147. The Concept of Discrimination in General International Law. Questions of equality and discrimination have been the subject of considerable discussion and reflection in international law, both in the interpretation of ‘minorities clauses’ and of similar guarantees of non-discrimination for specific groups, and more recently in the interpretation of general human fights instruments. A survey of this material strongly suggests that a general definition of discrimination has emerged in international law, a definition which would give content to any general international law rule on the subject, and which would also be at least presumptively the meaning to be given to the term in international treaties. This test for ‘discrimination’ involves discovering a distinction based on a prohibited ground which has an invidious or arbitrary effect in preferring or excluding particular classes or persons. The point was strongly made by the European Court of Human Rights in the Belgian Linguistics Case which concerned Article 14 of the European Convention of Human Rights, guaranteeing non-discrimination and equality before the law. The Court said:
It is important … to look for the criteria which enable a determination to be made as to whether or not a given difference in treatment … contravenes Art 14. On this question the Court, following the principles which may be extracted from the legal practice of a large number of democratic States, holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effect of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Art 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.
And it concluded that:
Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention.
Similarly, McKean, in his study on the principle of equality in international law, concludes:
The principle does not require absolute equality or identity of treatment but recognizes relative equality, ie different treatment proportionate to concrete individual circumstances. In order to be legitimate, different treatment must be reasonable and not arbitrary, and the onus of showing that particular distinctions are justifiable is on those who make them. Distinctions are reasonable if they pursue a legitimate aim and have an objective justification, and a reasonable relationship of proportionality exists between the aim sought to be realized and the means employed. These criteria will usually be satisfied if the particular measures can reasonably be interpreted as being in the public interest as a whole and do not arbitrarily single out individuals or groups for invidious treatment.
148. The International Law Definition Applied to Recognition of Minority Practices and Laws. In applying these principles to proposals for the recognition of minority practices and laws it is usual to draw a distinction between appropriate forms of recognition of minority practices, and programs of affirmative action which are aimed at the educational or economic advancement of a particular racial or ethnic group. Systems of protection for or recognition of minority cultures have existed for a long time in many parts of the world: although these may make special provision for such groups, they will not be discriminatory if they are a reasonable response to the special circumstances of the minority, are generally accepted by it, and do not deprive individual members of the minority group of basic rights. This distinction was clearly formulated by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1947:
1. Prevention of discrimination is the prevention of any action which denies to individuals or groups of people equality of treatment which they may wish.
2. Protection of minorities is the protection of non-dominant groups which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics which they possess and which distinguish them from the majority of the population. The protection applies equally to individuals belonging to such groups and wishing the same protection.
Similarly, in the United Nations Committee on Information from Non-Self-Governing Territories (as it then was), a ‘fundamental distinction’ was drawn between discriminatory laws on the one hand, and protective measures designed to safeguard the rights of indigenous inhabitants, including ‘differential or concessionary laws’.
By differential or concessionary legislation [the Committee] meant those laws which reflect the different, religious, traditional and cultural aspirations of the different communities and which originate with and are maintained by the will of the particular communities concerned.
This view was accepted and incorporated in General Assembly Resolution 644 (VII), adopted on 10 December 1952, by which the General Assembly:
Recognizing that there is a fundamental distinction between discriminatory laws and practices, on the one hand, and protective measures designed to safeguard the rights of the indigenous inhabitants, on the other hand …
Recommends that where laws are in existence providing particular measures of protection for sections of the population, these laws should frequently be examined in order to ascertain whether their protective aspect is still predominant, and whether provision should be made for exemption from them in particular circumstances …
A similar distinction was accepted by the Permanent Court of International Justice in the Case concerning Minority Schools in Albania. Commenting on the inter-war minorities treaties, which combined guarantees of equality with a measure of protection of minority rights, the Court stated:
The idea underlying the treaties for the protection of minorities is to secure for certain elements incorporated in a State, the population of which differs from them in race, language or religion, the possibility of living peaceably alongside that population and co-operating amicably with it, while at the same time preserving the characteristics which distinguish them from the majority, and satisfying the ensuing special needs. In order to attain this object, two things were regarded as particularly necessary, and have formed the subject of provisions in these treaties. The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State. The second is to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics. These two requirements are indeed closely interlocked, for there would be no true equality between a majority and a minority if the latter were deprived of its own institutions, and were consequently compelled to renounce that which constitutes the very essence of its being as a minority.
In the scholarly literature there is also general agreement that appropriate measures of recognition of minority customs and traditions are not inconsistent with the principles of equality and non-discrimination in international law.
149. Discrimination in the Racial Discrimination Convention. Articles 1, 2 and 5 of the Racial Discrimination Convention prohibit discrimination on grounds of race, colour, descent or national or ethnic origin. Article 1(1) of the Convention defines ‘racial discrimination’ as:
any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life …
Article 1(4) excludes from the prohibition in Art 1(1) certain ‘special measures’ which would otherwise constitute racial discrimination as defined:
Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.
Article 1(4) thus requires continuing scrutiny of ‘special measures’ to ensure that they are ‘not continued after the objectives for which they were taken have been achieved’. It also prohibits the ‘maintenance of separate rights for different racial groups’, a reference to the discredited ‘separate but equal’ doctrine. Subject to these two provisos, the Convention freely allows ‘special measures’ (often called ‘reverse discrimination’ or ‘affirmative action’) to be taken. Indeed, Art 2(2) of the Convention goes further and ‘requires’ certain action to be taken:
States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other 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. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.
