Invited plenary paper at the International Conference on Kurds, the European Union and Turkey, Copenhagen, Denmark, 14th October 2002.
 

1. Introduction: Negative and Positive Rights; Toleration-oriented and Promotion-oriented Rights
I have been asked to discuss international and European linguistic human rights, especially in education, from the point of view of the situation of Kurds in Turkey today, before and to some extent also after the reform package of new laws and amendments adopted by the Turkish Parliament on the 3rd of August 2002. Without being a lawyer, specialised in Turkish law, it is of course impossible to get an overview of the full implications of the amendments, and, in any case, we are still to see the implementation. Therefore, I will concentrate more on presenting some of those rights that Turkey ought to grant to Kurds, according to international and European human rights instruments, including not only Conventions, Covenants and Charters but also authoritative interpretations of them, Declarations, UN Human Rights Committee's General Comments, and other "soft law" instruments. 

                      First some general remarks. Obviously there can be no laws forbidding or forcing people to speak (or sign) a certain language in private, in their homes; everybody is free to use whatever language in their homes. Linguistic human rights are thus about public use of languages. 

Max van der Stoel, the former High Commissioner on National Minorities of the OSCE[2] (1999: 8-9[3]), discusses negative and positive rights as the two human rights pillars: The negative rights have to do with "the right to non-discrimination in the enjoyment of human rights". Positive rights have to do with "the right to the maintenance and development of identity through the freedom to practise or use those special and unique aspects of their minority life – typically culture, religion, and language". He lists the various rights as follows (ibid.): 

The first protection[4] […] ensures that minorities receive all of the other protections without regard to their ethnic, national, or religious status; they thus enjoy a number of linguistic rights that all persons in the state enjoy, such as freedom of expression and the right in criminal proceedings to be informed of the charge against them in a language they understand, if necessary through an interpreter provided free of charge. 

The second pillar, encompassing affirmative obligations beyond non-discrimination[5] […] includes a number of rights pertinent to minorities simply by virtue of their minority status, such as the right to use their language. This pillar is necessary because a pure non-discrimination norm could have the effect of forcing people belonging to minorities to adhere to a majority language, effectively denying them their rights to identity. (OSCE High Commissioner on National Minorities 1999: 8-9). 

Figure 1. Language rights in education in Turkey before (1) and after (2) the August 2002 Reform Package

In our analysis in a 1994 book, Sertaç Bucak and I placed Turkey in the upper left-hand corner of the grid. Turkey was the country which with the most overt legal means in the world tried to prohibit the use of a language, namely Kurdish[6]. 

It seems to me that the reform package does no more than move a bit down and right, towards half-covert toleration of some language functions in Kurdish. Turkey is still quite far from even the negative right of forbidding discrimination on the basis of language. I shall present some examples later. 

2. The "Human Rights Olympics" - Turkish Ratifications of Human Rights Instruments

To start with, we can see how Turkey fares in what I have labelled The Human Rights Olympics. We can start assessing the "respect" that various states show in relation to human rights in general, firstly, by listing which basic human rights instruments they have signed and ratified, and, secondly, to what extent and how they implement them. It is interesting to see that in many cases those countries which are policing the global human rights performance of other countries, especially the United States of America, in fact show minimal respect for both multilateral and even domestic human rights themselves. I have placed all 193 UN member states in a hierarchical order, depending on how many of the 52 basic Universal Human Rights Instruments they had ratified by 31st May 2000 (see UNESCO 2000, the latest UN document on this; the document itself has not counted the number of ratified documents but has only listed them). After the rank number starting each group (in Table 1), I have indicated how many percent of the instruments each group of countries has ratified; the number of instruments ratified follow the percentage. 
 

Table 1. How many of the 52 Universal Human Rights Instruments had countries ratified by 31st May 2000? 
 

1...84.6% (44): Norway  2.  82,7% (43): Bosnia and Herzegovina  3.  80.8% (42) Croatia  4.  78.8% (41): Denmark, Finland, Netherlands  7.  76.9% (40): Sweden, Hungary, Italy, Spain  11.  75.05% (39): Australia, Germany, Poland  14..73.1% (38): Slovak Republic, Slovenia, United Kingdom  17..71.2% (37): Argentina, Cyprus, Ecuador, Guinea, Macedonia (The former Yugoslav Republic of), Romania, Russian Federation, Senegal, Tunisia, Yugoslavia  27.  69.2% (36): Costa Rica  28.  67.3% (35): Austria, Belarus, Bulgaria, Czech Republic, France, Greece, Guatemala, Latvia, Niger, Philippines  38.  65.4% (34): Algeria, Azerbaijan, Belgium, Bolivia, Brazil, Cuba, Egypt, Iceland, Luxembourg, Malta, Portugal, Ukraine, Uruguay, Venezuela, Zambia  53.  63.5% (33): Chile, Ireland, Libyan Arab Jamahiriya, Mali, Nicaragua  58.  61.5% (32): Barbados, Jordan, Kyrgyztan, Peru, Seychelles  63.  59.6% (31): Albania, Côte d'Ivoire, New Zealand, Uganda  67.  57.7% (30): Burkina Faso, Ethiopia, Israel, Jamaica, Mexico, Switzerland, Yemen  74.  55.8% (29): Cameroon, Canada, Colombia, Panama, Togo  79.  53.8% (28): Antigua and Barbuda, Belize, Congo, Madagascar, Malawi, Mongolia, Morocco, St.Vincent and the Grenadines, Tajikistan, United Rep. of Tanzania  89.  51.9% (27): Armenia, Chad, Georgia, Ghana, Guyana, Lesotho, Sri Lanka, Zimbabwe  97.  50.0% (26): Central African Republic, Dominican Republic, Estonia, Moldova (Republic of), Nigeria, Rwanda, South Africa  104.  48.1% (25): Burundi, Cambodia, Iraq, Kuwait, Lithuania, Paraguay, Sierra Leone, Turkmenistan  112.  46.2% (24): Bangladesh, Benin, Dominica, Gabon, Honduras, India, Mauritius, Suriname, Trinidad and Tobago, Turkey  122.  44.2% (23): El Salvador, Rep.of Korea, Syrian Arab Republic  125.  42.3% (22): Bahamas, Cape Verde, Dem.Republic of the Congo, Fiji, Haiti, Liberia, Mauritania, Mozambique, Nepal, San Marino, Swaziland, Uzbekistan  137.  40,4% (21): Botswana, Japan, Kenya, Papua New Guinea  141.  38.5% (20): Afghanistan, Iran (Islamic Rep.of), Lebanon, Namibia, Sudan  146.  36.5% (19): Angola, China, Djibouti, Liechtenstein, Pakistan, Saint Lucia  152.  34.6% (18): Gambia, Indonesia, Solomon Islands  155.  32.7% (17): Kazakhstan, Lao People's Dem.Rep., Viet Nam  158.  30.8% (16), Equatorial Guinea, Grenada, Guinea-Bissau  161.  28,8% (15): Bahrain, Comoros, Monaco, Somalia, United States of America  166.   26.9% (14): Malaysia, Qatar, United Arab Emirates  169.  25.0% (13): Sao Tome and Principe, Singapore, Thailand  172.  23.1% (12): Myanmar  173.  21.2% (11): Dem.People's Rep. of Korea, Maldives, Samoa  176.  19.2% (10): Holy See  177.  7.3%  (9): Brunei Darussalam, Oman, Saint Kitts and Nevis  180.  15.4%  (8): Eritres, Tuvalu, Vanuatu  183.  13.5%  (7): Fed. States of Micronesia, Kiribati, Palau, Tonga  187.  11,6% (6): Andorra, Bhutan  189.  1,9%  (1): Cook Islands, Marshall Islands, Nauru, Niue

