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2021, vol. 55, br. 3, str. 771-805
Divlja gradnja u sferi jezika
Univerzitet u Beogradu, Pravni fakultet, Katedra za međunarodno pravo i međunarodne odnose, Beograd

e-adresabranko@ius.bg.ac.rs
Projekat:
Ministarstvo prosvete, nauke i tehnološkog razvoja Republike Srbije (institucija: Univerzitet u Beogradu, Pravni fakultet) (MPNTR - 451-03-68/2020-14/200118)

Ključne reči: rodna ravnopravnost; jezik; rodna osetljivost; kulturno nasleđe; evolutivnost; zakon; nametanje; diskriminacija
Sažetak
Konstatujući da je društvena akcija u cilju postizanja što većeg stepena ravnopravnosti između muškaraca i žena potrebna i korisna, autor dovodi u pitanje valjanost pristupa iz nedavno usvojenog Zakona o rodnoj ravnopravnosti koji nastoji da rodnu ravnopravnost uspostavlja, uz ostalo, prisilnom intervencijom u sferi jezika, kroz nametanje primene tzv. "rodno osetljivog jezika". Pored toga što ovakav pristup teško da bi mogao da zaista doprinese ravnopravnosti, prisilna intervencija u sferi jezika predstavlja povredu jezika kao segmenta nematerijalnog kulturnog nasleđa, što je suprotno Ustavu Republike Srbije i nizu međunarodnopravnih akata. Srećom, odredbe Zakona o rodnoj ravnopravnosti koje se odnose na primenu rodno osetljivog jezika su u toj meri neprecizne, nejasne i pune unutrašnjih kontradiktornosti da se može konstatovati da su neprimenjive.

Limitations of legislative authorities of the state in the cultural heritage sphere

Despite its width, the legislative power of the state is not absolute. Legal limitations of the legislative power of the state derive from its constitution1 and from international law.

What would happen if, for example, the National Assembly of the Republic of Serbia enacted a law prescribing that all monastery churches in Serbia must be built on by additional 5 metres? Would that provision be legally valid and survive as such in the Serbian legal system?

As a more recent and special provision of the same rank in relation to the provisions in our law regulating the construction and protection of cultural heritage, this norm might derogate those provisions of a more general nature. However, the provision about the construction of additional structures on monastery churches would be contrary to Article 89 of the Constitution of the Republic of Serbia, which, inter alia, prescribes the obligation to protect cultural heritage.2 In addition, the obligation to protect cultural heritage also derives from corresponding international agreements signed by the Republic of Serbia that, according to the Constitution, produce a greater legal effect than the laws.3

Who determines what is and what is not cultural heritage?

By the beginning of the 21st century, both international and national regulations had protected exclusively tangible (movable and immovable) cultural heritage,4 but at the beginning of the 21st century, the international system of cultural heritage protection included intangible cultural heritage by the adoption of 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, signed by Serbia as well.5 Owing primarily to this Convention6, the approach to the cultural heritage protection has changed. Namely, the former objects of protection, i.e. movable and immovable goods, used to be protected due to their inherent aesthetic, artistic and historical values and importance, while the subjective element, or the attitude of human groups creating such heritage, keeping it or in any other manner related to it, were almost not considered at all. With the introduction of intangible cultural heritage protection in the international legal system and national legal systems, this subjective element became the focus of attention. Namely, intangible cultural heritage (i.e. according to the definition from Article 2, Item 1 of the Convention from 2003, "practices, representations, expressions, knowledge, skills,... hat communities, groups and, in some cases, individuals recognize as part of their cultural heritage") actually exists and survives through people as its holders and cannot, unlike tangible heritage, exist only for itself, and it is the fact that people recognize it as part of their cultural heritage is a determining factor in respect of what is or what is not cultural heritage.

This approach to understanding the issues of cultural heritage has expanded from the sphere of intangible to tangible cultural heritage as well, i.e. cultural heritage in general. Therefore, according to the definition from Article 2 of the Council of Europe Framework Convention on the Value of Cultural Heritage for Society,7 the expression "cultural heritage (meaning both tangible and intangible, added by B.M.R.) is a group of resources inherited from the past which people identify, independently of ownership, as a reflection and expression of their constantly evolving values, beliefs, knowledge and traditions",8 while the same Article introduces the concept of a "heritage community", the term that "consists of people who value specific aspects of cultural heritage which they wish, within the framework of public action, to sustain and transmit to future generations".9, 10

Placing men, i.e. individuals, human communities and groups into the focus of the sphere of the cultural heritage protection resulted in the right of access to cultural heritage and enjoyment of cultural heritage began to be considered and treated as integral part of the human right corpus in international legal acts in the sphere of cultural heritage protection (for more detail see: Rakić, 2020, pp. 1210–1259; Donders, 2020, pp. 379–406; Blake, 2015, pp. 271-312) - as a segment of the right to participate in cultural life of a community, proclaimed in the Universal Declaration of Human Rights from 194811 and the International Covenant on Economic, Social and Cultural Rights from 1966.12

As the very definition of the concept of cultural heritage includes the relationship of individuals, groups and communities towards it and as the right of access to cultural heritage and enjoyment of cultural heritage is a human right, that right clearly must exist independently of the will of the state to consider and declare (or not to consider and declare) a certain creation for cultural heritage. In fact, integral part of that human right should also be the right of the holders (an individual, group and community) to ask the state to declare a certain creation, which they find to fulfil subjective and objective conditions and thus makes a segment of cultural heritage, for cultural heritage and enter it as such in an appropriate register (this will be done by the state only if such creation really fulfils the listed conditions), i.e. to participate in what is called "the process of identification" of that cultural heritage.13 Namely, cultural heritage is cultural heritage on the basis of having appropriate objective and subjective features, while the state (or potentially the international organization) only records it in its act. Intentionally or unintentionally, we must observe that our Law on Cultural Goods from 199414 conveniently uses the term "determination",15 which is more suitable to the nature of the act in question than the term "declaration"

.

