Fifth
Report-Complaint to the Council of Europe
Allegation sent to the European Committee for
Regional or Minority Languages
Through
two press statements published by various communications media on December 12th
and 13th, 2008, El Aconceyamientu de Xuristes pol Asturianu (The Council of
Lawyers for Asturian) demonstrated publicly its gratitude to the Council of
Europe, as well as for the resolution by the Ministerial Committee, made on
December 10th, 2008, regarding the application of the European Charter of
Regional or Minority Languages in Spain, as well as for the report of the
Expert Committee, dated April 2008, on which this is based. This
recognition and gratitude we wish to express once more.
Furthermore,
The Council of Lawyers for Asturian would like to ask the Expert Committee to
read in greater depth the Instrument for the Ratification by Spain of the
European Charter of Regional or Minority Languages, with a view to revising its
initial resolution not to include the Asturian language in the analysis of the
application of Part III of the Charter. The criterion applied in the first
report of April 8th, 2005 (paragraphs 60 and 61) which is repeated in the second
one of April 8th, 2008 (paragraphs 2, 10, 11 and 78) is prejudicial to the
native and traditional language of the Autonomous Region of Asturias, spoken in
some areas of Cantabria, Castilla-Leon and Extremadura, as well as in the
neighbouring state of Portugal, where the District of Miranda del Duero enjoys
the benefit of co-official language status.
With the
intention of collaborating towards this end, the Council of Lawyers for Asturian
has prepared the following study, which they ask you to give a fair
hearing.
Fifth
Report to the Council of Europe
THE
INTERPRETATION OF THE INSTRUMENT OF RATIFICATION BY SPAIN OF THE EUROPEAN
CHARTER OF REGIONAL OR MINORITY LANGUAGES
INTRODUCTION:
THE REGIONAL LANGUAGES OF SPAIN.
In Spain,
in addition to Castilian, the official language of the State, there are another
four traditional languages of a regional character: Asturian, Catalan, Galician
and the Basque language (euskera). These four are native and traditional
to an historical region which presently covers at least one Autonomic Region,
extending to others, and, apart from Galician, even to different European
States. Thus, Asturian is spoken, apart from within the Autonomous Region
of the Principality of Asturias, also in various districts of the Autonomous
Regions of Cantabria, Castilla-Leon and Extremadura and in the Portuguese
district of Miranda del Duero, where it has co-official status; Catalan is
native to the Autonomous Regions of the Balearic Islands, Catalonia and
Valencia, to a zone in Aragon and to Andorra and some areas of France; Galician,
native to the Autonomous Region of Galicia, is used in areas of Castilla-Leon
and Extremadura; and the Basque language is native to the Autonomic Regions
of the Spanish Basque Country and to Navarra, as well as to the French Basque
Country.
There are
in addition other local languages like the Aragonese, spoken in some rural
nuclei in the zone of the Pyrenees in the province of Huesca, the
Galician-Asturian, spoken in the West of Asturias, between the rivers Navia and
Eo, and the Aranese in the Catalonian valley of Aran. There are also
foreign languages deeply rooted in Spain: Portuguese in Olivenza (Extremadura),
Berber in Melilla, and Arabic in Ceuta. And a minority language, spoken by
part of an ethnic minority established in Spain for many years, Romany or Calo.
In the
present report, we will be referring only to the regional Spanish languages
(Asturian, Catalan, Galician and the Basque language) and to the different and
discriminatory treatment which the Spanish government offers one of these,
Asturian.
1. THE
PART OF THE INTERPRETATION WITH WHICH THERE IS AGREEMENT.
Nobody
would place in doubt that in the first two paragraphs of the declaration,
the Instrument of Ratification by Spain of the European Charter of Regional or
Minority languages (in the consecutive Charter) affirms that in its effects
those same languages are those recognized as official in the Statutes of
Autonomy of the Autonomous Regions of the Basque Country, Catalonia, the
Balearic Islands, Galicia, Valencia and Navarra, and that the Autonomy Statutes
protect and preserve them in the territories where they are spoken
traditionally.
Out of all
the content of Article 2.2 of the Charter, one has to emphasize that the
Instrument of Ratification by Spain does not directly mention any language, but
chose to use an indirect reference, by indicating the different Statutes of
Autonomy.
