Discrimination

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 SCOPE AND STATUS OF THE RIGHT:

The 1966 International Covenant on Civil & Political Rights (ICCPR): Art 26 contains a free standing right that explicitly requires legislation prohibiting discrimination on 'any ground such as race, colour, sex, language, political or other opinion, national or social origin, property, birth or other status'. Art 26 does not specify limitations (…) It prohibits discrimination in law or in fact in any field regulated and protected by public authorities (In the words of the Human Rights Committee (HCR), (General comment 18, paragraph 12)). Art 2(1) not only obligates states to protect but also prohibits any discrimination under the law guarantee to all people equal and effective protection.

1950 European Convention on Human Rights (ECHR): Art 14, prohibits discrimination in connection with the enjoyment of the rights contained in the Convention.

1966 International Covenant on Economic, Social & Cultural Rights (ICESCR): Art 2 also prohibits discrimination by stating that the present Covenant will be exercised without discrimination of any kind as to race, color, sex… etc.

According to the International Convention on the Elimination of All forms of Racial Discrimination, 'Racial discrimination', means any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

In the field of employment, human rights violations essentially appear under the shape of Discrimination. Discriminatory treatment, essentially based on ethnic origin and political opinion, is the most balant type of violation in the field of employment.

According to the 1958 Discrimination (Employment & Occupation) Convention Art 1(a), the term discrimination means; 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 employment or occupation.

The 1979 Convention on The Elimination of All Forms of Discrimination Against Women (CEDAW) In Art 1, the term "Discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. CEDAW entails a positive obligation to eliminate discrimination carried out by 'any person, organization or enterprise'. Thus the Convention requires state parties to tackle discrimination in the private lives and relationships of their citizens, and not simply public sector activities.

Discrimination in Education: Art 10 of CEDAW, regulates measures to eliminate discrimination based on gender in the educational field, 'Separate but equal' here is not prohibited, but has to be equal (Art10(b)) 'access to the same curricula, the same examinations, teaching staff qualifications of the same standard and school premises and equipment of the same quality'. Also 10.c obligates the state to take all appropriate measures to ensure 'the elimination of any stereotyped concept of the roles of men and women at all levels in all forms of education by encouraging co-education'. The 1960 UNESCO Convention against Discrimination in Education. Preamble links education to other rights in UDHR and prohibits discrimination AND promotes equal opportunity for all.

· Parasitic vs. free-standing right: ECHR and ICCPR

The UN definition refers to the non-discrimination in the enjoyment "of all rights and freedoms". This is different to the non-discrimination provision of the ECHR which is limited to "the enjoyment of the rights and freedoms set forth in this Convention". The ECHR provision is sometimes said to be "parasitic", while the ICCPR provision is "free-standing".

Under the ECHR, the discriminatory issue has to fall into the ambit of one of the rights protected by the Convention, and then the question of discrimination can be addressed. The Court does not have to go so far as to find a breach of another article first, and has found breaches of article 14 in the absence of breaches of another Convention provision.

Under the ICCPR and, it can be inferred, the other UN treaties, there is no need for the discrimination alleged to fall within the ambit of another Convention right. The Human Rights Committee has explained that discrimination is prohibited "in law or in fact in any field regulated and protected by public authorities". The ICCPR provision is thus a dynamic tool that can actually create new rights: once a particular protection is granted to one group, the ICCPR provides that this benefit must be allocated to all. This is particularly useful in the field of social and economic rights, which are subject to progressive implementation. Article 26 can be used to set minimum standards of social welfare provision, for example. In Broeks vs. Netherlands the Human Rights Committee held that article 26 "does not of itself contain any obligation with respect to matters that may be provided for by legislation … however, when such legislation is adopted in the exercise of a State's sovereign power, then such legislation must comply with article 26 of the Covenant."

· Grounds

The list of grounds on which discrimination is prohibited is open-ended. Discrimination is illegal on the grounds given as examples (Immutable characteristics, e.g. sex or race, and acquired characteristics, e.g. political opinion), or on the basis of "other status". Thus, the list is not exhaustive and the "other status" provision could be described as the "catch all." For example, the Strasbourg organs have found that "other status" covers illegitimacy, marital status, professional status and in BiH the OP has found it to cover those who left during the war.

This is equally applicable to the general UN instruments and to the ECHR. "Other status" must be a status analogous to the listed grounds, however: the individual complaining of discrimination must be a member of an identifiable group, treated less favourably than members of a different group. It would not be enough to claim that you were discriminated against because somebody simply didn't like you.

