E/CN.4/Sub.2/AC.5/1997/WP.6

18 April 1997
Original: ENGLISH

COMMISSION ON HUMAN RIGHTS

Working Group on Minorities
Third session
26 - 30 May 1997

1. It is essential to emphasise certain limitations to the UN Declaration in relation to language. It apparently was never intended to be a comprehensive code of all human rights, recognised or nascent in international law, which directly or indirectly relate to language. Strictly speaking, it should mainly be seen to address those rights linked to Article 27 of the International Covenant on Civil and Political Rights, the only "minority" provision in the Covenant.

2. The origins of the UN Declaration can thus explain certain omissions. Freedom of expression, for example, is not mentioned specifically in the UN Declaration, even though it is now clear that this freedom protects the private use of language. In Ballantyne, Davidson and McIntyre v. Canada[1], the United Nations Human Rights Committee clearly indicated that legislation making French the exclusive language of outdoor commercial signs in Québec to the exclusion of all other languages in private matters breached the freedom of expression guaranteed to all by Article 19 of the International Covenant on Civil and Political Rights.

3. For persons who belong to linguistic minorities, freedom of expression can be an extremely important right in relation to the private use of a language, but it is not a right which they can claim as members of a minority group. Everyone has freedom of expression, whether one belongs to a majority or to a minority. Seen in this light, it is clear that whilst freedom of expression may be of great significance for the protection of linguistic minorities in some countries, it does not originate per se from Article 27 of the International Covenant on Civil and Political Rights. It is not contained explicitly in the UN Declaration because some individual human rights that may have a role in matters such as language (and religion or culture) are not minority rights. Since they are not minority rights, they fall outside the UN Declaration.

4. The UN Declaration is also silent on the right to an interpreter in criminal proceedings when an accused does not understand the language used by the court. Once again, as this is an individual right and not a minority right, it is not mentioned in the UN Declaration, despite being considered by many to be a fundamental right in international law.

5. A final example of a relevant individual right which the UN Declaration does not directly address is the growing acknowledgment of the impact of non-discrimination in the area of language preferences by public authorities. Although the interpretation of this aspect of the right of non-discrimination in international law is still going through a process of clarification, there is increasing support for the view that the operation of non-discrimination must take into account the need to balance a state's legitimate interests and goals in prescribing certain preferences with the ensuing disadvantage, denial or burden this may effect on individuals. Everything comes down to whether or not in the end the measure or conduct is "reasonable", "arbitrary" or "fair".

6. Under this analysis, it seems clear that the prohibition of discrimination on the ground of language does not mean a state cannot favour one language over others. A state could never be obligated to conduct all of its activities in every language which is spoken by the inhabitants in its territory. Non-discrimination does not prohibit every distinction involving a language, only those that are "unreasonable" when one considers all relevant factors: those that relate to the state's interests and goals, and those that relate to the individual's interests, rights and how s/he is affected.

7. By using one language exclusively in public schools, state services, administrative activities, or even prescribing the language in which court trials are conducted, a state is making a distinction based on language. It is showing a preference for this single, official or national language which will benefit some individuals for whom it is a primary language, to the detriment or disadvantage of others who either have no or lower proficiency in it or are denied the benefit or privilege of using their own primary language.

8. Even though linguistic disadvantages are real, the proper application of non-discrimination does not guarantee that every individual's language of preference can or should be used by state authorities. What is required instead is a balancing act, an attempt to reach a reasonable outcome in light of legitimate state interests and goals, and the effect the state distinction between languages has on the individual and the advantage or benefit which others are receiving and he or she is not.

9. In practice, this would generally mean that non-discrimination can only be invoked successfully where there is a sufficiently large or concentrated number of individuals affected in relation to the type of state service or activity, such as public education in a particular language.

10. Once again, this interpretation of the right of non-discrimination does not find a place in the provisions of the UN Declaration because non-discrimination is not specifically a minority right under Article 27 of the International Covenant on Civil and Political Rights. Whilst linguistic minorities could undoubtedly benefit - in appropriate circumstances - from the application of non-discrimination in state activities involving a linguistic preference, this is strictly speaking an individual right independent of minority status.

11. Article 1 of the UN Declaration suggests there is a positive obligation on states: they "shall adopt legislative and other measures" in order to protect the identity of minorities and to encourage conditions for its promotion. In the case of linguistic minorities, this refers to the protection of the minority language and the encouragement of conditions for its promotion.

