Equality and non-discrimination: A comparative view of treaty bodies’ practice

The ICESCR guarantees the enjoyment of rights ‘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’.⁹² The ICESCR also guarantees that women and men have the equal right to enjoy these rights.⁹³ The Revised European Social Charter prohibits discrimination in the exercise of the rights it guarantees.⁹⁴ The American Convention on Human Rights guarantees the right to equality before the law and equal protection of the law in addition to the general prohibition on discrimination.⁹⁵ The Protocol of San Salvador guarantees the enjoyment of rights it recognises without any discrimination.⁹⁶

86 Cliff DuRand, Human Rights Today <http://globaljusticecenter.nationbuilder.com/human_rights> (accessed 30 August 2017).

87 Dworkin, Sovereign Virtue, (n 16) 1.

88 Fredman, Substantive Equality Revisited, (n 22) 737;

89 Sandra Liebenberg and Beth Goldblatt, ‘The Interrelationship between Equality and Socio-Economic Rights under South Africa's Transformative Constitution’ (2007) 23 South African Journal on Human Rights 335—361, 351.

90 Liebenberg and Goldblatt (n 89) 340.

91 Ibid.

92 ICESCR, Art 2(2).

93 ICESCR, Art 3. Art 7(a)(i) requires payment of equal remuneration for work of equal value for women and men. It also requires equal pay for equal work. Art 7(c) guarantees equal opportunity in employment and promotion.

94 European Social Charter (Revised), adopted 3 May 1996, entered into force 1 July 1999, European Treaty Series No 163, Art E.

95 American Convention on Human Rights, adopted 21 November 1969 & entered into force 18 July 1978, OAS Treaty Series No. 36; 1144 UNTS 123; 9 ILM 99 (1969), Art 1 & 24.

96 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) OAS Treaty Series No. 69; 28 ILM 156 (1989), Art 3.

The ICESCR does not guarantee equality and non-discrimination as independent rights; it physically separates them from the part that guarantees substantive rights.⁹⁷ That is, a violation of equality and non-discrimination is examined only in conjunction with substantive rights.⁹⁸ In the European Social Charter, the location of the non-discrimination provision is outside the part that guarantees substantive rights.⁹⁹ For this reason, the European Committee held that the provision ‘has no independent existence and has to be combined with a substantive provision of the Charter’.¹⁰⁰ In the American Convention on Human Rights, the non-discrimination provision (article 1(1)) is located in the section dealing with general obligations.¹⁰¹ It also guarantees the right to equality (article 24), which is a substantive right in a different section. With regard to their difference, the Inter-American Court held that the non-discrimination provision applies in conjunction with substantive rights when the alleged discrimination relates to the rights guaranteed in the Convention, while the right to equality applies when the alleged discrimination relates to domestic law or its application.¹⁰²

Non-discrimination provisions impose an immediate obligation on states. Under the ICESCR, the states have undertaken ‘to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind’.¹⁰³ The ICESCR uses the term ‘guarantee’ to convey that the state obligation under this provision is immediate.¹⁰⁴ The physical separation of the non-discrimination obligation (article 2(2)) from the obligation of progressive realisation (article 2(1)) buttresses this view.¹⁰⁵ The drafting history of the ICESCR shows that the drafters intended an immediate obligation under article 2(2).¹⁰⁶ In most of its general comments, the CESCR has identified non-discrimination as one of the immediate obligations under the ICESCR.¹⁰⁷ It also explained that the ‘equal right of men and women to the enjoyment of economic, social and cultural rights is a mandatory and immediate obligation of States parties’.¹⁰⁸ The text and drafting history of the ICESCR are not clear on whether non-discrimination requires the achievement of substantive equality. The CESCR has cleared the doubt by explaining that article 2(2) envisages substantive equality.¹⁰⁹

5.2.2.1 Definition and forms of discrimination

The ICESCR, the European Social Charter, and the American Convention on Human Rights do not define the term ‘discrimination’, unlike other treaties such as the International Convention on the

97 Art 2(2) and Art 3 are in part II while substantive rights are in part III (Arts 6—15).

98 See López Rodríguez v Spain, Communication No. 1/2013, CESCR views adopted 4 March 2016, paras 14.1 – 14.9.

99 Substantive rights are in part II while the non-discrimination provision is in part V.

100 Syndicat des Agrégés de l’Enseignement Supérieur (SAGES) v France, Complaint No. 26/2004, Decision on the merits of European Social Committee of 15 June 2005, para 34.

