UNIVERSITY OF OSLO, FACULTY OF LAW, NORWEGIAN CENTRE FOR HUMAN RIGHTS
INTERNATIONAL HUMAN RIGHTS LAW: SUBSTANTIVE RIGHTS – HUMR 4120
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Texts Referred to in Lecture 6 on Non-Discrimination (by Ronald Craig)
(1) ECHR, art. 14:
“The 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.”
(2) CESCR, art. 2, no. 2:
“The 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.”
(3) CCPR, art. 2, no. 1:
“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.”
(4) CCPR, art. 26:
“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 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.”
(5) CERD article 1:
“[A]ny 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.”
(6) CEDAW, article 1:
“[A]ny 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,
UNIVERSITY OF OSLO, FACULTY OF LAW, NORWEGIAN CENTRE FOR HUMAN RIGHTS
INTERNATIONAL HUMAN RIGHTS LAW: SUBSTANTIVE RIGHTS – HUMR 4120
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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) (CCPR) General Comment 18 (para 7):
“[T]he term ‘discrimination’ … should be understood to imply any distinction … based on any
ground … 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.” (emphases added)
(8) Thlimmenos v. Greece (indirect religious discrimination). The ECtHR said:
“The Court has so far considered that the right under Article 14 not to be discriminated … is
violated when States treat differently persons in analogous situations without providing an
objective and reasonable justification…. However, the Court considers that this is not the only
facet of the prohibition of discrimination in Article 14. The right not to be discriminated against
… is also violated when States without an objective and reasonable justification fail to treat
differently persons whose situations are significantly different.”
(9) Althammer v. Austria. The Human Rights Committee said:
“The Committee recalls that a violation of article 26 can also result from the discriminatory
effect of a rule or measure that is neutral at face value or without intent to discriminate.
However, such indirect discrimination can only be said to be based on the grounds enumerated
in Article 26 of the Covenant if the detrimental effects of a rule or decision exclusively or
disproportionately affect persons having a particular race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status. …. In the
circumstances of the instant case, the abolition of monthly household payments combined with
an increase of children’s benefits is not only detrimental for retirees but also for active
employees not (yet or no longer) having children in the relevant age bracket, and the authors
have not shown that the impact of this measure on them was disproportionate.
(10) CERD, General Recommendation XIV:
“A distinction is contrary to the Convention if it has either the purpose or the effect of impairing
particular rights and freedoms.... 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.”
(11) CEDAW, General Recommendation 25, footnote 1:
UNIVERSITY OF OSLO, FACULTY OF LAW, NORWEGIAN CENTRE FOR HUMAN RIGHTS
INTERNATIONAL HUMAN RIGHTS LAW: SUBSTANTIVE RIGHTS – HUMR 4120
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“Indirect discrimination against women may occur when laws, policies and programmes are
based on seemingly gender-neutral criteria which in their actual effect have a detrimental
impact on women. Gender-neutral laws, policies and programmes unintentionally may
perpetuate the consequences of past discrimination. They may be inadvertently modeled on
male lifestyles and thus fail to take into account aspects of women’s life experiences which may
differ from those of men. These differences may exist because of stereotypical expectations,
attitudes and behaviour directed towards women which are based on the biological differences
between women and men. They may also exist because of the generally existing subordination
of women by men.”
(12) Broeks v. Netherlands (sex discrimination). The Human Rights Committee said:
“[A]rticle 26 does not merely duplicate the guarantees already provided for in article 2. It
derives from the principle of equal protection of the law without discrimination… which
prohibits discrimination in law or in practice in any field regulated and protected by public
authorities. Article 26 is thus concerned with the obligations imposed on States in regard to
their legislation and the application thereof.”
(13) Belgian Linguistics case (language discrimination). The ECtHR said:
“In spite of the very general wording of the French version (‘sans distinction aucune’), Article
14 does not forbid every difference in treatment in the exercise of the rights and freedoms
recognized. This version must be read in the light of the more restrictive text of the English
version (‘without discrimination’). …one would reach absurd results were one to give Article
14 an interpretation as wide as that which the French version seems to imply”
“[T]he principle of equality of treatment is violated if the distinction has no objective and
reasonable justification. The existence of such a justification must be assessed in relation to the
aim and effects of the measure under consideration, regard being had to the principles which
normally prevail in democratic societies. A difference 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 realised.”
(14) Belgian Linguistics case (statement on margin of appreciation):
“[The Court] cannot assume the role of the competent national authorities, for it would thereby
lose sight of the subsidiary nature of the international machinery of collective enforcement
established by the Convention. The national authorities remain free to choose the measures
which they consider appropriate in those matters which are governed by the Convention.
Review by the Court concerns only the conformity of these measures with the requirements of
the Convention.”
(15) Gueye et al. v. France (discrimination based on nationality). The Human Rights Committee stated:
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“In determining whether the treatment of the authors is based on reasonable and objective
criteria, the Committee notes that it was not the question of nationality which determined the
granting of pensions to the authors but the services rendered by them in the past. They had
served in the French Armed Forces under the same conditions as French citizens; for 14 years
subsequent to the independence of Senegal they were treated in the same way as their French
counterparts for the purpose of pension rights, although their nationality was not French but
Senegalese. A subsequent change in nationality cannot by itself be considered as a sufficient
justification for different treatment, since the basis for the grant of the pension was the same
service which both they and the soldiers who remained French had provided. Nor can
differences in the economic, financial and social conditions as between France and Senegal be
invoked as a legitimate justification. If one compared the case of retired soldiers of Senegalese
nationality living in Senegal with that of retired soldiers of French nationality in Senegal, it
would appear that they enjoy the same economic and social conditions. Yet, their treatment for
the purpose of pension entitlements would differ. Finally, the fact that the State party claims
that it can no longer carry out checks of identity and family situation, so as to prevent abuses in
the administration of pension schemes cannot justify a difference in treatment. In the
Committee’s opinion, mere administrative inconvenience or the possibility of some abuse of
pension rights cannot be invoked to justify unequal treatment. The Committee concludes that
the difference in treatment of the authors is not based on reasonable and objective criteria and
constitutes discrimination prohibited by the Covenant.”
(16) Thlimmenos v. Greece (applying objective and reasonable justification test) The ECtHR reasoned:
“The next question to be addressed is whether Article 14 of the Convention has been complied
with. According to its case-law, the Court will have to examine whether the failure to treat the
applicant differently from other persons convicted of a felony pursued a legitimate aim. If it did
the Court will have to examine whether there was a reasonable relationship of proportionality
between the means employed and the aim sought to be realized….
The Court considers that, as a matter of principle, States have a legitimate interest to exclude
some offenders from the profession of chartered accountant. However, the Court also considers
that, unlike other convictions for serious criminal offences, a conviction for refusing on
religious or philosophical grounds to wear the military uniform cannot imply any dishonesty or
moral turpitude likely to undermine the offender’s ability to exercise this profession. Excluding
the applicant on the ground that he was an unfit person was not, therefore, justified. The Court
takes note of the Government’s argument that persons who refuse to serve their country must be
appropriately punished. However, it also notes that the applicant did serve a prison sentence for
his refusal to wear the military uniform. In these circumstances, the Court considers that
imposing a further sanction on the applicant was disproportionate. It follows that the applicant’s
exclusion from the profession of chartered accountant did not pursue a legitimate aim. As a
result, the Court finds that there existed no objective and reasonable justification for not treating
the applicant differently from other persons convicted of a felony.”