Language part 1: the universal right to language

Language is often overlooked as one of the most important cultural means that we have for distinguishing ourselves from others. There is a universal right to language.

The Swiss authorities get on my wick with their constant insisting on violating language human rights. So I needed to get this out the way before continuing what I should really be focussing on publishing about.

This topic is not about how Switzerland as a federal state has 4 official languages. One might be tempted to believe the Swiss have an eye for language rights based on that. Don't be fooled, as usual, it is Swiss sand-in-the-eyes.

Whether it is concerning children or concerning adults, the Swiss violate language rights. One of the most fundamental human rights.

A two part series: first part 1: the law, then part 2: the story.

In this first part, I'll establish the universalness of language rights. Violating language rights also accounts to racial discrimination. If performed by the state the violation of language human rights is considered “other aggressions”, which could be prosecutable before the International Court of Justice. It could even be defined in the context of or as a form of genocide against non-citizens, since the enactment of language human rights violations is allegedly set in Swiss law.

Language as a basic human right

For the math lovers, there is a mathematical formula to this:

Language rights + human rights = linguistic human rights

Let's get going on those Linguistic Human Rights (LHR).

Universal Declaration of Human Rights

Everyone is entitled to the UDHR without distinction of language.

Article 2 Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Everyone includes by definition non-citizens (see below). The without distinction of any kind is non limitative, thanks to the such as preceding the list of examples.

The Universal Declaration of Human Rights underlines all individuals have own language use rights.

International Covenant on Civil and Political Rights

When coupling the UDHR and the International Covenant on Civil and Political Rights (ICCPR) one has:

In fact, the ICCPR, is explicit in the obligation of protection of children. Article 24.1:

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

Articles 26 and 27 go on expliciting no discrimination and equal protection by the law regardless of language, and conveying the right to enjoy one's own culture and language.

Language human rights are thus explicit for the law, freedoms, education, ... and includes children.

non-citizens = minorities : consequences for language rights.

By opposite definition of a citizen, someone who is non-citizen of a country is not a citizen to that country.

The UDHR defines non-citizens in its article 1 as:

any individual who is not a national of a State in which he or she is present.

The Office of the United Nations High Commissioner for Human Rights published in 2006 a special issue on The Rights of Non-citizens, in which it defines non-citizens not necessarily as having the need for a presence in a said country under other kinds of non-immigrants:

including permanent residents, migrants, refugees, asylum-seekers, victims of trafficking, foreign students, temporary visitors, other kinds of non-immigrants and stateless people.

I find a better definition of non-citizen could thus be:

An individual with ties to a country it is not a citizen of, regardless of physical presence, or the nature of the ties.

In terms of language rights of non-citizens, the special issue on The Rights of Non-citizens states:

C) Economic, social and cultural rights 1) Rights of non-citizens as members of minorities Right to enjoy one’s culture, profess and practise one’s religion, and use one’s language Since non-citizens are often of a different national or racial origin than citizens, States are encouraged to consider non-citizens as belonging to national minorities, and to ensure that they enjoy the rights that arise from such status.

The Office of the High Commissioner for Human Rights (OHCHR) at the request of and in cooperation with the Inter-Agency Group on Minorities released a manual titled Towards Developing Country Engagement Strategies on Minorities

Its point 2.2 asks Do minority rights apply to non-citizens? and answers:

Flowing from the interpretation of international treaties, the rights of persons belonging to minorities to “exist” and enjoy their own culture, religion or language are deemed to apply to non-citizens.

On two clear accounts, non-citizens fall under the definition and scope of minorities.

The manual goes on explicitly notifying the right to enjoy their own culture, to profess and practise their own religion and to use their own language in private and in public.

And states must create favourable conditions to enable (non-citizens) to express their characteristics and to develop their culture, language, religion, traditions and customs.

It mentions article 30 of the Convention on the Rights of the Child (CRC), stating ... a child ... shall not be denied the right ... to use his or her own language.

Building on that, article 29.1.c of the CRC states:

The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own.

Much of the language rights for (minorities) non-citizens are documented in the Handbook by the United Nations Special Rapporteur on minority issues A 41 page document which I suggest you take the time to go through.

The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities states in its article 2.1:

(non-citizens) have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.

And to make the point, its article 4.2 states:

States shall take measures to create favourable conditions to enable persons belonging to minorities (non-citizens) to express their characteristics and to develop their culture, language, religion, traditions and customs ...

So, rephrasing in common language ...

minority language rights apply to all non-citizens. These rights must be protected in private, public, education and law. Exercising them should be facilitated and encouraged by the State. Children shall not be denied the right to their own language. And we know children's language stems from their origins and individual parents.

State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return

I am flabbergasted none of the Western World countries, the countries receiving migrants, is party to the fundamental UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. So we can't use that convention, but if countries think they get away with it ...

In a joint general comment on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return, the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (comment n°4) and the Committee on the Rights of the Child (comment n°23) stated in their point 62:

The principle of equality of treatment requires States to eliminate any discrimination against migrant children and to adopt appropriate and gender-sensitive provisions to overcome educational barriers. This means that, where necessary, targeted measures are needed, including additional language education, additional staff and other intercultural support, without discrimination of any kind ...

