Solé i Durany, Joan Ramon

Revistes Catalanes amb Accés Obert

OPINION 
THE PRINCIPLE O F  
TERRITORIALITY AND THE 
PRESERVATION O F  THE 
N A T I O N A L  AND 
L I N G U I S T I C  I D E N T I T Y  O F  
PEOPLES 
heoretical reflection on the distinction exercise of these rights is an unattainable 
between collective and individual human utopia, as has been demonstrated, in 
rights and on the description of their particular in the case of German 
respective natures and contents seems to unification and in general in events in the 
be gradually taking shape with more and former communist countries, which I 
more detailed studies, but the doctrine by referred to above. 
which they are analysed still fails to Another collective right which is more and 
realise that the march of recent history is more frequently recognized in 
towards the recognition of these international texts and in some states' 
collective rights. The consequences of the upheavals in legislation is the right to the development of each 
the countries of the East as a result of increased people's culture and language. The biologist Jean 
respect for individual and collective human rights, then, Dausset says that "cultural and linguistic diversity, like 
are not very clear, though we can foresee a physiological diversity, is essential to the preservation 
generalized increase in the recognition of and respect of human life". In this aspect also we see that positive 
for al1 these rights. In spite of Croatia's bitter international law has given us regulations such as 
experience, it is likely that the general level of Article 27 of the lnternational Agreement on Civil and 
awareness as regards collective results will benefit, at Political Rights, mentioned above, which says that 
least in Europe. "Those states in which there exist ethnic, religious or 
It's true that there are international legal texts that linguistic minorities will not deny the individuals 
implicitly or explicitly deal with rights that can only be belonging to these minorities their right, in common 
exercised by peoples. One emphatic example is the with the other members of their group, to lead their 
collective right par excellence, the right to free own cultural life, to profess and practise their own 
determination, clearly expressed in Article 1 of the religion and to use their own language". No-one coulci 
lnternational Agreement on Civil and Political Rights claim that this text encourages an "affirmative action", 
and that on economic, social and cultural rights, both a protective action, by states, when we realise that the 
of 19 December 1966. These agreements have been article is  constructed with a sentence containing a 
ratified by many members of the United Nations, double negative, but the clarity of the obiectives of this 
amongst them the Spanish state. Although many states article has been noted by the French state, which has 
take it that this right can only be exercised by subject set aside its application and has not therefore included 
peoples in the process of decolonization, there is no it in its legislation, on the grounds that it goes against 
legal argument against its application to other peoples. the equality of French citizens. 
Because the right to self-determination and the other More recently we find a text that more clearly 
collective rights of peoples have only recently been encourages positive action by states towards the 
included in international documents, it is not surprising various nations they embrace, in point 45 of the 
that there are difficulties involved in their fulfilment and concluding document of the meeting in Vienna, in 
interpretations that evade the responsibilities of the January 1989, of the Conference for European Security 
states concerned. But this does not mean that the and Co-operation, in which it is stipulated that "the 
OPINION 
states will take measures to ensure that the individuals 
belonging to national minorities or regional cultures 
within their territory can diffuse, have access to and 
exchange information on their rnother tongue". 
When al1 is said and done, the preservation of a 
language and of al1 the other elernents that go to make 
up a people's identity is not just a cultural phenomenon 
that can develop in isolation from a people's general 
evolution. The exercise of linguistic and cultural rights is 
closely tied to other collective rights, especially political 
rights. In support of this statement we can see that a 
clause like Article 27, reproduced above, appears in 
an lnternational Agreement on Civil and Political Rights 
and not in the lnternational Agreement on Social, 
Economic and Cultural Rights approved the same day 
by the same international organism. 
It is worth commenting now on the distinction between 
legal linguistic models based on the principle of 
personality and models based on the principle of 
territoriality. The difference is one we can compare 
analogically to the individual rights/collective rights 
dichotomy, but referred to linguistic policy models. 
According to Ninyoles, 
" 1 .  A policy based on the principle of personality of 
linguistic rights guarantees the individual certain 
services in his language, regardless of where he is. 
"2. The criterion of territoriality consists in limiting to 
certain specific regions the right to make use of public 
services in one's own language, which rnaintains high 
priority there." - 
Several authors comment that the principle of 
personality is only advisable in those areas with 
considerable dispersion of linguistic groups and in 
which the use of the language is on a genuinely 
comparable level. Otherwise, according to Ninyoles, 
"the most likely result is that one of the languages 
concerned -the one with rnost international diffusion, 
the one that is  best adapted to the technological 
conditions or the one that has an initial advantage in 
the power structure- will gradually displace the other 
and co-equality will in practice becorne more and more 
illusory". There is one case in which the personalist 
policy is useful for the preservation of the languages to 
be normalized, which is if the state's central institutions 
respect the personal right of individuals to deal with 
them in the official language of his or her choice (this is 
the case with the state administrations of Canada, 
Belgium and Switzerland, for exarnple). 
When a language to be normalized occupies a 
delimited historical territory, sociolinguists agree that 
only by applying the principle of territoriality within the 
linguistic area it occupies can the foundations be laid 
for the possible recovery of the language. The 
territorial model delirnits geographical areas in such a 
way as to achieve the maximurn possible exclusiveness 
in the use of the respective languages within the 
territories assigned to them. The dealings of the 
administration and the public services with the public 
take place only in the language that corresponds to 
