THE PROHIBITION OF DISCRIMINATION
97In the international human rights instruments, a distinction has to be made between the discrimination clauses and the provisions containing a (more) general prohibition of discrimination.
A. THE DISCRIMINATION CLAUSES IN
INTERNATIONAL HUMAN RIGHTS INSTRUMENTS
In Article 2, 1st sentence, of the Universal Declaration of Human Rights it is stated that:
“Everyone is entitled to all the rights and freedoms set forth in this Declaration, 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” (emphasis added).
Article 2.2 of the International Covenant on Economic, Social and Cultural Rights reads as follows:
“Th e States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (emphasis added),
while Article 2.1 of the International Covenant on Civil and Political Rights states that:
97 Based on a contribution to the Summer Session of the Institute of International Public Law and International Relations of Th essaloniki entitled “L’interdiction de la discrimination et l’action positive” in Kalliopi Koufa (Ed.), Might and Right in International Relations, Th esaurus Acroasiun, vol. XXVIII, Athens, Sakkoulas Publ., 1999, pp. 325–344, at pp. 331–
337; see also: Bossuyt , Marc, “Th e Principle of Equality in Article 26 of the International Covenant on Civil and Political Rights”, in Armand de Mest r a l et a l. (Eds.), Th e Limitation of Human Rights in Comparative Constitutional Law, Québec, Y. Blais, 1986, pp. 269–288;
id., “Prohibition of Discrimination and the Concept of Affi rmative Action”, in Bringing International Human Rights Law Home, New York, United Nations, 2000, pp. 93–106.
“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present 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” (emphasis added).
In Article 14 of the European Convention on Human Rights,98 discrimination is prohibited solely with respect to the rights and freedoms set forth in the Convention. Article 14 of the European Convention, like Article 2 of both Covenants, forbids discrimination only with respect to the rights “enunciated”,
“recognized” or “set forth” in the treaties concerned. In other words, the prohibition is limited to the rights guaranteed by the Convention.
Th is is also the case with the American Convention and the African Charter. Article 1.1 of the American Convention on Human Rights, reads as follows:
“Th e States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition” (emphasis added),
while Article 2 of the African Charter on Human and Peoples’ Rights states that:
“Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status” (emphasis added).
1. QUESTIONS OF TERMINOLOGY
As far as the terminology is concerned, there seems to be some confusion in that Article 2 of the Universal Declaration and Article 2.1 of the Civil Covenant use the term “distinction”, while in the other human rights instruments the term “discrimination” is used. Th e confusion is even greater when looking to the French version of those instruments where the term
“distinction” is, in addition, used in Article 7, 1st sentence, of the Universal
98 “Th e enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” (emphasis added).
Declaration, in Article 2.2 of the Social Covenant and in Article 14 of the European Convention. On the latter, the European Court of Human Rights stated in its judgment of 23 July 1968 in the case “relating to certain aspects of the laws on the use of languages in education in Belgium (merits)” (Series A, p. 34) that:
“In spite of the very general wording of the French version (‘sans distinction aucune’), [… t]his version must be read in the light of the more restrictive text of the English version (‘without discrimination’).”
It is quite obvious that not every “distinction” is prohibited but only
“discrimination”, which is the term most frequently used when referring to unjust, unreasonable, illegitimate or arbitrary distinctions. Th e use of the term
“distinction” in the fi rst human rights instruments can be explained by its use (in English and in French) in the UN Charter of 26 June 1945 which states, in its Article 55, as one of the goals of the United Nations the promotion of “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex language, or religion” (emphasis added).
Progressively, with the exception of the African Charter, the term “distinction”
has been replaced by the more appropriate term “discrimination”, fi rst in English, as shown by the European Convention of 4 November 1950, and later also in French.
