Image: Getty Images, Dimitar Dilkoff
Kristin Henrard is Professor of International Law at the Brussels School of Governance, Vrije Universiteit Brussel, where she co-directs the Fundamental Rights Centre.
This short version of the paper has been published on Opinio Juris and the longer version is available below. The views expressed are the author’s alone.
A. Introduction
When identifying minority issues of most relevance to the war and peace negotiations between Russia and the Ukraine, a first step is the identification of the minorities concerned.
As it stands, there is no generally accepted legal definition of ‘minority’. Nevertheless, a certain understanding has crystallized about core characteristics, namely having a distinct ethnic, religious and/or linguistic identity, being in a numerical minority position, having the wish to maintain a distinct identity and being in a non-dominant position. The requirement of ‘nationality’ is no longer considered appropriate, particularly in case of state dissolution (see Berkes).
Looking at demographics, the latest official census (2001) (relied on in the 2022 Council of Europe Project “Strengthening the protection of national minorities, in Ukraine”) identifies Russians as the main minority group, with more than 15%. Other minority groups stay below 1% of the total population, some around 0.5% (Belarussians, Moldovans, Crimean Tatars and Bulgarians), several even smaller (Poles, Romanians, Armenians, Hungarians, and also Roma and Jews).
In relation to peace negotiations between Ukraine and Russia, the position and rights of the Russian minority are key. The Russian community in Ukraine is the largest outside Russia, and thus particularly important for kin-state Russia. At the same time, the history of Russian domination, also in terms of official language, makes Ukraine keen to promote its own identity and language, while not giving too strong a protection to the Russian ethnic and linguistic group. There is a particularly strong sensitivity about the position of the Ukrainian language in relation to the Russian language.
Having regard to the sensitivities of both Ukraine and Russia, it is important to ‘fit’ minority (language) rights that benefit Russians, into an overall frame of minority (language) rights. Minority rights are framed with many qualifiers, that call for a proportionate adaptation to circumstances, particularly relative numerical strength and territorial concentrations of the groups concerned. The suitable (proportionate) protection of other minorities with neighboring kin-states (Romania, Moldavia, Bulgaria, Hungary), also having areas of relative territorial concentration in Ukraine, could thus facilitate negotiations for both sides, while contributing to regional security.
This options paper will outline the importance of minority rights and especially language rights for any peace negotiations, in light of (recent) historical developments and sensitivities. Then, it will analyze the international legal and soft law standards concerning minority language rights and their implications for peace negotiations.
B. Role of Minority and Language Issues in Negotiations
The question of minority and language rights is bound to play an important role in peace negotiations between Russia and Ukraine. Ball and Arel both underscore how Russia launched its more recent incursion into eastern Ukraine ‘on the pretext of protecting ethnic Russians and Russian speakers in the region’. Clearly, Russia’s kin-state connection will require due consideration.
During a considerable part of the Soviet era, both Russian and Ukrainian were considered ‘generally used languages’ in Ukraine. Since the 1920-1930s an increasing Russification took place and in 1990 Russia became the official ‘all Union language’. Since Ukraine’s independence in 1991, the country’s Constitution (Article 10) proclaims Ukrainian as the only state language, which is to be developed for use in all spheres of social life and throughout the entire territory. The article also guarantees ‘free development, use and protection of Russian and other languages of national minorities’. While this provision seems to offer a balanced position, everything depends on the respective regulation of the use of the ‘state language’ and the language rights of national minorities.
Ever since independence, a hot debate has raged in Ukraine about the status of the Russian language: accepting Russian as the second state/official language or countering the ongoing dominance of Russian in many (urban) areas. The 2012 Language law favored languages spoken by 10% or more of the population of a region or city, by granting such languages the status of ‘regional language’. This status implied that such languages could be used in courts, schools and government institutions. In the many regions/cities where Russian became the ‘regional language’ it was not really necessary to learn Ukrainian. It has been claimed that the intended abolition of this law in 2014 was seen by Russia ‘as an aggressive gesture against the “Russian-speaking population” of Ukraine and later used as a pretext to justify the annexation of Crimea and military aggression in the Donbas’.
While abolition of the 2012 Language Law never eventuated, the 2014 Maidan revolution, mainly concerned with forging a new Ukrainian nation, triggered a shift in nationalism with undeniably negative effects on the Russian speaking population, particularly in Eastern Ukraine. Subsequently, several laws were adopted to strengthen Ukrainization in relation to: toponomy (2015); the media (2016), imposing 60% language quota; education (2017), imposing Ukrainian as the medium of instruction in state schools from the 5th grade onwards; and public institutions more generally (2017), by imposing ‘Ukrainian only’. Relatedly, Russian lost its status as ‘regional language’ in several regions and cities.
