HILJ Symposium: Moria Paz responds to Efrat Arbel

[Moria Paz is a Fellow in International Law at Stanford Law School.]

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

First of all, let me express my thanks to Efrat Arbel for her careful and thoughtful reading, as well as for her comments, for which I am grateful. Arbel and I largely agree on the descriptive analysis of case law in this area, which forms the bulk of the paper, although we may have partially divergent perspectives on the implications. In my comment, I very briefly recap the descriptive component and then discuss the normative elements of the study.

In the paper, I used case law to demonstrate a significant disconnect between official rhetoric in human rights law and much narrower judicial practice in cases bearing on language. Formal pronouncements of the regime as well as prominent human rights scholars celebrate linguistic heterogeneity and seek to harness the international legal regime to protect, indeed even to create, linguistic and cultural diversity. When cases bearing on language reach major human rights courts and quasi-judicial institutions, and especially the United Nations Human Rights Council (UNHRC) and the European Court of Human Rights (ECtHR), these enforcement institutions do not in fact demand that states accommodate substantive diversity. The UNHRC and the ECtHR are not prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Although they operate under different doctrinal structures, these two adjudicative bodies reach a similar legal outcome: they consistently allow the state to incentivize assimilation in the public sphere (on fair terms) into the dominant culture and language of the majority.

Like Arbel, I am sympathetic to the importance of cultural protection, including linguistic accommodation. Indeed, as a foreigner who lives and operates in a language different from my own mother tongue, I am intimately aware of the cultural significance of one’s own language and the costs (financial and non-financial) associated with a language shift. However, I do not think that the ideal society should necessarily always strive to provide a thicker accommodation to linguistic minorities. While there are justified moral reasons to protect linguistic diversity, there are also valid ethical justifications and pragmatic considerations for incentivizing the evolution of monolingualism in the public sphere. Sometimes diversity is simply not practical, sometimes it is even not desirable, or at other times even if it is feasible, it is too costly in other ways. Diversity, while certainly of value, should not necessarily trump other concerns. A regime that accommodates linguistic diversity protects the minority against marginalization and enhances the group’s dignity through the recognition of its own language. But, a regime that demands linguistic assimilation in the public sphere may well reduce the cost and increase the efficiency of the market, unify the state and the nation, and enable the individual members of the minority to meaningfully participate in the larger social, economic and political processes of the state.

The failure of many language rights advocates to take seriously the costs associated with a robust accommodation of linguistic diversity – or to appreciate the benefits of linguistic assimilation – is attributable in part to an overly narrow view of the functions that language serves. Language is of value not only as a mode of cultural self-expression (where the good to be protected is diversity) but also as a method of communication (where the good at stake is the operation of the market and the political state). As concerns the latter, the cost of non-assimilation is high in at least two ways. First, a regime of multilingualism itself is very expensive. Given finite resources within a single economy, efforts to accommodate linguistic heterogeneity in the market sphere compete with other demands. For instance, the funds used to hire instructors to teach in multiple languages could instead be accommodating the needs of students with disabilities. But second, even if a regime of full linguistic accommodation is successful, it can still hurt the very minority groups whose interests both Arbel and I seek to promote. A minority group whose mother tongue is protected and preserved might find itself less able to communicate in the dominant language, and lack of fluency in the language of the state may ultimately work to the disadvantage of the group and its members in the economic and political hierarchy of the state.

By making minority language claims a universal positive right — e.g., Article 27 ICCPR right of minorities to “enjoy their own culture and to use their own language” — human rights law treats diversity as something with unlimited benefits and without recognized costs. This strategy cannot work in that it masks the tension inherent between the two functions of language, each of which, in turn, necessarily entails significant distributional choices both between and within linguistic communities. As a result, the existing language rights regime structures an entire debate on the allocation of scarce resources among linguistic communities, without ever talking about money or the fact that some groups within the state would be left as winners and others as losers.

When it comes to linguistic disputes, the common sense way forward is to separate the two functions of language, the identity-constitutive and the communicative, and to take seriously the costs and benefits of linguistic diversity in every particular context where a clash arises. At the end of the day, it is the terms of particular national compromises – who benefits, who pays the costs, and who is left out – that will determine both the resolution of linguistic conflicts and the degree to which any particular language regime can be said to be fundamentally just. In a follow-up paper, I will suggest that, to the extent that there are common explanations for the legal outcomes we observe across jurisdictions, they lie not in the universality of rights but instead in similarities in social structures in the state, which define the capacity of minorities to make successful pleas for resources.