It appears from the travaux préparatoires of the Covenants that the Th ird Committee of the General Assembly replaced in 1963, at the initiative of the Italian representative Professor Francesco Capotorti,100 the term “distinction”
in the draft Social Covenant by the term “discrimination”. It was expected that the terminology in the draft Civil Covenant would be made uniform with the Social Covenant but, undoubtedly due to the great number of Articles that had to be adopted in 1966 before the fi nal adoption of the Covenants on 16 December 1966, the term “distinction” was not replaced in the Civil Covenant. It emerges, however, from the consideration of the preparatory work that by using the term “distinction”, the scope of the prohibition in the Civil Covenant is not larger than in the Social Covenant, which uses the term
“discrimination”.
Nowadays it is generally accepted that the term “distinction” is neutral and used to indicate a diff erence of treatment which has not (yet) been qualifi ed as justifi ed or not, while the term “discrimination” is reserved, at least in the international law of human rights, for a distinction considered unjustifi ed. More and more, the term “diff erentiation” is used to indicate a diff erence of treatment which is considered to be justifi ed.
99 See infra, Chapter III, B.
100 A/C.3/SR.1257, p. 260.
2. THE DETERMINATION OF A DISCRIMINATION
An important element in determining a discrimination is the ground on which the diff erence of treatment is based. Th e enumeration of those grounds in the international instruments protecting human rights in general is not exhaustive but exemplary. Th e contrary impression given by the four grounds mentioned in the UN Charter (“race, sex, language, or religion”) is contradicted by their enlargement to 12 in the Universal Declaration (additional grounds are “[…], colour, […] political or other opinion, national or social origin, property, birth or other status”) and even to 13 in the European Convention (the additional ground is: “association with a national minority”) as well as by having the enumeration of those ground preceded by the words “such as” (in French: “notamment”). Th e enumeration of the grounds mentioned in those international instruments is very homogenous, with the exception of the ground “property” which is replaced by “economic status” in the American Convention and by “fortune” in the African Charter. Only the latter Charter mentions the ground “ethnic group”.
Th e last mentioned ground (“or other status”) in those enumerations becomes in the American Convention “or any social condition” and in the African Charter
“or any status”. Grounds are included in those enumerations not so much because they are the most heinous101 but because they are the most likely to be the basis of a discrimination.102
Since their enumeration is non-exhaustive, the grounds, though important, are not in themselves the decisive element in determining the arbitrary character of a discrimination. A diff erence of treatment based on a ground not mentioned in the convention concerned can nevertheless be discriminatory and, vice versa, a diff erence of treatment based on a ground mentioned in a convention is not necessarily discriminatory.103 To fi nd out whether a diff erence of treatment is discriminatory, the relationship has to be examined between that ground and the right (or freedom) in which the diff erence of treatment is operated. It is necessary that the matter concerned by the diff erence of
101 Discrimination on the basis of the colour of eyes or hair would not be less arbitrary but is less likely to happen in legal regulations.
102 When e.g. the Constitutions of India (1949: Art. 15), Pakistan (1973: Art. 26.1) and Nepal (1990: Art. 11.4) mention “caste”, it does not mean that this ground is only prohibited in those countries but only that in those countries the need was felt more than elsewhere to mention this ground because discrimination on that basis was not unlikely to happen.
103 As far as “race” is concerned, it is diffi cult to imagine this ground to be relevant for any legally protected interest (with the possible exception of the recruitment of actors having to play the role of a person of African descent). Th e International Convention on the Elimination of All Forms of Racial Discrimination is a convention aimed at outlawing discriminations based on a limited number of “racial” grounds: “race, colour, descent, or national or ethnic origin”.
In that case, the fi nding of a diff erence of treatment in a right or freedom based on such a ground will, in general, be suffi cient to qualify it as discriminatory.
treatment is a right or a freedom; in other words, it has to be a legally protected interest. When a diff erence of treatment does not concern a matter not protected by the law, because it has not (yet) been subjected to legal regulation, it is not a discrimination prohibited by law.
