2.3 Human Rights Norms: Principles of General Application and the Issue of Incorporation
2.3.1 Equality and Non-discrimination – the Underpinnings of Human Rights Lawthe Underpinnings of Human Rights Law
2.3.1.2 Prohibited Grounds of Discrimination and the Human Rights of Non-nationalsand the Human Rights of Non-nationals
As a rule, the international human rights norms addressing equality and non-dis-crimination, set forth the prohibited grounds of discrimination. The lists of these grounds differ from one another to some extent, but the grounds of race, sex, lan-guage and religion are repeatedly mentioned.947 When states legislate against dis-crimination and enumerate the prohibited grounds of disdis-crimination, this also signifies the creation of protected classes of individuals.948 Some of the grounds, particularly those pertaining to sex and race, have been addressed in a range of instruments, reflecting the fact that these grounds have also been considered ones
and ethnicity (to tackle racism). For mainstreaming within the EU, see also the remarks infra in chapter 3.2.
945. Bell (2002), p. 209.
946. Fredman (2001b), pp. 26–27, and (2002), pp. 121–124.
947. The UN Charter refers to race, sex, language or religion. See art. 1.3. The UDHR refers to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. See art. 2. The ICCPR and the ICESCR repeat the grounds stipulated in the UDHR. See the ICCPR, arts 2.1 and 26, and the ICESCR, art. 2.2. The ECHR mentions all these grounds and adds association with a national minority. See the ECHR, art 14, and Protocol 12, art. 1.1. The (revised) European Social Charter refers to race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status. See Part V, art. E.
The UNESCO Convention against Discrimination in Education cites the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth. See art.1.1.
948. Banton (1996), p. 64.
on which discrimination frequently occurs.949 The cornerstone international human rights convention in the area of racial discrimination and racism, the ICERD, refers to the grounds of race, colour, descent, and national or ethnic origin and thus covers a variety of groups that can be characterised on the basis of these criteria.950
The wording of many lists of prohibited grounds of discrimination also suggests that the lists are not exhaustive; the admission of new grounds reflecting changing social mores is made possible through the incorporation of the words “such as”, “or other status”, or the like. For instance, although sexual orientation does not ap-pear in the list of grounds stipulated in the ECHR (including its Protocol 12), the Convention’s case law has acknowledged to some extent the relevance of sexual ori-entation within the framework of the ECHR.951 In fact, the European Court of Human Rights has created a certain hierarchy of different grounds; it has attached varying weight to the grounds of different forms of discrimination, as a result of which states’ discretion with respect to distinctions on the basis of sex, for example, often appears to be narrower than with respect to many other grounds.952 The HRC has also referred to the importance of the principle of equality between men and women and to the fact that the argument of there being a long-standing tradition cannot be maintained as a general justification for the differing treatment of men and women.953
Among the most conspicuous distinctions allowed by human rights law are those relating to non-nationals/non-citizens.954 Whilst the starting point in human rights law is that the human rights enumerated in international documents belong to every individual – irrespective of whether a person is a national/citizen, a non-na-tional/non-citizen residing more or less permanently in the country or just visiting
949. See particularly the ICERD and the CEDAW. See also Boyle and Baldaccini (2001), p.
950. 138. As already discussed, the ICERD is of significance e.g. for indigenous peoples and many groups of non-nationals, including refugees, asylum-seekers, and (im)migrants. See the re-marks supra in chapter 2.2.1.1.1.
951. The European Court of Human Rights has given some protection to homosexual relations under art. 8 of the ECHR on private and family life. See e.g. Dudgeon v. United Kingdom and Norris v. Ireland. For the remarks on the recognition of sexual orientation (homosexual-ity) as well as transsexuality by the Court, see also Ovey and White (2006), pp. 270–278.
952. It has been observed that the European Court of Human Rights requires “very weighty reasons” before a difference of treatment on grounds of sex could be regarded as compatible with the ECHR due to the fact that the advancement of equality between men and women is a major goal in the member states of the CoE. Fredman (2002), pp. 116–117. For the application of the “very weighty reasons” test to discrimination based on illegitimate birth, religion, nationality and sexual orientation, see Gerards (2004), pp. 48–57.
