International Minority Rights Law and its Impact on Kinstate Minorities in the Area of Education

Table of Contents

Introduction

1 The German and Danish Minorities’ Situation: Past and Present

2. Analysis ofArticle 8 and the State’s Chosen Obligations in Education
2.1 Denmark and Germany: Their selected Obligations
2.2 ECRML: Article 8 Analysis

3.. The ECRML State and Evaluation Reports
3.1 Denmark and the German Minority
3.2 Germany and the Danish Minority

4. Article 8 and its Effects on the German and Danish Minority

Conclusion

References

Appendices

I also want to acknowledge Harro Hallmann (Bund Deutscher Nord- schleswiger), Jens A. Christiansen ( Sydslesvigsk Forening), Volkner Struve (Min­istry of Education in Germany) and Steffen Bang (Ministry of Education in Den­mark) for taking their time to be part of my Master Thesis.

I wish to thank Jeremy Mattern, Magnus Dahl and Matthias Franzen for helping me throughout the editing process and for giving me emotional support.

I sincerely want to also thank my friend, Lauge Bossing, who helped me re­search and translate Danish law.

Finally, I give my sincerest gratitude to my supervisors, Oleh Protsyk and Charlotte Gaitanides, who have supported me throughout my studies and during the writing process for my Master Thesis.

Abstract

The Council of Europe created the first legally binding international treaty for national minorities in Europe for language rights called the European Charter for Regional and Minority Languages (ECRML) in 1992. Little is discussed in academia about its effects concerning kinstate minorities who are already protected due to state legislation and unilateral or bilateral agreements. This thesis examined the ECRML and its impact in the context of language education rights concerning the Danish and German minorities living in the Schleswig border region. Using content analysis and interviews with stakeholders, it was found that it helped re-enforce and re-assure minority language rights, created formalization in the area oflanguage education rights, re-instating funding equality, raised awareness in minority education issues to the governments involved and re-instated funding equality in the area.

Introduction

The Council of Europe (CoE) created an international, multilateral treaty in 1992 called the European Charter for Regional or Minority Languages (ECRML) to protect, support and promote the national minorities’ and their languages in Europe. Their claim to protect national minority languages is that it is not only a vital aspect of protecting a culture, but also to preserve and enrich Europe’s cultural heritage. It is the only international legally binding treaty concerning the protection of national minorities’ languages (CoE, 2012).

There have been many studies posed by academic circles concerning the effectiveness of the ECRML. Stefen Oeter, chair of the Committee of Experts (CE) of the ECRML, argues that the ECRML’s effectiveness is dependent on three main actors; the state, civil society and the European legal system. First, the state has to be sincere and committed to fulfilling their chosen obligations by ensuring and enforcing quality of the legislation, practices, policies and measures. Second, civil society has to participate and be continually active by bringing up issues (if they feel that there are any) and putting pressure on the state and its internal actors in order to hold the state accountable. Last, the bodies of the European legal system within the European Union (EU) and the CoE have to continually stay committed to their objectives and to the monitoring structure set up in order to ensure and promote language minority rights (Oeter, 2010).

There also have been studies about assessing the impact of the ECRML.

Vesna Crnic-Grotic presents four essential areas that need to be observed in order to measure impact. One area one can measure the impact of the ECRML is to analyze the state and evaluation reports as it shows a time-line of events that take place within the region that is being observed. She also argues that the state ratifying the charter in itself can also create an impact on the minority because they might have never been recognized before. The last areas to look at are the changes made in legislation, as well as practices after ratification. These need to be examined in order to see the ECRML’s impact on a minority (Crnic-Grotic, 2010).

Also, the European Center for Minority Issues (ECMI) is currently working on a project called “National Minority Indicators,” which started in 2012 and will run until 2015. They are focusing on finding and measuring successful indicators for the Framework Convention for the Protection of National Minorities (FCRNM) and the ECRML in order to improve the situation of Europe’s national minorities and to see the impact it has created on Europe’s national minorities (ECRMI, 2012 “National Minority Indicators, brochure). They define impact as “...change towards the progressive implementation of the treaties, leading to the protection of minorities and their languages. It measures progress towards implementation but can also reveal retrogressive steps” -ECMI, 2012, “National Minority Indicators” (brochure). The reason why they are measuring impact is to assess to what extent the concerned authorities are held accountable to implementing the treaties (ECMI, 2012 “National Minority Indicators,” brochure).