Private life, for example, is reserved for private acts of an individual in which the State may not interfere. In the private domain (e.g. love relations) an individual may act according to his preferences, even when based on grounds which would not be justifi able if they would concern rights or freedoms. It is, however, the law that fi xes the borders of private life and, if the need is felt, the legislator may regulate new fi elds of human activity as long as the right to privacy does not become void of its substance. An example can be the admission to and the functioning of clubs which can be regulated to some extent. Once a matter is subject to legal regulations, discrimination in that matter is prohibited. Th ere is an absolute incompatibility between law and arbitrariness.
A diff erence of treatment is arbitrary when the ground on which it is based is not relevant for the right concerned. A suffi cient connexion is needed between the one and the other. It is perfectly possible that a ground is relevant for a given right and not for another, like it may be that a diff erence of treatment is justifi ed when based on a given ground but not on another. In its judgment of 23 July 1968 in the Belgian linguistic case (Series A, p. 34), the European Court of Human Rights held that:
“the principle of equality of treatment is violated if the distinction has no objective and reasonable justifi cation. Th e existence of such a justifi cation must be assessed in relation to the aim and eff ects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A diff erence of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realized” (emphasis added).
When judging a diff erence of treatment in a legal provision, there is generally little disagreement on the legitimacy of the goal pursued or on the objectivity – and even on the relevance – of the ground on which the diff erence is based.
On the contrary, opinions may easily diverge as far as the “proportionality” is concerned.104
104 On the concept of proportionality, see Ma r t ens, Paul, “L’irrésistible ascension du principe de proportionnalité”, in Présence du droit public et des droits de l’homme (Mélanges off erts à Jacques Velu), Brussels, Bruylant, 1992, vol 1, pp. 49–68.
B. THE GENERAL PROHIBITION OF DISCRIMINATION
Article 7 of the Universal Declaration of Human Rights reads as follows:
“All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”
(emphasis added).105
Article 26 of the International Covenant on Civil and Political Rights also contains a general prohibition of discrimination, which reads as follows:
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and eff ective 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” (emphasis added).
Article 1.1 of Protocol No. 12 to the European Convention on Human Rights, adopted on 4 November 2000, contains also a more general prohibition than guaranteed in Article 14 of that Convention:
“Th e enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” (emphasis added).
It is mainly with respect to Article 26 of the Civil Covenant that we will examine the scope of the general prohibition of discrimination. First, we will see whether that prohibition covers both “equality in the law” and “equality before the law” and what is meant by the non-independent existence of the prohibition of discrimination and by its autonomous violation. Second, we will examine whether Article 26 of the Civil Covenant is applicable to social rights.
1. EQUALITY BEFORE AND IN THE LAW
Th ere is no doubt that, in its fi rst sentence, Article 26 of the Civil Covenant guarantees and “equality before the law” and “equality in the law” in the sense given to those expressions by Hans Kelsen.106 Strictly speaking, “equality
105 In French, the term “distinction” is used once and the term “discrimination” is used twice in that Article.
106 Th e Pure Th eory of Law (translated into English by Max Knight), Berkeley, University of California Press, 1962, p. 141: “Th e guarantee of this equality [before the law] means only
before the law” concerns the application of the law, while “equality in the law”
concerns the creation of the law. Equality before the law requires (only) that the law be applied without discrimination. As far as fundamental freedoms to which
“everyone” is entitled are concerned, a judge that would not equally apply the law to all would not only violate the principle of equality before the law but would also violate the right of the person not to be deprived of that freedom.
Th e draft ers of national constitutions or international conventions are not always aware of Kelsen’s distinction between equality before and equality in the law. By adding, in Article 26, 1st sentence, 2nd part, of the Civil Covenant, to the expression “equal before the law” the expression “[all persons …] are entitled without any discrimination to the equal protection of the law”, the draft ers of that Covenant made it clear that it also prescribes “equality in the law”.
