richard hustad, norwegian centre for human rights, [email protected] © 2009, all rights...

Richard Hustad, Norwegian Centre for Human Rights, [email protected] © 2009, All Rights Reserved

The Right to Non-discrimination

Basic Course on Human Rights

14 May 2009

Richard Hustad, Norwegian Centre for Human Rights, Right to Non-discrimination © 2008, All Rights Reserved

Test for Discrimination:

Is there a Protected Group?

Is Distinction Objective?(No Purpose or Effect?)

Is Distinction Reasonable? (Proportional?)

Is Reason for D. Continuing?

LegalityNo Discrimination !

IllegallityDiscrimination !

NO?

NO?

YES?Is there a Distinction?

YES?


Distinction vs. Discrimination

• Distinction: to treat individuals differently, but within the law– A factual term

• Discrimination: to treat individuals differently, but against the law– A legal term of art


Does Non-discrimination apply to a right not ratified by a state? If the United States gave higher social security pensions to men in comparison to similarly-situated women, although the USA is not a state party to the Covenant on Economic, Social and Cultural Rights which recognizes a right to social security.

A Retired Woman A Retired Man


Is discrimination only a comparison between the majority and a minority?If India subsidized a Muslim school, but not a Buddhist SchoolCan the majority have distinctions between two minorities?

A Muslim School in Mumbai A Buddhist School in India


Is separate, but equal a valid defense?If Saudi Arabia segregates girls and boys into different schools.

A School for Boys in Riyadh A School for Girls


Legally Protected Groups

• These are articulated protected groups– Race, color, sex, language, religion, political or other opinion, national or

social origin, property, birth– Descent (in CERD)– Disability (in CRC)– Nationality, age, and economic position (MWC)

• Also given protection are groups having ”other status”– Vos v. The Netherlands, 1986 HRC 218 (concurring opinion):

• The Covenant provides ”protection against discrimination whenever laws differentiating among groups or categories of individuals do not correspond to objective criteria.”

• ”It has also been interpreted in the sense that whenever a difference in treatment does not affect a group of people but only separate individuals, a provision cannot be deemed discriminatory as such: negative effects on one individual cannot then be considered to be discrimination within the scope of article 26.”


Is this “other status”?A Dutch citizen living in the USA is taxed by The Netherlands differently than a similarly-situated Dutch citizen living in Canada.

Montreal, Canada Los Angeles, California, USA


Is civilian vs. military other status?If in a time of public emergency in one region in Russia, families of military personnel were permitted to use the Internet while families of civilians were forbidden to do so.


Do These People Fall into One of these Categories:Race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status

Forbidden from attending state-run day care because of gender identity

Forbidden from teaching is state-run schools because of gender idenity


Forbidden from teaching is state-run schools because of gender idenity



Forbidden from positions as public prosecutors because of physical appearance



Photo, name, and address published on state television condemning him asbeing untidy and unhygeinic because of the length of his hair.

Do This Person Fall into One of these Categories:Race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status


Do these People Fall into One of these Categories:Race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status

Law forbids these appearances in public places



Charged double for airline tickets because takes up two seats on the plane

Not given driving license because seat belts are not big enough to fasten into

the car seat



High school teacher dismissed from position for teaching that the

holocaust was a myth

High school teacher suspended without pay for organizing the “Pledge allegiance to Obama”

marching drill during history class


The Test of Objectiveness

• CCPR/HRC General Comment 18:– Discrimination means “any distinction […] based on any ground

[…] which has the purpose or effect of nullifying and impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.”


Does this law have a purpose to discriminate?• It shall be an infraction punishable by a monetary fine up to

$1000 and imprisonment up to 30 days to distribute food in any public space for which there is no cost to the recipients.


Does this law have a purpose to discriminate?A French law forbids the throwing of dwarfs for sport or entertainment. The law does not forbid the throwing of non-dwarfs.


Does this law have an effect to discriminate? Is it indirect discrimination?The Oslo Municipal Police forbids all officers who appear in public in their uniforms from wearing any clothing or accessories other than the standard-issued police uniform. All Muslim women who wear head scarfs and refuse to take them off are reassigned to non-public duties.


Does it matter if there was no bad intention on the part of the legislature?

Aren’t these honest looking politicians?


Is this a reasonable basis for distinction?The Czech Republic passes a law to reinstate property rights to those who had left the country under pressure from the previous communist regime, but only to those who are presently citizens and permanent residents of the Czech Republic. The State contends that it has no legal obligation to reinstate property so it does so only to fulfill moral obligations and, in fact, reinstatement of all property rights is not financially possible. Therefore, the State should be able to choose which moral obligations it will fulfill.


Is this a reasonable basis for distinction?Austria denied a Turkish citizen with an open-ended work permit in Austria the ability to be elected to a workers’ council at his place of employment which has the purpose of advancing good work conditions for all employees. Austria defends the action and the law on which is was taken on the basis that only Austrian and EEA nationals are allowed to hold such positions. International law permits different work rights for different individuals (e.g. citizens vs. non-citizens) and, therefore, this is incident to different work rights.


Is this a reasonable basis for distinction?If Chile were to change the conscientious objector rule to avoid mandatory military service from having to convince a board of examiners of the legitimacy of their convictions to an automatic objector status simply by invoking it. However, military service would remain 8 months while objectors would service 16 months, the additional time period being the replacement test for the strength of conscientious convictions.


Is this a reasonable basis for distinction?In Kenya there is a law that requires all airline pilots to retire from pilot services at the age of 60. The State asserts that this is required for public safety reasons and that the age of 60 is the internationally-accepted retirement age in the airline industry.


Recommended Reading:International Freedom from Discrimination

• Wouter Vandenhole, Non-discrimination and Equality in the View of the UN Human Rights Treaty Bodies– Oxford: Intersentia, 2005

– ISBN: 90-5095-500-2

• Sandra Fredman, Philip Alston & Grainne Burca (eds.), Discrimination and Human Rights: The Case of Racism– Oxford University Press, 2001

– ISBN: 978-0199246038


© 2009

• This presentation is the copyright of Richard Hustad.• All rights are reserved. There is no claim to any of the photographs, illustrations, or

quotations—all of which are either in the public domain or are a fair use exception to copyright protection for educational purposes.

• Except for the quotation of short passages for the purposes of criticsm and review, no part of this publication may be represented, reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the author.

• Permission is expressly granted for educational or any other not-for-profit purpose as long as credit is attributed according to contemporary methods and the author is notified in writing. The author retains the right to revoke this grant at any time, retaining sole discretion to do so.

• (This presentation has been created solely for educational purposes and reflects the research on and conceptualization of the topic by the author. The copyright claim is exerted primarily to prevent other lecturers from presenting this PPT as their own work.)

Contact Info:

Richard HustadPhone: 22 84 20 58

E-mail: [email protected]: Norwegian Centre for Human Rights, Room 344

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