Logo Assembly Logo Hemicycle

The new Ukrainian law on education: a major impediment to the teaching of national minorities' mother tongues

Report | Doc. 14415 | 10 October 2017

Committee
Committee on Culture, Science, Education and Media
Rapporteur :
Mr Andres HERKEL, Estonia, EPP/CD
Origin
Reference to committee: Bureau decision, Reference 4315 of 9 October 2017. 2017 - Fourth part-session

Summary

The new Ukrainian education act does not appear to strike an appropriate balance between the official language and languages of national minorities.

Three principles should guide the consideration of issues raised by this new legislation: the first one is that knowledge of the official language of a State is a factor of social cohesion and integration and that it is legitimate for States to promote the learning of the official language; the second one is that language is an essential component of individual and collective identity and measures to promote the official language must go hand in hand with measures to protect and promote the languages of national minorities; the third one is the principle of non-discrimination.

Based on these principles and with the aim of upholding “living together”, the Ukrainian authorities should reconsider the issue of education in the language of minorities, having as a reference a flexible model of bilingual education for all persons belonging to “indigenous nations of Ukraine” and “national minorities”, with no discrimination; moreover, they should introduce flexibility regarding the length of the transition process and allow for arrangements tailored to the concrete circumstances.

From their part, the authorities of neighbouring countries should show readiness to offer arrangements of the same nature to the Ukrainian communities resident in their countries.

A Draft resolutionNote

1. The Parliamentary Assembly is concerned about the new Education Act adopted on 5 September 2017 by the Ukrainian Verkhovna Rada (Ukrainian Parliament) and signed on 27 September 2017 by the Ukrainian President, Petro Poroshenko.
2. Various neighbouring countries claimed that this act infringes the right of national minorities and raises sensitive legal issues also under the Ukrainian legal order. In this respect, the Assembly notes that the Ukrainian authorities have submitted the text of the Education Act to the European Commission for Democracy through Law (Venice Commission) for an opinion, which shall be delivered by the end of 2017; however, the Assembly expresses dissatisfaction that this step was not taken before the adoption of the Education Act. In addition, the Assembly is aware that in March 2017 the Advisory Committee on the Framework Convention for the Protection of National Minorities adopted its opinion on Ukraine (4th cycle) which should become public at the beginning of 2018 and that a report on Ukraine submitted by the Committee of Experts of the European Charter for Regional or Minority Languages (ETS No. 148) is being considered by the Committee of Ministers.
3. Under these circumstances, The Assembly considers it premature to take a stand on any legal issue. However, the Assembly believes that it is important to fulfil the commitments based on the European Convention on Human Rights (ETS No. 5), the Framework Convention for the Protection of National Minorities (ETS No. 157, “Framework Convention”), and the European Charter for Regional or Minority Languages, and to help re-establish a constructive dialogue between the different parties concerned. In this respect, for the Assembly, three interconnected principles must guide the stakeholders towards more consensual arrangements.
4. The first one is that knowledge of the official language of a State is a factor of social cohesion and integration and it is legitimate for States to promote the learning of the official language and to ask that the State language be a language of education for all.
5. The second one is that, as stated by the Advisory Committee on the Framework Convention: “Language is an essential component of individual and collective identity. For many persons belonging to national minorities, language is one of the main factors of their minority identity and identification.” Thus, where States take measures to promote the official language, these must go hand in hand with measures to protect and promote the languages of national minorities. If this is not done, the result will be assimilation, not integration.
6. The third one is the principle of non-discrimination. This principle not only applies to the recognition and effective protection of the rights of minorities, as enshrined in the Framework Convention, and of the specific rights enshrined in the European Charter for Regional or Minority Languages, but also to “the enjoyment of any right set forth by law” according to Article 1 of Protocol No. 12 to the European Convention on Human Rights (ETS No. 177).
7. For the Assembly, these three principles are essential elements of a wider concept of utmost importance, which in fact underpins the entire Framework Convention: the concept of “living together”.
8. Based on the above-mentioned principles and the encompassing concept of “living together”, the new legislation does not appear to strike an appropriate balance between the official language and the languages of national minorities.
9. 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. For the Assembly, this is not conducive to “living together”. However, the Assembly recognises that teaching solely in the minority language may disadvantage children of national minorities, who will not be able to acquire sufficient levels of the official language, which will consequently hamper their entering higher education and the labour market.
10. The Assembly therefore recommends that the Ukrainian authorities reconsider the issue of education in the language of minorities, having as a reference a flexible model of bilingual education for all persons belonging to “indigenous nations of Ukraine” and “national minorities”, with no discrimination. In concrete terms, a possible benchmark could be at least 60% of education curricula in the Ukrainian language and up to 40% in the language of the minority.
11. In planning the implementation of the reform, flexibility should be ensured to avoid hasty changes prejudicing the quality of education provided to pupils and students belonging to national minorities.
12. In this respect, a three-year transitional period may prove to be too short. Therefore, the Assembly urges the Ukrainian authorities to also introduce flexibility regarding the length of the process and allow for arrangements tailored to the concrete circumstances of the communities concerned and the situation in different areas.
13. The Assembly is aware that Ukrainian-speaking minorities in neighbouring countries are not entitled to monolingual education in their own languages and do not benefit from arrangements which seek to promote bilingual education. Therefore, the Assembly recommends that the authorities of neighbouring countries, which legitimately call for the protection of their minorities, show readiness to offer to the Ukrainian communities resident in their respective countries similar arrangements to those that they claim for their own minorities.
14. The Assembly decides to follow the developments in Ukraine with regard to the protection and promotion of regional and minority languages.