101 Art 1(1), the non-discrimination provision is in chapter I while the right to equality

102 Case of the Afro-Descendant Communities Displaced from the Cacarica River Basin (Operation Genesis) v Colombia, Judgment of 20 November 2013, para 333.

103 ICESCR, Art 2(2). Italics added.

104 Manisuli Ssenyonjo, Economic, Social and Cultural Rights in International Law (Hart Publishing 2009) 86.

105 Craven (n 7) 181.

106 Yvonne Klerk, ‘Working Paper on Article 2(2) and Article 3 of the International Covenant on Economic, Social and Cultural Rights’ (1987) Human Rights Quarterly 250—273, 260—261.

107 General Comment 3, para. 1; General Comment 11, para 10; General Comment 13, paras 31 & 43; General Comment 14, para 30; General Comment 15, para 17; General Comment 16, paras 16 & 40; General Comment 18, paras 19 & 33;

General Comment 19, para 40; General Comment 20, para 7; General Comment 21, para 40; General Comment 22, para 34; General Comment 23, para 53; General Comment 24, para 17.

108 General Comment 16, para 16.

109 General Comment 20, para 8(b).

Elimination of All Forms of Racial Discrimination (CERD).¹¹⁰ Referring to definitions from other treaties and treaty bodies, the CESCR has provided that:

[Discrimination means] any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights.¹¹¹

The definitions of discrimination by the European Committee and the Inter-American Court contain fewer details than that of the CESCR. The Inter-American Court defines discrimination as ‘any exclusion, restriction or privilege that is not objective and reasonable, and which adversely affects human rights’.¹¹² In CFDT v France, the European Committee held that ‘[t]he notion of discrimination within the meaning of Article E includes, in general, cases where a person or group is treated, without proper justification, less favourably than another’.¹¹³

Identifying forms of discrimination adds some clarity to the definition. The treaty bodies identify other forms of discrimination with qualifiers such as direct, indirect, multiple, intersectional, systemic, formal and substantive discrimination. Direct discrimination is overt because it involves a differential treatment based on a prohibited ground. It ‘occurs when an individual is treated less favourably than another person in a similar situation for a reason related to a prohibited ground’.¹¹⁴ In contrast, indirect discrimination is covert in the sense that ‘laws, policies or practices which appear neutral at face value’ disproportionately impact the enjoyment of rights by individuals or groups based on prohibited grounds.¹¹⁵ According to the European Committee, ‘indirect discrimination may arise by failing to take due and positive account of all relevant differences or by failing to take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all’.¹¹⁶

Systemic discrimination refers to ‘legal rules, policies, practices or predominant cultural attitudes in either the public or private sector which create relative disadvantages for some groups, and privileges for other groups’.¹¹⁷ When discrimination involves differential treatment based on two or

110 International Convention on the Elimination of All Forms of Racial Discrimination (CERD), adopted 21 December 1965, entry into force 4 January 1969, 660 UNTS 195, Art 1(1); See Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted 18 December 1979, entry into force 3 September 1981, 1249 UNTS 13; 19 ILM 33 (1980), Art 1; Convention on the Rights of Persons with Disabilities, adopted 13 December 2006, entry into force 30 March 2007, 2515 UNTS 3; UN Doc. A/61/611 (2006), Art 2.

111 CESCR, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (Art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), para 7.

