Non Discrimination

Question 1

Step 1: identify

Answer 1

Identify the discrimination we are talking about

• General
• Racial
• Religious (freedom of religion)
• Discrimination on gender (Cedaw)
• discrimination on sexual orientation (LGBT rights)

Question 2

Where is general discrimination found?

Answer 2

UDHR - politically binding arts 1 and 2
Articles 2 + 26 of the ICCPR
Article 14 ECHR and it’s Additional Protocol 12

Question 3

Is there any justification for differential treatment?

Answer 3

Yes - Human Rights Committee General Comment 18
- not every differential treatment will count as discrimination: if the criteria are reasonable and objective and the aim is to achieve a purpose which is legitimate

Question 4

What will be legitimate, reasonable and objective.

Answer 4

Examples include maternity and paternity differences - women need more space and more time after they have given birth to connect with the child

Question 5

Formal vs substantive equality

Answer 5

In international law it is not just formally prohibited but also substantive equality means positive measures need to be taken by the state in order to stop discrimination

Question 6

Is there a hierarchy of protection?

Answer 6

In theory no, however even if you are not a party to CERD it is not up to the state to decide whether there has been direct discrimination or not

• however with gender rights most of us would say that it’s on the same level as religious racial discrimination though because of certain state bias’ the standard of protection is not the same
• there should be the same amount of international protection for all discrimination cases yet in reality there is not

Question 7

Regional protection of HR

Answer 7

Article 14 ECHR and the Protocol
- “the enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on grounds 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

Question 8

What does the protocol 12 of the ECHR do?

Answer 8

Apply non-discrimination to any law not just confined to the convention rights

Question 9

What is a major flaw with relying on the regional rights?

Answer 9

• It only contains civil rights - not social rights so non-discrimination in the convention only applies in the context of civil rights = conservative convention
• obviously only applies to states party to the ECHR