Sustantive Equality and Sustantive Equality and Human RightsHuman Rights

Lilla FarkasLilla Farkas

Farkas.lilla@cfcf.huFarkas.lilla@cfcf.hu

Legitimacy of HR language when Legitimacy of HR language when applying REDapplying RED

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

HR language in RED I.HR language in RED I.

RED Article 2(1): there shall be no RED Article 2(1): there shall be no direct or indirect discrimination direct or indirect discrimination based on racial or ethnic origin.based on racial or ethnic origin.

RED Article 3(1): RED shall apply to RED Article 3(1): RED shall apply to all persons, as regards both the all persons, as regards both the public and public and private sectorsprivate sectors, , including public bodies, in relation toincluding public bodies, in relation to

HR language in RED II.HR language in RED II.

(a)-(c) employment;(a)-(c) employment; (d) membership/involvement in an organisation of (d) membership/involvement in an organisation of

workers or employers;workers or employers; (e) social protection, incl social security and (e) social protection, incl social security and

healthcare;healthcare; (f) social advantages;(f) social advantages; (g) education;(g) education; (h) access to and supply of goods and services (h) access to and supply of goods and services

which are available to the public, including which are available to the public, including housing.housing.

HR language III.HR language III. ICERD Article 5 (e): States Parties undertake to prohibit and to ICERD Article 5 (e): States Parties undertake to prohibit and to

eliminate racial discrimination in all its forms and to guarantee the eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national right of everyone, without distinction as to race, colour, or national or ethnic origin, notably in the enjoyment of : or ethnic origin, notably in the enjoyment of :

(i) The right to work …; (i) The right to work …; (ii) The right to form and join trade unions; (ii) The right to form and join trade unions; (iii) The right to housing; (iii) The right to housing; (iv) The right to public health, medical care, social security and (iv) The right to public health, medical care, social security and

social services; social services; (v) The right to education and training; (v) The right to education and training; (f) The right of access to any place or service intended for use by (f) The right of access to any place or service intended for use by

the general public, such as transport hotels, restaurants, cafes, the general public, such as transport hotels, restaurants, cafes, theatres and parks. theatres and parks.

Economic and social rights + non-discrimination as stipulated in Economic and social rights + non-discrimination as stipulated in ICESCR, ICERD – education also covered in ECHR (Protocol 12)ICESCR, ICERD – education also covered in ECHR (Protocol 12)

Justiciability of ES Rights in REDJusticiability of ES Rights in RED

Economic and social rights programmatic Economic and social rights programmatic under RED?under RED?

Individual justice (rIndividual justice (right to individual ight to individual petitionpetition) v. traces of group justice) v. traces of group justice (indirect (indirect discrimination discrimination in community lawin community law– eg. – eg. of of application: application: Ostrava II)Ostrava II)

Rights viz. the State v. Rights viz. the State v. the the private sectorprivate sector HR law’s effect on implementation of REDHR law’s effect on implementation of RED: :

interpretation of substantive rightsinterpretation of substantive rights

HR law’s effect on RED I.HR law’s effect on RED I.

RED Article 5: With a view to ensuring RED Article 5: With a view to ensuring full equalityfull equality in in practicepractice, the principle of equal treatment , the principle of equal treatment shall not shall not preventprevent any Member State from maintaining or adopting any Member State from maintaining or adopting specific measures to prevent or compensate for specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin. disadvantages linked to racial or ethnic origin. OPTIONALOPTIONAL

ICERD ICERD Article 2.2Article 2.2:: States Parties States Parties shallshall, when the , when the circumstances so warrant, take, in the social, economiccircumstances so warrant, take, in the social, economic … … fields, fields, special and concrete measuresspecial and concrete measures to ensure the to ensure the adequate development and protection of certain racial adequate development and protection of certain racial groupsgroups or individuals belonging to them, for the purpose of or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human guaranteeing them the full and equal enjoyment of human rights and fundamental freedomsrights and fundamental freedoms … … MANDATORYMANDATORY

HR law’s effect on RED II.HR law’s effect on RED II. RED Article 15: sanction must be effective, RED Article 15: sanction must be effective,

proportionate and dissuasive – is positive action proportionate and dissuasive – is positive action the only such sanction in some instances?the only such sanction in some instances?

ICERD Article 3:ICERD Article 3: States Parties particularly States Parties particularly condemn racial segregation condemn racial segregation …… and undertake to and undertake to preventprevent, prohibit and , prohibit and eradicateeradicate all practices of all practices of this naturethis nature

ICERD Article 5: States Parties undertake to ICERD Article 5: States Parties undertake to prohibit and to prohibit and to eliminateeliminate racial discrimination in racial discrimination in all its forms all its forms ……

ECHR case law I.ECHR case law I.