Is language cultural heritage?

For a great majority of people, there is no doubt that language is a segment of cultural heritage. By its nature, it is a segment of intangible cultural heritage. After all, what is cultural heritage if not language?16

As early as 1982, UNESCO Mexico City Declaration on Cultural Policies included both tangible and intangible heritage into its definition of cultural heritage, and ranks language in the first place as one of their elements.17 Moreover, UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore, adopted in 1989 as one of the first documents (although non-binding) dealing with intangible cultural heritage, underlining in its Preamble "the... importance of folklore as an integral part of cultural heritage and living culture", while its definition of folklore puts language in the first place among the elements constituting it.18 From the Final Report from the Intergovernmental Conference on Cultural Policies for Development held in Stockholm from 30th March to 2nd April 1998, it can be seen that this Conference also spoke about language as an important segment of cultural heritage.19 In the text presented at UNESCO International Round Table "Intangible Cultural Heritage-Working definitions", held in Piedmont, Italy, from 14th to 17th March 2001,20 in the process leading towards the adoption of UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage from 2003, UNESCO consultant Janet Blake also included languages in the forms of intangible cultural heritage (Janet Blakе, 2001).

As it can be seen, prior to the adoption of UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage in 2003, a relatively limited number of non-binding documents and debates at the conferences that mentioned intangible cultural heritage, treated language as one of the key forms in which intangible heritage is manifested. After the adoption of the 2003 Convention, things became somewhat more complex - in our opinion, only apparently.

Article 2, Item 1 of UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage from 2003 contains the following definition of immaterial cultural heritage:

"For the purposes of this Convention... the "intangible cultural heritage" means the practices, representations, expressions, knowledge, skills - as well as the instruments, objects, artefacts and cultural spaces associated therewith - that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.... "

The above-mentioned supposed answer of citizens to the question from the heading above confirms that language fits in with this definition - language is definitely a creation (practice, expression, knowledge and skill) that communities, groups and individuals recognize as part of their cultural heritage transmitted from generation to generation and providing communities and groups with a sense of identity and continuity (cf. Šuvaković,2019). It also includes everything else from the quoted definition.21

However, language as such is not listed among the "domains" in which intangible cultural heritage from the quoted definition is "manifested inter alia", given in the non-taxative list in Article 2, Item 2 of the Convention. In Line а) it is stated that intangible cultural heritage is also manifested in "oral traditions and expressions, including language as a vehicle of the intangible cultural heritage". This provision, therefore, does not treat language as such as a segment of intangible cultural heritage, but it belongs to intangible cultural heritage only as a vehicle of transmitting (in French, vecteur) of intangible cultural heritage.22

Rieks Smeets (Rieks Smeets, 2004, p. 157) and Janet Blake (Janet Blake, 2015. pp. 189-190), the participants in the preparation of the Convention text, testify about different opinions of the participants in negotiations regarding the treatment of language as a segment of intangible cultural heritage in the Convention text, i.e. about the fact that during the preparation of the Convention text, there was also a proposal (subsequently rejected) to include language as such among examples of intangible cultural heritage.23

Nevertheless, we should disagree with the conclusion that language in itself cannot, according to the Convention or generally speaking, be considered a manifestation of intangible cultural heritage24 - on the contrary, we share the opinion of Bruno De Witte that the above-mentioned "restrictive definition of intangible heritage, in the Convention's text,... does not deny that language is an element of cultural heritage, as it would be difficult to do so" (Bruno de Witte, 2020, p. 372). Although language as such is omitted from the list from Article 2, Item 2, that gives the "domains" in which intangible cultural heritage is "manifested inter alia", language as such, as we have already seen, perfectly fits in with the definition of intangible cultural heritage from Article 2, Item 1 of the Convention. In addition, historical interpretation should also include the understanding of the scope of intangible cultural heritage expressed in non-binding documents and at international gatherings before the adoption of the Convention.

There is yet another argument in favour of the fact that language as such is cultural heritage. Every nation, with no exception, has a large number of elements of intangible cultural heritage. The greatest part of those creations could not exist without language, which is their holder and transmitter.25 In that state of affairs, taking into account the multitude of various elements of intangible cultural heritage of different nations whose holders/vehicles are the languages of those nations, it may be said that each of those languages, holding and transmitting numerous "oral traditions and expressions" of the nation speaking it, is not the holder/transmitter of intangible heritage in only one of its aspects or segments, but "as such", it is the transmitter of a broad range of intangible heritage of that nation. It may be said that the sum of manners in which language carries and transmits various other elements of intangible cultural heritage of that nation actually makes that language "as such".

Finally, the fact that the 2003 Convention does not list language as such as one of the domains in which intangible cultural heritage is particularly manifested, does not constitute an obstacle to the states in doing it in their own national regulations, either implementation regulations of the state parties to the Convention, or the countries that are not parties to the Convention. Therefore, emphasizing the "the importance of the flexible model of the 2003 Convention that allows it to respond to new understandings and novel situations" and indicating the possibility for the state parties to include in their implementation acts the elements that were not explicitly dealt with in the text of the Convention. Janet Blake points out the very example of the languages that are treated as the domain of intangible cultural heritage by a number of African and Latin American state parties to the 2003 Convention in their respective regulations (Janet Blake, 2015. p. 190), while Lucas Lixinski reminds that the African Union also treats languages as an element of intangible cultural heritage (Lucas Lixinski, 2013, pp. 82-83).26 Besides the examples of African and Latin American national regulations, the constitutions of some European countries also speak about languages as such as a segment of intangible cultural heritage, for example the Constitution of Spain27 and the Constitution of France.28

In the end, we may definitely conclude that languages are quite certainly a segment of intangible cultural heritage, and that is the case with the Serbian language and other languages spoken in the territory of the Republic of Serbia. The obligation to protect language as a segment of intangible cultural heritage derives from the above-mentioned Article 89 of the Constitution of the Republic of Serbia, as well as from international law and, even if we leave as contentions whether that obligation is created by the 2003 Convention, from other documents stipulating the obligation of cultural heritage preservation in a general manner, for example the European Convention on Culture from 1954 or the Council of Europe Framework Convention on the Value of Cultural Heritage for Society from 2005 etc.