On the
other hand, Article 4 in the Public General Act 7/1981, by which the Statute of
Autonomy of the Principality of Asturias was approved, declares in its numeral 1
the language spoken in Asturias (Bable or Asturian) to be the subject of
protection (“ Bable will enjoy protection”), such protection as agrees with
the mandate of the Statute (Number 2 in Article 4 of the Statute: ” An Act of
the Principality will regulate the protection, use and promotion of Bable”).
This Article was developed through the Act of the Principality of Asturias
1/1998, March 23d, on the Use and Promotion of Bable/Asturian , a
norm which qualifies “Bable/Asturian, as the mandated traditional language of
Asturias” (Article 1).
Consequently,
it shows itself to be completely correct, and, as it appears to us, peaceful, to
affirm that in agreement with the content of the Instrument of Ratification
regarding the effects of applying the Charter in Spain:
1.
Asturian is a language as deserving of protection as are Catalonian, Galician
and the Basque language.
2.
Asturian is as appropriate-indirectly through the reference to the Statute of
Autonomy-, as Catalonian, Galician and the Basque language for the effects
established in Article 2.2 in the Charter.
2. THE
CONFLICTUAL PART OF THE INTERPRETATION.
Through
the third and fourth paragraphs of the Declaration, the Instrument of
Ratification of
the Charter by the Spanish State shows that for the languages recognized as
official in the respective Statutes of Autonomy “those dispositions will be
applied which are indicated further on in Part III of the Charter”- sixty nine
paragraphs and sections in total, while for those languages which their Statutes
of Autonomy protect and preserve, “all those dispositions of Part III of the
Charter will be applied which can reasonably be applied”- ninety eight
paragraphs and sections in all.
In the
specific wording of both paragraphs something is also made clear, and, we
believe it to be in agreement: the protection, through the means of the
application of the Charter will not be the same for those regional languages
which have recognized status as co-official (Catalan, Galician and the Basque
language) as for the regional language which does not enjoy co-official
recognition (Asturian).
The
interpretive conflict arises at the moment of evaluating the meaning of a
different protective treatment (sixty nine paragraphs and sections for those
with co-official status and all that can be reasonably applied out of a total of
ninety eight for those lacking co-official status) among regional languages
which are given identical consideration and status
in the norm which is to be interpreted, the Instrument of Ratification by Spain
of the Charter.
To
summarize matters, with paragraphs 3 and 4 of the Declaration contained in the
Instrument of Ratification by Spain of the Charter, we find ourselves faced with
an unequal treatment between subjects which finish by being declared legally
equal in such effect (paragraphs 1 and 2 in the Declaration). This
contradiction demands an interpretation which is reasonable and in concordance
with the principles which inspire both Spanish law and the Council of Europe,
beginning with the contents of the Preamble, the General Regulations and the
Objectives of the Charter itself.
3. AN
INADMISSIBLE INTERPRETATION.
Through
the arguments which follow we will show that the interpretation attempted by the
present Spanish authorities of their Instrument of Ratification of the Charter
is legally inadmissible , in the sense of recognizing, for the three co-official
regional languages, the application of the sixty nine paragraphs and sections
there indicated, while for the other regional language, Asturian, none is
recognized, giving to the sentence “ To the languages mentioned in paragraph
two all those regulations of Part III of the Charter will be applied which can
reasonably be applied in keeping with the objectives and principles established
in Article 7”, a programmatic or simply rhetorical value. It
circumscribes the protection of the Asturian language to the content of Part II
of the Charter, as if it were dealing with a language unprotected by the Statute
of Autonomy, and as a consequence, not indicated in the Instrument of
Ratification, as is the case, for example with the Arabic in Ceuta, the Berber
in Melilla and the Portuguese in Olivenza.
Lamentably,
the Expert Committee of the Council of Europe, not without vacillations,
approved initially that restrictive interpretation with regard to the Asturian
language (paragraphs 60 and 61 of the Report of April 8th, 2005), maintaining
it, without further analytic efforts, in the second Report of April 8th, 2008
(paragraphs 2, 10, 11 and 78).
It
follows, however, that with such an interpretation, the Asturian language-
protected by the Statute of Autonomy of the Principality of Asturias and as such
as “indicated” as the others in the Instrument of Ratification by Spain of
the Charter, and consequently, deserving of the protection established in its
Article 2.2 - is being given the treatment appropriate to a language
”not indicated” in the Ratification, limiting its protection to the contents
of Part II (Article 7), in a clear example of unjustified discrimination.
