Personality versus Territoriality: Belgium and the Framework Convention for the Protection of National Minorities

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1 Resolution 1301 (2002). 2 Bart Dobbelaere, 'Juridisch gevecht over interpretatie van \abholz-resolutie kan beginnen. Raad van Europa vindt dat Vlaanderen Franstalige minderheid beter moet beschennen', De Standard (27 September 2002). 3 Parliamentary Assembly, Council of Europe , Recommendation 1201 (1993) (emphasis added).

4 European Commission for Democracy through Law ('Venice Commissiori ), `Opinion on Possible Groups of Persons to which the Framework Convention For the Protection of National Minorities Could be Applied in Belgium', CDL-AD(2002),1, 1, paragraph 12. 5 'Protection of Minorities in Belgium' Report, Committee on Legal Affairs and Human Rights, Rapporteur: Mrs. Lili Nabholz-Haidegger, CE Doc.9536 (5 September 2002).

6 A detailed account of the history of language policy falls beyond the scope of this article. For two excel- lent and concise English accounts, see Val R. Lorwin,'Belgium: Religion, Class and Language in National Politics' in Robert A. Dahl, Political Appositions in Western Demonacies (New Haven, 1966) and Els Witte, Jan Craeybeckx and Alain lleynen, Political History ofBelgium (Brussels, 2000). 7 Alexander B. Murphy, The Regional Dynamics ofLanguage Differentiation in Belgium (Chicago,1988), 50-1. 8 As Orts, a parliamentary representative proclaimed: 'As long as Belgian young people are not educated along the same lines, as long as the two races ... have not, by sharing a common education, effected an intellectual fusion, we will always have two races, and we will never have a nation, possessing one common character, one common spirit, one common name, we will have ... Flemings and Walloons, but we will not have Belgians' Orts cited (and translated) in Alexander B. Murphy, Ibid., 66.

9 After World War I, the districts of Eupen, Malmedy, Sankt-Vith and Moresnet (now Kelmis) were trans- ferred from Germany to Belgium. With approximately 70,000 inhabitants, they now make up the small German linguistic community. 10 Andre Alen (ed.), Treatise on Belgian Constitutional Law (Deventer, Boston,1992),18-9. 11 See the contribution by Dirk Jacobs in this volume,'Pacifying National Minorities in the Brussels Caoital Region: What About the Immigrant Minority Groups?'. 12 The statute of Brussels as a national capital attracted several thousand immigrants from both linguistic parts of the country. The pattern of immigration perpetuated existing class differentials: French-speaking immigrants sought employment in the (French-speaking) public sector, press or corporate sector. Flemish speakers were more likely employed as day-labourers, domestic servants or labourers, who started using the socially and culturally superior French as a higher language variant. The introduction of compulsory primary education in the second half of the nineteenth century first led to a shift from monolingualism to bilingual- ism. Next generation children would be raised in French only, thus giving the process of Frenchification even more momentum. See, Marleen Brans, `High Tech Problem-Solving in a Multi-Cultural State: the Case of Brussels', 3 Dutch Crossing (1993), 3-27; Els Witte and Harry van Velthoven, Language and Politics: the Belgian Case in a Historical Perspective (Brussels, 1999), 83-8.

13 Lode Wils, Van Clovis tot Happart (Leuven,1992), 262. 14 Murphy, Regional Dynamics ofLanguage D�erentiation ...,128.

15 Theo Luyckx and Marc Platel, Politieke Gescbiedenis van Belgie (Antwerp, 5`" ed.,1985), 519-25. 16 Andre Alen, Treatise..., 214; Francis Delperee, Le Droit Constitutionnel de la Belgique (Brussels, Paris, 2000), 325-7. 17 See 'Population de Droit Commune au 1 Janvier 2002', National Institute for Statistics Belgium at http: // for separate population data for each of the municipalities. 18 For an excellent overview, see Bart Distelmans and Jimmy Koppen,'Deel I - Hoofdlijnen in de ontwikkel- ing van de faciliteitenproblematiek', in Jimmy Koppen, Bart Distelmans and Rudi Janssens, Taalfaciliteiten in de Rand Ontwikkelingsl�nen, conflictgebieden en taalprakt�k (Brussels, 2002),15-12-1.