When the Constitutional Court declared on 28 February 2018 the 2012 Language Law unconstitutional (1-1/2018), this opened the way for a new Language Law. The 2019 Language Law aims to ensure the functioning of Ukrainian as state language. The first step concerned language use by public authorities, and the medium of instruction in public schools. Subsequently, it has been extended to a range of spheres of public life, from health and science, to advertising, and to media and culture. Gradually, Ukrainian has been made compulsory in ever more spheres of life, each time with minor exemptions. Strikingly, these exemptions benefit the indigenous language Crimean Tatar and EU languages, but not other national minority languages, including Russian. Put differently, the 2019 Language Law clearly fulfills the constitutional obligation to ensure the comprehensive development and functioning of the Ukrainian language in all spheres of social life throughout the entire territory. However, it is questionable (CDL-AD(2019)032) whether the ensuing restrictions on the use and protection of non-EU minority languages are in line with the Constitution’s guarantees of the ‘free development, use and protection of Russian and other languages of national minorities’.
Both Russians and Ukrainians focus on protecting their respective languages as representative of their distinct identity. Russian rhetoric and Russian controlled media further converted the promotion of the Ukrainian language into a physical threat to ethnic Russians, requiring Russian intervention. When identifying key points for peace negotiations, the bulk of the issues will concern language rights, against the background of overarching principles concerning minority protection and minority rights.
C. Language Rights: Protecting Minority Language vs Promoting State Language
C.1 International Legal ‘Frame’
Regarding minorities’ fundamental rights generally, already in a 1935 Advisory Opinion of the PCIJ regarding Minority Schools in Albania (par 48-52), the three overarching concerns of minorities, and the way these three concerns are interrelated, are identified, namely: (real, substantive) equality, identity and participation (and integration) in the broader society.
Importantly, the right to equal treatment does not imply an absolute prohibition of differential treatment, nor an absolute duty to differential treatment. Instead, the ‘reasonable and objective justification’ formula implies substantial room for proportionality considerations, which also play a crucial role in relation to minorities’ fundamental rights generally. Proportionality considerations ‘work’ differently for minority specific fundamental rights in comparison to general human rights. General human rights, such as those in the European Convention on Human Rights (ECHR) or International Covenant on Civil and Political Rights (ICCPR), for the most part allow for limitations to their enjoyment. These limitations must be proportionate to the legitimate aim pursued by the state (‘necessary in a democratic society in the interests of …’ (ECHR, Articles 8-11 and ICCPR, Articles 18-22). In contrast, the minority specific rights, found in the Framework Convention for the Protection of National Minorities (FCNM), do not have limitation clauses. Instead, the rights formulations are replete with qualifiers, such as ‘as far as possible’, ‘where appropriate’, ‘if those persons so request and where such a request corresponds to a real need’, and ‘in areas inhabited by persons belonging to national minorities traditionally or in substantial numbers’. These qualifiers can be understood as referring to proportionality considerations, and thus the balancing of respective interests.
Whereas Ukraine has ratified the ECHR and FCNM, this is not or no longer the case for Russia. Both states have ratified the ICCPR though. An important reference point for minority specific rights for both parties is the UN Minorities Declaration, adopted by the UN General Assembly, as it can be considered an interpretative guide to Article 27 of the ICCPR.
In both the FCNM (articles 4-6) and the UN Minorities Declaration (Articles 2, 4 and 5) (substantive) equality, identity and participation indeed function as overarching principles of minority protection. In addition, various sets of recommendations/guidelines developed in the framework of the OSCE High Commissioner on National Minorities could constitute useful reference points in negotiations as they flesh out the overarching principles and legal standards and provide guidance on how to apply the central reference points of equality, identity, and participation as modulated by proportionality considerations. In addition to the several recommendations and guidelines of relevance to language rights (see infra), the 1999 Lund Recommendations confirmed the crucial importance of national minorities participation in ‘public life’ for their integration in society, without forced assimilation (with respect for their distinct identity) (see also the 2012 Ljubljana Guidelines).