150. Discrimination and Special Measures: Two Views of the Convention. The qualifying phrase ‘when the circumstances so warrant’ in Art 2(2) significantly reduces its impact as a matter of obligation. Nonetheless, Art 2(2) acknowledges not merely that certain ‘special measures’ are justified, but that they may be essential to ensure the protection of certain groups or individuals. If the definition of ‘discrimination’ in Art 1(1) is read as incorporating the general international law test based on ‘reasonable classifications’, then the scope of Art 2(2) would not be limited to ‘special measures’ under Art 1(4), but would include measures which are not discriminatory, in the Art 1(1) sense, at all. Given the drafting history of the Convention, the pre-existing and widely accepted meaning of discrimination in international law, and the apparent consensus of writers, this may be the better interpretation. But Art 1(1) does not in terms specify a criterion based on reasonable classifications. An alternative view would be that the Convention achieves the same result as the general international law test though the combination of a strict guarantee of formal equality (that is, the absence of any distinction involving any element of race, no matter how ‘reasonable’ or legitimate) with a broad exception for ‘special measures’ under Art 1(4) and 2(2) to accommodate the range of special needs. This alternative interpretation does however require that Art 1(4) not be limited to the temporary measures of affirmative action in the strong sense (such as racial quotas in employment or education) with which it is usually associated. A problem with this interpretation is that Art 1(4) seems to envisage measures aimed at achieving a specified ‘result’ or objective within some more or less definite time. But some at least of the special measures’ which are to be taken under Art 2(2) do not have what could be described as an end result in view, and could properly be maintained indefinitely. For example, special provisions for bilingual education for a minority ethnic group are certainly among the measures envisaged by Art 2(2). Such measures should last as long as the linguistic group survives. In such cases the termination of the special measure would indicate, not the ‘achievement’ of its objectives but its failure. For these reasons the better view seems to be that Art 1(1) of the Convention does incorporate the general test for discrimination based on the reasonableness as opposed to the arbitrariness of particular classifications or distinctions. But, assuming that Art 1(4) is capable of encompassing the different kinds of special measure, there may be little or no practical difference between the two views of the Convention. And subsequent practice, especially that of the Committee on the Elimination of Racial Discrimination established under the Convention, supports the view that special measures recognising cultural or indigenous minority rights may be entirely justified under Art 1, if not indeed required under Art 2(2).
See BG Ramcharan, ‘Equality and Non-discrimination’, in L Henkin (ed) The International Bill of Rights. The Covenant on Civil and Political Rights, New York, Columbia University Press, 1981, 246; WA McKean, ‘The Meaning of Discrimination in International and Municipal Law’ (1970) 44 BYIL 178; WA McKean, Equality and Discrimination under International Law, Oxford, Clarendon Press, 1983, 136-52; and see the authorities cited by I Brownlie, Principles of Public International Law, 3rd edn, Oxford, Clarendon Press, 1979, 596-8.
In the Barcelona Traction Case (Second Phase) ICJ Rep 1970 3, 32 the International Court described ‘the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination’ as obligations which were of universal applicability.
ECHR Set A No 6(1968).
id, 44. And cf Polyviou, 740-6.
McKean (1983) 286-7. cf McKean (1970) 185-6; I Brownlie, ‘The Rights of Peoples in Modern International Law’ (1985) 9 Bull ASLP 104, 109-13.
See for example McKean (1983) 82-7, 91, 95-6; EW Vierdag, The Concept of Discrimination in International Law, The Hague, 1973, 156-8 (his situations C and D).
UN Doc E/CN 4/52, sec V (1947), cited by F Capotorti, Special Rapporteur, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, UN Doc E/CN 4 Sub2/384/Rev 1 (1979) 40 (Capotorti Report).
McKean (1970) 182.
United Nations Yearbook 1952, United Nations, New York, 1953, 575-6 (adopted 51-0:1). cf also ILO Convention No 107 concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries, 26 June 1957 (328 UNTS 247), Arts 4(a), 7, 8, 13. See para 173.
PCIJ Ser A/B No 64 (1935) 17. See also South West Africa Cases (Second Phase) ICJ Rep 1966 6, 307 (Judge Tanaka, diss op).
See eg Capotorti, 40-1, 98; Brownlie (1985) 111-13.
cf Plessy v Ferguson 163 US 537 (1896). It is thus no justification for excluding persons of a certain race from a particular facility (eg schools) that they have access to special facilities of similar standard.
Indeed Art 1(4) goes considerably further in this respect than has the Supreme Court under the United States Constitution: there, affirmative action programs are subject to careful scrutiny: see para 133. For criticism of Art 1(4) on these grounds see M Krygier, ‘Discrimination and Anti-Discrimination Law. Affirmative Action and Human Rights’ (1980) 23 Quadrant 4-10, 9-10. See generally C Cohen, ‘Affirmative Action and the Rights of the Majority’, in C Fried (ed) Minorities: Community and Identity, Springer-Verlag, Berlin, 1983, 353.
See para 147.
N Lemer, The UN Convention on the Elimination of All Forms of Racial Discrimination, 2nd edn, Sijthoff & Noordhoff, Alphen van den Rijn, 1980, 25-33, 39.
See the works cited in n 93, 94, 95.
cf the US caselaw, under which there may be affirmative obligations on the State to provide bilingual education: see Lam v Nichols 414 US 563 (1974), and other cases discussed by M Annis, ‘Indian Education: Bilingual Education — A Legal Right for Native Americans’ (1982) 10 Am Indian L Rev 333, 348-53.
T Meron, ‘The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination’ (1985) 79 AJIL 283, 309-11.