North Carolina Journal of International Law

"Connecting North Carolina to the World of International Law"

UKRAINE’S “EDUCATION” LEGISLATION AND THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

By: Caitlin Willen

 

 

 

 

 

 

 

INTRODUCTION

Although deemed an “education law,” Ukraine’s controversial designation of Ukranian as the sole language of instruction also applies broadly to local government, restaurants, shops.

Furthermore, because it is unconfined to the physical realm, Ukraine’s legislation also applies equally to print and online media.[1]  Perhaps better thought of in terms of a “language law,” it displaces prior legislation permitting minorities in Ukraine to speak in their native tongue in regions where they compose more than ten percent of the total population.[2]  Such displacement, however, is not automatic, as a two-year transition period is anticipated.  Even then, the impact of the legislation may not immediately be felt. Embracing a graduated approach, the legislation permits minority languages to be used in schools for the first four years of elementary education.[3]  At the end of that period, additional broad language limitations restrict instruction to any language of the EU. [4]  Accordingly, Hungarian, Polish, and Romanian may still be used in a limited number of courses.[5]  Russian, on the other hand, may no longer be the language of instruction.[6]  Currently, Russian is the primary language of choice in schools.[7]  Even so, it remains a minority language.  Of the forty-five million persons living in Ukraine, fewer than twenty percent are ethnic Russians.[8]   The rest of Ukraine is comprised from a compilation of minority populations: Hungarians, Poles, Romanians,[9]  Karaims, Crimean Tatars, and Krymchaks.[10] [11]

Ukraine is a member to the International Covenant on Civil and Political Rights (ICCPR).[12]  By virtue of its status as a member, Ukraine is obliged to respect and ensure the rights protected under the Covenant, and is bound by an agreement to adopt legislative or other necessary measures to give effect to those rights, and to provide an effective remedy to those whose rights are violated.”[13]  Despite Ukraine’s broad proclamation to loudly live up to its promises, Ukraine’s new education law may place it in a position to violate the agreement.[14]  At any rate, the lack of any international enforcement mechanisms makes it unlikely that Ukraine can be held accountable, in the events that Ukraine’s actions amount to a violation of an international treaty.

DISCUSSION

            Ten years after the United Nations General Assembly unanimously adopted the ICCPR, the ICCPR came into force on March 23, 1976.[15]  The agreement has the stated purpose of  guaranteeing a “broad spectrum of civil and political rights, rooted in basic democratic values and freedoms, to all individuals within the territory or under the jurisdiction of the States Party without distinction of any kind, such as race, gender, ethnicity, et cetera.”[16]  Pursuant to that purpose, Article 27 of the ICCPR recognizes the right of minorities to “enjoy culture and to use language.”[17]  More specifically, Article 27 provides that “persons belonging to [ethnic, religious or linguistic minorities] shall not be denied the right . . . to enjoy their own culture . . . or to use their own language.”[18]  Despite contentions otherwise, the U.N. Human Rights Committee—the body charged with the official interpretation of the ICCPR—has made it clear that Article 27 recognizes a right which calls for positive protection.  In other words, Article 27 imposes an affirmative duty on states to assume an active role in accommodating the broad linguistic rights that minorities possess.[19]

In similar fashion, the UNHRC has made it clear that “[A]rticle 27 of the Covenant requires States parties to accord protection to ethnic and linguistic minorities.”[20]  Setting aside questions regarding the scope of Article 27, it is generally agreed that Article 27 may attach rights both to the minority group itself or to individuals falling under the umbrella of that classification.[21]  Additionally, it may protect only national minorities or also immigrants, migrants, workers, refugees, and noncitizens.[22]  Designed as an attempted enforcement mechanism for the ICCPR, the UNHRC operates under the United Nations delegation as an entity with quasi-judicial powers to make authoritative comments on individual complaints regarding the application of the ICCPR.[23]  Despite the language of Article 27, the UNHRC has never found a violation of the ICCPR when faced with a complaint alleging language violations.[24]

The closest that an organization has come to a finding of violation is the UNHRC’s decision in Waldman v. Canada.[25]  In that case, Waldman filed a complaint challenging Ontario’s practices under its Education Act of funding Roman Catholic Schools, rather than schools of other religious convictions or backgrounds.[26]  Waldman had hoped to provide his children with Jewish instruction and raised an Article 27 violation in connection with an Article 26—non-discrimination— violation of the ICCPR.[27]  In doing so, Waldman “submitted that the conferral of a benefit on a single religious group cannot be sustained . . . [rather] [w]hen a right to publicly financed religious education is recognized by a state part, no differentiation should be made among individuals on the basis of the nature of their particular beliefs.”[28]  Further, he argued that “Article 27 recognizes that separate school systems . . . form an essential link in preserving community identity and the survival of minority religious groups and that positive action may be required to ensure that the religious minorities are protected.”[29]  Yet rather than focusing on the educational-cultural aspect of his claim under Article 27, the UNHRC focused solely on the discriminatory component of Waldman’s demand, finding a violation of Article 26 under the ICCPR.[30]  Satisfied by its finding, the UNHRC failed to find any “additional issue [that arose] for its consideration.”[31]  Although the communication did not present a linguistic issue for the majority, in a concurring opinion, Professor Martin Scheinin directly linked the complaint to linguistics.[32]  In his concurrence, Professor Scheinin explained that Article 26 forbade states which had opted to fund minority language education from making unjustified distinctions among different minority languages.[33]  From his perspective, even though states need not subsidize private education in minority languages, states which choose to fund education in one language must also financially support other minority languages in the absence of “reasonable and objective criteria not to do so.”[34]

The fact that the UNHRC has failed to find any Article 27 violation makes it less likely that Ukraine would be held accountable under the UNHRC’s jurisdiction for a similar violation of the ICCPR.  Furthermore, even if the UNHRC decided to adopt the perspective outlined in Professor Scheinin’s concurrence, it is not clear that precedent will be much help for parties seeking to hold Ukraine accountable.  Ukraine’s recent legislation prohibits all minority language rather than making distinctions between minority languages.  Even if this were not the case, Ukraine could still avoid being held accountable if it could articulate any “reasonable and objective criteria” in excuse.