 
Turkey has ratified 24 of the 52 instruments and occupies, together with Bangladesh, Benin, Dominica, Gabon, Honduras, India, Mauritius, Suriname, Trinidad and Tobago, a shared 112th to121st position of 193 countries. It is in good company, though. For instance, the United States of America occupies, together with 4 other countries, a shared 161st-164th position in this Human Rights Olympics - hardly a morally convincing record. The USA does not recognise the authority of international law over US law, something that can be exemplified by the fact that "American representatives on the United Nations Security Council vetoed a resolution calling on all governments to observe international law" as Noam Chomsky notes (1991: 16, as quoted in Pilger 1998: 27). It is also interesting to see where the states called "rogue states" by some USA sources are placed in this Human Rights Olympics (Iran between 141-145, Iraq 104-111, Libya 53-57 and North Korea 173-175). All others except North Korea show a far better record than the USA, and both Iraq and Libya are doing better than Turkey. 

        In Table 2, I only give the 41 "European" countries which are members of the Council of Europe, and list their ratifications of the 52 UN Human Rights instruments. I give both an alphabetical listing and a rank listing. In addition, I have marked with an asterisk the present European Union member countries. 

Table 2. Number of the 52 Universal Human Rights Instruments ratified by "European" countries by 31st May 2000
 

Alphabetical order

Rank order

Andorra 6 Albania,31 Austria*, 39 Belgium*,34 Bulgaria,35 Croatia, 42 Cyprus, 37 Czech Republic, 35 Denmark*,41 Estonia, 26 Finland*, 41 France*, 35 Germany*, 39 Georgia 27 Greece*, 35 Hungary, 40 Iceland, 34 Ireland*, 33 Italy*, 40 Latvia, 35 Lithuania, 25

Luxembourg*, 34 Macedonia (The former Yugoslav Republic of), 37 Malta, 34 Moldova (Republic of), 25 Netherlands*, 41 Norway, 44 Poland, 39 Portugal*, 34 Romania, 37 Russian Federation, 37 Slovak Republic, 38 Slovenia, 38 Spain*, 40 Sweden*, 40 Switzerland, 30 Turkey, 24 Ukraine, 34 United Kingdom*, 38 Yugoslavia, 37

44 Norway 42 Croatia, 41 Denmark*, Finland*, Netherlands* 40 Hungary, Italy*, Spain*, Sweden* 39 Austria*, Germany*, Poland 38 Slovak Republic, Slovenia, United Kingdom* 37 Cyprus, Macedonia, Romania, Russian Federation, Yugoslavia 35 Bulgaria, Czech Republic, France*, Greece*, Latvia,  34 Belgium*, Iceland, Luxembourg*, Malta, Portugal*, Ukraine 33 Ireland* 31 Albania 30 Switzerland 27 Georgia 26 Estonia 25 Lithuania, Moldova (Republic of) 24 Turkey 6 Andorra 6

Here we can see that Turkey, with the 24 ratifications, is the next but last country. Only Andorra, a very small country which does not participate much in international affairs, is below Turkey. The mean number of instruments ratified by the 15 EU member states is 37.6 (564:15=37.6). The mean for the ten countries which are applicants to the EU and are likely to be accepted in December 2002 is 34.7. This is a far cry from Turkey's 24. 

        In addition to the Universal Instruments, the UNESCO publication also lists ratifications to Regional Instruments: 26 from the Council of Europe, 4 from the Organization of African Unity, and 14 from the Organization of American States. These organisations have, respectively, 41, 53, and 35 Member States. The correlation between ratifications of Universal and Regional Instruments seems to be quite high. In Table 3, I have counted the number of the 26 Council of Europe's Instruments ratified by the various Member States, from the UNESCO publication above. 

Table 3. Number of the 26 Council of Europe Human Rights Instruments ratified by each of the 41 member states by 31st May 2000 
 

22: Sweden 21: Italy  20: Norway 19: Finland, Netherlands 17: Denmark, France, Spain 16: Greece, Slovenia 15: Czech Republic, Hungary, Portugal, Slovak Republic 14: Austria, Cyprus, Germany, Ireland 13: Iceland, Luxembourg, Romania, Switzerland 12. San Marino, United Kingdom 11: Belgium, Liechtenstein, Malta, Poland 10: Croatia, Estonia, Lithuania, Macedonia (the former Yugoslav Republic of), Moldova (Republic of)  9: Albania, Latvia, Russian Federation  8: Bulgaria, Turkey, Ukraine  5: Andorra   4: Georgia

Here we can see that Turkey occupies, together with Bulgaria and Ukraine, a 37th-39th position, out of 41. Only Andorra and Georgia are faring worse. 

