Discrimination

by

David Keane

• LAST REVIEWED: 12 May 2017
• LAST MODIFIED: 30 July 2014
• DOI: 10.1093/obo/9780199796953-0103

Introduction

The spread of the use of the term “discrimination” in the English language is due to the increasing influence of the United States in the late 19th and throughout the 20th century, with discrimination in the sense of making distinctions prejudicial to people of a different race or skin color first recorded in American English in 1866. The gradual dominance of English as the international language of diplomacy ensured its eventual widespread use in international law, although its effect was not felt outside Anglo-American relations until well into the 20th century, as the French traitement différential prevailed. This evolution left some linguistic inconsistencies, with “distinction” a common synonym seen for example in the 1945 UN Charter. The international understanding of discrimination maps closely with the domestic, including concepts of direct and indirect discrimination as well as affirmative action. Discrimination is a key concept in a number of areas of international law, such as foreign investment law and international trade agreements, as well as of relevance in international criminal law, but the scope of the present discussion is confined to international human rights law. Non-discrimination emerged as a key element and principle in the United Nations regime governing the protection of human rights which took root following the Second World War. The importance of the non-discrimination principle under the United Nations is reflected in Article 1 of the 1945 UN Charter, which describes one of the four purposes of the organization as: “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” The technique of listing human attributes which represent forbidden grounds for differentiation arguably has its origins in the protection of freedom of religion and religious practice in an array of early bilateral or multilateral treaties. Subsequently the Minorities Treaties under the League of Nations established a principle whereby nationals belonging to racial, religious, or linguistic minorities were to enjoy freedom from discrimination and the same treatment in law and in fact as other nationals, but it was confined to those resident in specified states. Some of the Minorities Treaties such as Article 2 of the Polish Minorities Treaty also elucidated general non-discrimination clauses, or the right of everyone to equality without discrimination whether belonging to a minority group or not, albeit confined to the state in question. Hence we see an evolution in the number of “grounds” for non-discrimination from centuries of ad hoc negotiated legal protections of religion, to a bundling of race, language, and religion under the League of Nations and applied only to certain states in the broad context of minority rights, to the four UN “Charter grounds” of race, sex, language, or religion applied to all, ushering in a generalized principle in international law. Article 2 of the Universal Declaration of Human Rights 1948 added further grounds such as color and political opinion, and the 1966 International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as regional instruments in Europe, the Americas, and Africa, all contributed additional grounds, interpretations, and applications. The International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD) and the Convention on the Elimination of Discrimination against Women 1981 (CEDAW) reflect the shift from detailing a list of substantive rights which are then subject to the non-discrimination rule, to non-discrimination to the fore as an independent principle. Similarly discrimination is a key concept in the realization of the UN Convention on the Rights of Persons with Disabilities 2008 (CRPD).