There have also been some case studies on the ECRML concerning its impact on national minorities. For example, Wilson McLeod did a case study on the ECRML’s impact on the United Kingdom’s (UK) language policy in the area of public services, which concerns many of the national minorities in the UK (2009). He used content analysis on Article 10of the ECRML, which deals with administrative authorities and public services. It was found that the ECRML created a limited impact on UK language policy in the area of public services. This is due to fact that the UK created a hierarchy of protected languages in its language policy, which in effect caused the UK government to choose obligations within the ECRML for each minority based on hierarchical status (McLeod, 2009).

Another case study was done by Catrin Fflur Huws, where one of the questions she focused on was the impact the ECRML had on the Welsh minority living outside ofWales concerning judiciary rights. She analyzed Article 9 of the

ECRML (which concerns judiciary rights for minorities), Article 7 (this also briefly concerns administrative divisions), the state and evaluation reports of the ECRML and the Welsh Language Act (1993) (WLA). She used content analysis, in which she concentrated on the definition of judicial districts. She argued that the WLA and the court interpretation in the court case Williams vs. Cowell restrict language judiciary rights for the Welsh minority living outside of the language speaking territory. As the ECRML has the potential to influence the UK language policy concerning judiciary language rights of the Welsh living outside of their traditional area, it has not. Therefore, the ECRML created a negative impact on the Welsh minority living outside the “traditional language territory” (Catrin Fflur Huws, 2008).

The subject on kinstate minorities in Europe has also been studied in academic literature because they are not only academically interesting but also have political significance. A kinstate minority is a minority that identifies with a state with the same culture, history and/or language. The kinstate recognizes them as their people and acts on political, cultural and economic measures in its own interests, whether the kinstate minority lives on or beyond the border. This bond and recognition between the state and the minority is completely consensual, which may be either authentic or envisioned. Historically, kinstate minorities were seen as tools to create conflicts. For instance, Hitler legitimized the expansion of Germany because there were German minorities on the other side of the border (Wilken, 2008).

Even today, kinstate minorities are still sometimes associated with political issues. For example, the Hungarian Status Law stated that they would give benefits to their kinstate minorities living in neighboring countries. However, this created conflict with their neighboring countries because it breached the territorial principle of international law, meaning that the Hungarian Status Law conflicted with the laws of their neighboring states without proper bilateral negotiations beforehand. With the help and intervention of the CoE, the situation was mediated so that the conflict wouldn’t escalate (Chiva, 2006) (Iodachi, 2004).

In today’s integrating Europe, kinstate minorities are often seen as instruments by states to create cross border cooperation and make successful, cordial relations with their neighboring states, which are why they are considered to be the most important national minority (European Commission through Democracy and Law, 2002). For example, the Danish and German governments use their kinstate minorities as means to create successful trans-frontier cooperation and have continued to make good relations between the two states. Evidence of this is the unilateral declarations called the Bonn-Copenhagen Declarations (BCD) from 1955 with bilateral negotiations. The BCD contains the rights for the German and Danish kinstate minorities to use their mother tongue in their social and political daily life (Kühl, 2003). However, these declarations were also created due to the pressure of minority groups and NGO’s (Kühl and Bohn, 2005).

The Danish and German minorities have been eminently studied because of the successful implementation of minority rights policies by the Danish and German governments. It has also been discussed about whether it could be a model for all of Europe (Kühl and Bohn, 2005). Jorgon Kühl concluded that more studies on kinstate minorities needed to be done across Europe in order to see if the Schleswig Model could be applied to other European regions with kinstate minorities (2005).