        The last ratifications Table is about a more directly language-related instrument, the European Charter for Regional or Minority Languages. Table 4[7] shows the signatures and ratifications as of 15th August 2002. I have ranked the countries in three categories only. 17 countries have both signed and ratified[8]. 12 countries have only signed but not ratified, and 15 countries, including Turkey, have neither signed nor ratified. Even with the new law package, Turkey is very far from being able to ratify this document. 

Table 4. Signatures and ratifications of the European Charter for Regional or Minority Languages
 

1. Signed and ratified

2. Signed only but not ratified

3. Neither signed nor ratified

Armenia, Austria, Croatia, Cyprus, Denmark, Finland, Germany, Hungary, Liechtenstein, Netherlands, Norway, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom

Azerbaijan, Czech Republic, France, Iceland, Italy, Luxembourg, Malta, Moldova, Romania, Russian Federation, Macedonia, Ukraine

Albania, Andorra, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Georgia, Greece, Ireland, Latvia, Lithuania, Poland, Portugal, San Marino, Turkey

In sum, as we can see, Turkey is a long way from respecting human rights, including linguistic human rights, in terms of ratifications. As a prerequisite for asking other states to play a fair game in the international arena, states ought to follow the commonly agreed rules, rather than being rules onto themselves. We need to assess all states with the same yardstick – everything else is pure hypocritical power politics and against basic democracy. 
 

3. Educational Linguistic Human Rights - a Presentation
What linguistic human rights do international and European human rights instruments contain, especially in education. Minorities have some support for other aspects of using their languages in areas such as public administration, courts, the media, etc.[9] But international and European binding Covenants, Conventions and Charters provide in fact very little support for linguistic human rights in education, and language is accorded in them much poorer treatment than other central human characteristics such as "race", gender and religion. Often language disappears completely in educational paragraphs, and if time permitted, I would give you more examples (see Skutnabb-Kangas 2000, Chapter 7). When it is there, the Articles dealing with education, especially the right to mother tongue medium education, are more vague and/or contain many more opt-outs and modifications than any other Articles, as many books and articles on linguistic human rights show[10]. Some exemplification follows. 

In many of the post-1945 human rights instruments, language is mentioned in the preambles and in general clauses as one of the basic characteristics (together with "race", "sex" and "religion)" on the basis of which individuals are not to be discriminated against in their enjoyment of human rights and fundamental freedoms (e.g. in the joint Art. 2, UN Universal Declaration, and Art. 2.1, ICCPR; Art. 13 of the UN Charter, Art. 13). This shows that language has been seen as one of the most important characteristics of humans for enjoyment of their human rights. 

              But when we move from the preambles of the human rights instruments to the binding clauses, and especially to the educational clauses, all or most of the non-linguistic human characteristics are still there while language often disappears completely, as, for instance, in the UN Universal Declaration (1948) where the paragraph on education (26) does not refer to language at all. Similarly, the ICESCR, having mentioned language on a par with race, colour, sex, religion, etc. in its general Article (2.2), explicitly refers to 'racial, ethnic or religious groups' in its educational Article (13), but omits here reference to language or linguistic groups: 

                 ... education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups... 

              Several new Declarations and Conventions to protect minorities and/or minority languages have been passed in the 1990s. But even in many new instruments language has been omitted, for instance in the UN Centre for Human Rights in Geneva's a Model National Legislation for the Guidance of Governments in the Enactment of Further Legislation against Racial Discrimination, written for the UN Year Against Racism (1996). "Race, colour, descent, nationality or ethnic origin" are mentioned in the definition of racism but there is no mention of language. 

              If language-related rights are included and specified, the Article dealing with these rights, in contrast to the demanding formulations and the few opt-outs and alternatives in the articles dealing with other characteristics, is typically so weak and unsatisfactory that it is virtually meaningless. The clauses about other human characteristics create obligations and contain demanding formulations, where the states are firm duty-holders and "shall" do something positive in order to ensure the rights; there are few modifications, few opt-out clauses and alternatives. But not so for language, especially in education. 

              In the UN Minorities Declaration, adopted by the General Assembly in December 1992, most of the Articles use the obligating formulation 'shall' and have few let-out modifications or alternatives - except where linguistic rights in education are concerned. Compare, for example, the unconditional and supportive formulations in Article 1 about identity, with the education Article 4.3 (emphases added, 'obligating' in italics, 'opt-outs' in bold): 

1.1. States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories, and shall encourage conditions for the promotion of that identity. 

1.2. States shall adopt appropriate legislative and other measures to achieve those ends. 

4.3. States should take appropriate measures so that, wherever possible, persons belonging to minorities have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue. 

Who is to decide what constitutes 'appropriate measures', or 'adequate opportunities', and what is 'possible'? 

              We can see a similar pattern of vague formulations, modifications and alternatives in the two latest European instruments, the Council of Europe Framework Convention for the Protection of National Minorities[11] and the European Charter for Regional or Minority Languages[12]. The following examples come from these two. Minority languages and sometimes even their speakers MIGHT "as far as possible", and within the framework of [the State's] education systems, get some vaguely defined rights, 'appropriate measures', or 'adequate opportunities', "if there is sufficient demand" and "substantial numbers" or 'pupils who so wish in a number considered sufficient' or 'if the number of users of a regional or minority language justifies it'. The Articles covering medium of education are so heavily qualified that the minority is completely at the mercy of the state. An example from the Framework Convention's Article covering medium of education: 

                 In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught in the minority language or for receiving instruction in this language (emphases added). 