It is not always necessary to define which category the applicant falls within. This has been particularly evidenced by the sexual orientation cases in Strasbourg where it has not been determined whether it falls to be considered under sex or other status. The basic guideline is that if there is a definable group which is not identified by an immutable characteristic then it could fall under "other status."

It is not always necessary to define which category the applicant falls within. This has been particularly evidenced by the sexual orientation cases in Strasbourg where it has not been determined whether it falls to be considered under sex or other status. The basic guideline is that if there is a definable group which is not identified by an immutable characteristic then it could fall under "other status."

· Purpose or effect (Indirect Discrimination)

No intention to discriminate is required. The definition makes clear that any action which has the "purpose or effect" described is prohibited. Acts which have a discriminatory effect without a discriminatory purpose are known as "indirect discrimination" or acts having an "adverse impact" on a particular group. This approach has also been taken by the European Court in the Belgian Linguistic case.

Indirect Discrimination is not specifically mentioned in the International Instruments but has been referred to by the Human Rights Committee as falling within the ambit of the various non-discrimination clauses of the ICCPR.


· Affirmative action and positive discrimination

The obligation of the state to take action to protect against private acts of discrimination which affect the enjoyment of Convention rights could embrace matters like membership of private associations or the right to be freed from privately imposed discriminatory fetters, like restrictive covenants on property rights.

Under the ECHR, according to article 14, the enjoyment of the rights and freedoms in the Convention "shall be secured" without discrimination. This replicates the language of the guarantee in Article 1 and emphasises that states may have positive obligations under Article 14 as well as negative obligation not to discriminate in its official acts.

The first kind of positive obligation a state may have is the duty to ensure effective enjoyment of the non- discrimination protection. There is no express positive obligation under Article 14 so any obligation of this kind must be implied. The judgement in the Belgian Linguistic case makes it clear that positive differentiation is not incompatible with Article 14, although it does not decide whether some positive steps may be a matter of obligation.

In Airey v. Ireland, it was the applicant's claim that she was entitled to positive discrimination in her favour to enable her to enjoy an effectively equal right of access to the courts as was available to people who, unlike her, could afford to employ a barrister. The Court's answer was to find the existence of the positive obligation under Article 6 (1) and, in the light of having done so, to decide that it was not necessary to pursue the claim under Article 14. The pattern is for the Court to absorb a positive discrimination claim in the finding that there is a positive obligation in the relevant substantive positive obligation. It is an approach which comports with Article 14 as a protection against discrimination rather than as a guarantee of equality.

The inference to be drawn from Young, James and Webster v UK and Sigurjonsson v Iceland is that a state does not have a duty to prevent private action which compels a person to be a member of an association. On the other hand, there cannot, in general, be a duty to compel a private club to accept a member because that would violate the freedom of association of the club. Yet, if the reason for the exclusion were discriminatory, it is arguable that the state should have a positive duty to disallow it. Like other positive obligations, that duty will be qualified. The egregiousness of the badge of differentiation, the "closeness: of the society, the impact of the decision on the individual (membership of a trade union might be more important that participation in a social club), and the rationality of the exclusion (restricting political association to supporters, churches to believers) will all weigh in assessing the compliance with a positive duty with respect to private action once one is established.

It has been considered already that a state might justify as having an objective an reasonable justification action taken against some kinds of expression or some kinds of association (without necessarily relying on Article 14 or Article 17). The Convention may impose some positive obligations on states to take action against expression which gratuitously insults religious feelings (Otto- Preminger- Institut v Austria A 295- A para 49 (1994)).

It remains to be seen whether a like obligation can be found in other substantive articles to restrain racially inflammatory speech or associations (Cf article 20 (1), ICCPR and Article 4, Racial Discrimination Convention. On the power to limit race hate speech, see the Jersild case, above, p.374). As a strong European consensus about the unacceptability of such imply into Article 14 a positive obligation on the state to take action against private speech or action to ensure the effective enjoyment of other Convention rights of those against whom the sentiments were directed (Such other Convention Rights include the rights in Articles 10 and 11).