When we speak about language preservation, it does not mean its total freezing and excluding any changes whatsoever. Just as other elements of intangible cultural heritage, language is neither static nor unchangeable, but alive and subject to evolution. As Stadler and others say, "Human languages are a prime example of culturally evolving traits" (Stadler, Blythe, Smith, Kirby, 2016, p. 172). Nevertheless, that evolution must not threaten the essential stability of every language as a prerequisite for normal performance of this social function, and it must proceed in a natural, language-inherent manner and by language-inherent laws, the function of which is very complex.29

In contrast this scientifically established attitude, the authors of the "Guide to the use of gender-sensitive language in public administration in Serbia" adopted within the campaign in favour of forced intervention for language changes aimed at contributing to gender equality (through imposing the so-called "gender-sensitive language", despite the above-listed language-inherent laws by which language changes) say:

"Standard language is a normed and prestigious form of language, realized mostly among well-educated native speakers... Language standardization is a matter of agreement of those with the power over language, and it is not part of the language nature to such an extent. Standardization is the subject of a separate discipline-language planning. Standard language is used in written and oral communication in administration, media, and educational institutions." (Savić, Stevanović, 2021)

Apart from the frightening connotation of the very expression of "with the power over language", giving priority to that power over the language nature, even when standardization is concerned, is absolutely unacceptable. Determining what standard language denotes can and must be created solely within the framework of what has been created in a natural course of language creation and change, in compliance with language-inherent laws. Any use of "the power over language" outside those frameworks is violence over language and its undermining as a form of cultural heritage.

Such evolution by language-inherent laws is also a constituent part of language as a segment of cultural heritage. When language is protected as cultural heritage, its inherent evolution is also protected, as well as language-immanent laws by which such evolution is realized and performed.

Legal interventions in language for the purpose of "gender equality" in the legislation of the Republic of Serbia

That any discrimination, including gender-based discrimination, is something we should and must decisively fight against is indisputable to every sensible man. That stereotypes potentially constituting the basis for discrimination or creating the atmosphere favouring discrimination must be removed should also be indisputable.

However, even when it comes to useful and unquestionable matters, there is an extent to which we can go and which cannot be crossed, because otherwise there is a risk of a useful matter turning into its opposite. That has exactly happened in the past few years in Serbia, with radical feminist circles (cf. Antonić, 2011) striving towards forced imposition of the use of something they call "gender-sensitive language". In these attempts, they have managed to overcome the resistance of the profession and, most certainly, the majority of the people's will, and to make a breakthrough into the public sphere, up to the legislation level.

This campaign culminated in the adoption of the Law on Gender Equality on 20th May 2021.30 This law stipulates (or at least intended to stipulate) the eradication of any deviation of the grammatical gender from the natural gender, i.e. it prescribes the mandatory use of "gender-sensitive language". All this should be accomplished by using the above-mentioned "power over language", which someone believed to possess.

In the Serbian language, words have the so-called grammatical gender (noun, pronoun, adjectives, numbers and participles) - masculine, feminine and neuter. That gender is unchangeable in nouns, i.e. every noun has one gender (and is used only in masculine, feminine or neuter gender). When nouns denote living beings, those beings, as a rule, also have their sex, male and female, i.e. male and female natural gender (it is not the gender of the noun itself, but of the being denoted by that noun). The grammatical gender of nouns most frequently corresponds to, but not necessarily, to the natural gender of the being denoted by that noun (cf. Klajn, 2005, p. 47; Piper & Klajn, 2013, pp. 53–57).

This state of affairs is an inherent feature of the Serbian language (and not only Serbian, but similarly in a number of other languages, e.g. French). Language undergoes evolution by its inherent laws, also following life trends and requirements, so that new words are created too, whereas some nouns that denote living beings have the grammatical gender that corresponds to the sex of those beings, and some do not. Language also reflects social relations, and sometimes changes in the language sphere follow the changes in those relations, but in a slow and subtle process. In return, language can have a certain influence on the formation of social relations, but definitely not the power to change them essentially. On the other hand, the Committee for the Standardization of the Serbian Language of the Serbian Academy of Sciences and Arts states:

"The view of the world, cultural system or social system are not conditioned by mere existence or non-existence of certain grammatical categories, therefore they cannot be changed either by their introduction or insistence on their consistent use.”31

In any case, as we have already said, the above-listed interactions and changes in the language sphere occur in a natural and spontaneous manner and are not and cannot be the result of imposition whatsoever. That natural evolutive character of language - inherent laws constitutes, as we have already stated, a segment of language cultural heritage.

The Law on Gender Equality, prescribing forced changes in the language sphere, undermines one of the most important segments of our cultural heritage, i.e. its intangible segment-the Serbian language (as well as other languages that are spoken in Serbia and have appropriate characteristics).