In the European Charter for Regional or Minority Languages, a state can choose which paragraphs or subparagraphs of the Charter it wishes to apply (a minimum of 35 is required). What is equally important for the Kurds is that a state can choose which languages to apply the Charter to. It is clear that the opt-outs and alternatives in the Convention and the Charter permit a reluctant state to meet the requirements in a minimalist way, which it can legitimate by claiming that a provision was not 'possible' or 'appropriate', or that numbers were not 'sufficient' or did not 'justify' a provision, or that it 'allowed' the minority to organise teaching of their language as a subject, at their own cost. 

             The Framework Convention has been criticised by politicians and even by international lawyers, who are normally very careful in their comments, like Patrick Thornberry, Professor of Law at Keele University. His general assessment of the provisions, after a careful comment on details, is: 
 

In case any of this [provisions in the Convention] should threaten the delicate sensibilities of States, the Explanatory Report makes it clear that they are under no obligation to conclude 'agreements'… Despite the presumed good intentions, the provision represents a low point in drafting a minority right; there is just enough substance in the formulation to prevent it becoming completely vacuous (Thornberry 1997, 356-357). 

4. Do the Kurds have educational linguistic human rights, in view of recent interpretations, reinterpretations and developments in human rights law?

In addition to traditional examples of countries where at least some 'minorities' (in terms of numbers) have more or less equal LHRs to majorities, on paper and often also in practise (Canada, Finland, Switzerland; India, South Africa), there are some recent examples of what can be considered positive developments, at least on paper. Obviously implementation needs to follow (a problem in, for instance, South Africa and India), or the rights have to be extended to cover more minorities and indigenous peoples (e.g. Canada). Without implementation, monitoring and proper complaint procedures many of the possibilities in the new or emerging instruments below are lost. In what follows I shall give an example of an authoritative interpretation of minimum standards of educational language rights of minorities, relevant from the point of view of Turkey and Kurds. I shall also comment the requirements in relation to the Turkish situation, with the new law package in mind. The interpretation in question is a soft law document from OSCE's High Commissioner on National Minorities: The Hague Recommendations Regarding the Education Rights of National[13] Minorities & Explanatory Note from 1996; it can be downloaded from < http://www.osce.org/>. The Hague Recommendations are directly related to education. These educational guidelines were worked out by a small group of experts on human rights and education (including TSK), among them several them members or ex-members of the UN Human Rights Committee. They represent an authoritative interpretation and concretisation of the minimum in present human rights standards (see also van der Stoel 1997, Rothenberger 1997). 

In the section 'The spirit of international instruments', bilingualism is seen as a right and responsibility for persons belonging to national minorities (Art. 1), and states are reminded not to interpret their obligations in a restrictive manner (Art. 3). In the section on "Minority education at primary and secondary levels", mother tongue medium education is recommended at all levels, including bilingual teachers in the dominant language as a second language (Articles 11-13). Teacher training is made a duty on the state (Art. 14). The most important Articles are presented below: 
 

              11) The first years of education are of pivotal importance in a child's development. Educational research suggests that the medium of teaching at pre-school and kindergarten levels should ideally be the child's language. Wherever possible, States should create conditions enabling parents to avail themselves of this option. 

              12) Research also indicates that in primary school the curriculum should ideally be taught in the minority language. The minority language should be taught as a subject on a regular basis. The State language should also be taught as a subject on a regular basis preferably by bilingual teachers who have a good understanding of the children's cultural and linguistic background. Towards the end of this period, a few practical or non-theoretical subjects should be taught through the medium of the State language. Wherever possible, States should create conditions enabling parents to avail themselves of this option. 

              13) In secondary school a substantial part of the curriculum should be taught through the medium of the minority language. The minority language should be taught as a subject on a regular basis. The State language should also be taught as a subject on a regular basis preferably by bilingual teachers who have a good understanding of the children's cultural and linguistic background. Throughout this period, the number of subjects taught in the State language, should gradually be increased. Research findings suggest that the more gradual the increase, the better for the child. 
              14) The maintenance of the primary and secondary levels of minority education depends a great deal on the availability of teachers trained in all disciplines in the mother tongue. Therefore, ensuing from the obligation to provide adequate opportunities for minority language education, States should provide adequate facilities for the appropriate training of teachers and should facilitate access to such training. 

Finally, the Explanatory Note states that 
 

              [S]ubmersion-type approaches whereby the curriculum is taught exclusively through the medium of the State language and minority children are entirely integrated into classes with children of the majority are not in line with international standards (p. 5). 

All education in Turkish pre-schools, kindergartens and schools, both in state schools and in private schools, for Kurdish children, is both now and in the future, after the new law package is being implemented, completely through the medium of Turkish, not Kurdish, as Articles 11, 12 and 13 recommend. Many (but by no means all) teachers are monolingual in Turkish, not bilingual as recommended. There is no teacher training through the medium of the Kurdish language for Kurdish teachers to teach all subjects, including the Kurdish language itself, through the medium of Kurdish, as recommended in Article 14. All education of Kurdish children in Turkey is direct submersion, which according to the Explanatory Note (p. 5) is " not in line with international standards". 

                      What Turkey proposes to do, in the recent law package, is an "Amendment to the Law on Foreign Language Education and Teaching (removing legal restrictions on the learning of different languages and dialects traditionally used by Turkish citizens in their daily lives, and providing for private courses through a regulation of the Ministry of National Education" ("Latest reform package…", 2002). The unofficial translation is as follows: 

Amendments to the Law on Foreign Language Education and Teaching 

The amendments remove the legal restrictions on the learning of different languages and dialects traditionally used by Turkish citizens in their daily lives and provides that the Ministry of National Education will regulate the learning of these languages and dialects in private courses through a regulation to be issued. 

The following provisions have been added to Article 2 paragraph (a) of the Law on Foreign Language Education and Teaching. 

'Private courses subject to the provisions of the Law on Private Educational Institutions No. 625 dated 8.6.1965 can be opened to enable the learning of the different languages and dialects used traditionally by Turkish citizens in their daily lives. Such courses cannot be against the fundamental principles of the Turkish Republic enshrined in the Constitution and the indivisible integrity of the state with its territory and nation. The procedures and principles related to the opening and regulation of these courses shall be undertaken through a regulation to be issued by the Ministry of National Education.' 