Finally, although it will concededly be a rare example, the Commission has envisaged that there may be circumstances where there is a positive obligation on the state to secure access to private facilities, ie a positive obligation to impose and enforce a positive duty on private individuals. An example is the suggestion that, while there was in general no right of access under Article 10 for private persons to broadcasting facilities, there might be in connection with article 14, "if one party was excluded from broadcasting facilities at election time while other parties were given broadcasting time (Cf X and Assn Z v UK No 4515/70, 38 CD 86 at 88 (1971). In this application, the access envisaged was to public broadcasting. What is considered here is access to private stations).

In the words of the HRC (General comment 18, para 12): "While Art 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, art 26 does not specify limitations […] It prohibits discrimination in law or in fact in any field regulated and protected by public authorities, as illustrated in Broeks v Netherlands. In this case, a violation was found because the state did not extend the same social security protection to married and unmarried women. The HRC held that though the ICCPR does not impose obligation to maintain social security system, once in place, the system must be non-discriminatory.

General Comment 4 on Art 3, states that the action required by this art cannot be limited to legislation as it also requires affirmative action. Also, the HRC considers that the positive action required by this article will have an inevitable impact on areas not necessarily covered by the ICCPR. In other words, even though the article on the face of it is related only to the rights enumerated in the Covenant, the HRC considers that the obligations it entails are broader.

General comment 18, para 13, states that 'not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective, and if the aim is to achieve a purpose which is legitimate under the Covenant. The comment gives as examples of 'legit' differential treatment, the prohibition of imposing the death penalty on underaged or pregnant women (purpose supposedly protection of vulnerable groups). As a further example, the HRC states that the 'principle of equality sometimes requires States to take affirmative action'. In other words, the non-discrimination clauses may REQUIRE differential action (affirmative action), until the situation is equalised. [whoever is to decide that that has taken place!]

Affirmative action also considered necessary by CEDAW art. 4. The scope of prohibition on discrimination based on gender can seen to be 'regulated' by the focus on 'protection of women' explicit in several documents (eg. ILO Conventions prohibiting women from doing night work or certain other work), and also by the focus on women as child bearers and carers. The particular problem in this regard is the protective measures for pregnant women, etc., that may treat women as only mothers, as suggested by the preamble to the 1974 Declaration on the Protection of Women and Children in Emergeny and Armed Conflict: 'Conscious of its responsibility for the destiny of the rising generation and for the destiny of mothers, who play an important role in society, in the family and particularly in the upbringing of children' [PLEASE!]. Hevener notes that CEDAW has meant a great improvement with regard to this, insofar as it limits protective measures to pregnant women and explicitly requires the states to review their protective legislation periodically (Art 11(3)).

The preamble of CEDAW stresses that 'the role of women in procreation should not be a basis from discrimination', and that 'a change in the traditional role of men as well as the role of women in society and in the family is needed'. So, the scope of the prohibition potentially covers structural changes, which is underlined by the provisions of Art 5 'shall take all appropriate measures to modify the social and cultural patterns of conduct' in order to eliminate prejudices and customs. This art may come in conflict with freedom to thought and religion, and to manifest religion. In contrast to CERD, which explicitly condemns and prohibit racial hate-speech, CEDAW does not prohibit gender discriminatory speech (which could come from the church…) Just something to think about.

CEDAW covers CPRs as well as ESCRs. It goes into much detail about equality with regard to civil rights and standing before the law in civil matters, possibly because this is where a lot of discrimination takes place, and is particularly adamant in pointing out the irrelevance of a person's civil status in terms of his/her rights. CEDAW entails a positive obligation to eliminate discrimination carried out by 'any person, organization or enterprise'.

Art 10 regulates measures to eliminate discrimination based on gender in the educational field. 'Separate but equal' here is not prohibited, but has to be equal (Art 10(b) 'access to the same curricula, the same examinations, teaching staff with qualificaitons of the same standard and school premises and equipment of the same quality'. Also 10.c. obliges the state to 'take all appropriate measures to ensure 'the elimination of any stereotyped concept of the roles of men and women at all levels in all forms of education by Positive discrimination involves "programmes designed to favour or promote the interest of disadvantaged groups." A state may engage in reverse discrimination within the ambit of Convention right without being in breach of article 14.

