The Right to Equality and Non-Discrimination With Regard to Language
| Author: |
Noelle Higgins BA, HDipEd, MA, LLM
Lecturer in Law, National University of Ireland, Galway
|
| Issue: |
Volume 10, Number 1 (March 2003)
|
Contents:
- The principles of equality and non-discrimination are a cornerstone of democracy, and indeed, they imbue and inspire the whole human
rights concept.[1]
Since the beginning of the human rights discourse in the Minorities Treaties era after World War I, these principles have been to
its fore, having a prominent place in all the major human rights instruments since then. In order to ensure the principle of equality,
various human rights instruments over the years have enumerated certain grounds on which discrimination is prohibited, and indeed,
the prohibition of discrimination on the ground of language has, from the start of the human rights debate, been fundamental to the
concept of the promotion of the principle of equality. Language is so much more than words. An individual's language is the means
whereby they understand and conceptualise the world around them and whereby they have meaningful communication with their fellow
beings. To deprive a person of their right to use their own language is to deprive them of one of the basic characteristics by which
they define themselves. To discriminate on the ground of language is to discriminate against what can be considered to be at the
very core of the human being - the vehicle of reasoning and communication. This is the reason why various domestic Constitutions
and legislation as well as both regional and international human rights instruments have sought to protect language rights under
the principles of non-discrimination and equality.
- However, as I hope to illustrate below, the interpretation of the concepts of non-discrimination and equality, as well as the extent
to which these concepts have, in fact, been of use regarding linguistic rights varies quite an amount from court to court and from
jurisdiction to jurisdiction, thus creating a great deal of uncertainty in the field of language rights. Because of this uncertainty,
perhaps protection for language rights should be sought elsewhere. Therefore, this study will also consider the issue of language
choice and freedom of expression. In addition, because many of the languages that seek, and deserve, protection can be classified
as 'minority' languages, the protection of minority languages by regional and international legislation shall also be highlighted.
However, this discussion will begin with an examination of the concepts of equality and non-discrimination themselves.
- Before the language issue can be properly discussed, the concepts of equality and non-discrimination themselves must be briefly considered.
As regards equality, an important issue to be addressed is the relationship between equal treatment and identical treatment. To treat
everyone identically can mean treating unequals equally which can be as detrimental as treating equals unequally. This is recognised
in practice by many scholars and courts, who use a variety of approaches, including the concepts of de facto v. de jure equality
or the Aristotelian formula of 'treating different things differently'[2]
in order to 'discover' true equality. For true equality to exist, it is the 'end result' which is important, e.g. even though a state
linguistic policy regarding exclusive use of the State's official language may prima facie seem to be one of equality as it imposes
the same obligations on, and affords the same opportunities to, all citizens, this de jure equality will not lead to de facto equality
if a portion of the citizens do not have the official state language as their mother-tongue. The end result of this policy could
be to effectively discriminate against speakers of a non-official language. If people start off on a different footing then they
will not end up on an equal footing if they are merely treated equally. Therefore, true equality involves recognising differences
and treating different groups differently so that they will eventually end up on the same footing.[3]
- This analysis of the equality principle brings us to the issue of non-discrimination. An important aspect to consider in this discussion
is that discrimination is not the same as differentiation or distinction. As stated above, differences between citizens must be taken
into account by a State when implementing a language policy in order to ensure true equality. Recognition of differences, or distinctions
made between groups are not necessarily discriminatory. Differentiations and distinctions, however, have the potential to be discriminatory.
In order for a differentiation or distinction to metamorphosize into a discriminatory measure, it must possess certain characteristics
- an 'X' factor. As de Varennes put it:
It is widely accepted that not all distinctions are necessarily discriminatory: Equality and the right to non-discrimination require
that individuals be protected against unreasonable or unacceptable different treatment. How a court of law is to decide whether a
particular distinction is acceptable or not is a difficult task, as it involves a balancing act between the interests and priorities
of the government - normally mirroring those of the majority group controlling the state machinery - and the interests and rights
of the individuals affected.[4]
- Another issue to be considered regarding discrimination is that of indirect discrimination, as many measures which effectively discriminate
on language grounds are often couched in other terms, e.g. race - this issue will be looked at below. The issue of positive discrimination
or affirmative action must also be taken into consideration in this discussion. This involves the recognition of differences between
certain groups of citizens, with one group in a more highly favoured position than the other, and the differential treatment of the
groups by the taking of positive measures which benefit the less-favoured group. McKean believes these special measures, along with
the principle of non-discrimination, are the components that constitute true equality:
It will be seen that under international law the concept of equality of individuals includes two contemporary notions: (1) the principle
of non-discrimination, which is a negative aspect of equality designed to prohibit differentiation on irrelevant, arbitrary or unreasonable
grounds; and (2) the principle of protection or special measures, designed to achieve 'positive' equality.[5]
He expands on this thesis, referring to a case emanating from a Minorities Treaty, saying that:
Some commentators have taken too narrow a view of the meaning of equality in that they seem to believe that equality means merely
the prevention of discrimination, and that positive protection therefore gives more than equal rights to minorities. But as the
Minorities Schools[6]
case pointed out, such treaties required equality in fact, not merely formal equality or 'ostensible legal equality in the sense
of the absence of discrimination in the words of the law'. This being so, the denial of special protection to minorities may deny
equality of treatment... 'Equality in law' no longer means purely formal or absolute equality, but relative equality, which often
requires differential treatment.[7]
- It is obvious, therefore, that the principles of non-discrimination and equality are of a very complex nature, giving rise to many
areas of discussion and some confusion. As shall be highlighted below, as a result of the lack of unanimity regarding protection,
and indeed, regarding discrimination on the ground of language, confusion and contradiction reign in domestic, regional an international
language issues.
- The immense importance and value of language can be seen reflected in various provisions in many domestic Constitutions and legislative
measures the world over.[8]
Many countries have to deal with very complex situations regarding language with very few - if any - population consisting of monoglots.
Some countries have chosen to deal with language rights issues through constitutional provisions and / or legislation regarding
equality and non-discrimination. However, there is no common agreement on the best way to achieve equality and non-discrimination
regarding language and many problems still exist in this area.
- Article 14 of the Constitution of Spain, for example, prohibits discrimination. This article is of an open-ended nature and therefore, even though language is not
explicitly listed as a ground of prohibited discrimination, it has been accepted that a difference based upon language could be discriminatory
unless it can be justified by certain criteria identified by the Court.[9]
In Austria, the Constitutional Court struck down a piece of legislation, i.e. Law on Assistance to Victims because it was restricted
to German speakers only.
- Three other countries where quite an amount of consideration has been given to equality and non-discrimination regarding language
are the US, Canada and the UK. These three countries have to deal with many different language situations, and have dealt with them
employing varying approaches. One of the interesting aspects of the issue of non-discrimination on the basis of language is the
way in which, even when a country does not have legislation or Constitutional provisions relating directly to language discrimination
as in the case of Spain mentioned above, language can still be protected.
- In the US, there is no specific prohibition on discrimination on the ground of language in the Constitution, or indeed in legislation, but this does not mean that this type of discrimination is not prohibited. de Varennes points out that:
Despite the fact that neither the Constitution nor US human rights legislation specifically identify language as a forbidden ground of discrimination, this has not been an insurmountable
obstacle for individuals who can claim that language discrimination indirectly affects them because of their race or national origin,
grounds which are acknowledged in the US legal order.[10]
- The Fourteenth Amendment of the US Constitution is the equal protection clause. Language discrimination cases have been taken under this provision and language can also be protected
under the Civil Rights Acts and The Equal Employment Opportunities Act. It has been stated regarding language in the US:
...language restriction in the United States shows that language can be used as a mask for racial, economic and political hostility
of individuals who speak other tongues.[11]
With 98% of the population speaking it, English is the most widely used language in the United States.[12]
Despite the fact that official status has never been conferred upon it, English has occupied rather a privileged position in the
US over the years. However, many other languages have been, and still are, in use in the country and the issues of language policy
and indeed language discrimination are of great interest. In the past, immigrants to the US required bilingual education to be made
available in certain states such as Ohio, Louisiana and Pennsylvania and indeed some 'foreign' language schools even received public
funding. It was not long, however, until language restrictions became popular in the US e.g. the English-only instruction policy
in Puerto Rico after it had been acquired by America in the Spanish-American War.[13]
- The emergence of the 'Americanisation Movement' brought with it language restriction ideas, e.g. during World War I, the National
Americanisation Committee proposed that all aliens be required to learn English and apply for citizenship within three years or else
be deported. An increase in the number of immigrants in the first part of the twentieth century saw a certain suspicion of a foreigner's
ability to 'fit in' to the American society - a prerequisite for fitting in, was of course, the ability to speak English. It was
at this time that the idea of the English language being a marker of Americanism first came to the fore and English became linked
with American national identity. Americans began thinking that maintaining cultural, including linguistic, homogeneity, was a requirement
of national unity. Various states began to enact laws regarding language and by 1919, 23 states had enacted laws that restricted
teaching in any language other than English. In the case of Meyer v Nebraska[14]
the US Supreme Court made a ruling concerning language discrimination emanating from a State statute. The plaintiff in this case
had been convicted of teaching a German Bible story to a student in a private school, which was contrary to a Nebraska statute which
prohibited teaching any language other than English to a child who had not passed the 8th grade. The Supreme Court reversed the conviction
of the teacher, holding that the right to teach a language and the right of parents to employ a teacher to teach in a foreign language
were protected against state infringement by the Due Process clause of the Fourteenth Amendment. Similar statutes to the above-mentioned
Nebraska statute were struck down on the same day as the Meyer case in the states of Ohio and Iowa.
