A legal opinion on international law, language and the future of French-speaking Canada: Difference between revisions

''Memoir by Ramsey Clark,'' <br />

''lawyer and 66th Attorney General of the United States''

#Whether Chapter VII, Section 58 of the Quebec [http://www.oqlf.gouv.qc.ca/english/charter/ ''Charter of the French Language''] which generally requires public signs and posters and commercial advertising which are out of doors or intended to be seen by persons who are out of doors and under certain circumstances when located inside business establishments be only in French violates [[Wikipedia:international law|international law]], or infringes on fundamental [[Wikipedia:human rights|human rights]];

#Whether Chapter VIII, Sections 72-86, of the Quebec ''Charter of the French Language'' requiring that instruction in kindergarten and elementary and secondary school classes be in French, but excepting on request a child whose mother or father was instructed primarily in English in Quebec, or in English elsewhere and was domiciled in Quebec on 26 August 1977, violates international law, or infringes on fundamental human rights.

Realization of the importance of language as a human right has dawned slowly. We are still told "Whether linguistic rights merit protection in the context of international human rights law is a matter of much debate." The Protection of Language Rights in International Human Rights Law, Virginia Journal of International Law (Vol 32 : 515, 1992) at p. 517. But language rights have been recognized in international law and treaties for generations.

Following [[Wikipedia:World War I|World War I]], Central, and East European nations were required by treaty to both protect and promote the linguistic rights of minorities. The [[Wikipedia:Permanent Court of International Justice|Permanent Court of International Justice]] was given jurisdiction to enforce the treaty provisions and in cases such as the Minority Schools in Albania decided in 1935 endeavored to do so. Minority Schools in Albania (Advisory Opinion) 1935 PCLJ (Ser A/B) No. 64.

These treaties which sought to preserve languages and cultures rose from the idealism following World War I which produced [[Wikipedia:Woodrow Wilson|Woodrow Wilson]]’s Fourteen Points and the League of Nations. They suffered from a lack of practical judgment. Deferential to power they provided no language rights in government matters while imposing impossibly burdensome requirements for schooling of minorities in their many languages that divided ethnic, national and linguistic groups. They went far beyond anything the allied powers dreamed of according minorities in their own midst. While the treaties were largely unenforced and their purpose a failure, it ought to be asked what role the effort to so coerce others, as is seen in the Treaty with Serb-Croat-Slovene State of September 10, 1919, might play in the present tragedy in former Yugoslavia.

Since this important advance, language has been recognized regularly in international human rights documents. In 1948 the [[Wikipedia:Universal Declaration of Human Rights|Universal Declaration of Human Rights]] in Article 2 guaranteed the right to freedom from discrimination on the basis of language. Article 2 (2) of the [[Wikipedia:International Covenant on Economic, Social and Cultural Rights|International Covenant on Economic, Social and Cultural Rights]] of 1966 prohibits discrimination based on language.

Among all the international human rights treaties, the [[Wikipedia:International Covenant on Civil and Political Rights|International Covenant on Civil and Political Rights]] deals most comprehensively with linguistic rights. In Art. 2 (1) it requires State Parties to respect and insure non-discrimination on account of language. In succeeding subsections it requires Parties to take measures to give effect to all the rights provided and remedies fort their violation. Art. 14 importantly guarantees a person charged with crime the right to be informed of the charges in a language he understands and to have the free assistance of an interpreter if he cannot understand or speak the language used in court. It is pitiful to watch bewildered Blacks before South African [[Wikipedia:Pass laws|Pass]] Courts without meaningful translations, or counsel who speak their tongue, sentenced to separation from their families without any ability to understand what is happening, where they are to be sent, or the length or conditions of their sentence. The scene has been repeated in many other nations among other races and in many languages.

Language rights are repeatedly addressed in the Covenant on Civil and Political Rights. Art. 19, while not mentioning linguistic rights deals with the intimately related rights to hold opinions and freedom of expression. Art. 24 (1) concerns discrimination against children including their language rights. Article 26 addresses equality and includes language rights.

After promulgation of the Covenants on Civil and Political and Economic, Social and Cultural Rights in 1966, the Sub-Commission again took up the task of studying protections for linguistic minorities in 1967. This lead to a report in 1979 which remains the most thorough analysis available on international rights to language. [[Francesco Capotorti]], ''The Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities'', U.N. Doc. E/CN. 4/Sub 2/348/Rev 1 (1979). Among its more obvious conclusions was that survival of cultural and linguistic minorities is dependent on use of its language in education. It noted most countries do not provide education in minority languages assuming cost and fragmentation of the education system as reasons, but largely ignoring political and economic power as the decisive factors. The study doubted that judicial power could be properly exercised to protect linguistic rights because of the absence of their clear and detailed definition in positive international law.

The U.N. Working Group on Indigenous Populations in Art. 10 of its [http://www.usask.ca/nativelaw/ddir.html Draft Declaration of the Rights of Indigenous Peoples] has sought to protect the "right of children to have access to education in their own language, ... and control their own educational systems..." Draft Declaration of Indigenous Rights, August 1988, E/CN. 4/Sub. 2/1988/25. This reveals the growing recognition of the obvious. The rights have been specifically implemented in the [[Wikipedia:James Bay and Northern Quebec Agreement|James Bay and Northern Quebec Agreement]] which makes [[Wikipedia:Cree language|Cree]] and [[Wikipedia:Inuit language|Inuit]] the teaching languages in schools there.

