New Perspectives on LPP (panel 3)

A Legal Perspective on LPP in the Small Islands States of the Kingdom of the Netherlands: a

Choice between Pest and Cholera?

The Politics of Multilingualism:Possibilities and Challenges

1

University of Amsterdam

Amsterdam, 22-25 May 2017

prof. dr. Herman E. Bröringh.e.broring@rug.nl

Outline

Federal structure, countries and territories

Some facts

Treaties and principles, underlying LPP

The Caribbean countries and territories of the Kingdom

Main findings and questions

Conclusions

2

I

II

I Member of the EU

II EU-law fully applicable

The CaribbeanSpecific characteristics

Differences between the Caribbean islandso Countries: Aruba, Curaçao, St Maarten: autonomy

o Territories: Bonaire, Statia, Saba: part of the Country of the Netherlands

o Languages (not only windward - leeward)

Similaritieso Small scale

o No territory principle

o 4 and more languages

o Dutch as dominant language in legislation, governance and judiciary (legal transplants)

o Colonial history (sensitivity)4

Some factsLanguage spoken at Home (%)

Papiamento Dutch English Spanish

Aruba 68.0 6.0 7.0 13.5

Curaçao 78.6 9.4 3.5 6.0

St Maarten 2.3 4.2 64.3 14.8

Bonaire 72.3 10.4 4.0 11.4

Statia 1.6 4.2 84.1 5.5

Saba 0.5 2.0 89.0 4.4

5

Fifth Cesus on Population and Housing Census 2011 (Aruba 2010);

M. Snetselaar, ‘Het Nederlands op de BES-eilanden, Een vreemde taal’,

Levende Talen Magazine 2012/6

Some factsBorne elsewhere (%)

% Not born in the country / Netherlands Antilles (BES)

Aruba 34.0

Curaçao 24.0

St Maarten 70.0

Bonaire 40.8

Statia 43.6

Saba 51.5

6

Based on

Fifth Cesus on Population and Housing Census 2011 (Aruba 2010);

CBS, Bevolking Caribisch Nederland vrijwel gelijk gebleven, 21 juli 2016

Treaties and principlesUnderlying LPP, direct relevance

‘Only those rights are linguistic HUMAN rights which are so basic for a dignified life that everybody has them because of being human; therefore, in principle no state (or individual) is allowed to violate them.’ (Skutnabb-Kangas 2012)

(UN) Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Art. 2, not binding

o Right to use own language

o Right on effective communication and participation

(UN) International Covenant on Civil and Political Rights, ICCPR, Art. 27, binding

o ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.’

7

Treaties and principlesUnderlying LPP, indirect relevance

Protection of private life

Freedom of expression, association and assembly

Right on political participation, principle of democracy

Principle of non-discrimination, equality

See ICCPR as well as European Convention for the Protection of Human Rights and Fundamental Freedoms, ECHR, binding

Special legal demands in case of criminal charge / prosecution, i.a. ECHR

o Art. 5.2: ‘Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.’

o Art. 6.3. ‘Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; […] (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.’ 8

Treaties and principlesOthers (i.a.)

Council of Europe, Explanatory report on the Framework Convention for the Protection of National Minorities

EU-lawo Civil rights

o EU Charter of Fundamental Rights

Other principleso Legal certainty

o Transparency

o Access to the law

Mind: Who is the addressee?o Group of persons? “Minorities” refers to a group.

o Individual person? 9

The CaribbeanLegislation on languages

Landsverordening officiële talen (Legislation official languages)

o Aruba: Papiaments, Dutch (Art. 2)

o Curaçao: Papiaments, English, Dutch

o St Maarten: English, Dutch (basis in Staatsregeling)

Invoeringswet Openbare Lichamen Bonaire, Statia, Saba

o Governance: Dutch

o Or Papiamento (Bonaire) of English (Statia, Saba),

o Unless disproportionate burden governance 10

The CaribbeanGovernance

General information in at least 1 official language

In their communication person and authority are both free to choose one of the official languages (Art. 3-1,2 Legislation official languages, as an example)