- Another important case regarding language discrimination in the US is that of Yu Cong Eng v. Trinidad.[15]
In this case the Supreme Court declared a Philippine Statute that obligated Chinese merchants to keep their books in either English,
Spanish or in a local dialect, thus impeding them from using the only language they understood, to be unconstitutional. The statute
was held to be unconstitutional because it denied the plaintiffs equal protection of the law. It is pointed out in relation to this
case that:
Essentially the Court found that this was a form of national origin discrimination against Chinese, although it did not articulate
a constitutional right to use one's native language per se.[16]
- The US Supreme Court also considered the issue of language rights in another case, i.e. Lau v Nichols,[17]
but the issue of a constitutional prohibition on language discrimination was avoided in this case - the courts instead looked to
the Civil Rights Act of 1964. The case concerned a group of approximately 1,800 Chinese students in San Francisco who were unable
to speak English. This group raised the equal protection claim and a claim under Title VI of the federal Civil Rights Act of 1964
which prohibits discrimination on grounds of 'race, colour, or national origin [in] any program or activity receiving Federal financial
assistance'.[18]
In its decision the Supreme Court emphasised the importance of English in the Californian Education System. The State required fluency
in English for High School graduation and also demanded that the medium of instruction would be English. The Court decided that the
provision of the same books and facilities for, and the teaching of, the same curriculum to everyone, did not, in fact, confer equality.
Those who could not understand English were not receiving effective education and thus were being discriminated against under Title
VI of the federal Civil Rights Act.
- Other cases of note regarding language discrimination in the United States are Guerrero v. Carleson[19]
in which it was held to be reasonable to limit the provision of, or access to, government services to English only and Garcia v.
Spun Steak[20]
which held that an employer has the right to force employees to speak English only, even when they are not actually working, since
this was regarded as merely an inconvenience and in no way a violation of a person's rights. Thus, in these latter cases the US courts
seem to have taken a rather narrow view of the concept of equality as regards language rights. They seem to believe that equality
means treating everyone in the same manner, and don't take into account the fact that before people can be treated in an identical
manner, they must first be on an equal footing.
- Beloff is of the opinion that:
In Canada the tension between the Anglophone and Francophone communities has permeated the nation's history.[21]
In Canada, with the exception of Québec and the Yukon, discrimination on the ground of language is not generally prohibited[22]
but language rights are protected by the British North America Act 1867 and the Canadian Charter of Rights and Freedoms which is
annexed to the Constitution Act 1982 and by the Charte de la langue française.
- The British North America Act 1867 provided that both French and English were permitted to be used in Parliament. The Canadian Charter
of Rights and Freedoms which is annexed to the Constitution Act 1982 also deals with the language issue: e.g. Art 16 (1) of the Charter states that French and English are both official languages
of the federation and Art 17 (1) and 19 (1) respectively provide that both languages can be used in Parliament and before the courts.
The Charte de la langue française also provides some interesting information on language rights. In the case of Ford v. Québec[23]
the Supreme Court in Canada had to consider, among other issues, whether Article 58 of this Charter making French the exclusive language
for commercial signs amounted to discrimination on the ground of language prohibited in the non-discrimination legislation of Québec.
The Supreme Court concluded that even though the legislation applied equally to everyone, it would have a different effect on Anglophones
than on Francophones because Anglophones would not be entitled to use their primary language in commercial signs. The Court decided
that this distinction was not justified.[24]
Beloff concludes that:
The Canadian experience illustrates that if a minority linguistic community is of substantial size, equality of status is the necessary
answer.[25]
- In the UK, language discrimination issues have been dealt with by the Race Relations Act and by the Welsh Language Acts.[26]
As de Varennes points out:
In England, as in the United States governments have tended to be less than generous in respect to the grounds of discrimination covered
by their non-discrimination legislation's, making it a challenge for lawyers and victims to advance creative arguments to counter
these lacunae and to convince a court of an indirect link between language and ethnic or national origin.
English case law does, however, acknowledge the possibility of such a link, and indeed recognises that the requirement of an ability
to speak or write a particular language can impose a burden that may be unjustifiable. For example, even the requirement of the ability
to speak English in England must be reasonably related to the tasks involved in a rational and balanced way, as such a requirement
can have a disproportionate adverse impact on some, and not others, because of their personal characteristics.[27]
- The main piece of legislation regarding discrimination in the United Kingdom is the Race Relations Act of 1976. Language is not one
of the grounds specifically mentioned on which discrimination is prohibited. However, language may be
indirectly invoked as proxies
for either ethnic or racial groups, at least in situations where a particular ethnic or racial group are more likely to share a language...different
from the majority.[28] An analysis of the UK case law illustrates that the courts there have been willing to find a connective link between language and
ethnic origin.[29]
- There seems to be confusion over the Welsh language in the UK, however. In the case of Ex parte Jenkins, Mr. Justice Widgery commented:
I think it is quite clear that the proper language for Court proceedings in Wales is the English language. It is to my mind a complete
misapprehension to believe that anybody at anytime has a right to require that the proceedings be conducted in Welsh.[30]
Subsequent to this decision, however, the Welsh Language Act of 1967 was enacted which allowed for the use of Welsh in the Courts
System in Wales and Monmouthshire.
- Another interesting case regarding Welsh is that of Jones v. Gwynedd County Council.[31]
This case also involved the Race Relations Act of 1976. The council had required knowledge of Welsh as condition of employment. Although
the Industrial Tribunal felt that the requirement wasn't justified, in appeal it was held that the Race Relations Act couldn't help
the victims because they were ethnically Welsh not English.
- Beloff is not very satisfied with the legal provisions prohibiting language discrimination in the UK. He says:
So, in short, national law provides little positive assistance for the speakers of minority languages. There is limited statutory
provision for their encouragement. They cannot themselves discriminate to protect their language. They have no redress if they are
discriminated against on the grounds of their language and the protection given in the cases to English language requirements itself
provides a powerful incentive for them to assimilate as quickly as possible.[32]
- With regard to the protection of language rights under the principles of equality and non-discrimination, it is obvious that there
is much disparity in the approaches taken in different jurisdictions. Some of the interpretations given to 'equality' in domestic
courts have been too narrow to afford true equality with a disregard for the Aristotelian idea e.g. the Spun Steak case in the US.
One positive aspect of the national decisions regarding non-discrimination and equality based on language, however, is the recognition
of the link between race / ethnicity and language, e.g. the British Race Relations Act, so that cases concerning discriminatory acts
based on race yet couched in language terms can become actionable. However, discrimination based on language does not affect the
domestic regime exclusively - language discrimination has also been a major issue in both the wider regional and international fora.
- The principles of equality and non-discrimination first came to the fore on a universal level in the Minorities Treaties era after
World War I. The Peace Conference held in Paris in 1919-1920 considered, among other things, the best way to protect groups, especially
but not exclusively minorities, against discrimination. Gromacki says of this conference:
The recognition of language as a basis of discrimination was one of the major achievements of the Conference. The elimination of
minorities' languages from courts, compulsory education in the language of the dominant political force, and limited licensing arrangements
for minority schools had required subordination of the minority language to the official language of the state. These measures were
recognised as the undesirable consequences of the great assimilation and absorption which had characterised Europe during the nineteenth
century. Language, because it was recognised as a manifestation of nationality, was identified as a target for protection.[33]
- Despite the very noble intentions of the Minorities Treaties, the previsions therein were never rigidly implemented or enforced and
were ultimately not a great success. They were, however, the first step in international recognition of the importance of the principles
of equality and non-discrimination as regards language. The Permanent Court of International Justice was the forum through which
the provisions of the Minorities Treaties could be enforced. The case law of this court illuminates the concepts of equality and
non-discrimination, e.g. the Advisory Opinion of the Permanent Court of International Justice on the Question Concerning Lease Concessions
to German Nations who have become Polish Subjects[34]
dealt with the issue of indirect / de facto discrimination. It was decided in this case that:
...there must be equality in fact as well as ostensible legal equality in the sense of the absence of discrimination in the words
of the law.[35]
- In the Minority Schools case, the concept of equality was also discussed. The court considered that in order for minorities, including
linguistic minorities, to be able to live peaceably alongside the majority while at the same time retaining their special characteristics,
two elements were necessary:
- The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on
a footing of perfect equality with the other nationals of the State.
- The second is to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions
and their national characteristics.[36]
- This decision shows that the Minorities Treaties placed a positive obligation on the State to take affirmative action measures in
order to place minorities on an equal footing with the majority in order for true equality to be realised, as would have been advocated
by Aristotle.
