The general principle of equality and non-discrimination is a fundamental element of international human rights law.
A useful definition of non-discrimination is contained in Article 1(1) ILO 111, which provides that discrimination includes: ‘Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in the employment or occupation [?].’ Thus, the right to equal treatment requires that all persons be treated equally before the law, without discrimination. The principle of equality and non-discrimination guarantees that those in equal circumstances are dealt with equally in law and practice. However, it is important to stress that not every distinction or difference in treatment will amount to discrimination. In general international law, a violation of the principle of non-discrimination arises if: a) equal cases are treated in a different manner; b) a difference in treatment does not have an objective and reasonable justification; or c) if there is no proportionality between the aim sought and the means employed. These requirements have been expressly set out by international human rights supervisory bodies, including the European Court (see, e.g.,Marckx v. Belgium), the Inter-American Court (see, e.g,. Advisory Opinion No. 4, para. 57) and the Human Rights Committee (see, e.g., General Comment 18, para. 13 andJacobs v. Belgium).
The principle of equality can in certain circumstances require a state to take affirmative action in order to diminish or eliminate conditions that cause or help to perpetuate discrimination. The Human Rights Committee has clearly stated this obligation in General Comment 18, and the Committee on Economic, Social and Cultural Rights frequently refers to the duty to take affirmative action in its Concluding Observations. For further analysis of this principle, see I§3.B.
The right to equality and non-discrimination is recognised in Article 2 UDHR and is a cross-cutting issue of concern in different UN human rights instruments, such as Articles 2 and 26 ICCPR, Article 2(2) ICESCR, Article 2 CRC, Article 7 CMW and Article 5 CRPD . In addition, two of the major UN human rights treaties are established explicitly to prohibit discrimination, CERD on the ground of race and CEDAW on the ground of gender.
The principle of non-discrimination and equal treatment is also contained in regional instruments, such as Article 2 American Declaration, Article 24 ACHR and Articles 2 and 3 ACHPR. Despite the fact that the principle of non-discrimination is contained in all human rights instruments, only a few instruments expressly provide a definition of non-discrimination: Article 1(1) CERD, Article 1 CEDAW, Article 2 CRPD, Article 1(1) ILO 111 and Article 1(1) Convention against Discrimination in Education.
Human rights instruments prohibit discrimination on several grounds. Article 2 UDHR prohibits discrimination on the following 10 grounds: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth and other status. The same prohibited grounds are included in Article 2 ICESCR and Article 2 ICCPR. It is important to note that the grounds enumerated in these provisions are merely illustrative and not exhaustive. The term ‘other status’ has an open-ended meaning; some grounds not explicitly mentioned, such as age, gender, disability, nationality and sexual orientation could also be considered prohibited grounds.
Some human rights instruments, such as CERD and CEDAW, are aimed specifically at eliminating discrimination on specific grounds. In both cases, it is possible to submit individual complaints in case of violations of the rights enshrined therein. In the case of CEDAW, such a procedure was established by the Optional Protocol adopted in 1999. These two instruments expressly require states to take action to prevent and combat discrimination committed by third persons. For example, Article 2(d) CERD reads: ‘Each State party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, groups or organisation.’ Article 2(e) CEDAW requires states ‘to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise’.
Article 2 ICESCR/ICCPR contains a general non-discrimination clause that prohibits discrimination in the enjoyment of the rights in both Covenants. In addition, Article 3 of each instrument stresses the principle of equality between men and women. These provisions should be seen as an integral part of all substantive provisions contained in ICESCR/ICCPR; a measure that, in itself, is in conformity with the substantive provisions may nevertheless constitute a violation of those provisions when they are read in conjunction with Articles 2 and 3.
