E.L. Rev. 2000, 25 Supp (Human rights survey), 46-69

European Law Review

2000

Implications of the European Charter for Regional or Minority Languages for British linguistic minorities

Robert Dunbar

© 2010 Sweet & Maxwell and its Contributors

Subject: Human rights

Keywords: Human rights; Language; Minorities

Legislation: European Charter for Regional or Minority Languages 1992 (Council of Europe)

*46 While a number of recent international instruments have addressed the rights of minorities, the Council of Europe's European Charter for Regional or Minority Languages is the first international agreement solely concerned with the particular problems faced by linguistic minorities. On March 2, 2000, the United Kingdom signed the Charter and undertook to ratify it shortly thereafter. While the Charter contributes to a deeper understanding of the ways in which states can provide positive

measures of support to certain minority language communities, it suffers from a number of defects which limit its potential to dramatically enhance developing standards in this area. Given the limited approach suggested in the United Kingdom's proposed terms of ratification, the Charter will do little to advance the legal status of the various British minority languages to which it will apply, such as Welsh, Scottish Gaelic, Irish and Scots, although it may provide speakers of these languages with a useful political tool in their struggle to maintain these fragile linguistic communities.

Background

On March 2, 2000, the United Kingdom signed the European Charter for Regional or Minority Languages (the “Charter”),1 and it is expected that ratification will take place later this year. The Charter, drafted within the Council of Europe, was adopted on November 5, 1992 and entered into force on March 1, 1998. To date, it has been signed by twenty-three Council of Europe member States, but has been ratified by only nine.2

While both the major post-World War II international human rights instruments3 and the more recent international instruments relating to minorities4 have provisions relevant to speakers of minority or non-official languages, the Charter is the first international instrument directed solely at linguistic minorities. However, the Charter is not concerned *47 with linguistic rights in the broad sense, nor with all linguistic minorities, but only certain “autochthonous” linguistic minority groups5 ; essentially, linguistic minorities which are of long standing in European states. In the British context, the Charter would therefore be aimed at the languages of the Celtic fringe--Welsh, Scots Gaelic, Irish and Cornish--and, apparently, the Scots tongue of the Scottish Lowlands and of Northern Ireland. The Charter does not apply to languages spoken by more recent immigrant minority groups. Thus, the languages of Britain's large south Asian, east Asian and African communities, to name only a few, would not be covered by the Charter, even though some of these languages have been spoken in the United Kingdom over several generations and by a significant number of people.

The explanatory report to the Charter notes that the demographic situation of the regional or minority languages varies greatly, as does the law and practice of the individual States with respect to them, but that they all share “a greater or lesser degree of precariousness”.6 This is certainly true of the languages to which the Charter would apply in the United Kingdom. All have suffered a steady erosion in the numbers of speakers over a long period and have been subjected to State policies which at times ranged from persecution to neglect. While some of these languages have received some government support in recent years, British policies are too often piecemeal, uncoordinated and based on short-term political expedience.

In this paper, the Charter will be analysed both from the perspective of emerging international human rights standards and from that of the linguistic communities which may be affected by the United Kingdom's ratification. It will be argued that the Charter's contribution to the evolution of linguistic rights under international law is both limited and equivocal, and that while it is of both symbolic and tactical importance to the British linguistic minorities affected, it will not, by itself, do much to alter their demographic or legal position. In the end, much will turn on the willingness of States parties to the Charter to take a generous approach to its interpretation and application, but the approach of the United Kingdom government, as disclosed in the proposed terms of its ratification, does not give reason for optimism.

Contribution of the Charter to International Standards

At present, international law provides only limited protection to the speakers of minority languages.7 Indeed, the issue of minority rights and, in particular, minority language rights received relatively little attention under the major post-World War II international human rights instruments such as the Convention for the Protection of Human Rights and Fundamental Freedoms (the “European Convention on Human Rights” or the “ECHR”) and the International Covenant on Civil and Political Rights (the “ICCPR”). At best, these instruments established what could be described as a regime of linguistic tolerance.

*48 For example, these instruments enshrine the fundamental principle of non-discrimination, which protects speakers of minority languages from discrimination at the hands of the State based on language.8 This principle, while important, does not ensure that linguistic minorities obtain positive measures of State support through, for example, the provision of public services to the minority language community in the minority language.9 Other basic civil and political rights, such as the right to freedom of expression10 and the right to freedom of peaceful assembly and association,11 are also relevant to speakers of minority languages in that they limit the ability of States to interfere with the use of such language in a wide range of settings.12 While special provision is made for those arrested or being tried for criminal offences who do not speak or understand the official language, this does not ensure a right to trial through the medium of a minority language.13

The sole provision in the major post-war human rights instruments which makes any particular reference to minorities is Article 27 of the ICCPR.14 This article provides that States shall not deny members of linguistic minorities the right to use their own language, and in this sense it could be seen merely as part of a regime of linguistic tolerance rather than a measure which obliges States to provide positive measures of support to linguistic minorities. The UN Human Rights Committee has, however, noted that “positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language … in community with other

members of the group”.15 The principle that States have positive obligations towards members of linguistic minorities is a key feature of the more recent minorities instruments, and suffuses the Charter.

A regime of linguistic tolerance can be significant for linguistic minorities, particularly those which are subject to continuing persecution, and the Charter itself gives some limited expression to such principles.16 As noted in the explanatory report to the Charter, however, the threats presently facing regional and minority languages have less to do with an unfriendly environment or a government policy of assimilation than with “the *49 inevitably standardising influence of modern civilisation and especially of the mass media”.17 More importantly, a regime of linguistic tolerance is not sufficient to maintain a threatened minority language community, a point which is also recognised in the explanatory report to the Charter:

“Having regard to the present weakness of some of the historical regional or minority languages of Europe, … the mere prohibition of discrimination against their users is not a sufficient safeguard. Special support which reflects the interests and wishes of the users of these languages is essential to their preservation and development.18 ”

Indeed, all of the recent minorities instruments accept the notion that cultural and linguistic minorities require measures of positive State support.19

The recent minorities instruments establish both a regime of linguistic tolerance and one of positive measures of support from which persons can benefit if they are members of a minority or, in the formula used throughout the Framework Convention, if they are persons “belonging to a national minority”. Yet, both the question of what constitutes a “minority” or “national minority” and that of who is entitled to membership in such a group have not been defined in the minorities instruments or generally in international law.20

The Charter avoids these issues by linking State obligations to languages themselves, and not to groups such as “minorities” or “national minorities” or individual membership in such groups.21 One rather peculiar result of this approach is that, as the explanatory report acknowledges, the Charter does not establish any individual or collective rights for the speakers of regional or minority languages.22 In this, the Charter is in some ways a step backward from the Framework Convention, the one recent minority instrument which, like the Charter, imposes on States obligations that are legally binding in international law. While many of the provisions of the Framework Convention take the form of broad, programmatic goals, they are framed in terms of individual rights which are enjoyed by members of national

minorities. By eschewing a rights-based approach, the Charter represents a missed opportunity to advance the notion that language rights are fundamental human rights under international law.

*50 The scheme of the Charter is as follows. Part I (Articles 1 to 6) defines the languages which are protected--the “regional or minority languages” as well as certain “non-territorial languages”--and contains certain other general provisions. Part II (Article 7) sets out some general objectives and principles to which States are required to adhere in respect of the languages protected by the Charter. Then, Part III (Articles 8 to 14) sets out more specific promotional measures which States shall take; however, States are only required to adopt these measures in respect of “regional or minority languages”, not the “non-territorial languages”, and then only those regional or minority languages which the State itself specifies in its instrument of ratification. Furthermore, as we shall see, States have a considerable discretion as to which measures they shall take in respect of any particular regional or minority language so specified. Thus, the Charter creates a rather complex hierarchy of languages, with required levels of support ranging from the non-existent to the potentially significant. Finally, Part IV (Articles 15 to 17) sets out the mechanisms by which State obligations under the Charter are monitored and enforced, and Part V (Articles 18 to 23) contains concluding provisions of a generally administrative nature.

As noted, the Charter provides support to two types of languages, the “regional or minority languages” of its title, and “non-territorial languages”. Article 1, paragraph a defines “regional or minority languages” as those which are traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State's population, and which are different from the official language(s) of the State. The explanatory report indicates that the phrase “traditionally used” is a reference to languages which have been spoken over a long period in the State in question.23 The definition of “regional or minority languages” itself makes clear that “languages of migrants” are not covered, with the result that these languages receive no protection under the Charter.24 The Charter offers no explanation for the exclusion of such languages,25 although a number of possibilities exist: for example, many such “immigrant” languages are majority languages in other States and are not threatened with imminent extinction26 ; and, the relationship of such communities to the new State is a complex one which engages broader issues relating to immigration and naturalisation policy, such as effective integration into the new State, the proper acquisition of the dominant language of that State, and so forth. Yet some rights theorists have forcefully argued that if there is a right to maintain one's language and culture, this right must be based on a wider right to a cultural identity which is in principal a universal right. If this is the case, there is then no reasonable basis in principle to make formal distinctions between types of ethnic minorities--particularly between the rights of long-established “traditional” minorities and more recently arrived immigrant groups.27 In making just *51 such a distinction, the Charter has arguably compromised the notion that language rights are fundamental rights.

The definition of “regional or minority languages” also specifically excludes dialects of the official language(s) of the State, with the result that such dialects also receive no protection under the Charter. The Charter offers no guidance with respect to the difficult question of how to distinguish a language from a dialect. The explanatory report recognises that this question “depends not only on strictly linguistic considerations, but also on psycho-sociological and political phenomena which may produce a different answer in each case”, and leaves it to the authorities within each State to resolve this issue.28 On the one hand, the exclusion of dialects from the protection of the Charter may be justifiable; without such a distinction, the number of dialects, and even accents, claiming linguistic rights could be endless.29 On the other hand, dialects also enhance our cultural and linguistic richness. Furthermore, speakers of a distinct dialect, particularly one of low prestige, may, like speakers of regional or minority languages, face exclusion and social marginalisation; they may also be entitled to a right to cultural identity.30 So, while some limitation on the forms of linguistic expression which are entitled to the Charter's protection may be justified, this issue deserves to be treated with some sensitivity, and in these circumstances, it is unfortunate that States have been given such a wide discretion to decide on which forms of expression deserve the Charter's protection.