As McDougal, Lasswell and Chen put it:
In clear recognition that freedom from discrimination on account of language is practicable only when freedom of access to languages
is assured, these states were made to assume special undertakings in regard to freedom of access to languages.[37]
- Leading on from this initial recognition came the UN provisions regarding language and equality. The principles of non-discrimination
and equality have been to the fore in the UN ideology from its inception, with language constituting one of the recognised grounds
on which discrimination is prohibited in this system.[38]
Article 1(3) of the Charter of the United Nations[39]
(UN Charter) states that human rights and fundamental freedoms should be encouraged and promoted 'without distinction as to race,
sex, language, or religion'. The Universal Declaration of Human Rights[40]
(UDHR) reiterates this statement in Article 2:
Everyone is entitled to the rights and freedoms set forth in this Declaration without distinction of any kind, such as...language...
Equality and non-discrimination on the ground of language is also to the fore in the UN Covenants. Article 2 of the International
Covenant on Economic, Social and Cultural Rights[41] (ICESCR) states:
The states parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised
without discrimination of any kind as to ... language...
- This is very similar to Article 2 of the International Covenant on Civil and Political Rights[42]
(ICCPR) which states:
Each state Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject
to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as ...language...[43]
- It is Article 26 of the ICCPR which is of greatest concern to the present discussion, however, as it is under this article that cases
regarding language discrimination have been taken before the Human Rights Committee. The text of this article is similar to the text
of Article 2, except that the prohibition on discrimination is not limited to discrimination against rights set down in the Covenant
itself - it is a general prohibition on discrimination:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any
ground such as...language...
- Another UN document, which illuminates the concepts of equality and discrimination, and should be therefore be examined before looking
at the decisions of the Human Rights Committee regarding language equality, is UN General Comment 18, which deals with Article 26
of the ICCPR. Discussing the concept of discrimination the Human Rights Committee states that they believe:
...that the term 'discrimination' as used in the Covenant should be understood to imply any distinction, exclusion, restriction or
preference which is based on any ground such as...language...and which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise by all persons, on an equal footing, of all rights and freedom.[44]
- The General Comment also deals with other issues affecting the principles of non-discrimination and equality, e.g. paragraph 9 looks
at the disparity between discrimination in fact and discrimination in law in States who are parties to the Covenant:
Reports of many States parties contain information regarding legislative measures and court decisions, which relate to protection
against discrimination in law, but they very often lack information, which would reveal discrimination in fact. When reporting on
articles 2(1), 3 and 26 of the Covenant, States parties usually cite provisions of their constitution or equal opportunity laws with
respect to equality of persons. While such information is of course useful, the Committee wishes to know if there remain any problems
of discrimination in fact, which may be practised either by public authorities, by the community, or by private persons or bodies.
The Committee wishes to be informed about legal provisions and administrative measures directed at diminishing or eliminating such
discrimination.[45]
- Paragraph 10 goes on to consider the issue of affirmative action:
The Committee also wishes to point out that the principle of equality sometimes requires States parties to take affirmative action
in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Convenant...as long as such action is differentiation under the Covenant.[46]
The Committee also goes on to state:
...not everyone differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable
and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.[47]
- The UN has also issued a Declaration regarding minorities, including linguistic minorities - Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities. Article 3 (1) of this Declaration states:
Persons belonging to minorities may exercise their rights, including those set forth in this Declaration, individually as well as
in community with other members of their group, without any discrimination.
- It is obvious, therefore, that provisions regarding language discrimination are not in short supply in the UN system. Whether these
provisions are interpreted and applied by the Human Rights Committee to realise true equality, however, is another matter.
- The cases of Dominique Guesdon v. France[48]
and Yves Cadoret and Hervé Le Bihan v. France[49]
deal briefly with the issue of equality and non-discrimination on the ground of language under Article 26 of the ICCPR. Although
these cases dealt mainly with the issues of freedom of expression and language, the question of equality and non-discrimination was
also addressed. The authors of the communications, who were native speakers of Breton, made the case that legislation in France which
recognised French as the only language which could be used before criminal courts was a discriminatory measure because it disqualified
them from using their mother tongue before these courts. The Committee considered the language policy in France and said that French
law doesn't give everyone the right to use their own language in court. Interpretative services are provided if required, i.e. if
a defendant could not understand or speak French well enough. However, this was deemed not to be required in the present case and
therefore, the Committee felt that the authors did not suffer discrimination under Article 26 on the basis of language. The Committee
did not deal with the issue of discrimination on the ground of language in any great detail when reaching this decision, however.
It has to be said that the view of equality taken by France is very narrow. It is not the view that was espoused in the Permanent
Court of International Justice's decisions discussed above regarding true equality. In the two present cases, France had imposed
a language requirement on all citizens, i.e. only one language, French, could be used before the Criminal Courts. While this may
be de jure equality in that the same obligation was imposed on all citizens, it was not de facto equality as not all citizens of
France have French as their mother tongue or primary language. The French Government were of the view that if a piece of legislation
imposed identical obligations on all citizens then there was no possibility of discrimination, a view with which the Committee agreed.
- A similar situation arose in the case of Ballantyne, Davidson and McIntyre v. Canada[50]
before the Committee. The authors of these communications were English speaking residents of Québec and they claimed that
a prohibition on the use of any language other than French, which was contained in the Charte de la langue française, on commercial
signs outside business premises infringed upon their freedom of expression which was guaranteed by Article 19 of the ICCPR. The Committee
dealt with the case under 19 but then made a statement regarding equality and non-discrimination on the ground of language. The Committee
was of the opinion that since the provision of the Charter applied to all businesses in the province, both anglophone and francophone,
that there was no discrimination. Again, this is a very narrow view of the principle of equality and non-discrimination, which denies
true equality. A review of these cases of the Committee shows that they failed to undertake an indepth study of the substantive issues
of equality and non-discrimination and indeed, of the issues of equality and non-discrimination as regards language, thus providing
little protection for language rights under Article 26.
- However, this approach changed with the case of Diergaardt v Namibia.[51]
J.G.A. Diergaardt et al had presented this communication on their own behalf and on behalf of their community, the Rehoboth Community,
and claimed that their rights under Articles 1, 14, 17, 25(a), 26 and 27 of the ICCPR had been violated by Namibia. The issue that
is of importance to the present discussion is the authors' claim that as a result of language legislation in Namibia they had been
prohibited from using Afrikaans, their mother tongue, in the fields of administration, justice, education and public life. Article
3 of the Namibian Constitution provided that the only official language of the country was English. However, paragraph 3 of this provision also empowered the Namibian
Parliament to enact legislation allowing for the use of other languages. This had, however, never happened. It was claimed that
this inaction constituted discrimination against those whose mother tongue was not English. The authors also illustrated to the
Committee that Namibia had instructed civil servants not to reply to any communications from the authors which were in the Afrikaans
language, whether oral or written, even if the civil servants would have been capable of doing so, and even if it would have been
easy for them to do so. The Committee found that the actions of the State party in prohibiting its civil servants from replying
to any communications in Afrikaans constituted discrimination on the ground of language and hence Namibia had committed a breach
of Article 26 of the Covenant as the State had made no effort to justify the preference of English over Afrikaans as being reasonable
and non-arbitrary.
- The views of the Committee are extremely significant with regard to the issue of language rights and discriminatory measures, and
indeed this decision signals a substantial shift in the approach of the Committee on this issue. Prior to the communication, as
discussed above, the Committee had failed to distinguish between de jure and de facto equality with regard to the issue of language
rights. With regard to the present communication however, instead of deciding that because the language policy of English-only applied
to all citizens of Namibia and imposed the same obligations on, and afforded the same opportunities to, all citizens, it was therefore,
in fact, a case of equality, the Committee sought true, de facto equality. It decided that because the authors' mother tongue was
not English they were effectively being discriminated against by virtue of this English-only policy. It was the view of the Committee
that this policy, in the circumstances of the case, was unreasonable. The Committee therefore broadened their view of the principle
of equality and non-discrimination from the earlier cases dealing with language discussed above.
- This shift in approach by the Human Rights Committee to the issue of discrimination on the grounds of language has the potential to
strongly impact the issue of language rights in the future. Any exclusive language policy of a State party which cannot be justified
as being reasonable can be held by the Human Rights Committee to constitute a discriminatory measure under Article 26 of the ICCPR.
In Diergaardt the Committee stated that under Article 2, paragraph 3(a) of the ICCPR, Namibia must provide the authors of the communication
and other members of their community with an effective remedy by allowing its civil servants and officials to deal with correspondence
in languages other than the official one in a non-discriminatory manner. The view of the Human Rights Committee in this case is
to be warmly welcomed by language rights campaigners and future cases before the Committee on language issues will be awaited in
anticipation of further developments and an improvement in the protection of language rights at the UN level.
- The European Convention on Human Rights[52]
(ECHR) prohibits discrimination in Article 14:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as...language...
