Discrimination

The prohibition of discrimination is an essential human right. In international human rights law, the concept of discrimination denotes cases of unequal treatment that are particularly severe because they are based on race, ethnic origin, gender, religion or other features that define the identity of the persons concerned.

The 1945 Charter of the United Nations, along with the Universal Declaration of Human Rights (1948) and the two 1966 United Nations Human Rights Covenants guarantee respect for human rights without distinction of any kind.

  • Article 2 of the Universal Declaration of Human Rights states that “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

  • Article 26 of the Covenant on Civil and Political Rights also stresses that “All persons are equal before 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 persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
The prohibition of discrimination is therefore violated in cases where a disadvantageous distinction is made using one of the attributes listed above. Attributes such as age, health, disability or sexual orientation may also amount to discrimination.

Over time and within the framework of the UN, several treaties have been created to address specific categories of discrimination such as the 1965 Convention on the Elimination of All Forms of Racial Discrimination and the 1979 Convention on the Elimination of All Forms of Discrimination against Women. In 1989, the Human Rights Committee defined the term "discrimination" as follows: “any distinction, exclusion, restriction, or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status, 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 and freedoms” [1].

Equal treatment of persons is thus an essential and central element of international human rights law. The prohibition of discrimination implies different elements, depending on the actual situation. Indeed, as mentioned by Walter Kälin, Lars Müller and Juditu Wyttenbach, [2] discrimination, and therefore a situation of human rights violations, can be embodied by: “unequal treatment by the law of persons who find themselves in the same situation”; “unequal application of legal provisions on such persons without well-founded, objective reasons”; or “equal treatment of persons who find themselves in different situations justifying differential treatment” [3].

1. See Symonides, J. and Volodin, V. (eds), A Guide to Human Rights: Institutions, Standards and Procedures, UNESCO, Paris, 2001, p. 161.

2. See Kälin, W., Müller, L., and Wyttenbach, J., The Face of Human Rights, Lars Müller Publishers, Switzerland, 2004, p. 120.

3. Ibid.