B Explanatory memorandum by Mr Andres Herkel, rapporteur

1 The new Ukrainian Education Act and its Article 7

1. The Ukrainian Verkhovna Rada (Ukrainian Parliament) adopted on 5 September 2017 a new Education Act, which was signed on 27 September 2017 by the Ukrainian President, Petro Poroshenko. The new law is intended to introduce major changes to Ukraine’s school and education system. In particular, the period of school education – “secondary general education” – has been extended from 11 to 12 years and has been divided into three stages: a four-year “primary secondary education”, a five-year “basic secondary education” and a three-year “field-specific secondary education” (see Article 13.3 of the Education Act). Significant changes in the programme and methods of teaching are also expected. For the Ukrainian authorities, these changes are required to modernise the system and bring it closer to European educational standards.
2. The enactment of this new legislation has provoked immediate and strong reactions from various countries, the claim being that the Education Act infringes upon the rights of minorities. The dispute is essentially around the heavy impact that the new law – and in particular its Article 7 – will have on the functioning of national minorities’ schools and on the learning by the national minorities recognised by Ukraine of their own languages.
3. Article 7 – entitled “The language of education” – reads as followsNote (in bold, elements which seem more relevant):
“1. The language of the educational process at institutions of education is the state language.
The State guarantees the right to obtain formal education at all levels (preschool, general secondary, vocational education and training, pre-tertiary vocational and higher), as well as out-of-school and postgraduate education in the state language at the state and communal institutions to each citizen of Ukraine.
Persons belonging to national minorities of Ukraine are guaranteed the right on education in municipal educational institutions of pre-school and primary education in the language of the national minority they belong to and in the official language of the State. This right is realised by creating (in accordance with the legislation of Ukraine) of separate classes (groups) with educational process in the language of the respective national minority group along with the official language of the State and is not applied to the classes (groups) with the Ukrainian language of educational process.
Persons belonging to indigenous peoples of Ukraine are guaranteed the right to study in municipal educational institutions of pre-school and general secondary education in the language of the respective indigenous people along with the official language of the State. This right is realised by creation (in accordance with the law) of separate classes (groups) with education in the language of the respective indigenous people of Ukraine along with the official language of the State and is not applied to classes (groups) with the education in the Ukrainian language.
Persons belonging to indigenous peoples, national minorities of Ukraine are guaranteed the right to study the language of the respective indigenous people or national minority in municipal institutions of general secondary education or in national cultural associations.
Hearing-impaired persons are given the right to education in sign language as well as to studying of the Ukrainian sign language.
2. Institutions of education ensure mandatory study of the state language, in particular, at institutions of vocational education and training, pre-tertiary vocational and higher institutions of education, in the amount that allows to perform professional activity in the area of choice using the state language.
Appropriate conditions for study of the state language are created for individuals belonging to indigenous people, national minorities of Ukraine, foreigners and stateless persons.
3. The state promotes study of international languages, first of all, English, at the state and communal institutions of education.
4. One or more disciplines may be delivered at institutions of education according to the educational programme in two or more languages: the state language, in English, in other official EU languages.
5. If a person obtaining vocational education and training, pre-tertiary vocational education and higher education wishes so, the educational institutions create possibilities for him or her to learn a language of indigenous people, Ukraine’s national minority as a separate discipline.
6. The State promotes the establishing and functioning abroad of educational institutions, in which the education is given in the Ukrainian language or the Ukrainian language is studied.
7. Peculiarities of usage of languages in certain types and at certain levels of education are determined by special laws.”