-          1. Only pupils from 12 to 18 are allowed to learn Kurdish 

-          2. Pupils must have completed primary school 

-          3. Pupils must provide a medical certificate prior to the course start, stating that they are not mentally or physically handicapped 

-          4. Pupils must have parents' consent 

-          5. "Ethnic" clothing is not permitted 

-          6. Kurdish lessons can be given only on school-free days (week-ends and holidays) 

-          7. Tuition can only be given in private schools, not state schools 

-          8. Tuition requires authorization by the Ministry of Education 

-          9. Tuition will be monitored by inspectors from the Ministry of Education 

-          10. Teachers have to be Turkish citizens 

-          11. Teachers have to be qualified 

-          12. Individuals who have been convicted for crimes against the state are not allowed to teach 
 

A few comments on aspects where the consequences may not be explicit. If teachers have to be qualified (11) but not convicted for crimes against the state (12)- like saying a few words of Kurdish publicly, or selling a Kurdish newspaper - and they have to be Turkish citizens (10), it means that there are very few such people in Turkey. The only ones who have had formal training in Kurdish, including reading and writing, are staff in the military[15] - they are perhaps not the best teachers for Kurdish children who have seen them in action against Kurds. If Kurds in diaspora have had teacher training, including in the Kurdish language, and want to come and teach, they are either often not Turkish citizens (in which case they might be able to come to Turkey without risking arrest, but would not be able to teach), or, if they are Turkish citizens and have studied Kurdish, they could be arrested on arrival because of this "crime against the state" of having studied Kurdish. Collecting the lists with "parent consent" might give the Turkish police an opportunity for serious misuse of the information. And the addition to the Law (above), "Such courses cannot be against the fundamental principles of the Turkish Republic enshrined in the Constitution and the indivisible integrity of the state with its territory and nation", ensures that Turkish nationalism and state ideology would permeate the teaching; this reminds me of the early missionaries, who knew that they got to the souls of the "heathens" if they spoke about the Bible to them in their own languages. 

Turkey claims in the Reform package that it has achieved the following with the educational changes: "In line with the expectation in the Accession Partnership, the legal restrictions are lifted and changes in line with the European Union norms are achieved". 

                      In fact, education of Kurds in Turkey, both today and after the law package is being implemented, is genocidal. It still fits two of the definitions of genocide in the UN International Convention on the Prevention and Punishment of the Crime of Genocide (E793, 1948). The Genocide convention has six definitions of genocide: 
 

Article II(e): 'forcibly transferring children of the group to another group'; and 

Article II(b): 'causing serious bodily or mental harm to members of the group'; (emphasis added). 

Turkey tries to forcibly make Turks of Kurdish children through education, i.e. Turkey tries to transfer the children linguistically and culturally to another group. This is genocide, according to the UN definition. Turkey prevents the children from learning their own language and from learning in general and from doing as well in school as the children's innate potential would allow them to do - this is what all submersion education of minorities through the medium of a dominant official language does, when there are no alternatives. Those minority children who manage under these conditions, do it despite the school, not because of the way school is organised. There are hundreds of large-scale research studies from all over the world which show the serious mental harm done to minority children under similar (but often not as grave) conditions as those prevailing in Turkey. In addition, Turkey is of course also causing serious bodily harm to many Kurdish children (and adults), through keeping their health care, especially in several areas in Kurdistan, at a level comparable to and in some respects and with some indicators, even worse than countries like Bangladesh and Tanzania, as Kristiina Koivunen has recently shown in her doctoral dissertation (2002, see, e.g. Table 12, p. 209, on infant and child mortality rates in 1997). 

                                        Just a few quotes will follow about the harm from other countries, where the results are probably better than in Turkey. The first example comes from Africa. It is Edward Williams' 1995 study from Zambia and Malawi, with some1,500 students in grades 1-7. The results state that large numbers of Zambian pupils (all education in English) ‘have very weak or zero reading competence in two languages’. The Malawi children (taught in local languages during the first 4 years, English as a subject) had slightly better test results in the English language than the Zambian students. Williams' conclusion was that ‘there is a clear risk that the policy of using English as a vehicular language may contribute to stunting, rather than promoting, academic and cognitive growth’. This fits the UN genocide definition of “causing mental harm” (see also the conclusions in Lowell and Devlin 1999). 

              The rest of the examples come from Canada. Katherine Zozula and Simon Ford tell in their 1985 report Keewatin Perspective on Bilingual Education about Canadian Inuit ‘students who are neither fluent nor literate in either language’ and present schooling statistics showing that the students ‘end up at only Grade 4 level of achievement after 9 years of schooling’ (quoted in I. Martin 2000a: 3; see also I. Martin 2000b). The same type of results are presented in the Canadian Royal Commission on Aboriginal Peoples 1996 Report. They note that ‘submersion strategies which neither respect the child's first language nor help them gain fluency in the second language may result in impaired fluency in both languages’ (quoted in I. Martin 2000a:15). The Nunavut Language Policy Conference in March 1998 echoes this in claiming that ‘in some individuals, neither language is firmly anchored’ (quoted in I. Martin 2000a: 23). This statement is partially based on the empirical study by two experienced Arctic College educators, Mick Mallon and Alexina Kublu, in a 1998 Discussion Paper for the conference which states that ‘a significant number of young people are not fully fluent in their languages’, and that many students ‘remain apathetic, often with minimal skills in both languages’ (quoted in I. Martin 2000a (9: 27). A 1998 report (Kitikmeot struggles to prevent death of Inuktitut) notes that ‘teenagers cannot converse fluently with their grandparents’ (quoted in I. Martin 2000a:31). - All these examples could just as well come from Turkey, and the new laws will not make the situation better. 

