Language Rights as Human Rights

Dr. Stephen May is a full professor at Te Puna Wānanga (School of Māori and Indigenous Education) at the University of Auckland, New Zealand. He is an interdisciplinary scholar and international authority on language rights, language policy, and language education, and he has published twenty-six books and over 120 articles and chapters in these fields. His award-winning book Language and Minority Rights (2nd ed., 2012) remains a benchmark publication worldwide in academic discussions of language rights. May is the series editor of the Encyclopedia of Language and Education (3rd ed., 2017) and an editor of the interdisciplinary journal Ethnicities. He is an AERA Fellow and a Fellow of the Royal Society of New Zealand (FRSNZ). See Prof. Stephen May’s Personal Homepage for more information.

1. Summary

In the last eighty years, we have seen the growing development and articulation of human rights, particularly within international law and within and across supranational organizations. However, in that period, the right to maintain one’s language(s), without discrimination, remains peculiarly under-represented and/or problematized as a key human right, particularly for ethnolinguistic minorities. This is primarily because the recognition of language rights presupposes a recognition of the importance of wider group memberships and social contexts–conceptions that ostensibly militate against the primacy of individual rights in the post-Second World War era.

Drawing on sociolinguistics, sociology, political theory, and human rights law, this interdisciplinary article will explore the contestation over language rights during this period and the ongoing reluctance to acknowledge the collective rights of ethnolinguistic minorities within modern nation-states and national and international law. I will first discuss the modern nation-state system’s emphasis on (public) linguistic homogeneity, given that this underpins our current understanding of the distinction between majority/minority languages and the socio-historical and sociopolitical marginalization of the latter. Drawing on sociology and anthropology, I next codify, to the degree possible, who constitutes an ethnolinguistic minority. I then turn to debates in political theory concerning language and citizenship, as well as debates in international law over whether to include and/or accommodate (minority) language rights within the wider framework of human rights. In so doing, I chart recent developments that are more accommodating of a collective understanding of language rights. I conclude by examining the implications of these debates for the (still nascent) recognition of minority language rights in both national and supranational contexts, with a particular focus on Indigenous language rights.

2. Introduction

Over the last eighty years, the notion that language rights might be accorded the status of a fundamental human right and be recognized as such by nation-states and supranational organizations has been both highly contentious and widely contested. The key point of contention has not been the general right of an individual to continue to speak a language (any language) unmolested in the private or familial domain. This is because this broad principle accords with the protection of individual human rights that has developed in the post-Second World War era–exemplified by the (1948) United Nations Universal Declaration of Human Rights (UDHR).[1] Rather, the controversy has focused on whether speakers of minority, or non-dominant, languages have the right to maintain and use that particular language in the public or civic realm–most often in, but not necessarily limited to, education. In this respect, the distinction between minority and majority languages is not primarily based on numbers (fewer = minority; greater = majority), although numbers are a consideration. Rather, the majority/minority language distinction can best be described as differences in status, power, influence, and entitlement among languages. Majority languages have more of each, and minority languages have less. Majority languages are highly valued. They are reinforced by longstanding territorial or state language policies, allowing for their use in formal/public language domains, such as law, education, and public administration. Accordingly, majority languages are associated with communicative reach and wider social mobility. Minority languages are constructed in opposite terms. They are associated with limited use and usefulness. This is because territorial or state policies have tended to limit them to low-status private domains (e.g. family and community), and they are thus also regarded as having little ongoing value. As a result, many minority language speakers eventually “shift” to speaking the majority language in order “to get ahead,” dispensing with the minority language in so doing.

The sociolinguist Heinz Kloss (1977) has encapsulated this key distinction between majority/minority languages, and their public or (delimited) private recognition, via his notions of “tolerance-oriented” and “promotion-oriented” language rights. For Kloss, tolerance-oriented language rights ensure the right to preserve one’s language in the private, non-governmental sphere of national life. These rights may be narrowly or broadly defined. They include the right of individuals to use their first language at home and in public; freedom of assembly and organization; the right to establish private cultural, economic, and social institutions wherein the minority language may be used; and the right to foster a minority language in private schools. The key principle of such rights is that the state does “not interfere with efforts on the parts of the minority to make use of [their language] in the private domain” (1977: 2).

In contrast, promotion-oriented rights regulate the extent to which language rights are recognized within the public domain or civic realm of the nation-state. As such, they involve “public authorities [in] trying to promote a minority [language] by having it used in public institutions–legislative, administrative and educational, including the public schools” (1977: 2). Again, such rights may be narrowly or widely applied. At their narrowest, promotion-oriented rights might simply involve the publishing of public documents in minority languages. At their broadest, promotion-oriented rights could involve recognition of a minority language in all formal domains within the nation-state, thus allowing the minority language group “to care for its internal affairs through its public organs, which amounts to the [state] allowing self-government for the minority group” (1977: 24).[2]

It is this latter notion of promotion-oriented language rights that is the focus of this article. In what follows, I want to explore why this notion has been and continues to be, so controversial. Recent developments have been more accommodating of the recognition of language rights. However, language rights nonetheless largely still remain what I have elsewhere described as a “Cinderella” human right, the “bastard stepchild” in the wider family of human rights (May 2011), roundly rejected as problematic and/or regularly ignored at worst, reluctantly acknowledged and desultorily implemented at best. In so doing, I will first provide some context on the sociohistorical and sociopolitical processes that have led to the entrenchment of majority/minoritized language status in the first place, along with their usually deleterious consequences for the latter. As I will outline, both are the result of the modern nation-state system’s preoccupation with public linguistic homogeneity. Following this, I explore who constitutes an ethnolinguistic minority, drawing first on sociological and anthropological discussions in this regard. I then turn to relevant debates on language rights, concerning ethnolinguistic minorities, in two key interdisciplinary areas–political theory debates over language and citizenship and international law debates over whether to include and/or accommodate language rights within the wider framework of human rights. I conclude the article by examining the implications of these ongoing debates for the (still nascent) recognition of language rights in both national and supranational contexts, with a particular focus on Indigenous language rights.

3. Linguistic Hierarchization: The Role of the Modern Nation-State

Majority/minority language status–or what Liddicoat (2013) usefully describes more broadly as the entrenchment of linguistic “hierarchies of prestige”–is grounded in normative understandings of the modern nation-state system, particularly its emphasis on (public) linguistic homogeneity. For example, a key ongoing requirement of national citizenship is a commitment to a national language (or, more rarely, a few national languages) as a visible and ongoing demonstration of both political and social integration by its members. In effect, citizenship in modern nation-states is invariably linked to at least some knowledge of, and facility in, the requisite national language(s) as a key indicator or proxy of one’s wider civic and national commitment (Bauman and Briggs, 2003; May 2017b).

However, the valorization of national languages as a key indicator of both national identity and citizenship is only a relatively recent historical phenomenon–the product of the politics of nationalism that most commentators agree originated in Europe in the 18th century, via the French Revolution, and has since spread worldwide (see May 2012, 2021, for extended discussions). This movement is predicated on the notion of “nation-state congruence.” Nation-state congruence holds that the boundaries of political and national identity should coincide. The view here is that people who are citizens of a particular state should also, ideally, be members of the same national collectivity. And if they are to be of the same nationality, they should also, by extension, speak the same “national” language. The result of modern nationalism, in this view, is the establishment of an ethnically exclusive and culturally homogeneous nation-state, represented ideally by one national language to which all must subscribe (May 2021).

National linguistic homogeneity is most often achieved via the twin processes of legitimation and institutionalization (May 2012). Here legitimation is understood to mean the formal recognition accorded to the language by the nation-state–usually, by the constitutional and/or legislative benediction of official status. For example, Pierre Bourdieu (1982: 27), the French sociologist and anthropologist, observes this about France: “la langue officielle a partie liée avec l’État”–the legitimate (or standard) language becomes an arm of the state. Institutionalization, perhaps the more important dimension, refers to the process by which the language comes to be accepted or “taken for granted” in a wide range of social, cultural, and linguistic domains or contexts, both formal and informal.

How was this accomplished? Principally via the political machinery of these newly emergent European states, with mass education playing a central role (Anderson, 2016; Gellner, 1983). The combination of legitimation and institutionalization achieves not only the central goal of linguistic homogeneity but also its inevitable corollary–the devaluing, diminution, and exclusion of other (competing) language varieties. These latter language varieties are, in effect, (re)positioned by modern nation-states as languages of lesser political worth and value, often via faux linguistic ascriptions, such as “dialects” or “patois.”[3] As Bourdieu observes of this process, again about France: “measured de facto against the single standard of the ‘common’ language, they are found wanting and cast into the outer darkness of regionalisms” (1991: 54). Consequently, national languages have come to be associated inextricably with modernity and progress, particularly via their educational institutionalization. Indeed, as the sociologist of nationalism Ernest Gellner (1983) argues, a well-defined, educationally sanctioned, and unified linguistic culture came to be seen as a prerequisite for modernity, a basis of political legitimacy, and a means of shared cultural identity. Meanwhile, their less fortunate minoritized linguistic counterparts have become associated (conveniently) with tradition and obsolescence. Often the latter are also specifically constructed as “obstacles” to the political project of nation-building–as threats to the “unity” of the state (May, 2017a).

