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Major international legal instruments commit international law to protect language rights absolutely, irrespective of counter-pressures toward linguistic uniformity. This unconditional commitment to language rights is echoed in the writings of prominent human rights scholars, who argue that language is a constitutive element of cultural identity. This article contrasts the ideals of language rights with the actual record of their enforcement. It presents a detailed analysis of the 133 cases that have come before the European Court of Human Rights, the U.N. Human Rights Committee, and the Inter-American Court of Human Rights dealing with language issues as they arise in
(i) education, (ii) court proceedings, and (iii) communications with the government. The analysis demonstrates that the decisions of international judicial or quasi-judicial bodies in language protection cases have consistently favored linguistic assimilation, rather than the robust protection of linguistic diversity that is formally espoused. Instead of strong language guarantees, only transitional accommodations are offered in the public realm for those as yet unable to speak the majority language. This jurisprudence treats minority language not as a valuable cultural asset worthy of perpetual legal protection, but as a temporary obstacle that individuals must overcome in order to participate in society. The legal decisions take a narrowly utilitarian approach to language, forcing the state to accept the use of minority languages only insofar as they facilitate communication with the majority and with the official bodies of the state. The paper concludes with a commentary suggesting that treating language interests under the rubric of human rights, however valid and worthy they may be, cannot be normatively defended.

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Consent to the Use of Force and International Law Supremacy

Mar 5, 2013 | Print Archives

Many celebrate international law as a way to compel states to protect human rights. Often it serves this role. But sometimes it has the reverse effect: states use international agreements to circumvent individual rights in domestic law. For example, the United States reportedly relied on Italy’s consent to render a terrorist suspect from the streets of Milan into secret detention. Pakistan seems to have authorized U.S. lethal strikes against Al Qaeda members without regard to rights protections in Pakistani law.

This Article uses the under-examined phenomenon of international consent to the use of force to explore the larger question of how states use international law to circumvent individual rights. International law facilitates these rights violations by embracing a principle termed “supremacy.” Supremacy requires a state to prioritize its international obligations over its domestic laws. This means that a state may rely on another state’s consent to an agreement without asking whether that consent violates the rights of individuals in the consenting state.

To minimize this manipulation of international law, the Article proposes that states receiving consent to use force bear a “duty to inquire” to ensure that the state consenting to the use of force is acting in a manner consistent with its domestic laws. This solution challenges international law’s traditional approach to supremacy. The Article shows why a more functional approach to supremacy for international agreements that operate at the intersection of national security and individual rights will advance the goals of international and domestic law more effectively.

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Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice

Mar 5, 2013 | Print Archives

This Article examines the adoption of rights in national constitutions in the post-World War II period in light of claims of global convergence. Using a comprehensive database on the contents of the world’s constitutions, we observe a qualified convergence on the content of rights. Nearly every single right has increased in prevalence since its introduction, but very few are close to universal. We show that international rights documents, starting with the Universal Declaration of Human Rights, have shaped the rights menu of national constitutions in powerful ways. These covenants appear to coordinate the behavior of domestic drafters, whether or not the drafters’ countries are legally committed to the agreements (though commitment enhances the effect). Our particular focus is on the all-important International Covenant on Civil and Political Rights, whose ratification inclines countries towards rights they, apparently, would not otherwise adopt. This finding confirms the complementary relationship between treaty ratification and domestic constitutional norms, and suggests that one important channel of treaty efficacy may be through domestic constitutions.

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