International Law and Human Rights: The Case of Quebec's French Language Policy, Summaries of Personality Development

Download International Law and Human Rights: The Case of Quebec's French Language Policy and more Summaries Personality Development in PDF only on Docsity! Canada-United States Law Journal Volume 4 Issue Article 3 January 1981 Restrictions on Access to English Language Schools in Quebec: An International Human Rights Analysis David E. Short Follow this and additional works at: https://scholarlycommons.law.case.edu/cuslj Part of the Transnational Law Commons Recommended Citation David E. Short, Restrictions on Access to English Language Schools in Quebec: An International Human Rights Analysis, 4 Can.-U.S. L.J. 1 (1981) Available at: https://scholarlycommons.law.case.edu/cuslj/vol4/iss/3 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Canada-United States Law Journal by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Restrictions on Access to English Language Schools in Quebec: An International Human Rights Analysis by David E. Short* I. INTRODUCTION In May 1980, the voters of the Province of Quebec, Canada, rejected a referendum proposal to give their provincial government a mandate to negotiate "sovereignty - association" status for their province.1 Under that proposal, Quebec would have been given exclusive authority to enact its own laws, levy taxes, and conduct foreign relations, but an economic association would have been established with the rest of Canada to pro- vide for a common currency and customs union, among other things. 2 The referendum outcome reflected a rejection of the fundamental policy of the Parti Quebecois provincial government; that is, to work toward secession of Quebec from the rest of Canada.3 Since its November 1976 election victory, the Parti Quebecois has implemented a number of significant reforms addressed to the concern of French-speaking Quebecers for the preservation and enhancement of their language and culture.4 The attainment of meaningful reform in this area over the past several years may well have contributed to the defeat of the referendum, inasmuch as there is now a greater recognition among French-speaking Quebecers of the capacity of the provincial government, functioning within the context of the Canadian confederation, to protect the French language. * A.B. (1976), Cornell, University; J.D. & M.P.A. (1979), University of Southern Cali- fornia. The author is an associate with the law firm of Galland, Kharasch, Calkins & Short, Washington, D.C. He is a member of the District of Columbia Bar. The author wishes to thank Professor Ami Barav, Visiting Professor of International Law at the University of Southern California Law Center, and Professor Nathan A. Pelcovits, of the Johns Hopkins University School of Advanced International Studies, for their helpful comments. The assis- tance of the Canadian Embassy in Washington and the D6lgation G~n6rale de Qu6bec in New York City, in supplying background source materials, is also acknowledged with thanks. I The Gazette (Montreal), May 21, 1981, at 1, col. 2 Referendum in Quebec, May 20, 1980 - Oui - Non, 11 CANADA TODAY/ D'AuJoURD'HUI 1, 3-4 (Canadian Embassy, Washington 1980) [hereinafter cited as Referen- dum in Quebec]. 3 Id. at 2. 4 See generally CHARTER of the FRENCH LANGUAGE [Bill 101], Que. Stat. c.5 (1977) [hereinafter cited as LANGUAGE CHARTER], which includes provisions making French the principal or only language of the legislature, courts, civil administration, semi- public agencies, labor relations, commerce and business, and education. CANADA-UNITED STATES LAW JOURNAL vention have recognized the jurisdiction of the Commission, and a consid- erable body of case law interpreting the Convention has evolved since the Commission's inception in 1953.21 One decision in particular, the Belgian Linguistic Case,22 is especially relevant to the human rights analysis of the issues presented by the educational provisions of the Quebec Charter of the French Language. That case will be discussed at length at a later point.23 The important lesson taught by the experience of the European Commission is that international law has the potential for becoming a meaningful instrument for assuring the protection of human rights, pro- vided effective mechanisms are made available for its enforcement. II. EDUCATIONAL PROVISIONS OF THE CHARTER OF THE FRENCH LANGUAGE Until 1974, there were generally no restrictions on access to the En- glish and French language educational systems in Quebec. There was rec- ognition of an absolute right of all parents-whether they spoke English, French, or some other language-to determine in which of Canada's two official languages their children were to be instructed. This long standing principle was challenged in the late 1960's by a suburban Montreal school commission which did not want to provide English language instruction for Italian immigrant children.24 In response to the action of that school board, legislation was enacted by the National Assembly confirming that all parents had the right to decide whether their children were to be edu- cated in English or in French.2 The first statutory restrictions on access to English language educa- tion came into force in 1974, when the Official Language Act 6 was adopted. Access to English language schools, under that law, was afforded only to children whose mother tongue was English, and to children who could pass an English language proficiency test establishing that they were capable of receiving instruction in English.27 All other children were required to attend French schools.28 2' The Decisions of the European Court of Human Rights and the European Commis- sion of Human Rights are both reported in Y. B. EuR. CoNY. ON HUMAN RIGHTS. 22 The case relates to certain aspects of the laws on the use of languages in Education in Belgium, [1968] Y.B. EuH. CONY. ON HUMAN RIGHTS 832 (Eur. Ct. of Human Rights) [hereinafter cited as Belgian Linguistic Case]. 23 See Notes 68-79 and accompanying text, infra. U See "I faut crier dix, vingt, cinquante St. Leonard". Jean-Marc LUger, [1968] CANADIAN ANN. REV., 86-89 (J. Saywell ed. 1969). 25 Bill 63, Que. Stat. c.9 (1969). Bill 63 provides that instruction was generally to be given in French, but that by simply submitting a request to the local school board, any parent had the right to have his children educated in English. It effectively conferred on parents an unrestricted right to choose between the two linguistic educational systems. 26 Bill 22, Que. Stat. c.6 (1974). 27 Id. §§41,43. 28 Id. §41. [Vol. 4:1 ENGLISH LANGUAGE SCHOOLS The Charter of the French Language, which came into force in 1977 and supersedes the Official Language Act, imposes even greater restric- tions on access to English language schools.2 ' The Charter provides that in order for a child to enroll in an English school, at least one of his parents must have been educated in English in Quebec.30 As a transi- tional measure, however, parents educated in English outside Quebec may also send their children to English schools, provided that the parents were domiciled in Quebec on the date the Charter came into effect.3 1 In addition, children legally enrolled in English schools prior to the effective date of the Charter may continue to attend such schools, and their younger brothers and sisters may also enroll in English schools.3 2 The final exception to the general rule of mandatory French language educa- tion for all pertains to persons living in Quebec for only a temporary pe- riod of time; such persons may send their children to English schools in accordance with regulations promulgated by the French Language Bureau (Office de La Langue Francaise).u The Charter essentially confirms that a tax-supported public school system offering instruction in the English language will continue to exist. It imposes significant restrictions, however, on access to that system. The Charter accords different treatment to individuals based on such factors as place and language of one's education, place and language of one's par- ents' education, and date of establishment of domicile in Quebec. For in- stance, a person born in Quebec, who received