The Court acknowledged this in the Belgium Linguistic case when it noted generally that not all instances of differential treatment are unacceptable and that "certain legal inequalities tend only to correct factual inequalities." Thus a protected quota of university student places for members of a particular racial group would be discrimination within the ambit of a Convention right (the right to education, Article 2 of the First Protocol), but would not be in breach of Article 14 if it had the "objective and reasonable justification" of increasing the disproportionately low percentage of members of that disadvantaged group in the university student population (Cf DG and DW Lindsay v UK No 11089/84, 49 DR 181 at 190- 191 (1986) (a tax advantage for married women, which fell within the ambit of the right to property, article 1, First Protocol, had " and objective and reasonable justification in the aim of providing positive discrimination" to encourage married women back to work). However, given the parasitic nature of Article 14, there can be no legal obligation on the part of states derived from the Article to engage in a policy or act of reverse discrimination; any such obligation would stem from a positive obligation in another article guaranteeing a Convention right. As noted above, in the Airey case the Court held that the applicant was entitled to legal aid on the basis of Article 6 and did not examine her Article claim. If there was an Article 14 claim on the facts of that case, it stemmed from the positive obligation in Article 6 to provide a "fair hearing" coupled with article 14, not from any reverse discrimination claim based upon Article 14 by itself.

Positive obligations of a reverse discrimination kind commonly exist in European law in the form of various kinds of assistance for the poor, although legal aid is exceptional in falling within the ambit of a Convention right. Social welfare benefits, for example, would not. The absence of a widespread policy of reverse discrimination in European national law in key areas such as racial and sex discrimination suggests that reverse discrimination obligations in these two areas would not be easily read into the few Convention rights that are relevant.


· Identifying a possible discriminatory situation (using standards of law and evidential checklists)

The basic approach is to compare "like with like" and then to enter into the "but for" test i.e. but for the sex of the applicant she would not have received less favourable treatment. It is worth recalling that recognition of discrimination is notoriously difficult and is not that often mentioned by applicants themselves. Hence there is an obvious need for very specific questioning in an attempt to gain an overall impression of the circumstances that are being described.


· Test to be applied in deciding whether Article 14 ECHR can be raised:

· Does the alleged discrimination fall within the sphere of a protected right?

Art. 14 only applies in respect of the "enjoyment of the rights and freedoms set forth" in the Convention. The standard formula now used is that stated in the Abdulaziz, Cabales and Balkandali case (Abdulaziz, Cabales and Balkandali v. UK, Judgment of 28th May 1985, Series A, No. 94; (1985) 7 EHRR 471):

"According to the Court's established case-law, Article 14(art. 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 (art. 14) does not necessarily presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter"

It will not always be easy to see where the boundary lies between a violation occuring in conjunction with a substantive provision and one which falls outside the ambit of a substantive provision (See also: Belgian Linguistics case; Family K and W v Netherlands; Inze v Austria).

· Is there a violation of a substantive provision?

If a violation is found, the strasbourg machinery not always consider separately the allegation of a violation under Article 14 in conjunction with the substantive provision. So, in the Dudgeon case (Dudgeon v UK, Judgment of 22 Oct. 1981, Series A, No. 45; (1982) 4 EHRR 149), the Court considered the complaint of a violation of Article 8 in respect of the legislation on homosexual conduct in Northern Ireland and found a violation. In addition the applicant complained that there was discrimination arising in particular from the different ages of consent for different forms of sexual relations. The Court said:

"Where a substantive Article of the Convention has been invoked both on its own and together with Article 14 (art. 14) and a separate breach has been found of the substantive Article, it is not generally necessary for the Court also to examine the case under Article 14(art. 14), though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case".

· Is there a Difference in Treatment?

In the Lithgow case (See also: Belgian Linguistics case; Family K and W v Netherlands; Inze v Austria ), the ECHR recalled that Article 14 (art. 14) does not forbid every difference in treatment in the exercise of the rights and freedoms recognised by the Convention (Dudgeon v UK, Judgment of 22 Oct. 1981, Series A, No. 45; (1982) 4 EHRR 149.). It safeguards persons (including legal persons) who are "placed in analogous situations" against discriminatory differences of treatment; and, for the purposes of Article 14 (art. 14), 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" (see, amongst many authorities, the Rasmussen judgment of 28 November 1984, Series A no. 87, p. 13, para. 35, and p. 14, para. 38.). Furthermore, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law; the scope of this margin will vary according to the circumstances, the subject-matter and its background.

The applicant will need to identify the group which is treated differently. This will involve considerations of whether the situations are comparable. In the Fredin case: The Court recalls that Article 14 (art. 14) affords protection against discrimination, that is treating differently, without an objective and reasonable justification, persons in "relevantly" similar situations. For a claim of violation of this Article to succeed, it has therefore to be established, inter alia, that the situation of the alleged victim can be considered similar to that of persons who have been better treated (Fredin v. Sweden, Judgment of 18 Feb. 1991, Series A, No. 192; (1991) 13 EHRR 784).