953. Nowak (2005), p. 610.
954. See also the remarks on the concepts of nationality and citizenship and, accordingly, the concepts of nationals/non-nationals and citizens/non-citizens, supra in chapter 2.2.2.
(e.g. as tourist)955 – human rights instruments include provisions expressly allowing certain distinctions on the basis of nationality/citizenship. In practice, these permit the exclusion of non-nationals/non-citizens from the enjoyment of certain rights, in particular political rights. For instance, both the ICCPR and the ECHR make it possible to restrict the political activity of aliens.956 Certain distinctions between nationals/citizens and non-nationals/non-citizens are also admissible in the area of economic and social rights. The ICESCR includes a provision leaving the states parties a large margin of discretion in guaranteeing the economic rights recognised in the Covenant to non-nationals. This provision, however, contains an important qualification: this margin of discretion is available only for developing countries that are party to the Covenant;957 in other words, this option is not available to the European states parties. The (revised) European Social Charter also permits certain distinctions between nationals and non-nationals; essentially, to be covered by the substantive articles of the Charter, foreigners need to be nationals of other states parties to the Charter – thus in practice nationals of the CoE member states.958 The states parties to the Charter have the possibility to extend the application of the instrument to other persons as well if they so wish.959 While the Charter consid-ers migrant workconsid-ers in a separate provision,960 refugees and stateless persons also receive some specific attention in that the Charter refers to the protection afforded to these persons by other international instruments.961 The central reason for the
955. See e.g. art. 2.1 of the ICCPR, which refers to ensuring the rights recognised “to all indi-viduals” within the territory of the party to the Covenant. Art. 1 of the ECHR sets out the duty of the contracting parties to “secure to everyone within their jurisdiction the rights and freedoms” defined in the Convention. For extending the rights of the ICCPR also to non-citizens, see also HRC’s General Comment No. 15 on the position of aliens, and General Comment No. 31 on the nature of the general legal obligation, para. 10.
956. See the ECHR, art. 16, and the ICCPR, art. 25.
957. See art. 2.3.
958. This requirement stems from the fact that the European Social Charter is open for signature by the CoE member states. See the (revised) European Social Charter, Part VI, art. K.1.
The same applied to the 1961 Charter. See art. 35.1. Other requirements are those of lawful residence or regular working within the territory of the party concerned. See the Appendix to the (revised) European Social Charter addressing the scope of the Charter in terms of persons protected, para. 1. The states parties have also undertaken to conclude bilateral and multilateral agreements or other arrangements to ensure equal treatment with their nation-als of the nationnation-als of other parties in respect of social security rights. See art. 12.4.
959. Appendix to the (revised) European Social Charter addressing the scope of the Charter in terms of persons protected, para. 1.
960. See art. 19. See also the remarks on migrant workers supra in chapter 2.1.3.1.1.
961. See the Appendix to the (revised) European Social Charter addressing the scope of the Charter in terms of persons protected, paras 2 and 3. The Charter notes that while law-fully staying in the territory of the state party these persons are entitled to treatment that is as favourable as possible and in any case not less favourable than that specified under the obligations applicable to those persons. References are made to the Refugee Convention and Protocol, the Convention on the Status of Stateless Persons, and other existing
interna-interest of states in excluding non-nationals/non-citizens particularly from the en-joyment of many economic and social rights boils down to states’ concerns over the financial implications involved.962
As mentioned above, the question of the application of the ICERD with re-spect to non-citizens used to be actively debated due to the particular provision in the Convention allowing certain distinctions to be made between citizens and non-citizens. The confusion created by this provision also prompted CERD to address the question in its General Recommendations and, among other things, CERD has pointed out that the point of departure in human rights is that they belong to all persons.963 However, distinctions between nationals/citizens and non-nationals/
non-citizens with respect to the norms applicable in principle to all persons may be possible if they do not amount to prohibited discrimination on the basis of the general rules on justification.964