CONCLUSION

            At first glance, Ukraine’s new legislation appears to stand in direct contravention to the plain language of the International Covenant of Civil and Political Rights in its Article 27 requirement that “persons belonging to [ethnic, religious or linguistic minorities] shall not be denied the right . . . to enjoy their own culture . . . or to use their own language.”[35]  Ukraine facially appears to fall short of that obligation by reducing the prevalence of spoken and written minority language during the upcoming years.  Nevertheless, a closer look at the international community’s commitment to Article 27 reveals that Ukraine likely will not be held accountable anytime soon.  Not only has the UNHRC failed to find any violation of Article 27, but precedent with the potential to limit Ukraine’s actions may not even apply to the case at hand.  In short, the ICCPR seems ill-equipped to serve as an instrumentality for any party seeking to hold Ukraine accountable for an alleged human rights abuse or otherwise restrict recent legislation.

 

 

[1] Ram Eachambadi, Ukraine Enacts Controversial Ukrainian Education Law, Jurist, Sept. 26, 2017, http://www.jurist.org/paperchase/2017/09/ukraine-enacts-controversial-ukrainian-language-education-law.php [https://perma.cc/LC3U-SWDS].

[2]Hungary Threatens ‘Pain’ For Ukraine Over Controversial Language Law, RadioFreeEurope RadioLiberty, Sept. 27, 2017,  https://www.rferl.org/a/ukraine-hungary-language-law-eu-pain/28758760.html [https://perma.cc/XA3F-JRDG ].

[3]Ukranian Language Bill Facing Barrage of Criticism From Minorities, Foreign Capitals, RadioFreeEurope RadioLiberty, Sept. 24, 2017,  https://www.rferl.org/a/ukraine-language-legislation-minority-languages-russia-hungary-romania/28753925.html [https://perma.cc/GX4U-P47R] [hereinafter Ukranian Language Bill].

[4] Id.

[5] Id.

[6]Liliya Hrynevych, Ukraine Education Law Does Not Harm Minorities, Euobserver, Oct. 20, 2017, https://euobserver.com/opinion/139550 [https://perma.cc/T6QS-69G8] [hereinafter Hrynevych].

[7]  Ukranian Language Bill, supra note 3.

[8] Id.

[9] Id.

[10]  Hrynevych, supra note 6.

[11] Although less than 35% of Ukranian newspapers and 25% of magazines are printed in the Ukranian language, it is the predominate language in 91% of Ukranian schools. Elsewhere, as in Crimea, Russian remains the dominant language. Ukranian Language Set For Media Boost in New Law, BBC, Mar. 17, 2017, http://www.bbc.com/news/world-europe-39302909 [https://perma.cc/C7SN-TM26]

[12] United Nations, United Nations Treaty Collection,  https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&clang=_en [https://perma.cc/LN5A-G6MM].

[13] Karen, D.A. Carpenter, The International Covenant on Civil and Political Rights:  A Toothless Tiger? N. C. J. Int’l L. & Com. Reg. 1, 6 (2000).

[14]At present, Ukraine awaits the Council of Europe’s “expert opinion” regarding the recent legislation. Hungary Threatens ‘Pain’ For Ukraine Over Controversial Language Law, RadioFreeEurope RadioLiberty, Sept. 27, 2017,  https://www.rferl.org/a/ukraine-hungary-language-law-eu-pain/28758760.html [https://perma.cc/YU39-8BZ5].

[15] Carpenter, supra note 12, at 5.

[16] Senate Comm. On Foreign Relations, Report on the Int’l Covenant on Civil and Political Rights, S. Exec. Rep. No. 102-23, at 1 (1992), reprinted in 31 I.L.M. 645, 648.

[17] International Covenant on Civil and Political Rights art. 27, Dec. 16, 1966, 999 U.N.T.S. 172. See also Moria Paz, The Failed Promise of Language Rights: A Critique of the International Language Rights Regime, 54 Harv. Int’l L.J. 157, 160 (“[I]t is generally accepted that the protection of minorities’ language is closely associated with culture . . . the ‘importance of language for many minorities’ derives from the centrality of language ‘to their social and cultural identity.’”)

[18] Paz, supra note 16, at 170.

[19] Id. at 174.

[20] Id.

[21] Id. at 172.

[22] Id. at 172 – 73.

[23] Id. at 166 – 67.

[24] Id.

[25] Waldman v. Canada, Views of the Human Rights Comm., U.N. Doc. CCPR/C67/D/694/1996 (Nov. 5 1999).

[26] Paz, supra note 18, at 183.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Paz, supra note 18, at 184.

[33] Id.

[34] Id.

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