              In addition, Turkey is of course also committing linguistic genocide according to the specific definition on linguistic genocide. When the United Nations did preparatory work for what later became the International Convention for the Prevention and Punishment of the Crime of Genocide (E 793, 1948), linguistic and cultural genocide were in fact discussed alongside physical genocide. All three were seen as serious crimes against humanity (see Capotorti 1979: 37). The Ad Hoc Committee which prepared the Convention had specified the following acts as examples constituting cultural genocide in Article III: 'Any deliberate act committed with intent to destroy the language, religion or culture of a national, racial or religious group on grounds of national or racial origin or religious belief, such as 
 

(1)   Prohibiting the use of the language of the group in daily intercourse or in schools, or the printing and circulation of publications in the language of the group. 

(2)   Destroying or preventing the use of libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group' (emphasis added). 

              If the Hague Recommendations were to be implemented, linguistic genocide in education could be stopped and children would have some of the most vital linguistic human rights. Several books elaborate how this can be done in practise (e.g. Cummins & Corson, eds 1997, Heugh et al., eds 1995, Hinton & Hale, eds 2002, Huss 1999, Huss et al., eds 2002, Klaus, in press, Lipka et al., 1998, May, ed. 1999, Skutnabb-Kangas, ed. 1995,  Skutnabb-Kangas & García 1995, Thomas & Collier 2002). Turkey does not implement the Hague Recommendations at all in the Reform Package but continues the genocidal, assimilationist educational policies.. 

              Rodolfo Stavenhagen is one of the world's most respected anthropologists. He has worked much with the United Nations, also as the Vice-Chancellor of the United Nations University in Tokyo. The pessimistic (but realistic) assessment by Stavenhagen (1995: 76-77) seems to fit exactly what Turkey is doing: 
             Too often, policies of national integration, of national cultural development, actually imply a policy of ethnocide, that is, the wilful destruction of cultural groups [...] The cultural development of peoples, whether minorities or majorities, must be considered within the framework of the right of peoples to self-determination, which by accepted international standards is the fundamental human right, in the absence of which all other human rights cannot really be enjoyed [...] governments fear that if minority peoples hold the right to self-determination in the sense of a right to full political independence, then existing States might break up. [...] State interests  thus are still more powerful at the present time than the human rights of peoples (emphasis added). 
 

5. Are the Kurds a minority that should have human rights accorded to minorities? 
Turkey has so far claimed that they do not have any national or ethnic minorities, only religious minorities. This means that the Kurds have, according to this interpretation, not had the right to the protection granted to minorities in international law. Are the Turks right in claiming this? Do they in fact fulfill international standards? I will in this section examine whether Kurds are a minority or not. This question should not in any way preclude the possibility that Kurds see themselves as a nation, can be seen as a nation, and are a nation in terms of international law, with the right to complete self-determination, including independence if they so choose - we are here only looking at a minimum of protection that the Kurds should in any case have, regardless of whether they are recognized by turkey (or other states) as a nation. 

              There is no definition of a minority that would be universally accepted in international law[17], but most definitions are very similar indeed. 'Most definitions use as defining characteristics a combination of the following: 

A. Numbers[18]; 
B. Dominance is used in some but not others ('in an inferior and non-dominant position', Andr?sek 1989: 60; 'in a non-dominant position', Capotorti 1979: 96); 
C. Ethnic or religious or linguistic traits, features or characteristics, or cultural bonds and ties which are (markedly) different from those of the rest of the population (in most definitions); 
D. A will/wish (if only implicit) to safeguard, or preserve, or strengthen the patterns of life and behaviour, or culture, or traditions, or religion, or language of the group is specifically mentioned in most definitions (e.g. Capotorti 1979: 96). Language is included in most but not all definitions (e.g. not in Andr?sek's definition 1989: 60). 
E. Citizenship/nationality in the state concerned is required in most definitions in charters and covenants as part of the definition, i.e. minorities are defined so as to give national or regional minorities more rights than to immigrants and refugees (who, by definition, are considered non-national and non-regional). In contrast, academic definitions for research purposes often make no mention of nationality as a criterion.' (Skutnabb-Kangas 2000: 489-490). 

             As an example of a broad definition, I present my own definition (from Skutnabb-Kangas & Phillipson 1994: 107, Note 2; Skutnabb-Kangas 2000: 491), which is based on my reformulation of the definition by the Council of Europe Commission for Democracy through Law (91) 7, Art. 2[19]. 

'A group which is smaller in number than the rest of the population of a State, whose members have ethnic, religious or linguistic features different from those of the rest of the population, and are guided, if only implicitly, by the will to safeguard their culture, traditions, religion or language. 

              Any group coming within the terms of this definition shall be treated as an ethnic, religious or linguistic minority. 

              To belong to a minority shall be a matter of individual choice.' 

              I have in this definition omitted the requirement of citizenship ('who are nationals of that State'), because a forced change of citizenship to my mind cannot be required in order to be able to enjoy basic human rights[20]. Besides, the groups of Kurds whose conditions we are discussing in Turkey are citizens of Turkey anyway - this becomes an important issue only when we think of one of the 16 conditions in the coming educational regulation which demands that the teachers who teach Kurdish as a subject have to be Turkish citizens. 

              As we can see, the Kurds fulfill all the criteria: 

1. they are as a group 'smaller in number than the rest of the population of the Turkish State; 
2. they are in a non-dominant position; 
3. they 'have … linguistic features different from those of the rest of the population'; and 
4. they have, through their organizations and otherwise, shown 'the will to safeguard their culture, traditions … or language.' 

Therefore, the Kurds are a national linguistic minority to whom the European Charter for Regional or Minority Languages and the Framework Convention for the Protection of National Minorities should apply. If an individual claims that she belongs to a national minority, and the State claims that such a national linguistic minority does not exist, there is a conflict, and the State may refuse to grant the minority person or group rights which it has accorded or might accord to national minorities. In many definitions of minority, minority rights thus become conditional on the acceptance by the State of the existence of a minority in the first place. According to the definition above (and this part was suggested by Council of Europe itself, and has been repeated in several international law documents), minority status does NOT depend on the acceptance of the State, but is either 'objectively' ('coming within the terms of this definition') or subjectively verifiable ('a matter of individual choice'). This interpretation has been confirmed by the UN Human Rights Committee in 1994. They reinterpreted Article 27 of the UN International Covenant on Civil and Political Rights (1966, in force since 1976) in a General Comment of 6 April 1994 (UN Doc. CCPR/C/21/Rev.1/Add.5, 1994). Article 27 is still the most far-reaching Article in (binding) human rights law granting linguistic rights: 
 

              "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 other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language." 