The problem of comparing like with like is illustrated in the Van der Mussele case (Van der Mussele v. Belgium, Jugdment of 23 Nov. 1983, Series A, No 70; (1984) 6 EHRR 163), where the applicant argued unsuccessfully that the comparators were different professional groups. The Court considered that there were fundamental differences in the regulation of different professions that precluded their use as comparators in the case. In Abdulaziz the group was married men as against married women in an analogous position, in Dudgeon, homosexual men as against lesbians and heterosexuals.

· Does the different treatment pursue a legitimate aim?

In the Lithgow case, the Court said: for the purposes of Article 14 (art. 14), a difference of treatment is discriminatory if it "has no objective and reasonable justification", that is, if it does not pursue a "legitimate aim". In Dudgeon it was for the protection of minors from male proselytizing. In Sutherland the same. In Abdulaziz the protection of the labour market. The justification cannot contain within it the elements of discrimination, in other words it is not permissible to argue, as they did in Abdulaziz, that it was for the protection of public order. To refuse someone access to education on the basis that they would be harassed by fellow pupils would not be allowable. This is also the mechanism for allowing positive discrimination to be argued.

· Are the means employed proportionate to the legitimate aim?

If there is an ostensibly objective justification then it must be proportionate to the discrimination that ensues. For example, it is justifiable for the UK to have an immigration policy, and to seek protection of the job market for nationals, but not when that clearly leads to discrimination on grounds of sex.

· Conclusion:

It is vitally important that this is fully explored in each case with the following questions: Is the complainant a member of a definable group? Is there a difference of treatment between the plaintiff and those not members of the group? Are the comparators in an analogous position? Is there an objective justification for that difference in treatment? Is the difference in treatment proportional to the legitimate aim?

General Comments/Recommendations treaty bodies:

Committee on the Elimination of Racial Discrimination, General Recommendation XIV on Article 1, of the Convention, (Forty-second session, 1993), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 67 (1994).*

1. Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes a basic principle in the protection of human rights. The Committee wishes to draw the attention of States parties to certain features of the definition of racial discrimination in article 1, paragraph 1, of the International Convention on the Elimination of All Forms of Racial Discrimination. It is of the opinion that the words "based on" do not bear any meaning different from "on the grounds of" in preambular paragraph 7. A distinction is contrary to the Convention if it has either the purpose or the effect of impairing particular rights and freedoms This is confirmed by the obligation placed upon States parties by article 2, paragraph 1 (c), to nullify any law or practice which has the effect of creating or perpetuating racial discrimination.

2. The Committee observes that a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of article 1, paragraph 4, of the Convention. In considering the criteria that may have been employed, the Committee will acknowledge that particular actions may have varied purposes. In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.

3. Article 1, paragraph 1, of the Convention also refers to the political, economic, social and cultural fields; the related rights and freedoms are set up in article 5.
· Contained in document A/48/18.


The Committee on the Elimination of Racial Discrimination, General Recommendation XXII (49), adopted at the 1175th meeting, on 16 August 1996

Conscious of the fact that foreign military, non-military and/or ethnic conflicts have resulted in massive flows of refugees and the displacement of persons on the basis of ethnic criteria in many parts of the world,

Considering that the Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Racial Discrimination proclaim that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour, descent or national or ethnic origin,

Recalling the 1951 Convention and the 1967 Protocol relating to the status of refugees as the main source of the international system for the protection of refugees in general,

1. Draws the attention of States Parties to article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination as well as Committee's General Recommendation XX (48) on article 5, and reiterates that the Convention obliges States Parties to prohibit and eliminate racial discrimination in the enjoyment of civil, political, economic, social and cultural rights and freedoms,

2. Emphasizes in this respect that:
a. all such refugees and displaced persons have the right freely to return to their homes of origin under conditions of safety.
b. States parties are obliged to ensure that the return of such refugees and displaced persons is voluntary and to observe the
principle of non-refoulement and non-expulsion of refugees.
c. all such refugees and displaced persons have, after their return to their homes of origin, the right to have restored to them property of which they were deprived in the course of the conflict and to be compensated appropriately for any such property that cannot be restored to them. Any commitments or statements relating to such property made under duress are null and void.
d. all such refugees and displaced persons have, after their return to their homes of origin, the right to participate fully and equally in public affairs at all levels and to have equal access to public services and to receive rehabilitation assistance.