The general non-discrimination clauses of each Covenant are complemented by provisions prohibiting discrimination on specific grounds. For example, Article 7(a)(i) ICESCR guarantees equal conditions of work between men and women and requires equal remuneration for work of equal value; Article 7(c) ICESCR guarantees equal opportunity for everyone to be promoted in his/her employment; Article 10(3) prohibits any discrimination in the protection and assistance for all children and young persons; and Article 13(2)(c) guarantees equal accessibility in higher education. In the same vein, Article 23(4) ICCPR requires states to take adequate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution; and Article 24 ICCPR prohibits any discrimination against children based on race, colour, sex, language, religion, national or social origin, property or birth.
Sometimes the prohibition of discrimination included in human rights instruments provides for the protection that is not limited to the rights set forth in the instruments. For example, Article 26 ICCPR, Article 3 ACHPR, Article 24 ACHR and Protocol No. 12 ECHR establish free-standing rights to equality; their application is not confined to the rights contained in the Conventions.
The importance of the distinction may be illustrated by reference to Article 14 and to Protocol No. 12 ECHR. The protection provided by Article 14 with regard to equality and non-discrimination is limited as it prohibits discrimination only with regard to the ‘enjoyment of the rights and freedoms’ set forth in the Convention. In order to fill this gap, Protocol No. 12 sets out a free standing right to equality on a number of grounds, including sex, race, colour, language, religion, national or social origin and birth. Protocol No. 12 provides a general non-discrimination clause and thereby affords a scope of protection that extends beyond the ‘enjoyment of the rights and freedoms set forth in [the] Convention’ found in Article 14.
The meaning of the term ‘discrimination’ under Article 1 Protocol No. 12 ECHR is the same as that found in Article 14 ECHR; the list of prohibited grounds in both instruments is identical and non-exhaustive.
Article 1 Protocol 12 ECHR is important to mention as its additional scope of protection concerns cases where a person is discriminated against: a) in the enjoyment of any right specifically granted to an individual under national law; b) in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner; c) by a public authority in the exercise of discretionary power (for example, granting certain subsidies); and d) by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).
Several European Union Council Directives address discrimination, inter alia, 2000/78/EC which sets out measures for equal treatment in employment. It sets out an important principle: when there is a prima facie case of discrimination the burden of proof shifts to the state.
At the African level, it is notable that the non-discrimination provision contained in Article 2 ACHPR is the first substantive right listed, appearing before life. The ACHPR lists the same prohibited grounds as the ICCPR, although instead of ‘property’ the ACHPR prohibits discrimination on the ground of ‘fortune’. Like in the ICCPR and ICESCR, the list of prohibited grounds is not exhaustive. Article 2 ACHPR is complemented by Article 3 that provides a general requirement stating: ‘1) Every individual shall be equal before the law. 2) Every individual shall be entitled to equal protection of the law.’ Furthermore, Article 12(5) prohibits discrimination in the expulsion of non nationals; Article 18(3) prohibits discrimination against women and children; Article 18(4) prescribes special measures of protection for the elderly and the disabled; and Article 13 requires equal access of all persons to public property and services.
At the Inter-American level, Article 2 ADHR and Article 1(1) ACHR prohibit discrimination on numerous grounds, including ‘economic status’. Similar to the UN Covenants, the open-ended nature of the list is reinforced by the words ‘any other social conditions’. In addition, Article 24 ACHR provides a general prohibition of discrimination in the application of the law and in legal proceedings. Although this provision does not include a list of prohibited grounds of discrimination, the Inter- American Court has declared that the meaning of discrimination in Article 24 must be interpreted with reference to the list of prohibited grounds contained in Article 1(1) ACHR.
As the prohibition of discrimination is contained in most human rights instruments and their supervisory mechanisms are analysed elsewhere in the Handbook, this section will deal primarily with Article 26 ICCPR and Protocol 12 ECHR.