The final category of language created under Article 1 of the Charter is that of “non-territorial languages”. These languages are defined in Article 1, paragraph c as languages used by nationals of the State which differ from the language or languages used by the rest of the State's population, but which, although traditionally used within the State, are not associated with any particular geographical area within the State. The explanatory report gives Yiddish and Romany as examples of such languages.31 Like “regional or minority languages”, “non-territorial languages” are generally entitled to the benefit of the general objectives and principles of State protection set out in Part II, but are not entitled to the more detailed and particular protection of Part III. The explanation offered in the explanatory report is that most of the Part III provisions assume a territorial base for the protected languages; “non-territorial languages” do not have such a base, thereby making the implementation of these provisions impractical.32 Given the underlying Charter objectives of preserving Europe's cultural diversity and supporting threatened minority languages, it is unfortunate that more creative drafting was not employed to ensure the full protection of the Charter for such persecuted language communities.

Under the terms of Article 2, paragraph 1 and Article 7, all languages within a State which meet the definition of “regional or minority languages” are entitled to the protection of Part II, whether or not they are designated by the State for the additional special protection afforded under Part III.33 Yet, perversely, the explanatory report then contemplates that, *52 notwithstanding this, States may, as a practical matter, be entitled to disregard even Part II obligations in respect of languages which otherwise qualify as “regional or minority languages”.34 This may have implications for at least one British linguistic minority, the Cornish.

The Part II objectives and principles are set out in Article 7, paragraphs 1 through 4, and certainly express a generous orientation towards the protected minority languages. For example, Article 7, paragraph 1 provides that States parties shall base their policies, legislation and practice on a number of objectives, including the recognition of the regional or minority languages as an expression of cultural wealth35 and, significantly, “the need for resolute action to promote regional or minority languages in order to safeguard them”.36 The fundamental importance of State support for minority language education in the accomplishment of such objectives is made clear in several of the Article 7, paragraph 1 provisions.37 Article 7, paragraph 1 also stipulates that State policies, legislation and practice should facilitate and/or encourage the use of regional or minority languages, in speech and writing, in private life and in public life, meaning in institutions, social activities and economic life.38 The breadth of the general objectives and principles set out in paragraph 1 is constrained to a certain extent by the stipulation that they need only be followed with respect to the regional or minority languages “within the territories in which such languages are used”, a limiting formula which is also used in Part III and to which reference will be made below.

Part III of the Charter contains more detailed obligations which States undertake in respect of those regional or minority languages they choose to designate for these purposes. The explanatory report indicates that the purpose of Part III is “to translate the general principles asserted in Part II into precise rules”.39 These rules are contained in 65 different paragraphs and subparagraphs in seven separate Articles, each devoted to a major policy area: Education (Article 8), Judicial authorities (Article 9), Administrative authorities and public services (Article 10), Media (Article 11), Cultural activities and facilities (Article 12), Economic and social life (Article 13), and Transfrontier exchanges (Article 14). In many ways, these various provisions expand upon the range of measures of positive support which are found in the recent minorities instruments, and by broadening our understanding of the ways in which vulnerable linguistic minorities can be protected and supported, represent a potentially important contribution to international standards. However, these provisions suffer from a number of the same weaknesses as the recent minorities instruments, weaknesses which betray the notion that the protection of linguistic minorities is a matter of fundamental rights rather than something which is merely desirable or worse, politically expedient.

With respect to the Part III rules themselves, Article 8, Education is perhaps the most important, given the fundamental importance which linguists and minority language *53 activists place on minority language education.40 In the recent minorities instruments, the provision of linguistic rights in this area is limited and equivocal. For example, Article 13, paragraphs 1 and 2 of the Framework Convention provide that national minorities have the right to establish and maintain their own education institutions, though not necessarily with State support. Article 14, paragraph 1 of the Framework Convention refers to the right of every person belonging to a national minority to learn his or her

minority language, and paragraph 2 thereof imposes a special obligation on States to provide “adequate opportunities” to members of national minorities to be taught the minority language or receive instruction in this language.41 The paragraph 2 obligations are subject to important qualifications, however: they only apply in areas inhabited by persons belonging to the national minority “traditionally” or “in substantial numbers”; even in such areas, the right applies only where there is “sufficient demand”; and even where there is such demand, States are only required to “endeavour to ensure, as far as possible and within the framework of their education systems” that such education is provided.42 Some of these qualifications--in particular, territorial application and demand contingency--also apply to and compromise State obligations under the Charter. The Charter does, however, add much greater particularity with respect to what sort of educational initiatives are required.

Article 8, paragraph 1 of the Charter anticipates, for example, that the State may provide a range of different types of State-funded education, from full immersion in minority-language medium education to simply the teaching of the regional or minority language as a subject, at the pre-school, primary and secondary school level, as well as in technical and vocational education and in university and other higher education. Article 8, paragraph 1 also provides for the teaching of the history and culture associated with the regional or minority language, the training of teachers required to implement the various measures taken under Article 8, and the establishment of bodies to monitor the measures taken and progress made under Article 8. In the various other articles, there is a similar significant expansion and/or particularisation of State obligations which exist under the recent minorities instruments, particularly in relation to judicial authorities, administrative authorities and public services, and the media, where provisions in the minorities instruments are generally quite restricted in scope.

As already noted, however, the scope of the Part III Charter provisions is subject to several important qualifications. First, the Charter also subjects the provision of positive measures of support to both territorial limits and to tests relating to sufficiency of demand. For instance, the obligation to provide services under the various Articles in Part III generally only applies in those geographic areas within the State “in which the number of residents using the regional or minority language justifies the measures”,43 or “within the territories [within a State] in which [regional or minority] languages are used”.44 The phrase “the territory in which the regional or minority language is used” is defined in Article 1, paragraph b as “the geographical area in which the said language is the mode of *54 expression of a number of people justifying the adoption of the various protective and promotional measures provided for in the Charter”, and is therefore also essentially a measure which restricts State obligations by reference to sufficiency of demand.45

Again, this sort of limitation is common in the various recent minorities instruments, and reflects State concerns about potentially open-ended spending commitments which could result if the right to minority language services was absolute. However, such limitations are inconsistent with the notion that

language rights are fundamental rights, and therefore the Charter, which as noted does not in any case seek to create any individual or group rights, can only perpetuate this weakness.

This limitation is particularly dangerous for the more threatened of Europe's autochthonous languages, as such languages often have both low numbers and low concentrations of speakers, even in their heartlands. These are, however, the regional and minority languages most in need of resolute State action. Given the overriding concern of the Charter with the protection of cultural and linguistic diversity, particularly the protection of those languages in danger of eventual extinction, the rather broad nature of this limitation is of considerable concern.

The threat created by this limitation is exacerbated by the fact that it is left up to each State to define the regional or minority languages' territory. The authors of the Charter thought it inappropriate to establish a fixed percentage of speakers of a regional or minority language at or above which the measures set out in the Charter should apply, preferring to leave it up to the State to determine this percentage, according to the nature of the measures being taken.46

The extent of State obligations under Part III of the Charter is further limited by the fact that States have a broad discretion in the choice of the obligations to which they are subject. As noted above, the Part III obligations are set out in 65 paragraphs and subparagraphs in seven Articles, of which the State must apply a minimum of 35 in respect of each regional or minority language it designates under Part III.47 The Charter requires that the State apply at least three paragraphs or subparagraphs from Article 8, Education, and Article 12, Cultural Activities and facilities, and at least one from each of the other Articles except Article 14, Transfrontier exchanges48 ; this requirement is presumably in recognition of the relatively greater importance of education and cultural activities and facilities in the protection and promotion of these threatened languages. While the options are intended to provide sufficient flexibility “to take account of the wide disparities in the de facto situation of regional or minority languages”,49 given that each of the Articles in Part III contain a wide range of measures of State support, ranging from *55 relatively weak to quite strong, the burden assumed by States may ultimately not be very heavy. The explanatory report does provide that States are not to choose arbitrarily among the available alternatives, but to pick provisions which best fit “the characteristics and state of development of that language”. The report notes that this would imply that the larger the number of speakers of a regional or minority language and the more homogeneous the regional population, the “stronger” the options which should be chosen.50

This is rather crude guidance. Although one might expect that States would provide stronger measures of support in the case of stronger minority language communities, it is not necessarily the case that the

relatively weaker state of other linguistic communities should justify weaker measures. Indeed, given the Charter's objectives--the preservation and protection of threatened languages--one might have expected that stronger, not weaker measures are expected of States in respect of more seriously threatened languages. There has developed a massive literature in linguistic theory with respect to language maintenance and revitalisation,51 and it is surprising that States were not required to make reference to such principles and practices in the exercise of their choices. Also noteworthy is that States are not required to involve the affected language community in the decision-making and linguistic planning process; Article 7, paragraph 4 merely requires that in determining their policies, States shall take into consideration the needs and wishes expressed by the groups which use regional or minority languages, and encourages States to set up bodies to advise the authorities on all matters pertaining to such languages.

Finally, since the Charter creates no individual or group rights, neither the broad principles of Part II nor the specific measures of Part III are justiciable through a system of communication or petition. Rather, Part IV of the Charter provides for a system of State reporting.52 While such State reporting mechanisms have been criticised,53 this particular mechanism may still be useful. First, while States parties nominate candidates for the committee of experts which scrutinises the reports, the nominees must have “recognised competence” in minority language policy, hopefully guaranteeing expertise, and each member is ultimately chosen by the Committee of Ministers of the Council of Europe, hopefully guaranteeing some independence.54 Second, independent language bodies or associations may provide information with respect to State policies and measures, thereby hopefully enhancing the critical appraisal to which States are subject. The reports themselves may become very useful tools for such activists in advancing claims for better State practice. The reports may also allow for a much wider dissemination of State practice and for the development of a body of very useful information for activists and State authorities in further developing State policies and practice. Used creatively by language activists and politicians who are favourably disposed to minority or regional languages, this mechanism could prove to be very effective.