Human Rights Committee, General Comment 18, Non-discrimination (Thirty-seventh session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 26 (1994).

1 Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights. Thus, article 2, paragraph 1, of the International Covenant on Civil and Political Rights obligates each State party to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognized in the Covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 not only entitles all persons to equality before the law as well as equal protection of the law but also prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Indeed, the principle of non-discrimination is so basic that article 3 obligates each State party to ensure the equal right of men and women to the enjoyment of the rights set forth in the Covenant. While article 4, paragraph 1, allows States parties to take measures derogating from certain obligations under the Covenant in time of public emergency, the same article requires, inter alia, that those measures should not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Furthermore, article 20, paragraph 2, obligates States parties to prohibit, by law, any advocacy of national, racial or religious hatred which constitutes incitement to discrimination.

3. Because of their basic and general character, the principle of non-discrimination as well as that of equality before the law and equal protection of the law are sometimes expressly referred to in articles relating to particular categories of human rights. Article 14, paragraph 1, provides that all persons shall be equal before the courts and tribunals, and paragraph 3 of the same article provides that, in the determination of any criminal charge against him, everyone shall be entitled, in full equality, to the minimum guarantees enumerated in subparagraphs (a) to (g) of paragraph 3. Similarly, article 25 provides for the equal participation in public life of all citizens, without any of the distinctions mentioned in article 2.

4. It is for the States parties to determine appropriate measures to implement the relevant provisions. However, the Committee is to be informed about the nature of such measures and their conformity with the principles of non-discrimination and equality before the law and equal protection of the law.

5. The Committee wishes to draw the attention of States parties to the fact that the Covenant sometimes expressly requires them to take measures to guarantee the equality of rights of the persons concerned. For example, article 23, paragraph 4, stipulates that States parties shall take appropriate steps to ensure equality of rights as well as responsibilities of spouses as to marriage, during marriage and at its dissolution. Such steps may take the form of legislative, administrative or other measures, but it is a positive duty of States parties to make certain that spouses have equal rights as required by the Covenant. In relation to children, article 24 provides that all children, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, have the right to such measures of protection as are required by their status as minors, on the part of their family, society and the State.

6. The Committee notes that the Covenant neither defines the term "discrimination" nor indicates what constitutes discrimination. However, article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination provides that the term "racial discrimination" shall mean 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 or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. Similarly, article 1 of the Convention on the Elimination of All Forms of Discrimination against Women provides that "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

7. While these conventions deal only with cases of discrimination on specific grounds, the Committee believes that the term "discrimination" as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.

8. The enjoyment of rights and freedoms on an equal footing, however, does not mean identical treatment in every instance. In this connection, the provisions of the Covenant are explicit. For example, article 6, paragraph 5, prohibits the death sentence from being imposed on persons below 18 years of age. The same paragraph prohibits that sentence from being carried out on pregnant women. Similarly, article 10, paragraph 3, requires the segregation of juvenile offenders from adults. Furthermore, article 25 guarantees certain political rights, differentiating on grounds of citizenship.

9. Reports of many States parties contain information regarding legislative as well as administrative measures and court decisions which relate to protection against discrimination in law, but they very often lack information which would reveal discrimination in fact. When reporting on articles 2 (1), 3 and 26 of the Covenant, States parties usually cite provisions of their constitution or equal opportunity laws with respect to equality of persons. While such information is of course useful, the Committee wishes to know if there remain any problems of discrimination in fact, which may be practised either by public authorities, by the community, or by private persons or bodies. The Committee wishes to be informed about legal provisions and administrative measures directed at diminishing or eliminating such discrimination.

10. The Committee also wishes to point out that the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.

11. Both article 2, paragraph 1, and article 26 enumerate grounds of discrimination such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The Committee has observed that in a number of constitutions and laws not all the grounds on which discrimination is prohibited, as cited in article 2, paragraph 1, are enumerated. The Committee would therefore like to receive information from States parties as to the significance of such omissions.

12. While article 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, article 26 does not specify such limitations. That is to say, 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 protection against discrimination on any of the enumerated grounds. In the view of the Committee, article 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Article 26 is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof. Thus, 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.

13. Finally, the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.


Human Rights Committee, General Comment 23, Article 27 (Fiftieth session, 1994), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 38 (1994).