“Equality in the law”, which means that the law itself may not itself contain any discriminatory element, is a principle not addressed to judges but to legislators.
Th ere is no doubt that the prohibition of discrimination – which meaning is not diff erent from the principle of equality, but formulated negatively instead of positively – covers equality both in and before the law. Th e international judge will not only verify whether the law has been applied without discrimination but also whether the law itself is not discriminatory.
In an article published in 1981, Christian Tomuschat107 nevertheless expressed the view that: “Article 26 is confi ned to equality before the law”.
An examination of the relevant proceedings in the Commission on Human Rights108 reveals that the main point at issue was whether or not the provision (which would later become Article 26) should protect rights not guaranteed by the Civil Covenant. At no time it was contended that the wider scope of application would entail that the level of protection provided by the clause for the rights not guaranteed by the Covenant (Article 26) would be diff erent from that for the rights guaranteed by the Covenant (Article 2.1).
It was during the proceedings in the Th ird Committee of the General Assembly109 that Article 26 was completed. Th e logical conclusion to be drawn from the explanations given by the proponents of the Indian amendment110 to add the words “and are entitled to equal protection of the law” is that the fi rst sentence contains two distinct concepts – (a) “equality before the law” and (b)
that the law-applying organs are permitted to consider only those diff erences which the statutes to be applied by them expressly recognize. Th ereby nothing else is stipulated but the general principle of the lawfulness of the application of the law, immanent in all law;
and the principle of the legality of the application of statutes, immanent in all statutes: the tautological principle that a norm ought to be applied in conformity with this norm”.
107 Tomuschat , Christian, “Equality and Non-Discrimination under the International Covenant on Civil and Political Rights”, in I. von Muench (Ed.), Festschrift für Hans-Jürgen Schlochauer, Berlin, de Gruyter, 1981, p. 698, note 27.
108 Bossuyt , supra note 97, pp. 269–287, at pp. 273–275.
109 Ibid., pp. 275–277.
110 A/C.3/L.945.
“equal protection of the law” – which cannot be understood otherwise than covering the notion of “equality in the law”. Th e main purpose of another amendment proposed by Greece and the United Kingdom,111 to introduce the second sentence of Article 26 with the words “in this respect”, was to avoid a prohibition of discrimination, which would extend to discrimination in private and social relations. If any meaning should be given to the second sentence, it should require the States parties to adopt legislative measures providing eff ective protection against discrimination of any kind.
However, it is the essence of any legal protection that it provides safeguards against discrimination in the enjoyment of all rights, but also in the enjoyment of rights only. Th e principle of equality does not prescribe material equality among all persons, but equality before the law and in the law. All persons – how diff erent they all may be – are equal in rights. Consequently, the second sentence of Article 26 can only be understood as requiring the extension of the protection of the law to matters which hitherto did not enjoy its protection.
By requiring the intervention of the legislature, it is obvious that the second sentence of Article 26 is not “self-suffi cient” as it is not formulated in a manner suffi ciently complete and precise to enable a judge to apply it in the absence of the intervention of the legislature. Contrary to the fi rst sentence of Article 26, its second sentence does not provide any individual with a judicial enforceable new right, nor can it have third party eff ects (“Drittwirkung”). Moreover, that requirement is limited by the fundamental right of respect for the privacy of everyone, albeit that it is the law that fi xes the borders of that privacy.112 In doing so, the law also fi xes the limits of the scope of application of a general prohibition of discrimination. Th e general prohibition of discrimination contained in Article 26 of the Civil Covenant does not confer a new right to individuals but it extends the prohibition of discrimination (and the competence of the supervising organs) to rights not guaranteed by the Civil Covenant.
