13.2.5 Discrimination based on language Condensed entry: Discrimination on the basis of language is often closely linked to unequal treatment on the basis of national or ethnic origin. Information about and in appropriate cases even access to public services and goods should be available, as far as possible, in languages spoken by minorities. Language requirements relating to employment and education, as well as proficiency in an official language may be required for teaching positions or to gain citizenship through naturalization where these are in the circumstances reasonable and justified criteria. If such requirements are not reasonable or justified they will be discriminatory in breach of international law. Comprehensive entry: Discrimination based on language is prohibited in a large number of international and regional human rights instruments.[1] The CESCR has held:[2] Discrimination on the basis of language or regional accent is often closely linked to unequal treatment on the basis of national or ethnic origin. Language barriers can hinder the enjoyment of many Covenant rights, including the right to participate in cultural life as guaranteed by article 15 of the Covenant. Therefore, information about public services and goods, for example, should also be available, as far as possible, in languages spoken by minorities, and States parties should ensure that any language requirements relating to employment and education are based on reasonable and objective criteria. The right of individuals, including persons belonging to linguistic minorities, to speak their own language should be protected. (See *restrictions on the use of language or mother tongue*; *practice and develop culture, language, religion, traditions and customs*). Information about and in appropriate cases even access to public services and goods should be available, as far as possible, in languages spoken by minorities. The HRC has held that Namibia discriminated based on language when it instructed its civil servants not to reply to written or oral communications with the general public in Afrikaans even when the civil servants were able to communicate in that language in the absence of any reasonable justification for only allowing the use of the country’s only official language, English.[3] Not every differential treatment based, inter alia, on language however constitutes discrimination. Diifferences of treatment do not constitute discrimination if the criteria for such differentiationare reasonable and objective and if the aim is to achieve a legitimate purpose.[4] A requirement that candidates for permanent teaching positions in Ireland needed to succeed in Irish language exam and the exclusion of the applicant because she failed the exams has been held by the ECJ to be justifiable since it was a reasonable and objective requirement which in the circumstances was not proportionate to the legitimate purpose pursued.[5] The prohibition against discrimination based on language does not mean that everyone is entitled to speak any language in court. Hence, where service of an interpreter was disallowed based on a law that provided that French is the only language to be used in criminal court proceedings and that only those who cannot speak or understand French well enough can be provided with translation services did not constitute discrimination.[6] The IACtHR similarly held that ‘there would be no discrimination in differences in treatment of individuals by a state when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity of mankind’.[7] The Court held that proof of the ability to communicate in the official language of Costa Rica was not in the circumstances an unreasonable or unjustifiable requirement of a person wishing to gain citizenship through naturalization of that country. Additional references A Conte & R Burchill Defining civil and political rights (2009) F de Varennes To speak or not to speak - The rights of persons belonging to linguistic minorities, working paper prepared for the UN Sub-Committee on the rights of minorities (1997) M Nowak UN Covenant on Civil and Political Rights – CCPR commentary (2005) W Vandenhole Non-discrimination and equality in the view of the UN human rights treaty bodies (2005)
[1] UDHR art 2, ICESCR art 2, ICCPR arts 2, 26, CRC art 2, ACHPR art 2, ACHR art 1, ECHR art 14. [2] CESCR General Comment 20 para 21. [3]Diergaardt v Namibia communication 760/1997 (HRC 1998) para 10.10. [4] HRC General Comment 18 para 13. [5]Groener v Minister for Education case 379/87 (ECJ 1989) para 24. [6]Guesdon v France communication 221/1987 (HRC 1991) para 11; and Cadoret and Le Bihan v France communication no 333/1988 (HRC 1991) para 6. [7] Advisory Opinion OC-4/84 (IACtHR 1984) para 55-57.
Condensed entry:
Discrimination on the basis of language is often closely linked to unequal treatment on the basis of national or ethnic origin. Information about and in appropriate cases even access to public services and goods should be available, as far as possible, in languages spoken by minorities. Language requirements relating to employment and education, as well as proficiency in an official language may be required for teaching positions or to gain citizenship through naturalization where these are in the circumstances reasonable and justified criteria. If such requirements are not reasonable or justified they will be discriminatory in breach of international law.
Comprehensive entry:
Discrimination based on language is prohibited in a large number of international and regional human rights instruments.[1]
The CESCR has held:[2]
Discrimination on the basis of language or regional accent is often closely linked to unequal treatment on the basis of national or ethnic origin. Language barriers can hinder the enjoyment of many Covenant rights, including the right to participate in cultural life as guaranteed by article 15 of the Covenant. Therefore, information about public services and goods, for example, should also be available, as far as possible, in languages spoken by minorities, and States parties should ensure that any language requirements relating to employment and education are based on reasonable and objective criteria.
The right of individuals, including persons belonging to linguistic minorities, to speak their own language should be protected. (See *restrictions on the use of language or mother tongue*; *practice and develop culture, language, religion, traditions and customs*). Information about and in appropriate cases even access to public services and goods should be available, as far as possible, in languages spoken by minorities. The HRC has held that Namibia discriminated based on language when it instructed its civil servants not to reply to written or oral communications with the general public in Afrikaans even when the civil servants were able to communicate in that language in the absence of any reasonable justification for only allowing the use of the country’s only official language, English.[3]
Not every differential treatment based, inter alia, on language however constitutes discrimination. Diifferences of treatment do not constitute discrimination if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a legitimate purpose.[4] A requirement that candidates for permanent teaching positions in Ireland needed to succeed in Irish language exam and the exclusion of the applicant because she failed the exams has been held by the ECJ to be justifiable since it was a reasonable and objective requirement which in the circumstances was not proportionate to the legitimate purpose pursued.[5]
The prohibition against discrimination based on language does not mean that everyone is entitled to speak any language in court. Hence, where service of an interpreter was disallowed based on a law that provided that French is the only language to be used in criminal court proceedings and that only those who cannot speak or understand French well enough can be provided with translation services did not constitute discrimination.[6] The IACtHR similarly held that ‘there would be no discrimination in differences in treatment of individuals by a state when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity of mankind’.[7] The Court held that proof of the ability to communicate in the official language of Costa Rica was not in the circumstances an unreasonable or unjustifiable requirement of a person wishing to gain citizenship through naturalization of that country.
Additional references
A Conte & R Burchill Defining civil and political rights (2009)
F de Varennes To speak or not to speak - The rights of persons belonging to linguistic minorities, working paper prepared for the UN Sub-Committee on the rights of minorities (1997)
M Nowak UN Covenant on Civil and Political Rights – CCPR commentary (2005)
W Vandenhole Non-discrimination and equality in the view of the UN human rights treaty bodies (2005)
[1] UDHR art 2, ICESCR art 2, ICCPR arts 2, 26, CRC art 2, ACHPR art 2, ACHR art 1, ECHR art 14.
[2] CESCR General Comment 20 para 21.
[3]Diergaardt v Namibia communication 760/1997 (HRC 1998) para 10.10.
[4] HRC General Comment 18 para 13.
[5] Groener v Minister for Education case 379/87 (ECJ 1989) para 24.
[6] Guesdon v France communication 221/1987 (HRC 1991) para 11; and Cadoret and Le Bihan v France communication no 333/1988 (HRC 1991) para 6.
[7] Advisory Opinion OC-4/84 (IACtHR 1984) para 55-57.