19 The publication of signposts in a minority language is not entirely clear. The province of Flemish-Brabant, in which the suburban facility communes are located, recently decided to replace all bilingual signposts located along provincial roads with monolingual signposts. It is argued that provincial, unlike e.g. municipal roads, do not exclusively or primarily target inhabitants of the facility communes. Therefore, the territori- ality principle can be strictly applied. See Jimmy Koppen,'Taalgebruik van bestuurders ten opzichte van bestuurden', in Koppen, Distelmans and Janssens, Taalfaciliteiten..., 153-4. 20 Jimmy Koppen,'Faciliteiten: permanente minderheidsrechten of uitdovende taaltegemoetkomingen gericht op integratie van de Franstalige inwijkelingen?', in Koppen, Distelmans and Janssens, Taalfaciliteiten..., 27-30.

21 Andre Alen, Treatise..., 215-9. 22 They may suspend municipal acts which, in their view, violate the provisions of the language laws, but a decision to annul them is made by ministers in the regional government. Such decisions are, of course, subject to a right of appeal to the Council of State. See Bart Distelmans,'Het Sint-liichielsakkoord: ver- sterking van de Vlaamse voogdij en nieuwe maatregelen ter bescherming van de Franstalige minderheid in de Rand', in Koppen, Distelmans and Janssens, Taalfaciliteiten,... 96-7. 23 Two constitutional reforms of the last decade have affected the monitoring of linguistic facilities in the suburban facility communes. The first reform resulted in the split of the bilingual province of Brabant into a Flemish and Walloon province (respectively Flemish-Brabant and Walloon-Brabant). As a result of this change, the suburban facility communes were made a part of Flemish-Brabant, and a centrally appointed government commissioner was attached to the governor of the new Flemish province to monitor the use of linguistic facilities in the six municipalities. The second, and more important change, affects the position of all facility communes. A 2001 constitutional amendment resulted in a transfer to the regional governments of the authority to legislate on the composition, functioning, organization and competencies of the prov- inces and municipalities (subregional or local governments). This implies that all public municipal actions are primarily screened by the regional and not the federal government. However, these changes leave intact the role of the central commissioners, the reporting function of the SCLS as well as the possibility of judi- cial redress via the Council of State. 24 The circular letter 'Peeters' addressed the provincial governors, the mayors and aldermen of the facility communes. A similar letter, issued by Luc Martens, the then Flemish Minister of Culture, Family and Social Welfare, pertained to the use of languages in the municipal councils for social assistance. Therefore it addressed the presidents of these councils.

25 Jimmy Koppen, `De Omzendbrief Peeters als climax van een communautair conflict', in Koppen, Distel- mans and Janssens, Taalfaciliteiten,... , 201-78. 26 Ibid. 267-78.

27 A detailed overview of all federal (national), regional, provincial and municipal election results can be found in the electoral databank, maintained by the Free University of Brussels (VUB).The databank can be con- sulted at 28 Once territoriality was established, a bilingual university in (Flemish) Leuven, attracting several thousand French-speaking professors and university students was felt to be out of place. Flemish politicians and the public feared that French-speakers could ask for linguistic facilities in Leuven and its suburban villages. Major student protests, and a government crisis resulted in a decision to split the university into a Dutch- and French-speaking university. The Belgian government subsidized the building of a new, French-speaking university campus in Louvain-la-Neuve, 20 kilometers to the south, within the French linguistic zone. 29 More precisely, Brussels-Halle-Vilvoorde, an electoral district which also comprises the six suburban municipalities.

