Important Decision on Language Rights and Non-Discrimination

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From: MINELRES moderator <[email protected]>
Date: Fri, 22 Feb 2002 09:33:58 +0200 (EET)
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Subject: Important Decision on Language Rights and Non-Discrimination

From: MINELRES moderator <[email protected]>

Original sender: Fernand de Varennes <[email protected]>

Important Decision on Language Rights and Non-Discrimination


Dear Colleagues,

It seems most people interested in the rights of minorities are not
aware of a UN Human Rights Committee decision of 6 December 2000
(Diergaardt v Namibia
http://www1.umn.edu/humanrts/undocs/session69/view760.htm) which is a
step forward in the recognition of language rights using basic human
rights principles - which I have been arguing since the publication of
my book "Language, Minorities and Human Rights".

For the first time to my knowledge, an international body has
confirmed that an exclusive language policy - when for example only
the official language can be used by state officials in their
activities and contacts with the public) - can constitute
discrimination on the basis of language. In the case of Namibia, the
exclusive use of the English language and the instruction to civil
servants not to use Afrikaans in contacts with the public - even on
the phone when the civil servants could easily have responded in that
language, constituted discrimination on the basis of language under
Article 26 of the ICCPR, since the government made no attempt to
demonstrate that the preference of English over Afrikaans was a
reasonable and therefore not arbitrary language distinction.

This decision is significant because it expands on the reasoning
adopted by the European Court of Human Rights in the Belgian
Linguistic Case. Some experts had interpreted that judgement as
signifying that it is not possible for a minority to claim access to
public services in their language using non-discrimination because the
Court had in essence that the right of non-discrimination "does not
guarantee to everyone the right to public education in their own
language."

The UN decision in Diergaardt v Namibia does not contradict the
reasoning of the European Court in the Belgian Linguistic Case. It
simply adds - as the Court itself had indirectly implied - that any
language preference must not be arbitrary or unreasonable. When you
have an official state language, you have a language preference. If a
state refuses to use another language, choosing instead to use
exclusively the state language, it is making a "linguistic
distinction" in the services and activities it provides and refusing
to provide ther same on other languages. As long as such a preference
is reasonable and non-arbitrary, it is not discriminatory.

In Namibia however, at first glance, for civil servants to refuse to
use Afrikaans even in telephone contacts with members of the public
when it was very simple to do so - and in light of the large numbers
of individuals who speak Afrikaans, including civil servants - seemed
to suggest a restriction which was unreasonable. The majority of the
UN Human Rights Committee therefore concluded it was discriminatory
for the government of Namibia not to have civil servants use the
Afrikaans in its contacts with the public.

Those who are interested in looking more closely at this new line of
argument on the use of non-discrimination in areas of official use of
a minority language by the state - including in public education - may
want to get a copy of the just published booklet which I prepared for
COLPI (Constitutional and Legal Policy Institute) in Budapest entitled
"A Guide to the Rights of Minorities and Language" and which is one of
the few which has suggested that language rights of minorities could
in some cases be based on non-discrimination - and as the UN Human
Rights Committee has finally confirmed. The COLPI booklet is available
free of charge. I can also provide a copy.

Regards,

----------------------------
Dr Fernand de Varennes, LL.B. (Moncton), LL.M. (LSE), Dr.Iuris
(Maastricht) Senior Lecturer

Former Director, Asia-Pacific Centre on Human Rights and the Law

Editor-in-Chief, Asia-Pacific Journal on Human Rights and the Law

"So now, in the end, if this the least be good,
If any deed be done, if any fire
Burn in the imperfect page, the praise be thine"
Emerson

School of Law - Murdoch University
Murdoch, Western Australia 6150
AUSTRALIA
Telephone: 61 8 9360 6510
Fax: 61 8 9310 6671
email: [email protected]
http://wwwlaw.murdoch.edu.au/apchr

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