From last week – Part 3
The claim by Bhagwathi J. was repeated in Union of India, Ramana v. International Airport Authority and Ajay Hasia v. Khalid Mujib. Seervai while criticising the ‘new doctrine’, acknowledged that it has a positive aspect, namely, the assertion that Article 14 embodies a guarantee against arbitrariness.
Equality is a new frontier in judicial activism in Sri Lanka. By embarrassing the new concept on equality, our Supreme Court has infused a new dimension to the guarantee of ‘equal protection of the law’ by pronouncing that it also embarrasses the right of the public to administrative justice – to be free from the caprice of arbitrary, executive or administrative action.
Equality and non-discrimination in international human rights law
This section surveys the concept of equality and non-discrimination in international human rights law. It is necessary to introduce relevant international human rights law. The establishment of the United Nations and the adoption of the UN Charter in the aftermath of the World War 11 revoluationalised human rights protection from a subject which was treated under classical international law as being an exclusively domestic matter to a subject within the purview of international community guaranteed by international human rights law.
Today, a normative system of internationally recognised indivisible and interdependent human rights exists. Their content is found, in broad outline, in the International Bill of Human Rights which consists of the Universal Declaration on Human Rights (UDHR) of 1948, International Covenant on Civil and Political Rights (ICCPR) of 1966 and International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966.
In addition, International Human Rights Law embodies conventions and recommendations adopted by International Labour Organization (ILO) and United Nations Educational Scientific, Cultural Organization (UNESCO) and such instruments as Convention on the Rights of the Child (CRC), Convention on the Elimination of All Forms of Racial Discrimination (CERD) and Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
The UN Charter
In the United Nations Charter, faith is affirmed in the equal rights of men and women (Preamble). Non-discrimination as to sex, race, religion or language with respect to human rights is stated twice (Article 1(3); 55 ( c) of the Charter, not as an independent rule, but as the modality for the fulfillment of other rules. In the internal sphere of the United Nations, equality is established (Article 8). With respect to racial discrimination; the International Court of Justice has stated that the provisions of the Charter regarding the promotion of human rights are under certain conditions, legally binding on State parties.
International Bill of Rights: UDHR, ICCPR and ICESCR
“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.”
The Preamble of the UDHR recalls the reference in the Preamble of the UN Charter to ‘the equal rights of men and women’; Article 1 begins in a particular style with the statement. All human beings are born free and equal in dignity and rights. Article 2(1) of the UDHR provides,
The field of application of the rule is, however, limited to the rights and freedoms set forth in this Declaration; this rule of non – discrimination is not established absolutely. In the second paragraph of Article 2, the rule of non – discrimination is expressly confirmed for all countries subjected to limitation of sovereignty. In the two Covenants (the ICCPR and the ICESCR), the tradition of the UDHR is followed at least in the beginning. Part 11 of the two Covenants contains the rule of non-discrimination which largely follows Article 2 of the UDHR. Whereas the UN Charter expressly mentions only four criteria in its clauses on non-discrimination – i.e. race, sex, language and religion, this catalogue has been considerably enlarged since the UDHR in 1948.
The words of Article 2(1) of the UDHR are echoed in Article 2, paragraph 2 of the ICESCR. The ICESCR, however, goes on to provide, in Article 2, paragraph 3, that “Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognised in the present Covenant to non – nationals”. This limitation is confined to developing countries and applies only to economic rights as distinct from social and cultural rights.
The Human Rights Committee set up under the ICCPR has issued under Article 40(4) of the ICCPR among others, a General Comment No.18 (37) on Non Discrimination. Accordingly, non-discrimination together with equality before the law and equal protection of the law without discrimination, constitutes a basic and general principle relating to the protection of human rights. Thus Article 2, paragraph 1 of the ICCPR obligates each State party to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognised in the 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.
Article 26 of the ICCPR not only entitles all persons to equality before the law as well as equal protection of the law, but also prohibits discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth, or other status.
The concept of ‘equal rights’ is confirmed in the ICESCR in a general manner by the fact that the rights pertain to “everyone”, and more specifically in Article 3 which makes express reference to equal rights of men and women. The idea of equality may also be found in a number of other provisions in the ICESCR. Article 7 refers to equal remuneration for work of equal value, to equal pay for equal work and to equal opportunity for everyone to be promoted.
Similarly, Article 13 provides that higher education shall be made equally accessible to all. However, it follows from the structure of the ICESCR, that the most important provision as regards the promotion of equality or of equal right within the ICESCR is Article 2(2). In that provision, recognition of a concept of equality is to be discovered in a negative formulation prohibiting discrimination. Article 2 (2) is as follows,
“The States parties to the present Covenant undertakes 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 racial origin, property, birth or other status.”