The protection of cultural rights which is a major commitment of international law includes necessarily the protection of linguistic rights. Activities over recent decades by [[Wikipedia:UNESCO|UNESCO]] and the [[Wikipedia:International Labour Organization|ILO]], the 1960 [http://www.ohchr.org/english/law/education.htm Convention Against Discrimination in Education], the 1963 [[Wikipedia:Vienna Convention on Consular Relations|Vienna Convention on Consular Relations]], the declarations of [http://www.unhchr.ch/html/menu3/b/n_decl.htm International Cultural Cooperation] (1966), the [http://unesdoc.unesco.org/images/0000/000021/002136eb.pdf Guiding Principles on the Use of Satellite Broadcasting] (1972) and [http://www.unhchr.ch/html/menu3/b/d_prejud.htm Race and Racial Prejudice] (1978) all reflect expanding awareness of the essential role of language in human rights. Non governmental efforts have significantly extended both understanding and commitment to action on linguistic rights. The [[Association for the Development of Cross Cultural Communication]] in 1987 issued a "Call for a Universal Declaration of Linguistic Rights." It drafted a document, ''[http://portal.unesco.org/education/en/ev.php-URL_ID=27018&URL_DO=DO_TOPIC&URL_SECTION=201.html The Declaration of Recife]'', where the conference which produced it was held at the law school of the [[Wikipedia:Universidade Federal de Pernambuco|University of Pernambuco]], urging the United Nations to adopt and implement a new reformulated declaration of language rights to eliminate linguistic prejudice, discrimination, domination, injustice and oppression, among its ambitious goals.

Regional Human Rights Conventions have recognized at least negative linguistic rights, including the American Convention on Human Rights. The European Convention is the most advanced both in terms of the legal rights created and their enforcement in the European Court. In 1968 in the Belgian Linguistic Case, the Court unanimously denied claims of Francophone groups living in predominantly [[Wikipedia:Flanders|Flemish]] areas complaining their children were offered only [[Wikipedia:Dutch language|Dutch language]] education at their local schools, but by a vote 8 to 7 found a discriminatory denial of access to existing French language schools in one of the six questions presented the Court. European Court of Human Rights, Sec. A, Vol. 6, ''Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium''. (Judgment of 23 July 1968).

In 1989 the European Court held that a requirement that a foreign lecturer of painting at the [[College of Marketing and Design]] in [[Dublin]] where instruction was in English and only a minor fraction of the population was fluent in [[Wikipedia:Irish language|Irish]] could be required to pass a special examination in the Irish language as a qualification to teach. The Court noted the interest of successive Irish governments in promoting the use of Irish to express national identity and culture, the provision in the [http://en.wikisource.org/wiki/Constitution_of_Ireland_%28original_text%29 Irish Constitution] making Irish the first official language with English the second official language and the special role lecturers perform in education and culture. ''Common Market Law Review 27 :129-139 (1990) Case 379/87'', ''Groener v. Minister of Education and the City of Dublin Vocational Education Committee'', (Judgment of 28 November 1989). The emphasis the Court placed on the constitutional designation of an official language is a deference to State power concerning languages.

As tensions regarding minority rights grew worldwide, the U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities by its Resolution 36 of 1988 authorized preparation of a working paper on ways and means to facilitate the peaceful and constructive resolution of problems of racial, national, religious and linguistic minorities. The following year the Commission on Human Rights by its resolution 61 established a continuing Working Group to draft a declaration of rights of national, ethnic, religious and linguistic minorities. The Working Group adopted a Draft Declaration in 1990 and the Commission requested the Secretary-General to invite comments on the proposed text. Many critical comments were received and considered throughout 1991 including the absence of a definition of minority, failure to adequately delineate specific rights including use of the mother tongue freely in public and private, and failure to provide affirmative support for instruction in the native language. The Unites States argued that the right to use a historical language was too broadly defined particularly for countries with numerous linguistic minorities. The concern for the tension between individual rights to free speech and group rights to cultural and linguistic preservation remained largely unaddressed reflecting the special interests of participants and the general absence of historic international experience in resolving the tension between rights to speech and rights to language, as when an individual desires to speak English and the community wants to preserve French.

Free speech has a long legacy of inspired advocacy. [[Wikipedia:Milton|Milton]] and [[Wikipedia:Voltaire|Voltaire]] proclaimed its central role in individual freedom and the life of the mind. In the great volumes of classic free speech literature in the United States, [[Wikipedia:Alexander Meiklejohn|Meiklejohn]], [[Wikipedia:Lincoln Chafee|Chafee]], [[Wikipedia:Ralph Waldo Emerson |Emerson]], homage is paid on every page to the heroes of uninhibited expression while language cannot be found in their indexes. Thousands of cases in courts define the meaning of the First Amendment to the U.S. Constitution prohibiting the abridgment of freedom of speech or of the press. Dialogue on linguistics rights is hard to find.

==I. Article 58 of the ''Charter of the French Language'' is Protected by International Law as Supportive of Fundamental Human Rights==

==II. Chapter VIII of the ''Charter of the French Language'' is Protected by International Law, as Supportive of Fundamental Human Rights==

[[Wikipedia:Ramsey Clark|Ramsey Clark]] <br />