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HILJ Symposium: Constraining Language Through Culture

[Efrat Arbel holds an SJD form Harvard Law School and is a postdoctoral fellow at the University of British Columbia Faculty of Law.] 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. Moria Paz’s article, "The Failed Promise of Language Rights: A Critique of the International Language Rights Regime," is an important contribution to the literature on language rights. Paz advances a timely and insightful critique of judicial and scholarly treatments of language claims. Through a careful analysis of international and regional rights instruments, cases, and scholarly literature, Paz identifies a gap between the promise of language rights protection as articulated in these texts and the meaning these rights acquire in practice. At the heart of her analysis is a critique of the existing legal orthodoxy on language rights, and more specifically, its reliance on the vocabulary of human rights. Paz argues that approaching language claims through the rubric of human rights risks undermining the goals that motivate these claims, namely, effecting the distributional changes necessary to ensure linguistic diversity and protect minority language use. Arguing that the language of human rights is ultimately ill suited to achieve a robust protection of linguistic diversity, she advocates instead for situation specific analysis cognizant of political and material realities and demands. Such an approach, Paz argues, can better advance the structural changes and distributional demands that underpin language claims. Through a detailed analysis of 133 cases from the European Court of Human Rights (ECtHR), the United Nations Human Rights Committee (UNHRC), and the Inter-American Court of Human Rights (IACHR), Paz finds an unexpected alignment between these disparate bodies. Her analysis reveals an international status quo that fails to live up to the promise of protecting language rights as human rights. As Paz convincingly shows, the ECtHR, UNHRC, and IACHR take a narrowly utilitarian approach to language. The remedies they issue offer only pragmatic management of language claims, rather than meaningful substantive accommodation. All too often, these decisions accommodate minority language to facilitate communication with the majority language group, and offer a thin measure of protection that lasts only until the minority language speaker transitions into the linguistic mainstream. No less significantly, the decisions often oblige minority language speakers to bear the lion’s share of the monetary costs that come with linguistic redistribution. As Paz’s analysis makes clear, this approach does not view minority languages as assets to be celebrated and accommodated, but rather, constructs them as obstacles that minority language speakers must overcome to assimilate to the linguistic majority. To this extent, she argues, this approach fails to extend robust accommodation of linguistic diversity.

HILJ Symposium: International Versus Domestic Law: Supremacy, Surrender, or Co-existence?

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. Ashley Deeks’ Article, "Consent to the Use of Force and International Law Supremacy," is a deeply provocative and thoughtful work that makes two very important contributions to international legal scholarship. First, she exposes and explores a latent ambiguity in the role consent plays in the use of force context. Second, and more ambitiously, Deeks proposes invalidating consensual agreements to uses of force (and other security, intelligence, and law-enforcement activities) where the acting State did not inquire and ensure that its activities comported with the host State’s own laws. In doing so, she argues that international law no longer needs – or deserves – the supremacy it claims when it conflicts with certain domestic laws. In this post, I want to take up this second, larger, claim about international law supremacy (in a second post, I’ll offer my reactions to her proposal to have international law invalidate consensual agreements that do not comport with the host State’s domestic law). Let me begin by emphasizing that I’m persuaded by Deeks’ descriptive claim that cases of “unreconciled consent” (where a host State consents to foreign State uses of force, drone deployments, renditions, etc., which the host State couldn’t perform under its own domestic laws) are occurring with increasing regularity. I’m also persuaded that unreconciled consent is a problem, particularly where the “permission” is granted in secret among executive agents who all have an interest in greater flexibility to operate free from any legal constraints.

HILJ Symposium: Volume 54(1)

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts in this series can be found in the related posts below. This symposium features a series of four responses to articles published in the Harvard International Law Journal's volume 54(1). Over the next few days we will be presenting the responses, as well as commentary from...