Until the reinterpretation, the Article was interpreted as
* excluding (im)migrants (who have not been seen as minorities); 
* excluding groups (even if they are citizens) which are not recognised as minorities by the State; 
* only conferring some protection against discrimination (= "negative rights") but not a positive right to maintain or even use one's language; 
* not imposing any obligations on the States. 

              The UN Human Rights Committee now sees the Article as 
* protecting all individuals on the State's territory or under its jurisdiction (i.e. also immigrants and refugees), irrespective of whether they belong to the minorities specified in the Article or not; 
* stating that the existence of a minority does not depend on a decision by the State but requires to be established by objective criteria; 
* recognizing the existence of a "right"; 
* imposing positive obligations on the States. 

              For Kurds, this means that Turkey (and other countries!) minimally have to see the Kurds as a minority, protected by Article 27. Likewise, the reinterpretation means that minorities, including the Kurds, are supposed to have positive language rights, not only the negative right of protection against discrimination. The states where Kurds live, especially of course those where there are large numbers, and in our case, especially Turkey, thus do have positive obligations towards the Kurds as a minority. 

  
6. Self-determination, "ethnic conflict", and linguistic human rights 
  Minorities are up against almost impossible odds when they try to get access to basic human rights that most dominant language speakers take for granted. Educational LHRs, especially the right to learn one's mother tongue fully and properly, orally - when this is physiologically possible - and in writing, seem to among the most important rights that minorities and indigenous peoples want. Mother tongue medium education is part of the minorities' important demands to have the collective right to exist and reproduce themselves as a distinct collectivity both respected and formally legalised. One can see the importance of the twin demands of self-determination and mother tongue medium education in conflict prevention work in central and eastern Europe, as the OSCE High Commissioner on National Minorities has done (e.g. van der Stoel 1997: 153). It is equally clear in Africa and Asia, where, for instance, 'insurgents in Ethiopia have over the years, placed the use of native languages at the centre of their demands for autonomy and self-determination.' (Prah 1995: 7). Or in Latin America, as we see in Subcommandante Marcos' writings. 

              If a state does not grant basic linguistic human rights (LHRs), including educational language rights, to minorities and indigenous peoples, this lack of rights is what often leads to and/or can be used to mobilisation of sentiments which can then be labelled "ethnic conflicts", especially in situations where linguistic and ethnic borders or boundaries coincide with economic boundaries or other boundaries where linguistically and ethnically defined groups differ in terms of relative political power. If legitimate demands for some kind of self-determination are not met, be it demands about cultural autonomy or about more regional economic or political autonomy, this may often lead to demands for secession. Thus granting education- and language-based rights to minorities can and should often be part of conflict prevention. The whole problematic is beautifully addressed by Subcommandante Marcos in an interview where he, addressing the fear of fragmentation that many states seem to have, also draws the connections between collective rights, peace or "ethnic" conflict, and globalisation: 
 

Our aim is to get the Mexican Congress to recognise the identity of indigenous people as 'collective subjects' by right. Mexico's constitution doesn't recognise Indians. We want the government to accept that Mexico has a variety of peoples; that our indigenous peoples have their own political, social and economic forms of organisation, and that they have a strong connection to the land, to their communities, their roots and their history. 

We are not asking for an autonomy that will exclude others. We are not calling for independence. We don't want to proclaim the birth of the Maya nation, or fragment the country into lots of small indigenous countries. We are just asking for the recognition of the rights of an important part of Mexican society which has its own forms of organisation that it wants to be legally recognised. 

Our aim is peace. A peace based on a dialogue which is not a sham. A dialogue that will lay the groundwork for rebuilding Chiapas and make it possible for the EZNL to enter ordinary political life. Peace can only be had by recognising the autonomy of indigenous peoples. This recognition is an important precondition for the EZNL to end its clandestine existence, give up armed struggle, participate openly in regular politics and also fight the dangers of globalisation (from Ramonet 2001: 1). 

Marcos also emphasized the demand for mother tongue medium education as one of the important motivating forces for and demands during the Zapatista march in February/March 2001 from Chiapas to Mexico City, together with local self-determination (reported by Jens Lohmann in Information 13 March 2001). 

                      These words could just as well come from many of my Kurdish colleagues. They want to be seen as equal negotiators in a dialogue about the best way to organise their lives together with others living in the same area. This presupposes that they have both basic individual human rights, including linguistic and educational human rights, and the collective right to reproduce themselves as a minority or as a nation, according to their own choice. 

                      Summing up, we could create a parallel to peace researcher Johan Galtung's (1996) distinction between negative and positive peace (where negative peace is only absence of war whereas positive peace in addition means positive well-being of everybody) and call the results negative, defensive, democracy (which is what the lack of LHRs in education, one sign of lack of democracy, initially forces dominated groups to try to achieve) and positive, pro-active, democracy (which is what many of us advocate). For minorities, to be able to defend and promote their linguistic human rights, including the right to mother tongue medium education, which is one of the main prerequisites for the minority to be able to reproduce itself as a minority, certain prerequisites are needed. These can be analysed in terms of what kind of sticks, carrots and ideas minorities need for both types of democracy: 
 

Figure 1. Prerequisites for negative or positive democracy: what does a minority need? 
 