*56 Application of the Charter to British Minority Languages

As noted, all of the surviving Celtic languages of the United Kingdom should constitute “regional or minority languages” within the meaning of the Charter. The position of Scots and Ulster-Scots under the Charter is less clear because of their closeness to English, the language of the United Kingdom State; if they are dialects, they are not entitled to the Charter's protection. In this section, the potential impact of the Charter on these languages shall be considered. Before doing so, however, it is useful to consider the existing demographic, social and legal position of these languages.

Welsh

Welsh is a Celtic language, related to Cornish and Breton, and descends from the Brittonic family of Celtic languages which were spoken throughout most of the island prior to the arrival of the English-speaking peoples in the fourth and fifth centuries A.D.55 The displacement of Welsh by English within Wales itself was encouraged by the Act of Union of 1536 which provided that only English would be used in the Courts and in public office.56 Increasingly, Welsh became the language of the rural peasantry, artisans and lower clergy.57 In the nineteenth and twentieth centuries, numbers of Welsh-speakers continued to fall, even among these classes, due to a number of factors, including rapid industrialisation and the related massive in-migration of non-Welsh speakers, the arrival of English-medium state education after 1870, and the increasing intrusion of English-dominated media.58 There are now signs, however, that this process is beginning to be reversed, and Welsh enters the twenty-first century as unquestionably the strongest of Britain's autochthonous languages.

The 1991 United Kingdom census revealed that the percentage of inhabitants of Wales who spoke Welsh was 18.7 per cent, down slightly from the figure of 18.9 per cent in the 1981 census; however, the number of persons able to speak Welsh, as revealed in the 1991 census, 510,920, had increased slightly since 1981, when 508,207 persons were reported.59 In terms of linguistic survival, however, the 1991 Census gives reason for optimism about the future of the language, because the numbers and percentages of young people who speak the language are up, and the incidence of transmission of the language from one generation to the next, a key indicator of linguistic health, is high.60 While the language continues to be under some strain in its traditional heartland in the rural North-West, it has shown a marked expansion in certain urban centres, most notably in the region *57 of the Welsh capital, Cardiff, and among the professional middle classes.61 The census figures are not only a credit to the success of Welsh language activists, but are also due to a marked change in both government policy and in the legal status of the Welsh language over the last thirty or so years.

Unquestionably, the most significant changes have been in the area of Welsh-medium education and the teaching of Welsh in schools. Welsh-medium education62 dates to the late 1940s and early 1950s, but both Welsh-medium education and the teaching of Welsh as a subject was significantly enhanced by the Education Reform Act 1988, 63 which provided Welsh with a fundamental place in national curriculum in Wales.64 The government's goal was to ensure that “all children should by the time they complete their compulsory schooling at 16 and after 11 years' study of Welsh in school have acquired a substantial degree of fluency in Welsh”.65 As a practical matter, it is now generally possible for parents to opt for Welsh-medium education at both primary and secondary levels in all parts of Wales, and in 1998-99, there were 445 primary schools in which Welsh was the sole or main medium of instruction with 50,118 children in attendance66 and 52 such secondary schools with 36,289 pupils in attendance.67

With respect to Welsh-language broadcasting, similar strides have been made. Broadcasting is an area of particular importance for minority languages, both as a source of employment for speakers of the language and as an important counterbalance to the overwhelming presence of majority languages, particularly English, in modern media. BBC's Radio Cymru currently broadcasts over 120 hours a week in Welsh,68 and there are also a number of bilingual local radio stations. With regard to television, a separate channel, Sianel Pedwar Cymru (S4C), the Welsh Fourth Channel, was established in 1982 to consolidate and expand Welsh-language broadcasting. Both the core funding of S4C and the scheduling of Welsh-language programming on the service are statutorily guaranteed, with the result that S4C now broadcasts about 30 hours per week in Welsh, much of it in prime time.69

The legal status of Welsh has been considerably enhanced by the Welsh Language Act 1993 70 (the “Language Act”) and the Government of Wales Act 1998 71 (the “Wales Act”). *58 In the mid-twentieth century, Welsh had almost no public status in Wales. The Language Act, building on the Welsh Language Act 1967 and other legislation, has helped to change the situation considerably. It creates a Welsh Language Board,72 one of the responsibilities of which is to assist public bodies in Wales73 in the preparation of schemes which set out what measures the public body will take as to the use of the Welsh language in connection with the provision of services to the public. In preparing such schemes, the public body is to be guided by the principle that in the conduct of public business and the administration of justice in Wales the English and Welsh languages should, “so far as is both appropriate in the circumstances and reasonably practicable”, be treated on a basis of equality.74 The Board is also active in funding a wide range of linguistic activities, and in 1998-99 it made grants of £4,252,000 to support book publishing, cultural festivals, nursery schools, community language planning bodies and other language initiatives.75

In addition to the creation of the Welsh Language Board, the Language Act made a number of other changes which increased the legal status and visibility of the language. The most important of these was to create a right for any party, witness or other person to speak Welsh in any legal proceeding in Wales, with interpreters provided at public expense.76 The Language Act also provides a discretionary power to Ministers to produce Welsh versions of official forms.77

Finally, considerable provision was made for the Welsh language in the new Welsh Assembly, which came into being in 1999 by virtue of the Wales Act. The Wales Act provides that the Assembly shall in the conduct of its business give effect, so far as is both appropriate in the circumstances and reasonably practicable, to the principle that English and Welsh should be treated on a basis of equality.78 The Assembly has the power to pass subordinate legislation in both English and Welsh, and where it does so, both versions shall be equally authoritative.79 Members of the Welsh Assembly may speak in English or Welsh in both the Assembly and in Committees, and simultaneous translation facilities will be provided

for speeches made in Welsh.80 It is expected that members of the public shall be able to use Welsh when communicating with the Assembly.81

*59 Scottish Gaelic

Scottish Gaelic is a Celtic language, closely related to Irish and Manx, and was brought to Scotland from the north-east of Ireland starting in the fifth century, A.D.82 Like Welsh, Scottish Gaelic has suffered a more or less unbroken decline in numbers of speakers, but unlike Welsh, one which has not yet been interrupted. Gaelic has also suffered from adverse government policies, most notably the Education Act 1872, which introduced universal English-medium public education. Finally, Gaelic has also seen some changes in government policy and in its legal status in recent years. However, Scottish Gaelic is in a much more tenuous position than Welsh in virtually every respect.

With regard to the demographic situation, the 1991 United Kingdom census indicated that there were 69,510 people in Scotland who could speak, read or write Gaelic, representing about 1.4 per cent of the Scottish population,83 a drop of about 13,000 from the 1981 census. A closer analysis of the 1991 census returns provide stark evidence of a language community on the brink of extinction. Over half of all Gaelic speakers are aged 45 or more and Gaeldom's leading demographer notes that the numbers of young Gaelic speakers are “quite insufficient to reverse the inexorable downward trend of Gaelic speakers across the age-spectrum”.84 Comunn na Gaidhlig (“CNAG”), the main Gaelic-language development agency, estimates that in 1999 there were only about 54,000 in Scotland, a figure which implies a net loss of well over 1,000 Gaelic speakers per year.85

Until the mid-1980s, government support for Gaelic was minimal, and in spite of recent developments, Gaelic still has no official status, is recognised in only a small number of statutes, and receives only about £13 million in direct support from the State. Perhaps the most important recent development has been the expansion in Gaelic-medium education. Although it had long been possible for students to take Gaelic as a subject, students were not given instruction through the medium of Gaelic until 1985, when a Gaelic-medium stream, or “unit”, was introduced in a Glasgow school. In 1999/2000, there were 1,831 primary school pupils receiving Gaelic-medium education at 59 units, located not only in the Gaelic “heartlands” of the Highlands and Hebrides, but also in urban and Lowland areas. The first stand-alone Gaelic-medium school was opened in Glasgow in August, 1999. At secondary level, there were 232 students receiving some, but not all, of their education through the medium of Gaelic at 13 secondary schools, and there were 947 students studying Gaelic as a subject.86

While this recent expansion in both Gaelic-medium education and in the teaching of Gaelic as a subject has been important, it is still rudimentary when compared with the situation in Wales. In particular, this

expansion has no firm statutory basis, and depends heavily on the work of interested parents, of Gaelic promotional organisations, and, *60 crucially, on the goodwill of certain key local councillors and, occasionally, national politicians.87 More troubling, however, is the growing recognition that current levels of enrolment in Gaelic-medium education are not nearly high enough to halt the rapid decline in the number of speakers. A leading demographer, Kenneth MacKinnon has noted that the growth rate in Gaelic-medium education “will be quite insufficient to prevent a further decennial collapse of Gaelic amongst young people” by the time of the 2001 census and that:

“[f]or an education-led language revival, Gaelic-medium schooling would need to be expanded six-fold and become universal in the principal Gaelic areas. In the Western Isles, where roughly 70 per cent of the population is Gaelic-speaking, only 26 per cent of eligible children are enrolled in Gaelic-medium schooling”.88

With respect to broadcasting, there has also been a rapid expansion in Gaelic-medium services over the last fifteen years. In 1998-99, BBC Radio nan Gaidheal broadcast about 44 hours per week of Gaelic-medium programming, and there were about 250 hours of original Gaelic-medium television programming offered over BBC 2 and the private sector Grampian Television, Scottish Television and Channel 4.89 Much of this programming is funded by a Gaelic Broadcasting Committee (the “CCG”), set up under the Broadcasting Act 1990, 90 which currently has an annual budget of £8.5 million. Once again, Gaelic suffers in comparison with Welsh. The CCG can only fund the production of Gaelic-medium programming, but it has very little control over how, when and even if such output is aired; that power lies with the broadcasters such as the BBC and the independent Scottish Television. The funding of the CCG is not guaranteed by statute, but is now at the discretion of the Scottish Executive; the budget has declined in real terms over several years, and was actually cut by £500,000 in 1998-1999.91

In the cultural sphere, the Scottish Executive provides several hundred thousand pounds of direct assistance to a number of cultural and language promotional bodies.