This state-led “ideology of contempt” (Grillo, 1989) toward other language varieties thus constructs them as having little linguistic, social, or utilitarian value–as relics or vestiges of antediluvian, pre-modern forms of communalism, in effect. Such language varieties might perhaps be tolerated in an ongoing way (only) in the private/familial domain but certainly not as public languages and/or languages of wider communication. Not surprisingly perhaps, speakers of these socially and politically minoritized language varieties have thus tended to shift to dominant national language(s)–often becoming monolingual in the latter over time–given the national language’s apparent association with modernization, civic inclusion, and social mobility.[4]

This helps to explain the projected exponential loss of most of the world’s 7,000 or so spoken languages. Indeed, it has been predicted for over thirty years now that up to 90% of the world’s languages are endangered, and up to 50% may die by the end of the 21st century (Krauss, 1992; see also Nettle and Romaine, 2000; Harrison, 2007; Campbell and Belew, 2018). Of course, such language loss and language shift have always occurred, but never to this extent and never at such an exponential rate (Bromham et al., 2022). The potential scale and rapidity of language loss predicted here also highlight the inevitable social, economic, and political consequences for minority language speakers of such shift and loss. We can see this clearly if we consider which groups are most affected by language loss–almost always groups that are (already) socially and politically marginalized and/or subordinated. Indigenous peoples are particularly at risk here, given the extreme marginalization of many Indigenous communities (see below). Thus, while Indigenous peoples continue to speak about two-thirds of the world’s languages, almost all those Indigenous languages are currently endangered,[5] while many have already become extinct (see, e.g. Fill and Penz, 2017; Eberhard et al. 2019 for recent overviews).

In this respect, linguistic dislocation for a particular community of speakers seldom, if ever, occurs in isolation from sociocultural and socioeconomic dislocation as well. As the sociolinguist Nancy Dorian summarizes it: “[i]t is the concept of the nation-state coupled with its official standard language … that has in modern times posed the keenest threat to both the identities and the languages of small [minority] communities” (1998, p. 18). The sociolinguist Florian Coulmas observes, even more succinctly, that “the nation-state as it has evolved since the French Revolution is the natural enemy of minorities” (1998, p. 67). In short, these processes ensured that both national and minority languages were literally created out of the politics of European state-making and not, as we often assume, the other way around (Billig, 1995).

Proponents of language rights for ethnolinguistic minority groups thus argue that the emphasis on cultural and linguistic homogeneity within nation-states, and the attendant hierarchizing of languages, are thus neither inevitable nor inviolate. Rather, we need to consider the historical recency of nation-states and the related, often arbitrary and contrived, processes by which specific languages have been accorded “national” (majority) or “minority” status, respectively.[6]

4. Categorizing Ethnolinguistic Minorities

Discussion of ethnolinguistic minorities and any potential language rights attributable to them immediately presupposes who might comprise such groups. However, defining linguistic minority status is a fraught process and can only be sensibly pursued with a deeply contextualized understanding of what any given minority/majority language relationship might comprise in their (national) context(s). Be that as it may, some broad categorizations can be tentatively drawn.

In what follows, I first outline categorizations of ethnolinguistic minorities from a sociological perspective, before turning to how these groups and any associated language rights’ claims are perceived in political theory about questions of (national) citizenship. Following this, I explore related discussions of such groups within international law in relation to language rights before concluding with an examination of the language rights of Indigenous peoples.

Sociological Categorizations of Ethnolinguistic Minorities

From a sociological perspective, “ethnolinguistic minorities” can be defined as language groups that are a numerical minority in a given state and are politically non-dominant (Minority Rights Group, 1997). This is not to suggest that minority/majority relationships are fixed, since they are, by definition, relative and relational–differing from one context to the next as well as over time (Eriksen, 2010). Nonetheless, linguistic minorities are usually characterized by a history of linguistic—as well as broader social, economic, and political–marginalization and/or exploitation within nation-states (Carens, 2000). To make some distinctions among these ethnolinguistic minorities, in what follows, I draw on the social anthropologist Thomas Eriksen’s (2010) useful attempts to develop a typology of such minority groups, albeit from a broader perspective than a solely linguistic one. Given the inevitable limitations of typologies, where appropriate I also draw on several complementary categorizations. This attempt at a more nuanced categorization notwithstanding, the following distinctions should be seen primarily as useful heuristic devices, rather than as definitive and/or exhaustive categories. It should also be borne in mind that these minority groups are no more homogeneous than any other grouping, and accordingly, reflect significant intra- as well as intergroup differences along with a considerable degree of overlap.

4.2. Indigenous Peoples

Indigenous peoples in the world today have been estimated to number at least 370 million in some ninety countries, amounting to about 5% of the world’s population (United Nations, 2009). The most recent estimates suggest that the total number of Indigenous peoples might even be as much as 476 million globally (International Labour Organization, 2020). Within the anthropological, sociological, and political science literature, Indigenous peoples refer to aboriginal groups who are socio-politically non-dominant and who are not or are only partially, integrated into the nation-state system. They include groups such as Māori, Sámi, Australian Aboriginal peoples, Torres Strait Islanders, Native Americans, Hawaiians, and Inuit, among many others. These groups are associated historically with a nonindustrial mode of production and a stateless political system (Minority Rights Group, 1997). Crucially, Indigenous peoples have also been historically associated with particular territories before their sedimentation into modern nation-states–usually, in the case of Indigenous peoples, via, colonization (May 2012, 2024).

Indeed, the extreme disadvantages currently faced by many Indigenous peoples in modern nation-states are attributable to the usual deleterious effects of colonization. Such historical processes have seen the expropriation of Indigenous land and the destruction (or near destruction) of their language(s) and traditional social, economic, and political practices–most often via educational and wider assimilation processes. Accordingly, the predominant concerns of Indigenous peoples are for separate (or, at least, more autonomous) political and cultural recognition within the nation-state and, where possible, for political and economic redress for past injustices. This focus on greater autonomy is exemplified by the notion of “internal self-determination”–a term first coined by Barsh (1996). Internal self-determination acknowledges the right to greater autonomy within the nation-state for Indigenous peoples but does not necessarily include the right to secession, the key political consequence with which self-determination is most often associated. Rather, this focus on internal self-determination emphasizes negotiated power sharing, both through constitutional reform and within existing institutions. As we shall see, the increasing assertion of internal self-determination for Indigenous peoples is most often expressed via arguments for the expansion of promotion-oriented Indigenous language and education rights (May 2024).

4.3. Established (National or Regional) Minorities

The category of “Indigenous peoples,” however, does not extend in definitional terms to groups– such as the Welsh, Catalans, and Basques–who have a similar historical association with a particular territory, but who do not share the characteristics usually associated with Indigenous peoples (Darquennes 2013; Eriksen 2010). In this regard, Churchill’s (1986) distinction between “indigenous” and “established” minorities is a useful addendum here. Churchill argues that “established” and “indigenous” minorities are both minority groups that have been long established in their native countries. However, where Indigenous peoples are characterized by a “traditional” culture often regarded as being at odds with that of the majority group, established minorities are characterized by a lifestyle similar to the remainder of the national society, albeit often disadvantaged relative to the majority group. As such, established minorities are more likely to be able to lay claim to a right to conserve their identity and to back such claims with political might.

The notion of “established minorities” also closely accords with the category of “national minorities” in international law and the increasing rights attributable to them in supranational legislation (May 2019; see below). Thus, while analytically distinct, it should be reiterated that the positioning of national minorities and Indigenous peoples vis-à-vis linguistic marginalization remains similar. The political philosopher Will Kymlicka (1995) makes these connections explicit when he argues that both national minorities and Indigenous peoples can be usefully collocated as groups of people who retain a historical association with a particular territory, but who have been subject to conquest, and colonization, or confederation–or some combination of them–in that territory. This has resulted, he argues, in their comparable linguistic and broader social and political minoritization over time.

4.4. Ethnic (Urban or New) Minorities

Unlike the preceding groups, which can be seen as having a historical claim to a particular territory, modern migrants and refugees comprise those who have immigrated to/sought refuge in a new country where they have subsequently settled. Usually, such groups have come to be concentrated in urban areas. Often described as “ethnic minorities” or “new minorities,” these groups may retain elements of their culture, language, and traditions–sometimes over the course of several generations–in the host society. However, their general aim historically has been to integrate into the host society and to be(come) accepted as full members thereof. As such, ethnic minorities have traditionally been distinguished from established/national minorities and Indigenous peoples on the basis that their ethnic, cultural, and linguistic distinctiveness is manifested primarily in the private domain and is thus not inconsistent with their institutional integration into the nation-state (Kymlicka 1995).