12. The type of state legislation required to fulfil this obligation is not elaborated, leaving simultaneously a great deal of latitude to determine what is appropriate in the particular context of a country, but also leaving many uncertainties. One such uncertainty is whether this right should be interpreted to require positive action in terms of the language used by state officials when providing services to the public. For example, does Article 1 imply a state obligation to have civil servants capable of communicating with persons belonging to linguistic minorities in the language of the minority in certain conditions? Or does it refer only to an obligation to adopt legislative or other measures that create a favourable environment under which a linguistic minority can then be free in the enjoyment of their identity? Is to be free to enjoy one's language thanks to legislation, for example, sufficient to satisfy the state obligation "to encourage conditions for the promotion" of a minority language?

13. These matters are central to the nature and object of the UN Declaration, yet they are also difficult to answer conclusively. What does appear certain is that at the very least there is an obligation to adopt measures that guarantee some form of protection for members of a minority to freely use their language amongst themselves. This is confirmed by the content and tenor of the other provisions of the UN Declaration, and also from the UN Human Rights Committee's General Comment on Article 27.

14. It would also have appeared logical to add that there must be a state obligation to provide services that are essential for the continued existence of the identity of linguistic minorities. For example, the promotion of a minority's language is highly unlikely if it cannot be used as medium of instruction in schools since, in the words of Claude Jullian, "Une langue qu'on n'enseigne pas est une langue qu'on tue"[2]. Yet in this fundamental sphere for the survival of the identity of linguistic minorities, the UN Declaration itself is non-committal: states "should" provide for adequate opportunities, where appropriate and possible, for persons belonging to minorities to learn their language or to have instruction in their language.

15. The use of the word "should" instead of "shall" in Article 4(3) is significant as will be explained in another section of this working paper. Instead of affirming clearly that states must, under certain conditions, offer public instruction of or in a minority language, the UN Declaration only goes so far as to propose that it would be a "desirable" result, but not a necessary one under the UN Declaration.[3]

16. This may initially appear surprising until one remembers that the UN Declaration is not intended to be a comprehensive compendium of all the rights which linguistic minorities may enjoy under existing fundamental international human rights and freedoms: it is a declaration which is mainly"inspired" by Article 27 of the International Covenant on Civil and Political Rights.

17. The best approach to Article 1 is probably to consider it as a programmatic provision which recognises the need for a tolerant, generous and inclusive approach to the existence of linguistic minorities within a state. Instead of a specific set of actions which a state must undertake, Article 1 gives a broad sense of direction: states have an obligation to take appropriate steps through legislation and other measures in order to protect the existence of the language of minorities as the essential component of their identity. States must also adopt legislation or take other measures to encourage an environment conducive to the promotion of minority languages. What this requires in concrete terms will depend on the specific conditions of each state, on any threat to the existence of linguistic minorities, and on any condition which stifles the promotion of their language.

18. Yet at the very least Article 1 suggests that it is no longer sufficient for a state to claim it has no obligation in respect of linguistic minorities except non-interference in their affairs. Even if the identity of a linguistic minority is not endangered directly because of a state-led policy or some other state conduct, Article 1 gives states a role to play in creating an environment of safety and respect. The minority language must be protected from outside menaces, and the state must encourage conditions for its promotion instead of permitting negative conditions to dominate and pressure a minority. To do otherwise would be contrary to the very essence of human rights: the recognition of the inherent worth and dignity of all human beings, as well as to their diversity.

19. One example of how this provision could protect the existence of a minority's linguistic identity or encourage conditions for its promotion would be by forbidding acts of intolerance which may demean a minority language and its speakers. Whether it is in a restaurant, bar, or some other location accessible to the public, states may be obliged to legislate to prevent owners from banning the private use of a minority language on their premises simply because it would "disturb" other customers or be disruptive. Whether an "English-Only" rule, or a "White-Only" rule, this type of conduct signals intolerance of others because they are different and somehow seen as not as "worthy". In both cases of intolerance, the state has an obligation to take concrete steps to create an environment which promotes acceptance of these human differences.[4]

20. Article 2 of the UN Declaration appears limited, as far as linguistic minorities are concerned, to the recognition of the right of persons to use their own language "in private and in public, freely and without interference or any form of discrimination". This provision only addresses the use of a minority language by private individuals or entities, and does not impose obligations on states to provide public services or benefits in a minority language.