The 2008 Bolzano Recommendations are of overarching relevance in the context of the Ukraine-Russia conflict, including its possible ripple effects, as this plays out in the post-Soviet setting with substantial Russian minorities in states emerging from the USSR’s dissolution in 1991. Indeed, the Bolzano Recommendations were developed because of concerns for exactly these kinds of tensions. They confirm the obligations of the state of residence towards minorities, such as the right to preserve and develop their linguistic identity, which may require special (substantive equality) measures (Recommendations 5 and 6) tailored by proportionality considerations. The Bolzano Recommendations also remind states of the importance of societal integration, which would imply that minorities have an effective voice at all levels of governance (Recommendation 7). Additionally, these recommendations signal that the kin-state needs to respect the principle of territorial integrity and should not undermine good inter-state relations (Recommendations 10, 11 and 13). This in itself points to the importance of proportionality considerations in shaping the respective expectations of kin-states and kin-minorities.
The centrality of language rights in tensions between Ukraine and Russia is mirrored by a strong focus on language rights in minority rights provisions and soft law standards alike. These standards concern the protection of the expression of ideas in the minority language and its use in public and private. The provisions concerning use of minority languages in education, in communication with public authorities and for topographical indications, are always ‘qualified’, and thus support proportionality considerations (and the related room for negotiations). The European Charter on Regional or Minority Languages may not enshrine rights for speakers of languages, it does provide a menu of obligations concerning use of minority language in an even broader range of spheres, namely also encompassing judicial authorities, media, cultural activities, and economic and social life. Also, here, states’ discretion is infused by proportionality considerations.
The central importance of language rights for minority protection are also confirmed and further specified in many of the thematic recommendations endorsed and published by the OSCE’s High Commissioner on National Minorities, not least the 1998 Oslo Recommendations regarding the Linguistic Rights of National Minorities.
C.2 State Language and Minority Languages: Overarching principles and their assessment in Ukraine
The 1998 Oslo Recommendations provide useful pointers for peace negotiations concerning language rights, as they take up several of the linguistic themes, also visible in legal standards, in relation to questions of names/topographical indications, media, economic life, administrative and judicial authorities. Throughout the Oslo Recommendations, it is obvious that international fundamental rights, as interpreted dynamically, leave room for proportionality considerations, which allow the interests of both sides to be balanced.
It should be noted that some linguistic rights are stronger, in the sense that there is less room for ‘balancing’. This is the case for the official recognition of names in the minority language, and the right to operate NGOs and private enterprises in a minority language (Principle 1, Principle 6, and Principle 12). Other rights, requiring more active state support as they imply the provision of documents and services in the minority language, are strikingly more qualified by proportionality considerations.
The following paragraphs discuss the extent to which the overarching principles of equality, participation and proportionality are reflected in Ukrainian laws and practice.
1. Balance – Proportionality
A particularly important point, made in the HCNM Recommendations, concerns the required balance between a state’s desire to promote its state language and ‘reasonable and fair accommodation of the needs and interests of the different linguistic groups in society’. The need to strive for balance between these two concerns, and the underlying proportionality consideration, is a steady component in the international supervisory practice (see 2017 FCNM Advisory Committee Opinion, para 118, and the Venice Commission Report on the 2019 Ukrainian State Language Law, paras 31-32).
In this respect, Ukraine’s ratification of the European Language Charter reveals a rather positive baseline towards linguistic minorities in that it recognizes 13 languages under Part III of the Charter. Furthermore, in relation to the Russian language, the 2017 Committee of Experts Report concluded that the overwhelming majority of commitments on ensuring the use of the Russian language in Ukraine are satisfied (para 87). Admittedly, at that time, the 2012 Language Law was still in effect, allowing minority languages to be recognized as ‘regional languages’ when spoken by at least 10% of the population of a territorial administrative unit.
The perceived preponderance of Russian in the public space inspired the 2019 Language Law, with its stronger focus on promoting Ukrainian as state language to strengthen Ukrainian identity. This law makes use of Ukrainian obligatory in most aspects of public life (and is being gradually rolled out). The 2019 Language Law was passed the day after Russia enabled applications for Russian passports by residents of separatist territories in east Ukraine, and thus constituted a clear countermove which triggered severe criticism from the Kremlin.
While there is room for exemptions and deviations (using a different language) by mutual agreement, the Venice Commission report does conclude that in several respects the 2019 Language Law does not strike a fair balance between protecting the national identity and Ukrainian language, and safeguarding the rights of linguistic minorities. The Commission also problematizes the use of administrative fines for using minority languages and calls on Ukraine to promote the new state language through positive incentives instead of punitive measures (paras 127-129). Particularly relevant for peace negotiations, the Venice Commission highlights that this positive approach would be beneficial for Ukraine and the Ukrainian wish to promote its national language and identity, as it would be more effective (para 129). Underscoring the extreme complexity and sensitivity surrounding language issues in Ukraine (para 132), the Commission confirms the central role of the proportionality principle and the need to balance respective interests (para 136).
