language, culture, identity and the media: european...

Language, culture, identity and the media:

European perspectives

Annenberg-Oxford Summer ProgrammeUniversity of Oxford, 20 July 2006

Tarlach McGonagle, LL.M.

UNIVERSITEIT VAN AMSTERDAM

“Your language is…

... your home and your country is your language and your language is your flag.”

- Hugo Hamilton, The Speckled People (London, Fourth Estate, 2003), p. 3.

Importance of language/public policy interests

• Non-discrimination & equality

• Identities

• Pluralism & diversity

• Tolerance and intercultural understanding

• Integration and participation

• Public & alternative discursive spheres

• Facilitation of other rights (expression,

education, etc.)

What is a minority?

No authoritative, widely-accepted legal definition…

… but a preference for a hands-on approach…

… with a curious connection to pornography!

What is a minority (bis)?

The (porn-free!) Capotorti definition:

A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members –

being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of

the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture,

traditions, religion or language.

Freedom of expression and language rights in leading United Nations instruments

• International Covenant on Civil and Political Rights: Articles 19, 27

• International Covenant on Economic, Social and Cultural Rights: Article 15

• International Convention on the Rights of the Child: Articles 17, 29, 30

• UN General Assembly Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities: Article 4

• UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions

• UNESCO Universal Declaration on Cultural Diversity: Article 6

• UNESCO Recommendation on the Promotion and Use of Multilingualism and Universal Access to Cyberspace

Council of Europe

* European Convention on Human Rights (ECHR): Article 10

* Framework Convention for the Protection of National Minorities(FCNM): Article 9

* European Charter for Regional or Minority Languages (ECRML): Article 11

* Committee of Ministers’ Recommendations (eg. No. R (99) 1 on measures to promote media pluralism)

Framework Convention for the Protection of National Minorities(a critical visualisation!)

Article 11(3), FCNM

In areas traditionally inhabited by substantial numbers of persons belonging to a national minority, the Parties shall

endeavour, in the framework of their legal system, including, where appropriate, agreements with other States, and taking into account their specific conditions, to display traditional

local names, street names and other topographical indications intended for the public also in the minority language when

there is a sufficient demand for such indications.

Article 10(2), FCNM

“In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if those

persons so request and where such a request corresponds to a real need, the Parties shall endeavour to ensure, as far as possible, the conditions which would make it possible to use the minority language in relations between those persons and

the administrative authorities.”

Article 9, FCNM

1 The Parties undertake to recognise that the right to freedom of expression of every person belonging to a national minority includes freedom to hold opinions and to receive and impart information and ideas in the minority language, without interference by public authorities and regardless of frontiers. The Parties shall ensure, within the framework of their legal systems, that persons belonging to a national minority are not discriminated against in their access to the media. 2 Paragraph 1 shall not prevent Parties from requiring the licensing, without discrimination and based on objective criteria, of sound radio and television broadcasting, or cinema enterprises. 3 The Parties shall not hinder the creation and the use of printed media by persons belonging to national minorities. In the legal framework of sound radio and television broadcasting, they shall ensure, as far as possible, and taking into account the provisions of paragraph 1, that persons belonging to national minorities are granted the possibility of creating and using their own media. 4 In the framework of their legal systems, the Parties shall adopt adequate measures in order to facilitate access to the media for persons belonging to national minorities and in order to promote tolerance and permit cultural pluralism.

Article 9, FCNM

* Linguistic freedom and non-discriminatory access to media (Art. 9.1)

* Freedom to create and use media outlets without hindrance (Art. 9.3)

* States must adopt adequate measures to facilitate minorities’ access to media and to promote tolerance and

permit cultural pluralism (Art. 9.4)

Article 1 – Definitions

For the purposes of this Charter:

a “regional or minority languages” means languages that are:

i traditionally used within a given territory of a State by nationals of

that State who form a group numerically smaller than the rest of the

State's population; and

ii different from the official language(s) of that State;

it does not include either dialects of the official language(s) of the

State or the languages of migrants;

[…]

European Charter for Regional or Minority Languages

Article 2 – Undertakings

1 Each Party undertakes to apply the provisions of Part II to all

the regional or minority languages spoken within its territory and

which comply with the definition in Article 1.

2 In respect of each language specified at the time of

ratification, acceptance or approval, in accordance with Article 3, each

Party undertakes to apply a minimum of thirty-five paragraphs or sub-

paragraphs chosen from among the provisions of Part III of the

Charter, including at least three chosen from each of the Articles 8 and

12 and one from each of the Articles 9, 10, 11 and 13.