In Article 6, Paragraph 1, Item 17 of the Law on Gender Equality, gender-sensitive language is defined as follows:

"Gender-sensitive language is the language that promotes equality of women and men and an instrument that affects the awareness of those using that language in order to achieve equality, including the change in opinions, attitudes and behaviour within language used in private and professional life."32

Article 10, Paragraph 3, Item (6) of the Law on Gender Equality stipulates that special measures must ensure "the use of gender-sensitive language in order to influence on the removal of gender stereotypes in the exercise of rights and obligations of women and men". Pursuant to Article 25, Paragraph 1 of the Law, public authorities are obliged, inter alia, "to continuously monitor the use of gender-sensitive language in the names of work places, titles and professions". Article 37, Paragraph 1, Item 4), Line (3) of the Law stipulates that in the field of education and upbringing, science and technological development, it is mandatory "to use gender-sensitive language, i.e. language in compliance with the grammatical gender, in textbooks and teaching materials, as well as in certificates, diplomas, classifications, titles, professions and licences, and other forms of educational and upbringing activity". Pursuant to Article 44, Paragraph 3, "the media are obliged to use gender-sensitive language in reporting". Article 73, Paragraph 1 stipulates that "the Government, i.e. the relevant autonomous province body and local self-government units are obliged… to harmonize corresponding acts… within six months of the effective date of this law" (it is not stated what they should harmonize corresponding acts with, but obviously it refers to the harmonization with the requirements from the Law). Moreover, Paragraph 2 stipulates the postponed application of the cited Article 37, Paragraph 1, Item 4), Line (3) and Article 44, Paragraph 3, so that these provisions will be applied three years after the adoption of the Law, or from 20th May 2024.

Looking at the above-listed provisions, it remains clear what gender-sensitive language actually is. The definition from Article 6, Paragraph 1, Item 17 of the Law indicates what should be accomplished by the application of gender-sensitive language, but not what it actually is or what its features and content are. There is no legal standard in this respect, and from the official strategic documents adopted (even before the adoption of the law in question) for the purpose of achieving gender equality it is not clear what exactly "gender-sensitive language" is".33

When the sphere of science speaks about gender - sensitive language, it most frequently refers to what the most outstanding experts on our language have written about on numerous occasions and in an extremely criticizing manner-in the first place, that is the creation of new social femininatives,34 so far unknown in the Serbian language, or dissemination of the use of social femininatives that are applied only in some styles (as a rule, more informal) in all language styles.35

However, although the cited legal definition (from Article 6, Paragraph 1, Item 17 of the Law on Gender Equality) is unclear and actually fails to determine what gender-sensitive language contains, the text of the Law on Gender Equality also seems to make an attempt at determining what makes gender-sensitive language, i.e. how it is achieved. Here we deliberately use the word "attempt", because what was achieved is exactly opposite. Namely, we have seen that Article 37, Paragraph 1, Item 4) Line (3) of the Law prescribes "the use of gender-sensitive language, i.e. language that is in compliance with the grammatical gender" in education. Although in nomotechnics the word "i.e. " as a rule means "and/or", it seems that here the legislator uses this word in the meaning of "that is/namely". If that is the case, it turns out that, according to the Law, gender-sensitive language is actually "the language that is in compliance with the grammatical gender", which points to giving some kind of primacy to the grammatical gender (over something else that we are not familiar with), while the grammatical gender is exactly what does not necessarily need to be in compliance with the sex in the Serbian language, or with the natural gender of the subject denoted by the given noun. Therefore, if one tries to see some sense in this absurd provision, that sense can be only contradictory to what, as far as we know, the proponents of the application of gender-sensitive language strive for.

Curiously, Article 6, Paragraph 2 of the Law on Gender Equality contains a provision that is contrary to the imperative of the application of gender-sensitive language contained in the same Law. That provision reads: "The terms used in this Law and the regulations based on it, which have a gender meaning and are expressed in the grammatical masculine gender, imply the natural feminine and masculine sex of the person they refer to."36 Therefore, the practice is prescribed to use terms in the masculine grammatical gender that will imply both feminine and masculine natural gender, which negates the effect of those provisions of the same Law that order the use of gender-sensitive language, i.e. language that should actually eradicate such practice.

The vague meaning of the concept of gender-sensitive language and its definition from Article 6, Paragraph 1, Item 17 of the Law, the contradictory nature of the obligation from Article 37, Paragraph 1, Item 4), Line (3) of the Law to use the "language in compliance with the grammatical gender" in education (which supposedly achieves gender sensitivity) to what we assume as the legislator's intention when imposing the obligation to use gender-sensitive language and, finally, a sort of "legalization", in Article 6, Paragraph 2, is exactly what is not gender sensitive according to the attitudes of the proponents of gender-sensitive language. All the above-mentioned makes the provisions of the Law on Gender Equality confusing in the segment referring to the obligatory application of gender-sensitive language, and contradictory to itself to the point of inapplicability.

In case it were applicable, i.e. if it really contained what the authors of the document supposedly wanted but failed to prescribe, this Law would, apart from the use of unnaturally complicated and almost comic language, also call for an unbelievably extensive review of the existing regulations in the future, so as to fulfil the above-cited requirement from Article 73, Paragraph 1 - "to harmonize corresponding acts". In fact, as it is correctly stated by the Committee for the Standardization of the Serbian Language, "an allegation that the use of the generic masculine gender threatens women's rights would… imply that almost all legislative acts of the Republic of Serbia, starting from the Constitution, are gender discriminatory, because they do not consistently use the forms of the feminine gender".37 It would be a huge, lengthy and terribly expensive job, but at the same time absurd.

As we have already said, languages are not static, but evolutive categories and their evolution proceeds by certain laws inherent to every language. If that evolution proceeds by language-inherent laws, that will naturally lead to an increasing number of social femininatives as well, i.e. the expanded application of what is, by all odds, understood under the term "gender-sensitive language". Therefore, Piper and Klajn state the following:

"Within developmental processes in the Serbian language, there is a tendency of increasing the number of social femininatives, or of changing the grammatical status of the existing femininatives. It is quite possible that, for example, the noun female professor in terms of style will be almost equalized with the noun female teacher (female professor is currently rather a feature of the colloquial way of expression, in which it is normatively perfectly correct). It is also possible that some of the more recent femininatives (e.g. female member of parliament or 'woman member of parliament') will with time cease to be seen as a more recent word characteristic of the media language and individuals of a certain political orientation. These processes should not be artificially accelerated or slowed down." (Piper & Klajn, 2013, p. 55)

If the proponents of gender equality want to contribute to achieving a higher degree of language "gender sensitivity", they should use other instruments to contribute to gradual and essential changes in the society (increasing the degree of sex equality in education, at work etc.) - the instruments that will remove all forms of discrimination, including those gender/sex-based, which will almost certainly be reflected on language, in a natural way and in compliance with language-inherent laws.