With respect to its position in public life--the government and administration and the judicial system--Gaelic is in a much weaker position than Welsh. There is no equivalent of the Welsh Language Act 1993, although CNAG has been campaigning for a similar piece of legislation which would create similar structures for the Gaelic language and similar rights for its speakers.92 With respect to the courts, legal proceedings are generally *61 conducted exclusively through the medium of English, and Gaelic speakers have no right to use their language in court unless they can demonstrate an insufficient command of English.93 There is some limited scope for dealing with administrative authorities through the medium of Gaelic, but such arrangements are not based on any statutory right. Gaelic has gained

some recognition in the new Scottish Parliament and Scottish Executive, created by the Scotland Act 1998, 94 although it is not yet clear whether this recognition is real or symbolic. Nonetheless, the Scottish Executive includes a Minister for Gaelic, and Gaelic may, with the permission of the Presiding Officer (i.e. the Speaker), be used in parliamentary debates and before committees.95 The signage for the Parliament is fully bilingual. The Scottish Executive follows the practice of replying in Gaelic to letters received in Gaelic, issues bilingual press releases where the subject matter has particular relevance to Gaelic, and has continued the Scottish Office practice of producing Gaelic versions of important national documents. To conclude, while there has been some increase in the use of Gaelic in public contexts, such provision is still limited, generally not grounded in statute, not based on any coherent language development policy, and too often tokenistic.

Irish

Like the other Celtic languages, Irish has suffered a steady decline in numbers of speakers over a long period. In the sixteenth century the English Crown actively sought to impose English rule on Ireland and, in the process, to destroy its cultural distinctiveness.96 In the nineteenth century, famine and emigration, as well as other social forces, took a devastating toll on the language. The language managed to fare somewhat better in the twentieth century, due at first to a vigorous language restoration movement and later to various measures of positive support from the government of the Irish Free State and the Irish Republic, although the number of native speakers of the language have continued to decline.97 While the language revival movement has continued to play an important role with respect to Irish in Northern Ireland, the language has largely been deprived of the benefits of a supportive State.

According to the 1991 census, some 142,003 people, the large majority Roman Catholics, reported themselves as having an ability to speak Irish,98 which is roughly 10 per cent of the population of Northern Ireland as a whole, but almost a third of the Nationalist *62 community.99 As with the census figures for Welsh and, to a lesser extent, Scottish Gaelic, the numbers for Irish in Northern Ireland do not give an accurate picture of actual linguistic competence or use. Unlike Welsh and Scottish Gaelic, however, a very small percentage of Irish speakers in Northern Ireland are native speakers, and only a small minority of those reported as Irish speakers speak fluently and regularly.100 Unlike the situation in Wales and Scotland, therefore, the language movement in Northern Ireland is “essentially and unambiguously a revivalist phenomenon”.101

Due to its association with Irish nationalism, Irish was treated with hostility by the government of Northern Ireland in the period from 1921 until the dissolution of the Stormont Parliament in 1972. The only area in which State support for the language was provided was education; Irish was generally available as a subject in the largely independent grant-maintained schools run by Roman Catholic

religious orders.102 Irish-medium primary schools were opened in West Belfast in the 1970s, but initially received no government support whatsoever. Irish-language broadcasting was banned until 1982, and no funding was made available for Irish-language arts initiatives until the late 1980s.

This situation began to change in the 1980s under direct rule from Westminster. In 1983, the government began to fund Irish-medium education, and in 1998-99 there were eight grant-maintained Irish-medium primary schools catering to 1,074 pupils (there were five other newly-established schools which were not grant-aided and which had 116 students) and two post-primary Irish-medium schools with 332 pupils. Irish continues to be taught as a subject at both the primary and post-primary maintained Roman Catholic schools and a number of the newer inter-denominational schools. With respect to the media, BBC Radio Ulster broadcasts about 150 hours per year in Irish, which includes some repeat programming, but BBC2 broadcasts only three and a half hours of Irish television programming a year, and the independent television companies, ITV and Channel Four, provide only occasional Irish-language television programming. With respect to cultural life, the Northern Ireland Arts Council offered some £132,700 for various Irish-language events in 1998-99. Finally, the ULTACH Trust/Iontaobhas ULTACH, with a Board of Directors of both Roman Catholics and Protestants, was founded in 1989 with government funding with the purpose of promoting the Irish language throughout the entire community in Northern Ireland.103

The position of Irish, and indeed, Ulster Scots in Northern Ireland has been altered somewhat by the 1998 Good Friday Agreement between the Irish and United Kingdom *63 governments. The provisions of this agreement were in part inspired by the Charter, and this new language dynamic will be discussed further, below.

Scots, Ulster Scots and Cornish

Scots, Ulster Scots and Cornish all labour under two common problems. The first is recognition as languages: it is not altogether clear whether Scots and Ulster Scots are separate languages or mere dialects of English, and while Cornish, a Celtic language closely related to Welsh, is clearly a separate language, its last native speakers died two centuries ago, and it is now only spoken by revivalists.104 The second problem is that Scots, Ulster Scots and Cornish all receive little State recognition and even less State support.

Scots, like Modern English, descended from Old English, which arrived in Scotland in the seventh century with Anglian peoples coming north from Northumberland. Influenced by Anglo-Danish, Norman French, Dutch and Gaelic, by the mid-fifteenth century it had replaced Latin as the language of administration in Scotland, and had also become the principal literary language of the country. From the early

seventeenth century, it was brought to northern Ireland by Scots planters, and it is this speech which has been preserved as Ulster Scots, a dialect of Scots. From the mid-sixteenth century, however, Scots has been subject to a gradual process of anglicisation, due to a number of factors: the Reformation increased political and social ties between Scotland and England; and the Union of the Scottish and English Crowns in 1603 and of the Scottish and English Parliaments in 1707 lead to the displacement of Scots by English as the language of public administration and, increasingly, in “polite” society.105

In spite of the forces which have buffeted it, Scots continues to survive, both in Scotland and as Ulster Scots in Northern Ireland, not least as a language of a still-vibrant literary and musical tradition.106 While it is true that there are elements of Scots in the speech of the overwhelming majority of the population of Scotland and Northern Ireland, the actual position of the Scots tongue is less clear. It has been noted that the language of contemporary lowland Scotland is fluid:

“… marked by a wide and almost infinitely variable range of speech-styles, ranging from the full Scots of some fisher-folk and farming people in the North-East, through various intermediate ‘mixtures of Scots and English’, to a variety of Standard English spoken in a Scottish accent”.107

It is, therefore, difficult to quantify a precise number of speakers of Scots; in spite of lobbying by Scots language activists and the Scottish National Party, the Scottish Executive has recently decided not to include a question on Scots on the 2001 census, and therefore precise linguistic information will continue to be unavailable. The Ulster Scots Language Society has estimated the number of speakers of Ulster Scots, sometimes *64 referred to as “Ullans”, at 100,000,108 although once again, precise numbers are extremely difficult to arrive at.

As noted earlier, there is no clear legal, or for that matter linguistic basis for determining whether a form of speech is a language or merely a dialect. Nonetheless, Scots activists have advanced a number of reasons for regarding Scots as a language distinct from modern English: the Scots tongue has many attributes not shared by any regional English dialect, and these linguistic characteristics differ more sharply from Standard English than any English dialect; Scots has a distinct literature, and there is no English dialect which can compare with it in its antiquity, extent, variety and distinction; and it is at least as distinct from standard English as, say, Catalan is from Castilian Spanish, or Norwegian is from Danish.109

Both Scots and Ulster Scots receive very limited amounts of public support. For example, the language is neither the medium of instruction nor a separate subject in schools, although many students in Scotland

in particular are exposed to Scots as part of Scottish literature, and new materials such as dictionaries have been produced for use in schools. Some organisations, such as the Scottish National Dictionary Association, which produces Scots dictionaries and conducts linguistic research, and the Scots Language Resource Centre, which develops educational materials, publishes in Scots, and acts as a pressure group, receive some funding from central government and local authorities, although none of this is statutorily based.110

It has been estimated that some 22,000 people spoke Cornish in 1600, but the language suffered a steady decline, and the last person with a traditional knowledge of Cornish was believed to have died in 1890.111 At that very time, however, efforts began to be made to revive Cornish as a spoken language, and a Cornish language movement persists to the present. This movement has never been a mass movement, and a recent survey estimates that about 300 people are reasonably fluent in Cornish.112 A small number of people use Cornish daily, although a much greater number, estimated in 1981 at around 1,000, have at some point attended Cornish language classes.113 The movement has, however, often been riven by both practical and ideological disagreements about the form the revival should take.114 While the movement has been somewhat successful in spreading an awareness of the Cornish language, it has received very little State support in doing so. The language forms no part of the school curriculum in Cornwall--most language learning takes place in evening classes--and there has been no support for the training of Cornish language development teachers. However, Cornish has received some recognition from the European Bureau for Lesser Used Languages, a European Community institution *65 and the Cornwall County Council has adopted a policy on the Cornish language which has been accepted by four of the six district councils in the county.115

Application of the Charter to British Regional or Minority Languages

It is understood that on ratification of the Charter, the United Kingdom government specify only Welsh and Scottish Gaelic under Part III, but that it would apply Part II in respect of Irish, which it would subsequently specify under Part III once it felt that it could apply the minimum 35 paragraphs or subparagraphs in respect of it. It is understood that the United Kingdom will apply Part II in respect of Ulster Scots and Scots and possibly Cornish116 although given that the United Kingdom chose not to recognise the Cornish as a “national minority” in its first State report under the Framework Convention, there is some concern that the United Kingdom may also choose to ignore the Cornish language under the Charter.