This study focuses and analyzes the effects of the ECRML concerning the kinstate minorities in the border region of Germany and Denmark in the following chapters, which very little research has been done concerning in this area of expertise. There has been some academic works published on measuring the ECRML’s impact and case studies on its effectiveness on national minorities in Europe, but not on its impact on kinstate minorities, especially the kinstate minorities in the German-Danish border region.

The question addressed in this thesis, is if the ECRML has created any impact in the area of education regarding the kinstate minorities in the Schleswig border region. The reason why this is in question is because the Danish and German governments created the BCD that was ultimately successful before the Danish and German governments signed the ECRML. For example, the CE even stated in their first evaluation reports that in Article 8 (the right to be taught in their native language) is fulfilled because of the BCD, which continues to be stated throughout the reports (CoE, 2002 a) (CoE, 2003). This question will be analyzed and discussed in the following chapters.

In order to answer the research question, the practices and the policy changes by the governments of Germany and Denmark in the ECRML reports were examined because it is important to see the effects. The project entails text analysis of the reports and recommendations made by the ECRML to Germany and Denmark, as well as the state reports and responses from the German and Danish governments in the area of education starting with the first published report from the Committee of Experts (CE) and end with the last report made. Each section of every article evaluated by the CE states either if the criterion is fulfilled partly fulfilled or not fulfilled. These statements in the reports will be analyzed, as well as the responses from the states concerned. To support the thesis, charts of Germany and Denmark were made and thoroughly explained to show that they have fulfilled their obligations. Article 8 in the ECRML, which comprises the right to use their language in education for minorities, was also analyzed to show if the obligations are strong or weak and chart were made to show this to see which state chose which obligations.

Also, interviews were made in order to see the opinions from the representatives of the German and Danish minorities,’ as well as from the Ministry of Education in both Germany and Denmark. The minority organization representatives were chosen for interviews because they gave not only insight into the kinstate minorities’ situation and represented their kinstate minority organization, but also observed how the ECRML impacted their kinstate minority as they were actively involved with the CE by handing in reports and talking to the CE about their situation. Both the Ministries of Education for Germany and Denmark were also interviewed because they were able to give insight of their government’s perspective of the kinstate minorities’ situation regarding education and also are in charge of implementing and enforcing educational policies within their country. The representatives who participated in the interviews were Harro Hallmann (representative of the Bund Deutscher Nordschleswiger), Volkner Struve (Ministry of Education in Germany), Steffen Bang (Chief Advisor of the Ministry of Education in Denmark) and Jan D. Christiansen (representative of the Sydslesvigsk Forening).

The first chapter delves into the history of the kin-state minorities situation in the Schleswig border region in order to fully understand the development of minority rights in the region, which also concerns education. This chapter discusses in chronological order the developments of the minorities’ situation on both sides of the border, which later resulted in creating the BCD in order to create peace and harmony in the region.

Once this is thoroughly discussed, Article 8 of the ECMRL, which concerns language education rights for minorities,’ is analyzed in chapter two. First, Article 8 is explained, as well as the process of how states determine which obligations to adhere to before signing and ratifying the ECRML. Then a table is presented that shows the layout and choices available for states in Article 8, as well as which obligations the states had chosen and which obligations are strong or weak. Next, the obligations are explained and analyzed to see which ones are strong or weak. Last, a discussion on which obligations Germany and Denmark took is explained.

Then a text analysis in the state reports, recommendations from the Committee of Experts (CE) and the responses from the Danish and German governments is discoursed in chronological order in the third chapter. This was analyzed in order to see what kind of effects were created for the Danish-German minorities’ in the area of education. The German minority in Denmark is first discussed, followed by the Danish minority in Germany through the reports drawn up by Denmark and then the evaluation reports from the CE, which were all analyzed and shown in sequential order.

Finally, the last chapter focuses on what types of the effects the ECRML has on the kinstate minorities. These effects were found by using content text analysis by analyzing Article 8 of the ECRML, the options chosen by the states and analyzing the state and evaluation reports. Interviews were also conducted and those who participated were the representatives of the German and Danish minority, as well as the Ministries of Education in Germany and Denmark. The effects found included re­enforcing and re-assuring education minority language rights in the Schleswig region, re-instating funding equality, creating formalization of education rights and raising cognizance to the Danish and German governments on minority issues.

