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Д
.
Хайруллаева
,
Жаҳон
иктисодиёти
ва
Дипломатия
Университети
мустақил
изланувчиси
NON-DISCRIMINATION AND MINORITY RIGHTS IN
INTERNATIONAL LAW
Аннотация
:
мазкур
мақолада
инсон
ҳуқуқлари
бўйича
асосий
халқаро
-
ҳуқуқий
ҳужжатларда
камситмаслик
тамойилининг
озчиликларга
нисбатан
қўлланилиши
масалалари
таҳлил
қилинган
.
Озчиликларнинг
тенглиги
ва
уларга
тенг
муносабатда
бўлиш
борасида
муҳим
бўлган
билвосита
ва
бевосита
камситишни
таъқиқлаш
инсон
ҳуқуқлари
бўйича
асосий
халқаро
-
ҳуқуқий
ҳужжатларда
таъминланган
ҳамда
мазкур
ҳужжатларнинг
назорат
органлари
юрисдикциясида
кузатилади
.
Калит
сузлар
:
озчилик
,
камситмаслик
,
камситишга
йўл
қўймаслик
,
тенглик
ва
бошқалар
.
Аннотация
:
целью
данной
статьи
является
изуче
-
ние
положений
о
недискриминации
базовых
междуна
-
родно
-
правовых
документов
по
отношении
к
меньшин
-
ствам
.
Запрещение
прямой
,
так
же
как
и
косвенной
дискриминации
которое
является
важным
в
обеспече
-
нии
равенства
меньшинств
и
равного
обращения
к
ним
обеспечено
в
международных
документах
по
правам
человека
и
наблюдается
в
юрисдикции
надзорных
ор
-
ганов
данных
договоров
.
В
данной
статье
предприни
-
мается
попытка
выявить
и
оценить
уровень
защиты
прав
меньшинств
принципом
недискриминации
.
Ключевые
слова
:
меньшинства
,
недискримина
-
ция
,
дискриминация
,
равенство
Annotation:
the article aims to examine non-
discrimination clause of the basic international human
rights instruments in regard to minorities. Prohibition of
direct as well as indirect discrimination which is important
in provision of equality and equal treatment of minorities is
set forth in international human rights treaties and ob-
served in case law of supervisory bodies of international
treaties on human rights. The present paper attempts to
identify and assess the extent of protection of minority
rights by non-discrimination provisions.
Key words:
minorities, non-discrimination, discrimina-
tion, equality.
The principles of non-discrimination and equality are a
cornerstone of democracy, and indeed, they imbue and
inspire the whole human rights concept.[1, p.458] These
principles have been the base of contemporary interna-
tional law of human rights; inter alia international minority
protection system has been gradually shaped upon the
framework
of
these
principles.
However,
non-
discrimination is essential and considered to be
conditio
sine qua non
in the minority protection, this system is
widely acknowledged to be formed on two pillars: non-
discrimination and special provisions for the protection and
promotion of minorities. [2, p.216]. Notwithstanding the
importance of existent international minority-specific in-
struments, basic human rights treaties enshrine a general
framework of human rights and freedoms which is essen-
tial to be guaranteed on the basis of equality for minorities.
In this regard it appears to be important to examine
whether these general provisions ensure sufficient protec-
tion from discrimination on the grounds expressing minori-
ty characteristics.
The prohibition of discrimination strengthens the rule
on the equal enjoyment and exercise of all human rights.
Each international instrument prohibits discrimination on
different grounds. Namely, International Covenant on Civil
and Political Rights
[3] (ICCPR) and the International Cov-
enant on Economic, Social and Cultural Rights [4]
(ICESC) enumerate race, colour, language, religion, na-
tional origin or other status, whereas European Conven-
tion on Human Rights (ECHR) [5]
goes beyond the Cove-
nants referring to association with national minority along
with the other elements of the minority definition. Nonethe-
less, repeated references to national or ethnic origins,
race, language or religion clearly cover minority situations.