Accordingly, ethnic minorities do not usually seek separate, self-governing status within the nation-state, as is typically demanded by national minorities and Indigenous peoples. Rather, they argue for a more plural and inclusive conception of national identity and culture, which recognizes their contribution to and influence on the historical and contemporary development of the host nation-state. In so doing, however, such claims may also potentially come to include greater public and/or institutional recognition of their distinctive cultural, religious, and/or linguistic backgrounds—i.e. a more reciprocal relationship between ethnic minorities and host nation-states. These demands, often centered around multiculturalism as public policy (Modood, 2013; Bauböck, 2022), have gained greater saliency because of the exponential growth of migration and transmigration–particularly over the last quarter century–a phenomenon described by the British sociologist Steven Vertovec (2007, 2019) as the rise of “superdiversity.”

These three broad sociological groupings thus highlight key social, political, and analytical distinctions among ethnolinguistic minorities. However, what is most striking perhaps is how seldom these groups are discussed in conjunction with each other in relation to their respective language rights’ claims. As Extra and Gorter (2001: 3–4) noted nearly twenty-five years ago, in an observation that still holds:

Despite the possibilities and challenges of comparing the status of regional minority and immigrant minority languages, amazingly few connections have been made in the sociolinguistic, educational and political domain. […] Contacts between researchers and policymakers working with different types of minority groups are still scarce. […] Overall, we see disjointed research paradigms and circles of researchers that have very little or no contact, although they could learn a lot from each other […].

These disjunctions are also clearly apparent in the still-relative lack of interdisciplinary discussions of language rights in the academic literature. While sociolinguistic commentators have been more active in interdisciplinary discussions of language rights (see Ricento, 2014; May 2012, 2023a for useful overviews), political theory and law analyses of language rights, such as they are, remain largely disciplinarily hermetic.[7] Thus, while still largely siloed in their respective disciplines, I turn next to discussions within political theory that address the relationship between (national) citizenship and minority linguistic rights before addressing comparable arguments in relation to international law. In both contexts, there is still only limited accommodation of the language rights of Indigenous and national minorities and virtually no meaningful accommodations for ethnic minorities.

4.5. Citizenship and (Minority) Language Rights

Debates on language rights in political theory have been primarily concerned with the question of access to the state’s majority language(s) as a basis for individual and collective civic inclusion. Minority language rights, particularly promotion-oriented rights for those groups whose first languages differ from the state language(s), are seldom discussed directly (although see Kymlicka and Patten, 2003; Patten, 2009; Oakes and Peled, 2018).

A key reason for this lack of direct discussion of promotion-oriented language rights for minority groups, and a related skepticism toward their recognition and implementation, returns us to the post-Second World War normative understanding of human rights as primarily, even exclusively, individual rights. In contrast, the right to the maintenance of a minority language has generally been articulated in the political arena–both well before the Second World War and since (Thornberry 1991a,b; de Varennes 1996, 2023; Dunbar, 2023)–on the basis that the particular language in question constitutes a collective or communally shared good of a particular linguistic community.[8] Little wonder then that such claims have received scant sympathy and made even less progress in a political environment largely opposed to group-based rights claims.

The difficulties facing arguments in favor of group-based language rights are most clearly illustrated by the normative ascendancy in political theory of orthodox liberalism, championed most prominently by John Rawls (1971), which addresses the person only as a political being with rights and duties attached to their status as citizens. Such a position does not countenance private identity, including a person’s communal membership, as something warranting similar recognition. These latter dimensions are excluded from the public realm because their inevitable diversity would lead to the complicated business of the state mediating between different conceptions of “the good life” (Rawls, 1971, 1985; Dworkin, 1978). On this basis, personal “autonomy”–based on the political rights attributable to citizenship–always takes precedence over personal (and collective) “identity” and the widely differing ways of life that constitute the latter. In effect, personal and political participation in liberal democracies, as it has come to be constructed in orthodox liberalism, ends up denying group differences and posits all persons as interchangeable from a moral and political point of view (Young, 1993, 2000). Indeed, the recognition of group differences–on the basis, for example, of one’s language background–is constructed in orthodox liberalism as specifically problematic, as leading to potential societal fragmentation and dissonance (see e.g. Archibugi, 2005; Barry, 2001; Huntington, 2005).[9]

However, this strict separation of citizenship and identity in the modern polity understates, and at times disavows, the significance of wider communal affiliations, including one’s ethnic and linguistic background, to the construction of individual identity. As Sandel (1982) observes, for example, there is no such thing as the “unencumbered self”–we are all, to some extent, “situated” within wider communities that shape and influence who we are. Likewise, Charles Taylor argues that identity “is who we are, ‘where we’re coming from’. As such, it is the background against which our tastes and desires and opinions and aspirations make sense” (1994: 33-34). These arguments also highlight the obvious point that certain goods such as language, culture, and sovereignty cannot be experienced alone; they are, by definition, communally shared goods. A failure to account for these communal goods, however, has led to a view of rights within liberal democracy which is inherently individualistic, and which cannot appreciate the pursuit of such goods other than derivatively.

In short, individualistic conceptions of the good life may preclude shared community values that are central to one’s identity, including language. Conversely, as the philosopher Jürgen Habermas has put it, “a correctly understood theory of [citizenship] rights requires a politics of recognition that protects the individual in the life contexts in which his or her identity is formed” (1994: 113). As Habermas (1994: 116) proceeds to observe:

A ‘liberal’ version of the system of rights that fails to take this connection into account will necessarily misunderstand the universalism of basic rights as an abstract leveling of distinctions, a leveling of both cultural and social differences. To the contrary, these differences must be seen in increasingly context-sensitive ways if the system of rights is to be actualized democratically.

The political philosopher Will Kymlicka (1995, 2001, 2007) has provided the most extensive ripostes to this apparent rejection tout court of any collective identities within orthodox liberalism. He has argued consistently that the attempts of theorists, like Rawls (1971) and Dworkin (1978), to separate citizenship from communal identity still retain an implicit recognition of cultural membership as a primary good. Following this, Kymlicka has proffered his notion of “group-differentiated rights,” which he acknowledges can also include language rights. A key to Kymlicka’s position is his rejection of the assumption that group-differentiated rights are “collective” rights which, ipso facto, stand in opposition to ‘individual’ rights. Group-differentiated rights are not necessarily “collective” in the sense that they privilege the group over the individual–they can be accorded to individual members of a group, to the group, or to a federal state/province within which the group forms a majority. For example, the group-differentiated right of Francophones in Canada to use French in federal courts is an individual right that may be exercised at any time. The right of Francophones to have their children educated in French-medium schools, outside of Québec, is an individual right also but one that is subject to the proviso “where numbers warrant.” Alternatively, the right of the Québécois to preserve and promote their distinct culture in the province of Québec highlights how a minority group in a federal system may exercise group-differentiated rights in a territory where they form a “regional majority” (see also Oakes and Peled, 2018). As such, there is no simple relationship between group-differentiated rights accorded based on cultural membership and their subsequent application. As Kymlicka concludes, “[m]ost such rights are not about the primacy of communities over individuals. Rather, they are based on the idea that justice between groups requires that the members of different groups be accorded different rights” (1995: 47).

A related argument developed by Kymlicka in support of this position, and one that can also be usefully extended to language rights, is his distinction between what he terms “internal restrictions” and “external protections” (1995: 35-44). Internal restrictions involve intragroup relations where a minority group seeks to restrict the individual liberty of its members based on maintaining group solidarity. These rights are often associated with theocratic and patriarchal communities and, when excessive, may be regarded as illiberal. In contrast, external protections relate to intergroup relations where an ethnic or national minority group seeks to protect its distinct identity (including a linguistic one) by limiting the impact of the decisions of the larger society. External protections are thus intended to ensure that individual members can maintain a distinctive way of life “if they so choose” and are not prevented from doing so by the decisions of members outside of their community (see Kymlicka, 1995: 204. n.11). Although this case does not involve individual oppression, it has dangers involving the possible unfairness that might result between groups. The ex-apartheid system in South Africa provides a clear example of the latter scenario. However, as Kymlicka (1995: 36-37) argues, external protections need not result in injustice:

Granting special representation rights, land claims, or language rights to a minority need not, and often does not, put it in a position to dominate other groups. On the contrary…such rights can be seen as putting the various groups on a more equal footing, by reducing the extent to which the smaller group is vulnerable to the larger.

Kymlicka argues that, on this basis, liberals can endorse certain external protections where they promote fairness between groups while still contesting internal restrictions that unduly limit the individual rights of members to question, revise, or reject traditional authorities and practices. About the various group-differentiated rights outlined earlier, Kymlicka asserts that “most demands for group-specific rights made by ethnic and national groups in Western democracies are for external protections” (1995: 42). Even where internal restrictions are also present, these are usually seen as unavoidable by-products of external protections rather than as desirable ends in themselves. Given this, it is possible to argue that minority language rights constitute legitimate external protection since, as Kymlicka concludes, “leaving one’s culture, while possible, is best seen as renouncing something to which one is reasonably entitled” (1995: 90). Relatedly, he argues (1995: 90-91):

The freedom that liberals demand for individuals is not primarily the freedom to go beyond one’s language and history, but rather the freedom to move within one’s societal culture, to distance oneself from particular cultural roles, to choose which features of the culture are most worth developing, and which are without value.