21. It is however an important right for persons belonging to linguistic minorities. This provision prevents a state from interference which would deny the free private use of a minority language, although there are also other human rights which may help to protect the private use of a minority language in some situations, including the right to privacy, non-discrimination, and freedom of expression.

Minority Names and Surnames

22. Whilst the right of a person to have his or her (sur)name in his/her own language would appear to be protected under the right to privacy,[5] it also comes under the protection of Article 27 of the International Covenant on Civil and Political Rights and Article 2 of the UN Declaration in the case of a person belonging to linguistic minorities.

23. Whether using a person's name during a religious ceremony, a private discussion at home or in a public street, or on a sign or poster on private property, this still involves a person using words from a minority language in the private sphere. A state which would attempt to forbid a person belonging to a minority from using his or her own name because only names in the official, non-minority language are permitted, would clearly be in breach of the principle laid down in Article 2.

Script Use by a Linguistic Minority

24. A minority's language may include a script (Arabic, Cyrillic, etc.) which differs from that sanctioned by the state. Whilst a state would not be obligated under the UN Declaration to use a particular script in any of its official activities, Article 2 does prevent a state from banning the use of a minority script (as an aspect of language) in the private sphere. Whether involving script use in private correspondence, the printing of a book by private entities, or on outdoor signs by a private entrepreneur, all these activities represent situations where persons have the right, in private or in public, to use their own minority language.

25. Persons belonging to a linguistic minority have the right to use their own language in private. This refers to a vast panoply of situations that are important for the day-to-day life and vitality of many linguistic minorities. Playing music sung in a minority language, talking to one's children in a minority language at home, being able to write private correspondence, or talking to a friend or neighbour in private in one's own language, would all be guaranteed under Article 2.[6] Persons belonging to a linguistic minority must also have the right under this provision to keep documents and books that are written in their minority language. For example, this signifies that persons belonging to a linguistic minority can keep business or association records in a minority language, although they may additionally and validly be asked by the state to also provide such records in the official or majority language.[7]

26. Very few states attempt to prevent individuals from using their language of choice in a private context.[8] Whether a person speaks his or her language with a neighbour on the public street or at home, there is almost universal agreement that a state cannot intrude in this type of language use. It would appear this type of conduct is protected under freedom of expression and would thus apply to all persons, including persons belonging to ethnic minorities.

27. The right of persons belonging to a linguistic minority to use their own language (Article 2(1)), in community with other members of their own group (Article 3(1)), as well as the right to establish and maintain their own associations (Article 3(4)) can be joined together in such a way as to suggest that the collective use of a minority language is protected under the UN Declaration.

28. This suggests strongly that a ban on social, cultural or even political groups, simply because they use a minority language as their language of operation, would go against both the letter and the spirit of the provisions of the Declaration.

29. Even more importantly, these provisions confirm that linguistic minorities have the right to establish and maintain their own private schools - including the right to manage these schools - where the minority language can be used as medium of instruction to the extent chosen by them. This right to the collective use of a minority language in terms of private educational activities does not, in itself, mean that a state must provide financial assistance for these activities. Such assistance is however identified by the UN Declaration as a desirable measure in Article 4(3), and will be discussed in more detail at paras 43 to 50 of this working paper.

30. It should also be pointed out that whilst linguistic minorities are entitled to freely open and operate their own private minority schools, this does not prevent the state from requiring that all pupils acquire some knowledge of the official or majority language of the country. Numerous international documents and treaties recognise not only that the state can impose such a requirement, but even that it has an obligation to do so in order to avoid the creation of linguistic "ghettos" or seriously disadvantaging minority students.[9]

31. Article 2 also recognises that the right of persons belonging to a minority to use their own language amongst themselves may have in some cases a "public" aspect. This does not imply a state obligation to use minority languages in its own activities.[10] It is rather limited to situations where the private use of a minority language can occur where the public at large may be exposed to this use. If a private radio station broadcasts a minority language programme, it can reach not only members of the linguistic minority, but also other individuals because of its public nature. The same is true where a poster or sign is erected in view of the public, or when a group of individuals speak a minority language when gathered in a public park or street. Although they are still "private" activities since they involve persons acting in their private capacities and not as officials or agents of the state, they nevertheless have a public dimension because their reach may include individuals who are not members of the linguistic minority.