In the end, the last sentence in Article 2, Item 1 of UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage from 2003 reads:

“For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.”

Do this and similar provisions of international documents38 in any manner limit our statement that the introduction of the obligatory use of "gender-sensitive language" is contrary to the Constitution and international legally prescribed obligation to protect cultural heritage which, in our opinion, language not only belongs to but in which it also has a central place? Absolutely not. As it has been properly stated in the above-mentioned Decision No. 60 of the Committee for the Standardization of the Serbian Language of 24th February 2011:

"The position that only gender-differentiated language is the language of gender equality, and that the generic use of the masculine grammatical gender, or the assumption that such use is automatically "gender neutral", undermine that equality, constitutes exactly the banalization of the linguistic theory...

...Equality does not depend on the use of certain grammatical categories, but on the context in which they are used, or - on the meaning of the entire text."39

Conclusion

Calling for the necessary introduction of the obligation to use gender-sensitive language in our country, and the subsequent announcement and finally the adoption of the law that will formally introduce that obligation, caused numerous reactions, comments and debates. The proponents of the obligatory use of gender-sensitive language cite the discriminatory character of the former language practice and the necessity of removing gender-based discrimination through intervention in the language sphere. A great majority of language experts, as well as a great majority of citizens, regardless of their sex, find the proposed, and now already prescribed interventions in the language sphere contrary to the language nature, unacceptable and at the same time dangerous and comic. Some more radical proponents of gender-sensitive language consider such response of the profession and citizens an expression of misogyny.

However, although it is the imposition of changes in the language through law, there were almost no comments on whether such imposition is contrary to other regulations with a higher legal effect. Our conclusion is that that it is, while there is an obligation to protect cultural heritage as prescribed by the Constitution of the Republic of Serbia and corresponding international agreements that are binding for the Republic of Serbia. The language is a segment of cultural heritage and also among the most important ones, on which a series of other segments of cultural heritage relies for their existence and survival.40

The adoption of the Law on Gender Equality was received as the triumph of theadvocates of gender-sensitive language and its mandatory use. The adopted text points to high and far-reaching ambitions of its authors and proponents at the level in question.

Although both the law proponent and the lawmaker in charge of issuing a decree about its declaration were entitled and obliged to prevent the adoption of those provisions contrary to the constitutional and international legal obligation of cultural heritage protection, which also includes the prevention of introducing forced changes in the language sphere, it did not occur.

Nevertheless, our conclusion is that the range of this Law is rather small when it comes to the use of gender-sensitive language. The content of this Law is vague and contradictory to such an extent that the provisions stipulating the obligatory use of "gender-sensitive language" are practically not applicable.

It seems that the combination of great ambitions and scarce professionalism has accomplished its task, fortunately for us and for the language. Perhaps this task was accomplished by a well-meaning saboteur involved in the preparation of the text of the Law on Gender Equality.

Dodatak

Acknowledgement

The paper is the result of the research conducted within the scientific and research activity ofthe Faculty of Law, University of Belgrade, supported by the Ministry of Education, Science andTechnological Development of the Republic of Serbia.

Author would like to thank colleague Mina Kuzminac, PhD student at the Faculty of Law,University of Belgrade, and philologist BA, for useful advice regarding linguistic matters.