30 A municipality comprising no more than 4,328 inhabitants, the communal politics of Voeren/Fourons brought several national governments of the 1980s to the brink of collapse. As indicated above, in 1963 Voeren/Fourons was transferred from the French province of Liege to the Flemish province of Limburg. For most of the 1980s, the municipality was lead by Jose Happart, a French-speaking social democrat who headed a municipal electoral list, named Retour a Liege (return to Liege). Happart developed into a figure of high symbolical importance for the French-speaking social democrats. He (and his twin brother) have consistently attracted among the highest number of preferential votes in recent national (and European) parliamentary elections among French-speaking Belgian voters. In 1986, Mr. Happart, currently a minister in the Walloon regional government, had to give up his position as mayor, following a controversial ruling by Belgium's highest administrative court forcing him to resign from office (due to his inability to speak Dutch). Furthermore, after the 2000 municipal elections, Retour à Liege lost its majority position to a Dutch-speaking electoral list. The recent arrival of Dutch-speaking immigrants from nearby Holland, who, as of 2000, were allowed to cast their vote in municipal elections is said to have tilted the balance in favour of the Dutch-speakers. Likewise, the arrival of non-Belgian citizens in the suburban municipalities with a special linguistic status is said to have contributed to their process of'Frenchification'. 31 Even in the 19 municipalities of the Brussels Capital Region, local elections often feature bilingual electoral lists.

32 Source: Koppen, 'De Omzendbrief-Peeters ...', 231-3, and Electoral Databank, VUB, Brussels at http: // (my calculations). 33 See and

34 See Carrefour,'Le Site des Francophones de la Peripherie Bruxelloise' at 35 The remaining figures are 9.2 per cent for Linkebeek, 9.9 per cent for Drogenbos, 16.8 per cent for Sint- Genesius Rode and 18.1 per cent in Wezembeek. See, Rudi Janssens, `Taalgebruik in de Faciliteitengemeen- ten', in Koppen, Distelmans and Janssens, Taalfaciliteiten ..., 288, Table 3. 36 Janssens,'Taalgebruik ...', 290, Table 5.

37 In particular Will Kymlicka, Multicultural Citizenship (Oxford, 1995); Will Kymlicka and Wayne Norman, (eds.), Citiunship in Diverse Societies (Oxford, 2000); Will Kymlicka, Politics in the lérnacular. Nationalism, Multiculturalism and Citizenship (Oxford, 2001), but for arguments against collective group or multicultural rights, see Brian Bam, Culture and Equality (Cambridge, 2001). 38 In particular, Will Kymlicka and Alan Patten (eds.), Language Rigbts and Political Theory (Oxford, 2003); Alan Patten, 'Political Theory and Language Policr', 29(5) Political Theory (2001), 691-715; Philippe van Paris, Rawls, \Iachiavel: quelle philosophie politique pour une democratie plurilingue�, at http: //; Id,'Linguistic Justice', 1(1) Politics, Philosophy economics (2002), 59-74; Id., "Ihe Ground Floor of the World: On the Socio-economic Consequences of Linguistic Globalization', 21(2), International Palitical Science Reviem (2000), 217-33 and Abram de Swaan, Words of the World (Cambridge, 2001). 39 Denise G. R�aume, 'Official Language Rights: Intrinsic Value and the Protection of Difference', in Kym- licka and Norman, Citizenship..., 252. 40 Although education is primarily a competence of the provinces, the federal policy of bilingualism promotes four types of schools: English schools for Anglophone children, offering French as a second language; French schools for Francophones in which English is taught as a second language; mixed schools providing some education in the regional minority· language, but also offering classes in the regional majority language, the latter taught to children representing both linguistic groups; 'immersion schools and classes' in which

Anglophone children across Canada, in the early years of education, receive more than half of their school- ing in French. See, Maxwell F Yalden, 'The Bilingual Experience in Canada, in Martin Ridge (ed.), The New Bilingualism. An American Dilemma (Los Angeles,1981), 71-89. 41 Senator Gerald A Beaudoin, 'Canada - the Constitutional Protection of Minorities in Canada, in Venice Commission, Protection ofMinorities in Federal and Regional States, CDL-MIN (1994)007-e-prov-restr, at 42 Kenneth Mc Roberts, Quebec - Social Change and Political Cruis (Toronto, 3rd ed., 1993). 43 Kenneth D. McRae, Conflict and Compromise in Multilingual Societies (Waterloo, Canada, 1983).