3.1.
The Spanish constitution condemns negative discrimination among legally equal
subjects, in a situation substantially similar.
In the
present case, the legally equal subjects are Catalan, Galician, the Basque
language and Asturian, where the first three as co-official languages and the
fourth as protected by the Statute of Autonomy, possess as far as the effects
established in the Instrument of Ratification of the Charter in Spain, the same
consideration as “regional or minority languages”.
The
substantially similar situation arises given, among other circumstances, the
following:
a. The
four differ from Castilian, the official language of the Spanish State, and are
traditionally spoken in some zones within its territory and by its citizens, who
constitute a group inferior to the rest of the population of the State. In
consequence, they are “regional languages” within the meaning of Article 1
of the Charter.
b. The
four are indicated in the same indirect form (through reference to their
respective Statutes of Autonomy) in the Instrument of Ratification by Spain of
the Charter. Consequently, the same content of its Number 2, in Article 2
has to be applied to the four.
The only
important difference between Catalan, Galician and the Basque language, on the
one hand, and Asturian on the other, is that the former are recognized by the
Spanish State as having co-official status in the territory in which they are
traditionally spoken, a status which the same Spanish State is denying the
Asturian language (because in agreement with Articles 81 and 87 of the Spanish
constitution, the approval and reform of the Statute of Autonomy of the
Principality of Asturias is the domain of the Spanish Parliament and the
initiative lies with its government, among others). With this the same
Spanish State closes a vicious and wicked circle: it does not grant the Asturian
language co-official status because it does not want to, and it denies it almost
all those measures of protection that it offers to other regional Spanish
languages, because it does not enjoy co-official status.
The result
is that Catalan, Galician and the Basque languagehave in the last thirty years
been protected by Spanish internal legislation, while this same legislation
denies Asturian the most elementary measures of protection, impeding its
development, and condemning it, in short, to disappear (with regard to this, we
remit the content of the four reports sent by the Council of Lawyers for
Asturian in the years 2007 and 2008.)
In such
conditions, the interpretation given by the Spanish authorities and allowed by
the Expert Committee of the Council of Europe into the Instrument of
Ratification by Spain of the Charter, in the extent to which it recognizes
for the regional co-official languages, and for this reason more protected by
Spanish legislation, the application of sixty nine paragraphs of Part III of the
Charter while not applying a single paragraph of Part III of the Charter to the
regional language not yet recognized as co-official, and thereby hardly
protected at all by internal legislation, leads directly to negative
discrimination (to treating more poorly the one so that it will be more poorly
treated). This is completely condemned by Articles 1.1, 3.3, 9.2, 10.2 and
14 of the Spanish constitution, because such negative discrimination among
languages is, definitely, negative discrimination against those who speak the
language discriminated against.
3.2
Negative discrimination (to treat a language more poorly which is treated more
poorly by national legislation) is forbidden also by the Charter.
The
Spanish constitution draws this condemnation of negative unequal treatment from
the most important international legal instruments: The Universal Declaration of
Human Rights (Article 21), The International Agreement on Civil and Political
Rights (Articles 2.1, 26 and 27), The Framework Agreement for the protection of
National Minorities, Number 157 of the Council of Europe (Articles 6.2 and
10.1). Above all else, the European Agreement for the Protection of Human
Rights and Fundamental Freedoms (Article 14), origin and basis for the Charter,
which also , in the Presentation of arguments and in Article 7, sections 1 and
2, condemns “all unjustified distinction, exclusion, restriction or preference
with respect to the use of a regional or minority language, the objective of
which is to discourage or place in danger its maintenance or development”.
The despondency of Asturian speakers who see their language being separated day
by day, regulation after regulation, from the protective quotas enjoyed by the
other regional Spanish languages, and the danger not only to its
development but rather to its survival, because today in Asturias even the right
to use in public life the language traditionally spoken in the country, is not
only “a right which cannot be prescribed”, in agreement with the spirit of
the Council of Europe’s Agreement for the Protection of Human Rights and
Fundamental Freedoms (Introduction to the Charter) but rather, it simply is not
a right which can be exercised in practice because (5.1) doing so is
forbidden in front of the Administration and Public Services and the Court
of Justice.