Supervisory bodies of the treaties rely on the same non-
discrimination grounds as are employed in international
human rights law. [6, p.147]
Article 26 ICCPR states that “all persons are equal be-
fore 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 per-
sons equal and effective protection against discrimination
on any ground such as race, colour, sex, language, reli-
gion, political or other opinion, national or social origin,
property, birth or other status”. The meaning of the provi-
sion allowed numerous debates as to its applicability. The
issue was solved by the Human Rights Committee’s
(HRC) General Comment No.18 [7]
which announced au-
tonomous right of article 26, extending protection to dis-
crimination in law or in fact in any sphere of life, including
economic and social issues. The clause does not set pro-
hibition of discrimination only by the state or other public
authorities, but by private actors as well. The provision
also enshrines a positive right to equality which is proved
to be essential for minorities to be treated equally. The
non-discrimination clause of the ICESC (Article 2) is simi-
lar to the ICCPR, but strengthens the right to ‘exercise’
which expands to every right set in the Covenant. Namely,
Article 13 (right to education) refers to promotion through
education of ‘understanding, tolerance and friendship
among all nations and all racial, ethnic or religious groups’
potentially transform the substantive exercise of the right
to education generally, into an instrument for minority pro-
tection. As to the regional documents the ECHR asserts in
Article 14 non-discrimination clause which became a free-
standing one with the adoption of Additional Protocol
№
12 in 2005 which broadens the scope of Article 14 ECHR
beyond the enjoyment of the rights and freedoms set forth
in the Convention.
Nevertheless the explicit merit of these treaties in
maintenance of equality, none of them identifies definition
or constitution of ‘discrimination’. The Article 1 of the Inter-
national Convention on the Elimination of All Forms of
Racial Discrimination (ICERD) [8] and General Comment
of the HRC provide the definition to discrimination, which
covers any 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 foot-
ing, of human rights and fundamental freedoms.[7]
It is
repeated in most United Nations specialized human rights
instruments. The definition encompasses basic elements
such as determination of difference in treatment, a definite
effect and grounds of protection. Although the definition
does not implicitly refer to minorities, language or religion
the Committee on the Elimination of Racial Discrimination
(CERD) has widely interpreted the ICERD on its relevancy
to members of all minorities [9].
The applications of various
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terms inter alia ‘distinction’, ‘preference’, ‘restriction’, and
‘exclusion’ reveal a differential treatment towards different
groups of population.
The practice of any of these terms could be considered
as sufficient to ground the aim of discrimination. For in-
stance, ‘restriction’ embodies unreasonable limitation of
certain individuals or groups in comparison to others. The
differentiation based on minority membership or character-
istics do not always imply discrimination. According to
Fernand de Varennes “Equality and the right to non-
discrimination require that individuals be protected against
unreasonable or unacceptable different treatment” [10,
p.79-80].
.
In some cases, individuals or certain groups may
be imposed to the legitimate restriction of their rights.
Namely, in
Gillot et al. v France
[11] HRC considered that,
in the context of referendums arranged in a process of
decolonization and self-determination, the limitation on
participation was legitimate for persons who had sufficient
close relationship to the territory whose future was being
decided. So, HRC held that there had been no violation of
Article 25 as the restriction was reasonable and legitimate.
In this regard the HRC in General Comment No.18 de-
termines that not every differentiation of treatment will
constitute discrimination, if the criteria for such differentia-
tion are reasonable and objective and if the aim is to
achieve a purpose which is legitimate under the ICCPR.
[7]
The same rationale is employed in the case law of the
European Court of Human rights (ECtHR). In
Belgian Lin-
guistic Case
[12]
the ECtHR states that the violation of
non-discrimination principle occurs only if the distinction
had no objective and reasonable justification, legitimate
aim and proportional relation to that legitimate goal.
The reference to ‘effect’ and ‘purpose’ of differential
measures in the definition means that prohibition address-
es indirect discrimination. Indirect discrimination is com-
mented by the CERD to be determined as whether the
action has an unjustifiable disparate impact upon a certain
distinguished group [13].
The European Union Race Di-
rective presents the same definition [14].
This rationale
applied by CERD could be seen, namely, in
L.R. et al. v
Slovak Republic
[15]. The CERD found an act of indirect
racial discrimination in a breach of State’s obligation under
Article 5(e) (iii) of ICERD.