44 However, because German-speakers make up more than 80 per cent of the total Swiss population, Jean Laponce remarks that'\ inety percent of [federal] documents intended for publication are written originally in German... the linguistic majorities of Switzerland have, de facto if not de jure, accepted the preponder- ance of [German] in the central federal institutions as a set-off against rigid linguistic internal frontiers that allow cantonal unilingualism... the francophone officials who gets a plum posting to Bern goes there with no illusions -he or she will have, with few exceptions, to operate in Germati J._-1. Laponce, Langunges and their Territories (Toronto, 1987), 175-7. 45 Kenneth D. \IcRae,'Constitutional and Institutional Adaptation to Plurilingualism', in McRae,, Conflict... , 119-52. 46 In principle, these cantons could open up their educational schools to minorities should the 'numbers so desire', but Kenneth �lcRae mentions that French-speaking Geneva has done so without restrictions, as far as education in a private German school is concerned, while a comparable school in German-speaking Zurich, could only offer instruction in French for a period of three A-ears. �lcRae, Conflict...,1-t8.

47 McRae, 'Constitutional and Institutional Adaptation...', in McRae, Conflict..., 172-83. 48 Article 3, translated by Daniele Conversi, 'The Smooth Transition: Spain's 1978 Constitution and the Nationalities Question', 4, National Identities (2002), 223-44. 49 The Catalan government has also recognized Aranese as an official language within Catalonia. See Ibid., 233. 50 Even the majority status of Catalan in Catalonia is debatable, as studies have shown that extensive immigra- tion during the Franco era resulted in 53 per cent of all Catalans being native Castilian speakers, 40 per cent being native Catalan speakers, and the remaining 6 per cent being brought up in bilingual families.

51 Elisa Roller, 'When Does Language Become Exclusivist? Linguistic Politics in Catalonia', 4 Nùcional Iden- tities (2002), 273-89. 52 Ibid., 283-85. 53 Alan Patten,'What Kind of Bilingualism?', in Kymlicka and Patten (eds.), Language Rigbts ..., 296-321.

54 Will Kymlicka, Multicultural Citizenship (Oxford,1995), 82-4. 55 Alan Patten, 'What Kind of Bilingualism?', 307-10.

56 By way of example, the following web-link testifies the well-filled cultural agenda serving the Frenchspeaking community in ICraainem. 57 Alan Patten,'What Kind of Bilingualism?', 310-3. 58 Wilfried Swenden, Asymmetric Federalism and Coalition-Making in Belgium', 3 Publius: ]he Journal of Federalism (2002), 67-87. 59 Although lacking intraparty accommodative mechanisms, French minority interests cannot be ignored at the national level, and Flemish minority interests must be taken into consideration in Brussels. The parity rule in the federal executive, the double majority requirements for legislation touching upon community sensitive issues, as well as the alarm-bell mechanism, serve as institutional devices securing the accom- modation of the French-speaking community. The chapter by Wouter Pas in this volume illustrates that similar consociational mechanisms are at work to protect Flemish minority interests at the level of the Brussels'regional government. However, similar `minority'-protecting guarantees have not been devised for the Governance of the bilingual (Brussels) and certainly facility municipalities. Arguably, in the case of the suburban communes such mechanisms would serve the interests of the local minority (Dutch-speakers). More fundamentally, while introducing power-sharing mechanisms (e.g. requiring a mixed Dutch-French composition of the college of mayor and aldermen) could protect the minority, it could also 'institutionalize' segmentation, e.g. by fostering linguistically split electoral lists to arise where at present, these may still be of a mixed nature.

60 Source: (Belgian electoral databank). 61 Patten, `What Kind of Bilingualism?', 313-21. 62 Van Parijs, `The Ground Floor of the World ...', 219.