The United Kingdom appears to be taking a rather restrictive and unimaginative approach to its potential obligations under the Charter which, at least in respect of Welsh and Scottish Gaelic, will largely rob United Kingdom ratification of all but symbolic value. For example, in its designation of Part III measures, the United Kingdom appears to be guided by what it can agree to based on existing rather

than any projected measures of support, and the choices have apparently been arrived at with extremely limited input from the language communities in question.117 When the United Kingdom government first announced its intention to sign the Charter in June, 1998, it believed that the existing range of measures in place to support Welsh meant that the requirements of the Charter were already more than being met in Wales. Thus, the Welsh Assembly Secretary for Education and Training recently reported that “[o]n the basis of current policies and programmes, it is believed that the United Kingdom can apply with confidence 52 paragraphs and subparagraphs from Part III … to Welsh”, and that these have been agreed to by the government118 (emphasis added). It is important to emphasise that no additional measures had to be taken by the Government in order to make these Part III commitments. John Walter Jones, Chief Executive of the Welsh Language Board has put the position bluntly:

“Given the relative strength of the Welsh language in Wales today, and given the various forms of support for the language that exist, I could say with little fear of contradiction that the Welsh language will survive whether the United Kingdom ratifies the charter or not. The fact is that the future of Welsh is not dependent on the existence of the charter and its provisions, or on its ratification by the United Kingdom Government”.119

*66 So, with respect to education, for example, the Government appears willing to designate the strongest possible commitments in respect of pre-school, primary and secondary education,120 but much weaker commitments in respect of technical and vocational, and post-secondary education121 which guarantee less than full Welsh-medium education at those levels. With regard to Judicial authorities, the Government will guarantee parties the right to use Welsh and to present evidence in Welsh in criminal and civil proceedings,122 but will not commit to the strongest measure of support, which would permit the conduct of all proceedings in Welsh. It could be argued that, given the commitment in the Language Act and the Wales Act to treating Welsh and English with equal validity, the Government should have designated the largest number of paragraphs and subparagraphs available, and accepted the strongest commitments wherever possible. In short, the Government should have seen the Part III commitments as reflecting its aspirations for the language, rather than treating them as an opportunity to confirm the status quo. Yet, having secured the Language Act and provision for Welsh in the national curriculum, for example, both the Welsh Language Board and language activists are now becoming concerned about the quality of delivery of various Welsh-language services and the extent to which statutory and other commitments are actually being met. The Part III commitments will give both planners and activists a yardstick by which performance can be measured and, through the State reporting mechanism, a forum in which such issues can be confronted.

The situation is similar with respect to Scottish Gaelic. The Scottish Executive has indicated that it can apply 38 paragraphs, 37 of which on the basis of existing provision. Because Gaelic presently has almost no status in the Scottish Court system, the government was unable to sign up to any of the provisions in

Article 9, “Judicial authorities”.123 The Scottish Executive is apparently proposing to resolve this problem by designating through statutory order one judicial district in the Outer Hebrides as one in which Gaelic can be used by witnesses in civil proceedings. Thus, the Government has decided to take the most limited step imaginable in meeting its Part III obligations. It has apparently given little consideration to the aspirations of the language community, which include the creation of more substantive rights in many areas, most importantly, in education, and the creation of a separate Gaelic television service. Similarly, the Government has apparently given little consideration to any co-ordinated linguistic strategy for Gaelic. Given the precariousness of the language, this minimalist approach is disappointing and, it could be argued, not in keeping with the general objectives of the Charter and the obligations assumed under Part II.124 Once again, however, both the commitments made under Part III and the state reporting system will allow language activists the opportunity to test State performance and policies in a wide range of areas, and this may be of considerable use, politically.

*67 The United Kingdom position with respect to Irish, Ulster Scots and Scots is, for many reasons, peculiar, and illustrates that, at least in respect of these languages, United Kingdom policy is guided as much by political expediency as by principle. The possibility of United Kingdom ratification of the Charter began to be discussed at about the same time that negotiations between the British and Irish governments with respect to an agreement in Northern Ireland were reaching a climax. The interaction of these two processes can be seen in the Belfast Agreement, reached on Good Friday, 1998.125 Language issues are dealt with in a separate section of the Belfast Agreement, and both paragraph 3 and 4 of this section draw heavily on the wording of the Charter, in particular the Part II commitments in Article 7. Paragraph 3, for example, refers to “the importance of respect, understanding and tolerance in relation to linguistic diversity, including in Northern Ireland the Irish language, Ulster-Scots and the languages of various ethnic communities”, language which draws heavily on Article 7, paragraph 3 of the Charter. Paragraph 4 of the Belfast Agreement makes particular reference to Irish, and commits the British government to “take resolute action to promote the language”, to “facilitate and encourage the use of the language in speech and writing in public and private life where there is appropriate demand”, and to “seek to remove, where possible, restrictions which would discourage or work against the maintenance or development of the language”; these commitments echo Article 7, paragraphs 1c, d, and 2 of the Charter. The provision in paragraph 4 of the Belfast Agreement relating to consultation is “an enlightened interpretation of Article 7, paragraph 4 of the Charter”.126 Paragraph 4 of the Belfast Agreement contains further commitments with respect to Irish in Northern Ireland which are certainly in keeping with the spirit of Part II of the Charter, such as the placing of a statutory duty on the Department of Education to encourage and facilitate Irish-medium education, the encouragement of financial support for Irish language film and television production in Northern Ireland, and a commitment to exploring the possibility of expanding the availability of the Irish State-sponsored Irish-medium broadcast service, Teilifís na Gaeilge, in Northern Ireland.

It appears that the United Kingdom has chosen not to designate Irish in Part III of the Charter because it could not meet the minimum requirements of the Charter based on present provision, illustrating once again the rather unimaginative approach taken by the Government with respect to the Charter. It is understood, however, that Irish will be designated at the earliest possible opportunity, once existing provision supports such designation. Nonetheless, the mere application of Part II to Irish, coupled with the provisions of the Belfast Agreement, represent a considerable advance, given the treatment to which Irish has been subjected until very recently.

It is understood that the United Kingdom will also apply the Part II provisions of the Charter to Ulster Scots. It appears that this treatment was in part due to political pressure being brought to bear by Unionist politicians in Northern Ireland, who wished to advance the case of Ulster Scots in response to the strong support given to Irish by Nationalist *68 politicians, particularly Sinn Féin.127 It would be almost inconceivable that the United Kingdom could apply Part II to Ulster Scots in Northern Ireland and not to the same language, Scots, in Scotland, and so it appears that the Scots language will be an indirect beneficiary of this political calculation. Nevertheless, this represents a significant step forward for both Ulster Scots and Scots. Agreement by the United Kingdom to apply Part II means that the State is recognising Scots and Ulster Scots as languages, rather than dialects, and this is itself an important step forward. Also, given the present minimal measures of support these languages receive, the Part II obligations may allow for the linguistic needs of these communities to be addressed in a serious way for the first time.

Finally, the position of Cornish under the Charter is unclear. Based on the definition of “regional or minority language” under Article 1, paragraph a, there does not appear to be any reason why Cornish should not qualify for protection, at least under Part II. While this definition requires that such languages be used “traditionally” within a territory in the State, which Cornish has, it does not seem to require that such languages must have been spoken by native speakers up to the present. If a revived language cannot come within this definition, then the case for the inclusion of Irish in Northern Ireland is not particularly strong, given that it, as noted earlier, is primarily spoken by language revivalists rather than native speakers. Of course, Irish and Cornish differ in many respects, not least because Irish is spoken by a much larger number of people and is closely associated with a potent nationalist political movement. However, differential treatment on this basis alone would merely reinforce the notion that even under the Charter, language policy in the United Kingdom is driven more by political expedience than by a principled linguistic and minority policy. Given the extremely weak state of the Cornish language community and the very limited State support it receives, recognition under Part II of the Charter would also be a significant step forward.

Conclusions

Although speakers of minority languages enjoy some limited protection under international law, such measures are piecemeal, generally do not ensure consistent or coherent levels of positive State support, and do not contribute strongly to a sense that minority language rights are fundamental human rights.

The Charter, as the first international instrument directed at language, strongly reinforces the principle, present in Art. 27 of the ICCPR and in recent minorities instruments, that States are under an obligation to take positive measures to ensure the survival of certain minority language communities. By broadening and deepening the range of measures which States may implement, the Charter adds to our understanding of the nature of State obligations in this area.

Unfortunately, however, the Charter does not contribute in a significant way to the notion that minority language rights are fundamental human rights. For example, it recognises that State obligations are not absolute and are, even in the case of severely disadvantaged minority language communities, conditional on demand. It gives States a very broad discretion in choosing and implementing their obligations. It does little to ensure that obligations assumed by States are tailored to the objective needs of the minority language *69 community. Indeed, it accepts that there is a hierarchy of minority languages, some of which merit little or no attention whatsoever, and this only further detracts from the sense that language rights are potentially universal rights. In short, the Charter articulates no coherent theory of language rights nor does it clearly evidence any coherent linguistic or sociological theory of minority language maintenance and development. While some States have arguably used the Charter creatively and in a principled way in the development of minority language policy and practice,128 there is nothing in the Charter which guarantees such an outcome.

The proposed terms of the United Kingdom's ratification of the Charter illustrate many of these problems. The structure of the Part III obligations allows the United Kingdom to take a minimalist approach to its obligations thereunder; rather than encouraging the United Kingdom to think in a coherent and principled way about how the Charter might be used to enhance the linguistic security and vitality of the Welsh-- and Scottish Gaelic-speaking communities, it allows the United Kingdom to merely reconfirm existing measures of support. Indeed, in considering its terms of ratification, the United Kingdom seems to be driven in significant measure by political expediency. Thus, the Charter can be seen, at least in a British context, as a political document rather than a minority rights document. For the language communities affected, however, this can still have some positive consequences. First, it provides Scots and Ulster Scots with recognition as languages, rather than dialects, and it confirms that the United Kingdom has positive obligations in respect of both. Second, it may allow for a serious consideration of the status of Cornish and, if the United Kingdom agrees to apply Part II to this language, will represent a groundbreaking step forward for that language community. Third, it has signalled a fundamentally different and altogether more supportive approach to the Irish language in Northern Ireland. Thus, the Charter has something significant to offer the most marginalised and weakened

autochthonous languages in the United Kingdom. Finally, while the Charter has little new to offer to Welsh and Scottish Gaelic in terms of substantive measures of State support, it nonetheless articulates principles by which to guide and yardsticks by which to measure the development of State policy, and through the State reporting system, may offer a venue through which the claims of these two language communities might be advanced. So, once again, the Charter may prove to be a useful instrument, at least politically.