112 Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion Requested by the United Mexican States, OC-18/03 (17 September 2003), para 84. In CFDT v France, the European Committee of Social Rights held that: The notion of discrimination within the meaning of Article E includes, in general, cases where a person or group is treated, without proper justification, less favourably than another’. Confédération Française Démocratique du Travail (CFDT) v France, Complaint no. 50/2008, Decision of the European Committee of Social Rights (9 September 2009), para 42.

113 Confédération Française Démocratique du Travail (CFDT) v France, Complaint no. 50/2008, Decision of the European Committee of Social Rights (9 September 2009), para 42.

114 General Comment 20, para 10(a).

115 Ibid, para 10(b); Nadege Dorzema et al v Dominican Republic, Judgment of the Inter-American Court of Human Rights (24 October 2012), para 235.

116 Autism Europe v France, Complaint No. 13/2002, Decision on merits adopted on 4 November 2003, para 52.

117 General Comment 20, para 12.

more grounds, it is called multiple discrimination.¹¹⁸ The intersection of discrimination on two or more prohibited grounds gives rise to intersectional discrimination.¹¹⁹

Discrimination is formal when entrenched in constitutions, laws and policy documents.¹²⁰ Elimination of formal discrimination does not ensure substantive equality under article 2(2) of the ICESCR.¹²¹ States should also address discrimination in practice (de facto or substantive discrimination) by

‘paying sufficient attention to groups of individuals which suffer historical or persistent prejudice’.¹²² To eliminate substantive discrimination, states should adopt ‘special measures to attenuate or suppress conditions that perpetuate discrimination’.¹²³

5.2.2.2 Criteria for identifying discrimination

States usually classify and distinguish individuals. Thus, not every distinction amounts to discrimination. The CESCR evaluates differential treatment based on legitimacy of purpose, proportionality of means and aims, and objectivity and reasonability of criteria. The CESCR explained that

Differential treatment based on prohibited grounds will be viewed as discriminatory unless the justification for differentiation is reasonable and objective. This will include an assessment as to whether the aim and effects of the measures or omissions are legitimate, compatible with the nature of the Covenant rights and solely for the purpose of promoting the general welfare in a democratic society. In addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realized and the measures or omissions and their effects.¹²⁴

In López Rodríguez v Spain, the CESCR reaffirmed these criteria although it appears to omit the proportionality element.¹²⁵ The European Committee does not have to develop these criteria as the Revised Charter itself allows a differential treatment based on ‘an objective and reasonable justification’.¹²⁶ However, it has added proportionality and legitimacy elements.¹²⁷ The Inter-American Court uses similar criteria to assess the appropriateness of differential treatment.¹²⁸ I discussed proportionality in Chapter 3.

5.2.2.3 Convergence of substantive equality and economic, social and cultural rights

The distinction between formal and substantive discrimination is similar to the distinction between formal and substantive equality. The CESCR considers that formal (de jure) equality is concerned with

118 Ibid, para 17.

119 Ibid, para 27.

120 General Comment 20, para 8(a).

121 Ibid, para 8(b).

122 Ibid.

123 Ibid, para 9.

124 General Comment 20, para 13; General Comment 16, para 11.

125 López Rodríguez v Spain, Communication No. 1/2013, CESCR views adopted 4 March 2016, para 14.1.

126 European Social Charter (Revised), Art E (Appendix).

127 Associazione Nazionale Giudici di Pace v Italy, Complaint No. 102/2013, Decision on the merits of 5 July 2016, para 73;

European Roma Rights Centre (ERRC) v France, Complaint No. 51/2008, Decision on the merits of 19 October 2009, para 82; Confédération Française Démocratique du Travail (CFDT) v France, Complaint No. 50/2008, decision on the merits of 9 September 2009, para 38.

