Inside Looking Out: an Application of International and Regional Linguistic Protections to the U.s. Spanish-speaking Minority

• Publication year: 2021

87 Nebraska L. Rev. 599. Inside Looking Out: An Application of International and Regional Linguistic Protections to the U.S. Spanish-Speaking Minority

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Marina A. Torres(fn*)

Inside Looking Out: An Application of International and Regional Linguistic Protections to the U.S. Spanish-Speaking Minority

TABLE OF CONTENTS

I. Introduction ..................................................... 600
II. The Theory Behind Linguistic Rights and Protections .............. 601
A. Justifications for "Official" Language Policies ............... 601
B. Arguments for the Protection of Linguistic Minority
Rights ........................................................ 603
III. Global Protection of Linguistic Rights .......................... 608
IV. The Regional Alternative ......................................... 615
A. Canada ........................................................ 615
B. Eastern and Central Europe ...................................... 618
V. Conclusion: Lessons for the United States ......................... 623

And the whole earth was of one language, and of one speech . . . . And they said, Go to, let us build us a city and a tower, whose top may reach unto heaven; and let us make us a name, lest we be scattered abroad upon the face of the whole earth . . . . And the Lord said, Behold, the people is one, and they have all one language . . . and now nothing will be restrained from them, which they have imagined to do . . . . [L]et us go down, and there confound their language, that they may not understand one another's speech.(fn1)

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I. INTRODUCTION

Not since the collapse of the Soviet Union have the subjects of minority and linguistic rights enjoyed such prominence in discussions of the international community. Various legal commentators have suggested several reasons explaining the renewed interest in the subject: the emergence of a multi-polar world politic,(fn2) the large-scale reappearance of civil and ethnic conflicts,(fn3) and even the awareness of cultural differences resulting from globalization.(fn4) The atrocities that came to light after World War II in particular made it painfully clear to the international community the harm that had been committed against individuals because of their membership in a particular group. Largely as a result of that realization, the language of international law post-World War II has sought to specifically prohibit individual discrimination on the basis of group characteristics. Article 2 of the Universal Declaration of Human Rights, for instance, states quite clearly: "Everyone is entitled to all the freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."(fn5)

As such, the principle of non-discrimination is widely accepted as a part of international law. What has not been so clearly included in this sentiment, however, is the protection of the language belonging to such groups, despite the recognition of linguistic difference as a defining feature of almost all political communities. This Article will provide a starting point in the discussion of how, in a post-Soviet globe, different States at varying degrees of linguistic plurality can develop the capacity to live with such differences. Part II begins by offering a summary of arguments in favor of official language policies on the one hand and more expansive State obligations towards the protection of linguistic minorities on the other. Part III looks at the strength of current and past international linguistic protections, specifically examining the trends of individualism versus group rights and negative versus positive obligations over history. Part IV looks at the application of linguistic protections in two case scenarios, Europe and Ca

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nada, that have had widely varied results. Finally, the Article concludes by applying the lessons learned from the international and regional level to the situation of the Spanish-speaking minority in the United States and proposing several considerations for the future of linguistic protections.

II. THE THEORY BEHIND LINGUISTIC RIGHTS AND PROTECTIONS

A. Justifications for "Official" Language Policies

Perhaps the most common response to pleas of official minority language recognition has been the fear that such official recognition will inevitably lead to dissolution of national unity.(fn6) A language common to all of a nation's inhabitants has the benefit of maintaining the political stability of the State and represents a core public culture of shared customs, experiences and values.(fn7) A shared language is crucial in maintaining this commonality. The apprehension of an official recognition of a nation's linguistic plurality lies in the fear that the toleration of several languages, as opposed to the official promotion of one, will come at the cost of discouraging linguistic minorities from fully learning the majority language and serve to encourage national discord.(fn8) While divisions of race, politics, or religion challenge the social bonds that constitute a nation, linguistic differences pose a unique problem to national unity because of their importance to communication between individuals. A breakdown in communication inevitably leads to a breakdown in understanding, which in turn is conducive to intolerance and further national disunity--seen in this light, the government has substantial interests in protecting the whole of society from the divisive effects of multilingualism. Thus, many States and nations seek to declare their majority language the "official" language as an assertion of cultural and political hegemony with the message to linguistic minorities being one of implied exclusion.

A second common argument favoring an official language policy is that of economic practicality. Proponents of official language policies argue that the cost of providing services in minority languages justifies granting official status to the language spoken by the majority. Training teachers for bilingual education, printing multiple types of ballots, providing government services in several different languages--all of these adjustments come at a cost, proponents say, a

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cost that the State is under no obligation to foot. To the contrary, a State has the obligation to ensure that its citizenry is equipped, to the best extent possible, with a solid education and training for success. Given the direct correlation between ability to speak English and income levels in the United States,(fn9) proponents of official language policies argue that such policies will serve to broaden opportunities to people not speaking the majority language. In this sense, the argument goes, the promotion of an official language policy would ensure that all members of a State can grow up fluent in the majority language and thus be able to communicate with most individuals residing in the same State. This was part of the fear driving the campaign against bi-lingual education in the Southwestern United States: the idea that the promotion of a language other than English in public schools would lead to generations of students ill-equipped in English language fluency, which would in turn financially and logistically burden other taxpayers. Tibetan schoolchildren have had such an experience.(fn10) Having graduated from primary schools taught in the Tibetan language, these children (and their parents) years later face the daunting task of stiff competition when attempting to get into Chinese language universities.(fn11) In effect, providing schooling in the minority language served to leave these Tibetan children in a less advantageous educational--and later economic--position in society.(fn12)

Similarly, the implementation of an official language policy also has the potential of encouraging newcomers to learn the majority language and culture, which in turn will limit the initial isolation into ethnic/linguistic enclaves and encourage greater participation in society. Recent immigrants in most countries tend to reside in immigrant communities, where their native language is freely spoken and one can almost entirely live without needing fluency in the majority language. Official language legislation would strive to eliminate that linguistic divide by requiring recent immigrants to learn the language of the majority and begin social integration early on. Seen in this light, official language provisions are inclusive rather than exclusive--they would be responsible for easing the integration of linguistic minorities into the mainstream society and encouraging their full political participation.(fn13)

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B. Arguments for the Protection of Linguistic Minority Rights

It is a fair statement that most countries are not mono-ethnic, nor are they mono-lingual; on the contrary, because the territorial boundaries of the nation-state are often at odds with the delineation of cultural and linguistic groups, most States have a plurality of languages spoken within their borders. For instance, most States belonging to the United Nations have several ethnic groups and two or more spoken languages within their territorial boundaries.(fn14) So before any discussion on official language policy gets underway, it is worthy to note that the goal of establishing a mono-lingual society through such policies may very well be purely an ideal not necessarily rooted in reality.

Likewise, arguments in favor of officially promoting a majority language to the extreme of restricting the usage of a minority language are often flawed in that they do not consider the unique role that language has in the formation and maintenance of a cultural and/or ethnic identity. One's choice of language is arguably a choice freely made, since the survival and...