For a long time, Ukraine's language policy in the field of education was in line with the obsolete provisions of the Law of Ukraine "On Education" adopted on May 23, 1991 (No. 1060-XII). In July 2012, in violation of the Constitution of Ukraine and the Law of Ukraine "On the Regulations of the Verkhovna Rada of Ukraine," the Law of Ukraine No. 5029-VI "On State Language Policy," also known as the Kivalov-Kolesnichenko Law after the names of its alleged authors, Serhiy Kivalov and Vadym Kolesnichenko, was adopted.
Under this essentially anti-constitutional bill, Art. 7 of the Law "On Education" dated 1991 was worded as follows: "The language of instruction is defined by Art. 20 of the Law of Ukraine On the Principles of State Language Policy."
A return to soviet practices
The model of the language of instruction set in Art. 20 of the K-K Law stipulated that, along with Ukrainian as the state language, regional or minority languages may be languages of education in Ukraine, and that the free choice of the language of instruction is an essential right of Ukrainian citizens. These provisions contradicted Art. 10 and Art. 53 of the Constitution of Ukraine, as well as the Verdict of the Constitutional Court of Ukraine No. 10-rp/99 dated December 14, 1999 concerning the interpretation of Art. 10 of the Constitution of Ukraine. Under the Constitution of Ukraine, Ukrainian as the state language is the language of instruction in Ukraine, while in educational establishments for national minorities their mother tongues may be used and studied as part of the academic activity, alongside Ukrainian.
Art. 20 of the K-K Law, incorporated into the 1991 Law "On Education", became the basis for reviving and justifying the soviet practice of opening numerous schools with Russian as the language of instruction in various regions of Ukraine and reducing the number of schools with instruction in Ukrainian. As a result, Ukrainians were forced to send their children to schools with the Russian language of instruction. At parents' request, students of Russian-language educational institutions were exempt from studying the Ukrainian language. The imbalance between the number of students in Russian schools and the percentage of Russians in the ethnic composition of the population was striking. Institutions with the Russian language of instruction turned into a powerful tool for the Russification of Ukraine.
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In schools for other national minorities, teaching was conducted exclusively in minority languages, while Ukrainian was taught as an academic subject. In practice, such schools were an instrument for suppressing the Ukrainian language from the education sector in some regions of Ukraine, primarily, in Zakarpattia and Bukovyna.
The anti-Ukrainian model of language regulation in the education system introduced under Viktor Yanukovych was abolished by the new Law of Ukraine No. 2145-VIII "On Education" adopted by the Verkhovna Rada on September 5, 2017 and effective as of September 27, 2017, when it was signed by the President of Ukraine.
Progressive standards
The new Law “On Education” aims to depart from the detrimental soviet and post-soviet educational practices in Ukraine, eliminate the devastating impacts of the corrosive activities of Dmytro Tabachnyk, Ukraine's Education Minister under Yanukovych, and mitigate the disastrous results of the Russification of education in Ukraine.
The law establishes progressive foundations for the modern national education system, which could not exist and function properly without the use of the Ukrainian language in the academic process.
In compliance with the provisions of the Constitution of Ukraine, Art. 7 of the new Law "On Education" declares the state language to be the language of instruction in educational institutions of all levels throughout the territory of Ukraine and guarantees every citizen of Ukraine access to instruction in the state language.
Besides, this Article guarantees to persons belonging to national minorities the right to study in public pre-school and primary education institutions in the language of the respective national minority, alongside the state language, while the indigenous populations of Ukraine are guaranteed the right to study in public pre-school and primary education institutions in their language, alongside the state language.
The law also guarantees the right to study the language of the respective national minority or indigenous population in public general secondary education institutions or through national cultural societies.
The provisions of the language article of the Law "On Education" are the result of a long and complicated process of making a compromise agreement. However, these provisions caused considerable dissatisfaction of some radical citizens of Ukraine, as well as aggressive protests of some neighboring states. In Ukraine, both during the finalization of the bill on education and after its adoption, there were vocal, albeit solitary, demands to limit as much as possible the rights of national minorities to education in their mother tongues, including the notorious proposition to amend the Law “On Education” No.3491-d as follows: "The language of instruction in Ukraine shall be the state language only."
It is easy to imagine the reaction of the national minorities of Ukraine and the Western democracies in case this amendment to the law was adopted, when even the very balanced provisions of its language article caused total resentment in Russia, Moldova, Hungary and Romania, as well as some critical remarks from Poland, Bulgaria, and Greece. It should be noted that the most vocal protests against this article were issued by the states where political forces profess irredentism, i.e., the policy of expanding a state's boundaries by including the territories of other states with the respective national minorities. The most hysterical reaction was observed on the part of Hungarian politicians suffering from the Trianon Treaty syndrome and dreaming of restoring the "Greater Hungary."