Endnotes

1Although the adoption of the constitution is an integral part of that power, when the constitution exists, laws and acts must not be contrary to it.
2Article 89 of the Constitution of the Republic of Serbia (“Official Gazette of the Republic of Serbia”, No. 98/2006”) reads:
“Everyone shall be obliged to protect natural rarities and scientific, cultural and historical heritage, as well as goods of public interest in accordance with the Law.
The Republic of Serbia, autonomous provinces and local self-government units shall be held particularly accountable for the protection of heritage.”
3Article 194, Paragraphs 2–5 of the Constitution of the Republic of Serbia, regulating the hierarchy of legal acts, reads:
“The Constitution shall be the supreme legal act of the Republic of Serbia.
All laws and other general acts enacted in the Republic of Serbia must be in compliance with the Constitution. Ratified international treaties and generally accepted rules of the international law shall be part of the legal system of the Republic of Serbia. Ratified international treaties may not be in noncompliance with the Constitution.
Laws and other general acts enacted in the Republic of Serbia may not be in noncompliance with the ratified international treaties and generally accepted rules of the International Law.”
4At that time, the term cultural property or sometimes cultural objects was predominantly used In international documents, cultural heritage, or legacy, as another translation of the same notion, was mentioned only in some provisions, while the document that systematically uses the term cultural heritage/legacy both in its title and throughout its text is UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage. The reason for this is primarily that it is cultural and natural heritage and it is intended to emphasize its significance to humanity, which would be difficult to achieve by using “world natural and cultural goods”.
5On 5th May 2010, the National Assembly of the Republic of Serbia adopted the Law on the Ratification of the Convention for the Safeguarding of the Intangible Cultural Heritage (“Official Gazette of the Republic of Serbia – International Agreements”, 1–10, 2010).
6Also in UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions from 2005.
7“Official Gazette of the Republic of Serbia – International Agreements”, No. 1 of 21st May 2010.
8Article 2, Item а) of the Framework Convention.
9Article 2, Item b) of the Framework Convention.
10This subjectivization of the very concept of cultural heritage and inclusion of the concept of the heritage-related community in the right to the cultural heritage protection, and the determination of the role of such communities, according to theoreticians, “... signifies that heritage awareness in the future should stem not only from professional expertise but also from the aspirations of population groups which ... are linked by a purposive commitment to specific heritages” (Vícha, 2014, p. 33) or “(c)ultural heritage not only has an objective dimension, but it is particularly important for its subjective dimension, in terms of how it is perceived by individuals and communities as being associated with their cultural identity and their sense of belonging to a community” and “(it) is precisely the intrinsic link between cultural heritage and cultural identity of individuals, groups and humankind that justifies the national and international protection and preservation of cultural heritage” (Donders, 2020, pp. 379–380)
11Article 27, Paragraph 1.
12Article 15, Paragraph 1, Items a) and b).
13In the report of Farida Shaheed, the UN Special Rapporteur in the field of cultural rights, of 21st March 2011, submitted to the UN Human Rights Council in compliance with its Resolution 10/23 (Human Rights Council, Report of the independent expert in the field of cultural rights, Farida Shaheed, A/HRC/17/38 of 21st March 2011), it is stated that the scope of authorities of individuals and communities within their (individual and collective) human right of access to cultural heritage and the enjoyment of cultural heritage also includes, among other things, the right to “participate in the identification ...of cultural heritage” (Paragraph 79). Moreover, the elaboration of this authority recommends the following: “No inscription on UNESCO lists relating to cultural heritage or national lists or registers should be requested or granted without the free, prior and informed consent of the concerned communities.” (Paragraph 80, Item c). According to the Council of Europe Framework Convention on the Value of Cultural Heritage for Society, the Parties “undertake to ... encourage” citizens to participate, inter alia, in “the process of identification... of the cultural heritage” (Article 12, Item а).
14“Official Gazette of the Republic of Serbia”, No. 71/94, 52/2011 – other laws, 99/2011 – other law, and 6/2020 – other law.
15Therefore, Article 3, Paragraph 1 stipulates the following: “Cultural goods are determined in compliance with the provisions of this Law”, while Chapter IV of the Law (with Articles 47–58) is entitled “Determination of cultural goods”. This Chapter deals with the procedure of adopting acts that determine a creation as a cultural good. Chapter V is dedicated to the entry in the register. It seems that the above-listed international documents under the “identification” of cultural heritage also imply the adoption of an act on determination and entry in the register. However, that is a technical detail and not a major one.
16Rieks Smeets, a Dutch linguist, former Chief of the Intangible Heritage Section at UNESCO and Secretary of the Intangible Cultural Heritage Convention, states the following: “When faced with the question as to what domains belong to the Intangible Cultural Heritage, people almost invariably mention language, often alongside music and dance.” (Rieks Smeets, 2004, p. 156)
17“23. The cultural heritage of a people includes the works of its artists, architects, musicians, writers and scientists and also the work of anonymous artists, expressions of the people’s spirituality, and the body of values which give meaning to life. It includes both tangible and intangible works through which the creativity of that people finds expression: languages, rites, beliefs, historic places and monuments, literature, works of art, archives and libraries.” – Mexico City Declaration on Cultural Policies, Paragraph 23. (https://culturalrights.net/descargas/drets_culturals401.pdf). UNESCO adopted the Mexico City Declaration on Cultural Policies in 1982, during Mundiacult World Conference on Cultural Policies, with the aim of determining new directions of cultural cooperation and closer communication among people.
18“Folklore (or traditional and popular culture) is the totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means. Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.” – UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore, adopted on 15th November 1989 by the General Conference of the United Nations Educational, Scientific and Cultural Organization, Paragraph A, accessed on 15th August 2021 on: http://portal.unesco.org
19Intergovernmental Conference on Cultural Policies for Development, Stockholm, Sweden, 30th March – 2nd April 1998, Final Report, CLT-98/Conf.210/5, 31 August 1998, Paragraphs 27, 52 and 55.
20International Round Table “Intangible Cultural Heritage” – Working definitions (Piedmont, Italy, 14th to 17th March 2001)
21Namely, Rieks Smeets says: “... languages are transmitted from generation to generation, they are constantly re-created, they presuppose knowledge and skills, and speech acts can be described in terms of linguistic practices and expressions. Finally, languages as a rule play important if not crucial roles in the identities of groups and individuals.” (Smeets, 2004, pp. 156–157)