As it happens, adopting this more inclusive position on language rights for minority groups within modern nation-states accords closely with an earlier (pre-Second World War) understanding of political theory, as illustrated by Hobhouse, who believed that “[t]he smaller nationality does not merely want equal rights with others. It stands out for a certain life of its own…” (1928: 146). Such a position is also consonant with pre-Second World War understandings of minority rights in international law, to which I now turn.

5. Minority Language Rights in International Law

The ambivalences towards any recognition of group-based rights in political theory, including language rights, are also closely reflected in the domain of international law, particularly as it has come to be defined by the (1948) United Nations Universal Declaration of Human Rights. As is widely known, all references to ethnic and national minorities were deleted from the final version of the Declaration.[10] This was, in turn, the result of an emerging widespread conviction at that time that minority group rights were somehow incompatible with national and international peace and stability. As Claude (1955: 211) has observed of these developments:

The leading assumption has been that members of national minorities do not need, are not entitled to, or cannot be granted rights of special character. The doctrine of human rights has been put forward as a substitute for the concept of minority rights, with the strong implication that minorities whose members enjoy individual equality of treatment cannot legitimately demand facilities for the maintenance of their ethnic particularism.

Language rights are especially prone here to ongoing associations with the (unnecessary) promotion of ethnic particularism at the perceived expense of wider social and political cohesion.[11] The sociolinguist Joshua Fishman (1991: 72) usefully summarizes this view:

Unlike ‘human rights’ which strike Western and Westernized intellectuals as fostering wider participation in general societal benefits and interactions, ‘language rights’ still are widely interpreted as ‘regressive’ since they would, most probably, prolong the existence of ethnolinguistic differences. The value of such differences and the right to value such differences have not yet generally been recognized by the modern Western sense of justice…

Thus, as with political theory, discussions of the rights of linguistic minorities in international law post-Second World War remain both relatively limited and, when they are addressed, largely skeptical. As Fernand de Varennes (2023: 193) notes of the United Nations, for example, it has only been as recently as:

… 2017 with the publication of Language Rights of Linguistic Minorities: A Practical Guide for Implementation, and only from the point of view of the mandate of the UN Special Rapporteur on Minority Issues who is an independent expert, and not strictly speaking a UN official, [that] linguistic human rights [have] begun to be addressed and presented in a more coherent, comprehensive and consistent manner in the framework of the UN international human rights architecture. There is still however widespread institutional misinformation and misunderstandings at the United Nations as to what are linguistic human rights, and even in some cases reticence or even rejection of the desirability of such a conceptual approach.

Where an accommodation of the rights of linguistic minorities has been addressed in international law, this has focused primarily on national minorities and Indigenous peoples (de Varennes, 1996; Xanthaki, 2007), as we shall see. However, the language rights of ethnic minorities remain barely acknowledged, let alone addressed (Skutnabb-Kangas and May 2017). This ongoing bifurcation in international law has implications for both the legal definition of what constitutes a linguistic minority and the rights attributable to them, as well as related regional, national, and supranational language policy developments. Before turning in more detail to the legal implications of the ongoing distinctions made among linguistic minorities concerning language rights, let me first briefly outline the broader historical evolution of these minority language rights in international law, such as it is.

6. The Legal Origins of Language Rights

While there has been a general antipathy to the recognition of minority language rights in the post-Second World War period, this was not always the case. In the 19th century, for example, treaties were often employed for the protection of minority groups, initially based on religion and, later, on the grounds of nationality–including within the latter, language and culture (Thornberry, 1991a). These practices culminated in the general organization of the League of Nations, established in the wake of the First World War. The League endorsed a range of bilateral treaties aimed at securing special political status for national minority groups within Europe in what came to be known as the Minority Protection Scheme (MPS).[12] The MPS–overseen by its Permanent Court of International Justice (PCIJ)–was primarily concerned with the protection of “displaced” minorities in other nation-states, the result in turn of the reorganization of European state boundaries after the First World War. They included two principal types of measures: 1) individuals belonging to linguistic minorities, amongst others, would be placed on an equal footing with other nationals of the state; 2) the means of preserving the national characteristics of minorities, including their language(s), would be ensured (de Varennes and Kuzborska, 2017).

In the most prominent legal ruling on these provisions–the (1935) Advisory Opinion on Minority Rights in Albania–the PCIJ stated that these two requirements were inseparable. It concluded that “there would be no true equality between a majority and a minority if the latter were deprived of its institutions and were consequently compelled to renounce that which constitutes the very essence of its being a minority” (see Thornberry, 1991a: 399-403). Based on this judgment, linguistic minorities were confirmed in their right to establish private schools and institutions. However, public funding of minority language-medium schools was also advanced “where numbers warrant.” In respect of this and other similar decisions, linguistic minorities were defined purely on a numerical basis–that is, as constituting less than 50% of the population. Even so, freedom of choice as to membership in a minority also seemed to permeate the MPS.

7. Contesting Language Rights

Subsequent developments in international law, most notably the United Nations’ 1948 Declaration of Human Rights (UNDHR), rapidly superseded these treaties and the principles upon which they were based.[13] Minority language and education rights were subsequently largely subsumed within the broader definition of human rights adopted by the UNDHR. Human rights were thought, in themselves, to provide sufficient protection for minorities.[14] Accordingly, in the post-Second World War period, no additional rights were deemed necessary for minority group members. Nonetheless, even within this more generalist framework of rights, there have been echoes, albeit weak ones, of the principles of minority protection, both with respect to language and education. The most notable of these has perhaps been Article 27 of the (1966) International Covenant on Civil and Political Rights (ICCPR). Article 27 imposes a negative duty on nation-states–in effect, amounting to a minimum of Kloss’s (1971) notion of tolerance-oriented rights–concerning the protection of the languages and cultures of minority groups:

In those states in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

Before proceeding further, I should first point out the problematic nature of the initial clause, “In those states in which ethnic, religious or linguistic minorities exist…” Like many other examples of supranational and/or international soft law (see below), their successful enactment depends in the end on the compliance of individual nation-states. Even more than this, nation-states have to agree in the first instance that the legislation applies to them. Thus, the initial tentative formulation in Article 27 has allowed some nation-states in the past simply to deny that any such minorities exist within their jurisdiction. France is one such example where this has occurred, but there are many others, including Bangladesh, China, Malaysia, Japan, Myanmar, and Thailand, as well as numerous Latin American nation-states. This pattern of avoidance has been addressed more recently by new guidelines in the General Comment of the Covenant, adopted in April 1994, which stipulate that the state can no longer solely determine whether a minority is said to exist or not within its territory. However, the “problem of compliance” remains an ongoing one.

Be that as it may, I want to explore here what the actual obligations entailed in Article 27 might involve–in particular, to what extent these reflect a tolerance or even potentially a promotion-orientation to minority language rights. Likewise, I am interested in exploring further the degree to which these rights attach to groups and/or to individual members of these groups. Dealing with the latter first, the process of agreeing on the particular form of wording in Article 27 provides us with some important clues. As Thornberry (1991a: 149) explains, from an initial proposal that “linguistic minorities shall not be denied the right…to use their own language,” the final wording of Article 27 was arrived at as follows:

The [UN] Sub-Commission preferred that ‘persons belonging to minorities’ should replace ‘minorities’ because minorities were not subjects of law and ‘persons belonging to minorities’ could easily be defined in legal terms. On the other hand, it was decided to include ‘in community with other members of their group’ after ‘shall not be denied’ to recognize group identity in some form.

The tension evident here between individual and group ascription is reflected in the question of who exactly can claim rights under Article 27. This question has been tackled on two fronts. First, following the precedent set by the earlier minority treaties, “minorities” in Article 27 have come to be defined strictly in numerical terms. A minority is defined as a group who share a common culture, religion, and/or language and who constitute less than 50% of a state’s population. Thus, a minority may be numerically dominant in a particular province–a “regional majority,” in effect, as, for example, the Québécois in Québec and the Catalans in Catalonia–but may still be classified as a minority within their respective nation-states.[15]

Second, any person may claim to be a member of a linguistic minority group based on self-ascription. However, to benefit from Article 27, they must also demonstrate that some concrete tie exists between themselves and the minority group. About a minority language, this would require a real and objective tie with that language. It would not be sufficient, for example, to be a member of a minority ethnic group that is known to speak a particular language if the individual does not speak that language. Nor are particular languages and the rights associated with them tied to specific ethnic groups, since more than one ethnic group may speak the same language. Determining that an individual belongs to a particular linguistic minority is thus not an issue of establishing some type of legal or political category, it is principally an objective determination based on some concrete link between an individual and a linguistic community (de Varennes, 1996).

