From last week – Part 4
The Court interpreted Article 14 in the Belgian Lingusitics case, decided in 1968 and has repeated those conclusions in later cases.
The Court stated, “The principle of equality of treatment is violated (or in the words of the Marckx case “a distinction is discriminatory”) 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 in treatment in the exercise of a right laid down in the Convention must not only pursued 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.
This definition contains two elements. A non discriminatory distinction must have: (a) an objective and reasonable justification that is, it must pursue a legitimate aim; and (b) there must be a reasonable relationship of proportionality between that aim and the means employed to attain it.
Suspect classifications in international law
There are various sources which indicate that race is among international “suspects classifications”. First, a number of cases decided by the International Court of Justice suggest that the norm of non-discrimination has become a rule of customary international law, at least in the context of distinctions made on the basis of race. For example, Judge Tanaka in the South West Africa cases stated, “We consider that the norm of non-discrimination or non-separation on the basis of race has become the rule of customary international law”. In an Advisory Opinion of the International Court of Justice in 1971, the Nambia case, the Court stated, “To enforce distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter.”
Second, the American Restatement of Foreign Relations Law concludes that at a minimum, systematic racial discrimination practised as a matter of state policy is a violation of customary international law. Third, the ICCPR states that States that derogate from obligations under the Covenant in certain emergency situations will be permitted provided that, inter alia, “such measures do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin” (Article 4(1)). Fourth, all existing treaties contain a non discrimination or equality provisions which lists prohibited grounds of discrimination include ‘race’.
In addition to race, international law indicates that distinctions based on sex, in particular are deserving of the highest degree of scrutiny. This conclusion may be drawn from the following factors. First, sexual and racial discrimination are the only two grounds of discrimination which have had sufficient degree of international agreement so as to permit the promulgation specialised treaties devoted solely to non discrimination on these bases. Second, there is a relative marked abundance of international treaties devoted to women and issues related to sexual discrimination.
Third, in M. Mes X, Cabales and Balkandali v. U.K, the European Commission of Human Rights held that the prohibited form of discrimination under Article 14 of the Convention is that of discrimination on the ground of sex. It is generally to be recognised that classification based on sex are to be carefully scrutinised, to eliminate invidious disadvantages. In the same case renamed, Abdulaziz, Cabales & Balkandali, the European Court of Human Rights decided,
“It can be said that the advancement of the equality of the sexes is today a major goal in the members State of the Council of Europe. This means very weighty reasons would have to be advanced before the difference in treatment on the ground of sex could be regarded as compatible with the Convention.”
Fourth, all treaties which list prohibited grounds of discrimination in provision for equality or non- discrimination include “sex.” Fifth the derogation clause of the ICCPR disallows discrimination on the basis of sex, (in addition to race, colour, language, religion, or social origin). Sixth, the American Restatement of Foreign Relations Law states, “Freedom from gender discrimination as state policy in many matters, may already be a principle of customary international law.”
The fact that religion is also an international suspect classification is indicated by the following factors. The General Assembly of the United Nations has adopted a Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief. The American Restatement of Foreign Relations Law concludes that, “There is a strong case that systematic discrimination on grounds of religion as a matter of state policy is also a violation of customary law.”
And looking into the minimum common denominator in all treaties which contain a non discrimination norm and includes lists of grounds of discrimination, one can add religion to those grounds of discrimination deserving of special attention. This is not to suggest that those grounds of distinction which international legal material indicate are deserving of the greatest degree of attention are fixed. In the European Convention case of Inze v. Austria the Court included illegitimacy as a ground of discrimination most likely to be unjustified. International law continues to develop and expand the list of those grounds of discrimination deserving of heightened scrutiny. This is evident from the list set out in the Convention on the Rights of the Child, which includes discrimination on the basis of disability. (Article 2(1)).
Affirmative action towards substantive justice
The fourth and the last issue upon which international law offers a more precise content to a definition of equality or non-discrimination is in the area of affirmative action programs. This subject is generally referred to in international law as “special measures”. International law has long been concerned with the protection of minorities. The UN Charter and subsequently the Universal Declaration of Human Rights focused on the rights of the individual and the principle of non-discrimination.
In 1947, the UN Commission on Human Rights established a Sub-Commission on Prevention of Discrimination and Protection of Minorities. In 1950, the Sub–Commission submitted an Article for the proposed ICCPR on the subject of minority protection. This proposal was subsequently approved by the Commission on Human Rights in 1953, with one amendment and ultimately incorporated into ICCPR as Article 27. The ICCPR, therefore, includes both an equality provision in Article 26 and special protection of minorities. Article 27 states,
“In those States in which ethnic, religious or linguistic minorities exist, persons belonging into such minorities shall not be denied the right in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”
The promulgation of both Articles 26 and 27 indicates a conclusion by the international legal order that, in the words of Sub-Commission Rapporteur Capotorti, in a study which he prepared on the Rights of Persons Belonging into Ethnic Religious and Linguistic Minorities, “prevention of discrimination on the one hand, and the implementation of special measures to protect minorities on the other, are merely two aspects of the same problem: that of fully ensuring equal rights of all persons”. Subsequent treaties made provision for both non-discrimination and certain special measures of protection, and were concerned to ensure their compatibility.