1. The German and Danish Minorities’ Situation: Past and Present

This chapter will discuss the history of the minorities’ situation, as well as how minority rights were developed in the area in order to solve the conflicts that had arisen over time. This chapter will also briefly discourse the minorities present situation.

In the Schleswig area, there are two kinstate minorities that are recognized by the Danish and German governments, the Danish and the German minorities. The German minority is mainly located in the southern most part of Denmark and the Danish minority primarily live in the state of SH in Germany (Teebken and Christiansen, 2001). In both Germany and in Denmark, there are no official demographic records on the Danish and German minorities, since it is illegal for the governments to make the minorities be officially registered. It is estimated that the German minority population in Denmark is between 12-15,000 and the Danish minority in Germany is around 50,000 (CoE, 2000) (CoE, 2003).

The Schleswig area has a long history of the kinstate minorities in the border region, especially concerning language rights in education. In the last two hundred years, the border in the Schleswig area moved many times due to wars, specifically the Schleswig wars and the world wars. These wars created the modern kinstate minorities in the area because of the rapid border changes during the 19th and 20th centuries (Teebken and Christiansen, 2001). This in turn also created minority educational institutions in the region for a period of time.

For example, after the Second Schleswig war ended in 1864, the Folk High School in South Schleswig was originally under the Danish monarchy but became Prussian territory in 1864, which in turn became a “minority school.” However, it closed in 1889 (http://www.jaruplund.de/show.php2id-223). Also, according to

Michael Bryam, the Germans living in southern Jutland practiced teaching and learning in their native language in established schools that date as far back as 1888, as it was Prussian territory after the Second Schleswig War, which again became Danish territory again in 1920 (1986).

The kinstate minorities were officially recognized and “created” in 1920 after the First World War when Germany lost northern Schleswig and northern Schleswig was reunited with Denmark and then a new border was created yet again (Council of Europe, 2003). Once the German minority became an official minority in Denmark after the plebiscite vote in 1920, the North Schleswig Education Act was passed shortly after, which guaranteed that the government would provide an education for the German minority or by granting the German minority the right to establish private schools that would be provided with state subsidies (Kühl and Weller, 2005). Once the Danish minority became an official minority, they decided to establish schools in order to preserve their culture and language in the region (Kühl and Weller, 2005).

However, after the last world war, Denmark assisted the Danish minority by providing schools, people of service (doctors, nurses and pastors) (Teebken and Christiansen, 2001). Yet, they also closed down all the German schools in 1945, but slowly started to reopen between 1945-1955 (Bryam, 1984).

Also after World War II, the Danish government declared that the border would not change and contended to the Danish minority’s idea that they should secede from Germany in order to reunify with Denmark because the Danish government wanted to avoid long-term border conflicts (Teebken and Christiansen, 2001).

The German minority in Denmark, on the other hand, recognized the border immediately, unlike the Danish minority in Germany, and wanted to cooperate with the Danish government so that peace and harmony between themselves and the majority would be established as quickly as possible. However, they wanted their full civic and equal rights in exchange, including re-opening the schools. The Danish government consented to this in order to prevent and reduce further and present conflicts and even gave grants to establish and slowly re-establish some of the German minority schools in the southern Jutland region (Kühl and Weller, 2005) (Bryam, 1984).

SH also wanted to lower the tensions and conflicts by reaffirming the border and by creating the Kiel Declaration in 1949, which stated that they are recognized as a minority and reaffirmed their rights. A liaison committee was also created between the members of the Danish minority and the state government in order to handle everyday problems that the minorities and the majority were experiencing (Teebken and Christiansen, 2001). The German minority also called for similar proceedings to occur and they received the reaffirmation that the minority was recognized and had rights called the Copenhagen Note, which had great symbolical value for the German minority (Jorgen Kühl and Marc Weller, 2005). After this event, they were slowly able to regain and restructure their facilities and created a political party, called the Slesvigsk Party (SF), to represent their interests (Teebken and Christiansen, 2001).