Translation on request (Art. 3-4), without any cost for an “interested person” (Art. 3-5)

Criminal charge, detention: communication in language person can understand (Art. 1.5, 1.6)

Legislation is in Dutch (Art. 5)

Official language criminal procedures is Dutch (Art. 6)o Combined with international standards: criminal charge, detention:

language that the person can understand (Art. I.5-3 Staatsregeling) 11

The CaribbeanJudiciary

Rijkswet Gemeenschappelijk Hof van Justitie (Kingdom legislation on Caribbean judiciary)

o Courts of First Instance (GEA)

o High Court (Gemeenschappelijk HvJ)

o Supreme Court (Hoge Raad)

Language of procedure: one of the official language

Decision in Dutch (Art. 9)

12

The CaribbeanMain findings and questions

Primary sources of law are in Dutch: Legislation; Case Law

For example Aruba:

Although only 6 % has Dutch as primary (home) language (and 68 % Papiamento)

Papiamentio is an official language, tooo How often / in what domains Papiamento is used in practice?

Although there are substantial groups of people with Spanish (13.5 %) or English (7 %) as primary language, these are not official languageso How is the communication with these groups in practise?

Who reads the law? Maybe other information is much more important for transparency and legal certainty

13

The CaribbeanMain findings and questions

In theory the Aruban language legislation on governance and judiciary can result in exclusion from democracy, governance and lawo Inequality, if not discrimination

o Insufficient transparancy

o Insufficient access to law

However, (empirical) data is lacking

We need to know more abouto The implementation of language legislation (policy and practise)

o The consequencies of this implementation in terms of equality, transparency and access to the law

14

The CaribbeanMain findings and questions

“Ignorance of the law excuses no one”

The dominance of Dutch in legislation and judiciary can be seen as a residue of colonialism

Legislation and case law in Papiamento?

Question: Is Papiamento adequate as legislation and judiciary language?

o Need of development of new (law) language in Papiamento?

o Artificial Papiamento? Disaffection?

o Some Dutch legal jargon is literally adopted in Papiamento

15

The CaribbeanMain findings and questions

Question: Is the concordance principle (Art. 39 Charter of the Kingdom) frustrating legislation and judiciary in Papiamento?

o Legal subjects as much as possible regulated in the same way in all the countries of the Kingdom

o In practise Dutch law as a model (i.a. as a result of more legislation capacity)

o The countries and territories do not need all legislation, so a part could be translated

16

The CaribbeanMain findings and questions

Question: Is the necessity of judges from the European Netherlands frustrating legislation and judiciary in Papiamento?

o Independence and impartiality is problematic in small scale society, so judges from abroad are necessary

o Co-operation within the Caribbean?

o Different dominant languages (Windward: English)

o Are judges from other countries / territories acceptable?

17

Conclusions

In accordance with treaties and fundamental principles of democracy and the rule of law

Yes, detailled language legislation

And the implementation and enforcement?

Powerful or non-existent policy?

Finance: disproportional burden?

We do not know what the real problems are. Is legal language only for lawyers? If not, leads Dutch as legal language to (social) exclusion of groups of people?

18

Conclusions

No tradition of (empirical self-)evaluation

Small scale as a characteristic

Multilingualism as a characteristico Historicy, legacy

o Tradition of migration

Lack of knowledge of the impact

19

ConclusionsWhat do the Caribbean countries and

territories want?

Identity, diversity, uniformity?

Aims of governance, judiciary, education

Position in the Kingdom

Independence?

20

the Pest or the Cholera Pest: legislation and case law in Dutch

o Concordance principle, Dutch law as model, Dutch judges as guarantee for independence and impartiality

Cholera: legislation and case law in Papiamento, but no independent and impartial judge (Leeward Islands)

English is a threat for Papiamento (Leeward Islands)

Dutch is no threat

21