Discrimination in International Law

There exists a large body of literature on discrimination in the domestic context, many of which encompass regional and international elements, but fewer works that take what could be called a purely international perspective. The first book on the non-discrimination principle in international human rights law is provided by Vierdag 1973, a work that explores the origin and centrality of non-discrimination to the UN project, and consequently an essential text. An earlier journal article, McKean 1970, similarly examines the content of the non-discrimination principle within the UN structure. McKean quotes a delegate in the Third Committee who stated that “the UN Organisation had been founded principally to combat discrimination in the world,” and his article provides a ready overview of its preeminence under the UN. The premise in Vierdag’s book is that the concept of discrimination is composed of both theoretical and legal positivistic elements. A key component of the former is the notion of equality and its corollary, inequality, explored in mathematics and philosophy as well as law, while the latter is composed primarily of the non-discrimination clauses in the international human rights treaties. An important theme is the link between the non-discrimination principle and minority rights, with Vierdag arguing that the focus on non-discrimination under the UN treaties is a deliberate move away from the failed minority rights regime under its predecessor, the League of Nations. Thornberry 1991 argues that this approach is an overly-wide understanding of the scope of the non-discrimination principle with an overly-narrow reading of minority rights. In the 21st century, non-discrimination is a unanimous state-approved UN principle widely considered customary international law, for with the end of apartheid South Africa, no state overtly advocates for legal or formal discrimination on the basis of any of the four Charter grounds. The Human Rights Committee’s General Comment on Non-discrimination (Human Rights Committee 1989) provides an authoritative overview including, crucially, a definition: any distinction, exclusion, restriction or preference which is based on a number of identified grounds and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights or freedoms. Human rights advocates have shifted the terrain to de facto as well as de jure equality. This evolution is explored in the edited collection Fredman 2001, which provides an excellent introductory sweep of the range of rights-based approaches to non-discrimination from a well-chosen list of contributors. A more recent overview of the human right to non-discrimination is found in chapter 3 of Moeckli 2008, including international, regional, and national sources, and key concepts such as proportionality. Vandenhole 2005 explores the theme of non-discrimination across the range of work of the UN treaty bodies in their respective spheres of expertise. As well as adopting a committee-by-committee approach, it examines cross-cutting issues such as multiple discrimination and private discrimination, as well as the span of grounds covered. The aim is to review comparatively all the UN committees’ actions in relation to non-discrimination and equality, including general comments, concluding observations, and individual complaints procedures. Finally the International Journal of Discrimination and the Law captures the rich array of analysis on discrimination from a regional and international perspective, including case commentaries which situate domestic adjudications in a wider context, such as Vrielink 2013.

• Fredman, Sandra, ed. Discrimination and Human Rights: The Case of Racism. Academy of European Law. Oxford: Oxford University Press, 2001.

  DOI: 10.1093/acprof:oso/9780199246038.001.0001

  Edited collection on the evolution of non-discrimination and its contemporary application under the United Nations treaty and charter-bodies.

• Human Rights Committee, General Comment No. 18: ‘Non-discrimination’ HRI/GEN/1/Rev.4 (1989).

  Authoritative interpretation which formulates a legal definition and understanding of the meaning and reach of non-discrimination at the international level.

• McKean, Warwick. “The Meaning of Discrimination in International and Municipal Law.” British Yearbook of International Law 44 (1970): 177–192.

  Early article exploring the municipal origins of the concept of discrimination and its impact on international law.

• Moeckli, Daniel. Human Rights and Non-discrimination in the “War on Terror.” New York: Oxford University Press, 2008.

  DOI: 10.1093/acprof:oso/9780199239801.001.0001

  Contemporary analysis of discrimination as an impact of the war on terror that includes a useful chapter that summarizes the origins and sources of non-discrimination in international law.

• Thornberry, Patrick. International Law and the Rights of Minorities. Oxford: Clarendon, 1991.

  Seminal work that explores the reemergence of minority rights following decades of marginalization at the UN level, including the key interchange between non-discrimination and minority rights.

• Vandenhole, Wouter. Non-discrimination and Equality in the View of the UN Human Rights Treaty Bodies. Antwerp, Belgium: Intersentia, 2005.

  This book explores the work of the UN treaty bodies through the lens of non-discrimination and represents an important contribution to the understanding of the concept in its application at the international level.

• Vierdag, Bert E. W. The Concept of Discrimination in International Law. The Hague: Martinus Nijhoff, 1973.

  DOI: 10.1007/978-94-010-2430-3

  First book solely on the concept of non-discrimination in international law, providing history and forensic detail on all the non-discrimination clauses in the UN treaties in force at the time.

• Vrielink, Jogchum. “‘Islamophobia’ and the Law: Belgian Hate Speech Legislation and the Wilful Destruction of the Koran.” International Journal of Discrimination and the Law 13.4 (2013): 1–12.

  A journal article that offers a sample of the range of themes raised in this journal dedicated to a transnational perspective on discrimination.