Even though the Danish and German governments made the necessary steps to reduce the stress between the minorities and the majorities, the strain still existed and was lengthened due to discrimination claims and practices by both parties. The German minority was heavily displeased with the fact that the reconciliation process on both sides was not proceeding at a faster pace and the German minority were also still very unhappy of being blamed and shamed from the previous war, which resulted in the German minority to become more active in politics and won a seat in the Danish parliament in 1953. However, the same cannot be said for the Danish minority in Germany (Kühl and Weller 2005).

The new conflict started to escalate at a rapid pace in the early 1950’s when the Christian Democratic Party (CDU) won the most seats in the state government and gained power in the German state of SH. The CDU politicians did not recognize the Kiel Declaration in practice and were trying to obstruct the rights of the Danish minority by defining who is truly a Dane or not, thus breaking the Kiel Declaration on the freedom of self-determination but this was totally ignored in the SH government. The CDU politicians even went as far as attempting to provide legal evidence that the Kiel Declaration was invalid and that the German children were forced to go to the Danish schools, which was “breaking” the German society apart (Jorgen Kühl, 1998).

However, the CDU government in SH tried to make a bi-lateral treaty with Denmark because they wanted make sure that their kinstate minority had equal rights. But, the Danish government refused to agree to such a treaty because it would break the territorial principal. They didn’t want the German government to intervene on behalf of their kinstate minority because the German government would be interfering with Denmark’s internal affairs (Kühl, 1998).

In 1951, a federal law was made to increase the threshold barrier of parties holding seats in the state governments of 5% to 7.5%, which would have kept the Danish minority party (the SSW) from holding seats in the state government. The SSW went to the federal government to appeal for exemption from the new law. They won their case and the new law was made illegal. A new law was instated in 1953 called the Federal Elections Law to exempt the threshold barrier for minority parties at the federal level, but this did not include the state level. The SSW went to the federal court again and it was ruled that they were not exempted in state elections, even though the court stated that it was possible for the SSW to receive an exemption from the law. The SH government ignored the appeal from the SSW, which resulted in the SSW to lose the state election in 1954 and have no seats in the state or federal parliament during this time. This caused further intensification of the conflict between the Danish minority and the German majority in Schleswig because it questioned the seriousness of the Danish minority movement (Kühl and Weller, 2005).

In 1954, Germany sent in its application for membership in NATO and further discussions needed to be addressed before the membership was finalized. A few days before the meeting, the Danish government told the Danish foreign minister to accept West Germany in NATO and to bring up the subject of the current conflict happening in SH. In the meeting, not only did the Danish foreign minister address the issue, but also stated that the German minority is in the Danish parliament and that it was vital to have good relations in all areas with the minorities. He also added that if the Danish minority was treated well, it would bring symbolical value of future cooperation between the Danish and German governments and hoped that the conflict would be solved. The German Chancellor, Adenauer, contacted the Danish foreign minister shortly after the speech and took measures into his own hands to speak with the SH government to solve the issue (Kühl and Weller, 2005).

The Danish and German governments started negotiations in early February of 1955 to address the rights of their kinstate minorities and what they would entail. Within one month, the Bonn-Copenhagen Declarations were created. These Declarations were created with bilateral negotiations but are unilateral treaties. Denmark pushed for unilateral treaties, unlike Germany, because they did not want Germany to intrude into Denmark’s domestic affairs and wanted to prevent another Schleswig war. On March 28th, 1955 the Bonn-Copenhagen Declarations were finalized and ratified. These declarations gave rights to the kinstate minorities in the Schleswig area in the freedom of self-determination, the right to use their language in court and administrative agencies, the right to be taught in their mother tongue, the right to practice their culture, build facilities, radio and newspapers, that the minorities will be represented under proportional representation and that public funding and assistance shall be treated equally between the majority and the minorities (Kühl and Weller, 2005).

