2034 Important Decision on Language Rights and Non-Discrimination February 22, 2002 2034 From: MINELRES moderator Original sender: Fernand de Varennes 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 School of Law - Murdoch University Murdoch, Western Australia 6150 AUSTRALIA Telephone: 61 8 9360 6510 Fax: 61 8 9310 6671 email: devarenn@murdoch.edu.au http://wwwlaw.murdoch.edu.au/apchr