32. The public use of a minority language thus understood means that persons belonging to minorities must not be prevented from privately distributing printed documents, magazines or books in kiosks simply because they are in a "prohibited" language. Such persons must not be prevented by the state from using their own language during private conferences, meetings, and assemblies, even if the venue is open to the public.

33. Any state ban preventing a private individual from using a minority language on posters, commercial signs, etc. that would be in public view would be inconsistent with Article 2, as well as involving a breach of freedom of expression.

34. In the case of private media such as newspapers, books, radio or television broadcasts, the state must not prevent the private use of a minority language. A total ban or severe limitations on the private use of a minority language would go beyond normal state regulatory control of the media. It would be a situation where persons belonging to a linguistic minority could not, for example, publish and distribute publicly a book written in their own language, or where a private radio station would not be allowed to produce and broadcast programmes prepared in a minority language.

35. The UN Declaration does not spell out exactly what measures States should undertake in order to protect the existence of the linguistic identity of minorities and to encourage conditions for the promotion of that identity. Nevertheless, Article 1 leaves little doubt that all States have an obligation to adopt appropriate legislative and other measures to achieve these ends. Arguably, one of the most effective ways of protecting a linguistic minority's identity and encourage conditions for minorities to be able to speak their own language in public "freely and without interference or any form of discrimination" as provided for at art. 2, is to have public officials use a minority language where it is reasonable to do so. That the use of minority languages by public authorities may be appropriate in the sense of Article 1 of the UN Declaration finds support from what is increasingly emerging as an inclusive response to and respect for the needs of persons belonging to minorities.

36. A growing number of international treaties signal that many states have increasingly come to approve of a positive and reasonable response to the presence of linguistic minorities. When authorities at the national, regional or local levels face a sufficiently high number of individuals whose primary language is a minority language, these states tend to accept that they must provide a level of service appropriate to the relative number of individuals involved.

37. In the case of local districts and their administration, where the speakers of non-official or minority languages are concentrated, local authorities should provide for an increasing level of services in the non-official or minority languages as the number of speakers of those languages increase. Beginning at the lower end of the sliding-scale model and moving to a progressively higher end, this would imply, for example:

38. Many recent treaties and international instruments embody this concept of a sliding-scale as a proper response to the presence of linguistic minorities on their territory. The Central European Initiative Instrument for the Protection of Minority Rights (Article 13: "whenever in an area the number of persons...reaches...a significant level"), the Framework Convention for the Protection of National Minorities (Article 10: "in areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if those persons so request and where such a request corresponds to a real need"), and the European Charter for Minority or Regional Languages (Article 10: "within the administrative districts...in which the number of residents...justifies the measures specified below and according to the situation of each language"), to name but a few, all embody the implicit recognition that minorities and their languages must be respected and accommodated in certain situations, where appropriate.

39. Although it appears that no international instrument attempts to provide a precise demographical standard for assessing when exactly the use of a minority language by public authorities is an appropriate and reasonable response, at least one non-governmental organisation has attempted to do so in a Draft Protocol to the International Convention on the Protection of National or Ethnic Minorities or Groups, Applicable to the States Members of the Council of Europe:

40. The ethnic group's language shall be the official language if in an autonomous corporate entity within a commune (including parts of the commune or factions of a commune equipped with independent sub-organs of the commune) at least 20 percent, in administrative and judicial districts at least six percent, or in larger administrative entities at least five percent of the residing population use the language of the ethnic group.

41. Article 2(5) of the UN Declaration recognises the right of persons belonging to a linguistic minority to have contacts across frontiers with citizens of other states to whom they are related by linguistic ties. Once again, most states do not seem to deny directly this right in their legislation, but few specifically recognise it either. Nevertheless, a number of states, including Lithuania, Poland, Latvia, and others have by treaty agreed to the validity and desirability of this right for persons belonging to minorities.[11]

42. As explained by one commentator, such an entitlement can be of great importance for minorities separated by a border in that it is a potential source of support and inspiration for its cultural and linguistic activities:

