Non-discrimination

Non-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]

Chagossians demonstrating in London / Minority Rights Group

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

• Article 1 and 2, Universal Declaration of Human Rights
• Articles 2, 3 and 26, International Covenant on Civil and Political Rights
• General Comment No. 18 on Non-discrimination, Human Rights Committee
• Paragraphs 5 and 6, General Comment No. 23 on Article 27 (The Rights of Minorities), Human Rights Committee
• Articles 2 and 3, International Covenant on Economic Social and Cultural Rights
• General Comment No. 20 on Non-discrimination in economic, social and cultural rights, Committee on Economic, Social and Cultural Rights
• Convention on the Elimination of All Forms of Racial Discrimination
• Convention on the Elimination of All Forms of Discrimination against Women 
• Article 2, Convention on the Rights of the Child
• Article 1(1) and Part II Article 7, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
• Articles 3(b) and 5, Convention on the Rights of Persons with Disabilities
• ILO Recommendation concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, No. 90
• ILO Equal Remuneration Convention, No. 100
• Articles 1, 2 and 4, ILO Discrimination (Employment and Occupation) Convention, No. 111
• Article 1, ILO Employment Policy Convention, No.122
• Articles 2, 3, 20, and 24, ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, No. 169
• UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities
• UNESCO Universal Declaration on Cultural Diversity
• Article 2, Resolution 3447 (XXX) on the Declaration on the Rights of Disabled Persons, General Assembly
• Article 4, UN Millennium Declaration

Regional instruments

• Article 2, African Charter on Human and Peoples’ Rights
• Article 2, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
• Articles 3, 17 and 25, African Charter on the Rights and Welfare of the Child
• Articles 13, 20, 21 and 39, Treaty Establishing the European Community
• Charter of Fundamental Rights of the European Union
• Article 14, European Convention on Human Rights
• Article 1, Protocol No. 12 to the European Convention on Human Rights
• Explanatory Report to Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe
• Preamble, Articles 20, 21, 24 and E of Part V, European Social Charter
• Framework Convention for the Protection of National Minorities
• Paragraph 1 of the Preamble and Article II, American Declaration of the Rights and Duties of Man
• Article 1, American Convention on Human Rights (Pact of San Jose)
• Article 3, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador)
• Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities

Relevant jurisprudence

International cases

• V.S. v Slovakia, Committee on the Elimination of Racial Discrimination, 2014
• Raiham v Latvia, Human Rights Committee, 2007
• X v Colombia, Human Rights Committee, 2007
• Mohammed Hassan Gelle v Denmark, Committee on the Elimination of Racial Discrimination, 2004
• Kamal Quereshi v Denmark, Committee on the Elimination of Racial Discrimination, 2003
• The Jewish community of Oslo et al. v Norway, Committee on the Elimination of Racial Discrimination, 2003
• Miroslav Blazek et al. v Czech Republic, Human Rights Committee, 1999
• Lacko v Slovak Republic, Committee on the Elimination of All Forms of Racial Discrimination, 1998.
• F. H. Zwaan-de Vries v. The Netherlands, Human Rights Committee, 1990

Regional cases

• Partie die Friesen v. Germany, European Court of Human Rights, 2016
• Cyprus v Turkey, European Court of Human Rights, 2014
• Kiyutin v. Russia, European Court of Human Rights, 2011
• European Roma Rights Centre v Portugal, European Committee of Social Rights, 2011
• Xakmok Kasek Indigenous Community v Paraguay, Inter-American Court of Human Rights, 2010
• Sejdic and Finci v Bosnia and Herzegovina, European Court of Human Rights, 2009
• Cobzaru v Romania, European Court of Human Rights, 2007
• Mangold v Helm, European Court of Justice, 2005
• Autism Europe v. France, European Committee on Social Rights, 2003
• Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion of the Inter-American Court of Human Rights, 2003
• Dahlab v Switzerland, European Court of Human Rights, 2001
• Coster v United Kingdom, European Court of Human Rights, 2001
• Commission of the European Communities v Italian Republic, European Court of Justice, 2001
• Maria Eugenia Morales de Sierra v Guatemala, Inter-American Court of Human Rights, 2001
• Purohit and Moore v Gambia, African Commission on Human and Peoples’ Rights, 2001
• Marcelino Hanriquez et al v Argentina, Inter-American Court of Human Rights, 2000
• Sirdar v Secretary of State for Defence, European Court of Justice, 1999
• Larissis and others v Greece, European Court of Human Rights, 1998
• Kreil v Germany, European Court of Justice, 1998
• Abrahamsson and Anderson v Fogelqvist, European Court of Justice, 1998
• Kaba v Home Department, European Court of Justice, 1998
• Malawi Africa Association and Others v Mauritania, African Commission for Human and People’s Rights, 1998
• Legal Resources Foundation v Zambia, African Commission of Human and People’s Rights, 1998
• Seymour-Smith and Perez, European Court of Justice, 1997
• Commission of the European Communities v France, European Court of Justice, 1997
• Commissioner of the European Communities v Greece, European Court of Justice, 1996
• H. Meints v Minister, European Court of Justice, 1996
• Organisation Mondiale Contre la Torture v Rwanda, African Commission on Human and People’s Rights, 1996
• Hill and Stapleton v Revenue Commissioners, European Court of Justice, 1995
• CNAVTS v Evelyne Thibault, European Court of Justice, 1995
• Hugh Jordan v UK, European Court of Human Rights, 1994
• Commission of the European Communities v Kingdom of Belgium, European Court of Justice 1994
• John O’Flynn v Adjudication Officer, European Court of Justice, 1994
• Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman, European Court of Justice, 1993
• Carole Louise Webb v EMO Air Cargo (UK) Ltd, European Court of Justice, 1993
• Helga Nimz v Freie und Hansestadt Hamburg, European Court of Justie, 1989
• Elisabeth Dekker v (VJV-Centrum) Plus, European Court of Justice, 1988
• Barber v Guardian Royal Exchange, European Court of Justice, 1988
• Ingrid Rinner-Kühn v FWW Spezial-Gebäudereinigung GmbH & Co, European Court of Justice, 1989
• Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica (Advisory Opinion), Inter-American Court of Human Rights, 1984
• Defrenne v Sabena, European Court of Justice, 1977
• Sotgiu v Deutsche Bundespost, European Court of Justice, 1974
• Commission of the European Communities v France, European Court of Justice, 1974
• B.N.O. Walrave and L.J.N. Koch v Association Union Cycliste Internationale, European Court of Justice, 1974

Domestic cases

• Columbia Constitutional Court T-291/09, Constitutional Court of Colombia, 2009
• Hadijatou Mani v Niger, Community Court of Justice of the Economic Community of West African States, 2008

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

• European Commission Tackling Discrimination
• The Information Campaign ‘For Diversity – Against Discrimination’