8. In Search of a Legal Definition

The definition of what constitutes a linguistic minority for the purposes of Article 27 has continued to be contested in debates about the legitimacy of any minority group-based claims to language rights within international law up to the present day (May 2011, 2019; de Varennes and Kuzborska, 2017; de Varennes, 2023; Dunbar, 2023). Perhaps the most widely agreed upon definition of a linguistic minority over this period has been that of the Special Rapporteur for the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Francesco Capotorti (1979), who, in discussing the implications of the ICCPR, suggested a minority for Article 27 could be defined as follows:

[a] group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members–being nationals of the State–possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.

Capotorti’s definition has been the one most often referred to in subsequent discussions of language rights (Skutnabb-Kangas and May 2017). However, it has also increasingly been contested on the basis that it only affords these rights to “nationals” or citizens. Accordingly, the UN Human Rights Committee has since opted for a far less restrictive interpretation than the Capotorti definition, arguing that any linguistic, religious, or ethnic minority in a state is entitled to claim the minimum obligations and rights guaranteed by Article 27 of the ICCPR, regardless of status, dominance, period of residency, etc. (de Varennes and Kuzborska, 2017). As de Varennes and Kuzborska also note, this position is reinforced by Article 31(1) of the Vienna Convention on the Law of Treaties, which specifies that a treaty must be interpreted in good faith in accordance with the ordinary meaning of its terms in their context and in light of its object and purpose–in this instance, the definition of a linguistic minority. This understanding also extends to the protection of regional majorities, who continue to be deemed a minority within the wider nation-state for the purposes of Article 27.

This latter position is most clearly reflected in the case of Ballantyne, Davidson, and McIntyre v. Canada (1989),[16] brought before the United Nations Human Rights Committee (UNHRC). In the case, the litigants argued that, as English speakers in Québec, they were disadvantaged by the region’s French language laws and that, as such, they should be treated as a linguistic minority under Article 27 of the ICCPR with the related right to English-medium education. The UNHRC court ruling, however, denied their claim on the basis that “English-speaking citizens of Canada cannot be considered a linguistic minority.” This is also in broad accord with the requirement in Article 27 for states to act against third parties, such as majority citizens, who intend to infringe or have already infringed upon this minority right.

9. Reclaiming Minority Language (and Education) Rights

The definitional debates of what constitutes a linguistic minority for the purposes of Article 27 are important for another reason. They determine whether the rights to minority language and education are tolerance- or (potentially) promotion-oriented rights. Two opposing schools of thought are evident here. Following the influential review of the scope of Article 27 by Capotorti (1979), some commentators, including myself (see Thornberry, 1991a, b; Tollefson, 1991; Skutnabb-Kangas, 2000; May 2011), have argued that the words “shall not be denied” could be read as imposing no obligation on a state to take positive action to protect those rights. An alternative and equally compelling view, however, “is that to recognize a right to use a minority language implies an obligation that the right be made effective” (Hastings, 1988: 19). On this basis, it has been argued that Article 27 can be said to encompass a promotion-orientation to language rights with attendant state support, rather than the more limited tolerance-oriented right that a solely negative duty implies.

This promotion-oriented perspective on language rights can also be linked directly to education. For example, Article 2(b) of the (1960) Convention Against Discrimination in Education specifically provides for the establishment or maintenance, for linguistic reasons, of separate schools, provided attendance is optional and the education is up to national standards. Moreover, Article 5 of this Convention recognizes the “essential” right of minorities to carry on their own educational activities and, in so doing, to use “or teach in” their own language. It subsequently qualifies this right, somewhat contradictorily, by making it conditional on a state’s existing educational policies and by ensuring it does not prejudice national sovereignty and the ability of minorities to participate in national life. However, the right to minority language education can nevertheless be established (Hastings, 1988).

The question remains though–to what extent should minority language and education be funded by the state, if at all? Promotion-oriented rights suggest they should but also necessarily impose limits on who is eligible. Capotorti’s (1979) review, for example, was predicated on the understanding that Article 27 applied solely to national minorities–immigrants, migrant workers, refugees, and non-citizens were excluded. In contrast, tolerance-oriented rights imply no such obligation to the state. While necessarily more limited, such rights may at least have the advantage of being able to apply to a wider range of minority groups, and this brings us to the opposing school of thought on Article 27. Fernand de Varennes (1996) argues that Capotorti’s interpretation of a more active obligation by the state on behalf of national minorities, and the subsequent commentary which has endorsed this position, does not reflect the actual intentions of Article 27. Indeed, Capotorti admitted as much at the time of his review. In effect, he set aside what the drafters originally meant because of his concern that a negative duty was not sufficient to protect minority language and education rights. In hindsight, de Varennes suggests that Capotorti’s pessimism may have been misplaced. After all, the minorities’ treaties had already established the long-standing principle of private language and education for minorities without any hindrance from the state. Indeed, where enough numbers warranted, there was also a recognition that some form of state-funded minority education could be established. As de Varennes (1996: 158) concludes:

Article 27 thus appears to be part of a long-established and continuous legal continuum that the rights of linguistic minorities to use their language amongst themselves must necessarily include the right to establish, manage, and operate their own educational institutions where their language is used as the medium of instruction to the extent deemed to be appropriate by the minority itself.

The debates on the merits of Article 27 as an instrument for promotion-oriented rights remain ongoing. Be that as it may, we can at the very least conclude that Article 27 sanctions a clear baseline for tolerance-oriented language and education rights. This level of protection for minority language and education rights applies to all minority groups based on the strict numerical interpretation of minorities within international law. Indeed, where a minority has sufficient numbers, there remains some additional scope for state-funded language education; although given the emphases of Article 27, this decision remains at the discretion of the nation-states themselves. This brings us to the central problem of Article 27 and, indeed, most international law in this area, including more recent developments (see below). In short, much of the implementation of such measures is still dependent on what nation-states “deem appropriate.” The result is thus left to the vicissitudes of internal national politics where the provision of minority rights is viewed principally as one of political largesse rather than a fundamental question of human rights. The consequence of this in turn is, more often than not, the adoption of the bare minimum level of rights required (and sometimes not even that).

Notwithstanding this difficulty, the notion of a more promotion-oriented view of minority language and education rights does appear to be gaining some ground, at least for national minorities and Indigenous peoples–groups with an established historical association with a particular territory. In this respect, there have been several recent instruments in international law that, at least in theory, allow for a more promotion-oriented perspective on language and education rights. These instruments are, in turn, a product of a more accommodative approach to minorities in the post-Cold War era (Preece, 1998). I will first discuss legal developments about national minorities. In the next section, I will turn to legal developments about Indigenous peoples.

One of the most significant developments for national minorities (who also often constitute “regional majorities”) is the (1992) United Nations Declaration on the Rights of Persons Belonging to National or Ethnic or Religious Minorities. This UN Declaration recognizes that the promotion and protection of the rights of persons belonging to minorities contributes to the political and social stability of the states in which they live (Preamble). Consequently, the Declaration reformulates Article 27 of the ICCPR in the following way:

Persons belonging to national or ethnic, religious and linguistic minorities … have the right to enjoy their own culture, to profess and practice their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination (Article 2.1)

We can thus see here that the phrase “shall not be denied” in Article 27 has been replaced by the more active “have the right.” In addition, and significantly, the formulation recognizes that minority languages may be spoken in the public as well as the private domain without fear of discrimination. That said, the 1992 UN Declaration, unlike the ICCPR, remains a recommendation and not a binding covenant–in the end, it is up to nation-states to decide if they wish to comply with its precepts. In a similar vein, the actual article that deals with minority language education (Article 4.3) qualifies the more general positive intent of Article 2.1 considerably: “States should take appropriate measures so that, wherever possible, persons belonging to minorities have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue” (see Skutnabb-Kangas, 2000: 533-535 for an extended discussion).

Comparable developments in European law reveal the same tendency to qualification concerning language rights. Two key examples will suffice here: the Council of Europe’s (1994) Framework Convention for the Protection of National Minorities and the (1992) European Charter for Regional or Minority Languages. While these developments in European supranational contexts do provide for some language and education rights, they remain, nonetheless, “soft law,” given that (European) nation-states can choose to what degree they apply/implement their various elements.

9.1. (1994) Framework Convention for the Protection of National Minorities

In November 1994, the Framework Convention for the Protection of National Minorities (FCNM) was first adopted by the Council of Europe and came into force in February 1998. As of January 2024, it has been ratified by thirty-eight states. The FCNM is important because it specifically allows for legally binding language rights, including language and education rights, for national minorities, at least ostensibly. Article 10.1, for example, states “to recognize that every person belonging to a national minority has the right to use freely and without interference his or her minority language, in private and in public, orally and in writing.”

