Texts Referred to in Lecture on Non-Discrimination (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) 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.”
(3) 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.”
(4) 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.”
(5) Direct discrimination is when a person is unjustifiably treated less favorably than another in comparable circumstances, and such treatment is done on grounds protected by antidiscrimination legislation.
Indirect discrimination is when persons are treated on the basis of factors other than prohibited characteristics (i.e., treated in a facially neutral way), yet this results in unjustifiable, disadvantageous and differential consequences (for a specific group) distinguished by a prohibited ground.
(6) 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.”
(7) Quote from Luzius Wildhaber, President of ECHR
“In one sense this is hardly astonishing in view of the frequent overlap between breaches of the main substantive guarantees and of the non-discrimination provision. The thrust of the Convention as a whole is directed against unjustified arbitrariness as being inimical to the rule of law. It is moreover inherent in the rule of law that the law should be applied in an equal manner. A finding of arbitrary interference with fundamental rights will commonly imply an element of unjust difference of treatment, thus rendering to some extent superfluous a further finding as to the discriminatory nature of the interference. The Court’s prudence in this area may also be explained by the fact that, according to the traditional notion of discrimination, a finding of discrimination will often be understood as attributing a degree of discreditable motivation to the authorities concerned, an allegation which may be and usually is difficult to substantiate, particularly at international level. Finally, the finding of discrimination in some contexts will be tantamount to the finding of the existence of a practice of Convention violations, which the Court has shied away from, preferring to limits review to the facts of the case before it.”
(8) Belgian Linguistics case (language discrimination). The ECtHR said:
“[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.”
(9) 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.”
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