2. Equality
The 2019 Language Law also received considerable criticism in terms of equal treatment. The Venice Commission reiterates in its 2019 report the criticism voiced in relation to the 2017 Ukrainian Education law about differential treatment between categories of minority languages. While the Commission acknowledges that differentiation is possible, this requires a reasonable and objective justification for it to respect the prohibition of discrimination (para 41). The Commission identifies three levels of protection in the state language law and accepts that the highest level of protection goes to indigenous minorities without kin-states (para 43). However, it does not accept the justification of differential protection for minority languages that are EU official languages and others, including Russian and Yiddish (paras 42, 44). While the past oppression of Ukrainian justifies positive measures to promote the national language, this should not go hand in hand with the disregard of rights of linguistic minorities (para 44). Concretely, the Commission suggests that the level of protection for minority languages that are EU official languages should be extended to other minority languages.
3. Participation of Minorities
A third important and recurring criticism regarding Ukraine’s state language law concerns the lack of proper minority participation in the drafting process. The Venice Commission does not accept that this participation can be realized in the future law on the rights of minorities: these two laws should have been developed in tandem. The 1999 Lund Recommendations highlights that language issues are a topic requiring minority involvement in relevant decision-making, as it is a crucial dimension of their distinct identity (Recommendation 12).
C.3 Language rights in Spheres of Public Life
1. Education
The teaching of or in the minority language has been a crucial element of minority protection because of its important role in passing the language from one generation to the next. This is reflected in the UN Minorities Declaration (Article 4(3)) and the FCNM (Article 14). In addition to the identity element, there is also a crucial equality argument made by social linguists: to ensure the equal psycho-social development of children, they need education in their mother tongue, particularly throughout the first phase. At the same time, the provisions acknowledge the resource intensiveness of providing education in minority languages in the multiple qualifiers, opening the door to proportionality considerations. These identity, equality and proportionality considerations concerning minority language education are reflected in the 1996 The Hague Recommendations (HCNM). The first paragraph also emphasizes the importance of acquiring a proper knowledge of the state language for minorities’ integration.
Whereas both the 2017 FCNM Advisory Committee Opinion, released prior to the 2017 Law on Education, and the 2017 Opinion of the Committee of Experts under the Language Charter confirms the high level of protection for teaching in and of Russian, the Venice Commission was critical about the 2017 Law on Education provisions on minority language education. The three differential levels of protection it provided for minority language education are problematized, particularly because of the low level of protection of Russian and other non-EU minority languages. The differentiation would not be justifiable and would thus amount to discrimination, while the lowest level of protection would fall below the required standard. This division into three categories of languages is repeated in the 2019 Language Law and is similarly criticized by the Venice Commission as discriminatory.
Considering the important identity and equality considerations inherent in education in the minority language, as well as its crucial socialization function, finding a balanced and structured approach enabling sufficient education through the minority language medium, while ensuring optimal knowledge and proficiency in the state language, seems key.
2. Public Authorities
The 1998 Oslo Recommendations confirm that communications by public authorities in the minority languages are strongly qualified by proportionality considerations, requiring sufficient numerical presence (territorial concentration) and/or traditional presence. The latter requirements are arguably satisfied for the Russian speaking minority in several regions of Ukraine.
More recent recommendations confirm that the provision of services in minority languages is considered to improve the equal and effective enjoyment of these services, also in relation to the police and judges (2006 Recommendations on Policing in Multi-Ethnic Societies and the 2017 Graz Recommendations on Access to Justice).
The Venice Commission’s evaluation of the 2019 Ukrainian Language Law is rather critical, both in relation to the working language of public authorities, and proficiency requirements for access to state positions. The Commission underscores that Ukraine now falls below its commitments under the Language Charter, as the numerical threshold they use is too high (para 58-60). Proficiency requirements for official positions may have a legitimate aim, but they do need to be proportionate in being tailored to the requirements/specificities of different positions (para 52-54), and not be overly demanding. The latter would also be difficult to reconcile with the right of minorities to participate in public life.
3. Media
Visibility and representation in the media are important for minorities in at least two respects. First, it contributes to protecting and promoting the distinct minority identity. Second, it enhances public knowledge and understanding of minority identities and languages, and acknowledges their status as part of the national society, thus contributing to mutual understanding, inclusion and integration. It is thus not surprising, that minority specific international standards regulate access of minorities to their own media channels in their own languages, as well as proportionate representation and presentation of minorities, and their cultures, religions and languages, in public media channels (see 1998 Oslo Recommendations, see also 2003 Guidelines on the Use of Minority Languages in the Broadcast Media).