There are, however, two key limitations regarding the FCNM. The first is that it does not define what constitutes a national minority nor who may belong to a national minority and thus benefit from the treaty’s protection. That said, the Advisory Committee, the body created under the FCNM to monitor its implementation by states, has developed an extensive commentary on these issues (Dunbar, 2023).[17] For example, the Advisory Committee emphasizes that in addressing who might constitute a national minority, states should be “inclusive and context specific” (para. 7) and respect the right to free self-identification as a member of a minority.[18]

The FCNM also asserts at a more general level that contributing states should “promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage” (Art. 2.1). That said, the specific provisions for language and education remain sufficiently qualified for most states to avoid them if they so choose (Skutnabb-Kangas and May 2017). Article 14.2, which addresses the provision of language education directly, is littered with such qualifications:

In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the parties shall endeavor to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught in the minority language or for receiving instruction in this language.

The indeterminacy of the FCNM thus constitutes its second key limitation, along with the lack of any specific judicial remedies for alleged breaches of its associated language rights. In the latter regard, there is simply a state reporting system whereby states currently report every five years to the Council of Ministers of the Council of Europe on the measures they have taken to implement the FCNM (Article 25), while the Committee of Ministers, with the assistance of the Advisory Committee, “monitors” its implementation (Dunbar, 2023). Cumulatively, these limitations have led the legal scholar Patrick Thornberry (1997: 356-357) to conclude acerbically of the FCNM:

In case any of this [the FCNM provisions] should threaten the delicate sensibilities of States, the Explanatory Report makes it clear that they are under no obligation to conclude ‘agreements’… Despite the presumed good intentions, the provision represents a low point in drafting a minority right; there is just enough substance in the formulation to prevent it from becoming completely vacuous.

Of course, the balance between binding formulations and sensitivity to local conditions is a difficult one to achieve. Still, the FCNM permits a reluctant state to meet its requirements in only a minimalist way. Such states can do so simply by claiming that a provision was not “possible” or “appropriate,” or that numbers were not “sufficient” or did not “justify” a provision, or that it “allowed” the minority to organize the teaching of their language as a subject, at their own cost.

9.2. (1992) European Charter for Regional or Minority Languages

A similar pattern of general aspiration and specific qualification can be found in the European Charter for Regional or Minority Languages (ECRML). The ECRML was adopted by the Council of Europe in June 1992 and came into force in March 1998. As of January 2024, it has been ratified by twenty-five states. The explanatory report to the ECRML highlights that its principal purpose is “cultural”–the protection and promotion of regional or minority languages as a threatened aspect of Europe’s cultural heritage (para. 10). These languages are defined as those that differ from the official and/or national languages of states but continue to be “traditionally used” (Article 1a) within the state by a group that is numerically smaller than the rest of the state’s population (Dunbar, 2023). The ECMRL makes clear that such languages can thus be objectively determined, regardless of whether states recognize them as such. As with the FCNM, migrant languages and sign languages are specifically excluded.

The ECMRL is thus demonstrably concerned with the active protection and promotion of these languages, rather than the rights of the linguistic minorities who speak to them. As the legal scholar Rob Dunbar (2023: 34) notes, one could argue then that the ECMRL does not constitute a language rights instrument. However, Article 7 of the treaty does create obligations in relation to all of a state’s regional or minority languages, requiring that states base their policies, legislation, and practices in accordance with the charter (see also Henrard, 2023).

Language educational provision is one key area of focus here. The ECRML provides a sliding scale of educational provisions for national and regional minority languages that ranges from a minimal entitlement for smaller groups—preschool provision only, for example—to more generous rights for larger minority groups, such as primary and secondary language education. Again, however, nation-states have discretion in what they provide, based on both local considerations and the size of the group concerned. In this regard, Article 8, referring to education, includes a comparable range of caveats to those already discussed in relation to the FCNM. These include “as far as possible,” “relevant,” “appropriate,” “where necessary,” “pupils who so wish in a number considered sufficient,” “if the number of users of a regional or minority language justifies it,” and several similar alternatives, as in “to allow, encourage or provide teaching in or of the regional or minority language at all the appropriate stages of education” (Skutnabb-Kangas and May 2017: 131). Meanwhile, European nation-states also retain considerable scope and flexibility over which articles of the charter they choose to accept in the first place. In this respect, they are only required to accede to thirty-five out of sixty-eight articles, although three of the thirty-five articles must refer to education.

10. Indigenous Language (and Education) Rights

Arguably, where language rights have gained the greatest purchase over the last forty years or so is in relation to Indigenous peoples. This is particularly significant, given that, as discussed above, most of the world’s endangered languages are spoken by Indigenous peoples. Such developments have, accordingly, often focused specifically on the promotion-oriented right to Indigenous language education provision as a key means of mitigating such language shift and loss. However, as with the legislative developments discussed above, the ambivalence toward–and, at times, outright contestation of–language and education rights remain an ongoing issue even here, both within international and national legal contexts.

11. Developments in International law

I have already provided a sociological definition of Indigenous peoples, but to this can be usefully added a legal definition, as outlined in the International Labour Organization’s (ILO) Convention 169, formulated in 1989:

a) tribal peoples in independent countries whose social, cultural, and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations

b) peoples in independent countries who are regarded as Indigenous on account of their descent from the populations that inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some of their own social, economic, cultural and political institutions. (Art 1.1)

Lest objectivist definitions be accorded too much weight, however, Article 1.2 of Convention 169 adds the rider that “self-identification as Indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.” This addresses the aforementioned tendency of some states denying the presence and/or recognition of Indigenous peoples within their territories.

Despite the ongoing recalcitrance of some individual nation-states in this regard, there has been a growing consensus in international law around the notion of Indigenous self-determination or autonomy.[19] Drawing directly on the influential work of Barsh (1996: 797), discussed previously, this can usefully be described as:

[a] space within which Indigenous peoples can freely determine their forms of development, [including] the preservation of their cultures, languages, customs, and traditions, in a manner that reinforces their identity and characteristics, in the context and framework of the States in which Indigenous peoples live.

11.1. (2007) United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

The culmination of this principle of Indigenous self-determination is reflected in the ratification in 2007 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Articles 3 and 4 outline the principle clearly:

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development. (Art. 3)

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. (Art. 4)

More significantly for my purposes, UNDRIP also highlights as a central concern of Indigenous self-determination issues of language and education. In this respect, Articles 14 and 15 of the UNDRIP are most pertinent:

Article 14

• Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.
• Indigenous individuals, particularly children, have the right to all levels and forms of education in the State without discrimination.
• States shall, in conjunction with Indigenous peoples, take effective measures, for Indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.

Article 15

• Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories, and aspirations, which shall be appropriately reflected in education and public information.
• States shall take effective measures, in consultation and cooperation with the Indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding, and good relations among Indigenous peoples and all other segments of society.

These UNDRIP Articles specifically endorse promotion-oriented language and education rights for Indigenous peoples–a significant milestone development in international law. However, they remain non-binding with no guarantee of these rights. For instance, there is nothing in these articles about the state having to allocate [appropriate] resources for such rights (Skutnabb-Kangas and May 2017). More broadly, the historical evolution of UNDRIP highlights the potential affordances of and the still significant constraints on the expansion of Indigenous language and education rights in international law.

UNDRIP was formulated over a twenty-five-year period. This included the development over more than ten years of the (1993) Draft Declaration by the Working Group on Indigenous Populations (WGIP), in turn, a part of the United Nations’s Sub-Commission on the Prevention of Discrimination and Protection of Minorities. The merits of the Draft Declaration were subsequently debated by UN member states for nearly fifteen years, with many raising substantive and repeated objections to its promotion of greater self-determination for Indigenous peoples (Xanthaki, 2007; May 2012). Despite these objections, UNDRIP retained its strong assertion of Indigenous rights, including the specific promotion-oriented language and education rights of Articles 14 and 15, and was finally adopted in 2007 with an overwhelming majority of states’ support (143 in favor). That said, there were eleven abstentions and, more significantly, four states–Australia, Canada, New Zealand, and the United States–that still opposed its adoption. While these four states eventually endorsed UNDRIP–with the US the last to do so in December 2010–the difficulties in gaining consensus, even on a non-binding UN declaration, highlight the ongoing challenges facing the recognition of promotion-oriented language and education rights for Indigenous peoples. Meanwhile, as with the UN and European legislation on national minorities, discussed previously, there remains an “escape clause” (Roche, 2025) within UNDRIP for individual states to reject any initiative that can be construed as “authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independents States.”

Since then, the United Nations has nonetheless continued to prioritize and profile the plight of Indigenous languages. This has been tasked to UNESCO, which has acted as the lead organization in the establishment of the International Year of Indigenous Languages in 2019 and, subsequently, the Decade of Indigenous Languages (2022–2032).