Il s'agit là d'un droit particulièrement important pour les minorités, si elles veulent promouvoir et renforcer leurs caractéristiques communes. Le droit consacré par cet écrit concerne tout d'abord les minorités dispersées sur le territoire d'un ou de plusieurs États. Il est en outre destiné à s'appliquer aux nombreuses minorités établies près des frontières et qui présentent les mêmes caractéristiques ethniques, religieuses ou linguistiques que la population des États voisins. Pour elles, le droit d'entretenir des contacts avec les populations limitrophes, y compris en se déplaçant dans ces États, revêt une importance particulière.[12]

43. Public education in a minority language would undoubtedly be one of the most powerful measures possible to "protect the existence and the linguistic identity of minorities" as well as to "encourage conditions for the promotion" of that identity as required by Article 1 of the UN Declaration. The slightly more timid language used in Article 4(3) of the UN Declaration, which suggests that a State should, but does not have an absolute obligation, to provide such educational opportunities can be explained by the need to take into account certain practical limitations. A particular State may not have the financial and material resources to guarantee the full implementation of a right to public instruction in the medium of a minority language for every linguistic minority on its territory. Perhaps the extremely small number of speakers of a minority language makes it impractical, if not impossible, to provide full instruction in a minority language beyond the primary level. Nevertheless, it is still possible to read into Articles 1 and 4(4) a State obligation to adopt, as far as possible, measures such as using a minority language as medium of public instruction to a degree appropriate under the circumstances. Such a constructive and inclusive interpretation also finds support in an increasing number of international and regional treaties and other documents.

44. For example, Article 8 of the European Charter for Regional or Minority Languages illustrates how such a realistic and constructive approach operates by identifying under what conditions and to what degree a minority language should be used in public education in a way that accommodates their identity:

At the bottom end of the scale, a state could limit itself to teaching the language of a minority at preschool, or if the number of pupils whose families so request is considered sufficient, go up the scale to a substantial part of the education; if the numbers are even higher, up to a complete preschool programme in the language of the minority, and so on with the higher levels of education, always the more generous where the number of pupils is sufficiently large and concentrated. States should seek a level of use of a minority language which best fits their demographic reality since Article 8 is applicable "according to the situation of each language". This implies that the larger the number of speakers of a regional or minority language and the more linguistically homogeneous the population in a region, the "stronger" the option which should be adopted.

45. Most of the international instruments and treaties mentioned earlier that contain provisions concerning the entitlement to education in a non-official or minority language, where warranted by the number of speakers, including persons belonging to linguistic minorities, nevertheless add that acquisition of the common or official language must also be possible as part of a state's non-discriminatory education policy.[13]

46.It is clear that in international law, as noted previously, minorities have traditionally been recognised the right to establish and maintain their own private educational activities, using their own language as medium of instruction if they so desire. The UN Declaration does not in itself impose a further obligation on the state to provide the resources so that persons belonging to a linguistic minority can establish and maintain their own private schools, nor does it require that states provide public schooling where a minority language is used as medium of instruction. The UN Declaration in this area is more modest in its goals as can be seen in the wording of Article 4(3):

States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue.

47. In keeping with the spirit of the UN Declaration, it would be highly desirable if a state took appropriate measures so that such persons have an opportunity to learn or be educated in their own language. These could take the form of support to private schools or to public schools where instruction in or of the minority language is provided. But by using should instead of shall, the UN Declaration did not impose an unconditional obligation on states.

48. Once again, this restraint may initially appear rather surprising, given the prominence of education in any attempt to protect and maintain the identity of minorities. Yet it should not be since the UN Declaration is"inspired"by Article 27 of the International Covenant on Civil and Political Rights and is not a full and comprehensive statement of all human rights that may affect language issues in the public or private domain.

49. Despite some disagreement, there now seems to exist a fairly widespread agreement that Article 27 (and indirectly the UN Declaration) does not by itself impose a legal obligation on states to provide financial assistance, in education as in other areas, to support specific activities aimed at minorities, including support for private or public schools using a minority language. This does not mean that such support may not exist through the application of other rights recognised in international law. The right to equality and non-discrimination would be extremely potent in this area under appropriate conditions. If for example a state provided financial assistance to private schools in general, but refused categorically to provide any financial assistance to the schools of a linguistic minority, this would obviously constitute a discriminatory exclusion and involve a breach of Article 26 of the International Covenant on Civil and Political Rights which prohibits discrimination based on language in any area of state involvement. It has also been suggested that where reasonable, some degree of use of a minority language must be made in public schools pursuant to this general prohibition of non-discrimination.