It is in that sense that neither the general prohibition of discrimination (as in Article 26 of the Civil Covenant or in Protocol No. 12 to the European Convention), nor the limited prohibition clause (as in Article 2 of both Covenants and in Article 14 of the European Convention) have an “independent existence”. Th ey are always to be examined in relation to a substantive right or freedom. Th e absence of an independent existence does not imply that it cannot be autonomously violated. It is not because the prohibition of discrimination
111 A/C.3/L.946.
112 In the Explanatory Report to Protocol No. 12 to the European Convention, it is emphasised that Article 1 of that Protocol “is not intended to impose a general positive obligation on the Parties to prevent or remedy all instances of discrimination in relations between private persons” (§25) and “[i]t is understood that purely private matters would not be aff ected.
Regulations of such matters would also be likely to interfere with the individual’s right to respect for his private and family life, his home and his correspondence, as guaranteed by Article 8 of the Convention” (§28).
has no “independent existence” that there can be no “autonomous violation” of the prohibition of discrimination without a simultaneous violation of the right concerned.
As long as the right concerned is a fundamental freedom requiring essentially from the State a negative obligation of no (arbitrary) interference in the enjoyment of that freedom, it is hard to imagine a violation of the prohibition of discrimination with respect to that freedom without a simultaneous violation of that freedom itself. Th e simple fact that someone is deprived of a fundamental freedom, to which everyone is entitled, is a violation of the right to the enjoyment of that freedom as well as a violation of the prohibition of discrimination.
If the right concerned is a social right requiring from the State a positive intervention “to the maximum of its available resources”, the fact that someone is deprived of such a right is not necessarily a violation of that right, but there will be a violation if someone is deprived of that right on a discriminatory basis.
In that case, someone who, on the basis of the applicable regulations regarding that social right, is not entitled to it, will be entitled to invoke that right on the basis of the prohibition of discrimination, which in that case has a creative eff ect.
2. THE APPLICABILITY OF ARTICLE 26 OF THE CIVIL COVENANT TO SOCIAL RIGHTS
Th e question of the applicability of Article 26 of the Civil Covenant did arise with respect to social rights “enunciated” in the Social Covenant. Two cases were brought before the Human Rights Committee by two Dutch women, Ms S.W.M. Broeks113 and Ms F.H. Zwaan de Vries,114 who complained that they were receiving a lesser benefi t because they were married. In its views adopted on 9 April 1987, the Human Rights Committee found a violation of Article 26 of the Civil Covenant as applied to the fi eld of social security. In those cases, the Netherlands Government had taken the view that Article 26 could only be invoked, under the Optional Protocol to the Civil Covenant, in the sphere of civil and political rights, albeit not necessarily limited to those civil and political rights embodied in that Covenant. Th e complaints, however, concerned the enjoyment of economic, social and cultural rights dealt with by the Social Covenant, which deliberately does not provide for an individual complaints procedure.
In the Committee’s view, however, the Civil Covenant applies even if any of the matters referred to therein is mentioned or incorporated in the provisions of other international instruments. Notwithstanding the interrelatedness of the two Covenants, it is necessary to apply fully the terms of the Civil Covenant.
113 A/42/40, pp. 139–150.
114 Ibid., pp. 160–169.
Th e provisions of Article 2 of the Social Covenant do not detract from the full application of Article 26 of the other Covenant. Article 26 is thus concerned with the obligations imposed on States in regard to their legislation and its application.
Th e fact that a married woman had to prove that she was a “breadwinner”, a condition that did not apply to married men, constituted, according to the Committee, a diff erence of treatment which was in fact based on sex, placing married women at a disadvantage compared with married man. In its views, the Committee stated that such diff erence of treatment was not reasonable.
It is questionable whether the draft ers of Article 26 of the Civil Covenant really intended to entrust the Human Rights Committee with monitoring its application in the sphere of economic, social and cultural rights. However, the text adopted clearly encompasses all the various rights and freedoms, without making any exception in the case of economic, social and cultural rights. Th erefore, the Committee had to recognise the general character of the prohibition of discrimination. One of the consequences of the broad scope of Article 26 is that it expands the supervisory power of the judges.