Because of the Bonn-Copenhagen Declarations, the conflicts between the majorities and the kinstate minorities in the Schleswig region began to decrease and cooperation increased. As the Danish foreign minister, H.C Hansen, predicted in his speech in the NATO meeting, close cooperation evolved in the Schleswig area when kinstate minorities were satisfied with the rights given and were treated equally, which would, in turn, bring harmony to the area. The reason why the Bonn- Copenhagen Declarations became successful was because it was not only legally binding, but there was heavy support by both the Danish and German governments to implement the declarations so that the affect would be long-term. The Bonn- Copenhagen Declarations are heavily important because it became the basis for the minority policies in the area. The results of the Bonn-Copenhagen Declarations were that Liason committees and offices were established in Denmark and Germany between governments and the kinstate minorities so that it would make up for the absence in government representation at the federal level and to lobby the needs of the minorities in the parliaments (Kühl and Weller, 2005).¹ Also, in 1991, Denmark passed an act called the Danish Act on Private Independent Schools and Private Independent Basic School, which gave the right of the German minority to establish German private schools in Denmark and the 2002 Finance Act states that a subsidy of four million krone will be given to the German schools every year (Council of Europe, 2004 b). In 1990, SH amended their state constitution by adding article 5, which guaranteed the rights of the Danish minority and that the authorities had to help and promote them (Kühl and Weller, 2005).

In the early 1990’s, a debate was ensued concerning the Council ofEurope’s convention on the protection of minority languages, the ECRML, because these rights were already given through the Bonn-Copenhagen declarations. In 1992, Denmark and Germany signed the ECRML, even though there were limitations in the right to use their languages in certain areas in the case for Germany. However, the German government went over and beyond their legal obligations to implement the

The committees were created in 1965 and the offices were created in 1983.

ECRML in order to appease the Danish minority in the areas of administration and judiciary rights (Kühl and Weller, 2005).

From 2010-2012, the Schleswig Model became endangered and a new conflict broiled between the kinstate minorities and their residing state. In SH, SH government cut the Danish minority’s education funding. This happened because the state of Schleswig Holstein needed to cut their state budget and decided to cut more of the Danish minority educational funding than the German educational funding. The Danish minority saw this as discrimination and that the spirit of the Bonn Declaration was broken because the it ensured the right to equal funding.² This resulted in huge protests in the area and conflicts between the Danish and German governments as well between the German majority and the Danish minority in Germany. The conflict forced the German federal government to compensate the Danish schools and other institutes of education, even though it was a violation of the German constitution which doesn’t provide federal funding for education in order to fulfill the legal obligations in the ECRML. Even though the government in SH violated the existing regulations, the German federal government, due to dialogue and debate with the government of Copenhagen, had acted swiftly and reduced the damage (Kühl, 2012).

Concerning the German minority in Denmark, there was also conflicts from 2010-2012 also concerning the issue of funding. The Danish government talked of cutting funds from the German minority schools, which is also currently causing concerns for the German minority in Denmark (CoE, 2010).

The Schleswig Model only became successful because of the Bonn- Copenhagen Declarations. The governments recognized that unilateral treaties were needed with bilateral negotiations in order to truly solve the conflicts in the area. Because of the persistence of implementing the declarations for a long-term basis, the declarations became successful. The goal of the majority and the minority were to create harmony in the area and when the officials of the area recognized that peace would only be realized through giving rights and needs to the kinstate minorities that goal was achieved (Kühl and Weller, 2005).

2. Analysis of Article 8 and the State’s Chosen Obligations in Education

Article 8 on education in the ECRML covers ten main areas that protect the teaching in and of the minority languages; preschool, primary, secondary, technical and vocational, university and other higher education, continuing or adult education, history and culture, basic and further training of teachers, supervisory body and to support, permit or have teaching of minority languages in every apposite level in edu­cation. In the areas that concern education levels from preschool to adult education, these areas have obligations to which the state can choose from (CoE, 2012).