his elementary education in English in Quebec, may send his children to either English or French schools. His neighbor, also born in Quebec, but who was educated in the French language sector, may send his children only to French schools. Another neighbor, educated in English outside Quebec (in Ontario for ex- ample), and who moved to Quebec after August 1977, is also denied the right to send his children to English schools. Still another person who was educated in English in Ontario, but who moved to Quebec before August 1977, may send his children to either English or French schools. One of " Language Charter, Que. Stat. c.5, §§72-88 (1977). "Id. §72 states: Instruction in the kindergarten classes and in the elementary and secondary schools shall be in French, except where this chapter allows otherwise. This rule obtains in school bodies within the meaning of the Schedule and also applies to subsidized instruction provided by institutions declared to be of public interest or recognized for purposes of grants in virtue of the Private Education Act (1968, chapter 67). Id. §73 provides: In derogation of section 72, the following children, at the request of their fa- ther and mother, may receive their instruction in English: (a) a child whose father or mother received his or her elementary instruction in English, in Quebec; '1 Id. §72(b). 2" Id. §72(c),(d). 3" Id. §85. 1981] CANADA-UNITED STATES LAW JOURNAL the most significant issues presented by the Charter, then, is whether such distinctions are permissible under international law. It is also note- worthy that the Charter of the French Language does not attempt to abolish the minority educational system; it actually sanctions the contin- ued operation of that system, within prescribed limits. Resolving the question of whether the Quebec Government might be entitled to abolish the tax supported English language public school system would therefore contribute nothing toward determining the validity of the current lan- guage of education law." Keeping in mind the analytical framework developed thus far, an ex- amination of the language of education rights protected by international law will now be undertaken. The purpose of the following section is to determine what limitations, if any, international law places on govern- mental regulations regarding who may or may not have access to certain public schools, with particular reference to the types of classifications arising from the educational provisions of Quebec's Charter of the French Language. III. SOURCE AND EXTENT OF INTERNATIONAL LAW PROTECTION OF LANGUAGE RIGHTS IN EDUCATION A. Sources of Protection International law is recognized as being derived from several differ- ent sources. 5 Among the more significant sources of international law are international conventions, international custom, and general principles of law in force in civilized nations.36 Of these various sources of interna- tional law, treaties are generally regarded as being the most important.37 A number of modern treaties serve as codifications of customary interna- tional law.s In other instances, treaties reflect the resolution of contro- versies between nations as to what rights and obligations arise under in- ternational custom.39 In ratifying a treaty or voting in favor of adoption of an international convention, a state may signify that it recognizes the validity of the principles expressed in the document and is willing to be bound by those principles.40 If an international convention is not ratified by a particular state but is ratified by a substantial number of other states, the convention none- theless serves as evidence of the prevailing view within the community of See Notes 159-168 and accompanying text, infra. 35 M. AKEHURST, supra note 13, at 30-47. 36 Id. see also Statute of the International Court of Justice, opened for signature June 26, 1945, art. 38(1), 59 Stat. 1055, T.S. No. 993. 37 M. AKEHURST, supra note 13, at 30-31. 39 Id. at 32. 3, Id. at 32-33. 40 Id. at 122-26. [Vol. 4:1 ENGLISH LANGUAGE SCHOOLS mine, without governmental interference, whether their children would be educated in English or in French." Since the enactment of the Charter in 1977, parents who were themselves educated in English in Quebec have been permitted to continue to exercise the right to choose whether their children will be instructed in French or in English, but all other parents have been denied that right of choice.55 The phrase "[p]arents have a prior right to choose the kind of educa- tion that shall be given to their children" probably should not be inter- preted as recognizing an unqualified right of parents to determine the language in which their children are to be educated. As will be discussed in the section of this article which considers the International Covenant on Economic, Social and Cultural Rights,56 recognition of any such right could impose an undue administrative burden on the various states, which almost certainly was not intended by those who drafted the Decla- ration. If Article 26, section 3, is not to be rendered meaningless, however, it is essential that state educational systems provide some mechanism for parental input into the determination of the kind of education their chil- dren shall be given. The Article may not confer any absolute linguistic choice rights on parents, but neither does it sanction the implementation of educational policies which totally fail to reflect parental wishes. The proper interpretation of Article 26 may depend on the circum- stances existing in particular states. In a state where education has always been offered in only one language, and where no significant linguistic mi- nority exists, the Article probably does not oblige the state to begin offer- ing instruction in additional languages. But in a state where publicly- financed education in two languages has always been made generally available, and where parents have always enjoyed an unrestricted right to choose in which of the two languages their children are to be educated, legislation which takes away that parental right of choice surely is not in furtherance of the principles set forth in the Declaration. It must not be forgotten, however, that whatever meaning may be ascribed to Article 26, that provision is subject to the qualification of the Declaration's equal protection clause, Article 2. In other words, however limited the Article 26, section 1 right to education and Article 26, section 3 parental choice rights may be, those rights must be made available to all "without distinction of any kind, such as... language,.., national or social origin, . . . birth or other status. '57 In Quebec, parents who were themselves educated in the province's English language school system enjoy a "prior right to choose" whether their children will be educated in English or in French. Denial of that right to parents who were educated in French in Quebec constitues a dis- "See notes 24-25 and accompanying text, supra. Language Charter, Que. Stat. c.5, §73 (1977). See notes 64-67 and accompanying text, infra. '7 Universal Declaration, supra note 51, art. 2. 