12. Developments in National Law

The principles underpinning UNDRIP, along with the subsequent UNESCO developments promoting Indigenous languages, align with increasing Indigenous advocacy and agitation within individual nation-states for Indigenous language and education rights, usefully described by Tassinari and Cohn (2009) as “Indigenous protagonism.” The latter, in turn, often forms part of a broader political realignment within these various nation-states that acknowledges the legitimacy of Indigenous rights therein (May 2012, 2024; Shrinkhal, 2021). Examples of significant advances in Indigenous rights and representation at the level of the nation-state are thus increasingly numerous, but so too are setbacks and/or subsequent periods of retrenchment. In this final section, I will focus briefly on a range of examples to highlight both the gains and limitations of such legal developments at the national level.

In Brazil, the adoption in 1988 of a new Constituição (“constitution”) recognized for the first time povos indígenas no Brasil (“the indigenous peoples of Brazil”), of whom there are over 400,000. Article 231 specifically endorses Indigenous social organization, customs, languages, beliefs, and traditions, along with the right of native title to their lands (Brasil 1996). That said, subsequent progress towards actualizing Indigenous rights in Brazil has remained highly variable with ongoing strong resistance from entrenched mining and landholding interests. This was particularly evident in the active undermining of Indigenous rights and environmental protections associated with the highly contested term (2019-2023) of the right-wing populist, Bolsonaro (Neto and Moreira, 2023; Rapozo, 2021).

Norway provides a similar, albeit more successful, example. After a century of enforcing a stringent “Norwegianization” (read: assimilationist) policy towards the Indigenous Sámi, their languages, and their culture, Norway moved in 1988 to revise its constitution to grant greater autonomy to Sámi. As the amendment to the Constitution stated: “It is incumbent on the governmental authorities to take the necessary steps to enable the Sámi population to safeguard and develop their language, their culture and their social life.” The effects of this new amendment are most apparent in the regional area of Finnmark, in the northernmost part of Norway, where the largest percentage of Sámi peoples live. The formal recognition accorded to Sámi led to the subsequent establishment of a Sámi Parliament in Finnmark in 1989, while the Sámi Language Act, passed in 1992, recognized Northern Sámi as its official regional language.[20] The Sámi Language Act saw the formal promotion of the language within the Sámi Parliament, in courts of law, and at all levels of education. In addition, a separate Sámi curriculum was introduced in Finnmark in 1997, and in 2000, the Sámi Parliament took responsibility for some aspects of the Sámi school system, previously controlled by the central Norwegian Government. Both these latter developments, along with the passing of the Finnmark Act (2005), have further entrenched regional autonomy and Indigenous control for Sámi in the area (Huss 2017; Spitzer and Sell, 2020).

The precedent of regional autonomy for Indigenous peoples set by Finnmark has also been evident in Canada. For example, in 1999, the new Arctic province of Nunavut was established, the first formal subdivision of territory in Canada for fifty years. Its establishment was the result of a twenty-year negotiation process with the 22,000 Inuit of the region (out of a total regional population of 25,000). The provincial administration is Inuit-led, and the local Inuit language, Inuktitut, is co-official with English and French in the region, as well as being the first working language of the provincial government (Légaré, 2002).

Comparable developments can be observed in South America, which is home to between thirty and forty million Indigenous language speakers and as many as 700 Indigenous languages (Coronel-Molina and McCarty, 2016; López and Sichra, 2017). In Peru, for example, despite the colonial and postcolonial dominance of Spanish, the last fifty years have seen significant advances in the institutional (promotion-oriented language) recognition of the Indigenous languages Quechua and (to a lesser extent) Aymara (Hornberger and King, 1999; Rousseau and Dargent, 2019). According to the 2017 census, Quechua is the first language of 14% of the Peruvian population, with 4.5 million speakers. Yet, from the late 17th century to the 1970s, Quechua had no official recognition or state support. It was first recognized as an official language in Peru in 1975, and this was supported by related educational reforms providing a framework for bilingual education in Quechua and Spanish. The latter did not become more widely established until the 1990s; however, the 1993 Constitution (Art. 48) specifically allowed for the official recognition of Quechua and Aymara, alongside Spanish, in those regions where their speakers predominated. These developments were further enhanced by the 2007 Law 29735, which entrenched the rights of Indigenous first language speakers in Peru with respect to accessing public services in their languages and/or via interpreters, as well as providing Indigenous language education as a language right.

Ecuador followed Peru’s lead in the 1980s, and Bolivia in the 1990s, with the development of what has since come to be termed a formal policy of intercultural bilingual intercultural education. This approach emphasizes the notion of the “normalization” of Indigenous languages as part of language education policies in these contexts (López and Sichra, 2017). López and Sichra outline that, as part of these developments in Peru, Ecuador, Bolivia, Colombia, Guatemala, and Mexico, community-based, grass-roots Indigenous organizations have also since become directly involved in the design and implementation of Indigenous language education programs. In Ecuador, their national administration came under Indigenous control in 1988, while in Colombia, constitutional reform in 1991 granted Indigenous peoples the right to design their own educational models.

In Aotearoa New Zealand, a British settler colony, a similar pattern of community education-led language revitalization is evident in relation to the Indigenous Māori language, te reo Māori. British colonization over the course of the 19th and 20th centuries, and a related exclusion of te reo Māori from education and other formal language domains, resulted in a significant language shift and loss of the language, with predictions by the late 1970s of imminent language death. As a result, a flax-roots (grassroots) movement among Māori emerged in the early 1980s advocating for the establishment of Māori-medium preschools, known as kōhanga reo (language nests). Kōhanga involved fluent Māori speakers, usually grandparents, who taught Māori language and culture to children and assisted parents in learning the Māori language alongside their children. Importantly, this was an exercise of Māori tino rangatiratanga, a principle comparable to Indigenous self-determination, as discussed earlier in relation to developments in international law. It was a Māori initiative that was initially controlled and funded by Māori without state influence. These developments led to a pipeline effect for Māori-medium education, with kura kaupapa Māori elementary schools emerging from 1985 and, more recently, wharekura (secondary schools) and wānanga (tertiary education providers). Today, students can study through the medium of Māori from preschool to tertiary education, thus spearheading what Paulston (1993: 281) has described as “language reversal,” a process by which “one of the languages of a state begins to move back into more prominent use.” Moreover, since 1989, te reo Māori compulsory education has been incorporated within, and funded, by the New Zealand state–amounting to the recognition of a clear promotion-oriented language right (May and Hill, 2018; Benton, 2023).

The success of these te reo Māori education initiatives in Aotearoa New Zealand has also led to a growing normalization of te reo Māori in and across other key public language domains, including the media and the civil service. However, the normalization of te reo Māori has also garnered increasing opposition, particularly among monolingual English-speaking New Zealanders, who actively contest both its validity and value. This opposition to the promotion-oriented rights that it represents is often expressed in not only linguistically hierarchized terms in relation to the dominant language, English in the New Zealand context, but, given the added legacies of colonization, in often overtly racialized terms as well (May 2023 b, c). Echoing the Brazilian example, the advent of a recent conservative government (in 2023) has further sedimented these discourses, with the current New Zealand government actively opposed to the further expansion of te reo Māori in the public realm.

Opposition to promotion-oriented language rights for Indigenous languages, such as te reo Māori, can also be found in relation to regional majority languages, such as Catalan and Québécois French (May 2011). In both instances, ongoing opposition to promotion-oriented language rights is often couched in terms of “individual rights”–most usually, the right of majority language speakers to remain monolingual. Opposition is also regularly framed within a discourse of “illiberality”–that the establishment of promotion-oriented language rights is somehow an illiberal imposition on majority (national) language speakers. However, this begs the key question: if dominant language speakers can regard the formal recognition of their language, within their own historical territory, as an inalienable right (with no question of illiberality), why cannot Indigenous and (national and/or regional) minority language do so as well?

13. Conclusion

There have certainly been positive developments over the last forty years or so in the establishment and expansion of promotion-oriented language rights, both at national and supranational levels, even if these remain limited in both legislation and practice to Indigenous and national minority/ regional majority speakers. These developments–as canvased throughout this article–highlight how a group-differentiated approach to citizenship, in conjunction with multilevel processes of political engagement, can significantly enhance the possibilities and prospects of language rights as a key human right.

In conjunction with developments in international law, they also allow for the formal recognition of our-often multiple linguistic identities and the related right to maintain the use of all one’s languages, “if we so choose.” In this regard, the principle of separate minority recognition in language and education is legally enshrined at least as a minimal tolerance-oriented right–that is when restricted to the private domain–in most contexts. However, more liberal interpretations of tolerance-oriented rights (involving some state support where numbers warrant), and certainly more promotion-oriented rights, remain largely dependent on the largesse of individual nation-states in their interpretation of international (and national) law with respect to minorities.

Having said that, there is undoubtedly increasing pressure from ethnolinguistic minorities for greater recognition of separate language and education entitlements and, where numbers warrant, for some form of state recognition and funding with respect to these. In this regard, while there may still be no watertight legal guarantees for such recognition and funding, there is concomitantly an increasing recognition within international and national law that significant minorities within the nation-state have a “reasonable” expectation to some form of state support (de Varennes, 1996). In other words, while it would be unreasonable for nation-states to be required to fund language and education services for all minorities, it is increasingly accepted that where a language is spoken by a significant number within the nation-state, it would also be unreasonable not to provide some level of state services and activity in that language.