The School of Law, University of Glasgow

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1. Strasbourg: Council of Europe, Publishing and Documentation Service, 1993.A 1987 survey of those claiming to speak Irish in Northern Ireland indicated that only 6% claimed full fluency; 84% claimed to never use Irish at home, 15% used it occasionally, and only 1% claimed to use it on a daily basis: The Eurolang service of the European Bureau for Lesser Used Languages, http/www.eurolang.net/State/uk.htm.

2. Croatia, Finland, Germany, Hungary, Liechtenstein, Netherlands, Norway, Sweden and Switzerland.MacPóilín, supra, n.98, at 151.

3. See, for example, the Universal Declaration of Human Rights (the “Universal Declaration”), 1948, the Convention for the Protection of Human Rights and Fundamental Freedoms (the “European Convention on Human Rights”, or the “E.C.H.R.”), 1953, and the International Covenant on Civil and Political Rights (the “ICCPR”), 1976; see discussion, infra. Irish: Facing the future, supra, n. 96, at 15-16. See, generally, Liam Andrews, “The very dogs in Belfast will bark in Irish: The Unionist Government and the Irish Language 1921-43”, in Aodán MacPóilín, ed., The Irish Language in Northern Ireland (Belfast, 1997) at 49-94.

4. See, for example, the 1990 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (the “Copenhagen Declaration”), the United Nations General Assembly Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (the “UNGA Declaration on Minorities”) of December 18, 1992, and the Council of Europe Framework Convention for the Protection of National Minorities (the “Framework Convention”), which came into force on February 1, 1998, and which has been signed by 40 and ratified or acceded by 32 European

States. Only the Framework Convention has created binding international obligations. See the discussion, infra. Irish: Facing the Future, supra, n. 96, at 15-16, 23, 26, 33-34.

5. The word “autochthonous” is used in para. 1 of the explanatory report to the Charter. The word is not further defined, but means “native to a place; indigenous, aboriginal”: see, e.g., the Oxford English Dictionary. There is a small number of children who are being raised in Cornish, and they could therefore be described as native speakers.

6. See para. 2, the explanatory report.See, generally, Scotland: a linguistic double helix, European Languages 2 (The European Bureau for Lesser Used Languages: Dublin, 1995), at 29-31, and The Concise Scots Dictionary, Mairi Robinson, ed., (Aberdeen University Press: Aberdeen, 1985), at ix-xii.

7. For a comprehensive discussion of existing international standards, see Robert Dunbar, Minority Language Rights in International Law (forthcoming). ibid., at 32-36, and xii-xiii, respectively. See also, J. Derrick McClure, Why Scots Matters (The Saltire Society: Edinburgh, 1997).

8. See, for example, Art. 14 E.C.H.R and Arts 2(1) and 26 of the ICCPR. The principle of non-discrimination has been reiterated in the various recent minorities instruments: see, for example, Art. 4(1) of the Framework Convention, Arts 31 and 32 of the Copenhagen Declaration, and Arts 3(1) and 4(1) of the UNGA Minorities Declaration.Robinson, supra, n. 105, at xii.

9. See, for example, the Belgian Linguistic Case (No. 2), (1968) 1 EHRR 252, in which the Court of Human Rights rejected the notion that the principle of non-discrimination in Art. 14 E.C.H.R, together with the right to education in Art. 2 of the First Protocol to the E.C.H.R, established a right to minority language education. Ullans, Vol. 2, 1994, at 56.

10. Art. 19, ICCPR, and Art. 10, E.C.H.R.See Robinson, supra, n. 106 at xiii, and McClure, supra, n. 107, at 11-24.

11. Arts 21 and 22, ICCPR, and Art. 11, E.C.H.R. Scotland: A linguistic double helix, supra, n. 106, at 39-43.

12. The UN Human Rights Committee recognised in its decision in Ballantyne, Davidson and McIntyre v. Canada, (1993), CCPR/C/47/0/359/1989 and 385/1989, that the guarantee of freedom of expression in Article 19 of the ICCPR protects not only the content of communication but also the linguistic form that it takes.See Philip Payton, “The Ideology of Language Revival in Modern Cornwall”, in R. Black, W. Gillies and R. O Maolalaigh, supra, n. 58, 395 at 412, 419, The Cornish and the Council of Europe Framework Convention for the Protection of National Minorities, http/www.biscoe.org.uk/cnmr.htm, at para. 5.1.

13. See, for example, Art. 5, para. 2 and Art. 6, para. 3, E.C.H.R.Payton, ibid., at 397, and An Indepoendent Academic Study on Cornish, SGRUD Research, April 2000, at 20.

14. Art. 27 has been considered by the UN Human Rights Committee in a relatively small number of communications, but has been the subject of a major study--see Francesco Capotorti, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities (New York: United Nations, 1979, 2nd, ed. 1991)--and considerable academic comment--see, for example, Patrick Thornberry,

International Law and the Rights of Minorities (Oxford: Clarendon, 1994), at 141-247. The Cornish, supra, n. 112, at para. 5.3. The present population of Cornwall is estimated to be about 490,000. It is estimated that there are presently some 445 active learners; see An Independent Academic Study on Cornish, ibid, at 28.

15. General Comment 23, April 8, 1994, at para. 6.2.See Payton, supra, n. 112.

16. See Art. 7, para. 2. These provisions complement and particularise similar “protective” principles expressed in many of the recent minorities instruments; for example, Art. 5, para. 2 of the Framework Convention enjoins States to refrain from policies or practices aimed at the forced assimilation of persons belonging to national minorities. The Cornish, supra, n. 112, at para. 5.4.

17. Explanatory report, para. 2.“Britain to sign Minority languages Charter”, Eurolang, March 2, 2000, http://www.eurolang.net/news

18. Explanatory report, para. 27.Much of the information about United Kingdom obligations in respect of Welsh and Scottish Gaelic is based on private communications to the author in March and April, 2000, including a Paper from the Welsh Assembly Secretary for Education and Training, and an outline from the Arts & Cultural Heritage Division of the Scottish Executive.

19. See, for example, Art. 1, paras 1 and 2 of the UNGA Declaration on Minorities, Art. 33 of the Copenhagen Declaration and Art. 5, para. 1 and Art. 4, para. 2 of the Framework Convention. ibid., at para. 12 of Paper from Welsh Assembly Secretary.

20. An Additional Protocol to the E.C.H.R on the Rights of Minorities did contain a definition, but this protocol was never adopted by the Committee of Ministers of the Council of Europe: see Recommendation 1201 (1993) of the Parliamentary Assembly of the Council of Europe. A number of writers have addressed these questions, though: see, for example, J. Packer, “On the Definition of Minorities”, in J. Packer and K. Myntti, The Protection of Ethnic and Linguistic Minorities (Turku/Åbo## Akademi, 1993), Thornberry, supra, n. 14, at 164-172, Capotorti, supra, n. 14, at 34, 95, and Florence Benoit-Rohmer, The Minority Question in Europe: Texts and Commentary (Strasbourg: Council of Europe, 1996), at 13-15. Implementation of the European Charter for Regional or Minority Languages (Strasbourg: Council of Europe, 1999), Regional or Minority Languages, No. 2, at 52.

21. As noted at para. 11 of the explanatory report, the Charter “sets out to protect and promote regional or minority languages, not linguistic minorities”.It will designate sub-paras 1a(i), b(i) and c(i).

22. Para. 11; the explanatory report goes on to note, however, that the obligations of the States parties with regard to the status of these languages and the domestic legislation which will have to be introduced in compliance with the Charter “will have an obvious effect on the situation of the communities concerned and their individual members”.It will designate sub-paras 1d(iv) and e(iii).

23. Para. 31.It will designate sub-paras 1a(ii) and (iii) and b(ii) and (iii).

24. This is further emphasised at para. 15 of the explanatory report, which makes clear that the Charter “does not deal with the situation of new, often non-European languages which may have appeared in the signatory states as a result of recent migration flows often arising from economic motives”.It must specify at least one paragraph or sub-para. in Art. 9.

25. The explanatory report merely recognises that the problems of such groups deserve to be addressed separately, “if appropriate in a specific legal instrument”: see para. 15.For a discussion of the limits of this approach for Gaelic, see Robert Dunbar, “The European Charter for Regional or Minority Languages: Some Reflections from a Scottish Gaelic Perspective”, in D. Fottrell and B. Bowring, eds., Minority and Group Rights in the New Millenium (Martinus Nijhoff: The Hague, 1999) at 111.

26. Given that the same is true of many “regional or minority languages”, such as German in Italy, this is a weak explanation.For a much more complete discussion of this subject, see Aodán MacPóilín, Director of the ULTACH Trust, “The Belfast Agreement and the Irish Language in Northern Ireland” (February, 1999) (unpublished), and “Language, Identity and Politics in Northern Ireland”, (January, 2000) (unpublished). See also “The Charter and the Belfast Agreement: Implications for Irish in Northern Ireland”, and “Ulster Scots--The European Charter/Belfast Agreement”, Contact Bulletin (The European Bureau for Lesser-Used Languages), Vol. 15, No. 1, Nov. 1998, at 3, 2.

27. See, for example, Perry Keller, “Re-thinking Ethnic and Cultural Rights in Europe” (1998) 18 OJLS 29, at 39-43; see also Dunbar, supra, n. 7, for a discussion of the theoretical underpinnings of minority language rights.“The Charter and the Belfast Agreement”, ibid.

