Tansi Nîtôtemtik,
Last week we asked whether language is an Aboriginal right, protected under section 35 of the Constitution Act, 1982. One of our readers commented that language rights are basic human rights. This comment is important because it raises a concept — “basic human rights” — that makes intuitive sense, but is not well-understood in law. Today we go through a legal analysis to determine whether Indigenous language and culture are recognized as basic human rights in law.
What are “Basic Human Rights”?
The concept of “basic human rights” is not enshrined in Canadian law. The courts have only explored this concept the context of refugee law,[1] although it is starting to emerge as a basis for environmental law.[2]
Basic human rights are creatures of international law. The Supreme Court of Canada said that “basic human rights are not to be considered from the subjective perspective of one country ... By very definition, such rights transcend subjective and parochial perspectives and extend beyond national boundaries”[3] To determine whether the systemic abuse of the Roma violated a basic human right, the Immigration and Refugee Board of Canada drew from customary international law to identify and define the scope of that basic human right.[4]
The challenge for us, then, is to determine which rules protecting Indigenous language rights have reached the status of customary international law.
Which Customary International Laws Protect Indigenous Language and Culture?
Customary international laws are rules that have: (1) gained widespread and uniform practice in the international community; and (2) have an accompanying belief that the practice is mandatory as a matter of law.[5]
Most of the provisions under the Universal Declaration on Human Rights have been recognized as customary international law and are universally binding.[6] Articles 1 and 3 of that declaration state that “[a]ll human beings are born free and equal in dignity and rights”[7] and that “[e]veryone has the right to life, liberty and the security of person.”[8] Although it is possible to argue that life, liberty and security of the person encompass language and cultural rights, they have not traditionally been interpreted this way.[9] We must therefore look to more specific international instruments.
The following international instruments protect language and cultural rights, but it is not clear whether they have reached the status of customary international law:
The International Covenant on Civil and Political Rights (ICCPR) operationalizes many of the provisions of the Universal Declaration of Human Rights. It has been widely-accepted with 173 states party to the treaty. However, it been criticized for emphasizing “Western” liberal principles at the expense of other traditions. Therefore, it is not clear whether the ICCPR in general, or its provision on language and culture, has reached the status of customary law. Article 27 of the ICCPR states:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture … or to use their own language.[10]
The Convention on the Rights of the Child has gained strong support from the international community with 196 states party to the treaty. Although many of its provisions have been recognized as customary law, it, too has been criticized for upholding Western values and some states have filed reservations for various reasons.[11] Therefore, it is not clear whether the specific provisions related to language and culture are recognized as cultural international law. Article 29 protects cultural identity, language and values in children’s education,[12] and article 30 states:
In those States in which … persons of [I]ndigenous origin exist, a child belonging to such a minority or who is [I]ndigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture … or to use his or her own language.[13]
The United Nations Declaration on the Rights of Indigenous Peoples is not a treaty, but rather a declaration by the United Nations General Assembly. As such, it is aspirational and not binding at international law. That said, the rules stated within it could achieve customary status if they meet the two branches of the test. 144 countries voted for the declaration, only four voted against (they later reversed their position and now support UNDRIP) and 11 abstained, which could signal widespread and uniform practice. It is more difficult to establish an accompanying belief that it is mandatory in law because UNDRIP is a declaration, not a treaty. That said, it is also possible to establish customary law through the behaviour of states for whom the rule applies.[14] Under this principle, if colonial states agree on rules related to Indigenous Peoples, those rules could crystalize into customary law. Since some of the world’s biggest colonial states (Canada, United States, Australia and New Zealand) now endorse UNDRIP, their behaviour could signal future developments in customary law. Articles 13, 14(3) and 16 of UNDRIP state:
Art 13: Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.
Art 14(3): States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.
Art 16: Indigenous peoples have the right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination.[15]
So Are Indigenous Language and Culture Basic Human Rights?
It is possible that Indigenous language and culture are basic human rights under the law, but not a certainty. It is not clear whether international instruments that protect language and culture in general, and Indigenous language and culture in particular, have reached the status of customary international law. Many states agreed to be bound to the ICCPR and the Convention on the Rights of the Child, but it is not clear whether the provisions on language and culture have achieved sufficiently widespread and uniform practice to establish a customary international law. UNDRIP is similarly challenged by the number of adherents, but it faces an additional hurdle of establishing the second branch of the test, that states believe it is mandatory under law.
If these instruments in general, or their provisions on culture and language in particular, have reached the status of customary international law, then it could be argued that Indigenous language and culture are basic human rights under the law. However, if they have not, these rights would not be universally binding. Instead, we would have to rely on domestic laws to protect Indigenous languages.
In a twist of circular logic, by recognizing and affirming Indigenous language and culture as human rights, Canada's behaviour could start to crystalize customary international law around these important rights. Therefore, it is up to us, dear readers, to continue to advocate for Indigenous language and culture rights in order to crystalize that change.
Until next time,
ReconciliACTION YEG.
[1] See e.g. Canada (Attorney General) v Ward, 1993 CanLII 105 (SCC) at p. 734; Chan, Kwong Hung v MEI, 1995 CanLII 71 (SCC), [1995] 3 SCR 593, at para 71; and X (Re), 2019 CanLII 124082 (CA IRB) at paras 33-34. [2] See e.g. Erin Eacott, “A Clean & Healthy Environment: The Barriers & Limitations of This Emerging Human Right” (2001) 10 Dal J Leg Stud 74, online: CanLII <https://www.canlii.org/en/commentary/doc/2001CanLIIDocs26>. [3] Chan, supra note 1 at para 71. [4] X (Re), supra note 1 at para 34. [5] The Case of the SS “Lotus” (France v Turkey), (1927) PCIJ (Ser A) No 10 [6] See Hurst Hannum, “Status of the Universal Declaration of Human Rights in National and International Law” (1995) 25 Ga J Int’l & Comp L 287 at 289-90. [7] Universal Declaration of Human Rights, GA Res 217(III), reprinted in UN GAOR, 3d Sess, Part 1 at 71-77 UN Doc A/810 (1948) at art 1. [8] Ibid at art 2. [9] “Life” has been interpreted to mean the arbitrary deprivation of life or to live with dignity (see “30 Articles on 30 Articles: Article 3: The Right to Life” online: United Nations Office of the High Commissioner of Human Rights <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23862&LangID=E>.) “Liberty and security of the person” have been interpreted to ensure that people are not arbitrarily detained (See “Right to liberty and security of person and freedom from arbitrary arrest and detention”, online: United Nations Office of the High Commissioner of Human Rights <www.ohchr.org%2FDocuments%2FHRBodies%2FCCPR%2FGConArticle9%2FSubmissions%2FRightPersonalLibertyAndSecurity.doc&usg=AOvVaw0PjNIo4bS5yx1HIa7YxtmN>.) [10] International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, Can TS 1976 No 47, (1967) 6 LM 368, in force 23 March 1976, art 27. [11] Arabella Lang, “UN Convention on the Rights of the Child: a brief guide” (2016) 7721, UK House of Commons Library, online: UK Parliament https://researchbriefings.files.parliament.uk/documents/CBP-7721/CBP-7721.pdf at 5. [12] Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, Can TS 1992 No 3, in force 2 September 1990 art 29. [13] Ibid at art 30. [14] See e.g. Case Concerning Right of Passage over Indian Territory (Portugal v India), [1960] ICJ Rep 6. [15] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295 (Annex), UN GAOR, 61st Sess, Supp No 49, Vol III, UN Doc A/61/49 (2008) arts 13, 14 and 16.