Bruno de Witte also states that language completely corresponds to the definition of intangible cultural heritage from Article 2, Item 1 of the Convention. Quoting one sentence after another from that definition, De Witte states that “it seems difficult to argue ... that languege of ... communities are not covered by that broad definition”, that it would be “it is hard to deny that the language spoken by the community helps to provide ... semse of identity and continuity”, and that “if a central aim of the Convention, according to its article 1(a), is to safeduard the viability or ensure the revitalization of the intangible cultural heritage, then language would seem an appropriate object of protection, since many of the world’s languages are endangered” (de Witte, 2020, p. 372)
22Alternatively, according to Bruno de Witte, “language is protected because, and to the extent that, it gives expression to an element od a community’s intangible cultural heritage other than the language itself ” (de Witte, 2020, p. 371).
23As a reason for that restrictive approach, Bruno de Witte mentions resistance of the states to external interference in domestic cultural policies and the fear that prescribing obligations at this level could flow over into the tricky field of state policy in the field of official language use (Bruno de Witte, 2020, p. 372). In this statement, De Witte cites Ana Vrdoljak (Vrdoljak, 2014, pp. 139-175). Another reason given for not including language as such in the above-mentioned non-taxative list is that including language in international or even national lists of intangible cultural heritage (while the Convention stipulates the establishment of such lists) would inundate those lists with numerous languages existing in the world and create huge costs, which is indicated, according to Rieks Smeets (Rieks Smeets, 2021), by the process of determining criteria of UNESCO program of Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity from 2001), the predecessor of the UNESCO Representative list of intangible cultural heritage based on the 2003 Convention. Lucas Lixinski also expresses his opinion that the committee in charge of preparing the Draft Convention from 2003 took care of certainly large costs of protecting all languages as part of heritage (Lucas Lixinski, 2013, p. 162).
24That is concluded, for example, by Tullio Scovazzi. Namely, pointing to different opinions of the negotiators in the course of adopting the Convention about whether language as such should be included as an element of intangible cultural heritage, he considers the fact that it was not done the basis for the conclusion that, according to the Convention, language as such is not intangible cultural heritage, but only when it is an instrument for manifesting some other intangible heritage (Tullio Scovazzi, 2012, p. 182).
25This connection was pointed out in the most beautiful and succinct way possible by UNESCO Director-General Federico Mayor, warning about the dangers to which languages are exposed, in his opening address at the Intergovernmental Conference on Cultural Policies for Development, held in Stockholm from 30th March to 2nd April 1998: “By developing communication along inegalitarian lines, as it is now doing, globalization will inevitably result in some degree of cultural standardization and uniformity, and we will be the losers. Under the combined effect of urbanization, changes in living environments and lifestyles and the levelling-down that the use of modern technologies often brings in its wake, almost 90 per cent of the world’s languages may disappear and, with them, whole sections of our cultural heritage. After all, languages are the soul of culture. They express more than just languages per se because they come from the depths of the ages, bringing with them the cultural sediment that forms the bedrock of our future. We must not allow them to disappear. We have to protect them.” – Intergovernmental Conference on Cultural Policies for Development, Stockholm, Sweden, 30 March – 2 April 1998, Opening Address by Mr. Federico Mayor, Director-General of UNESCO, Final Report, CLT-98/Conf. 210/5, 31 August 1998, p. 82.
26In order to point to an “example of practical application of this aspect of intangible cultural heritage”, Lixinski quotes an article by Matilda Burden about the Afrikaans Language Museum in Cape Town (Matilda Burden, 2007, pp. 82–91).
27Article 3, Paragraph 3 of the Spanish Constitution stipulates the following: “The wealth of the different language modalities of Spain is a cultural heritage which shall be the object of special respect and protection.”
28Article 75-1 of the Constitution of France seems to be more restrictive because it refers to regional languages. “Regional languages are part of France’s heritage.” However, we believe that the mentioned qualification a fortiori also applies to the French language, which is, pursuant to Article 2, Paragraph 1 of the Constitution, “the language of the Republic”.
29Stadler and others also say as follows:
“Human languages... are made up of socially learned conventions which are constantly being replicated and which exhibit great diversity across the globe. Important aspects of the dynamics of language change are well-understood. Firstly, language change is sporadic. Of all the conventions that make up a single language, at any given point most of them are not undergoing change, but are replicated faithfully, from basic word order patterns down to the pronounciation details of individual words. Languages are transmitted robustly over many generations, a necessary requirement for their use as a tool for communication. Secondly, when a convention does change, individuals will gradually replace an established variant with a new variant.” (Stadler, Blythe, Smith, Kirby, 2016, p. 172)
Morten Christiansen and Simon Kirby state the complexity of language evolution in the following way: “Language... is never stationary, changing over time and within populations which themselves are dynamic. It is infinitely flexible and (almost) universally present. It is by far the most complex behavior we know of – the mammoth efforts of 20th century language research across a multitude of disciplines only serve to remind us just how much about language we still have to discover.” (Christiansen, Kirby, 2003, pp. 304–305)
About the evolutive nature of languages and the manner in which they evolve, see, for example Anastasia Thanukos, 2008, as well as Hauser, Chomsky and Tecumseh Fitch, 2002.
30“Official Gazette of the Republic of Serbia”, No. 52/2021
31Decision No. 60 of the Committee for the Standardization of the Serbian Language of 24th February 2011 (the text previously adopted by the Scientific Council of the Institute for the Serbian Language of the Serbian Academy of Sciences and Arts). Available at: https://www.isj.sanu.ac.rs/2018/05/14/jezik-rodne-ravnopravnosti/
32We must pay special attention to the fact that this definition indicates (although it is confusing too, and it is difficult to be certain as to what it indicates) that the aim is to introduce “gender-sensitive language” not only at the public level, but also in “private life” of the people. That makes the targeted reach of this Law much greater and its targeted effect more far-reaching.
