A 'Bilingual' Approach to Language Rights: How Dialogue between US and International Human Rights Law May Improve the Language Rights Framework

Abstract

Despite the demand for attention to language rights concerns, no coherent structure for legal analysis of language rights exists either in the United States or at the level of international human rights law. This article turns to the important differences that exist between the U.S. and international human rights law approaches to language rights as fertile ground for exchange of ideas with the goal of improving the consideration of language claims. The United States legal system relies on a non-discrimination civil rights approach to language claims, which treats language largely as a handicap for non-English speakers. The international human rights law approach is centered on language as an essential and valuable element of culture and identity. The article urges the U.S. legal system to adopt elements of the human rights cultural approach and conversely suggests that international human rights law should augment its approach with more stringent U.S.-style non-discrimination standards. The article posits that more comprehensive and just treatment of language rights would result if each legal system addressed both equal protection and cultural identity concerns in recognizing language rights.The article then proposes a doctrinal framework for analysis that would implement this approach to language rights. The framework begins with the three factors identified as determinative, yet largely invisible, in the current handling of language rights claims under both the cultural and non-discrimination approaches: 1) the private, public or quasi-public setting in which the right is sought to be exercised; 2) the negative or affirmative nature of the language right sought; and 3) the rights claimant’s monolingual or bilingual language fluency in the minority and majority languages. It utilizes these three factors to develop a scheme for recognition of specific language rights that builds on existing language rights concepts in the U.S. and international human rights systems but provides a more systematic structure for addressing language claims.