- Unlike Article 26 of the ICCPR discussed above, this prohibition on discrimination does not stand alone - it only prohibits discrimination
against the enumerated grounds with regard to the rights and freedom set down in the Convention itself. Therefore, it is of a more
limited application than Article 26. That Article 14 relates only to the other rights and freedoms set out in the Convention has
been reiterated in decisions of the European Court of Human Rights on numerous occasions.[53]
- The Belgian Linguistics Case[54]
was one of the first cases to be taken before the European Court of Human Rights and it deals with, amongst other things, language
and Article 14. A group of 327 French speaking parents claimed on behalf of themselves and their children that the Belgian government
violated Articles 14 and 8 of the Convention as well as Article 2 of the First Protocol of the Convention by obliging all children
to have Dutch-only education at local state schools on foot of its linguistic regionalism policy. The applicants raised a number
of issues before the Court but the Court found a violation of Article 14 when read with Article 2 of the First Protocol on only one
account which was that the Belgian Government's policy prevented certain children from having access to French language schools.
However, the Commission stated in regard to all of the applicant's arguments that there was no article in either the Convention or
in the First Protocol which expressly guaranteed linguistic freedom, which was a very unsatisfactory response indeed when the applicants
wished the Commission to discuss and implicit guarantee of linguistic freedom.
- Another case regarding language discrimination which was taken before the European Court of Human Rights is that of Mathieu-Mohin
and Clerfayt.[55]
The applicants in this case claimed that there had been a violation of Article 3 of the First Protocol of the Convention regarding
free expression in choice of legislature or else of Article 3 in conjunction with the non-discrimination provision of Article 14.
The applicants had been elected to the Belgian Senate and the House of Representatives respectively, in the bilingual region of Brussels
and also in an administrative district which was under the Dutch-language council for certain matters. The applicants had to swear
a parliamentary oath in Dutch as part of an eligibility test for the Council, but would only swear the oath in French. Therefore,
they were not allowed to sit on the Council. The Court concluded that Article 3 of the First Protocol had not been violated and then
went on to consider the discrimination issue under Article 14. Here the court decided that the applicants could invoke Article 14
but that under the present circumstances that no discrimination had occurred because the aim of the distinction was reasonable:
The aim is to defuse the language disputes in the country by establishing more stable and decentralised organisational structures.[56]
- With regard to the European Community / Union (EC / EU), the Treaty on European Union[57]
does not deal specifically with language discrimination even though the treaty, as amended in Amsterdam, does contain an article
regarding discrimination. Article 13 (ex article 6a) states:
Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the
Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate
action to combat discrimination based on sex, racial, or ethnic origin, religion or belief, disability, age or sexual orientation.
- The absence of a prohibition of discrimination on language grounds is quite remarkable, considering the central place that had been
given to language in all of the other international and regional instruments considered up to this point. It may, however, still
be possible to take a case before the European Court of Justice (ECJ) regarding language discrimination based on a violation of Article
13 under the guise of discrimination on 'racial or ethnic origin' - as discussed above, the link between language and race / ethnic
origin has been accepted in some domestic courts.
- The issue of language discrimination has also been discussed before the European Court of Justice with regrad to the free movement
of workers. The case of Groener v. Minister for Education[58]
concerned a Dutch national who had been working in Ireland in a state educational institute part time as an art teacher. After two
years, she applied for a permanent position in the same institution. Part of the requirement for the position was success in an Irish-language
exam. Ms. Groener failed this exam and did not get the position. Success in the exam was a requirement for both national and non-nationals
and Irish classes were provided for all of the applicants for the position. Groener had asked the Minister for Education for the
requirement to be waived but this request was refused. She argued that the Irish exam was contrary to Article 48 (now Art. 39) of
the EU treaty regarding free movement of workers which states:
Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the member states
as regards employment, remuneration and other conditions of work and employment.
and also contrary to Article 3 of Regulation 1612/68 which allows the imposition of linguistic requirement in certain types of employment
in the EC if they are required by reason of the nature of the post to be filled.
- While, prima facie, there is no formal discrimination in this case because the Irish exam was compulsory for everyone, regardless
of nationality and Irish classes were provided for all candidates, the plaintiff felt discriminated against as all Irish citizens
would know some Irish because of the important position given to Irish in the education system of the State.
- The case was referred to the ECJ who decided the case in favour of the Irish Government. Firstly, the Court considered the Irish government's
policy of promoting the Irish language since the foundation of the State in 1922 and the role of the Irish language as a vital dimension
of the Irish culture and identity. The fact that Irish was nominated as the first official language of the State in the 1937 Constitution[59]
also proved to sway the ECJ in favour of the Irish government. The court said that the EEC Treaty did not prohibit the adoption of
a policy which protected and promoted the national and first official language of a member state if it did not affect the free movement
of workers. Therefore, the requirements deriving from measures intended to implement such a policy must not be disproportionate in
relation to the aim pursued and the manner in which they are applied must not result in discrimination against nationals of other
member states.
- The court than went on to consider whether the imposition of the language obligation was justified by reason of the nature of the
post to be filled. They discussed the profession of teaching and stressed the essential role that a teacher plays in the life of
their students. Taking all of the facts into account, the Court decided that it was not unreasonable for teachers to have some knowledge
of the first official language of the State and therefore, they decided that the plaintiff had not been discriminated against.
- Another case before the ECJ dealing with language discrimination is that of Ministére Public v. Mutsch.[60]
The issue of contention in this case was a Belgian statute which gave Belgian citizens living in the German speaking part of the
country the right to use German in criminal appeal proceedings. Mr. Mutsch was a citizen of Luxembourg living in this part of Belgium
but the statute did not extend to grant the same right regarding language to non-Belgian nationals. The ECJ came to the decision
that permission to use one's own language in court should be considered to be a social advantage to which all EC workers are entitled
according to regulation 1612/68. This entitlement should also extend to EC workers and their families in countries other than their
own. Equality required that EC workers and their families should be afforded the same linguistic rights as State's own citizens.
Therefore, the Court found, Mr. Mutsch had been discriminated against.
- A further case dealing with the issue of discrimination on the grounds of language is the case of Angonese v Casa di Risparmio di
Bolzano.[61]
In this case the plaintiff was refused a job in a bank in the province of Bolzano in Italy. A large proportion of the population
of this area are German speaking, and therefore, the bank required that applicants for the job had proof that they were bilingual.
The bank, however, was only willing to accept as proof of this fact, a certain certificate which was only issued in Bolzano, which
this applicant did not possess. The applicant was, however, bilingual, a fact which was accepted by the national court. The Court
held that Article 48 (now Art. 39) could actually be invoked against private persons. They also held that the bank's requirement
of the possession of a certificate which was obtainable in only one province was lawful if it was based on objective reasons and
if it was proportional to the aim which was being pursued. Referring back to Groener, the Court held that a member state could not
require that language ability be acquired in the member state concerned and therefore, it was disproportionate not to accept proof
of linguistic knowledge from outside that member state. The Court went on to hold that the bank's requirement amounted to discrimination
on the grounds of nationality which was contrary to Article 48 (now Art. 39), even though the bank was actually discriminating against
an Italian national. The decision in Angonese means that the validity of all linguistic rules imposed by all employers, not just
public employers, can be examined under Article 18 (now Art. 39).[62]
- In Europe, linguistic rights are now also dealt with under a European Charter, i.e. the European Charter for Regional or Minority
Languages which sets out various ways in which parties to the Charter would promote and encourage the use of regional and minority
languages, including methods of positive discrimination.
- The American Convention on Human Rights of 1969 also prohibits discrimination on the ground of language in Article 24 which gave rise
to an interesting decision of The Inter-American Court of Human Rights regarding language discrimination, i.e. the Advisory Opinion
of 19 January 1984 [63]
concerned proposed amendments to the naturalisation provisions of the Costa Rican Constitution, one of which required that a person wishing to gain citizenship would be able to speak, write and read Spanish. The Court discussed
the principles of equality and non-discrimination, stating:
It is impermissible to subject human beings to differences in treatment that are inconsistent with their unique and congenerous character.
Precisely because equality and non-discrimination are inherent in the idea of the oneness in dignity and worth of all human beings,
to follows that not all differences in treatment are in themselves offensive to human dignity...There may well exist certain factual inequalities that might legitimately give rise to inequalities in legal treatment that do not violate
principles of justice. They may in fact be may well exist certain factual inequalities that might legitimately give rise to inequalities
in legal treatment that do not violate principles of justice. They may in fact be instrumental in achieving justice or in protecting
those who find themselves in a weak legal position. For example, it cannot be deemed discrimination on the grounds of age or social
status for the law to impose limits on the legal capacity or minors or mentally incompetent persons who lack the capacity to protect
there interests. Accordingly, no discrimination exists if the difference in treatment has a legitimate purpose and if it does not
lead to situations, which are contrary to justice, to reason, or to the nature of things. It follows that there would be no discrimination
in differences in treatment of individual by a state when the classifications selected are based on substantial factual differences
and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review.
These aims may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential
oneness and dignity of mankind.[64]
- The Court went on to state that it was, however, not always easy to recognise when differentiation became discrimination but that
States should take a certain number of issues into account when deciding this issue, e.g. public welfare, and also that the State
has a certain margin of appreciation in deciding these matters. In the present case, regarding the language requirements, the Inter-American
Human Rights Court decided that proof of the ability to communicate in the official language of the country was not an unreasonable
or unjustifiable requirement of a person wishing to gain citizenship. A problem arose, however, regarding the literacy requirement.