The worker status would be discriminatory for the Committee on the Rights of the Child. Comments are explicitly for any migrant child, and thus any non-citizen child, regardless of the worker status. The joint general comment refers explicitly to article 45 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Therein important language obligations:

  1. States of employment shall endeavour to facilitate for the children of migrant workers non-citizens the teaching of their mother tongue and culture and, in this regard, States of origin shall collaborate whenever appropriate.
  2. States of employment may provide special schemes of education in the mother tongue of children of migrant workers non-citizens, if necessary in collaboration with the States of origin.

So, rephrasing in common language ...

Western countries don't care about migrant rights. Despite, children migrant rights are protected, particularly children's mother tongue. If states do not protect children's birth languages, they violate human rights.

explicit rights of non-citizens

The Office of the United Nations High Commissioner for Human Rights published in 2006 a special issue on The Rights of Non-citizens

The principal objective of this publication is to highlight all the diverse sources of international law and emerging international standards protecting the rights of non-citizens...

It states:

(non-citizens) experience xenophobia, racism and sexism; language barriers and unfamiliar customs; lack of political representation; difficulty realizing their economic, social and cultural rights—particularly the right to work, the right to education and the right to health care; difficulty obtaining identity documents; and lack of means to challenge violations of their human rights effectively or to have them remedied.

Language rights and Racial Discrimination

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) defines “racial discrimination” as:

any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

While it does not mention language explicitly, language is in international law recognised as an integral and constituant part of race, descent, national or ethnic origin.

The relationship between racial discrimination and language discrimination is referenced in the Handbook by the United Nations Special Rapporteur on minority issues

It specifies linguistic rights apply to article 5d of the ICERD. As such language discrimination can be racial discrimination as part of the fundamental obligations laid down in article 2 of ICERD, notably in the enjoyment of the following rights (I add point a for what follows):

(a) The right to equal treatment before the tribunals and all other organs administering justice; ... (d) Other civil rights, in particular: – The right to freedom of movement and residence within the border of the State; – The right to leave any country, including one's own, and to return to one's country; – The right to nationality; – The right to marriage and choice of spouse; – The right to own property alone as well as in association with others; – The right to inherit; – The right to freedom of thought, conscience and religion; – The right to freedom of opinion and expression; – The right to freedom of peaceful assembly and association;

The Guidance Note of the Secretary-General on Racial Discrimination and Protection of Minorities states in the context of language rights:

3 Crime prevention, access to justice and fighting impunity 33 Minorities and other common targets of racial discrimination also have problems in accessing justice because of discrimination, language, edu- cational and financial barriers, low confidence, and the lack of judicial fa- cilities in regions where they live.

The Committee on the Elimination of Racial Discrimination states in its General recommendation 32

Special measures should not be confused with specific rights pertaining to certain categories of person or community, such as, for example the rights of persons belonging to minorities to ... use their own language ... Such rights are permanent rights, recognized as such in human rights instruments, including those adopted in the context of the United Nations and its agencies”

If states do not provide these language human rights obligations, the Committee on the Elimination of Racial Discrimination in its General Recommendation 30: Discrimination Against Non Citizens considered by measure of general nature point 8 an:

issue of multiple discrimination faced by non-citizens, in particular concerning the children and spouses of non-citizen workers, to refrain from applying different standards of treatment to female non-citizen spouses of citizens and male non-citizen spouses of citizens, to report on any such practices and to take all necessary steps to address them

So, rephrasing in common language ...

State parties must prohibit and eliminate racial discrimination in all its forms and guarantee protection from racial discrimination to all, including non-citizens. Racial discrimination includes language discrimination in the exercise of human rights. People of particular concern are non-citizen spouses of citizens and their children.

theory for the International Criminal Court

We've established language is a fundamental human right, running throughout all other human rights. The violation of language rights must be protected against by states. The violation of language rights are criminal acts, such as racial discrimination. Its violation by the state is a form of aggression. Aggression by a state can be grounds for investigation by the International Criminal Court (ICC). And the ICC has condemned certain state language violations as examples of genocide.

Language being such a fundamental constituant of Human Rights, should states violating language rights not be systematically held accountable in front of the ICC? I think so.

Let's see what the Office of the United Nations High Commissioner for Human Rights finds about this in its 2006 special issue on The Rights of Non-citizens

Under the Rome Statute of the International Criminal Court, the Court apparently has jurisdiction to protect non-citizens from persecution and abuses committed with intent to cause annihilation of their national group. Article 5 of the Rome Statute lists the four crimes that fall within the Court’s jurisdiction: the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Article 6 defines genocide as certain acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. These acts are, therefore, crimes within the jurisdiction of the Court. In addition, under article 7, “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender... or other grounds that are universally recognized as impermissible under international law” are also considered crimes against humanity.

Nothing clear cut, as yet. There is something in favour of the ICC come the day language rights would be imposed as seriously as they have been considered in international law.

final note on mother-tongue

Mother-tongue and mother-language are used interchangeably and mean the same. I'll use mother-tongue for the purpose of this topic.

The using of mother is gender discriminative. A father and/or other guardians may very well contribute a different language from early childhood. In fact, the definition of mother-tongue states:

the first language that you learn when you are a baby, rather than a language learned at school or as an adult

Please, for all stay-at-home dads, and quite frankly all guardians of different language conveying their language skills to children from birth, keep in mind going forward:

mother-language and mother-tongue are not equal to the language of the mother !

From where I am sitting, the UN should come up with a new, gender neutral word defining “different languages that you learn when you are a baby.”

Tags: #Rights #Accesstojustice

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