50. What Article 4(3) of the UN Declaration adds is a more general acknowledgment that states ought to respond favourably to the linguistic needs of minorities in the education field. This once again goes to the very spirit of the UN Declaration for a generous, inclusive approach to the presence of minorities within a state.

51. Both Articles 1 and 2 of the UN Declaration can be seen as relevant in terms of the use of minority languages in private media. Not only is such an entitlement an obvious manifestation of a way to "protect the existence and the linguistic identity of minorities" as well as to "encourage conditions for the promotion" of that identity, it is also a recognition that a State has an important obligation not to obstruct or deny the exercise of such a right by members of a minority. While the UN Declaration does not give any indication on precise constructive approaches to the use of minority languages in private media in terms of appropriate measures by the State, some examples can be found from other international sources.

52. There are a number of international instruments that help to provide models of positive approaches to the issue of the rights of persons belonging to a linguistic minority in the area of private media. Once again, it should be remembered that strictly speaking not all aspects of these practices can be ascribed to the"inspiration"provided by Article 27 of the International Covenant on Civil and Political Rights. Some aspects appear to relate to freedom of expression, whilst others possibly to a non-discriminatory linguistic policy.

53. European states which have ratified the European Charter for Regional or Minority Languages have agreed to the following:

The parties undertake to guarantee freedom of direct reception of radio and television broadcasts from neighbouring countries in a language used in identical or similar to a regional or minority language, and not to oppose the retransmissions of radio and television broadcasts from neighbouring countries in such a language. They further undertake to ensure that no restrictions will be placed on the freedom of expression and free circulation of information in the written press in a language used in identical or similar form to a regional or minority language. The exercise of the above mentioned freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of national security, territorial integrity or public safety, for the prevention of disorder of crime, for the protection of health or morals, for the protection of reputation or rights of others, for preventing disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

54. In practical terms, this means that when the number of speakers of a minority or regional language reaches a certain level ("according to the situation of each language"), public authorities should adopt measures aimed at ensuring that they are properly served in their language by private media when these authorities are active in this field (through licensing, programme content requirements, etc.). In other words, as the number of speakers of a language increases in a region, the media, and especially the broadcasting media, should respond to the proportionate needs and interests of this population. Public authorities must to the extent of their involvement in the field of private media adopt a policy that reflects these needs and interests with appropriate measures:

a)

d)

55. The wording of Article 1 of the UN Declaration supposes a general guiding principle that States must take measures to protect the identity of linguistic minorities and to encourage conditions for the promotion of their linguistic identity. This need to integrate and accommodate minorities as full members and participants of the national society would seem to require that minorities not only be tolerated but also seen and heard to a reasonable degree in public forums. In this era of global communications and modernisation, an obvious type of measure consistent with the principles of the UN Declaration would appear to involve public media.

56. Once again, some of these examples are not directly inspired from Article 27 of the International Covenant on Civil and Political Rights, but they do indicate as does the UN Declaration what states ought to be doing. In some cases, some of the state practices may also involve the application of a non-discriminatory policy in public broadcasting.

57. At least one treaty explains generally how a state should conduct itself in relation to public media and minority languages. Practices should generally reflect the actual number of speakers of a minority language in the following way:

58. If the state is actively involved in newspaper publication, it should likewise devote a fair proportion of resources and/or space for the use of minority languages when parts of its population involve sufficiently large linguistic minorities.

59. In practice, quite a few states recognise more or less explicitly that the needs of persons belonging to linguistic minorities would not be satisfied by the exclusive use in the public media of the official/majority language and that these individuals would not be receiving the same benefit if their language was not being used.

60. Whilst traditional European liberalism tended at best to tolerate or disregard cultural diversity, human rights and international law have evolved in a more inclusive fashion. The rights of linguistic minorities include a panoply of protections which have mainly emerged with the strengthened acceptance in the second half of this century of a "faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small".

61. Human rights, including minority rights, are based on the acknowledgment and acceptance of the human person, in all of his or her diversity. Just as one's colour of skin should not diminish one's worth or dignity, so the State should not be prejudiced in its conduct or relationship towards minorities simply because of their language or culture.

