13, 37, 117 rejection, of EU Draft Constitution, 26 Renaixença movement, 56

S Scandinavian countries, 5, 81, 86, 87, 102, 111–113 Scotland, 4, 20, 26, 64, 65, 82, 117, 118 Scottish Gaelic, 4, 27, 37, 42 secession, 4, 27, 37, 64, 66–70, 72, 110 Second Schleswig War, 80 self-governance, 57, 58 Sorb, 14 South Africa, 3, 21, 30, 46 South Jutland dialect, of Danish, 81 Spain Castilian in, 68 Constitutional Court of, 4, 58, 63, 65 Franco in, 57 in War of Spanish Succession, 56 language conflict in, 4 language rights of linguistic minorities in, 4 linguistic minorities in, 109 official documents in languages of, 42 official language of, 15, 16, 58, 71 PP government in, 60, 62 regional languages in, 13, 16, 33, 36. See also Catalan; Catalonia Spanish Civil War, 56 Spanish Constitution of 1978

against secession, 110 language rights in, 4, 70 on Castilian, 58 on Catalonia, 4, 57, 70, 72, 111 Spanish language, 59 Statute of Catalan Autonomy of 1979, 4 Statute of Catalan Autonomy of 2006, 4, 37, 58 Supreme Court, Canada, 67 Supreme Court, U.S., 67 Sweden, 5, 11, 19, 28, 32, 39, 80, 81, 84–86, 89, 96, 112–115 Symbols of the Union, EU Draft Constitution on, 12

T TEC. See Treaty Establishing the European Community Test of Oral English Proficiency for Academic Staff (TOEPAS), 100 TEU. See Treaty on European Union Texas v. White (1869), 67 the Charter. See European Charter for Regional and Minority Languages (ECRML) TOEPAS. See Test of Oral English Proficiency for Academic Staff translations, 16, 29, 30, 39, 40, 63, 70, 72, 111 of official documents, in Spain, 42 of Treaty of Lisbon, 40 Treaties of Accession, 11, 12 Treaty Establishing the European Community (TEC), 10, 11 Treaty of Amsterdam, 91 Treaty of Lisbon de jure language in, 44, 46, 110 EU Draft Constitution and, 2 language rights in, 4, 26, 109 official languages in, 35, 71

INDEX

on “United in Diversity” motto, of EU, 38, 39 on discrimination, 45, 71 on language rights of all citizens, 38 on language rights of minority languages, 45, 110 on minority languages, 4, 39, 44, 46, 71 on non-discrimination and citizenship, 36 on secession, 4 regional minority languages in, 47, 71, 110 revising, 45, 46, 110 translation languages of, 40 Treaty of Maastricht, 20 Treaty of Rome, 11 Treaty on European Union (TEU), 11, 39 Turkey, 83, 86 Turkish, 31, 43, 112 Type 12 constitutions, 21 Type 16 constitution, EU Draft Constitution as, 15

149

U “United in Diversity” motto, of EU, 12, 38 UK. See United Kingdom Unilang Forum, 17, 18 unilateral secession, 69, 70, 72, 110 United Kingdom (UK), 3–5, 11, 13, 15, 20, 26–28, 30–32, 36, 37, 40, 42, 64, 91, 112, 117–119 United Nations Charter, 68 United States (US), 2, 27, 45, 67 University of Copenhagen, 100–102 US. See United States USSR Constitution, 67 W Wales, 17, 20, 117 War of Spanish Succession, 56 Welsh, 3, 4, 13–15, 17, 19, 27, 36, 37, 39, 40, 42, 117 working languages, 5, 14, 15, 17, 20–22, 27–30, 37, 46, 110, 117–119 Y Yugoslavia, 69, 83, 86