By Andrei Dragan.

The French historical predilection for centralization and a unitary state is not a new phenomenon. It is even older than the French Revolution, older than the modern French state itself. Even compared with the Ancien Régime, with its patchwork of feudal and ecclesiastical estates and mosaic of customs and laws, post-Revolutionary France did not represent a break in the process of centralization, but a mere speeding-up of a process that had already started before it was even born. But what made the French understanding of l’état and la nation distinct from its neighbors was its fundamentally assimilationist philosophy which, in the name of egalitarianism, was particularly hostile to differential treatment and dividing France into groups.

In this broad context, it seems that the Conseil Constitutionnel’s Decision 99-412 of 1999^[1] on whether the ratification of the European Charter for Regional or Minority Languages (hereinafter, the Charter) requires constitutional amendments is just declaring a state of affairs whose perception is already deeply rooted in French thought, including French legal theory. In this essay, I intend on showing that, while it should not have been expected for the Conseil to depart from its previous case-law, this decision could have had a different outcome if it would have engaged in a more thorough analysis of the Charter and the minority rights protection framework under the Council of Europe, as well as of the Vienna Convention on the Law of Treaties (hereinafter, the VCLT).

A brief summary is in order: after signing the Charter in May of 1999, France was also supposed to ratify it and, consequently, transpose its guarantees into French domestic law. Then, according to article 54 of the 1958 Constitution, the President referred the Charter to the Council so that it could decide whether its provisions were compatible with the Constitution in its form at the time. Consequently, the Council found that, since the Charter confers rights to “groups” within “territories,” including a right to use languages other than French in “public life” (i.e. in front of public authorities), it goes against several key constitutional principles, such as indivisibility of the French Republic, equality before the law and the unicity of the French people.^[2]

What is important to remember, however, is that the French Government was well aware of the fact that some of the Charter’s provisions might be seen by the Council as contrary to the Constitution. It, therefore, prepared an “interpretative statement.” Although only briefly mentioned in the decision’s text itself, this statement^[3] is, I think, crucial to showing where and how the Council erred in its judgment. For this, I will put forth two arguments: first, that the Council disregarded this statement, when it should have taken it into consideration as being inseparable from the Charter; and, second, that, had it done this, it would have come to a different decision. Therefore, the first argument relates to the status of the interpretative statement, while the second goes deeper into the substance of the statement.

I’ll start with my first argument. The main reason why I consider that the Council should have taken the Charter and the government’s statement together as a holistic package is due to the fact that this way, the rules of interpreting treaties contained in the VCLT would have been taken into consideration. If one carefully reads article 31 of the VCLT, one would find that, for the purpose of interpreting a treaty, it should be considered to comprise also, inter alia, “any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions.”^[4] When the French Government decided to attach this “statement” to its signing of the Charter, it basically made a declaration of interpretation. Thus, it is according to this declaration that the Charter should have been interpreted in the French context and not in a vacuum or in abstracto. Having dismissed the declaration, the Council robbed itself of a particularly useful interpretative instrument which could have helped it gain a better understanding of the Charter and how it operates.

Now on to the substantive part. Back in 1998, jurist Guy Carcassonne drafted a report for the (then) Prime Minister Jospin recommending that an interpretative declaration accompany the French signing of the Charter in order to make it clear, among other things, that the term “group,” present in the text of the Charter in several provisions, would be interpreted by France to refer not to rights-claiming autonomous collectivities, but to mere totalities of individuals.^[5] Knowing the Council’s case-law, this was a smart move, as otherwise, the signers thought at that time, the Council might make use of its reasoning in the decision on Corsica^[6] to find incompatibilities between the Charter and the Constitution. In this last staple decision, the Council found that the legislation under review’s referral to the “Corsican people” as part of the French people was unconstitutional since the “Constitution only recognizes the French people, made up of all French citizens regardless of origin, race or religion.”^[7] It was therefore reasonable to expect the Council to find provisions, either from national legislation or, as in this case, treaties, which purported to recognize “peoples” or “groups” as distinct entities.

In addition to the above, the final text of the interpretative declaration also made sure that France understands the Charter not to confer collective rights to these groups,^[8] that the possibility to use a regional language does not affect the official status of the French language,^[9] that the teaching and studying in a regional or minority language remains optional and does not affect the general rights and obligations of schools which choose this form of education^[10] and, finally, that the French-language version of legislative acts also translated into regional and minority languages still remain the official version in relation to public life.^[11] Would the Council have had the inspiration to take these aspects of interpretation into consideration, it would have found that the Charter’s provisions would probably not have collided with the principles mentioned above.^[12]

However, even if we were to dismiss the declaration in its entirety, a closer look at the Charter and other Council of Europe treaties dealing with minority rights, such as the Framework Convention for the Protection of National Minorities (or FCNM), would still not warrant any of the suspicions of the Council. Like its sister treaty, the FCNM, the Charter is the product of a post-Cold War resurgence of interest in minority rights and issues. However, what is particular to these treaties is that they specifically shy away from granting group rights (in the sense understood by the Council at least – that is, rights which can be claimed and used by groups as direct beneficiaries). And while the FCNM does indeed prescribe rights for individual beneficiaries and state obligations of various intensities,^[13] the Charter does not contain rights at all, but mere obligations and recommendations for states. If we read the Explanatory Report to the Charter,^[14] this is all the more obvious:

The concept of language as used in the charter focuses primarily on the cultural function of language. That is why it is not defined subjectively in such a way as to consecrate an individual right, that is the right to speak “one’s own language”. … Consequently, the charter is able to refrain from defining the concept of linguistic minorities, since its aim is not to stipulate the rights of ethnic and/or cultural minority groups, but to protect and promote regional or minority languages as such^[15] (emphasis added).