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Who is against?
Hungary's Minister of Foreign Affairs stated that his country would "block any initiatives beneficial to Ukraine in international organizations, especially in the EU." It is symptomatic that the official Budapest, despite the protests of the Ukrainian Ministry of Foreign Affairs, has organized and implemented a massive campaign of issuing Hungarian passports to ethnic Hungarians living in Ukraine, while the participants of a protest that took place in September 2017 in front of the Ukrainian Embassy in Budapest demanded to establish a Hungarian autonomy in Zakarpattia.
Another country that voiced strong protests and staged diplomatic demarches is Romania, which has a political party Great Romania (România Mare). Its purpose is to expand the territory of Romania through the accession to it of Romanian-inhabited territories of neighboring states, including the Ukrainian Bukovyna and a part of Odesa Oblast. The official Bucharest does not present explicit territorial claims to Ukraine; however, it encourages the issuance of Romanian passports to Ukrainian citizens of Romanian origin.
And, of course, Russia, where the Ministry of Foreign Affairs and the State Duma responded to the language article of the Law "On Education" with great resentment and clearly inadequate assessment. For instance, in a statement issued by the Russian State Duma, the Law of Ukraine "On Education" was qualified as an act of "violent Ukrainization" and "genocide of the Russian people" in Ukraine. Russia is a state that not only openly expresses its territorial claims to Ukraine, but also launched and continues an armed aggression against it. It began under the pretext of protecting the Russian-speaking population and resulted in the occupation of the most russified parts of Ukraine: Crimea and some districts of the Donetsk and Luhansk oblasts.
It is worth noting that, unlike in Hungary and Romania, Russia grants Russian passports to all Russian-speaking citizens of Ukraine, irrespective of their ethnic origin. This, obviously, is based on the baseless revanchist idea deeply rooted in the minds of the majority of Russian political elite, as well as ordinary citizens, that Ukraine is a part of Russia.
The issue of the language of instruction in Ukraine, thanks to the efforts of Hungary and Romania, has become the subject of debate at a session of the Parliamentary Assembly of the Council of Europe (PACE) that was hastily held on October 12, 2017 under an emergency procedure. Based on its results, PACE adopted Resolution No. 2189 (2017) under a clearly biased title "The new Ukrainian law on education: a major impediment to the teaching of national minorities' mother tongues."
110 out of 318 PACE members took part in the vote. The resolution was supported by 82 deputies, including a member of the Ukrainian delegation Mustafa Dzhemilev. 11 votes were cast against its adoption, while 17 deputies abstained.
During the discussion, the language article of the new Ukrainian Law "On Education" was accused of violating a number of European conventions, of limiting the rights of national minorities to instruction in their mother tongues, of aiming at closing schools with minority languages of instruction and their assimilation, etc. However, no speaker managed to bring either clear examples or at least references to a specific article or articles of any international treat violated by the provisions of Art. 7 of the Law of Ukraine "On Education." No specific proposals were made on amending it, either. The resolution itself stated: "Various neighboring countries claimed that this act infringes upon the rights of persons belonging to national minorities and raises sensitive legal issues also under the Ukrainian legal order" (p. 2).
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So, it deals with some kind of non-specific infringements outside the context of specific international agreements.
Paragraph 3 of the Resolution stresses the importance of fulfilling the obligations stemming from the European Convention on Human Rights, the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages, without any reference to specific countries.
The key statements of the resolution are its paragraphs 8 and 9. Paragraph 8 states that "the new legislation does not appear to strike an appropriate balance between the official language and the languages of national minorities," while paragraph 9 establishes the following: "In particular, the new law entails a heavy reduction in the rights previously recognised to “national minorities” concerning their own language of education." These national minorities, who were previously entitled to have monolingual schools and fully fledged curricula in their own language, now find themselves in a situation where education in their own languages can be provided (along with education in Ukrainian) only until the end of primary education."
The resolution warns against "hasty changes prejudicing the quality of education provided to pupils and students belonging to national minorities" and believes that "a three-year transitional period may prove to be too short" (pp. 10, 11).
At the same time, the resolution states that "the Assembly is aware that Ukrainian-speaking minorities in neighboring countries are not entitled to monolingual education in their own language" and recommends that these countries "show readiness to offer to the Ukrainian communities resident in their respective countries similar arrangements to those that they claim for their own minorities (p. 12).
The recommendation "that Ukraine examines best practices in Council of Europe member States in the field of teaching official languages" is addressed only to Ukraine. Finally, "the Assembly asks the Ukrainian authorities to fully implement the forthcoming recommendations and conclusions of the Venice Commission and to modify the new Education Act accordingly."
