chagos-008Non-discrimination is a basic principle of international human rights law.  A frequently used definition of discrimination is set out in Article 1 (1) of the International Convention on the Elimination of All Forms of Racial Discrimination as follows,

‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment of exercise, on an equal footing, of human rights and fundamental freedoms in the political, economical, social, cultural or any other field of public life.'[i]

There is no requirement to demonstrate discriminatory intent.  The phrase “purpose or effect” refers to legislation and/or policies which may be textually neutral but are interpreted in a manner that results in discrimination.

Although the above definition only covers the practice of discrimination based on grounds of race, colour, descent and national or ethnic origin, any unjustifiable differential treatment based on sex, language, religion, political or other opinion, property, birth and other status can also amount to discrimination.[ii]  As pointed out by the Committee on Economic, Social and Cultural Rights (the CESCR), the inclusion of ‘other status’ indicates that ‘the list is not exhaustive and other grounds may be incorporated in this category.'[iii]  The grounds which may fall within the scope of the ‘other status’ category are still a matter of debate, although  the CESCR has stated that they include, but are not limited to disability, age, nationality, marital and family status, sexual orientation and gender identity, health status, place of residence, economic and social situation.[iv]

International human rights law prohibits both direct and indirect discrimination.  Direct discrimination involves treating people differently based on prohibited grounds without any objective reasons.  Indirect discrimination takes place when laws, policies or practices that appear to be neutral have a disproportionate impact on particular groups.[v]  The requirement to wear uniform to attend school, for instance, may not be appear to exclude any particular groups within society; yet it will often disproportionately affect minority and marginalised children, since they may not be able to afford to buy the school uniform.

Not all differential treatment amounts to discrimination.  Such treatment can be justified where it is objective and reasonable, that is, where it pursues a legitimate aim and has a reasonable relationship of proportionality between the means employed and the aim sought to be realised. For example, a policy excluding persons aged over 60 from being employed as airline pilots might on first examination appear to constitute age discrimination, yet it is probably justifiable if it is aimed at ensuring safety.

In other circumstances, different treatments are sometimes necessary to correct past injustice and to enhance equality. This ‘positive type of discrimination’ is called affirmative action which is not only permissible but, furthermore, an obligation of states.[vi]

Instruments protecting the right to non-discrimination

International instruments

Regional instruments:

Relevant jurisprudence

International cases:

Regional cases:

Domestic cases:

References

[i] International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature December 21, 1965, Art. 1 (1), 195 UNTS 660.

[ii] See Article 2 (1) of the International Covenant on Civil and Political Rights as well as Article 2 (2) of the International Covenant on Economic, Social and Cultural Rights.

[iii] General Comment No. 20 on Non-discrimination in economic, social and cultural rights, para. 15, Committee on Economic, Social and Cultural Rights, 42nd Sess., UN Doc. E/C.12/GC/20.

[iv] Id., para. 27 – 35.

[v] See Minority Rights Group’s Guide on Minority Rights and Litigation: A review of development in international and regional jurisprudence, p. 7, 2011.

[vi] General Comment No. 18 on Non-discrimination, para. 10, Human Rights Committee, 37th Sess., 10/11/1988.

External links:

Photo: Chagossians demostrating in London. Credit: Minority Rights Group.

Filed Under: Law
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