1981] CANADA-UNITED STATES LAW JOURNAL tinction based on language which is in contravention of Article 2 and sec- tion 3 of Article 26 of the Declaration. Denial of the right of English- speaking parents educated somewhere other than Quebec to choose the language of instruction for their children constitutes a distinction based on national origin, which is similarly proscribed by Article 2. Article 26, section 1 is violated in that one segment of the school population, deline- ated according to language, national origin, and birth, enjoys the right to education in either French or English while the remainder of the school population is given access only to French language schools. To restate the essence of this argument, when a state chooses to offer publicly-financed education in more than one language, the state cannot restrict access to one linguistic system according to impermissible criteria, while affording unlimited access to the other system.58 Thus, any challenge to the Charter of the French Language based on the Universal Declaration of Human Rights will rely on both the equal protection provision, Article 2, and the provision conferring the right to education, Article 26. There is certainly an argument to be made that Article 26, section 3, standing alone, requires Quebec to permit all parents to decide whether their children are to attend the French or English pub- lic schools. But when Article 26 is read in conjunction with Article 2, an even more convincing case can be made that Quebec's language of educa- tion policies are inconsistent with the Universal Declaration. C. The International Covenant on Economic, Social, and Cultural Rights This covenant was adopted by the U.N. General Assembly on De- cember 16, 1966, and entered into force on January 3, 1976, three months after the deposit with the Secretary General of the United Nations of the thirty-fifth instrument of ratification.59 Canada ratified the Covenant on May 18, 1976,60 and has been bound by the Covenant since August 19, 1976.61 The three articles of the Covenant which are particularly relevant to analysis of the educational provisions of the Charter of the French Language are set forth below. Article 2, section 2, of the Covenant reads: The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, relig- ion, political or other opinion, national or social origin, property, birth or " See notes 68-79 and accompanying text, infra. " Economic Covenant, supra note 44. The covenants did not enter into force until Jan- uary 3, 1976. See 32 U.N. GAOR, (Agenda item 76), U.N. Doc. A/32/150 (1977). See also Comment, Entry into Force of the International Covenants on Human Rights and the Op- tional Protocol to the International Covenant on Civil and Political Rights, 70 AM. J. INT'L L. 511, 512 (1976). " Order in Council P.C. 1976-1156 (May 18, 1976). 6' Economic Covenant, supra note 44, art. 2, para., 2. [Vol. 4:1 ENGLISH LANGUAGE SCHOOLS other status. Article 13 of the Covenant deals with education. Specifically, that article provides: 1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental free- doms. They further agree that education shall enable all persons to par- ticipate effectively in a free society, promote understanding, tolerance * and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the mainte- nance of peace. 2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all; (b) Secondary education in its different forms, including tech- nical and vocational secondary education, shall be made gener- ally available and accessible to all by every appropriate means, and in particular by the progessive introduction of free education; (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in partic- ular by the progressive introduction of free education; (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; (e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be es- tablished and the material conditions of teaching staff shall be continuously improved. 3. The States Parties to the present Covenant undertake to have re- spect for the liberty of parents and, when applicable, legal guardians, to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational stan- dards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions. 4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational insti- tutions, subject always to the observance of the principles set forth in paragraph 1 of this Article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State. Article 28 states that: "The provisions of the present Covenant shall ex- tend to all parts of federal States without any limitations or exceptions." Thus, with respect to Canada, the standards set forth in the Covenant 19811 CANADA-UNITED STATES LAW JOURNAL This interpretation is not by any means universally accepted.6 7 One problem is that it does contain the potential for absurd and unintended consequences. In a society composed of numerous linguistic groups, it is conceivable that requests might be submitted for instruction in a hun- dred or more different languages. Complying with all the requests would raise considerable administrative and financial problems for the state concerned. It seems doubtful that the true intent of the International Covenant was to impose such an enormous obligation on the ratifying states. The decision of the European Court of Human Rights in the Belgian Linguistic Case6 8 provides some guidance in determining whether any lin- guistic constraints are implicit in the Article 13 right to education. In the Belgian case, the Court was called upon to interpret Article 14 of the Eu- ropean Convention on Human Rights 9 and Article 2 of the First Protocol to that Convention.70 Those provisions are very similar in substance to Articles 2 and 13 of the International Covenant on Economic, Social, and Cultural Rights: one article confirmed that everyone has the right to an education, while the other article required the signatory-states to protect the various rights recognized in the Convention without discrimination based on various criteria, including language. Essentially, one article dealt with the substantive right to education, and another article guaranteed the right to equal protection. The European Court of Human Rights re- jected the idea that the Convention required states to provide instruction in the language of the parents' choice, but went on to hold: The object of these two Articles, read in conjunction, is more lim- ited: it is to ensure that the right to education shall be secured by each Contracting Party to everyone within its jurisdiction without discrimina- and International Human Rights, [1976] S. ILL. U. L. J. 151; UNESCO, THE USE OF VER- NACULAR LANGUAGE IN EDUCATION 11 (1953): It is axiomatic that the best medium for teaching a child is his mother tongue. Psychologically, it is the system of meaningful signs that in his mind works auto- matically for expression and understanding. Sociologically, it is a means of identi- fication among the members of the community to which he belongs. Education- ally, he learns more quickly through it than through an unfamiliar linguistic medium. 67 See, e.g., Lebel, supra note 48. Belgian Linguistic Case, [1968] Y. B. EuR. CONY. ON HUMAN RIGHTS 832. 6' Article 14 of the Convention states: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a na- tional minority, property, birth or other status. 70 Article 2 of the First Protocol states: No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. [Vol. 4:1 ENGLISH LANGUAGE SCHOOLS tion on the ground, for instance, of language. This is the natural and ordinary meaning of Article 14 read in conjunction with Article 2."' The Court determined that a number of the allegations of the petitioners did not amount to a violation of the Convention, when interpreted in that manner. In one instance, however, the Court found that the right to edu- cation of certain children had not been secured without discrimination on the basis of language.72 The provision of Belgian law that gave rise to that finding was accordingly held to be inconsistent with the European Con- vention on Human Rights.73 The particular Belgian law established Dutch as the general language of instruction in six suburbs of Brussels. The law also permitted French language primary schools to be established in: the communities, if re- quested by sixteen French-speaking resident families.74 The Dutch lan- guage school system was open to everyone-all residents of the particular community, and all other Belgian residents, regardless of whether their mother tongue was Dutch or French. The French language schools, in contrast, were open only to French-speaking residents of the community where the schools were located.7 5 Access to those schools was denied to French-speaking persons residing anywhere other than in the community where the school was located, and to all Dutch-speaking persons, regard- less of residence. In essence, the Court held that once the Government of Belgium had undertaken to operate both French and Dutch language schools in these particular towns, it could not limit access to one system while permitting unlimited access to the other system, for the purpose of favoring one lan- guage group over the other. Quebec's Charter of the French Language creates a closely analogous situation. Public schools offer instruction in two languages, French and English. Instruction in one of the languages, French, is made available to everyone; instruction in the other language, English, is made available to only a limited group of students. In the Belgian Case, the Court noted that administrative and financial considerations may justify restrictions on access to particular schools, but stated that restrictions arising from a policy of favoring one language over another were impermissible in view of the Convention's equal protection provision. The Court found that with respect to the French schools in the six Brussels suburbs, the access restrictions were imposed "solely ... from considerations relating to language, ' 76 and that the restrictions were therefore inconsistent with Belgium's obligations under the European Convention. 