The same is true for the notion of “territory,” which does not create autonomous regions, but simply refers to a geographical delimitation.^[16] Therefore, even if the Council ultimately decided to dismiss the Government’s declaration of interpretation, it still should not have found the incompatibilities that it did. The declaration was ultimately a reasonable and truthful account of how the Charter would have functioned, a token of good will aimed at helping the Council correctly and quickly ascertain the nature of this treaty though to no avail.

Following this decision, the only predictable step to take towards ratifying the Charter was to change the Constitution so that it prevents further conflicts. Promised by François Hollande, the issue of the ratification of the Charter was again put on the table of the French legislature, and a constitutional amendment was drafted and submitted to the Conseil d’État in 2015. However, relying on the Constitutional Council’s decision previously discussed, the Conseil d’État found^[17] similar incompatibilities and seems to have given the Charter’s provisions the same interpretation in the sense that it gives groups the right to use their languages in the public sphere.^[18] France’s supreme administrative judicial body, thus, fell into the same erroneous logic as its constitutional counterpart, and rejection of the proposal by the French legislature soon followed^[19] after a debate wrought with fears of France sliding into communitarianism and sectarianism.^[20]  Even to this day, France is one of the few European countries to have not ratified either the Framework Convention, or the Charter, notwithstanding their highly compromissory natures.

Andrei Dragan is currently an SjD candidate in Comparative Constitutional Law at Central European University in Budapest, Hungary. He also finished an LLM in Human Rights at Central European University as well as an LLM in European Union law and an LLB at West University in Timisoara, Romania. His main research interests include minority rights, multiculturalism, citizenship studies, European Union law and human rights.

^[1] Conseil constitutionnel [CC] [Constitutional Court] decision No. 99-412DC, June 15, 1999, Rec. 71.

^[2] Id. paras. 10-11.

^[3] Id. para. 4.

^[4] Vienna Convention on the Laws of Treaties art. 31, para. 3(a), Jan. 27, 1980, 1155 U.N.T.S. 331.

^[5] See Jean-Baptiste de Montvalon, Nouvel obstacle à la ratification de la Chartre des langues régionales [New obstacle to the ratification of the Charter for Regional Languages], LE MONDE (Aug. 1, 2015), https://www.lemonde.fr/societe/article/2015/08/01/les-langues-regionales-bientot-reconnues-par-la-constitution_4707451_3224.html.

^[6] Conseil constitutionnel [CC] [Constitutional Court] decision No. 91-290DC, May 9, 1991, Rec. 50.

^[7] Id. para. 13.

^[8] Karin Oellers-Frahm, European Charter for Regional and Minority Languages—minority group rights and compatibility with concepts of equality, nondiscrimination and national unity in French Constitution—reconciling official language with freedom of speech, 93 Am. J. Int’l L. 938, 940 (1999).

^[9] Id.

^[10] Id.

^[11] Id.

^[12] See Conseil constitutionnel, supra note 2.

^[13] These range from general principles to the classic prohibition of discrimination, the right to education, freedom of association and to qualified obligations which are limited in their greater deference given to states, take into consideration state resources and which can be easily spotted by wording such as “as far as possible” [art. 9(3)] ,“create conditions necessary (for cultural participation)” [art. 15] or “facilitating contacts between students and teachers of different communities”[art. 12]. Framework Convention for the Protection of National Minorities, arts. 9, 12, 15, opened for signature Feb. 1, 1995, C.E.T.S. No. 157.

^[14] Explanatory Report to the European Charter for Regional or Minority Languages, opened for signature Nov. 5, 1992, C.E.T.S. No. 148.

^[15] Id. para. 17.

^[16] Charter for Regional or Minority Languages supra note 14. See also Jean-Marie Woehrling, La Chartre européenne des langues régionales ou minoritaires–Un commentaire analytique [The European Charter for Regional or Minority Languages–An analytical commentary], (Council of Europe Publishing, 2005), 59-60.

^[17] Avis sur le project de loi constitutionnelle autorisant la ratification de la Charte européenne des langues régionales ou minoritaires [Constitutional Bill Authorizing Ratification of the European Charter for Regional or Minority Languages], Jul. 30, 2015, JUSC1514364L.

^[18] Id. para. 6.

^[19] See Le Senat rejette la Chartre des langues régionales : pourquoi la ratification coince encore et toujours ? [The Senate rejects the Charter for Regional Languages: Why the ratification keeps getting blocked], franceinfo (Oct. 27, 2015), https://www.francetvinfo.fr/elections/regionales/charte-des-langues-regionales-pourquoi-la-ratification-coince-encore-et-toujours_1147447.html.

^[20] See Geoffrey Roger, The langues de France and the European Charter for Regional or Minority Languages: Keeping Ratification at Bay Through Disinformation: 2014-2015, in French Language Policies and the Revitalization of Regional Languages in the 21st Century (M. Harrison & A. Joubert eds., 2019).