Because Article 26 ICCPR is of a free-standing nature, its application is not confined to the rights contained in the Covenant. According to the Human Rights Committee’s General Comment 18: ‘Article 26 provides that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protections against discrimination on any of the enumerated grounds’. Article 26 comes into play when there is a legislative provision or a state action or omission with a discriminatory impact on the enjoyment of the rights not set forth in the ICCPR. As the Human Rights Committee has noted:
When legislation is adopted by a State party, it must comply with the requirement of article 26 that its content should not be discriminatory. In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant. (General Comment 18, para. 12)
The Human Rights Committee has found violations of Article 26 on several grounds, such as sex (see, e.g. Zwaan-de Vries v. The Netherlands); nationality (see, e.g,. Gueye et al. v France); sexual orientation (see, e.g., Young v. Australia); religion (see, e.g., Hudoyberganova v. Uzbekistan); and age (see, e.g., Love et al. v. Australia). The jurisprudence of the Committee under Article 26 is rich and dynamic, covering a wide variety of discriminatory acts. For example, it has noted that: the exemption of only one group of conscientious objectors (Jehovah’s Witnesses) and the inapplicability of exemption for all others cannot be considered reasonable and was therefore discriminatory (see, e.g., Brinkhof v. The Netherlands); to impose much more onerous conditions for choosing the wife’s surname as family name than was the case for choosing the husband’s surname is unreasonable and entails a violation of Article 26 (seeMüller and Engelhard v. Namibia); if the state provides funds for religious education for one minority and not for other minorities in a comparable situation, it constitutes discrimination (Waldman v. Canada). In Prince v. South Africa the Committee held that the prohibition of the possession and use of cannabis affected all persons equally, including members of all religious movements who believe in the beneficial nature of drugs. The Committee found that the prohibition was based on objective and reasonable grounds and concluded that the failure of the state to provide an exception for Rastafarians did not violate Article 26.
It is notable that the Committee has applied Article 26 in relation to the enjoyment of economic, social and cultural rights in many cases. This is of great significance, as until the entry into force of the Optional Protocol to the ICESCR (opened for signature in March 2009) there is no individual complaints mechanism in place for violations of economic, social and cultural rights under UN treaties. In this regard, it is important to highlight the landmark case of Zwaan-de Vries v. The Netherlands. In this case, the state concerned argued that Article 26 overlaps with the provision of Article 2(2) ICESCR. It argued that if Article 2(2) (non-discrimination clause) and Article 9 (right to social security) of the ICESCR were not justiciable within that Covenant (in the sense that they were not subject to the same kind of petition procedure as available under the ICCPR), then they should not be rendered justiciable by means of an interpretation which imports them into Article 26 ICCPR. By refusing to accept this argument, the Committee implicitly rejected the notion that what is protected within the ICESCR cannot be protected by the ICCPR. On the contrary, the Committee held that ‘the provisions of Article 2 of the ICESCR do not detract from the full application of Article 26 of the ICCPR’.
Therefore, legislative measures setting out unreasonable distinctions between individuals regarding the economic, social and cultural rights set forth in the Covenant constitute a violation of Article 26 ICCPR and if a state has ratified the First Optional Protocol to the ICCPR, a victim of discrimination has a right to submit a complaint to the Human Rights Committee. Several important aspects of the application of Article 26 ICCPR should be noted here. First, according to Article 26 ICCPR, states parties are obliged to establish judicial remedies in the case of discrimination occurring in the public and even in the private sphere. As the Human Rights Committee has noted:
The Committee observes that under Articles 2 and 26 of the Covenant the State Party is under an obligation to ensure that all individuals within its territory and subject to its jurisdiction are free from discrimination, and consequently the courts of States Parties are under an obligation to protect individuals against discrimination, whether this occurs within the public sphere or among private parties in the quasi-public sector of, for example, employment [?] (Nahlik et al. v. Austria).
The application of Article 26 has served to protect individuals from discrimination in the enjoyment of a variety of economic, social and cultural rights. Of the numerous examples, mention should be made of Waldman v. Canada, where the Committee stated that ‘the Covenant does not oblige States Parties to fund schools which are established on a religious basis. However, if a State party chooses to provide public funding to religious schools, it should make this funding available without discrimination’. In Garcia Pons v. Spain, it was stated that ‘although the right to social security is not protected as such, in the International Covenant on Civil and Political Rights, issues under the Covenant may nonetheless arise if the principle of equality contained in Articles 14 and 26 of the Covenant is violated.’
