Language Rights Dr Noelle Higgins

Lecture Learning Outcomes  At the end of this lecture students will be able to: Locate and assess international legal provisions dealing with language rights Compare regional and universal approaches to language rights Construct legal arguments based on language rights issues

Need for Legal Protection of Languages  Equality and Non-Discrimination  Access to Justice  Freedom of Expression  Rights of Minorities  Access to Services  Promotion of Identity

How are Languages Protected?  Domestic Constitutions  Domestic Legislation  Caselaw  European Union Law  International Law Instruments and Decisions  Regional Systems

Domestic Constitutions  Constitution of Ireland 1937, Art. 8: “1. The Irish language as the national language is the first official language. 2. The English language is recognised as a second official language. 3. Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof.”  Constitution of Spain 1978, Art. 14: “Spaniards are equal before the law, without any discrimination for reasons of birth, race, sex, religion, opinion, or any other personal or social condition or circumstance.”

Domestic Legislation  Canada: British North America Act 1867 Official Languages Act 1969 Charte de la langue française 1977 – Québec  United States: Civil Rights Act 1964  Ireland: Official Languages Act 2003

Caselaw  Canada: Ford v. Québec (1988) 2 SCR 712  United States: Lau v Nichols 414 US 563 (1974)  Ireland: A.G. v Joyce and Walsh [1929] IR 526 (‘22 Constitution) “The Irish language…is not merely the vernacular language of most if not all of the witnesses in question in the present case, but holds a special position by virtue of the Constitution of the Saorstát, in which its status is recognised and established as the national language of the Saorstát, from which it follows that, whether it be the vernacular language of a particular citizen or not, if he is competent to use the language he is entitled to do so. Therefore, it may be said that all those who gave their evidence in the Irish language in the present case had as it were a double right to do so: first on general principles of Natural Justice as their vernacular language and secondly, as a matter of Constitutional right.”

EU Law  Official Languages of EU  Groener v Minister for Education [1989] 5 E.C.R. 3967; [1990] C.M.L.R.  Charter of Fundamental Rights: Article 11: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Article 21: “1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.” Article 22: “The Union shall respect cultural, religious and linguistic diversity.” Art. 47: “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.”

International Law Instruments  Minorities Treaties Era Language recognised as one base of non- discrimination Paris Conference Minority Schools Case, Permanent Court of International Justice 1935, Series A / B, No. 64 at 17

International Law Instruments  United Nations Era Article 1(3) UN Charter: human rights and fundamental freedoms should be encouraged and promoted “without distinction as to race, sex, language, or religion.” Article 2 UDHR: “Everyone is entitled to the rights and freedoms set forth in this Declaration without distinction of any kind, such as…language…” ICCPR, ICESCR  Human Rights Committee Jurisprudence, Dominique Guesdon v. France (Comm. No. 221/1987, 11 Apr. 1991), Yves Cadoret and Hervé Le Bihan v. France (Comm. No. 333/1988, 11 April 1991) Diergaardt v Namibia (Comm. No. 760/1997, 6 September 2000)

International Law Instruments  UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 1992  UNESCO Declaration of Linguistic Rights 1996

Regional Systems  ECHR 1950 Art. 14: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as…language…” Art. 10: freedom of expression Belgian Linguistics Case A 6 (1968)

Regional Systems  European Charter on Regional and Minority Languages 1992  Framework Convention for the Protection of National Minorities 1995

The Protection of the Irish Language in Northern Ireland  No Specific Constitutional or Legislative Protection Good Friday Agreement Commitments UK Human Rights Act 1998  Problematic Caselaw  Some protection under EU law?  International Law European Convention on Human Rights 1950 European Charter on Regional and Minority Languages 1992 ICCPR 1966

Prohibitive Legislation  Administration of Justice (Language) Act (Ireland) 1737 This Act prohibits the use of any language other than English in courts in NI. This applies to all forms of oral hearings in open court and also in relation to all official documents filed in connection with the proceedings.

Northern Ireland: Caselaw  In re the Administration of Justice (Language) Act (Ireland) 1737 [2009] NIQB 66; July 2010, High Court of Justice in Northern Ireland and Caoimhín MacGiolla Catháin v The Northern Ireland Court Service [2010] NICA 24; Court of Appeal  Mac Giolla Catháin challenged a decision of the NI Courts Service refusing him permission to lodge a court application for an occasional liquor licence drafted in the Irish language because of the Administration of Justice (Language) Act (Ireland) 1737  Mac Giolla Catháin argued that: the 1737 Act was incompatible with the European Charter for Regional and Minority Languages, specifically Art. 7(2) the 1737 Act breached his rights under the European Convention on Human Rights and Fundamental Freedoms, specifically Article 14 taken together with Article 6

Northern Ireland: Caselaw  The court rejected the first submission on the basis that the European Charter for Regional and Minority Languages, which has not been embodied in domestic legislation, does not bind the UK government.  Regarding the right to a fair trial, the Court stated: It is incontestable that such a right might be jeopardised in circumstances where a party to the proceedings could not fully understand them if they were conducted in English without any form of translation facilities. However that is not the case before the court. As has already been observed the applicant is fluent in English and is fully competent to transact court business in English and the determination of any application for an occasional liquor licence has in the past been determined successfully in favour of the same premises on no fewer than six occasions since January 2008 when the applications were all processed in English. As fairness is not at risk I accept the respondent’s submission that Article 6 is not in play and that the necessary connection to enable the court to conclude that the applicant’s Article 14 complaint is within the ambit of Article 6 cannot be found.”  Appeal was rejected