2 The impact of the new provisions on “the language of education” and reactions to them

4. To help understand the impact of these new provisions,Note I will highlight the following elements:
  • The act does not contain provisions that would allow “national minority schools” to continue to operate.
  • The persons who belong to the “indigenous nations of Ukraine” (Crimean Tatars, Karaites and the Gagauz people) or to national minorities will receive education in their own languages through the establishment of “separate” classes (or groups), the educational process being in the language of the respective national minority group along with the official language of the State (compulsory for all).
  • Persons belonging to the “indigenous nations of Ukraine” – i.e. Crimean Tatars, Karaites and the Gagauz people – will have the possibility to study their languages throughout the 12 years of “general secondary education”.
  • National minorities’ languages (other than those of the “indigenous nations of Ukraine”) can be the language of education only at the initial stage, i.e. pre-school education and four years at “primary secondary school”.
  • For persons belonging to national minorities, Ukrainian will be the only admissible language of education from year 5 to year 12. However, they will have the opportunity to learn their language during extra-curricular classes.
  • One or more disciplines may be studied, according to the educational programme, in addition to the State language, in English or in other official European Union languages.
5. The provisions of the act concerning national minorities should take full effect on 1 September 2020. The number of subjects with Ukrainian as the language of instruction at the middle secondary stage, i.e. in years 5 to 9, will be gradually increased starting from 1 September 2018.
6. The prevailing aim of the new law seems to be to reinforce the role of the Ukrainian language. This weakens the dominance of Russian in the school system in the south-eastern regions of the country. Indeed, it is obvious that the Russian-speaking minority (15% of the Ukrainian residents declare that Russian is their native language and 22% recognise both Ukrainian and Russian as their native languages) will suffer acutely from the impact of these changes.
7. The Romanian and Hungarian minorities are also heavily affected by the changes. There are 400 000 ethnic Romanians in Ukraine, including a Romanian community consisting of 150 000 people and a Moldovan minority of 250 000 people. The ethnic Hungarian minority in Zakarpattia Oblast consists of approximately 150 000 people.
8. Therefore it is certainly not surprising that the new law has provoked harsh criticisms, especially – but not only – in Hungary, Romania and Russia. The parliaments of Romania and Hungary passed resolutions claiming that the act severely restricts the right to education in the national language. Both Bucharest and BudapestNote threatened Kyiv with blocking Ukraine’s European integration. On 14 September 2017, the Ministers of Foreign Affairs of Bulgaria, Greece,Note Hungary and Romania sent a letter to Mr Pavlo Klimkin, Ukraine’s Minister of Foreign Affairs, alleging that the new law drastically curbed the already acquired level of minority rights in education and language use, and urged Mr Klimkin to use all the means at his disposal to avoid the new restrictive provisions coming into force.
9. In a resolution adopted on 27 September 2017, the Russian State Duma and Federation Council claimed that the Ukrainian law violated the rights of Russian-speaking minorities in Ukraine and would become an “act of ethnocide”. The resolution also called for the competent bodies of the United Nations, the Organization for Security and Co-operation in Europe (OSCE) and the Council of Europe to take action to protect national minorities in Ukraine.
10. I would like to stress again that the new law does not envisage the existence of “national minority schools”: education in minority languages – as well as education in the languages of the “indigenous nations of Ukraine” – will be provided in “minority classes” (or groups) at Ukrainian schools. This is in itself a change that the minorities concerned may consider dramatic.
11. According to official data, at present there are in Ukraine 581 schools with Russian as the language of instruction (around 356 000 pupils), 78 Romanian and Moldovan schools (around 19 000 pupils), 71 Hungarian schools (around 16 000 pupils) and 6 Polish schools (around 1 800 pupils); these institutions are apparently doomed to disappear or at least must be reshaped. The same fate will befall the higher education institutions such as the Hungarian Faculty of the Uzhhorod State University.
12. It is worth noting that national minority schools not only provide education in a given language; they also offer a cultural and upbringing programme (celebrations, assemblies, clubroom and library activities, etc.) implemented at school level. The changes, i.e. the closure or reshaping of these schools, will most probably undermine minorities’ rights to activities of this kind, with a possible impact on a wider population than the families directly concerned.
13. It is true that Article 7.4 of the new act provides for the possibility of learning one or more subjects in one of the official languages of the European Union. However, apart from the fact that this possibility is very distant from the previous arrangements, it can apply to Romanian, Hungarian and Polish for example, but not Russian and not to Moldovan as a distinct language from Romanian, because they are not European Union languages. Moreover, the introduction of such classes seems to be dependent on the curriculum adopted, which will be determined by the Ministry of Education of Ukraine.
14. A further consequence of the new legislation seems to be that it will become impossible to pass a school-leaving exam and acquire a diploma in any other language than Ukrainian.