each territory, and the public, in theory, does not have 
an arnple right to deal with the administration in the 
language of their choice, as what prevails is the 
language of the territory (the case of Quebec, the 
cantonal and communal administrations of Switzerland 
and also the territorial administrations of Belgiurn). 
The personal model, then, is  founded on the freedom 
of the inidividual and allows the social use of 
languages to evolve according to the demand -in other 
words, according to socio-economic and cultural 
conditions, without legal restrictions. The principle of 
territoriality, on the other hand, sets out to protect a 
geographical area from the excessive influence of 
another language that has spread there or come to 
dominate, and that therefore threatens the survival of 
the language of that territory. This model norrnally 
involves monolinguism in the administration within the 
territory and therefore restricts the public's freedom of 
choice in language. Thus in this model individual rights 
are limited by the collective right of the people that 
wants to preserve its language within its national or 
historical territory. 
The two rnodels do not normally appear in a pure 
form, since there are combinations of one model with 
the other in different spheres. For example, in Andorra 
Catalan is territorial in the administration and trade, 
but in teaching there is the individual personal right to 
choose from Catalan, Castilian and French. In some 
cases international law itself imposes a specific 
linguistic freedom, as for example in the case of the 
right of any accused person not understanding the 
language of the court to use his or her own language 
and to be freely assisted by an interpreter. The modern 
doctrine on linguistic rights, partly because of the 
problems arising in states that want to protect their 
endangered languages, has had to look closely at the 
nature and contents of the principles of territoriality 
and freedom of choice of language so as to safeguard 
the languages that, even under territoriality, show a 
tendency to recede. 
De Witte, for his part, asserts that linguistic rights -and 
I would add al1 other collective rights- are not a 
derogation or a particularity of the basic right of 
equality and non-discrirnination, but that they constitute 
a proper and suitable application of this law. In other 
words, that having recognized the Aristotelian principle 
that similar treatrnent must be given to similar cases 
and different treatment to different cases, and bearing 
in mind Lacordaire's statement that "Entre le fort et le 
faible c'est la liberté qui opprirne et la loi qui 
affranchit", the next step is that iuridical inequality is 
not only justifiable but actually necessary to achieve 
real equality. In this way, special juridical support for 
unnormalized languages, even whem it limits the 
individual freedorn of choice of language in some 
cases, derives from the correct application of the 
principle of equality, since al1 that is actually intended 
OPINION 
is that these languages should reach a situation 
analagous with that of the dominant language in their 
respective territories. 
Having said that, I must point out that the rnain obiect 
of combining the principles of personality and 
territoriality is the preservation of the collective rights 
of minorities. Thus in Switzerland we see how, by not 
taking this factor into account, the Federal Tribunal has 
applied the principle of territoriality against a 
Romansh-speaking population which because of a 
process of linguistic substitution has become a minority 
in its own historical territory, while German-speakers 
have become the majority. The Federal Tribunal itself 
has also protected the German rnajority by prohibiting 
education in French for a minority that presented no 
threat to the identity of the territory. 
Even then, and following the Resolutions of the 
European Parliament on the protection of regional and 
ethnic languages and cultures, to protect the identity as 
a people of any group that differs from the state 
majority, a gradual strengthening is  needed of 
home-rule and of competences on territorial levels in 
which the minority constitutes the rnajority. This, as the 
European Charter on regional and minority languages 
intends, need not prevent states from also adequately 
promoting their real equality with more widespread 
languages through special measures aimed at their 
promotion and support within their competences. 
In Spain we could say that there is a mixed model, 
halfway between territoriality and personality, 
completely opposed to the mixed models of Belgium, 
Canada and Switzerland, since territoriality is only 
guaranteed for the rnaiority language, Castilian, while 
in territories with other languages the principle of 
personality applies. This is just the opposite to the 
linguistic model practised by these states, who years 
ago realised that a model like Spain's -which some of 
them had indeed tried- failed to guarantee a situation 
of equality, in the sense in which I have described it 
above, and therefore endangered the survival of the 
languages in an unfavourable situation. 
It is cause for concern that during this period of 
consolidation of a democratic régime there has been 
no significant evolution towards real respect for 
pluralisrn and for the various signs of national identity 
differentiated from the rest of the Spanish state, 
especially the most significant ones, like language and 
law. Despite the constitutional principles opposed to a 
dominant historical discourse of prepotency, jacobinisrn 
and the mistrust of the citizens belonging to the 
majority national and linguistic group, these years have 
not seen education in schools, information in the state's 
organs of communication or a general attitude on the 
part of the state administration that, instead of 
systematically denouncing supposed sob-stories and an 
even more supposed discrimination of Castilian, 
overturn this traditional attitude and lay the 
foundations for collaboration from a position of respect 
and for an increase in the self-determination of what 
the Constitution calls nationalities. 
Unfortunately, there are no signs that a change is  on 
the way. On the contrary, everything points to an 
obsessive continuity. Take, for example, the 
prornulgation of dispositions that impose Castilian 
-even in spheres where the laws of the Franco régime 
kept silent in this respect-, or with the contestation of 
the up-dating of Catalan civil law. The extension and 
strengthening of the international doctrine and practice 
of respect for the territorial rights of peoples could 
infuse greater hope, amongst others, to the possibility 
of constructing our future on the basis of our own 
identity. O 


The Principle of Territoriality and the Preservation of the National and Linguistic Identity of Peoples

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Revistes Catalanes amb Accés Obert