3.3 The
discriminatory interpretation against the Asturian language is also incongruent
with the very content of the Charter.
And
because the Asturian language is thus being mentioned in the Instrument of
Ratification, - albeit in an indirect way, as are all the others-, the Spanish
State has accepted the promise to apply to it “ a minimum of thirty five
paragraphs and sections chosen from the provisions of Part III in the present
Charter, of which at least three should be chosen from each one of Articles 8
and 12 and one from each of Articles 9,10,11 and 13”.
Nevertheless,
as the present Spanish authorities try to interpret the Instrument of
Ratification, what happens is that the Asturian language is left outside of any
analysis regarding the application of Part III, with the result that in the
first two reports of the Expert Committee of the Council of Europe, that is
allowed which clearly runs counter to the mandate of Article 2.2 of the
Charter.
3.4 The
same Spanish authorities come up against their own incongruence when they try to
interpret the restrictive form of the Instrument of Ratification of the Charter
by Spain.
Thus, in
their second report, of 2006, they try to present as regional languages only
those which are co-official (page 2 in their Introduction) - concealing the very
existence of the Asturian language and bringing the discriminating treatment of
Asturian to its final consequences (the disappearance of the language).
This clashes with their first “Report on the Application in Spain to
Regional or Minority Languages”, of 2002,in which Bable or Asturian is fully
recognized as a regional language, as far as the application of the Charter is
concerned (Section 2, pages 16 and 17 in the Castilian version.)
In the
same sense, in the Report of 2006, all reference to the Asturian language is
omitted in questions related to the application of Part III of the Charter,
while in the first it is included in section “IV. PART THREE: APPLICATION OF
SELECTED PARAGRAPHS AND OPTIONS BY SPAIN”, and, under the general heading of
“Norms adopted by the Regional Government of the Principality of Asturias”,
an analysis is carried out corresponding to Articles 8 (pages 78 and 79, always
referring to the Castilian version), 10 (pages 101,109,115, 120 and 121), 11
(pages 134,135 and 140) and 12 (pages 154 and 155).
3.5 The
restrictive interpretation of the Instrument of Ratification by Spain of the
Charter leads to the absurd.
Abandoning
the application of all, some or none of the paragraphs and sections of Part III
of the Charter to the whim of the Spanish State, constitutes what international
doctrine and jurisprudence would call “a reservation against the purpose and
end goal of the treaty itself”. Nevertheless, the general standards of
international law and even Article 19 c) of the Agreement Regarding the Law of
Treaties (Vienna, May 23d, 1969) prevent this category of reservations.
In this
sense, in agreement with the interpretation of the sentence by the European
Court of Human Rights, on April 29th, 1988, Belilos versus Switzerland (et al.)
and the General Observation No. 24 of the Committee for Human Rights of the
United Nations International Agreement on Civil and Political Rights, the organ
in control of the Charter is responsible also for examining the regularity of a
reservation. Consequently, it would be the Expert Committee or the
Committee of Ministers of Foreign Affairs who would be in charge of examining
the question. Also, if they interpret the Instrument of Ratification of
the Charter restrictively, they would arrive at a “reservation against the
purpose and end goal of the treaty itself”, which would oblige them next to be
forced to consider such a reservation as completely null and void, or to
interpret it, according to the doctrine of “a useful effect”, that is to
say, favouring the application of the provisions of the Charter which offer the
most guarantees to the Asturian language, never the restriction of the same.
Definitely,
the restrictive interpretation leads to the absurdity of the denial of itself,
if not - a greater absurdity- to the nullity of the interpreted rules.
4. AN
INTERPRETATION IN ACCORDANCE WITH THE SPANISH CONSTITUTION AND THE CHARTER.
While they
reject negative discrimination completely, the Charter and the Spanish
constitution not only permit positive discrimination, but in certain cases of
historical discrimination, they consider it imperative within the very principle
of equality. In this sense, the content of the second paragraph of Article
7.2 of the Charter is eloquent: “The adoption of special measures favourable
to regional or minority languages, which aim at promoting equality among those
who speak these languages and the rest of the population and are aimed at
keeping in mind their particular situations, will not be considered an act of
discrimination against those who speak the most widespread languages”.
