Equality and non discrimination

Question 1

“The principles of equality and non-discrimination represent the twin pillars upon which the whole edifice of the modern international law of human rights is established”.

Answer 1

J. Rehman

Question 2

The claim to equality ‘is in a substantial sense the most fundamental right of a man. It occupies the first place in most written constitutions. It is the starting point of all liberties’.

Answer 2

Lauterpacht. An international Bill of the Rights of Man.

Question 3

• Article 1(3) of the Charter of the United Nations
• Articles 1, 2 and 7 of the UDHR
• Articles 2(1), 3, 25 and 26 of the ICCPR
• Article 2(2) and 3 of the ICESCR

Answer 3

Articles concerned with equality and non discrimination

Question 4

• The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
• The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
• The Convention on the Rights of Persons with Disabilities (CRPD)
• The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)
• The Convention on the Rights of the Child (CRC )

Answer 4

Specialised human rights instruments for non-discrimination and equality

Question 5

Aristotle’s classical maxim according to which equals must be treated equally, or more precisely, likes must be treated alike.

Focuses on the process rather than the outcome.

Anatole France: a law that forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread” will in fact entrench inequality.

Answer 5

FORMAL EQUALITY

Question 6

state parties to the ICCPR have a general obligation neither to enact legislation with a discriminatory content nor to apply laws in a discriminatory way.

Answer 6

Broeks v. The Netherlands

Question 7

A merely formal notion of equality as procedural fairness can in fact perpetuate existing paterns of disadvantage.
Two main variants of substantive equality: equality of opportunity and equality of results.

Answer 7

SUBSTANTIVE EQUALITY

Question 8

According to the notion of equality of opportunity, true equality can only be achieved if people are not only treated equally but are also given the same opportunities.
Equality of opportunities requires the removal of barriers to the advancement of disadvantaged groups, such as upper age limits for employment that may disadvantage women with childcare responsabilties.
But equality of opportunity does not aim to achieve equality of outcome. Once the race has started, everyone is treated the same. Thus, while equality of opportunity is to some extent about redeessing past discrimination, it also stresses individual merit.

Answer 8

Equality of Opportunities

Question 9

Equality of results: goes further than this and aims to achieve an equal distribution of social goods such as education, employment, healthcare and politican representation. It recogniseses that removing barriers does not guarantee that disadvantaged groups will in fact be able to take advantage of available opportunities.

Answer 9

Equality of Results

Question 10

12. Under article 2, paragraph 3(a), of the Covenant, the State party is under the obligation to provide an effective remedy, that will eliminate this discrimination.

Answer 10

Arieh Hollis Waldman v. Canada

Question 11

Occurs when a person, on acount of one or more of the prohibited grounds, is treated less favourably than someone else in comparable circumstances.
Direct discrimination occurs when a person, on account of one or more of the prohibited grounds, is treated less favourably than someone else in analogous circumstances.
The complainant must show that :
– others have been treated better because they do not share the relevant characteristic
– they are in a comparable situation
- The burden of proof shifts then to the state to show the justification of the distinction

Answer 11

DIRECT DISCRIMINATION

Question 12

First case where the Human Rights C ommittee recognised the posibility of interect discrimination

Answer 12

Singh Bhinder v Canada.

Question 13

Occurs when a practice, rule, or requirement, that is outwardly ‘neutral’, that is, not based on one of the prohibited grounds of distinction, has a disproportionate impact on particular groups defined by reference to one of these grounds.

Answer 13

INDIRECT DISCRIMINATION

Question 14

“direct racial discrimination” shall mean any differential treatment based on a ground such as race, colour, language, religion, nationality or national or ethnic origin, which has no objective and reasonable justification. Differential treatment has no objective and reasonable justification 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.

Answer 14

D.H. and other v. Czech Republic

Question 15

“indirect racial discrimination” shall mean cases where an apparently neutral factor such as a provision, criterion or practice cannot be as easily complied with by, or disadvantages … persons belonging to a group designated by a ground such as race, colour, language, religion, nationality or national or ethnic origin, unless this factor has an objective and reasonable justification. This latter would be the case if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.´

Answer 15

D.H. and other v. Czech Republic

Question 16

the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principle swhich normally prevail in democratic societies.
(1) pursue legitimate aime and (2) be proportionate

Answer 16

Belgian Liguistics Case

Question 17

“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”.

Answer 17

“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”.

Question 18

• The obligation to respect requires states to refrain from any discriminatory action and to ensure that their legislation and practices are non-discriminatory
• The obligation to protect obliges states to prevent discrimination by non-state actors, which means that states must introduce legislation prohibiting discrimination in fields such as employment, education, healthcare, housing and the provision of social goods and services
• The obligation to promote, guarantee and secure equality consists in taking proactive steps to eliminate systemic, structural patterns of disadvantage and to advance social inclusion

Answer 18

Obligations of states

Question 19

Non–discrimination is an immediate and cross-cutting obligation in the Covenant. Article 2, paragraph 2, requires States parties to guarantee non-discrimination in the exercise of each of the economic, social and cultural rights enshrined in the Covenant and can only be applied in conjunction with these rights. It is to be noted that discrimination constitutes any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights. Discrimination also includes incitement to discriminate and harassment.

Answer 19

CESCR General Comment No. 20