33For example, the National Strategy for Gender Equality for the period 2016-2020 with the Action Plan for the period 2016-2018, adopted by the Government of the Republic of Serbia, looks back at the unfulfilled expectations from the previous document of the same type and states: “The application of the policy of equality of opportunity and gender equality implies the use of non-discriminatory, gender-sensitive language. The National Strategy for the improvement of women’s position and gender equality, whose activities refer to the period until 2015, recommended the introduction of non-discriminatory terminology and standardization of the Serbian language regarding the proper use of gender and appropriate expressions in regulations and communication. This recommendation was not implemented.” (“Official Gazette of the Republic of Serbia”, No. 4 of 22nd January 2016 – page 4 of the document) Equalizing gender-sensitive language with non-discriminatory language, the authors of this document either reduce the concept of what they consider gender-sensitive language to what eliminates expressions with a truly discriminatory character (which constitute or lead to different treatment in the same situations or to the same treatment in different situations) of they treat the concept of discrimination with unsubstantiated expansion. Moreover, although this document strives for the introduction of something that is a novelty in comparison to the century-long language practice, it calls those novelties, no more no less, “the proper use of gender and appropriate expressions”. Having in mind that the fact pointed to by Stadler and others that “human languages ... consist of socially established conventions that are constantly replicated” (Stadler, Blythe, Smith, Kirby, 2016, p. 172), it is a bit of an exaggeration to consider a non-existent practice in the language sphere proper (only because someone, even with the most human intention, wants to introduce it), while considering century-long practice, i.e. socially established and conventions replicated for centuries – improper. In the end, the above-mentioned National Strategy does not give an answer to what gender-sensitive language is, but, intending, “in the absence of standardized terminology of gender equality, to give a “uniform ... meaning of certain expressions”, offers the following definition of gender-sensitive language (which did not even have to be provide because it does not clarify anything at all): “gender-sensitive language is a language of gender equality” (“Official Gazette of the Republic of Serbia”, No. 4 of 22nd January 2016. – page 4 of the document)
34“Social femininatives are suffix noun derivations of feminine gender with the meaning of a professional or some other social status, e.g. female Christian, female cleaner, female boss etc., in contrast to biological femininatives such as lioness, tigress etc.
A masculine noun can often be used either to denote a person of male sex (Miloš is a student) or to denote a person of female sex (Milica is a student; although it is also correct to say: Milica is a female student) or to denote a group of persons of male and female sex (Miloš and Milica are students)” (Piper and Klajn, 2013, pp. 54–55).
35Therefore, Predrag Piper and Ivan Klajn say the following:
“There are also social femininatives derived from masculine nouns, which are widely used in collocation style, but less frequently in some other styles, and avoided ion scientific and administrative styles. Outside collocation style, instead of such femininatives, corresponding masculine nouns are commonly used in the context that shows those nouns refer to persons of female sex, e.g. She is an excellent teacher.
There have been attempts in the Serbian language to introduce social femininatives of all nouns of masculine gender, which are used by those that find it politically correct and necessary for every social status to have a feminine noun and, if it does not exist in the language, it should be made up”. (Piper and Klajn, 2013, p. 55)
In the Decision No. 60 of the Committee for the Standardization of the Serbian Language of 24th February 2011, what the proponents of the use of gender-sensitive language ask for is described as using a “grammatical category of feminine gender” as an “instrument for ensuring visibility of women in Serbian or... another language”, and as a contribution to non-discrimination and equality of women. Available at: https://www.isj.sanu.ac.rs/2018/05/14/jezik-rodne-ravnopravnosti/
36The provisions similar to the above-mentioned can be found in other recent regulations, e.g. in Article 10, Paragraph 2 of the Law on Gender Equality from 2009 (“Official Gazette of the Republic of Serbia”, No. 104/2009) that ceased to be valid by the enactment of the Law on Gender Equality, or in Article 2 of the Law on Museum Activity adopted on 7th April 2021 (“Official Gazette of the Republic of Serbia”, No. 35/2021.). These provisions are awkwardly formulated and incomplete because they cover only those situations where the grammatical gender (that does not necessarily correspond to the natural gender) is masculine, but not the mismatch of the feminine (and even neuter) grammatical gender with the natural gender of the person it refers to. However, this provision is completely unnecessary in any case and only encumbers the text of the Law, because it prescribes something that is implied, having in mind that it is typical of the Serbian language and in line with its grammar, as confirmed in the Decision No. 60 of the Committee for the Standardization of the Serbian Language of 24th February 2011. Available at: https://www.isj.sanu.ac.rs/2018/05/14/jezik-rodne-ravnopravnosti/
37For example, in the Law on Obligations and Torts (“Official Gazette of the SFRY”, No. 29/78, 39/85, 45/89 – decision of the Constitutional Court of Yugoslavia, and 57/89, “Official Gazette of the SRY”, No. 31/93, “Official Gazette of Serbia and Montenegro”, No. 1/2003 – Constitutional Charter, and “Official Gazette of the RS”, No. 18/2020), in the provisions regulating a sale and purchase agreement, words “buyer” and “seller” would have to be supplemented by alternative words in feminine grammatical gender (“female/women buyers” and “female/women sellers”), while in the Law on Foundations of Property Law Relations (“Official Gazette of the SFRY”, No. 6/80 and 36/90, “Official Gazette of the SRY”, No. 29/96 and “Official Gazette of the RS”, No. 115/2005 – other law), the word “holder” should be supplemented by a corresponding word in the feminine grammatical gender (“female/woman holder” or the like). Moreover, in those regulations, including the Constitution of the Republic of Serbia (“Official Gazette of the RS”, No. 98/2006), that speak about “holders of (public) positions (in the Constitution, Article 112, Paragraph 1, Item 4), the word “holder” would have to be supplemented by a corresponding word in the feminine grammatical gender (“female/woman holder”) etc.
38Article 6, Item а) of the Council of Europe Framework Convention on the Value of Cultural Heritage for Society stipulates the following:
“No provision of this Convention shall be interpreted so as to:
а) limit or undermine the human rights and fundamental freedoms which may be safeguarded by international instruments, in particular, the Universal Declaration of Human Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms;...”
39 https://www.isj.sanu.ac.rs/2018/05/14/jezik-rodne-ravnopravnosti/
40Or, as the Minister of Culture in the Government of the Republic of Serbia emphasized in her justification before the National Assembly on 13th September 2021, the Proposal of the Law on the Use of the Serbian Language in Public Life and the Protection and Preservation of Cyrillic Alphabet has the following aim:
“The primary aim of adopting this Law is better regulation of the status of Cyrillic alphabet in public life, having in mind its significance and the fact that the language and the script are one of the most important segments of cultural heritage and a matter of the identity of the Serbian nation.”

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O članku

jezik rada: srpski, engleski
vrsta rada: izvorni naučni članak
DOI: 10.5937/socpreg55-34110
primljen: 23.09.2021.
prihvaćen: 27.09.2021.
objavljen u SCIndeksu: 29.10.2021.
metod recenzije: dvostruko anoniman
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