The influence of CERD work is apparent in the jurisdic-
tion of other international supervisory bodies, such as the
HRC, [16] International Court of Justice [17], European
Court of Justice [18]
and ECtHR [19]. Namely, in
Singh
Bhinder v Canada,
the HRC accepted that general rule
neutral on its face did discriminate against persons of reli-
gious minority. Moreover, in
D.H. and others v Czech Re-
public
concerning racial segregation, the ECtHR
recog-
nized a disproportionate impact of a neutral rule
on particular groups, which draws up
indirect dis-
crimination. Acknowledgment of indirect discrimination
entails an obligation for states to treat differently persons
in different situations and adopting special measures (af-
firmative actions) which implicitly result in achieving sub-
stantive equality. As K.Henrard states, prohibition of dis-
crimination constitutes the outer limit of acceptable affirm-
ative action, consequently in order to be legitimate an af-
firmative action measure should be objectively and rea-
sonably justified, requiring both a legitimate aim and a
relationship of proportionality between aim and differentia-
tion [2, p.320].
As regards equality, Western equality doctrine bases
on Aristotelian formula that “Things (persons) that are
alike should be treated alike, while things that are unalike
should be treated unalike in proportion to their unalike-
ness” [10, p.79].
On the contrary, identical treatment
means treating unequals equally which could be as ad-
verse as treating equals unequally. This formal equality
formulation is widely applied by international judiciary bod-
ies and recognized by most scholars [2, p.318; 10, p.78].
Namely in
Thlimmenos v Greece
[20]. ECtHR
considers
the right under the Article 14 ECHR is violated when
States treat differently persons in analogous situations
without providing an objective and reasonable justification.
Moreover, the Court considers another facet of the prohibi-
tion of discrimination in Article 14.
This right is as well violated when States without an
objective and reasonable justification fail to treat differently
persons whose situations are significantly different. But
this widely applied approach has not been supported by its
opponents. Aristotelian approach as a formal one is not
applicable regarding which persons to be treated alike.
[21, p.69]
Fundamental to the critique of formal equality is
its inability to address the historical disadvantage suffered
by those subject to discrimination and to recognize that
the effect of the differential may in fact be heightened as a
result. [22, p.320] Consequently, S.Fredman distinguished
‘formal’ from ‘substantive’ suggesting that ‘distributive jus-
tice plays a central role’ in the latter which ‘means, in turn,
that equality requires more than restrain from the state. In
addition it calls for a duty upon the state to take positive
measures to promote equality, including, where appropri-
ate, allocation of resources’. [23, p.163]
The importance of
these measures is underscored by McKean, who believes
that the concept of equality of individuals includes two
contemporary notions: (1) the principle of non-
discrimination, which is a negative aspect of equality de-
signed to prohibit differentiation on irrelevant, arbitrary or
unreasonable grounds; and (2) the principle of protection
or special measures, designed to achieve 'positive' equali-
ty [24, p.8]
.
But K.Henrard is of opposite opinion, that to the extent
that ‘non-discrimination’ opens up to the concerns of sub-
stantive equality (including obligation to adopt special
measures for minorities), more can be achieved through
the non-discrimination pillar, concomitantly reducing the
additional need for minority-specific rights. [2, p.316]
This
point is acceptable, as issues concerning special
measures arise when the basic rules of the equal enjoy-
ment and the equal exercise of human rights and non-
discrimination are not sufficient for adequate minority pro-
tection. Such measures are important to promote full and
effective equality of minorities in all spheres of life.
To conclude, an overview reveals that primary interna-
tional human rights instruments enshrine open-ended pro-
vision which prohibits discrimination ‘for all’ on “any
ground” with important reference to “other status”, which
indicates that the list of prohibited grounds of discrimina-
tion is nonexhaustive. It is implicitly important to cover
minority particularities. International human rights instru-
ments enshrine non-discrimination clause as a guarantee
of equal treatment, but does not imply special relevance to
minorities. The prohibition of indirect discrimination which
is accepted in most human rights treaties is important
overture towards substantive equality. However, it has so
far not let to the recognition of positive obligations to adopt
minority specific measures, but is being implemented in
the jurisprudence of supervisory bodies of the treaties,
such as HRC, CERD, ECJ and ECtHR.