71 Belgian Linguistic Case, [1968] Y. B. Eup. CONY. ON HUMAN RIGHTS, at 866. 71 Id. at 942. " Id. 7' Act of 2d Aug. 1963, art. 7, pars. 3(b) (Belgium). 7' See McDougal et al., supra note 66, at 169-70. 7' Belgian Linguistic Case, [1968] Y. B. Eut. CoNy. ON HUMAN RIGHTS at 942. 1981] CANADA-UNITED STATES LAW JOURNAL Similarly, restrictions on access to English language schools in Que- bec are motivated exclusively by the Government's language policies. The whole purpose of the Charter is to enhance the status of the French lan- guage.7 The Quebec Government's own explanation for the access restric- tion concedes an underlying linguistic purpose: "the English school, which forms a special system granted to the present minority in Quebec, must cease being an assimilating force and must then be reserved to those for whom it was created."7 8 There is no mention of financial or administra- tive considerations at all-the purpose of the access restriction is to assist in the assimilation of immigrants into the French-speaking community, and to prevent their assimilation into the English-speaking community.7' In fact, significant financial and administrative problems might be ex- pected to arise for those local school boards which had never before been called upon to offer anything but English language education due to the requirement that the school boards provide education in French to all students not qualifying for English language instruction under the Char- ter's criteria. Based upon the interpretation by the .European Court of the educa- tional and equal protection provisions of the European Convention, it can be analogized that the corresponding articles in the International Cove- nant dictate that the public schools provided by a state must be made accessible to all without regard to such criteria as language or national origin. It should be re-emphasized that the Belgian Linguistic Case is not by any means a controlling precedent with respect to any international legal challenge to the Quebec Charter. The Belgian Case involved the in- terpretation of the European Convention on Human Rights by the Euro- pean Court of Human Rights. With regard to Quebec, the European Con- vention is inapplicable and the European Court lacks jurisdiction. With this caveat in mind, the Belgian Linguistic Case serves as an illustration of the approach followed by a major international tribunal in applying a human rights convention that is very similar in content to the Interna- tional Covenant on Economic, Social, and Cultural Rights, in order to resolve a choice of language of education controversy. The Belgian Case clearly suggests that in the event an international tribunal is called upon to resolve a challenge to Quebec's Charter of the French Language based upon Articles 2 and 13 of the International Covenant, the prospects are good for a finding that the language of education section of Quebec's Charter is inconsistent with the interpretation which the tribunal gives to those Articles of the Covenant. " This is rather apparent from the title of the law, The Charter of the French Lan- guage. See also MINISTERE DES COMMUNICATIONS, QUEBEC'S POLICY ON THE FRENCH LAN- GUAGE: (English version) (l'Editeur official du Quebec 1977) [hereinafter cited as WHITE PAPER]. 78 Id. at 71. 79 Id. [Vol. 4:1 ENGLISH LANGUAGE SCHOOLS English minority to have public schools offering instruction in the minor- ity language.88 There is no need to determine, at least for the time being, whether Quebec is bound to do so under the International Covenant. 9 The fact is that at the present time, Quebec purports to "guarantee the English minority in Quebec access to English school,"9 0 a policy that is undoubtedly consistent with Article 27 of the Covenant. Having em- barked on that course of action, the International Covenant on Civil and Political Rights requires that that protection be made available to all members of the linguistic minority without regard to national origin or birth. The provisions of the Charter of the French Language regulating access to English language public schools based upon place of education of a child's parents 1 violate this command. The stated purpose of the access restriction, according to the Quebec Government, is: to open the English schools to all those who now live in Quebec and whose parents, because of their education, form part of the English- speaking community, as well as to their descendants; and to direct all other children to the French school, whether they already form part of the French-speaking community or whether they settle here in the future As for those who come to settle in Quebec after the adoption of the Charter, wherever they come from and whatever their native tongue they will have to send their children to French schools.92 In essence, the intention is to classify residents of Quebec whose mother tongue is English into two groups based on parentage: one group consist- ing of English-speaking persons whose ancestors were Quebecers, which is afforded access to English schools, and another group consisting of En- glish-speaking persons of non-Quebec ancestry, which is denied access to the English schools. Clearly, this distinction is impermissible under Arti- cle 2 of the Covenant. Article 27 does not recognize the right of everyone within a state to have access to a minority language educational system; it protects the rights of members of minority groups only. Accordingly, Article 27 does not prevent the Quebec Government from implementing procedures designed to deny access to English language schools to persons who are not members of the English minority. Hence, the Covenant cannot be in- voked on behalf of French-speaking persons, or in fact anyone who is not a member of the English-speaking minority, in support of any claim that such persons may wish to make regarding their right to attend English :3 WHrrE PAPER, supra note 77, at 71. *1 See notes 159-168 and accompanying text, infra. '0 WHrrE PAPER, supra note 77, at 71. 1 Language Charter, Que. Stat. c.5, §73 (1977). 2 WHrrE PAPER, supra note 77, at 71-75. 1981] CANADA-UNITED STATES LAW JOURNAL language schools.93 The Quebec Government has expressed the view that the criteria contained in the Charter are the most workable administrative proce- dures for differentiating between members of the English-speaking mi- nority (who are entitled to Article 27 protection), and persons who are not members of the English minority group (and who have no right to attend English schools under Article 27).94 The Government has noted that language tests, such as those used between 1974 and 1977 pursuant to the Official Language Act,'5 are a less than ideal classification method.9' The Government acknowledges that the optimal way of deter- mining a child's native language is through a sworn statement of the par- ents.97 That classification method was rejected, however, because the Government believes it might be subject to deceit and abuse.'8 Implicit in the Government's rejection of the sworn statement method is the notion that fundamental human rights may be compromised whenever permit- ting their full exercise would result in administrative complexity. Quebec's interest in preventing persons who are not members of the English-speaking minority from having access to English language schools is not inconsistent with the obligations which are imposed on it