ThlimmenosThlimmenos:: “The right not to be discriminated against “The right not to be discriminated against … … is is also violated when States without an objective and also violated when States without an objective and reasonable justification fail to treat differently persons reasonable justification fail to treat differently persons whose situations are significantly differentwhose situations are significantly different..”” BUT no BUT no positive obligationpositive obligation

ConnorsConnors: vulnerable position of Gypsies : vulnerable position of Gypsies (as an ethnic (as an ethnic minority group) minority group) warrants special consideration of their warrants special consideration of their needs arising from Gypsy way of life, and needs arising from Gypsy way of life, and imposes imposes positive obligation on States under Article 8positive obligation on States under Article 8

Cyprus v. TurkeyCyprus v. Turkey: Once special measures are in place for : Once special measures are in place for the education of an (ethnic) the education of an (ethnic) minorityminority group group, they shall be , they shall be maintained.maintained.

ECHR case law II.ECHR case law II. D.H. and others 2007 (Ostrava II): D.H. and others 2007 (Ostrava II): unless special measures unless special measures taken to taken to

accommodate Roma (ethnic) minority needsaccommodate Roma (ethnic) minority needs, no justification for , no justification for discriminationdiscrimination

at the very least, there is a danger that the tests were biased and that the 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 results were not analysed in the light of the particularities and special particularities and special characteristics of the Roma childrencharacteristics of the Roma children who sat them. In these who sat them. In these circumstances, the tests in question cannot serve as justification for circumstances, the tests in question cannot serve as justification for difference in treatmentdifference in treatment

It also appears indisputable that the Roma parents were faced with a It also appears indisputable that the Roma parents were faced with a dilemma: a choice between dilemma: a choice between ordinary schools that were ill-equipped to ordinary schools that were ill-equipped to cater for their children's social and cultural differencescater for their children's social and cultural differences and in which and in which their children risked isolation and ostracism and special schools where the their children risked isolation and ostracism and special schools where the majority of the pupils were Romamajority of the pupils were Roma

the schooling arrangements for Roma children were not attended by the schooling arrangements for Roma children were not attended by safeguardssafeguards that would ensure that that would ensure that … … the the State took into account their State took into account their special needs as members of a disadvantaged classspecial needs as members of a disadvantaged class

ECHR case law IIECHR case law IIII..

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

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

CERD CERD General Recommendation No. 19: Racial segregation and General Recommendation No. 19: Racial segregation and

apartheid – apartheid – obligation to take obligation to take positive action to fight positive action to fight discrimination in private spherediscrimination in private sphere

a condition of partial segregation may also arise as an a condition of partial segregation may also arise as an unintended by-productunintended by-product of the actions of of the actions of private private personspersons. .

In many cities residential patterns are influenced by group In many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences in income, which are sometimes combined with differences of race … so that … individuals suffer a form of differences of race … so that … individuals suffer a form of discrimination in which racial grounds are mixed with other discrimination in which racial grounds are mixed with other grounds. grounds.

CERD invites States to work for the CERD invites States to work for the eradicationeradication of any of any negative consequences that ensue, and to describe any negative consequences that ensue, and to describe any such such actionaction in their periodic reports. in their periodic reports.

ECOSOC ECOSOC General Comment No. 13: The right to General Comment No. 13: The right to

education (31) – education (31) – limits to justification limits to justification for discriminationfor discrimination

The prohibition against discrimination The prohibition against discrimination enshrined in article 2 (2) of the Covenant enshrined in article 2 (2) of the Covenant is is subject to neither progressive subject to neither progressive realization nor the availability of realization nor the availability of resourcesresources; it applies fully and ; it applies fully and immediately to all aspects of education immediately to all aspects of education and encompasses all internationally and encompasses all internationally prohibited grounds of discrimination. prohibited grounds of discrimination.

Minority rightsMinority rights Permanent International Court of Justice advisory opinion on Permanent International Court of Justice advisory opinion on

Minority Schools in AlbaniaMinority Schools in Albania – – special group rights in order to special group rights in order to accommodate minority needs BUT accommodate minority needs BUT no positive obligation on no positive obligation on StatesStates

““Equality in law precludes discrimination of any kind; whereas Equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between order to attain a result which establishes an equilibrium between different situations.” different situations.” DeprivationDeprivation of the minority community from of the minority community from institutions that ensure the preservation of minority ‘peculiarities’ institutions that ensure the preservation of minority ‘peculiarities’ would render minority rights protection ‘illusory’ as it could would render minority rights protection ‘illusory’ as it could compel the minority “to renounce that which constitutes the very compel the minority “to renounce that which constitutes the very essence of its being a minority”.essence of its being a minority”.

FCNM Article FCNM Article 3.2: ethnic minority rights can be exercised 3.2: ethnic minority rights can be exercised individually as well as in community with othersindividually as well as in community with others

FCNM Article FCNM Article 44..2: full and effective equality – measures shall be 2: full and effective equality – measures shall be proportionateproportionate and and aim at accommodating minority needsaim at accommodating minority needs