Part IIArticle 7 – Objectives and principles

1 • recognition of languages as source of cultural wealth• resolute promotional measures• facilitation and/or encouragement of expression (public and private)• maintenance and development of intergroup links• study, research and teaching• promotion of appropriate transnational exchanges

2 non-discrimination and equality – elimination of exclusions, restrictions, preferencesoperating against any regional or minority language

3 respect, understanding and tolerance

4 needs and wishes of speakers of minority languages should inform policy-formulation, incl. via relevant (advisory) bodies

5 application of foregoing principles to non-territorial languages

European Charter for Regional or Minority LanguagesArticle 11 – Media

1 “The Parties undertake, for the users of the regional or minority languages within the territories in which those languages are spoken, according to the situation of each language, to the extent that the public authorities, directly or indirectly, are competent, have power or play a role in this field, and respecting the principle of the independence and autonomy of the media:”

a public service mission of radio and television(i) ensure creation of at least one radio station and one television channel(ii) encourage and/or facilitate creation of at least one radio station or television

channel (iii) make adequate provision so that broadcasters can offer programmesb encourage and/or facilitate: (i) at least one radio station, or (ii) regular radio

programmesc ditto, as regards televisiond encourage and/or facilitate audio and audiovisual workse encourage and/or facilitate: (i) creation and/or maintenance of at least one newspaper;

(ii) publication of newspaper articlesf cover additional costs of relevant media where law provides for general financial

assistance for mediag support training of journalists and other staff


Article 11 – Media (continued)

2 The Parties undertake to guarantee freedom of direct reception of radio and television broadcasts from neighbouring countries in a language used in identical or similar form to a regional or minority language, and not to oppose the retransmission of radio and television broadcasts from neighbouring countries in such a language. They further undertake to ensure that no restrictions will be placed on the freedom of expression and free circulation of information in the written press in a language used in identical or similar form to a regional or minority language. […]

3 The Parties undertake to ensure that the interests of the users of regional or minority languages are represented or taken into account within such bodies as may be established in accordance with the law with responsibility for guaranteeing the freedom and pluralism of the media.

European Union

* Treaty establishing the European Community: Article 151

* Charter of Fundamental Rights of the European Union: Article 22

* Arfé, Kuijpers & Killilea Resolutions

* Michl Ebner Report (2003)

The Organization for Security and Co-operation in Europe (OSCE) High Commissioner on National Minorities

* Oslo Recommendations Regarding the Linguistic Rights of National Minorities: Paras. 8-11

“[…] it is doubtful that international law will ever be able to do more than specify the most minimal of standards. The members of various linguistic groups have quite different needs, desires, and capacities, depending on their size, territorial concentration, and historic roots. A set of guidelines that is satisfactory to a small, dispersed immigrant group will not satisfy a large, concentrated historic minority. […] Any attempt to define a set of rights that applies to all linguistic groups, no matter how small and dispersed, is likely to end up focusing on relatively modest claims. […] Both majority and minority groups want much more than is, or could reasonably be, guaranteed in international law.”

Patten & Kymlicka’s challenge:

- Alan Patten & Will Kymlicka, “Introduction – Language Rights and Political Theory: Context, Issues, and Approaches” in Will Kymlicka & Alan Patten, Eds., Language Rights and Political Theory (New York, Oxford

University Press, 2003), pp. 1-51, at pp. 34-5.

Factors influencing regulation of (minority) language use in broadcasting

• Linguistic topography

• Official recognition of languages

• General mediascape

• Market sustainability

• Licensing of broadcasters

• Regulation of broadcasting output

* Citizenship

* Universality

* Quality of services and of output

* General geographical availability

* Concern for national and minority identities and cultures

* Independence from State and commercial interests

* Impartiality of programmes

* Range and variety of programmes

* Substantial financing by general charge on users

* Duty to inform, educate and entertain

Public service broadcasting: some (ideal) criteria

• Transfrontier dimension

• Temporal and qualitative criteria

Factors influencing regulation of (minority) language use in broadcasting:







“‘Short-pants’ television is hardly sufficient.”

- Monroe Price, Television, the Public Sphere, and National Identity, p. 235.

• Transfrontier dimension

• Temporal and qualitative criteria

• Facilitative measures

Factors influencing regulation of (minority) language use in broadcasting:







Facilitative measures

* Language officer in regulatory authority* Consultation and representation

* Channel- and frequency-sharing, hosting, etc.* Social and special-interest broadcasting

* Flexible and favourable financing and fiscal regimes* Education and training – capacity building

* Promotion of production and distribution of programming

TraditionalState-

dominatedregulation

(Pure)Self-

regulation

Co-regulation

Non-regulation?

Regulatory continuum

Minority-Language Related Broadcasting and Legislation in the OSCE

(Study commissioned by the OSCE High Commissioner on National Minorities)

Programme in Comparative Media Law and Policy (PCMLP), Oxford University

&

Institute for Information Law (IViR), Universiteit van Amsterdam

Edited by:

Tarlach McGonagle (IViR)Bethany Davis Noll (PCMLP)

Monroe Price (PCMLP)

Available at: http://www.ivir.nl/staff/mcgonagle.html

Language use in the broadcast media is:

1. Typically regulated

2. Rarely prohibited

3. Often facilitated

* There is huge variety in the array of legislative and regulatory regimes for language use in broadcasting

in the States surveyed!

Main findings of study

Guidelines on the use of Minority Languages in the Broadcast Media (October 2003)

* Introduction* General principles* Policy* Regulation* Promotion of minority languages* Explanatory Note

Available at:

http://www.osce.org/documents/hcnm/2003/10/2242_en.pdf

Quo vadis?

* International developments

* Best State practice

* Civil society initiatives

* Multidisciplinary academic activity

Conclusion

More creative thinking – outside the box!

Language, culture, identity and the media: European perspectives

Tarlach McGonagle, LL.M.Website: http://www.ivir.nl/staff/mcgonagle.html

E-mail: [email protected]

UNIVERSITEIT VAN AMSTERDAM

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