28. Para. 32.See Mac Poilin, supra, n. 98.

29. See Mala Tabory, “Language Rights as Human Rights”, (1980) 40 Israel Yearbook on Human Rights 167, at 189.See, for example, Implementation of the European Charter for Regional or Minority Languages, supra, n. 119.

30. See, generally, Dunbar, supra, n. 7.

31. Para. 36.

32. Para. 37.

33. See also para. 39 of the explanatory report.

34. ibid.

35. Subpara. a.

36. Subpara. c.

37. Subparas. f, g and h. Indeed, paragraph 63 of the explanatory report notes that “[a] crucial factor in the maintenance and preservation of regional or minority languages is the place they are given in the educational system”.

38. Subpara. d, and para. 62 of the explanatory report.

39. Para. 41.

40. See, for example, John Edwards, Multilingualism (London: Penguin, 1994), chs. 4 and 7.

41. Similar, though arguably stronger provisions can be found in Art. 32.2 of the Copenhagen Document.

42. See, for example, para. 75 of the explanatory report to the Framework Convention.

43. See, for example, Art. 9, para. 1 and Art. 10, para. 1 and 2.

44. See, for example, Art. 8, para. 1, Art. 10, para. 3, Art. 11, para. 1, Art. 12, para. 1, and Art. 13, para. 2.

45. Para. 28 of the explanatory report adds a further condition which does not seem to be supported by the definition itself: it indicates that the territory being referred to is that where the language is spoken to a significant extent “and which corresponds to its historical base”. Thus, even if numbers of speakers of the language in a particular geographic area were sufficient to justify positive measures of support, if this area differs from the historical linguistic heartland, the State's obligation would not be activated. This is troubling, because many speakers of regional or minority languages are forced by economic and other factors to abandon the heartland for a different, often urban setting. Significant numbers of speakers of these languages might therefore be excluded from the Charter's protection.

46. Explanatory report, para. 28.

47. Art. 2, para. 2.

48. ibid.

49. Explanatory report, para. 23.

50. ibid, para. 45.

51. See Edwards, supra, n. 40, and Joshua Fishman, Reversing Language Shift (Clevedon: Multilingual Matters, 1991) for an introduction.

52. The Framework Convention, the only recent minorities instrument which creates binding international obligations, employs a similar mechanism. Under Art. 15, States must make their first report within a year of the Charter's entry into force for them, and subsequent reports every three years thereafter.

53. See, for example, Donna Gomien, “The rights of Minorities under the European Convention on Human Rights and the European Charter on Regional and Minority Languages”, in J. Cator and J. Niessen, eds., The Use of International Conventions to Protect the Rights of Migrants and Ethnic Minorities (1994), at 49-78.

54. Art. 16, para. 1, and Art. 17, para. 1.

55. Janet Davies, The Welsh Language (Cardiff: University of Wales Press, 1993), at 3-12.

56. See Davies, ibid., at 22, and Glanville Price, ed., Encyclopedia of the Languages of Europe (Oxford: Blackwell, 1998), at 489-490.

57. Davies, supra, n. 55, at 23.

58. Robert Owen Jones, “The Welsh Language: Does it Have a Future?”, in Ronald Black, William Gillies and Roibeard O Maolalaigh, eds., Celtic Connections: proceedings of the tenth international congress of celtic studies, Vol. I (East Linton: Tuckwell, 1999) 425 at 429, and Price, supra, n. 56, at 491.

59. Davies, supra, n.55. The vast majority of Welsh-speakers also speak English. While the Census does not record levels of linguistic competence, a Welsh Office survey, Arolwg Cymdeithasol Cymru 1992: adroddiad ar y Gymraeg, (March, 1995) estimated that about 326,600 spoke Welsh as a first language, on a slightly higher estimate of the numbers of Welsh speakers, 590,800 than recorded in the 1991 Census.

60. See Kenneth MacKinnon, “Celtic Language Groups: Identity and Demography in Cross-Cultural Comparison”, in Black, Gillies and O Maolalaigh, supra, n. 58, 324 at 325.

61. See, for example, Davies, supra, n. 55, at 72. See also, MacKinnon, supra, n. 60.

62. Education in which Welsh, not English, is the medium of instruction in the classroom; this is to be contrasted with the teaching of Welsh as a subject in an English-medium curriculum.

63. 1988, c. 40.

64. See paras 3(1)(b) and 3(2)(c), and subs. 3(7), Education Reform Act 1988, as amended by s.345B of the Education Act 1996.

65. Welsh Office, Welsh for Ages 5-16: Proposals of the Secretary of State for Wales (Cardiff, HMSO, 1989), at 4.

66. This is approximately 26.8% of all primary schools and 18% of all students; there are no primary schools where no Welsh is taught, and virtually all of the remaining students take Welsh as a subject: Schools in Wales: General Statistics 1999 (Government Statistical Service, 2000), at 47-55.

67. This is approximately 22.7% of all secondary schools and 13% of all students; there are no such schools where no Welsh is taught and about 68% of remaining students take Welsh as a subject: ibid.

68. See Davies, supra, n. 55, at 89, and The Welsh Language Board, Yr Iaith Gymraeg, http/www.bwrdd-yr-iaith.org.uk.

69. Yr Iaith Gymraeg, ibid. See, for example, subs. 80(1) of the Broadcasting Act 1996, pursuant to which S4C received £74.895 m. in Government funding in 1998, and subs. 57(2) of the Broadcasting Act 1990, which guarantees that much Welsh-medium programming will be in prime-time slots.

70. 1993, c. 38.

71. 1998, c. 38.

72. s.1, the Language Act. The Board currently has ten board members and 28 staff: Welsh Language Board, 1998-99 Annual Report and Accounts.

73. Defined in subsection 6(1) of the Language Act to include all county councils, district councils or community councils, police authorities, fire authorities, health authorities, NHS trusts, and a broad range of educational bodies.

74. Subs. 5(1) and (2) of the Language Act. From 1995 until March, 1999, the Board has assisted in the preparation and approval of 108 such schemes, as well as nine Welsh education schemes.

75. See Annual Report, 1998-99, supra, n.72.

76. ss.22 and 24, the Language Act.

77. s.26, the Language Act. For a critical view of the Language Act, see Davies, supra, n. 55, at 98; for more optimistic assessments, see Colin H. Williams, “Legislation and Empowerment: A Welsh Drama in Three Acts”, in Comhdháil Náisiúnta na Gaeilge, International Conference on Language Legislation (Dublin: 1998), and Yr Iaith Gymraeg, supra, n. 68.

78. The subs. 47(1), the Wales Act.

79. Subs. 122(1), the Wales Act.

80. Standing order 7.1 and 8.18.

81. Williams, supra, n. 77, at 146.

82. See Price, supra, n. 56, at 417.

83. The Scottish Parliament Information Centre, Gaelic (Gàidhlig), Devolution Series 2/00, March 2, 2000. While the census did not solicit information on linguistic competence, the great majority of those reported as Gaelic speakers were almost certainly native speakers, and fully bilingual.

84. Kenneth MacKinnon, “Neighbours in Persistence: Prospects for Gaelic Maintenance in a Globalising English World”, (delivered at the Aithne na nGael/Gaelic Identities conference, Belfast, March 27-28, 1998).

85. Comunn na Gàidhlig, Gàidhlig plc: Plana Leasachaidh Cànain/A development plan for gaelic (CNAG: 1999), p. 43.

86. See Gaelic (Gàidhlig), supra, n. 83.

87. A very general statutory obligation with respect to Gaelic under s.1 of the Education (Scotland) Act 1980 has been of limited practical value; a scheme of grants, worth £2.434m. for 1999-2000, under the

Grants for Gaelic Language Education (Scotland) Regulations 1986 has been of some value in assisting local education authorities with start-up costs of Gaelic-medium education. For an analysis of the limitations of these arrangements in terms of the maintenance of the Gaelic language, see Robert Dunbar, “Gaidhlig in Scotland--Devising an Appropriate Model for a Changing Linguistic Environment”, in Comhdhail Naisiunta na Gaeilge, supra, n. 77, at 168-170.

88. MacKinnon, supra, n. 60.

89. A Review of Aspects of Gaelic Broadcasting, prepared for the Scottish Office Education and Industry Department, Arts and Cultural Heritage Division, by Fraser Production & Consultancy, May, 1998, at 3-9, and Appendix 1.

90. 1990, c. 42.

91. For an analysis of the present system of support for Gaelic broadcasting, see Dunbar, supra, n. 87, at 164-168.

92. See Comunn na Gàidhlig, Inbhe Thearainte dhan Ghàidhlig/Secure Status for Gaelic (December, 1997), and Inbhe Thearainte dhan Ghàidhlig: Draft Brief for a Gaelic Language Act (June, 1999); see Dunbar, supra, n. 87, at 172-175, for a discussion of the 1997 proposals.

93. Taylor v. Haughney, 1982 S.C.C.R. 360; as there are no unilingual Gaelic-speakers, this means that Gaelic will not be heard in Scottish courts. As both the Scottish Land Court and the Crofters' Commission are statutorily required to have one member who speaks Gaelic, this may imply a right to use Gaelic before both of these tribunals: see A. C. Evans, “The Use of Gaelic in Court Proceedings”, 1982 Scots Law Times, 286-7, at 286.

94. 1998, c. 48.

95. Statutory Instrument 1999 No. 1095, The Scotland Act 1998 (Transitory and Transitional Provisions) (Standing Orders and Parliamentary Publications) Order 1999, art. 3, Schedule, Rule 7.1.1, 7.1.2, and 7.8.1. The likelihood that much Gaelic will be used is, however, small. Gaelic is not permitted in many important types of parliamentary business, such as motions, petitions and questions, and it will not be used in legislation.

96. Irish: Facing the Future (European Bureau for Lesser Used Languages: Dublin, 1999), at 2.

97. ibid., at 3.

98. Aodán MacPóilín, “The Irish Language Movement in Northern Ireland”, in Mairead NicCraith, Watching One's Tongue (Liverpool: Liverpool University Press, 1996), 137, at 152.

