Sustantive Equality and Human Rights

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Sustantive Equality and Human Rights

• Lilla Farkas
• Farkas.lilla_at_cfcf.hu

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Legitimacy of HR language when applying RED

• RED (3) The right to equality before the law and
  protection against discrimination for all persons
  constitutes a universal right recognised by the
  Universal Declaration of Human Rights, the United
  Nations Convention on the Elimination of all
  forms of Discrimination Against Women, the
  International Convention on the Elimination of
  all forms of Racial Discrimination and the United
  Nations Covenants on Civil and Political Rights
  and on Economic, Social and Cultural Rights and
  by the European Convention for the Protection of
  Human Rights and Fundamental Freedoms, to which
  all Member States are signatories.

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HR language in RED I.

• RED Article 2(1) there shall be no direct or
  indirect discrimination based on racial or ethnic
  origin.
• RED Article 3(1) RED shall apply to all persons,
  as regards both the public and private sectors,
  including public bodies, in relation to

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HR language in RED II.

• (a)-(c) employment
• (d) membership/involvement in an organisation of
  workers or employers
• (e) social protection, incl social security and
  healthcare
• (f) social advantages
• (g) education
• (h) access to and supply of goods and services
  which are available to the public, including
  housing.

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HR language III.

• ICERD Article 5 (e) States Parties undertake to
  prohibit and to eliminate racial discrimination
  in all its forms and to guarantee the right of
  everyone, without distinction as to race, colour,
  or national or ethnic origin, notably in the
  enjoyment of
• (i) The right to work
• (ii) The right to form and join trade unions
• (iii) The right to housing
• (iv) The right to public health, medical care,
  social security and social services
• (v) The right to education and training
• (f) The right of access to any place or service
  intended for use by the general public, such as
  transport hotels, restaurants, cafes, theatres
  and parks.
• Economic and social rights non-discrimination
  as stipulated in ICESCR, ICERD education also
  covered in ECHR (Protocol 12)

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Justiciability of ES Rights in RED

• Economic and social rights programmatic under
  RED?
• Individual justice (right to individual petition)
  v. traces of group justice (indirect
  discrimination in community law eg. of
  application Ostrava II)
• Rights viz. the State v. the private sector
• HR laws effect on implementation of RED
  interpretation of substantive rights

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HR laws effect on RED I.

• RED Article 5 With a view to ensuring full
  equality in practice, the principle of equal
  treatment shall not prevent any Member State from
  maintaining or adopting specific measures to
  prevent or compensate for disadvantages linked to
  racial or ethnic origin. OPTIONAL
• ICERD Article 2.2 States Parties shall, when the
  circumstances so warrant, take, in the social,
  economic fields, special and concrete measures
  to ensure the adequate development and protection
  of certain racial groups or individuals belonging
  to them, for the purpose of guaranteeing them the
  full and equal enjoyment of human rights and
  fundamental freedoms MANDATORY

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HR laws effect on RED II.

• RED Article 15 sanction must be effective,
  proportionate and dissuasive is positive action
  the only such sanction in some instances?
• ICERD Article 3 States Parties particularly
  condemn racial segregation and undertake to
  prevent, prohibit and eradicate all practices of
  this nature
• ICERD Article 5 States Parties undertake to
  prohibit and to eliminate racial discrimination
  in all its forms

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ECHR case law I.

• Thlimmenos The right not to be discriminated
  against is also violated when States without an
  objective and reasonable justification fail to
  treat differently persons whose situations are
  significantly different. BUT no positive
  obligation
• Connors vulnerable position of Gypsies (as an
  ethnic minority group) warrants special
  consideration of their needs arising from Gypsy
  way of life, and imposes positive obligation on
  States under Article 8
• Cyprus v. Turkey Once special measures are in
  place for the education of an (ethnic) minority
  group, they shall be maintained.

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ECHR case law II.

• D.H. and others 2007 (Ostrava II) unless special
  measures taken to accommodate Roma (ethnic)
  minority needs, no justification for
  discrimination
• at the very least, there is a danger that the
  tests were biased and that the results were not
  analysed in the light of the particularities and
  special characteristics of the Roma children who
  sat them. In these circumstances, the tests in
  question cannot serve as justification for
  difference in treatment
• It also appears indisputable that the Roma
  parents were faced with a dilemma a choice
  between ordinary schools that were ill-equipped
  to cater for their children's social and cultural
  differences and in which their children risked
  isolation and ostracism and special schools where
  the majority of the pupils were Roma
• the schooling arrangements for Roma children were
  not attended by safeguards that would ensure that
  the State took into account their special needs
  as members of a disadvantaged class

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ECHR case law III.

• D.H. and others 2007 (Ostrava II) cont if
  discriminatory administrative practice
  established, no need to examine individual
  circumstances

• the relevant legislation as applied in practice
  at the material time had a disproportionately
  prejudicial effect on the Roma community, the
  Court considers that the applicants as members of
  that community necessarily suffered the same
  discriminatory treatment. Accordingly, it does
  not need to examine their individual cases.

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CERD

• General Recommendation No. 19 Racial segregation
  and apartheid obligation to take positive
  action to fight discrimination in private sphere
• a condition of partial segregation may also arise
  as an unintended by-product of the actions of
  private persons.
• In many cities residential patterns are
  influenced by group differences in income, which
  are sometimes combined with differences of race
  so that individuals suffer a form of
  discrimination in which racial grounds are mixed
  with other grounds.
• CERD invites States to work for the eradication
  of any negative consequences that ensue, and to
  describe any such action in their periodic
  reports.

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ECOSOC

• General Comment No. 13 The right to education
  (31) limits to justification for discrimination
• The prohibition against discrimination enshrined
  in article 2 (2) of the Covenant is subject to
  neither progressive realization nor the
  availability of resources it applies fully and
  immediately to all aspects of education and
  encompasses all internationally prohibited
  grounds of discrimination.

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Minority rights

• Permanent International Court of Justice advisory
  opinion on Minority Schools in Albania special
  group rights in order to accommodate minority
  needs BUT no positive obligation on States
• Equality in law precludes discrimination of any
  kind whereas equality in fact may involve the
  necessity of different treatment in order to
  attain a result which establishes an equilibrium
  between different situations. Deprivation of the
  minority community from institutions that ensure
  the preservation of minority peculiarities
  would render minority rights protection
  illusory as it could compel the minority to
  renounce that which constitutes the very essence
  of its being a minority.
• FCNM Article 3.2 ethnic minority rights can be
  exercised individually as well as in community
  with others
• FCNM Article 4.2 full and effective equality
  measures shall be proportionate and aim at
  accommodating minority needs