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Although the above mentioned instruments are not mi-
nority-specific they serve as a safety-net provision for mi-
norities, since states stay bound by the obligations follow-
ing these treaties. Whereas, the implementation of specific
international documents on minority rights depend on
states’ will, the rights under the basic human rights instru-
ments are protected by an individual claims procedure
before the supervisory bodies. The application of all hu-
man rights and freedoms could be sufficient under the
principles of non-discrimination and equality if the affirma-
tive or positive measures were afforded by the states. The
extent of these measures should be defined within the
Covenants and other human rights instruments. These
special measures have to be adequate and legitimate in
accordance with principle of proportionality.
References:
1. Manfred Nowak. United Nation Covenant on Civil
and Political Rights. Commentary. N.P. Engel Publisher,
1993. –
Р
.458.
2. Kristin Henrard. A patchwork of ‘successful’ and
‘missed’ synergies in the jurisprudence of the ECHR. Syn-
ergies in Minority Protection. European and International
Law Perspectives. Edited by Kristin Henrard and Robert
Dunbar. Cambridge University Press, 2008. –
Р
.316.
3. United Nations General Assembly resolution 2200A
(XXI)
of
16
December
1966,
available
at:
http://www.ohchr.org/en/professionalinterest/pages/ccpr.a
spx.
4. United Nations General Assembly resolution 2200A
(XXI)
of
16
December
1966,
available
at:
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CES
CR.aspx.
5. Council of Europe, 4 November 1950, available at:
6. Gudmundur Alfredsson. Article 4. The Rights of
Minorities in Europe. A Commentary on the European
Framework Convention for the Protection of National Mi-
norities. Edited by Marc Weller. Oxford University Press,
2007. –
Р
.147.
7. United Nations Human Rights Committee “General
Comment
№
18” on Non-discrimination, 1989, UN
Doc.CCPR/C/21/Rev.1/Add.1;
8. United Nations
General Assembly resolution 2106
(XX)
of
21
December
1965,
available
at:
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CER
D.aspx;
9. General Recommendation 24, ‘Reporting of Per-
sons Belonging to Different Races, National/Ethnic or In-
digenous Peoples’, (1999), UN Doc. A/54/18, annex V;
10. Fernand de Varennes, Language, Minoroties and
Human Rights, International Studies in Human Rights,
Martinus Nijhoff Publishers, The Hague/Boston/London,
1996, pp.79-80;
11. Human Rights Committee,
Marie-Helene Gillot et
al. v France
, Communication
№
932/2000 (15 July 2002);
12. European Court of Human Rights,
Belgian Linguis-
tic Case
(23 July 1968);
13. General Recommendation 14, ‘Definition of Dis-
crimination’, (1993), UN Doc. A/48/18.
14. Council Directive 2000/43/EC of 29 June 2000.
15. L.R.et al.
v. Slovakia, Communication No. 31/2003,
U.N. Doc. CERD/C/66/D/31/2003 (Opinion of 7 March
2005).
16. Human Rights Committee, Singh Bhinder v Cana-
da, Communication
№
208/86 (9 November 1989)
.
17. International Court of Justice,
South West Africa
Case
, Second Phase, Report, (18 July 1966).
18. O’Flynn v Adjudication Officer. Case C-237/94
(1996) ECR I-2617; Race Directive, adopted by the Euro-
pean Union on 29 June 2000 (Council Directive
2000/43/EC of 29 June 2000 implementing the principle of
equal treatment between persons irrespective of racial or
ethnic origin).
19. European Court of Human Rights,
D.H. and others
v. Czech Republic (7 February 2006).
20. European Court of Human Rights,
Thlimmenos v
Greece
(6 April 2000).
21. Cases, materials and text on national, supranation-
al and international non-discrimination law, editors: Dag-
mar Schiek, Lisa Waddington, Mark Bell, Hart Publishing,
Oxford and Portland, Oregon 2007, –
Р
.69.
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Rights Law Review. –Oxford University Press, 2007.
–
Р
.320.
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Equality and the Positive Duty to Provide, (21) South Afri-
can Journal on Human Rights, 2005, –
Р
.163.
24. Warwick McKean. Equality and Discrimination un-
der International Law, Clarendon Press. –Oxford, 1983.
–
Р
.8.