99. Surprisingly, given the starkly different State policies towards Irish, the percentage of Irish speakers in the Nationalist community in Northern Ireland is broadly similar to the percentage of the population of the Irish Republic who identified themselves as Irish speakers: see Irish: Facing the Future, supra, n. 96, at 8.

100. Strasbourg: Council of Europe, Publishing and Documentation Service, 1993.A 1987 survey of those claiming to speak Irish in Northern Ireland indicated that only 6% claimed full fluency; 84% claimed to never use Irish at home, 15% used it occasionally, and only 1% claimed to use it on a daily basis: The Eurolang service of the European Bureau for Lesser Used Languages, http/www.eurolang.net/State/uk.htm.

101. Croatia, Finland, Germany, Hungary, Liechtenstein, Netherlands, Norway, Sweden and Switzerland.MacPóilín, supra, n.98, at 151.

102. See, for example, the Universal Declaration of Human Rights (the “Universal Declaration”), 1948, the Convention for the Protection of Human Rights and Fundamental Freedoms (the “European Convention on Human Rights”, or the “E.C.H.R.”), 1953, and the International Covenant on Civil and Political Rights (the “ICCPR”), 1976; see discussion, infra. Irish: Facing the future, supra, n. 96, at 15-16. See, generally, Liam Andrews, “The very dogs in Belfast will bark in Irish: The Unionist Government and the Irish Language 1921-43”, in Aodán MacPóilín, ed., The Irish Language in Northern Ireland (Belfast, 1997) at 49-94.

103. See, for example, the 1990 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (the “Copenhagen Declaration”), the United Nations General Assembly Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (the “UNGA Declaration on Minorities”) of December 18, 1992, and the Council of Europe Framework Convention for the Protection of National Minorities (the “Framework Convention”), which came into force on February 1, 1998, and which has been signed by 40 and ratified or acceded by 32 European States. Only the Framework Convention has created binding international obligations. See the discussion, infra. Irish: Facing the Future, supra, n. 96, at 15-16, 23, 26, 33-34.

104. The word “autochthonous” is used in para. 1 of the explanatory report to the Charter. The word is not further defined, but means “native to a place; indigenous, aboriginal”: see, e.g., the Oxford English Dictionary. There is a small number of children who are being raised in Cornish, and they could therefore be described as native speakers.

105. See para. 2, the explanatory report.See, generally, Scotland: a linguistic double helix, European Languages 2 (The European Bureau for Lesser Used Languages: Dublin, 1995), at 29-31, and The Concise Scots Dictionary, Mairi Robinson, ed., (Aberdeen University Press: Aberdeen, 1985), at ix-xii.

106. For a comprehensive discussion of existing international standards, see Robert Dunbar, Minority Language Rights in International Law (forthcoming). ibid., at 32-36, and xii-xiii, respectively. See also, J. Derrick McClure, Why Scots Matters (The Saltire Society: Edinburgh, 1997).

107. See, for example, Art. 14 E.C.H.R and Arts 2(1) and 26 of the ICCPR. The principle of non-discrimination has been reiterated in the various recent minorities instruments: see, for example, Art. 4(1) of the Framework Convention, Arts 31 and 32 of the Copenhagen Declaration, and Arts 3(1) and 4(1) of the UNGA Minorities Declaration.Robinson, supra, n. 105, at xii.

108. See, for example, the Belgian Linguistic Case (No. 2), (1968) 1 EHRR 252, in which the Court of Human Rights rejected the notion that the principle of non-discrimination in Art. 14 E.C.H.R, together with the right to education in Art. 2 of the First Protocol to the E.C.H.R, established a right to minority language education. Ullans, Vol. 2, 1994, at 56.

109. Art. 19, ICCPR, and Art. 10, E.C.H.R.See Robinson, supra, n. 106 at xiii, and McClure, supra, n. 107, at 11-24.

110. Arts 21 and 22, ICCPR, and Art. 11, E.C.H.R. Scotland: A linguistic double helix, supra, n. 106, at 39-43.

111. The UN Human Rights Committee recognised in its decision in Ballantyne, Davidson and McIntyre v. Canada, (1993), CCPR/C/47/0/359/1989 and 385/1989, that the guarantee of freedom of expression in Article 19 of the ICCPR protects not only the content of communication but also the linguistic form that it takes.See Philip Payton, “The Ideology of Language Revival in Modern Cornwall”, in R. Black, W. Gillies and R. O Maolalaigh, supra, n. 58, 395 at 412, 419, The Cornish and the Council of Europe Framework Convention for the Protection of National Minorities, http/www.biscoe.org.uk/cnmr.htm, at para. 5.1.

112. See, for example, Art. 5, para. 2 and Art. 6, para. 3, E.C.H.R.Payton, ibid., at 397, and An Indepoendent Academic Study on Cornish, SGRUD Research, April 2000, at 20.

113. Art. 27 has been considered by the UN Human Rights Committee in a relatively small number of communications, but has been the subject of a major study--see Francesco Capotorti, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities (New York: United Nations, 1979, 2nd, ed. 1991)--and considerable academic comment--see, for example, Patrick Thornberry, International Law and the Rights of Minorities (Oxford: Clarendon, 1994), at 141-247. The Cornish, supra, n. 112, at para. 5.3. The present population of Cornwall is estimated to be about 490,000. It is estimated that there are presently some 445 active learners; see An Independent Academic Study on Cornish, ibid, at 28.

114. General Comment 23, April 8, 1994, at para. 6.2.See Payton, supra, n. 112.

115. See Art. 7, para. 2. These provisions complement and particularise similar “protective” principles expressed in many of the recent minorities instruments; for example, Art. 5, para. 2 of the Framework Convention enjoins States to refrain from policies or practices aimed at the forced assimilation of persons belonging to national minorities. The Cornish, supra, n. 112, at para. 5.4.

116. Explanatory report, para. 2.“Britain to sign Minority languages Charter”, Eurolang, March 2, 2000, http://www.eurolang.net/news

117. Explanatory report, para. 27.Much of the information about United Kingdom obligations in respect of Welsh and Scottish Gaelic is based on private communications to the author in March and April, 2000, including a Paper from the Welsh Assembly Secretary for Education and Training, and an outline from the Arts & Cultural Heritage Division of the Scottish Executive.

118. See, for example, Art. 1, paras 1 and 2 of the UNGA Declaration on Minorities, Art. 33 of the Copenhagen Declaration and Art. 5, para. 1 and Art. 4, para. 2 of the Framework Convention. ibid., at para. 12 of Paper from Welsh Assembly Secretary.

119. An Additional Protocol to the E.C.H.R on the Rights of Minorities did contain a definition, but this protocol was never adopted by the Committee of Ministers of the Council of Europe: see Recommendation 1201 (1993) of the Parliamentary Assembly of the Council of Europe. A number of writers have addressed these questions, though: see, for example, J. Packer, “On the Definition of Minorities”, in J. Packer and K. Myntti, The Protection of Ethnic and Linguistic Minorities (Turku/Åbo## Akademi, 1993), Thornberry, supra, n. 14, at 164-172, Capotorti, supra, n. 14, at 34, 95, and Florence Benoit-Rohmer, The Minority Question in Europe: Texts and Commentary (Strasbourg: Council of Europe, 1996), at 13-15. Implementation of the European Charter for Regional or Minority Languages (Strasbourg: Council of Europe, 1999), Regional or Minority Languages, No. 2, at 52.

120. As noted at para. 11 of the explanatory report, the Charter “sets out to protect and promote regional or minority languages, not linguistic minorities”.It will designate sub-paras 1a(i), b(i) and c(i).

121. Para. 11; the explanatory report goes on to note, however, that the obligations of the States parties with regard to the status of these languages and the domestic legislation which will have to be introduced in compliance with the Charter “will have an obvious effect on the situation of the communities concerned and their individual members”.It will designate sub-paras 1d(iv) and e(iii).

122. Para. 31.It will designate sub-paras 1a(ii) and (iii) and b(ii) and (iii).

123. This is further emphasised at para. 15 of the explanatory report, which makes clear that the Charter “does not deal with the situation of new, often non-European languages which may have appeared in the signatory states as a result of recent migration flows often arising from economic motives”.It must specify at least one paragraph or sub-para. in Art. 9.

124. The explanatory report merely recognises that the problems of such groups deserve to be addressed separately, “if appropriate in a specific legal instrument”: see para. 15.For a discussion of the limits of this approach for Gaelic, see Robert Dunbar, “The European Charter for Regional or Minority Languages: Some Reflections from a Scottish Gaelic Perspective”, in D. Fottrell and B. Bowring, eds., Minority and Group Rights in the New Millenium (Martinus Nijhoff: The Hague, 1999) at 111.

125. Given that the same is true of many “regional or minority languages”, such as German in Italy, this is a weak explanation.For a much more complete discussion of this subject, see Aodán MacPóilín, Director of the ULTACH Trust, “The Belfast Agreement and the Irish Language in Northern Ireland” (February, 1999) (unpublished), and “Language, Identity and Politics in Northern Ireland”, (January, 2000) (unpublished). See also “The Charter and the Belfast Agreement: Implications for Irish in Northern Ireland”, and “Ulster Scots--The European Charter/Belfast Agreement”, Contact Bulletin (The European Bureau for Lesser-Used Languages), Vol. 15, No. 1, Nov. 1998, at 3, 2.

126. See, for example, Perry Keller, “Re-thinking Ethnic and Cultural Rights in Europe” (1998) 18 OJLS 29, at 39-43; see also Dunbar, supra, n. 7, for a discussion of the theoretical underpinnings of minority language rights.“The Charter and the Belfast Agreement”, ibid.

127. Para. 32.See Mac Poilin, supra, n. 98.

128. See Mala Tabory, “Language Rights as Human Rights”, (1980) 40 Israel Yearbook on Human Rights 167, at 189.See, for example, Implementation of the European Charter for Regional or Minority Languages, supra, n. 119.

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