Prepare for defense
In the light of the events unfolding around the Law "On Education," Ukraine needs to pay extraordinary attention to protecting its position concerning the language of instruction, given the strategic importance of introducing a state model of using the Ukrainian language and minority languages in the education system to strengthen the national identity, consolidate the society, and ensure the security of Ukraine.
International law has no binding norms stipulating that all states must use in their national education systems any one, unified and specific model of language instruction. Various international instruments and legally binding agreements, such as the Convention for the Protection of Human Rights and Fundamental Freedoms (1950); Council of Europe's Framework Convention for the Protection of National Minorities (1995); European Charter for Regional or Minority Languages (1992); UNESCO Convention against Discrimination in Education (1960), as well as reference documents, such as Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (1990); Charter of Paris for a New Europe (1990); The Hague Recommendations Regarding the Education Rights of National Minorities (1996), the provisions of which govern the use of languages in education, are non-mandatory, i.e., they define several models of language regulation and let the state choose one of the them. Only the model chosen by the state and documented in its legislation is legally binding on it.
However, the analysis of the contents of the above laws and the practice of their enforcement indicates that the international law has certain general and generally recognized binding principles that the State has the right and obligation to strictly follow when selecting a specific model of language regulation in the education system.
These include the following principles:
· a language that is a state (official) language in the country is the language of its education system;
· the status of the state language means that it is mandatory for all levels of education, and all citizens of the State regardless of their ethnic origins should properly learn and master it. Meanwhile, the status of the language of an ethnic group allows its members to be educated in and (or) learn their mother tongue only in education facilities for the minorities in keeping with the procedure and the amount established by the State’s national legislation;
· regardless of their ethnic origin, the State’s citizens have an equal right to be educated in the state language;
· individuals belonging to national minorities have the right to receive education in their native language or to learn it in the amount that is necessary to maintain their ethnic individuality;
· the process of exercising the right to receive education in the native language or to learn the native language by the individuals from national minorities should not undermine the status of the state language as the language of the education system at all levels and across the State’s territory;
· the recognition of the state language as the language of the education system cannot serve as a reason to reject the rights of individuals from national minorities to receive education in their native language or to learn it;
· a balance of proper knowledge of the state language by all of the State’s citizens and the knowledge of their native language by national minorities should be secured to prevent enforced language assimilation on the one hand, and language segregation on the other hand;
· the balance between the knowledge of the state language and the languages of national minorities in the process of exercising one’s right to education is established based on the understanding of the state language priority as an instrument of social integration for individuals from national minorities into the wider society, as a way of full-scale use of all human rights in social life, and as a mechanism of strengthening political unity and national security of the State.
Provisions of Art. 7 of the Law of Ukraine "On Education" are formulated with the observance of these principles and violate no international obligations of Ukraine. The allegations regarding the violation by its provisions of the balance between the use of the state language and minority languages for education purposes does not take into account the fact of the imbalance to the detriment of the Ukrainian language that existed in the Soviet Union and was preserved by intertia after the restoration of the Ukrainian statehood. This happened because under pressure from Russia, the Russia-oriented and dependent political forces blocked the implementation of Art. 10 of the Constitution of Ukraine and the decisions of the Constitutional Court of Ukraine and prevented changes to the outdated discriminatory, anti-Ukrainian and anti-state models of linguistic regulation in the area of education.
Today, at the demand of the Ukrainian majority, the new Ukrainian Parliament elected after the Revolution of Dignity adopted a law, Art. 7 of which is aimed at eliminating the imbalance in the linguistic regulation in the area of education that is detrimental to Ukraine. The priority is the de-Russification of the education system and the elimination of unjustified and ungrounded preference for languages of other national minorities, which, by and large, affect their representatives, while creating a threat to the national security of Ukraine.
Smart balance
The issue of the balance between the use of the Ukrainian language and the languages of national minorities in education may not be reduced to just the mechanical comparison of the number of academic subjects taught in Ukrainian and in native languages of national minorities at different levels of education, outside the context and without regard to the social, economic, political, humanitarian, security and other factors contributing to the development of the society and the state.
The old model of using minority languages in the educational system of Ukraine, on the one hand, helped preserving, if not strengthening, the dangerous level of Russification of the country, and on the other transformed some of its regions into linguistic ghettos, the residents of which were deprived of the rights guaranteed by the Constitution of Ukraine and of the chance to live a full-fledged life.