1. Article 27 of the Covenant provides that, in those States in which ethnic, religious or linguistic minorities exist, persons belonging to these minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. The Committee observes that this article establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant.

2. In some communications submitted to the Committee under the Optional Protocol, the right protected under article 27 has been confused with the right of peoples to self-determination proclaimed in article 1 of the Covenant. Further, in reports submitted by States parties under article 40 of the Covenant, the obligations placed upon States parties under article 27 have sometimes been confused with their duty under article 2.1 to ensure the enjoyment of the rights guaranteed under the Covenant without discrimination and also with equality before the law and equal protection of the law under article 26.

3.1. The Covenant draws a distinction between the right to self-determination and the rights protected under article 27. The former is expressed to be a right belonging to peoples and is dealt with in a separate part (Part I) of the Covenant. Self-determination is not a right cognizable under the Optional Protocol. Article 27, on the other hand, relates to rights conferred on individuals as such and is included, like the articles relating to other personal rights conferred on individuals, in Part III of the Covenant and is cognizable under the Optional Protocol.

3.2. The enjoyment of the rights to which article 27 relates does not prejudice the sovereignty and territorial integrity of a State party. At the same time, one or other aspect of the rights of individuals protected under that article - for example, to enjoy a particular culture - may consist in a way of life which is closely associated with territory and use of its resources. This may particularly be true of members of indigenous communities constituting a minority.

4. The Covenant also distinguishes the rights protected under article 27 from the guarantees under articles 2.1 and 26. The entitlement, under article 2.1, to enjoy the rights under the Covenant without discrimination applies to all individuals within the territory or under the jurisdiction of the State whether or not those persons belong to a minority. In addition, there is a distinct right provided under article 26 for equality before the law, equal protection of the law, and non-discrimination in respect of rights granted and obligations imposed by the States. It governs the exercise of all rights, whether protected under the Covenant or not, which the State party confers by law on individuals within its territory or under its jurisdiction, irrespective of whether they belong to the minorities specified in article 27 or not. Some States parties who claim that they do not discriminate on grounds of ethnicity, language or religion, wrongly contend, on that basis alone, that they have no minorities.

5.1. The terms used in article 27 indicate that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language. Those terms also indicate that the individuals designed to be protected need not be citizens of the State party. In this regard, the obligations deriving from article 2.1 are also relevant, since a State party is required under that article to ensure that the rights protected under the Covenant are available to all individuals within its territory and subject to its jurisdiction, except rights which are expressly made to apply to citizens, for example, political rights under article 25. A State party may not, therefore, restrict the rights under article 27 to its citizens alone.

5.2. Article 27 confers rights on persons belonging to minorities which "exist" in a State party. Given the nature and scope of the rights envisaged under that article, it is not relevant to determine the degree of permanence that the term "exist" connotes. Those rights simply are that individuals belonging to those minorities should not be denied the right, in community with members of their group, to enjoy their own culture, to practise their religion and speak their language. Just as they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights. As any other individual in the territory of the State party, they would, also for this purpose, have the general rights, for example, to freedom of association, of assembly, and of expression. The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria.

5.3. The right of individuals belonging to a linguistic minority to use their language among themselves, in private or in public, is distinct from other language rights protected under the Covenant. In particular, it should be distinguished from the general right to freedom of expression protected under article 19. The latter right is available to all persons, irrespective of whether they belong to minorities or not. Further, the right protected under article 27 should be distinguished from the particular right which article 14.3 (f) of the Covenant confers on accused persons to interpretation where they cannot understand or speak the language used in the courts. Article 14.3 (f) does not, in any other circumstances, confer on accused persons the right to use or speak the language of their choice in court proceedings.

6.1. Although article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a "right" and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.

6.2. Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group. In this connection, it has to be observed that such positive measures must respect the provisions of articles 2.1 and 26 of the Covenant both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population. However, as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria.

7. With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.

8. The Committee observes that none of the rights protected under article 27 of the Covenant may be legitimately exercised in a manner or to an extent inconsistent with the other provisions of the Covenant.

9. The Committee concludes that article 27 relates to rights whose protection imposes specific obligations on States parties. The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole. Accordingly, the Committee observes that these rights must be protected as such and should not be confused with other personal rights conferred on one and all under the Covenant. States parties, therefore, have an obligation to ensure that the exercise of these rights is fully protected and they should indicate in their reports the measures they have adopted to this end.

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