62. It is therefore an oft repeated error to assume that the protection of the rights of minorities is somehow inconsistent with "individual" human rights. On the contrary, by being founded on the recognition of the intrinsic value of the human person's dignity and worth, human rights at the international level have gone beyond mere tolerance of human differences: respect of the individual includes valuing human diversity. To deny minority individuals access to certain benefits, or to disadvantage them because of their religion or language is - under certain conditions - no longer permissible. In terms of language or cultural preferences, this does not exclude a state from adopting a common or official language, but it does mean that value must also be attached to the worth and dignity of the whole population. Minorities within the State which differ from the majority must thus not simply be tolerated, but embraced and accommodated within the State as much as is reasonably possible to do given the situation of the minority and the conditions within the State. That is the very essence of the modern concept of human and minority rights.

63. One of the main effects of promoting and protecting the rights of minorities is therefore the maintenance of peace and stability. Documents such as the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities are part of a process to increase understanding and respect for human rights which are anchored upon the value of human worth and dignity. It is in this spirit that the rights of linguistic and other minorities must be seen; they are measures aimed at reaching a balance of harmony and inclusion rather than conflict and exclusion.

[1]Communications Nos. 359/1989 and 385/1989, 31 March 1993.

[2]Quoted in Héraud, Guy (1966), Peuples et langues d'Europe, Editions Denoël, Paris, at p. 17

[3]The UN Declaration is thus much more ambiguous than the European Charter for Regional or Minority Languages where states "undertake...to make available" partial or complete education in a minority language where appropriate (Article 8). See similar provisions in other treaties and international instruments such as the Framework Convention for the Protection of National Minorities.

[4]This interpretation is confirmed later in the UN Declaration. Article 4(2) would seem to require measures to create favourable conditions for individuals to be able to use their language, including in the described situation.

[5]Coeriel and Aurik v Netherlands, UN Human Rights Committee, Communication No. 453/1991, 31 October 1994.

[6]Whilst many of these examples may seem self-evident, they actually involve recent instances where a state has tried to prohibit the private use of a minority language.

[7]For a more detailed explanation of the interaction between the private use of language and additional requirements to comply with a State's official language policies, see de Varennes, Fernand (1988), Languagues, Minorities and Human Rights, Martinus Nijhoff, The Hague, Chapter 3.

[8]For an overview of historical examples and possible situations where this is still prohibited by a state, see de Varennes, Fernand (1996), Language, Minorities and Human Rights, Martinus Nijhoff, The Hague, Chapter 2.

[9]See for example Article 5(i) of the Convention Against Discrimination in Education. It is important to warn against the argument that educational activities in a minority language necessarily restrict employment or higher educational opportunities of the minority, or will obviously be of lower educational quality. Quality of education and the language of instruction are two different matters: one can obtain a high quality education in any language, given proper teaching resources and conditions. Similarly, it appears nonsensical to suggest that the use of a major international language such as English or Spanish, in a state where it is a minority language, would automatically result in an "inferior" standard of education. As for limiting employment or advanced educational opportunities, this would normally not become a major difficulty when it is recognised that there is a recognised international obligation for minority schools to teach the official or majority language.

[10]Such a state obligation may arise from the application of other human rights standards in appropriate situations. See Chapter 4, de Varennes, Fernand (1996), Language, Minorities and Human Rights, Martinus Nijhoff, The Hague.

[11]See Article 2(5) of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Article 23 of the Central European Initiative Instrument for the Protection of Minorities, Article 14 of the European Charter for Regional or Minority Languages, Article 17 of the Framework Convention for the Protection of National Minorities, Article 14 of the Treaty Between the Republic of Lithuania and the Republic of Poland on Friendly Relations and Good Neighbourly Cooperation and Article 15(2) of the Treaty Between the Republic of Poland and the Republic of Latvia on Friendship and Cooperation.

[12]Malinverni, Giorgio (1991), "Le projet de Convention pour la protection des minorités élaboré par la Commission européenne pour la démocratie par le droit", in Revue universelle des droits de l'Homme, Vol. 3, N° 5, 157-165, at p. 161.

[13]Legislation such as Article 4 of the Slovak National Council Act No. 428/1990 of 25 October 1990 which requires in the schooling and education system that all citizens master the Slovak language to the extent required for the official and everyday use is therefore not objectionable in se.

[14]Article 11(1) of the European Charter for Regional or Minority Languages.