Leiden Law Blog

Tõlkes kaduma Läinud, or Lost in Translation

Tõlkes kaduma Läinud, or Lost in Translation

Anastasya and Ivan live in the town of Narva in the east of Estonia, on the border with Russia. One of them is a nurse, another is a tram driver. Just like most people in Narva, they speak Russian as their native language. However, as far as the Estonian government is concerned, they might soon be fined and lose their jobs because they lack sufficient command of the Estonian language. But how important is it to speak Estonian in a town where 97% of the population speaks Russian?

Speak Estonian, or Don’t Speak at All

After gaining independence from Russia in 1917, Estonia was once again incorporated in the USSR in 1940. When independence was restored in 1991, many Russians had moved to Estonia: by then, 38% of the people living in Estonia had Russian as their native language. Most of them were not able to speak Estonian, which led to an urge felt by the government to implement specific language policies to decrease the use of Russian.

As Järve (2002) explains, the first language law was adopted in 1989, even before independence was restored. The second Estonian “Law on Language” was implemented in 1995 and was amended throughout the following years. Governmental decrees and the Estonian Integration Strategy 2008-2013 have further elaborated the policies.

The laws and policies require that both the public and private sectors conduct their activities in Estonian and that employees speak the Estonian language sufficiently. A Language Inspectorate was established to monitor compliance and to impose excessively high fines in case of non-compliance. Even if one has an official language certificate, inspectors can still test the “actual level of proficiency” at any time.

Yet, as Kochenov, Poleshchuk and Dimitrovs (2012) rightly observe, Estonia is pursuing a policy promoting a “single official language in a de facto bilingual state’. Obviously, this raises difficulties – not in the last place in relation to discrimination and unequal treatment.

Language and Law

As Pinker (1994) argues, to dismiss a language would dismiss one’s humanity and identity. De Varennes (2001) agrees and elaborates that language rights became an “integral part of human rights”, which is generally supported among scholars.

Non-discrimination laws and human rights are part of Estonia’s national law, as well as European and international legislation (e.g. the ICCPR  and ICESCR). All these regimes contain prohibitions of discrimination on racial or ethnic grounds, as well as a prohibition of indirect discrimination.

Within the European context, both the European Court on Human Rights and the EU Court of Justice  have stated that the proportionality principle (as reflected in the EU Treaties) should be leading in determining whether a law or policy is discriminatory. This is in line with the international trend towards a “culture of justification” which Cohen-Eliya & Porat (2010) identify. The principle of proportionality was also implemented in national Estonian law after accession to the EU.

In short, the principle entails that laws and policies with an indirectly discriminatory effect can only be upheld for “compelling reasons”. Kochenov et al. (2012) explore the different steps that should be taken when a law or policy is tested on its proportionality: the law or policy should (1) have a legitimate purpose, (2) be suitable to achieve its ends, (3) achieve its purpose with the minimum possible impairment of individuals’ rights, and (4) have a goal that outweighs the harm that it causes. Only then, can indirect discrimination be considered proportionate. But does the Estonian law suffice this test?

The Estonian Language Policies: Proportionate or Discriminatory?

In their article, Kochenov et al. (2012) conclude that Estonia fails to apply the principle of proportionality correctly. They assess that the Estonian government justifies its language laws by referring to the “public interest”, “social cohesion” and “consumer protection”, disregarding the notion of proportionality. The law is specifically disproportionate when it comes to the punitive approach of the Language Inspectorate: the fact that they can check and fine anyone at any moment creates an “atmosphere of constant insecurity”.

Moreover, the principle of proportionality is neglected by the Estonian judiciary. The courts never examine in concrete cases whether the linguistic knowledge of a person was actually impeding the exercise of his job. Moreover, as Kochenov et al. (2012) outline, in practice, courts always judge that the linguistic requirements are proportionate and in the public interest, even though the policies do not make a distinction between public and private spheres and ignore regional differences. For example, while 97% of the population of Narva speaks Russian, the policy fully applies to that region.

This raises a crucial question: if the Estonian government really acts in the “public interest”, and if it really wants to achieve “social cohesion” and “consumer protection”, then why are these language laws and policies fully applied to a region where almost everyone speaks Russian as their native language? Surely, the public interest, (local) social cohesion and the protection of consumers in the Narva area would benefit from a policy accepting the Russian language rather than sanctioning its usage.

As such, the far-reaching language requirements are not in the public interest, but are rather indirectly discriminatory and attempt to fight Russian linguistic influences. It amounts to “ethnic discrimination in disguise” and there are no compelling reasons to uphold the policies. As the UN Human Rights Committee (1993) stated in the Ballantyne case, a country can choose an official language, but it would be discriminatory to prohibit the use of another language outside the “spheres of public life”.

Raising Voices and Speaking Up

The language laws and policies have an indirect discriminatory effect because of their extreme broad formulation and excessive scope of application. This conflicts with international, European and domestic Estonian anti-discrimination legislation.

The policies ignore the “bilingual reality of the Estonian state” and subject minorities to constant language tests, amounting to indirect ethnic discrimination. The laws and policies are not minimally intrusive and they disregard rather than serve the public interest in regions like Narva. Also, they do not protect consumers or social cohesion. Their implementation and sustained application, however, may very well be connected to a major problem Best (2013) identified: a part of the native Estonian community has problems accepting the Russian ethnic minority for historical, social and cultural reasons. Resorting to intrusive and punitive measures will, however, not solve such problems: in fact, it may increase the segregation of society along ethnic and linguistic lines, amongst others because of the marginalising effect that it has on linguistic minorities. With two significant ethnic groups living in a country of just over 1.3 million people, then, the risk exists that neighbours will increasingly feel disconnected, or lost in translation.

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