At the regional level, the notion of discrimination has been interpreted consistently by the European Court in its case-law with regard to Article 14 ECHR. In particular, the Court has made it clear in its case-law that not every distinction or difference of treatment amounts to discrimination. As the Court has stated, or example, in Abdulaziz, Cabales and Balkandali v. The United Kingdom, a difference of treatment is discriminatory if it ‘has no objective and reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’. The Court has also found that a certain margin of appreciation is allowed when national authorities are assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and the background of the case (see, e.g., Rasmussen v. Denmark). InSidabras and D?iautas v. Lithuania, the Court held that a ban on former KGB officers seeking employment in various private-sector spheres constituted a disproportionate measure, even having regard to the legitimate aims (protection of national security, public order, the economic well-being of the country and the rights and freedoms of others) pursued by that ban. Marital status has been found to be an example of ‘other status’ for the purposes of Article 14 (PM v. The United Kingdom).
In addition, it is important to mention that the Council of Europe has established the European Commission against Racism and Intolerance (ECRI) and the Steering Committee for Equality between Women and Men (CDEG) (see II§2.B).
The African Commission has also dealt with the prohibition of discrimination. For example, in a case against Mauritania, it held that racial discrimination against black Mauritanians violated ‘the very spirit of the African Charter and of the letter of its Article 2’ (Malawi African Association, Amnesty International, Ms. Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit and Association Mauritanienne des Droits de l’Homme v. Mauritania, Communications 54/91, 61/91, 164/97-196/97 and 210/98). In a case against the Republic of Guinea, an inflammatory speech by the President of the country led to human rights violations suffered by Sierra Leonean refugees. The Commission ruled that the remarks constituted impermissible discrimination on grounds of nationality, and had led to numerous violations of the ACHPR including the failure to ensure its application, discriminatory, cruel and inhuman treatment, arbitrary detention, arbitrary execution, deprivation of the right to fair trial, mass expulsions and deprivation of property (African Institute for Human Rights and Development v. Republic of Guinea, Communication 249/2002; see also Zimbabwe Human Rights NGO Forum v. Zimbabwe, Communication 245/2002).
The Inter-American Court has dealt with the principle of equality and non-discrimination primarily in its advisory opinions. Particularly relevant are Advisory Opinion No. 4 on ‘Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica’ and Advisory Opinion No. 18 on ‘Juridical Conditions and Rights of the Undocumented Migrants’. In Opinion No. 18 the Court ruled that states may not ‘subordinate or condition observance of the principle of equality before the law and non-discrimination to achieving their public policy goals, whatever these may be, including those of a migratory character.’
The Inter-American Court has held that ‘Equality springs directly from the oneness of the human family and is linked to the essential dignity of the individual’. Nonetheless, it has recognised that ‘not all differences in treatment are in themselves offensive to human dignity’. The Court has followed the general principles of international law by which ‘no discrimination exists if the difference in treatment has a legitimate purpose and it does not lead to situations which are contrary to justice, to reason or to the nature of things’. The Inter-American Commission has also dealt with the principle of equality and non-discrimination, in particular on the ground of sex. For example, in Morales de Sierra v. Guatemala (Case 11.625), the Commission found that the inability of married women to represent their own property in courts was a gender- based discrimination in violation of Article 24 ACHR. In Yatama v. Nicaragua the Court ruled that as a result of the exclusion of the Yatama (indigenous peoples party) candidates from the electoral process and its effect on the civil rights of indigenous peoples, Nicaragua had violated the right to equal protection before the law as well as Articles 8, 23 and 25 ACHR. In Yean and Bosico v. The Dominican Republic, concerning two girls of Haitian descent who were denied the right to nationality and education because of their ethnicity, the Court found, inter alia, a violation of the prohibition of discrimination in relation to access to nationality under the American Convention. The Court ordered the state to compensate the victims financially, publicly declare its responsibility for violating their right to education, and implement substantive structural changes in its civil records system.