63 'In a world of contact and movement, there is no other means of durably protecting vulnerable languages (and therefore, no other means of sustainably securing linguistic peace) than the firm assertion of the ter- ritoriality principle: when people intend settling in a particular territory, they should kindly but firmly be asked to have the humility to learn the local language, however widely their language is spoken, however superior they sincerely believe their own language to be.' Van Parijs, 'The Ground Floor of the World ...', 219. 64 The Dutch sociologist of language, Abram de Swaan, has calculated a'Q-value'for each world language. The `value' measures the sociolinguistic strength of a language, on the basis of two criteria. First, the share of inhabitants living within a certain region, using that language as their first or native language, and secondly, the share of nonnative speakers living within the same region, speaking it as a second, third or fourth language. On the basis of the first criterion for instance, the European scores for German are higher than the scores for French and English. However, since the share of Europeans who speak English (and to a lesser degree also French) as a second or third language is substantially higher than the share of Europe- ans who speak German as a second, third or fourth language, the total Qvalues of English and French are substantially higher than the total Qvalues of German.1his means that when both languages (English and German) are exposed to each other in equal quantities, and the principle of territoriality is not applied to protect the language with the lower Q-value, citizens will resort to English as the ideal connecting language. In one or two generations, everyone will speak English. Similarly, the argument could be made that since Dutch has a considerably lower Qvalue than French, French will be used as the connecting language. See Abram de Swaan, Words oftbe World (Cambridge, 2001). 65 Janssens, 'Taalgebruik ...', 285-339. 66 Therefore, within the suburban facility communes, the share of Dutch-speaking respondents varies between 12.1 per cent in Wezembeek and 24.3 per cent in Drogenbos, the share of French speaking respondents fluctuates between 46.6 per cent in Drogenbos and 60.7 per cent in Wezembeek; the share of traditional bilingual respondents varies between 7.9 per cent in Kraainem and 15.0 per cent in Wezembeek; the share of newly bilingual respondents ranges between 2.8 per cent in Wezembeek and 8.7 per cent in Drogenbos and the share of respondents with a native Dutch- or French-speaking parent varies between 5S per cent in Wemmel and 15.8 per cent in Kraainem. In the case of three Flemish suburban communes, without facili-

ties, the share of Dutch-speakers is generally higher (between 43.6 per cent in Tervuren and 58.7 per cent in Sint-Pieters Leeuw), while the share of French-speakers is lower (on average 24.1 per cent). See Janssens, 'Taalgebruik ...', 297, Table 9. 67 See Janssens, 'Taalgebruik ...', 299, Table 10. Even in suburban communes without facilities, knowledge of French is more widespread than knowledge of Dutch, although Dutch is better known, and French is somewhat less well known than in the suburban facility communes. For instance, while all respondents from a French, traditionally bilingual and newly bilingual background still claim to be fluent in French, the share claiming to also master Dutch stands at 37.4, 90.9 and 40.0 per cent respectively. Conversely, only 83.9 per cent of Dutch-speakers claim to be fluent in French. 68 In the non-facility suburban municipalities, English is only better known by two groups of respondents: newly bilingual families (50.0 per cent) and non-Dutch or native-French-speakers (60.0 per cent).

69 Unfortunately, no hard empirical data can be given to sustain this claim, so that one would have to rely once more on the results for municipal elections. 70 Nabholz-Haidegge5 'Protection of Minorities ...', paras. 54-61. 71 Nabholz-Haidegger mentions that 'the compliance of the Flemish ministerial circular letters with the pro- visions and the spirit of the Framework Convention might have to be reviewed.' As indicated earlier, most Flemish MPs are willing to review the restrictive interpretation of the facilities. Furthermore, she empha- sizes that 'French-speakers living in Flanders outside of the communes with facilities would not have the right to schooling in their language'. The only measure of potential controversy therefore is the recommen- dation to open up 'minority schools which are located in the facility municipalities to children of parents not resident in the six communes with linguistic facilities in Brussels'. Ibid , paras. 54-61 (my emphasis).


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