3 Key issues raised by the new Ukrainian Education Act and possible ways forward towards new arrangements concerning education in the languages of minorities.

15. It is worth starting our reflection on how to help reconcile such diverging positions and apparently quite opposite interests by recalling three principles that, to me, should guide our consideration of the issues at stake and on which, I hope, we can all agree:
  • The first one is that knowledge of the official language of a State is a factor of social cohesion and integration and it is legitimate for States to promote the learning of the official language and ask that the State language be a language of education for all. I see no international standards which prevent Ukraine from asking that in all Ukrainian schools the education should also take place in the official Ukrainian language.
  • The second one is that: “Language is an essential component of individual and collective identity. For many persons belonging to national minorities, language is one of the main factors of their minority identity and identification.”Note Thus, where States take measures to promote the official language, these must go hand in hand with measures to protect and promote the languages of national minorities. If this is not done, the result will be assimilation, not integration.Note
  • The third one is the principle of non-discrimination.
16. I believe that any attempt to discuss the question of the language of education – be it in Ukraine or elsewhere – without keeping in mind these principles cannot be constructive. This means that our approach should be consistent with these three principles and the solutions that we are looking for cannot be one-sided.
17. To stress the first principle in the specific case of Ukraine, I will refer to Opinion No. 651/2011 of the Venice Commission on the draft Law on Principles of the State Language Policy of Ukraine: “The use and the protection of languages has been and remains a complex and highly sensitive issue in Ukraine, which has repeatedly become one of the main issues in different election campaigns and continues to be subject to debate – and sometimes to raise tensions – within the Ukrainian society.” The Venice Commission further noted that “[t]he balance between regional and/or minority language protection and the protection of Ukrainian as the state language, including the specific situation of the Russian language, continues to be a serious challenge for the authorities of Ukraine”.Note
18. The concern featuring the reasoning of the Venice Commission at that time was the need (already stressed in a previous opinion) to ensure “the pre-eminence of the Ukrainian language as the only State language, and to take additional measures to consolidate its role within Ukrainian society” (paragraph 42). The Venice Commission expressed reservations on the practical impact of the draft legislation submitted by the Ukrainian authorities at that time,Note and namely on the use of Russian (and of other minority languages meeting in some parts of the territory of Ukraine the 10% threshold set out in Article 7 of the draft law) “in parallel with the State language in many spheres of public and social life”.
19. Thus, for the Venice Commission the question (at that time) remained “whether the role the Ukrainian language has to play in the Ukrainian multilinguistic society, as the sole State language, is not endangered and whether its integrative force is not diminished by the protection, on the same level, of the regional and minority languages, in the above-mentioned spheres”. The Venice Commission added that “in the specific context of Ukraine, it is of key importance to opt for a balanced policy in this field, and considers that such an approach inter alia requires adequate guarantees for the preservation of the State language as a tool for integration within society” (paragraph 41).
20. In this respect, the Ukrainian authorities explained that secondary school graduates from minority groups experience high rates of failure when they wish to enter universities in Ukraine because of their extremely poor level of knowledge of the Ukrainian language. The new legislation also seeks to correct this. Without the knowledge of the State language a person is neither able to access the Ukrainian universities, nor is eligible for employment in public service and public offices in State or self-government bodies.