The Court decided that a literacy requirement even though not de jure discriminatory could have a de facto discriminatory effect
which was prohibited by Article 24 of the American Convention of Human Rights if it were:
...an unreasonable and disproportionate discrimination in accordance with the nature and purpose of the right to a nationality with
its inclusion in the law of the Convention as a whole, and with the circumstances of the society in which it is designed to function.[65]
- The Inter-American Court was open to considering the possibility that a language policy which applied equally to all citizens / potential
citizens could in fact be discriminatory. One of the judges,[66]
while recognising that it would be desirable for all Costa Rican citizens to be able to communicate in the official language of the
State, went on to consider the importance of other cultures and languages other than the official one in the State e.g. those of
the Jamaican and Indian communities. He went on to discuss in brief the various means which the Costa Rican State was employing to
promote these languages and cultures - which could be seen as positive discrimination. Taking all of this into account the court
decided that the literacy requirement was not in fact unreasonable, arbitrary or disproportionate.
- From the above discussion, it is obvious that both language policy makers and courts have been very slow to come to terms with the
concepts of equality and non-discrimination as regards language. Some policy makers still insist on seeing only one part of the equality
equation when implementing language obligations, e.g. the French government in the cases of Dominique Guesdon v. France[67]
and Yves Cadoret and Hervé Le Bihan v. France,[68]
discussed above. Yet, from the beginning of the equality discourse in the case law of the Permanent Court of International Justice,[69]
equality had been illustrated as more than just a matter of treating everyone identically - de facto rather than just de jure equality
was necessary. However, it is not just the policy makers who have been mistaken in this regard. The Human Rights Committee also seemed
to have over-looked this matter, even though, as quoted above, they have issued a General Comment[70]
which differentiates between de jure and de facto equality until the case of Diergaardt v Nambia.[71]
- This case illustrates the significant shift in approach of the Human Rights Committee with regard to discrimination on the ground
of language, with the Committee accepting that a State's exclusive language policy can, in fact, lead to de facto discrimination,
even though all citizens of the State have the same rights and obligations under the policy. Prior to this decision, the disparity
between the theory and the practice of the Human Rights Committee was, to say the least, unfortunate, leaving those who wished to
raise a language discrimination issue before the Committee in a very unsatisfactory, uncertain and unpredictable situation. Unpredictability
in language discrimination cases is not restricted to the jurisdiction of the Human Rights Committee, however. As discussed above,
in the US, court rulings illustrated almost diametrically opposing opinions regarding non-discrimination on the ground of language,
with the US Supreme Court choosing the broader 'true' equality approach in the case of Lau v. Nicholas,[72]
while a much narrower approach was taken in the Spun Steak case.[73]
However, one positive method of viewing equality and non-discrimination on the ground of language at domestic level, as pointed out
above, is the recognition of the link between language and race / ethnicity.
- While there are many provisions in various legal instruments on the subject of equality and non-discrimination that have the potential
to promote language rights, there is not an agreed method of applying these principles in any type of consistent manner. Language
is such an important identity marker with the potential to cause conflict, and the neglect of the development of a universal policy
regarding language and non-discrimination is a major source of inequality that must be addressed soon. As de Varennes points out:
...intolerance of linguistic differences and / or ignorance of the very real and serious disadvantages state language preferences
have on some individuals ...have generated fragmentation and conflict in many parts of the world.[74]
- While it is easy to appreciate the problems regarding equality arising out of the large amount of languages in the world, with many
tongues being spoken within single jurisdictions, and the social need for order and a degree of uniformity, these issues cannot simply
over-ride the need for language equality. It is clear that almost every language policy will create a distinction of some variety
- what is needed is the appreciation of the concept of true equality regarding language so that the distinction does not become discrimination.
The acceptance of this fact by the Human Rights Committee in Diergaardt v Namibia[75]
is a very positive progression which is hopefully the beginning of a new approach to discrimination on language grounds at UN level.
However, discrimination and equality, as discussed above, are very complex issues, leaving much to the discretion of the policy
makers and the courts, who up until now, have varied a great deal in their appreciation of such.
- With the vast amount of uncertainty surrounding the question of the protection of language rights under equality and non-discrimination
provisions in Conventional law and legislation, perhaps more clarity may be gained by examining language rights under legal provisions
regarding freedom of expression. After all, language is the means, whether orally or in written form, by which the vast majority
of human practice their freedom of expression and, indeed, the issue of language being an element of freedom of expression has been
considered in some domestic, regional and international courts. Originally, freedom of expression was almost exclusively concerned
with political and social debate, allowing everyone the right to say what they believed. There has been a change in the perception
of freedom of expression, however, with the concept now encompassing a right to receive and impart information and as a means of
representing one's individual expression, whether through words or the arts. However, despite dealing with claims of violations
of freedom of expression on the grounds of not being able to use one's chosen language, no court has delved too deeply into this
complex area and there has been much uncertainty as to whether or not language can be regarded as a component of freedom of expression.
- Some domestic courts have answered in the affirmative to the above query, i.e. language can, in fact, be regarded as a component of
freedom of expression. The Tribunal Fédéral of Switzerland came to this decision in the case of Association de l'école
française und Mitbeteiligte v Regierungsrat und Vervaltungsgericht des Kantons Zürich.[76]
- A similar decision was made by the Supreme Court of Canada in Ford v Québec.[77]
In this case, it was held that there could be no true freedom of expression without the choice to use one's preferred language.
The Supreme Court of Canada reiterated this opinion in the case of Devine v Québec.[78]
However, in this second case, the Court warned that freedom of expression does not necessarily encompass the right to use exclusively
one's language of choice. The Supreme Court of Canada once again stressed the status of language choice as being central to the
concept of freedom of expression in Reference Re Criminal Code (Manitoba).[79]
- The Human Rights Committee has been unwilling to clearly state the position of language as an element of the right to freedom of expression.
The issue is not dealt with in the ICCPR, article 19 of which states:
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.
- The exercise of the rights provided for in paragraph 2 of this Article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be such as are provided by law and necessary:
(a) For respect of the rights or reputations of others.
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
- If everyone, as stated above, is free to impart and receive information and ideas of all kinds, does this not implicitly mean the
giving and receiving of information in the language of one's choice? One could take the position that information is not actually
true information when received in a language which is not fully understood, or perhaps that one cannot express one's ideas fully
and properly in a language which is not one's own. As Michael Collins said of the situation between the Irish and English languages
during the Irish Civil War:
We only succeeded after we had begun to get back our Irish ways, after we had made a serious effort to speak our own language, after
we had striven again to govern ourselves. How can we express our most subtle thought and finest feelings in a foreign tongue? Irish
will scarcely be our language in this generation, not even perhaps in the next. But until we have it again on our tongues and in
or minds, we are not free.[80]
- This view does not seem to be shared by the Human Rights Committee. There have been some cases brought by Breton speakers before
the Committee who have claimed that their right to freedom of expression was violated by France. However, the way in which the Committee
dealt with these 'Breton Cases' was very disappointing with the Committee refusing to accept what many believe to be the undeniable
link between freedom of expression and language.
- In Dominique Guesdon v France,[81]
the author claimed that his freedom of expression had been violated when neither he nor and his witnesses were allowed to give testimony
in a French court in their native language of Breton. The service of an interpreter was also disallowed. The issue of language
choice, it was decided by the Committee, did not raise any issue under article 19.2. [82]
- Two other cases before the Committee in the same year, involving quite similar circumstances regarding the use of Breton in the French
legal system, were just as unsatisfactory as Guesdon regarding the issue of the link between language choice and freedom of expression,
i.e. T.K. v France[83]
and M.K. v France.[84]
The Committee decided that the cases were inadmissible because not all domestic remedies had been exhausted, even though this put
the authors in the rather ironic position of having to go through the French legal system using the French language, which was their
reason for bringing the case to the attention of the Committee in the first instance. Another disappointing aspect of the case of
T.K. v France is that the Committee commented on the author's proficiency in the French language, stating that no damage would be
done to his case by having to use the French language. Here the Committee confused the issues of language competency and language
choice. While it must be accepted that special protection must be afforded to those who would not have adequate French in order
for a fair trial to take place, the central point of the author's complaint concerned their language choice. Breton was their native
language and they believed that the only way they could fully impart and receive information, as guaranteed by Article 19, was if
they could do so through their own language.
- A similar question concerning language and freedom of expression regarding Breton was raised in Yves Cadoret & Hervé Le
Bihan v France.[85]
In this case the Committee finally considered the substantive issue of the link between language and freedom of expression. The
authors had appeared before the Tribunal Correctionnel in Rennes charged with vandalism of road signs where they were found guilty.
However, neither they nor they witnesses had been allowed to use their own language of Breton before the tribunal which, they contended,
had violated their right to freedom of expression under article 19.2 France claimed, however, that since the authors could speak
both French and Breton that their freedom of expression had not been restricted. The view of the Committee was very disappointing.