pursuant to the Covenant. The Government of Quebec also has an interest in the implementation of the simplest administrative procedures for determin- ing who is and who is not a member of the eligible minority group. Que- bec cannot, however, under the guise of this latter interest, deny rights protected under Article 27 to persons who are bona fide members of the English minority. The classification procedures set forth in the Charter of the French Language may indeed offer the advantage of administrative simplicity. But they are defective inasmuch as they do not serve the permissible pur- pose of accurately distinguishing between members of the English minor- ity and other persons." Consider, for instance, a family that has moved from Ontario to Quebec after the enactment of the Charter. The parents were educated in English in Ontario, and the children have always at- 9" Of course, sources of international law other than the Covenant on Civil and Political Rights-such as the Covenant on Economic, Social, and Cultural Rights, and the U.N. Uni- versal Declaration of Human Rights may protect the right of non-English-speaking persons to attend English schools. See WHITE PAPER, supra note 77, at 73. " See notes 4-6 and accompanying text, supra. "WHrrE PAPER, supra note 77, at 73. 97 Id. at 73-74. " Id. "Id. at 73. "The problem is to find a criterion that is valid and quite easily applied to designate those who, if they expressly wish it, may enroll their children in the English schools." Id. The WHrrE PAPER then goes on to justify the Language Charter's access criteria almost exclusively in terms of being "easily applied"; there is no attempt made to establish that the Language Charter's criteria are the most "valid" of those that might have been adopted. S20 [Vol. 4:1 ENGLISH LANGUAGE SCHOOLS tended English schools in that province. English is the only language spo- ken by members of this family. Under Quebec's Charter, the family would not be classified as part of Quebec's English-speaking minority and would not be afforded the Article 27 rights which the Province is obliged to rec- ognize with respect to all members of that minority.100 Since the parents were not educated in English in Quebec, their children would not be per- mitted to enroll in English schools. Clearly, upon moving to Quebec, that family became a part of the Province's English-speaking minority. The failure of the minority school access regulations to classify this family as part of the minority group illustrates the ineffectiveness of those proce- dures at accomplishing the permissible purpose of differentiating between members of the English minority and other persons. It should be noted that the classification accorded this particular family is not by any means an anomaly arising from some legislative over- sight: the Government's White Paper states that the intention of the law is to prevent all newcomers to Quebec, even though their language may be English, from having access to the English school system.10 1 Thus, it is clear that the Government never intended to fulfill its obligation to re- spect the Article 27 rights of all members of the English minority without distinction on account of national origin and birth. The English school access regulations contained in the Charter attempt to differentiate ac- cording to ancestry, not according to membership in the English linguistic minority. A differentiation based on ancestry may be easier for the Gov- ernment to administer, but such a differentiation fails to comport with the requirements of the International Covenant. In sum, the International Covenant on Civil and Political Rights, a document that is binding on Canada in international law, requires that states permit members of linguistic minorities to enjoy their own culture and use their own language in community with other members of their linguistic minority group. This protection must be secured to all members of the linguistic minority, without distinction of any kind such as that based on national origin or birth. Quebec law divides the English minor- ity into two groups, according to ancestry, i.e., national origin and birth. Quebec has partially fulfilled its obligations under the Covenant inas- much as it permits one of the two groups-those English-speaking per- 100 "English-speaking Quebecers must preserve their language, their culture and their way of life. The government not only does not object to this but acknowledges the fact as part of our common history." WHITE PAPER, supra note 77, at 39. See generally METROPOLI- TAN QUEBEC LANGUAGE RIGHTS CoMmTTEE, A BRIEF ON BILL 1 (prepared on behalf of the Quebec city English-speaking community, May 25, 1977): The White Paper-Quebec's Policy on the French Language-announced happy days for the English-speaking community.... Then, Bill 1 [The Charter of the French language] was tabled. And we learned that we were no longer part of the Quebec people, and indeed, we were considered public enemy number one. Id. at 1. '1 WHITE PAPER, supra note 77, at 75. 1981] CANADA-UNITED STATES LAW JOURNAL group. A "plain meaning" analysis suggests that the first interpretation is probably correct; the Convention does not attempt to define who must be afforded access to minority schools, but merely seeks to guarantee that those who do have access to the minority system also have access to the majority system. The second interpretation, however, seems more consis- tent with Article 2 read as a whole. Of particular significance in this re- gard is the phrase: "The establishment or maintenance, for... linguistic reasons, of separate educational systems ... [shall not be deemed to constitute discrimination]." If a minority school system is really operated for linguistic reasons, as it must be in order to come within the terms of Article 2, it seems strange that only those members of the minority lin- guistic group whose parents were educated in a particular locale are per- mitted to have access to it. Such a restriction on access might be appro- priate if the real reason for maintaining the separate school system was, for instance, to confer a special privilege on children of a certain ances- try.105 Basing access to the separate school system on descent rather than on language casts serious doubt on whether linguistic reasons are the real justification for the existence of the minority "linguistic" educational sys- tem. If the real reason for the system's existence is not linguistic, the establishment and operation of the system is impermissible under Article 2. Article 3 of the Convention lists certain specific measures that the states which have ratified the Convention are obliged to undertake in or- der to eliminate discrimination in education. The educational provisions of the Charter of the French Language are inconsistent with at least two of the measures set forth in Article 3. Subparagraph (d) of that Article prohibits "restrictions or preferences based solely on the ground that pupils belong to a particular group." The Quebec Charter divides the school population into two groups, essentially according to parentage. It permits one group to have access to English and French language schools, and restricts the other group to the French system only. In so doing, it grants a preference to the former group and imposes a restriction on the latter group, in clear contravention of this provision of the Convention. Article 3, subparagraph (e) requires states "to give foreign nationals resident within their territory the same access to education as that given to their own nationals." It might be contended that the Charter provi- sions restricting access to English language schools are not violative of this section inasmuch as they do not make any express differentiation between Quebec (or Canadian) citizens and foreign nationals.106 Most Quebecers are denied the right to English education; therefore, it cannot be said that the Charter provisions discriminate against foreign nationals 'o' See text following note 63, supra. 