In
consequence, it is in this key of positive discrimination ( permitted and even
encouraged) and not in that of negative discrimination (prohibited) that one has
to interpret the unequal treatment which the Instrument of Ratification of the
Charter by Spain makes between the regional languages Catalan, Galician and the
Basque language, favouring them for their recognized co-official status, and the
fourth regional language of Spain, Asturian, which at the moment of signing the
Treaty, and even today, does not have such recognition, which is the cause
of a series of discriminatory acts (vide the four previous reports submitted by
the Council of Lawyers for Asturian to the Council of Europe) which could well
qualify as historical discrimination against the Asturian language and those who
speak it.
It is this
key which forces us to pose a question and suggest an inevitable interpretation.
The
question is: What objective and reasonable justification is there, related to
the protective finality of the languages and those who speak them- proclaimed by
the Spanish constitution and the Charter- by which the Spanish State gives the
Asturian language and those who speak it a worse treatment than is given to the
Catalan, Galician and Basque languages and those who speak them? Since it
is definitely the case that the Spanish government, according to the Instrument
of Ratification of the Charter, was obliged to protect the Asturian language
through “all those provisions of Part III of the Charter which they can
reasonably apply”, what objective and reasonable justification exists for not
applying to the Asturian language each and every one of the sixty nine
paragraphs of the Charter which the Spanish government applies to other regional
languages?
The
inevitable interpretation is that the Instrument of Ratification by Spain of the
Charter, made in agreement with its mandates (Article 7.2) and the Spanish
constitution (Articles 1.1,3.3,9.2,10.2 and 14), which prohibit negative
discrimination and encourage the positive one, it cannot be but that the Spanish
State promised to apply to the Asturian language- the regional one least
protected because it does not yet have co-official status-the sixty nine
paragraphs regarded as applicable to the other regional and co-official
languages, and furthermore, all those others which form Part III of the Charter
and “ which can reasonably be applied”.
5.
CONCLUSION.
Therefore,
since the Council of Lawyers for Asturian believe that the Spanish
government’s periodic reports should at least take note, paragraph by
paragraph, of the application towards the protection of the Asturian language of
the sixty nine paragraphs to which Spain has committed itself, and if not
complying with all or some of them, to justify this in an objective and
reasonable manner.
Thus, the
next evaluative questionnaire as to the compliance with the Charter, which the
Expert Committee presents to the Spanish authorities, should include questions
related to their compliance in applying to our language and the speakers thereof
the sixty nine provisions which follow and which the Spanish State in its
Instrument of Ratification has undertaken to apply:
- Article
8:
Paragraph
1, sections a.i, b.i, d.i ,e.iii, f.i, g, h,i.
Paragraph
2.
- Article
9:
Paragraph
1, sections a.i, a.ii, a.iii, a.iv, b.i, b.ii, b.iii, c.i, c.ii, c.iii, d.
Paragraph
2, section a.
Paragraph
3.
- Article
10:
Paragraph
1, sections a.i, b, c.
Paragraph
2, sections a, b, c, d, e, f, g.
Paragraph
3, sections a, b.
Paragraph
4, sections a, b, c.
Paragraph
5.
- Article
11:
Paragraph
1, sections a.i, b.i, c.i, d, e.i, f.ii, g.
Paragraph
2.
Paragraph
3.
- Article
12:
Paragraph
1, sections a, b, c, d, e, f, g, h.
Paragraph
2.
Paragraph
3.
- Article
13
Paragraph
1, sections a, b, c, d.
Paragraph
2, sections a, b, c, d, e.
- Article
14
Section a.
Section b.
In
addition, we believe that the Expert Committee should consider -if evidence of
this is found, which will with absolute certainty be the case- the special
gravity implied in the Spanish government’s non-compliance with its most
elementary obligations to protect the Asturian language, which are these “
apply a minimum of thirty five paragraphs or sections chosen from the provisions
of Part III of the Charter, of which, at least three should be selected from
each one of Articles 8 and 12 and each one of Articles 9, 10, 11 and 13.”
This is because as we reasoned above- indirectly and according to the reference
to the Statute of Autonomy - the Asturian language is as appropriate as Catalan,
Galician and the Basque language for the actions established in Article 2.2 of
the Charter, in the Instrument of its Ratification by Spain.
Oviedo, February fourteenth in the year two thousand and nine.