128 Expelled Dominicans and Haitians v Dominican Republic, IACtHR Judgment of 28 August 2014, para 316; Nadege Dorzema et al v Dominican Republic, IACtHR 24 Judgment of October 2012, para 233; Vélez Loor v Panama, IACtHR Judgment of 23 November 2010, para 248; Juridical Condition and Rights of the Undocumented Migrants, IACtHR Advisory Opinion OC-18/03 of 17 September 2003, para 168.

neutral treatment by a law or policy.¹²⁹ It recognises a substantive conception of equality as concerned ‘with the effects of laws, policies and practices and with ensuring that they do not maintain, but rather alleviate, the inherent disadvantage that particular groups experience’.¹³⁰ I will examine below three areas on which the requirements of a substantive conception of equality converge with state obligations corresponding to the realisation of economic, social and cultural rights. These are priority to members of vulnerable groups, temporary special measures, and structural changes. I use the term ‘social structures’ to refer to the organisation and operation of society including legal or customary rules, institutions, practices, procedures and attitudes that cause inequality, particularly in the enjoyment of economic, social and cultural rights. By ‘structural changes’, I mean modification of the social structures.

a) Identifying and prioritising vulnerable groups

The protection of members of vulnerable¹³¹ groups is central to the interpretation of economic, social and cultural rights. Human rights treaty bodies identify members of vulnerable groups. The purpose of distinguishing vulnerable groups from those who are not, one can argue, is to give priority to the vulnerable. I will further examine whether human rights treaty bodies adopt prioritarianism by requiring states to accord priority to vulnerable groups.

According to Fineman, vulnerability is ‘universal and constant, inherent in the human condition’.¹³² In practice, however, treaty bodies use a different vulnerability concept. The CESCR accords importance to the subject of vulnerability,¹³³ however, it does not offer a clear-cut conception or definition of vulnerability or related terminology,¹³⁴nor does it ‘provide criteria for identifying which individuals or groups qualify as vulnerable or disadvantaged in general or in specific contexts’.¹³⁵

The CESCR does not list vulnerable groups in a particular document. It is still possible to extrapolate a non-exhaustive list of vulnerable groups from its documents. The list, for example, includes women, infants, children, adolescents, older persons, ethnic minorities, indigenous populations, impoverished segments of the population, informal workers, landless persons, non-nationals, people living in disaster-prone areas, persons with disabilities, victims of natural disasters, persons with HIV/AIDS, lesbian, gay, bisexual, transgender and intersex persons, refugees, persons with persistent medical problems and persons with albinism.¹³⁶ The European Committee and the Inter-American Commission on Human Rights recognise similar groups as vulnerable.¹³⁷ Paradoxically, vulnerability is

129 General Comment 16, para 7.

130 General Comment No. 16: The equal right of men and women to the enjoyment of all economic, social and cultural rights (Art. 3 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2005/4, 11 August 2005, paras 6 – 7. The CESCR uses de facto equality or equality in practice as synonyms of substantive equality.

131 Treaty bodies use different terms interchangeably. For instance, the CESCR uses terms such as ‘disadvantaged’,

‘marginalised’, ‘persons in precarious situations’, and ‘groups which suffer historical and persistent prejudice’. In this work, I use the term ‘vulnerable’ for the sake of consistency.

132 Fineman, The Vulnerable Subject, (n 19) 1.

133 Audrey R Chapman & Benjamin Carbonetti, ‘Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions of the UN Committee on Economic, Social and Cultural Rights’ (2011) 33 Human Rights Quarterly 682–732, 723.

134 Ibid.

135 Ibid.

136 General Comment 12, para 13; General Comment 14, paras 12(b) & 35; General Comment 22, para 23; Statement by the CESCR, Social protection floors: an essential element of the right to social security and of the sustainable development goals, 15 April 2015, para 8; Concluding observation on Lebanon (24 October 2016), E/C.12/LBN/CO/2, para 19.