STICKS

CARROTS

IDEAS

  
 

Positive democracy - PRO-ACTIVE

Enough political power to use sticks if needed (and wanted)	Enough material resources to be able to bargain as an equal partner	Enough own innovative ideas to be able to convince others; access to all discourses where decisions for the whole society are made
POLITICAL POWER	ECONOMIC POWER	LINGUISTIC AND CULTURAL (incl. identity) CAPITAL; SYMBOLIC POWER

Leads to equity of outcome

Turkey does not grant Kurds even negative rights, through the Reform package. Non-discrimination prescriptions, negative rights, are not enough even for entering negative democracy. Without negative democracy, minority and dominated group demands cannot even start being voiced. Without positive democracy their demands will not be heard. 

                      What is the role of the EU in solving or upholding the conflict? Is the EU the tail, being wagged by the American dog, sniffing at Turkish NATO bases, control of the Iraqi and Russian oil, and control of Kurdistan's water and other resources? Is EU, with the granting of 100 Million Euro to support the Turkish Basic Education Reform, especially in the 12 "eastern and south-eastern provinces" (Ankara, Turkish Daily News, 10 October 2002) supporting the EU-and democracy-friendly forces in Turkey - or is EU strengthening the subtractive monolingual Turkish-medium nationalistic education in Kurdistan which is "not in line with international standards" (The Hague Recommendations, see above)? My modest hope is that the EU decision makers at least should know something about the situation - judging by the present Danish Prime Minister's recent press statements since the end of 2001this is not the case. 

Abbreviations: 
ECHR: European Convention on Human Rights and Fundamental Freedoms
Framework Convention: (Council of Europe’s) Framework Convention for the Protection of National Minorities
ICCPR: UN International Covenant on Civil and Political Rights
ICESCR: UN International Covenant on Economic, Social and Cultural Rights
OSCE: Organisation for Security and Co-operation in Europe
UN Universal Declaration: United Nations Universal Declaration of Human Rights
UN Charter: United Nations Charter of Human Rights
UN (Minorities) Declaration: UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.

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Phillipson, R. ed. 2000. Rights to language. Equity, power and education. Mahwah, NJ: Lawrence Erlbaum Associates. 

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Phillipson, R. and T. Skutnabb-Kangas 1997. "Linguistic human rights and English in Europe". World Englishes 16:1, 1997, Special issue, English in Europe. Eds. M.G. Deneire and M. Goethals. 27-43. 

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Skutnabb-Kangas, T. in press a. "Why should the world's linguistic diversity be maintained". Plenary paper at the International Conference Small Languages in the 21st Century Europe, 19-21 April 2001. Riga, Latvia. In press, in conference publication, ed. by Ina Druviete. 
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[1] I would like to thank Şevki Kizilocak and Bert Cornillie for getting me tens of documents - in English - about the recent Reform Package adopted by the Turkish Parliament. 

[2] See the list of abbreviations at the end. 

[3] See also Rothenberger, compiler, 1997, for his other speeches. 

[4] The first protection can be found, for instance, in paragraph 31 of the Copenhagen Document, Articles 2(1) and 26 of the ICCPR, Article 14 of the ECHR, Article 4 of the Framework Convention, and Article 3(11) of the 1992 UN [Minorities] Declaration (ibid.). 

[5] The second protection appears, for example, in paragraph 32 of the Copenhagen Document, Article 27 of the ICCPR, Article 5 of the Framework Convention, and Article 2(1) of the 1992 UN Declaration (ibid.). 

[6] See Skutnabb-Kangas & Bucak 1994 and Skutnabb-Kangas 2000: 512 

[7] The Table is based on both UNESCO 2000 and updatings from the relevant web-site http://www.conventions.coe.int/treaty/EN/cadreprincipal.htm), downloaded 15th August 2002. 

[8] I have not considered reservations and declarations here – in a more detailed assessment these should obviously be considered.

[9] Frowein, Hofmann & Oeter's edited books about minority rights in European States 1994 and 1995 give excellent overviews of Europe. 

[10] See, e.g., Bucak 1989, Guillorel/Koubi (red.) 1999, Human Rights in Kurdistan 1990, Kontra et al. (eds.) 1999, May 2001, Phillipson, ed. 2000, Phillipson & Skutnabb-Kangas 1994, 1995, 1996, 1997, 1999, Skutnabb-Kangas 1984, 1996 a, b, 1999, 2000, 2002, in press a, b, Skutnabb-Kangas & Phillipson 1994, 1997, 1998, de Varennes 1996). 

[11] November 1994, in force since February 1998 

[12]  June 1992, in force since March 1998.

[13] Even if the term used is "national minority", the guidelines also apply to other groups, for instance immigrated minorities, and one does NOT need to be a citizen in order to be protected by the guidelines (both these observations follow from the UN Human Rights Committee's General Comment on Article 27, see section 5. 

[14] Despite trying, I have not been able to get the full list, verbatim, in an English translation, by 13th October 2002 - this list and all the quotes have been put together from several sources from the Internet, given in the bibliography; no page numbers can be given because of this. 

[15] Apparently the Turkish military have been training their staff in the Kurdish language for 11 years. 

[16] ."The dam is one of 22 across the Tigris and Euphrates rivers, part of the Southeast Anatolia Project, GAP) that Turkey is planning to build near the Kurdish city of Batman. The completed Atatürk dam alone has already displaced 50,000 people. The Ilisu dam will submerge fifty villages and displace 20,000 people, most of them Kurds. The dams will allow Turkey to control the flow of water to Syria and Iraq" (Skutnabb-Kangas 2000: 318). 

[17] See Capotorti 1979 for the difficulty of defining minorities; see also Andr?sek 1989, Packer 1993. 

[18] It has to be remembered that these definitions are for the purposes of international law, so that it is possible to see which groups are entitled to protection that is granted to minorities. If a group is a majority in terms of numbers but in a dominated position, they may have rights on the basis of other characteristics, e.g. status, class, gender, or the like, but they are not a minority. From a sociological point of view, we may then speak about a minorized majority, i.e. a majority that suffers from a similar type of discrimination that minorities often face. 

[19]. This Draft was never accepted by Council of Europe, and the one that replaced it and became the Framework Convention for the Protection of National Minorities does not define minorities. 

[20]. This interpretation has since been borne out by the UN Human Rights Commission's General Comment on Article 27.