'e That is, the access restrictions are expressed in terms of the parents' place of educa- tion rather than their nation of origin. [Vol. 4:1 ENGLISH LANGUAGE SCHOOLS by subjecting them to the same denial. But a closer examination of the practical operation of the Charter raises serious questions as to the valid- ity of that argument. Under the law, no foreign nationals who come to Quebec after the enactment of the Charter may have access to the En- glish educational system.10 7 According to the Quebec Government, the English school system is the inheritance of the Province's English-speaking communityles The Charter, however, restricts the benefits of that system not to all members of the English-speaking community, but to English speaking people living in Quebec on the date of the Charter's enactment, and their descendants. By extinguishing any possibility that newcomers to Quebec may ever be permitted to qualify for education in English, the Charter is inconsistent with Article 3, subparagraph (e) of the Convention. Not all restrictions on access to the English language educational sys- tem are by any means inconsistent with subparagraph (e) of the Article. An access restriction which actually serves to distinguish between mem- bers of the English-speaking minority and others might be permissible under subparagraph (e).109 The problem with the access restrictions con- tained in Quebec's Charter is that they result in different rights being extended to persons who are similarly situated in all respects except na- tionality. It is that distinction, based on nationality, which subparagraph (e) prohibits. The right of national minorities to operate their own schools is recog- nized in Article 5, paragraph 1 (c) of the Convention. Consistent with this provision, the Quebec Government permits the operation of English lan- guage schools within its jurisdiction. These schools are probably in con- formity with the specific criteria prescribed by Article 5, such as affording students the opportunity to gain an understanding of the language and culture of the majority, °0 adhering to the same pedagogical standards as schools in the majority system, and optional attendance.,' The minority educational system established in accordance with Ar- 107 It should be noted that foreign nationals who intend to reside in Quebec for only a limited period of time may under some circumstances be afforded access to the English school system. See Language Charter, Que. Stat. c.5, §85 (1977). See also text accompanying note 33, supra. Those coming to Quebec to reside permanently, however, are denied access to that system. "o WHrrE PAPER, supra note 77, at 71. 'o, Of course, alternative access restriction criteria might be vulnerable to a challenge under other provisions of the Convention, or other sources of international human rights protections. 11o Language Charter, Que. Stat. c.5, §84 (1977), provides: No secondary school leaving certificate may be issued to a student who does not have the speaking and writing knowledge of French required by the curricula of the Department of Education. " Whether the English schools are in conformity with the Article 5 "optional" require- ment, like the one contained in Article 2(b), depends upon the interpretation accorded to that term. See text accompanying notes 104-105, supra. 19811 CANADA-UNITED STATES LAW JOURNAL tide 5, paragraph 1 (c) is not, however, in conformity with the Conven- tion's requirement that such education be made available in a non-dis- criminatory manner. Article 1, paragraph 1 (a) prohibits a state from "depriving any person or group of persons of access to education of any type or at any level." When a state's educational policy provides for the public funding and operation of minority language schools, it is inconsis- tent with this section of the Convention to deny anyone access to that educational system. In light of Article 5, paragraph 1 (c), the denial to certain members of the minority group of access to that educational sys- tem is even more inconsistent with the principles expressed in the Con- vention. Quebec may be commended for adhering to Article 5, paragraph 1 (c) to the extent that it permits many of its approximately one million English-speaking citizens to operate an educational system offering in- struction in the minority language." 2 Quebec is subject to criticism, how- ever, for failing to respect the Article 5 rights of many other members of its English-speaking community, and for imposing access restrictions on the minority school system which are clearly in contravention of Article 1, paragraph 1 (a). Since Quebec's Charter of the French Language creates a number of distinctions regarding educational rights based on language, national ori- gin, and birth, it violates several provisions of the Convention Against Discrimination in Education. Although the Convention is not binding on Canada, the inconsistencies which can be demonstrated between Quebec's educational policies and the international standards set forth in the Con- vention would certainly lend support for any claims asserted under those Covenants which are binding on Canada in international law.113 F. The Declaration of the Rights of the Child Another international document which bears on the validity of the educational provisions of the Charter of the French Language is the United Nations Declaration of the Rights of the Child. This Declaration was unanimously adopted by the United National General Assembly on November 20, 1959.114 Three sections of the Declaration seem especially pertinent to the analysis of Quebec's Charter: Principles 1, 2, and 7. Prin- ciple 1, the equal protection provision, states: The child shall enjoy all the rights set forth in this Declaration. Every child, without any exception whatsoever, shall be entitled to these rights, without distinction or discrimination on account of race, colour, sex, language, religion, political or other opinion, national or social origin, 112. If, indeed, it is necessary or appropriate to commend a government for complying with international law. I's See notes 44, 51, supra, for the two human rights covenants and the Universal Declaration. 114 Rights of the Child, supra note 49. [Vol. 4:1 ENGLISH LANGUAGE SCHOOLS The Declaration of the Rights of the Child is a statement of principle that does not contain specific enforcement procedures.12 5 The Declara- tion, however, was adopted by the U.N. General Assembly,12 an interna- tional body of which Canada is a member; therefore, the Declaration could be cited as a highly persuasive source of international law in any challenge to the validity of Quebec's Charter of the French Language brought before an international tribunal. The unanimity with which the General Assembly adopted the Declaration serves as further evidence of the validity and broad acceptance of the standards set forth in the docu- ment on the part of members of the international community. IV. PROCEDURES FOR ENFORCING HUMAN RIGHTS RECOGNIZED UNDER INTERNATIONAL LAW As Mr. Justice Holmes stated in a United States Supreme Court opinion, "[1]egal obligations that exist but cannot be enforced are ghosts that are seen in the law but are elusive to the grasp. ' 127 The protections contained in the various sources of international law discussed in the pre- ceding section of this paper will be no more valuable to the victims of human rights violations than the ghosts to which Justice Holmes alluded, unless meaningful procedures exist for their enforcement. One of the most novel human rights enforcement mechanisms is con- tained in the Optional Protocol to the International Covenant on Civil and Political Rights, a protocol that has been ratified by Canada.12 8 Pur- suant to that document, an individual may petition the Human Rights Committee, established under Part IV of the Covenant, to consider alle- gations of violations of the Covenant by a state that is a party to the Protocol.12' The individual must be a victim of the human rights viola- tion13 0 and he must have exhausted all available domestic remedies. 3 1 The Committee gives notice of the complaint to the state which is alleged to have violated the Covenant, and the state is required to submit a re- sponse to the Committee within six months explaining its conduct and describing any remedial action that it intends to pursue.13 2 Thereupon, the Committee meets in closed session to consider the matter, and upon reaching a decision, forwards its views to the petitioner and to the state concerned.1 3 3 The Committee also reports annually to the General Assem- 115 Rights of the Child, supra note 49. 