They held that the claim regarding Article 19.2 was inadmissible because they believed that not being allowed to use one's own language
of choice was not a violation of the freedom of expression.
- This issue was given further consideration in the case of Ballantyne, Davidson & McIntyre v Canada,[86]
which was discussed above in relation to language equality. With regard to the freedom of expression issue, the Committee made a
very important distinction between governmental areas and non-governmental areas. The Committee held that a State can choose to
have one or more official language but that it cannot ban the use of non-official languages in non-governmental areas and that therefore,
an attempt to limit one's language choice in non-governmental areas is a violation of one's freedom of expression. This case could
be seen as a success for those campaigning for language rights, with the Committee finally recognising a link between language choice
and freedom of expression. However, restrictions can still be placed on language choice in the area of governmental / public affairs.
- It is article 10 of the European Convention of Human Rights[87]
which deals with freedom of expression, but neither the European Commission- nor the European Court of Human Rights has ever had
to deal specifically with the issue of language choice and freedom of expression. However, some cases before them has touched on
this matter.
- The case of Inhabitants of Leeuw - St. Pierre v Belgium[88]
involved Belgian citizens who requested documentation to be provided by their municipality in French. Their request was refused
and this, they claimed, violated their right to freedom of expression under article 10. However, the Commission found that the claim
was inadmissible as the ECHR does not explicitly guarantee linguistic freedom. This was also seen in the Belgian Linguistics case
discussed above.
- In X v Ireland,[89]
the issue of language choice and freedom of expression was also raised, however the court did not go into too much detail in finding
that there was no violation by a requirement of filling in a form in Irish, the first official language of Ireland, even though the
applicant was an English speaker.
- Again, in the case of Fryske Nasjonale Partij v Netherlands,[90]
where the applicants claimed that their right to freedom of expression had been violated when they were prevented from standing as
candidates in an election for 'The First Chamber of the States General' because their registration for the election was not in Dutch
but in Frisian, the Commission decided that freedom of expression does not guarantee the right to use one's choice language in administrative
issues.
- As can be seen from the above discussion of caselaw, the Human Rights Committee has been rather elusive regarding the issue of choice
of language as a component of freedom of expression. When it was dealt with at all, it was dealt with very quickly and dismissed
without much consideration. When the issue was discussed in detail in the case of Ballantyne, however, an important issue arose
as regards the distinction between public and private affairs or between governmental and non-governmental affairs. An analysis
of the caselaw of the European Commission- and the European Court of Human Rights shows that they have arrived at a similar conclusion.
It seems to be the case regarding language choice and freedom of expression that anyone has the right to give and receive information
in their choice language to anyone, including the government, without any interference form the government, but that the government
is not under a corresponding obligation to receive such information or indeed to respond to such. The State can operate in its language
of choice exclusively and it can place a requirement on its subjects to use this language when dealing with them. However, outside
the remit of State activities, an individual is free to express himself in any language of his choice. While this may place an
extra burden on those whose language is not the official language of the state in relations with the state, this is believed to be
justified in most cases in the 'public interest'. However, if the burden is unreasonable or unjustified, there could arise a case
of discrimination on the grounds of language, as was considered in the case of Diergaardt v Namibia.[91]
- Are freedom of expression provisions of a more protective value than non-discrimination provisions regarding language rights therefore?
It must be said that the courts seem very unwilling to delve too deeply into the language rights issue under either equality / non-discrimination
or freedom of expression provisions. Any ground conceded to language rights campaigners has, for the most part, been given grudgingly
and with other issues such as the distinction between public / private affairs to be taken into consideration. While both non-discrimination
/ equality and freedom of expression provisions do offer some limited protection to language rights, they have not managed to eradicate
what could be said to be quite serious violations of language rights.
- The cases discussed above involve what can be classified as 'minority' languages. It is speakers of these languages who are in danger
of being denied their rights to equality, non-discrimination and freedom of expression by speakers of the majority language. What
then, of the protection of minority language rights?
- Members of a minority who feel they have been discriminated against on linguistic grounds could take a case before the Human Rights
Committee under Article 27 of the International Covenant on Civil and Political Rights, this being the article which 'contains
the most positive provision on the subject of language rights of minorities'?[92]
This article states:
In those states in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied
the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion,
or to use their own language.[93]
- Before Article 27 can be invoked, it must, however, be shown that the speakers of the language are, in fact, a minority. A definition
of the term minority has been much disputed over the years but Capotorti's offering has been the most generally accepted and widely
used. This states that a minority is:
A group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members - being nationals
of the State - possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show,
if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or culture.[94]
- If we consider the situation of Breton speakers, as we have discussed cases regarding their language rights above, Mühlke points
out that two individual opinions of the Human Rights Committee in C.L.D. v France[95]
made it clear that Breton speakers constitute a linguistic minority in France under Article 27 of the ICCPR. In this case a violation
of Article 27 of the ICCPR was claimed because of the refusal of the French Postal Administration to issue postal cheques in Breton
to native speakers of Breton.
- The Advisory Opinion of the Permanent Court of International Justice on the Polish Nationality Case[96]
discusses the issue of membership of a minority. The court concluded that any inhabitant of Poland could claim membership of a minority
if he had a different religion, race or language from the majority. This is obviously a very liberal approach to the concept of
membership of a minority and centres on the issue of choice. In the case regarding the rights of minorities in Upper Silesia[97]
before the same court it was decided that parents could decide if their child belonged to a racial, religious or linguistic minority.
Declarations as to membership of the minority had to, however, be backed up factually.
- The Human Rights Committee discusses Article 27 of the ICCPR in General Comment No. 23. However, the issue of membership of a minority
does not attract much attention. The General Comment does, however, suggest that not everyone can claim to be entitled to rights
of minorities. Paragraph 5.1 of this document mentions 'those who belong to a group and who share in common a culture, a religion
and / or a language.'[98]
The situation is illuminated by the case law of the Human Rights Committee which deals with the issues of minorities, e.g. Lovelace
v Canada[99]
and Kitok v Sweden.[100]
The former case concerned a Maliseet Indian who was a Canadian national. She was brought up on the Tobique Reserve but lost her
Indian status under the Canadian Indian Act when she married a non-Indian. As a result of her loss of status, she also lost the
right to live on the Reserve. After divorcing her husband, she and her children came back to live on the Reserve, pending expulsion
by the authorities. One of the issues raised in this case was whether she could be considered to be a Maliseet Indian. The Human
Rights Committee decided that she could:
Persons who were born and brought up on a reserve, who have kept ties with their community and wish to maintain these ties must normally
be considered as belonging to that minority within the meaning of the Covenant. Since Sandra Lovelace is ethnically a Maliseet Indian
and has only been absent from her home reserve for a few years during the existence of her marriage, she is, in the opinion of the
Committee, entitled to be regarded as 'belonging' to this minority...[101]
- The second case concerned membership of the Sami community. Ivan Kitok was a Swedish national and a Sami who complained that because
of formal exclusion from the Sami, he had been denied his ancestral right to breed reindeer. Kitok had been formally excluded form
the Sami community because of the Reindeer Husbandry Act of the Swedish Government of 1971 which, in an attempt to limit the number
of reindeer breeders for purposes of environmental and cultural protection, denied a Sami who had worked in another profession for
three or more years the right to breed reindeer, unless they were expressly recognised by the Sami community and allowed to become
a member again. Even though Kitok had maintained his ties with his community and had lived in Sami territory, he was denied his
reindeer breeding rights. The Human Rights Committee expressed doubts about the Swedish Act but nevertheless decided that there
was no violation of Article 27 in the present case because when balancing the rights of an individual and the protection of the minority
group they saw a 'reasonable and objective justification in this rule'.[102]
- These cases don't give a definitive statement on the concept of membership of a minority but they illustrate that there must be some
tangible tie between the individual and the minority community he / she claims membership of. From the case of Lovelace, it is clear
that to prove the existence of such a tie is not particularly onerous but it is nonetheless an objective test.
- If the problem of membership of a linguistic minority could be overcome, the next question to be addressed would be if Article 27
of the ICCPR would be of use to members of this minority. Even though this article is the most positive provision regarding minority
rights, there are still many issues to be dealt with when bringing a case before the Human Rights Committee under Article 27. This
article does not impose any obligation on the State to put in place any positive measures so that a minority can maintain its cultural
identity.[103]
Another issue which would have an important impact on the effectiveness of Article 27 as a means of redress for minority-language
speakers is that the Covenant confers individual rights only. The First Optional Protocol provides a right for individual petition.[104]
Therefore, even though a Government policy may affect many, or all, of the linguistic minority, only a individual can take a case
under Article 27 before the Human Rights Committee.
- Other International documents besides the ICCPR make reference to language rights and the linguistic rights of minorities e.g. the
United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 1992 and
the UNESCO Convention against Discrimination in Education 1960.
- Could members of a linguistic minority gain grater protection for their language or more rights for themselves by using this status?