The developments canvased in this article have focused on their implications for national minorities and Indigenous peoples since this is where existing national and international legislation predominantly lies. However, they could also potentially be extended to ethnic or new minorities based on the notion of where numbers warrant. That said, the language rights of ethnic/new minorities, along with sign language users, continue to be largely ignored. Given the advent of superdiversity (Vertovec, 2007, 2019), and the related proliferation of migration and transmigration worldwide over the last thirty years, this willful failure by national and international law to accommodate the language rights of these groups may not be tenable over the longer term (May 2021).

Indeed, nation-states are already having to address such arguments, in some form or another, however reluctantly. This is both a moral and a political choice for nation-states since the long-held practice of making no accommodations to minority demands is not so readily defensible in today’s social and political climate. Ignoring such demands is also unlikely to quell or abate the question of minority language rights, as it might once have done. Indeed, it is much more likely to escalate them (May, 2017a). Under these circumstances, as de Varennes (1996: 91) argues:

Any policy favoring a single language to the exclusion of all others can be extremely risky … because it is then a factor promoting division rather than unification. Instead of integration, an ill-advised and inappropriate state language policy may have the opposite effect and cause a levée de bouclier.

Even so, language rights clearly remain the “Cinderella” human right–an archetypal example of “soft law.” The recognition of minority language rights as a human right, both within understandings of citizenship in political theory and within national and international law, is limited, uneven, and, in many contexts, still actively contested. The principle of linguistic homogeneity underpinning the formation of modern nation-states remains resolutely intact. Many states are thus hesitant to implement language rights extensively and/or effectively in the first place. When language rights are so recognized and implemented, at least to some extent, states are often faced with ongoing opposition to such rights.

This brings me to my final point: the recognition of language rights as an essential human right is, in the end, a question of both legal and, perhaps more importantly, political will. In an era where the notion of individual human rights still dominates, developing and implementing a group-differentiated understanding of language rights for minority groups is clearly neither easy nor fashionable. Still, it is crucial precisely because it is the key mechanism by which we can (and should) rethink social and political organization–at supranational, nation-state, and sub-state levels–in more linguistically plural, egalitarian, and inclusive ways.

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[1] Of course, this does not mean that states have always adhered to even this general human rights principle. Franco’s Spain, for example, is a clear historical example where such individual language rights were foreclosed for all other than Castilian speakers (Casademont, 2020). The ongoing state-sanctioned proscription of Kurdish in Turkey and Tibetan in China are two contemporary examples of states that continue to flout this human rights’ principle (see May, 2017a; Roche, 2023).

[2] Kloss’s distinction between tolerance- and promotion-oriented language rights is also broadly comparable to one drawn by Churchill (1986) in his typology of minority language policy approaches within the OECD between the maintenance of languages for private use versus the widespread institutional recognition of languages.

[3] These are faux descriptions because the distinctions between languages and dialects cannot be easily determined linguistically. Some languages are mutually comprehensible (Swedish, Norwegian, and Danish, for example), while many dialects are not. Rather, the distinction between languages and dialects is primarily sociopolitical–languages are associated with (nation-)states, and “dialects” are regionalized/peripheralized by those same states. This is encapsulated in a pithy observation attributed to the American sociolinguist Max Weinreich in the 1940s: “A language is a dialect with an army and a navy.”

[4] I have argued elsewhere (May 2025) that these same processes of linguistic hierarchization have now been extrapolated to the international domain, via the growing adoption of English as the current lingua mundi (international language) and global lingua franca. As with the construction of national languages, the current ascendancy of English is also invariably linked with modernity and modernization and the associated benefits that accrue to those who speak it in an increasingly globalized world. Likewise, the current ascendancy of English is the result of equally constructed (and highly unequal) historical and political processes, most notably via the initial geopolitical influence of Britain and, subsequently, the USA (see, e.g. Phillipson, 1992; Pennycook, 2017).

[5] Rare exceptions of still-widely spoken Indigenous languages include Guaraní in Paraguay, Greenlandic in Greenland, and, possibly also, Quechua across South America (although its status and prospects vary significantly from country to country).

[6] Before nationalism and the nation-state system, in what might be broadly termed the imperial era, public linguistic uniformity was not such a central imperative. While practices inevitably varied, several key imperial administrations openly accommodated the multilingual nature of their populations. For example, multilingual administration was the norm in the ancient empires of the Persians, Ptolemies, and Carthaginians. The Roman Empire was also largely laissez faire in relation to multilingual language use. More recent historical examples include the Ottoman and Austro-Hungarian Empires (see May 2016 for an extended discussion).

[7] There is some engagement in political theory with sociolinguistics, most notably in the work of Pupavac (2012), Ives (2010, 2015), and Oakes and Peled (2018). However, most political theory discussions of language remain disciplinarily specific–including Will Kymlicka’s (1995, 2001, 2007) important contributions (see below) and subsequent commentators such as Philippe Van Parijs (2011). A more recent focus on the notion of linguistic justice, traversing both sociolinguistic and political theory perspectives, might provide a potential basis for further interdisciplinary work in this regard (see, e.g. Bonotti and Willoughby, 2023), while also strengthening the links between linguistic scholarship and policy advocacy (see e.g. the Linguistic Justice Foundation).

[8] After all, if a language is to continue to be spoken, it requires, by definition, someone else to talk with. On this basis, when a language ceases to be spoken by a community of speakers, it has already effectively perished.

[9] For a direct rebuttal of this position, see May (2017a).

[10] Article 2 of the Declaration states: “Everyone is entitled to all the rights and freedoms outlined in this Declaration, without distinction of any kind, such as race [sic], colour, sex, religion, political or another opinion, national or social origin, property, birth or another status.” Consequently, minorities, as such, do not enjoy rights in the Declaration. Various attempts at including recognition of minorities in the text were strongly opposed at the draft stages, the consensus being that “the best solution to the problems of minorities was to encourage respect for human rights” (see Thornberry, 1991b: 11-12).

[11] Early opposition to the inclusion of any recognition of language rights can also be seen, for example, in the contested debates concerning the UN Convention on the Prevention and Punishment of the Crime of Genocide (1948; UN Resolution 260[III])–see Abtahi and Webb (2018) and Roche (2025).

[12] It must be said that the League of Nations did not initially encompass a formal concern for minority rights. Indeed, no provisions dealing with the protection of minorities nor for that matter human rights generally were incorporated within its original remit. However, these omissions created significant controversy and led the League of Nations subsequently to adopt and oversee the Minority Protection Scheme. It should also be pointed out here that the latter was as concerned with providing a mechanism for the protection of individual rights, especially the right to equality, as with the specific concerns of national minorities. As such, the League of Nations’ approach is not inconsistent with the more recent adoption of universal human rights (see de Varennes, 1996: 26-27).

[13] The abuse of the MPS by the Nazi regime, whereby Hitler used a supposed concern for the rights of German minorities elsewhere in Europe as the catalyst for the Second World War, also clearly contributed to this move away from minority cultural (and linguistic) recognition.

[14] . This has not proved to be the case. Indeed, the United Nations itself has since admitted as much: The Human Rights Fact Sheet on Minorities (No. 18, March 1992: 1) states, e.g.: “the setting of standards which create additional rights and make special arrangements for persons belonging to minorities and for the minorities as groups–although a stated goal of the United Nations for more than 40 years–has made slow progress.”

[15] I discuss this further below about Ballantyne, Davidson, and McIntyre v. Canada (1989).

[16] Ballantyne, Davidson, McIntyre v. Canada, Communications Nos. 359/1989 and 385/1989, U.N. Doc. CCPR/C/47/D/359/1989 and 385/1989/Rev.1 (1993).

[17] Advisory Committee, Thematic Commentary No. 4, The Scope of Application of the Framework Convention for the Protection of National Minorities, Strasbourg, 27 May 2016, ACFC/56DOC(2016)001.

[18] Even this has its limits though. Sign language users, who clearly constitute a linguistic minority, for example, remain excluded from the FCNM and, as we shall see, the ECRML (de Varennes, 2023; Dunbar, 2023).

[19] For a recent critical overview of debates about Indigenous sovereignty in international law, see Shrinkhal (2021).

[20] There are at least eight Sámi language varieties that are still spoken across the northern reaches of Norway, Sweden, Finland, and Russia–known collectively as the Sápmi arctic region. Northern Sámi is the most widely spoken, with circa 15,000 speakers. Other Sámi varieties, such as Lule Sámi and Southern Sámi, have far fewer remaining speakers. They do not enjoy the same legal and institutional recognition in Norway, let alone elsewhere in the Sápmi region, thus contributing to their ongoing critical endangerment.