126 Id. '27 The Western Maid, 257 U.S. 419, 433 (1922). 1'8 See note 60, supra. 129 Of course, the Protocol is only open to ratification by states which have ratified the Covenant. See Art. 8 of the Protocol. ' Political Covenant, supra note 44, Optional Protocol, Art. 1. 131 Id. Art. 2. 132 Id. Art. 4. 133 Id. Art. 5. 1981] CANADA-UNITED STATES LAW JOURNAL bly on its activities under the Protocol.'" Thus, a member of the Quebec English-speaking minority who is currently denied access to English lan- guage schools, and therefore claims a violation of his rights under Articles 2 and 27 of the Covenant,'3 5 may petition the Human Rights Committee to consider his grievance once his domestic remedies have been exhausted. Another procedure by which individuals may seek to have human rights violations redressed is by petitioning the United Nations Subcom- mission on Prevention of Discrmination and Protection of Minorities. Since its inception, the United Nations has been receiving thousands of petitions each year from individuals alleging that their human rights are being violated. Initially, the United Nations took the position that it was without jurisdiction to act on such petitions, and an official policy was adopted of discouraging the submission of petitions from individuals.'36 In 1970, the U.N. Economic and Social Council reversed that position by authorizing the Subcommission on Prevention of Discrimination and Pro- tection of Minorities,. which is responsible to the Human Rights Commis- sion, to study complaints received from individuals that "appear to reveal a consistent pattern of gross and reliably attested-to violations of human rights and fundamental freedoms. 1'3 7 With the consent of the state in- volved, the Commission on Human Rights may establish an ad hoc com- mittee to investigate the allegations.'" This procedure has the disadvan- tage that without the consent of the state alleged to be committing the human rights violations, the Commission may only study and may not investigate complaints. It has the advantage, however, of subjecting gov- ernmental practices to review in light of the full range of international human rights protections, not just those set forth in one particular document. As an alternative to the establishment of an ad hoc committee, the Commission may recommend to the Economic and Social Council that some other type of action be taken. Thus, the resolution suggests that the ad hoc committee will be the usual procedure for dealing with individual complaints, but affords the Council flexibility to fashion whatever investi- gatory measures it deems appropriate. Thus far, no government has consented to the establishment of an ad hoc committee to investigate allegations that it has violated human rights.'39 Only the Government of Canada can enlighten us as to whether or not it would consent to the establishment of such a committee, in the 13 Id. Art. 6. 1-" See notes 80-101 and accompanying text, supra. 136 E.S.C. Res. 75, 5 U.N. ESCOR 20, U.N. Doc. E/505 (1947). 137 E.S.C. Res. 1503,48 U.N. ESCOR Supp. (No. 1A) 8, U.N. Doc. E/4832/Add.1 (1970). 138 Id. 23 Saario & Cass, The United Nations and the International Protection of Human Rights: A Legal Analysis and Interpretation, 7 CAL. W. INT'L L. J. 591, 604 (1977). [Vol. 4:1 ENGLISH LANGUAGE SCHOOLS event a petition is submitted to the Subcommission alleging that Que- bec's Charter of the French Language violates fundamental human rights. The Federal Government's stated policy regarding the Quebec language law suggests, however, that consent to the creation of such a committee is very possible. At the time the Charter of the French Language was en- acted by the Quebec National Assembly, the Federal Government chose not to exercise any of the powers available to it in order to summarily invalidate the law.140 It did make a commitment, however, to intervene on behalf of any private parties bringing suits in the lower courts to chal- lenge the validity of the language law. 41 Thus, while the Federal Govern- ment respects the autonomy of the Provincial Government to legislate as it sees fit in regard to education and other matters, it does not by any means endorse the specific policies and procedures contained in the Char- ter. Canada might, therefore, welcome the opportunity to have the valid- ity of the language law tested in an international investigation. Canada presumably does not want to contravene the standards set forth in international law, and the decision of an international organiza- tion as to the validity of the language charter in light of those standards would greatly assist it in that regard. Moreover, one of the reasons for the Federal Government's failure to exercise its power to disallow the Char- ter142 was that it wanted to avoid giving the impression that Quebec could become free to implement whatever language policies it desired by simply opting out of confederation.1 4 3 Invalidation of the Charter on the ground 14O See note 7, supra, at 560. 141 Will back challenges to Quebec bill: La londe, Globe & Mail (Toronto), Oct. 10, 1977, at 10. 142 B.N.A. Act, 30 & 31 vict., c.3, §90, authorizes the Governor-General of Canada (who acts upon advice of the Prime Minister) to disallow any provincial law, for any reason or for no reason at all. It has been advanced that three types of provincial legislation in particular justify the exercise by the Federal Government of its power of disallowance-specifically, laws that (1) interfere with national legislation or policy, (2) infringe the rights of Canadian citizens living in other provinces, and (3) impair fundamental rights of Canadian citizens other than those protected in the B.N.A. Act. See R. DAWSON, THE GOVERNMENT OF CANADA 213-17 (5th ed. 1970). A cogent argument can be made that the Charter of the French Lan- guage comes within not only one, but all three, of Dawson's criteria. Exercise of the power of disallowance "interferes with the democratic process" inasmuch as it results in the invalida- tion of a law enacted by a duly elected provincial legislature. But the power of disallowance would never have been conferred on the Federal Government in the B.N.A. Act if there had been a desire to foreclose such "interference." The constitutional plan is thus defeated not by the exercise of the power of disallowance, but by the failure of the Federal Government to exercise it, under appropriate circumstances. 142 If the Federal Government's policy is to abandon minority language rights in Que- bec and thereby allow the province for all intents and purposes to function as an indepen- dent state-a part of Canada in name only-members of the minority might well question whether it is to their advantage to continue to support federalism. They-might be better off if Quebec separated from the rest of Canada, and if the English-speaking community, con- centrated in the West End of Montreal, in turn sought independence from the rest of Quebec. 