The protection of minority languages is addressed in various European Documents. There has been a growing awareness of late, especially
over the last two decades, of the need for the adoption of constructive measures for the protection and promotion of minority / lesser
used languages. Non-binding documents of the early 1980's such as the European Parliament's Resolution on a Community charter of
regional languages and cultures and on a charter of rights of ethnic minorities and the Council of Europe's Recommendation on the
educational and cultural problems of minority languages and dialects in Europe were the starting point of this movement. But as
a result of the non-binding nature of these documents they were of more symbolic than concrete importance. The protection and promotion
of minority / lesser used languages has also been referred to in multifarious European Community Documents since the early 1980's
however, e.g. Recommendation 1134 [1990] on the Rights of Minorities of the Parliamentary Assembly and the European Parliament's
Resolution on linguistic and cultural minorities in the European Community.[105]
- Mention of minority language issues is also made in Helsinki Final Act of 1975, the Concluding Document - Vienna 1986 and the Copenhagen
Document 1990 of the OSCE. The assembly of European Regions has also commented on the minority language situation in Europe in Guidelines
for AER Policy on Regional and Minority Languages of 1996. Two very important binding documents regarding minorities and indeed
minority languages were formulated at the beginning of the last decade i.e. the European Charter for Regional or Minority Languages
and the Framework Convention for the Protection of National Minorities. While all of these documents and the more positive attitude
towards accommodating and promoting minority / lesser used languages is to be welcomed, they do not provide much assistance to the
linguistic minority cause and minority status would not greatly increase language rights for linguistic minority speakers under these
instruments. There seems to be a growing awareness of the need for protection of minority languages and many aspiration 'guidelines'
and 'recommendations' being produced, but what speakers of minority languages need is a more concrete means of language rights enforcement.
- Despite the fact that language rights have been questioned under three legal principles, i.e. equality / non-discrimination, freedom
of expression and minority protection, it is obvious that some individuals can still find themselves in a very inequitable situation
regarding language in many aspects of life. An analysis of the legislation and case law regarding language under these three principles
illustrates that despite the protection offered by domestic, regional and international provisions dealing with discrimination, freedom
of expression and minority protection, language rights are often severely limited and sometimes violated. The current protection
offered to language rights is, therefore, not sufficient.
- Perhaps a better method to ensure language rights would be a universal UN sponsored Convention on Language Rights, which would define
the issues of language equality and discrimination more clearly.[106]
The most exciting document to be produced of late with regard to language rights is the Universal Declaration of Linguistic Rights
which was adopted at the World Conference on Linguistic Rights in Barcelona in 1996. This Declaration has not yet been adopted by
UNESCO but it is hoped that it will eventually lead to a UN sponsored Linguistic Rights International Convention. While various
countries face very differing and challenging situations with regard to the different languages in use in their jurisdiction, some
type of uniformity is needed in order to ensure the protection of linguistic rights and the best method to ensure this would be a
UN sponsored document, backed up with more concrete language rights domestic legislation. In order to ensure equality for everyone,
the language rights of such a convention and legislation would, of course, have to be balanced with other non-linguistic rights,
but the importance of language rights cannot be overlooked because, as Beloff comments:
...language issues pervade the social and political life, and in consequence the fabric of the law, in many countries and in every
continent and corner of the globe...[107]
- Language is pervasive, touching individuals in all aspects of life, yet some languages are unfairly valued more highly than others,
thus violating what is at the very core of the individual. It is clear from the above analysis that the current method of protecting
language rights is, for the more part, a mixture of confusion, contradiction and unpredictability. In order for all languages, and
indeed, for all individuals to gain the protection they deserve and need, an overhaul of the present language protection system is
needed, with more emphasis on concrete implementation rather than on aspirational ideals.
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Treaties and Instruments
UNITED NATIONS
Draft Declaration on the Rights of Indigenous Peoples (1994), UN Doc.
E/Ch.4/Sub.2/1993/29.
Charter of the United Nations (1945), as amended by GA Res. 1991 (XVIII), 1963 (557 UNTS 143); 2101, 1965(638 UNTS 308); and 2847 (XXVI) 1971 (892 UNTS 119).
Convention on the Rights of the Child (1989), GA Res. 44/25, 44 UNGAOR, Supp. (No. 49), U.N. Doc. A/44/49.
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992), GA Res. 47/135,
annex 47 U.N. GAOR Supp. (No. 49) at 210, U.N. Doc. A 47/49.
Declaration on the Rights of the Child (1959), GA Res. 1386 (XIV), 14 UN GAOR, Supp. (No. 16) UNDoc A/4354.
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International Convention on the Protection of the rights of all Migrant Workers and Members of their Families (1990), GA Res. 45/158,
annex 45 U.N. GAOR Supp. (No. 49 A) at 262 U.N. Doc A/45/49.
International Covenant on Civil and Political Rights (1966), GA Res. 2200A (XXI), U.N. Doc. A/6316.
International Covenant on Economic, Social and Cultural Rights (1966), GA Res. 2200A (XXI), U.N. Doc. A/6316.
Universal Declaration of Human Rights (1948) - GA Res. 2174 (III), U.N. Doc. A/810
EUROPE
Convention for the Protection of Human Rights and Fundamental Freedoms (Europe) (1950), ETS 5/213 UNTS 222.
European Charter for Regional or Minority Languages. ETS 148.
European Social Charter (1961), ETS 35.
Framework Convention for the Protection of National Minorities (Council of Europe) (1994), ETS 157.
Recommendation 1134 (1990) on the Rights of Minorities (Council of Europe)
Recommendation 1177 (1992) concerning the Rights of Minorities (Council of Europe)
Recommendation 1201 (1993) on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights.
Treaty on European Union, Official Journal C 325.
OTHER
American Convention on Human Rights (1969), O.A.S. Off. Rec. OEA/Ser.L/V/11.23, doc.21,rev. 6.
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Draft Inter-American Declaration on the Rights of Indigenous Peoples (1995) OEA/Ser.L/V/11.90.21.
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CASES
Domestic Courts
Canada
* Devine v Québec, [1988] 2 S.C.R. 790
* Ford v Québec, [1988] 2 S.C.R. 712
* Reference Re Criminal Code (Manitoba), [1990] 1 S.C.R. 1123
Switzerland
* Association de lécole française und Mitbeteiligte v Regierungsrat und Vervaltungsgericht des Kantons Zürich,
Arrêts du Tribunal Fédéral 91 I 480 (1965)
United Kingdom
* Jones v Gwynedd County Council, The Times, 25 July 1985
* Mandla v Dowell Lee, [1982] UKHL 7; [1983] 2 A.C. 548
* Rahal v DHSS, [1985] I.R.L.R. 370
United States
* Carmona v Sheffield, 325 F. Supp. 1341 (1971)
* Garcia v Gloor Lumber, [1980] USCA5 1078; 618 F. 2d 264 (1980)
* Garcia v Spun Steak, United States Supreme Court, 22 June 1994
* Guerrero v Carleson, 512 P. 2d 833 (1973)
* Lau v Nichols, [1974] USSC 14; 414 U.S. 563 (1974)
* Meyer v Nebraska, [1923] USSC 154; 262 U.S. 390 (1923)
* Yu Cong Eng v Trinidad, [1926] USSC 171; 271 U.S. 500 (1926)
Regional Courts
Inter-American Court of Human Rights
* Advisory Opinion of 19 January 1984 (Costa Rican Naturalisation Case), Case No. OC-4/84.
European Court of Human Rights
* Abdulaziz, Cabales and Balkandali v UK A 94 [1985] ECHR 7; (1985) 7 EHRR 471
* 'Belgian Linguistics' Case (Merits) A 21 [1968] ECHR 3; (1968), 1 EHRR 252
* Fryske Najonale Partij v Netherlands, 45 Decisions and Reports (E Comm. HR) 243, (1986)
* Inhabitants of Leeuw-St. Pierre v Belgium,
8 Yearbook of the ECHR 338, (1965)
* Marckx v Belgium A 31 [1979] ECHR 2; (1979), 2 EHRR 330
* Mathieu-Mohin and Clerfayt v Belgium A 113 [1987] ECHR 1; (1987), 10 EHRR 1
* X v Ireland, 13 Yearbook of the ECHR 792, (1970)
* X and Y v Netherlands A 91 [1985] ECHR 8978/80; 1985, 8 EHRR 235
European Court of Justice
* Angonese v Cassa di Risparmio di Bolzano, C281/98 [2000] ECR I-4139
* Groener v Minister for Education, C379/87 [1989] ECR 3967, [1990] 1 CMLR 401
* Ministère Public v Mutsch, C137/84 (1985) ECR 2681.
International Courts
Permanent Court of International Justice
* Advisory Opinion on Certain Questions, Arising Out of the Application of Article 4 of the
Polish Minorities Treaty (Polish Nationality Case), (1923), Series B, No. 7.
* Advisory Opinion on Minority Schools in Albania (Minority
Schools in Albania case), (1935), Series A/B, No. 64.
* Advisory Opinion on the Question Concerning Lease Concessions to German Nationals
who have become Polish Subjects (German Settlers Advisory Opinion), (1922 - 25), Series B, No. 6.