Article 2 of the CRC embodies the principle of non discrimination. It provides that government must take measures to ensure that all the rights in the Convention apply without discrimination to all children within the jurisdiction of the State. Discrimination can and does serve to prevent the realisation of all rights
While the obligations under Article 2(1) of the ICESCR is progressive in nature, this does not seem to be the case with regard to Article 2(2). The fact of its physical separation from Art 2 (1) and the inclusion of the word “guarantee” draws one to the conclusion that States are under an obligation to eliminate discrimination immediately. This has been endorsed in the Limburg Principles.
The Committee on ESC Rights expressly stated that it considered Articles 2(2) and 3 as being capable of immediate application by judicial and other organs in many national legal systems. It would seem quite apparent that States are capable of eliminating most de jure discrimination immediately. The most important factor appears to be the contention that elimination of de jure discrimination does not involve significant economic expenditure.
As regards de facto discrimination, legislative action must be considered a necessary first step in any policy. It is evident that any legislative measures taken to be effective should be accompanied by judicial remedies. The provision of such remedies seems to be particularly appropriate given the duty to ‘guarantee’ the exercise of the rights without discrimination. Although legislation is certainly important, it will not necessarily be completely effective. The aspects of discrimination which relate to social attitude cannot be eliminated immediately merely through the enforcement of relevant legislation. Here other measures, particularly, educational and social are more appropriate. The need to take measures beyond legislative action is particularly evident in the pursuit of equality of opportunity.
In contrast to Article 2 (1) (d) of CERD and Article 2 (b) (e) and (f) of CEDAW which require State to bring an end to racial discrimination by any persons, group or organisation, the ICESCR makes no reference to discrimination between private individuals. It is only possible to infer such an obligation from references to de facto equality. That States undertake to guarantee the exercise of the rights without discrimination suggests that the obligation in Article 2 (2) extends beyond mere control of public bodies.
Indeed to the extent that States are required to control private activity in relation to the substantive articles (for example to ensure the right to work or safe and healthy working conditions) Article 2 (2) should also apply. In the General Comment No. 5 relating to persons with disabilities, the Committee on ESCR has given more concrete recognition to this question.
Definition of equality and non-discrimination
This section examines four areas of importance to the definition of equality and non – discrimination in the context of international human rights law. Although equality or non-discrimination is a dominant and recurring theme of international human rights law, the norm is not found in all the different sources of international law in a unified form.
International law has been concerned in particular with four areas of importance to the definition of equality: (1) structural methods of prohibiting of discrimination or protecting equality and non – discrimination; (2) the issue of whether a discriminatory intention is a necessary element of discrimination; (3) drawing the line between unjustified and justified distinctions; (4) the consistency of special measures of protection with non-discrimination.
Structural dimensions
There are two structural dimensions of an equality right or non-discrimination provisions which will affect its substantive capacities.
(a) autonomous or subordinate rights –
The first concerns whether the provision is autonomous or subordinate. Article 26 of the International Covenant on Civil and Political Rights (ICCPR), for instance, is clearly an autonomous or free-standing equality norm. It states in part, “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 grounds such as …..”
This interpretation of Article 26 is confirmed by a General Comment which the Human Rights Committee has produced on non-discrimination. This result has also been applied in individual communications such as broeks v. The Netherland. In this case, the Committee found a breach of Article 26 because women were denied social security benefits on an equal footing with men, despite the fact that the Covenant did not require any State to enact legislation to provide for social security.
On the other hand, Article 2 (1) of the ICCPR, Article 2 of the UDHR, Article 14 of the European Convention on Human Rights and Article 2(1) of the Convention on the Rights of the Child are subordinate equality norms; they prohibit discrimination only in the context of the rights and freedoms set out elsewhere in the instruments.
The jurisprudence of the European Court of the Human Rights suggests that a subordinate non-discrimination clause is to be interpreted in the following way: It should be read in conjunction with each of the rights and freedoms in the Convention as if it formed an integral part of each of the articles laying down rights and freedoms.
Some guarantees of non-discrimination only operate in relation to specific narrowly defined areas as in the ILO or UNESCO Conventions (which relate to employment and education). Article 2(2) of the ICESCR in contrast, applies to a much broader range of rights.
Accordingly, guarantee of non-discrimination should operate in relation to all the economic, social and cultural rights in the ICESCR. However, its application is limited to the rights in the ICESCR, in comparison with Article 26 of the ICCPR as stated above.
To be continued next week