The very low level of Ukrainian language proficiency of the pupils of schools for national minorities, including Hungarian ones, is also alarming. According to official statistics of the Ukrainian Center for Educational Quality Assessment (UCEQA), in 2016, more than 36% of their graduates in Zakarpattia scored 1 to 3 points on a scale of 1 to 12 during standardized external testing in the Ukrainian language, and in Berehovo county, the area of compact settlement of the Hungarian community, the same result was shown by 75% of graduates.
Art. 7 introduces a model of instruction in minority languages that launches a process of deep de-Russification, the natural completion of which will make irreversible the development of Ukrainian Ukraine. At the same time, this model guarantees the national minorities instruction in their native tongues and their further study in the scope entirely sufficient to maintain their ethnic identity and protect them from forced assimilation. Different variations of this linguistic model are used by the education systems of such European countries as Austria, Serbia, Slovakia, and Romania, which have numerous minorities, including Hungarian one, living in their territories.
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According to the educational law of Austria, instruction in the native tongue of the Hungarian minority living in Burgenland, as well as other minorities, is possible only in elementary school. In bilingual schools, all subjects are taught in the language of the respective minority and in German in approximately equal scope.
Ukraine’s new Law "On Education" does not provide for the closure of schools with instruction in the languages of national minorities. It is only aimed at expanding the teaching of the Ukrainian language for the protection of graduates from discrimination in the future. The linguistic model defined in Art. 7 is aimed not at limiting the rights, but at creating opportunities for the full-scale and full-fledged exercise by national minorities of all the rights provided for by the Constitution of Ukraine, including the right to education. Properly mastering the state language opens access not only to higher education, but also to active participation in all other important areas of public life of the country through the exercise of the right to be elected, work in the territory of Ukraine, in legislative, executive and judicial sectors, law enforcement agencies, security services and Armed Forces of Ukraine, to use cultural legacy, etc.
Critics of Art. 7 of the Law "On Education" seek to grant the national minorities the right to not know the Ukrainian language, thus subjecting them to self-discrimination, condemning them to political, social and cultural isolation, and denying them the opportunity to integrate into the society.
Maintaining the old model of instruction in the languages of national minorities will deepen their discrimination and isolation; reduce the use of the state language in an extremely important and sensitive area of public life; strengthen segregated linguistic enclaves in the border regions of Ukraine; threaten the unity of the country and create the basis for political separatism; undermine the economy in view of the use of budgetary funds for the training of labor resources for neighboring countries; weaken the sector of traditional security through the impossibility of employing citizens who do not speak Ukrainian in law enforcement agencies.
It is important to note that the language article of the Law "On Education" has a framework function. On the basis of its general provisions, various models of the practical use of minority languages in the education system can be introduced. It is necessary to take into account the wishes of local communities, national and cultural societies and associations of national minorities, and individual citizens. It is also necessary to consider such objective factors as the population size of national minorities, their compact or dispersed settlement in specific regions, cities, towns and villages, availability of material resources and professionally trained staff necessary to create and ensure the proper functioning of educational institutions with instruction in minority languages. The language article of the new Law "On Education" aims to create optimal conditions for the proper exercise of all human rights by national minorities, consolidate the society, strengthen national identity and political unity of the state, while eliminating and preventing threats to the state security.
So, what is needed for the effective application in the education system of the legislative provisions pertaining to the use of national minorities’ languages is not amending them formally, but building a constructive dialogue between the representatives of the Government and national minorities. This is important for the adoption and formulation of specific practical decisions that would take into account both the legitimate minority interests and the vital national ones.
The language article of the Law "On Education," together with the previously approved laws On State Service, requiring Government officials to master Ukrainian; On Television and Radio, increasing the share of songs in the state language in music programs and radio broadcasts; On Amendments to Certain Laws of Ukraine Regarding the Language of Audiovisual (Electronic) Media, which greatly increases the quota of TV programs and movies in the Ukrainian language, is an important step towards implementing Art. 10 of the Constitution of Ukraine and ensuring the comprehensive development and functioning of the Ukrainian language in all areas of public life throughout the country. However, both previously adopted and new regulations designed to promote the use of the Ukrainian language in some areas are not and cannot provide an alternative to the uniform, systemic and comprehensive legislation on the Ukrainian language. A draft of such a law has been developed and registered in the Verkhovna Rada of Ukraine as the Law of Ukraine On Ensuring the Functioning of the Ukrainian Language as a State Language No. 5670-d. Its adoption as early as possible will provide a solid legal foundation for consistently exercising the linguistic rights of both the Ukrainian majority and representatives of national minorities and improving the protection of national security.
Volodymyr Vasylenko is Judge of the International Criminal Tribunal for the former Yugoslavia in 2002-2005, former Ambassador to Benelux countries, EU and NATO
Translated by Anastasia Leonova
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