137 Claire Lougarre, ‘Clarifying the Right to Health through Supranational Monitoring: The Highest Standard of Health Attainable’ (2015) Public Health Ethics 1—14, 9; Inter-American Commission on Human Rights, Guidelines for

both universal and particular at the same time.¹³⁸ It is worth noting that being identified as vulnerable might put one at risk of further stigmatisation.¹³⁹

Irrespective of its side effect, the purpose of this classification, it is submitted, is to give priority to vulnerable groups. This is prioritarianism. As discussed above, prioritarianism is one of the meanings of equality in general, particularly in philosophical discourse. The concept also conveys an aspect of the meaning of a substantive conception of equality.¹⁴⁰ Prioritarianism implies giving priority to the worse-off. Largely, the treaty bodies under consideration seem to adopt this view. The CESCR recognises that effective enjoyment of economic, social and cultural rights is ‘often influenced by whether a person is a member of a group characterized by the prohibited grounds of discrimination’.¹⁴¹ Thus, it is necessary to ensure enjoyment of these rights without discrimination.

States should ensure that members of vulnerable groups have equal access to the enjoyment of economic, social and cultural rights.

Accessibility is one of the normative elements of economic, social and cultural rights. With regard to the right to adequate housing, for example, accessibility requires that housing law and policy should take into account the special needs of vulnerable groups.¹⁴² Accessibility also requires that states should ensure enjoyment of economic, social and cultural rights by members of vulnerable groups without discrimination.¹⁴³

However, the formal equal treatment of individuals does not guarantee that members of vulnerable groups have equal access to the enjoyment of the rights compared to other members of society who are better off.¹⁴⁴ Therefore, different treatment of members of vulnerable groups is necessary. Such treatment involves allocation of resources, which are scarce by nature. As a result, states should attend to the needs of members of vulnerable groups before addressing needs of other members of society. For this reason, the CESCR emphasises that eliminating substantive discrimination ‘requires paying sufficient attention to groups of individuals which suffer historical or persistent prejudice’.¹⁴⁵ It is submitted that paying sufficient attention to vulnerable groups implies priority. That is to say, while discharging their positive obligations to protect or to fulfil, states should accord priority to members of vulnerable groups.

The priority requirement seems to emanate from another source too. In its first general comment adopted in 1989, the CESCR stressed that the implementation of the ICESCR requires that ‘special attention be given to any worse-off regions or areas and to any specific groups or subgroups which appear to be particularly vulnerable or disadvantaged’.¹⁴⁶ This requirement applies even when states face a shortage of resources. The CESCR explained that ‘even in times of severe resource constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively

Preparation of Progress Indicators in the Area of Economic, Social and Cultural Rights (19 July 2008), OEA/Ser.L/V/II.132 Doc. 14.

138 Lourdes Peroni & Alexandra Timmer, ‘Vulnerable groups: The promise of an emerging concept in European Human Rights Convention law’ (2013) 11(4) International Journal of Constitutional Law 1056—1085, 1058.

139 Ibid 1072.

140Wesson (n 76) 749.

141 General Comment 20, para 8.

142 General Comment 4, para 8(e).

143 General Comment 15, para 12(c)(iii); General Comment 13, para 6(b); General Comment 12, para 6(b).

144 Ibid.

145 General Comment 20, para 8.

146 General Comment No 1, para 3.

cost targeted programmes’.¹⁴⁷ In evaluating the reasonableness of the measures taken to implement economic, social and cultural rights, the CESCR examines the attention given to members of vulnerable and disadvantaged groups.¹⁴⁸

States must pay special attention to members of vulnerable groups. This requirement by itself, one may argue, implies that states should give priority to the worse off. This reading is plausible because the CESCR expressly requires priority be given to members of vulnerable groups in several instances.

In the general comment on the right to health, for example, the CESCR underlined that: ‘Priority in the provision of international medical aid, distribution and management of resources, such as safe and potable water, food and medical supplies, and financial aid should be given to the most vulnerable or marginalized groups of the population’.¹⁴⁹ The CESCR stresses this requirement in its concluding observations as well. For example, it urged Lithuania ‘to ensure that its national housing policy prioritizes the needs of marginalized and vulnerable groups who lack access to adequate housing and basic facilities and amenities’.¹⁵⁰

The European Committee has a similar practice of paying particular attention to members of

The European Committee has a similar practice of paying particular attention to members of