* Rights of Minorities in Upper
Silesia (Minority Schools), (1928), Series A, No. 12.
International Court of Justice
* South West Africa Case (Second Phase), [1966], 284.
Human Rights Committee
* Ballantyne, Davidson and Mc Intyre v Canada, Communications Nos. 359/1989 and 385/1989, 31 March 1993
* Yves Cadoret and Hervé
Le Bihan v France, Communications Nos. 221/1987 and 333/1988, 11 April 1991
* CLD v France, Communication No. 228 / 1987, UN Doc.
Supp. No. A / 3/ 40 (1988)
* J.G.A. Diergaardt et al v Namibia, Communication No. 760/1997, 6 September 2000
* Dominique Guesdon
v France, UN GAOR, Volume II, 45th session @ p. 61, UN Document A/45/40 (1990)
* Kitok v Sweden, Communication No. 197 / 1985, UN
Doc. CCPR / C / 33 / D / 197 (1985)
* Lovelace v Canada, Communication No. 24 / 1977, UN Doc. CPR / C / OP (1984)
* M.K. v France,
UN GAOR, Vol. II, forty-fifth session, Appendix X, @ p. 127, UN Doc. A / 45 / 40 (1990)
* T.K. v France, UN GAOR, Vol. II, forty-fifth
session, Appendix X, @ p. 118, UN Doc. A / 45 / 40 (1990)
[1]
Nowak 1993, 458
[2]
See de Varennes 1996, 55.
[3]
For a detailed discussion of the concept of equality see the dissenting opinion of Tanaka, J. in the South West Africa Cases Second
Phase), 1966 - reprinted in Brownlie 1922, 568-98.
[4]
de Varennes 1996, 55.
[5]
McKean 1983, 8.
[6]
This case will be discussed below.
[7]
McKean 1983, 51.
[8]
See generally de Witte 1985 and de Varennes 1996, 380-459 for an in-depth discussion of this subject.
[9]
See de Varennes 1996, 59.
[10]
de Varennes 1996, 63.
[11]
North Carolina Central Law Journal. Vol. 20, 1992, 70.
[12]
See North Carolina Central Law Journal, Vol. 20, 1992, 66.
[13]
See Ibid, 68
[14]
[1923] USSC 154; 262 US 390 (1923)
[15]
[1926] USSC 171; 271 US 500 (1926)
[16]
North Carolina Central Law Journal, Vol. 20, 1992, 73.
[17]
[1974] USSC 14; 414 US 563 (1974)
[18]
42 USC par. 2000 )d) (1982). See North Carolina Central Law Journal, Vol. 20, 1992, 86.
[19]
512 P. 2d 833 (1973)
[20]
US Supreme Court, 22 June 1994. See de Varennes 1996, 62, footnote 21.
[21]
Beloff 1987, 151.
[22]
de Varennes 1996, 65.
[23]
(1988) 2 SCR 712.
[24]
See also the case of Devine v. Québec(1988) 2 SCR 790.
[25]
Beloff 1987, 152.
[26]
See generally, Beloff 1987.
[27]
de Varennes 1996, 64. See the case of Raval v. DHSS [1985], IRLR 370.
[28]
de Varennes 1996, 64.
[29]
See Beloff 1987, 144-6.
[30]
[1967] Q.B. 21.
[31]
The Times, 25 July 1985.
[32]
Beloff 1987, 146.
[33]
Gromacki 1992, 521.
[34]
Permanent Court of International Justice 1922-5, Series B, No. 6.
[35]
Ibid. 6.
[36]
Permanent Court of International Justice 1935, Series A / B, No. 64 at 17.
[37]
McDougal, Lasswell & Chen 1976, 162.
[38]
UN instruments prohibit discrimination on many grounds, but four grounds are always laid down as ground on which discrimination
is prohibited, i.e. gender, race, religion and language.
[39]
Charter of the United Nations (1945), as amended by GA Res. 1991 (XVIII), 1963 (557 UNTS 143), 2101, 1965 (638 UNTS 308); and 2847 (XXVI) 1971 (892 UNTS 119).
[40]
Universal Declaration of Human Rights (1948), GA Res. 2174 (III), UN Doc. A/810.
[41]
International Covenant on Economic, Social and Cultural Rights (1966), GA Res. 2200A (XXI), UN Doc. A/6316
[42]
International Covenant on Civil and Political Rights (1966), GA Res. 2200A (XXI), UN Doc. A/6316.
[43]
Note that the words 'distinction' is used here rather than 'discrimination' - the meaning of this is clarified by General Comment
18 of the Human Rights Committee which will be discussed below.
[44]
General Comment of the Human Rights Committee, No. 18 [37], paragraph 7.
[45]
Ibid, paragraph 9.
[46]
Ibid, paragraph 10.
[47]
Ibid, paragraph 13.
[48]
Communication No. 221/1987, 11 Apr. 1991.
[49]
Communication No. 333/1988, 11 April 1991.
[50]
Communication No. 359/1989 & 385/1989, 31 March 1993
[51]
Communication No. 760/1997, 6 September 2000.
[52]
Convention for the protection of Human Rights and Fundamental Freedoms (Europe) (1950), ETS 5/213 UNTS 222.
[53]
E.g . Marckx, A 31 (1979), National Union of Belgian Police, A 19 (11975), X and Y v. Netherlands, A 91 (1985)
[54]
A 6 (1968)
[55]
Series A, No. 113 (1997)
[56]
Ibid at paragraph 25.
[57]
Treaty on European Union, Official Journal C 325.
[58]
Case 379/87, [1989] ECR 3967, [1990] I CMLR 401.
[59]
Bunreacht na hÉireann 1937, Article 8
[60]
Case 137/84 (1985), European Court Reports 2681.
[61]
Case C-281/98 (2000), European Court Reports I - 4139.
[62]
See Doherty, 16 - 17.
[63]
Case No. OC-4/84.
[64]
Ibid, at paragraphs 55-7. See de Varennes 1996, 71-2.
[65]
Case No. OC-4/84 at paragraph 22.
[66]
Ibid at paragraph 23.
[67]
Communication No. 221/1987, 11 Apr. 1991 - Human Rights Committee.
[68]
Communication No. 333/1988, 11 Apr. 1991 - Human Rights Committee.
[69]
See, e.g. Permanent Court of Justice 1922 - 5, Series B., No. 6 and 1935, Series A/B and No. 64.
[70]
General Comment 18.
[71]
Communication No. 760/1997, 6 September 2000.
[72]
[1974] USSC 14; 414 US 563 (1974).
[73]
Garcia v Spun Steak, US Supreme Court, 22 June 1994.
[74]
de Varennes 1996, 2.
[75]
Communication No. 760/1997, 6 September 2000
[76]
Arrêts du Tribunal Fédéral 91 I 480 (Switzerland), (1965)
[77]
2 SCR 712 (Canada), [1988]
[78]
2 SCR 790 (Canada) [1988]
[79]
1 SCR 1123 (Canada) [1990] - see page 1181.
[80]
Quoted in Stephens 1978, 459.
[81]
UN GAOR VOL. II, forty-fifth session at p. 61, UN Doc. A / 45 / 40 (1990)
[82]
Ibid, paragraph 7.2.
[83]
UN GAOR, Vol. II, forty-fifth session, Appendix X at p. 118, UN Doc. A / 45 / 40 (1990)
[84]
Ibid at p. 127.
[85]
Communications Nos. 221 / 1987 and 333 / 1988, 11 April 1991.
[86]
Communications Nos. 359 / 1989 & 385 / 1989.
[87]
European Convention for the Protection of Human Rights and Fundamental Freedoms, (1950), ETS 5/213, UNTS 222.
[88]
8 Yearbook of the European Convention on Human Rights 338, (1965)
[89]
13 Yearbook of the European Convention on Human Rights 792, (1970)
[90]
45 Decisions and Reports 240 (E. Commission of HR) at p. 243, (1986)
[91]
Communication No. 760/1997, 6 September 2000.
[92]
Ó Máille 1990, 28.
[93]
Note: Ireland acceded to the ICCPR in 1989.
[94]
Capotorti, Francesco 1979, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, paragraph 568.
[95]
Comm. No. 228/1987, UN Doc. Supp. No., A/43/40 at 252 (1988)
[96]
Series B, No. 7, 1923.
[97]
Series A, No. 12, 1928.
[98]
UN Doc. CCPR/C/21/Rev.1/Add.5, 1994.
[99]
Comm. No. 24/1977, UN Doc. CPR/C/OP/1 (1984)
[100]
Comm. No. 197/1985, UN Doc. CCPR/C/33/D/197 (1985)
[101]
Comm. No. 24/1977, UN Doc. CPR/C/OP/1 (1984), par. 14.
[102]
Nowak 1993, 497.
[103]
See Nowak 1993, 500.
[104]
See Nowak 1993, 497 - 9.
[105]
Resolution prepared by Mark Killelea and adopted by the European Parliament 1994 [A3-0042/94].
[106]
See Universal Declaration of Linguistic Rights, in Ó Riagáin 1998, 100 - 108 and also Gromacki 1992, 567 - 9.
[107]
Beloff 1987, 140-1.
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