21. To stress the second principle I will refer to what the Advisory Committee on the Framework Convention for the Protection of National Minorities stated in the Thematic Commentary No. 3 on “The language rights of persons belonging to national minorities under the Framework Convention” (adopted on 24 May 2012):Note
“24. The Advisory Committee notes that preventing assimilation requires … positive action in order to ‘promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity’, including their language. …
25. Integration, as opposed to assimilation, is considered a legitimate aim to which both the majority and minority cultures contribute. It is understood, in this context, as a process of social cohesion that respectfully accommodates diversity while promoting a positive sense of belonging for all members of society. The creation of suitable conditions for persons belonging to minority groups to preserve and develop their cultures and to assert their respective identities is thus considered essential for an integrated society. As a two-way process, integration requires recognition and respect on both sides and may often lead to changes within both the majority and the minority cultures. …”
22. With regard to the principle of non-discrimination, I wish to recall that it not only applies to the recognition and effective protection of the rights of minorities, as enshrined in the Framework Convention, and of the specific rights enshrined in the European Charter for Regional or Minority Languages (ETS No. 148), but also to “the enjoyment of any right set forth by law” according to Article 1 of Protocol No. 12 to the European Convention on Human Rights (ETS No. 177) (general prohibition of discrimination), to which Ukraine is a Party. This does not necessarily imply that language rights recognised by the Ukrainian legislation shall be the same for all minorities, but does imply that objective and reasonable justification must be given for any differences in their treatment.
23. While keeping these three principles in mind, I think we should also remember that they are essential elements of a wider concept to which the Assembly gives utmost importance, and which in fact underpins the entire Framework Convention for the Protection of National MinoritiesNote: the concept of “living together”. The knowledge of the State language, the possibility to maintain and develop one’s own culture, including through one’s own language, and equal rights within the legal order are pre-conditions for “living together” and this especially in a multicultural and multilingual environment like Ukrainian society.
24. This brings me to the concrete approach I would like to suggest to the Ukrainian authorities, but also to the authorities of all the other countries which are concerned by the impact of the Ukrainian Education Act on their national minorities living in Ukraine: that they should sit together and discuss new arrangements which are not divisive and are intended to foster “living together”.
25. In seeking to provide guidance to this end, I believe that the Assembly should refrain, at this stage, from starting to discuss the possible legal issues, such as whether the new legislation complies with the Framework Convention or the Language Charter or any other binding international agreement for Ukraine.
26. There are two main reasons to avoid such a discussion:
  • First, three different relevant Council of Europe bodies are currently dealing with these legal issues. The Ukrainian authorities have already asked for an opinion of the Venice Commission, which announced that it will deliver its opinion by the end of 2017. The Advisory Committee on the Framework Convention adopted in March 2017 its opinion on Ukraine (4th cycle) which was then transmitted to the Ukrainian authorities; this opinion should become public at the beginning of 2018. A report on Ukraine submitted by the Committee of Experts of the European Charter for Regional or Minority Languages is being considered by the Committee of Ministers.
  • Second, whatever the outcome of such an analysis, we should take account of the political impact that the new legislation will have both on the national minorities, by reducing (somewhat drastically) the rights previously recognised to them, and on society as a whole, inasmuch as it may run counter to the spirit of promoting mutual respect and intercultural dialogue that is central to building cohesive societies. In short, we have to focus on “living together”.