Turning to developments in Ukraine, the Venice Commission in its 2019 Opinion is particularly critical about the disproportionately high language quota requirements, certainly for private broadcasters (para 97). It also flags the chilling effect on publishing in minority languages of the requirement to have Ukrainian translations for the print media (para 100). Similarly, in its latest opinion, the FCNM’s Advisory Committee urges Ukrainian authorities to reconsider their rigid approach to quota requirements in broadcasting media (para 110). The Committee of Experts on the Language Charter (para 32) and the FCNM’s Advisory Committee (para 114) both express concern about the lack of clear procedures and rules for financial support of newspapers in minority languages, which leads to very few newspapers benefitting from public support.
4. Personal Names and Topographical Indications
Regulation of personal names and topographical indications in minority languages are important symbolic matters for both minorities and states: for minorities, they concern their inclusion with recognition of their distinct identity; for states, they concern recognition of the national linguistic identity. At the same time, the relative ‘strength’ of these minority rights needs to be underscored. The right to official recognition of names in the minority language is formulated strongly, similar to general human rights; whereas, having topographical indications in the minority languages is strongly qualified by proportionality considerations, given it requires more active state support and resources.
The actual practice in Ukraine has been found wanting by the FCNM’s Advisory Committee. This is particularly striking for the recognition of personal names in minority languages, also because the national language law recognizes the strength of this right (paras 130-134). The Advisory Committee welcomes the positive approach in the legal framework, of providing for toponyms in minority languages alongside the Ukrainian language (bilingual signs), at least in those municipalities with at least 10% minority language speakers (paras 135-137). However, the Committee is critical of the de facto lack of state support, as the cost is borne by local government, which does not have a budget for this. The end result is that toponyms are only in Ukrainian, a matter also criticized by the Venice Commission in its 2019 Opinion.
D. Conclusion: Implications for Peace Negotiations
As the historical background in Section B demonstrated, one of the main underlying tensions of the armed conflict is between, on the one hand, the wish and concern of the Ukrainian people to full self-determination as a people with a distinct state and official (state) language, and on the other, the Russian concern to counter that development, allegedly in order to protect the Russian minority living in Ukraine. The Ukrainian goal to forge a distinct Ukrainian nation has emphasized strengthening the Ukrainian language as state language. Legislative and policy changes to realize those aims triggered unrest amongst Russian communities. Russia’s reaction can be seen to reveal not only a concern to safeguard the de facto dominant position of the Russian language but also its desire to maintain overall Russian control in the territory concerned.
The preceding discussion of international legal standards points to several elements of relevance for peace negotiations on minority and language rights.
In line with the latest review of Ukraine by the Advisory Committee on the FCNM in 2017 (para 49, 56 and176-177), the development of a legislative and enforcement framework regarding minority rights more generally, with due participation of the minorities concerned, should be a priority. Regarding Ukrainian language laws, the international supervisory bodies have been critical about the working language of public authorities, and the proficiency requirements for access to state positions, which are too restrictive for minority languages, and certainly the Russian language. In relation to education in minority languages, the current differentiation between categories of minority languages, to the detriment of Russian, is criticized and thus invites revision. Media laws and particularly the quota system and requirements with potential chilling effect also invite revision.
Since the overall size of the Russian minority is much bigger than any other minority (18% versus less than 1% of the total population), Ukraine will need to acknowledge that the Russian minority, as one of the several minorities with kinstates in its territory, is special because of that strong numerical size, and traditional presence.
Although proportionate protection of the Russian minority may be less than what is demanded by the Russian side, it would be in line with Ukraine’s international obligations, and could form part of a more general framework concerning minority protection with appropriate standards and institutional backup. This approach not only ensures the longevity of the agreed standards, but also promotes overall regional security (as it also benefits minorities of other regional kinstates). Regarding the respective responsibilities of the kinstate and state of residence, the HCNM’s Bolzano Recommendations could provide useful pointers.
Ensuring the equality, identity, and participation principles, while taking into account proportionality considerations, also enables Ukraine to tailor the norms to the specific circumstances of its regions. When the rights would be resource intensive, such as language rights, relative numbers and territorial concentrations determine what can reasonably be expected from a government. This confirms the possibility of differential levels of protection between regions, each time depending on relative territorial concentrations. There will undoubtedly be differences of opinion about what qualifies as the appropriate (proportionate) level of protection. Nevertheless, the legal frame and related principles provide both sides with important negotiation space.