This chapter focuses on two factors. The first sub-chapter discusses Denmark and Germany’s choice obligations. This is shown through a table in order to clearly see which obligations were chosen by which state with key word descriptions and whether the selected obligations are strong or weak. Analyzing Article 8 and the state’s chosen areas will help analyze whether Article 8 has created any effects for the Danish and German minorities in the German-Danish border region. The second sub-chapter focuses on Article 8 of the ECRML and analyze the strengths and weak­nesses of the obligations under Article 8 and determine whether they are strong or weak based on content and secondary analysis.

Table 1: Article 8: Obligations Options’ Strength and States chosen Obligations

illustration not visible in this excerpt

2.1 Denmark and Germany: Their selected Obligations

It was stated in the first state report for Denmark that the aim of fulfilling the obligations in the ECRML was not to create new measures, but fulfill them by using present, active measures. So why would these governments use this method in order to fulfill these obligations? The reason being that it is easier to fulfill the criterion

Both States chose these obligations as well in this area but is considered to be void as the states only are suppose to chose one obligation . IV already covers iii because the legislation, practices and policies that already existed. It is easier for the state to use already existing practices, policies and legislation instead of creating new ones. If they were already efficient to begin with, then there would be no point for the states to make new measures to fulfill the chosen obligations. Therefore, the states used already existing policies and practices in order to comply to the ECRML. Also, the states, in most of the cases, chose obligations that are weak because they are easier to implement. As shown in Table 1, both Germany and Denmark, concerning the education area levels, chose most of the obligations that were considered weak because they would be easier to implement than obligations that are strong.

Under areas a-f (preschool, primary, secondary, technical and vocational, university and other higher education) there are obligations choices that the state can choose to determine how much of the language should be taught in the minority language (fully, partly or as a subject), based on minorities’ and state’s situation and whether the state has direct competence in the area of education. However, they can only pick one obligation choice under an area. Once signed and ratified, the state is legally bound to the ECRML (CoE, 2012).Yet, it is not mandatory for the states to be concerned about the minorities’ affairs and situations while deciding which obligations are best suited for them. Also, the ECRML permits states to determine their choices in picking their obligations based on already existing laws, practices and policies in order to abide to the ECRML. The states can even select obligations that are not as strong as their domestic policies and laws (Mowbray, 2012). Therefore, the states make their decisions in choosing their obligation choices based on what is easier for them to adhere to.

In the case of Germany and Denmark, they chose their obligations based on previous practices and policies that already subsisted. Denmark even stated in their first state report that their laws and practices complied with the ECRML and that they did not amend nor create new legislation, practices and policies in order to abide to the ECRML (CoE, 2003).

As can be seen in Table 1, both Germany and Denmark have chosen similar obligations and also chose all the areas in Article 8. Denmark and Germany chose almost all of the same obligations, except in the area of preschool education.

Germany chose aiv, where the state only encourages the teaching of the minority language if the state is not competent in the area of preschool, whereas Denmark chose aiii, where the state only provides the teaching of the minority language if there are enough parents who request it (See Table 1). In the area of primary education, both Germany and Denmark chose obligation iv, where if there are enough requests, which is determined by the state, they will provide education in the minority language for the minority.

For both Germany and Denmark in the area of secondary education, they chose two obligations, even though they were only suppose to choose only one. They both chose obligation iii and iv, where iii says that the state t has allow the minority language to be taught as a subject and iv states that the minority language can be taught when there is enough demand. However, the ECRML states that they are only suppose to choose one obligation in each area. So technically, only iv applies, as it does it not matter as much to the extent the minority language is taught in, but rather depends on the numbers for the demand of the minority language. However, they have to apply one of the levels mentioned in other obligations in the education area. The lowest level they can apply the teaching of the minority language is to teach the minority language as a subject.

Concerning the area of vocational and technical education and adult education, Germany and Denmark chose obligation iii for vocational and technical education and obligation ii for adult education, where the state implements measures in order to teach the minority language as a subject. Also, for Germany and Denmark, they decided to abide to obligation ii in the area of university and higher education, which states that facilities have to be provided in order to teach the minority language. Germany and Denmark also took obligations that concern teaching and history of culture, basic and further teacher’s training, supervisory body and minority language education in all education stages (obligations g-2).