27. Based on the above-mentioned principles, the new legislation does indeed appear to be problematic. This is not because it aims to promote better knowledge of the Ukrainian language among national minorities – which is a legitimate goal – but because it does not appear to strike an appropriate balance between the official language and languages of national minorities.
28. The situation of “indigenous nations of Ukraine” (Crimean Tatars, Karaites and the Gagauz people) has been somewhat preserved: they can continue to study in their own languages but together with Ukrainian for all the school cycle.
29. However, the new law entails too heavy a reduction in the rights previously recognised to “national minorities” (other than the “indigenous nations of Ukraine”) concerning their own language of education. These national minorities, which 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 languages can be provided (along with education in Ukrainian) only up to the end of primary education. This lack of continuity in minority language education may moreover discourage parents from enrolling their children in minority language schooling altogether.Note I believe that in a country like Ukraine this is not conducive to “living together”.
30. Therefore, I suggest that the Assembly urge the Ukrainian authorities to reconsider the issue, having as a reference a flexible model of bilingual education for all persons belonging to “indigenous nations of Ukraine” and “national minorities”. In concrete terms, with regard to minority languages, a possible benchmark could be at least 60% of education curricula in the Ukrainian language and up to 40% in the language of the minority. This flexible model should be accessible to all minorities with no discrimination, thus providing the same entitlement also for Russian-speaking communities and other communities who do not speak European Union languages. This, not necessarily and not only to comply with legal commitments under different conventions, but essentially for Ukraine to remain a role model country in this respect and aiming at upholding the notion of “living together”.
31. In reconsidering the issue, the Ukrainian authorities, in dialogue with the minorities concerned, should aim to keep the previous minority schools open, while establishing that they must introduce progressively a parallel education process in the Ukrainian language. This transformation can be achieved effectively if the system has the capacity to provide the right teachers. Therefore, while giving a tentative planning for the transition, flexibility should be ensured to avoid changes being decided on paper but not implemented, or even worse, their being badly implemented to the prejudice of the quality of education provided to pupils and students belonging to national minorities.
32. In addition, I believe that a three-year transitional period may prove to be too short to guarantee the quality of education. Therefore, I would urge the Ukrainian authorities to introduce flexibility also regarding the length of the process and allow for arrangements tailored to the concrete circumstances of the communities concerned and the situation in different areas.
33. Last but not least, it would be fair to recognise that Ukrainian-speaking minorities in neighbouring countries are not entitled to monolingual education in their own languages and do not benefit from arrangements which seek to promote bilingual education. Although “reciprocity” is not a principle which we want to use when it comes to the protection of human rights, I think it could be useful if, within the dialogue process, the authorities of neighbouring countries, which legitimately call for the protection of their minorities show readiness to offer to the Ukrainian communities residing in their respective countries similar arrangements to those that they claim for their own minorities. I am sure that this collaborative mood will help bring solutions that are much more constructive and consensual.
34. I have drawn up the draft resolution along these lines and hope that it will receive wide support. The issue is quite sensitive and there will be no ideal solutions without true goodwill to reach a compromise between positions that are today very distant.
35. I will conclude by adding that the Committee on Culture, Science, Education and Media will complete by the end of the year a report on “The protection and promotion of regional and minority languages in Europe” (rapporteur: Ms Rózsa Hoffmann, Hungary, EPP/CD), which might include the developments in Ukraine.
;