1981] CANADA-UNITED STATES LAW JOURNAL national standard" established by the resolution of the diplomatic protection claim. The second limitation on the diplomatic protection doctrine, the ab- sence of any obligation upon states to assert claims on behalf of their nationals, is also somewhat illusory. Whether any state would in fact choose to assert a claim against Canada pursuant to its right of diplo- matic protection is difficult to ascertain at this point in time.15 2 Perhaps the determinative factors would be the state's evaluation of the gravity of the alleged human rights violations on the part of the Quebec Govern- ment, and the state's general policies regarding the appropriateness of in- vocation of diplomatic protection. Also important would be the amenabil- ity of the Canadian Federal Government to having such a claim asserted against it. The earlier discussion of the possible attitude of the Canadian Government toward an investigation by the U.N. Human Rights Commit- tee153 might extend to a diplomatic protection challenge to the language law brought by another state. The Government might welcome the oppor- tunity to have questions concerning the Charter's validity resolved by an international tribunal, regardless of whether the tribunal's jurisdiction is premised upon U.N. rules for the investigation of petitions from individu- als, or international law procedures for the resolution of diplomatic pro- tection claims. Whichever procedures may be selected to pursue an international le- gal challenge to the Quebec language charter, they must be directed against the Government of Canada and not against the Government of the Province of Quebec. Although major progress has been made in recent years to enable individuals to petition international tribunals regarding human rights violations, it continues to be well settled that the only sub- jects of international law are states themselves.1" Despite the fact that the statute which constitutes the subject of the legal challenge was en- acted by a provincial legislature, it is the Canadian Federal Govern- ment-the government of the state-which is held accountable for the statute in international law. As discussed above, the principal grounds for challenging the Quebec language charter are derived from treaties, i.e., the Universal Declaration of Human Rights, and specific provisions of the two covenants which in- terpret it. Conflicts between treaty obligations and municipal law-whether national or provincial-are bound to occur from time to time; but it is incumbent upon states which have entered into treaties with other states to conform their municipal legal systems to the require- 15 The question will not actually arise until all available domestic remedies have been exhausted, i.e., until a determination has been made by the Canadian court of last resort that Quebec's language charter is in fact valid under Canadian law. '5 See notes 140-144 and accompanying text, supra. '5R. SwIFT, INTERNATIONAL LAW: CuRRENT AND CLAssic 58 (1969). [Vol. 4:1 ENGLISH LANGUAGE SCHOOLS ments of the treaties.155 A state cannot respond to charges of having vio- lated a treaty by saying that its municipal legal system does not permit the treaty's execution. In situations such as this, the state is required to reform its municipal legal system; if that is not possible, it should not have entered into the treaty in the first place. There can be no doubt that the international human rights covenants were intended to constrain pro- vincial as well as national governments; both covenants contain articles expressly confirming that the covenants apply "to all parts of Federal states, without exception."156 There is no question that the nature of a federal system results in problems that would not arise in a state where there is but one legislative body. But these problems do not excuse or in any way alter Canada's responsibility to fulfill its obligations under international agreements. Just as a state cannot plead, in international law, deficiencies in its mu- nicipal legal system as a defense to allegations of treaty violations, neither can it claim that the nature of its constitutional framework excuses ad- herence to its obligations under international law. Assuring compliance by all provincial legislatures with international agreements may not be an easy task; the reluctance of the Canadian government to enter into inter- national agreements that focus on fields of exclusive provincial jurisdic- tion evidences this.157 Once it ratified the two international covenants, however, the Canadian federal government imposed upon itself the obli- gation of preventing provincial legislatures from adopting statutes that contravene the provisions of the covenants. International law inherently lacks the sanctions that exist in most municipal legal systems. International law has survived for as many cen- turies as it has because states recognize its long-term value in maintaining peace and world order; states are generally willing to comply with princi- ples established in international law even though the threat of sanctions may not exist.158 Accordingly, what is most important is the substantive content of international law-in this case, the extent of the human rights protections that international law recognizes. Some procedures for deter- mination of that content must, and do, exist. The procedures available for "enforcemenit" of international law's substantive content may appear to be inadequate; but ultimately, enforcement is dependent upon the will of the state. Pressure from other members of the community of nations and recognition by the offending state that world peace is dependent upon its continued respect for international law serve as substitutes for the more 15 LoRD McNAm, LAw OF TRFATms 78 (Oxford 1961): "[Flor no State can plead a defi- ciency in its municipal law or organization against a complaint of a breach of a treaty obli- gation or of a rule of customary international law. [Footnote omitted.]" " See Economic Covenant, supra note 44, art. 28; Political Covenant, supra note 44, art. 50. 157 See note 103 and accompanying text, supra. I See M. AKEHURST, supra note 13, at 13-18. CANADA-UNITED STATES LAW JOURNAL visible enforcement procedures that those accustomed to dealing with municipal legal systems may believe to be essential. V. CONCLUSION Ideally, opponents of Quebec's Charter of the French Language might like to see recognition accorded to an unqualified right of all par- ents to determine the language in which their children are to be educated. Several of the documents which have been considered in this paper may lend some measure of support to that claim. But the most promising grounds for invalidation of Quebec's Charter concentrate their attack on the discriminatory aspects of the language law.159 In order to prevail on this "discrimination theory," it is unnecessary to resolve whether Quebec is under any obligation to provide tax-supported English language educa- tion in the first place. The theory maintains that if the Province elects to provide for such an educational system, it is prevented, under interna- tional law, from restricting access to that system in a discriminatory man- ner. Whether international law requires Quebec to operate an English language school system at all is completely outside the scope of the requi- site analysis. In response to a challenge under international law premised upon this "discrimination theory," Quebec might simply claim that it is not required to permit English language schools to exist in the first place. If the English language school system were totally abolished, and if all chil- dren were required to attend French schools, the discrimination problem would be eliminated. The argument admits that present regulations may not comport with international anti-discrimination standards, but points out that if those measures are invalidated, an alternative course of action will be pursued that is even more detrimental to the interests of those who oppose the existing law. Why should the generosity which Quebec has seen fit to extend to some of its English-speaking citizens compel the abrogation of one of the Government's highest priorities, 60 the enchance- ment of the status of the French language? Thus, this response is not really a defense to the discrimination allegation at all. In the Belgian Linguisitic Case, the Government of Belgium included a similar argument in its presentation to the European Commission of Human Rights. The petitioners in the Belgian Case contended that the 159 In the Belgian Linguistic Case, the petitioners were unsuccessful in their attempt to establish that all parents had the right to choose the official language in which their children were to be educated. The petitioners prevailed, however, on the theory that by affording linguistic choice rights to some parents while denying such rights to others, the Belgian educational language law discriminated against the latter group, giving rise to an inconsis- tency between the law and Belgium's obligations under the European Convention on Human Rights. See Belgian Linguistic Case, [1968] Y.B. Eum. CONY. ON HUMAN RIGHTS, at 42. 160 WHITE PAPER, supra note 77, at 1,4. [Vol. 4:1