In Table 1, from education areas from primary to vocational and adult education, it can be seen that both states did not choose any of the obligations that concern that the minority language to be taught mainly or partly as a subject. These obligations might have been challenging for both states to implement for the reasons of being costly and difficult to implement if they do not already have institutions and/or measures that already support these types of language educational systems for the minorities.

2.2 ECRML: Article 8 Analysis

In Table 1, there is a pattern in the option choices within the areas in Article 8 from preschool-university. In the different stages in education, from preschool-adult edu­cation (areas a-f), the strongest obligations are the first options, where the language is fully taught in the minority language. The second option, minority language taught partly in the areas that are in the levels from preschool-vocational education, is strong, but not as strong as the first option. Then option three is considered to be a weak option and option four is weaker than option three. Concerning the obligations that don’t have options (teaching of history and culture, basic and further teacher training, supervisory body, and all stages of education), these options were analyzed individually since there were no options or patterns in these areas. This determined the structure of the sub-chapter in order to best categorize the obligations from stronger to weaker obligations, as it would be too chaotic and redundant to analyze each obligation individually.

2.2.1 Scope ofArticle 8 paragraph 1

Before analyzing the obligations individually, paragraph 1 explains and analyzes how states choose specific areas and obligations over others in order to understand the next sub-chapter. Paragraph 1 of Article 8 states that the relevant parties can choose the obligations that fit the minorities’ situation within the area where they are residing in regards to their languages concerning education. It also reassures the states that their official language will not be biased to the teaching of the minorities’ languages (Lopz, 2012).

So in paragraph 1, there are two main factors for why governments concerned choose specific obligations and areas. The first factor concerns the minorities’ language situation and the second factor is the legal guarantee that there would be no prejudices against teaching the official language (Lopez, 2012).

Concerning the first main factor, there are many sub-factors that are under this main factor. First, there are sociolinguistic sub-factors, which include the population of the minority native language speakers, the minorities’ estimate numbers in a given territory, the age distribution of the minority language speakers, and the feeling of importance of the minority language to the minorities. The other sub­factors include political factors, such as legislation, the organization of the school system within the state concerned and the meaning of the term “situation,” which concerns both the survival of the minorities’ languages and any setbacks that the government might have implemented in order to hinder the protection of the minorities’ languages. However, the term “situation” concerning the minorities’ languages, is a very broad term, so the governments can decide on what level they want commit to the obligations because the states interpret and measure the minorities’ language “situation.” Therefore, the term “situation of each of these languages” also had to be thoroughly analyzed by the states in order to determine to what extent the minority languages would be taught in schools, if there was enough demand and/or requests by the minorities to be taught in their language and/or if there was a need to restructure the education system in order to meet the needs of the minorities. However, the state also has to take into account the minorities’ needs in order to conclude which obligations are not only suited for the states, but for the minorities’ concerned as well. Hence, the states have to choose and analyze the best suited areas and obligations that are pertinent to the minorities’ language situation in order to evade hardships during the monitoring process (Lopez, 2012).

The second factor is more of a reassurance to the states of their autonomy in teaching their official language and that the ECRML will not endanger this. This is in the first paragraph in order for states to not be hindered to choose specific obligations. Paragraph 1 is also important because it enables the states to decide to what extent the states want to protect the minorities’ languages concerning education, to guarantee the state’s sovereignty in the area of education and to assure that the ECRML has no authority in regards to the teaching of the official language (Lopez, 2012).

2.2.2 Education of the minority language in full

Option 1 from preschool-adult education (areas a-f) under Article 8 paragraph 1 are the strongest obligations that the governments can choose concerning the teaching of minority languages, which apply to all levels of education. Under options 1 from areas preschool-vocational education (a-di), the relevant governments have to provide and offer the teaching of the minority language, meaning that the minority language has to be taught in almost all of the subject areas in the school curriculum, with the assurance that the official language will still be taught. The estimated percentage is around 95% in the minority language, as other language courses could be taught as a subject (such as the official language).

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