Thus, the I.L.O Discrimination (Employment and Occupation) Convention (No. 111) deems certain special measures of protection or assistance not to be discrimination, (Article 5 of the I.L.O Convention (No.111). The CERD (Article 1(4), and CEDAW (Article 4(1)) also explicitly deem certain special measures not to be discrimination. CEDAW makes obvious the link that is understood between providing special measures and preventing discrimination or implementing equality as found in Article 4(1)) of that Convention.
International law suggests a number of necessary features of a special measure in order for it to be consistent with the principle of equality or non-discrimination. First, both CERD and I.L.O. Convention 111 definitions of discrimination refer to “preference” as a kind of act which in some circumstances may be discriminatory. Hence, preferences which have the same deleterious effects of impairing equality as distinctions, exclusions or restrictions are also discriminatory. Only such references which can be considered special measures will be deemed not to constitute discrimination.
Second, the CERD and the CEDAW, which contains express definitions of special measures, (Article 1(4), Article 2(2) and Article 4(1)) set down that such measures must be undertaken with certain limited purposes, namely, to secure advancement to ensure equal enjoyment of human rights and fundamental freedoms (Article 1(4) CERD) or the acceleration of de facto equality, (Article 4(2) of CEDAW), temporary; (Article 4(1) of CEDAW) cease when certain set objectives are achieved namely equality of opportunity and treatment (Article 4(1) of CEDAW) and not result in the maintenance of unequal or separate standards or rights, (Article 4(4)) of CERD).
Sometimes, international conventional law imposes the duty to take special measure or to create affirmative action programs. This is the case with the CERD and less explicitly the ICCPR. The Committee on the Elimination Against Women, which is responsible for monitoring the implementation of the Women’s Discrimination Convention, has reiterated the importance of this obligation in its “general recommendations” contained in its annual report. As regards the ICCPR, the Human Rights Committee in its General Comment on non-discrimination 18/37 stated that,
“Principle of equality sometimes requires State Parties to take affirmative action to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant.”
Articles 7 ( c) and 13(2) of the ICESCR appear to rule out the possibility of quotas being imposed on the contents of promotion in employment and access to higher education. Article 7(2) stipulates that everyone should have equal opportunity to be promoted in employment subject to no consideration other than seniority and competence. Similarly Article 13(2) ( c) provides that higher education shall be made equally accessible to all on the basis of capacity.
A case could be made, nevertheless, for the operation of quota system in each case on the basis that the terms of Article 7(c) and 13(2) are open to progressive achievement. Thus, a system in which a proportion of places in higher education is set aside for students of a particular group could be justified if it could be shown that it would ultimately contribute to the achievement of equal access on the basis of capacity at some stage in future. The concept of equality features prominently in the debate over affirmative action. Both proponents and critics of affirmative action rely on this concept to justify their position. While the former claims that affirmative action measures are suitable means to achieve greater social equality the latter argue that these measures generally generate inequalities. However, it is recognised in the international human rights law as evidenced above that affirmative action is essential to realise social justice.
Conclusion
This study sought to define the scope of the concept of equality and the rule of non-discrimination and its international legal regime.
Equality of human beings before the law is one of the most important of human rights and that it may be regarded as fundamental in the sense that it is the basis for the development of guaranties of specific human rights.
As noted in this study, the international law has been concerned in particular with four areas of importance to a definition of equality: (1) structural methods of prohibiting discrimination or protecting equality; (2) the issue of whether a discriminatory intention is a necessary element of discrimination; (3) drawing the line between unjustified and justified distinction; (4) the consistency of special measures of protection of with non discrimination.
One structural dimension of equality or non-discrimination norms which will affect its scope is whether it is opened ended or self-contained. As regards discriminatory intention, international legal material suggests that the discriminatory intention is not a necessary element of discrimination or a denial of equality.
The criteria for distinguishing justified from unjustified distention contain two key requisites. Accordingly, a non discriminatory distinction must have (a) an objective and reasonable justification that is, it must pursue a legitimate aim; and (b) there must be a reasonable relationship of proportionality between that aim and the means employed to attain it.
The study observed that the formal equality, with its focus on the abstract individual, has failed to address deeply entrenched patterns of social disadvantage. In framing an alternative concept of substantive equality, distributive justice plays a central role. This means, in turn, that equality requires more than restraint from the State.
The relationship of equality to social, economic and cultural rights has changed markedly with the movement from formal to substantive equality. The principle behind the welfare State is to redress disadvantage, which substantive equality is specifically designed to address. The role of the courts in re-evaluating the State’s eligibility criteria from an equality perspective is, therefore, particularly challenging.
The duty to provide, which constitutes the core of substantive equality, remains a primarily political impetus, unless the Constitution includes express socio-economic rights or courts are in a position to imply such rights from civil and political rights. Nevertheless, even in the absence of such rights, courts have a role to play in furthering substantive equality. To ensure that substantive equality furthers its aims of addressing disadvantage in society, courts will need to develop criteria to assess the State’s policies on resource allocation and the provision of benefits. The courts should not be substituting their decisions for those of policymakers on resource allocation. Instead, they should be demanding proper democratic accountability. This entails an explanation of the decision which is reasonable and proportionate and is based on evidence rather than generalisations or judicial notice.
Social realities have demonstrated, however, that equality which the philosophers visualise is not always attainable in practice, however, sweeping be the pronouncements on equality in the statute book. Many of the discriminations that obtain in society cannot be countered by law alone but need a deep change in social attitudes. However, the attainment of equality is considered to be one of the time-honoured objectives of the law.
