COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS HOLDS GENERAL DISCUSSION ON DRAFT GENERAL COMMENT ON NON-DISCRIMINATION

The Committee on Economic, Social and Cultural Rights this afternoon held a General Discussion on a draft general comment concerning the right to non-discrimination.

Article 2(2) of the International Covenant on Economic, Social and Cultural Rights stipulates that “States Parties undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. The draft general comment says that the principles of non-discrimination and equality are recognised throughout the Covenant. It also notes that non-discrimination and equality are fundamental components of international human rights law and relevant to the enjoyment and exercise of economic, social and cultural rights.

Philippe Texier, Committee Chairperson, introducing the discussion, said that Article 2(2) was particularly important. It had an impact on the right to work, labour rights, the right to health and education; in fact it impacted all the rights encompassed by the Covenant.

Eibe Riedel, Co-Special Rapporteur for the draft General Comment and Committee Expert, introducing the draft general comment, said that the new draft was discussed in the Committee in May 2008, then sent to all specialized agencies and non governmental organizations in June 2008, and it was decided to have another half day general discussion on some of the more important issues of article 2 (2), particularly on prohibited grounds under the heading “other status”.

In the general discussion, Committee Experts said among other things that the draft general comment was prepared from the perspective of western countries; and elaboration on the fundamental links between equality and discrimination with greater depth and clarification was necessary, in addition to that of non-nationals and immigrants. Other issues raised included the absence of international obligations and the reversal of the burden of proof.

In concluding remarks, Eibe Riedel, Co-Special Rapporteur and Committee Expert, said that the discussion was rich and provided some important debate. Many important points had been taken up, which would be reviewed carefully by the Special Rapporteurs. A few points of particular interest, included among others: the idea that substantive equality included both positive measures and temporary special measures of which some were permanent measures; on the relationship of equality and non-discrimination seen as an aggravation of article 3 of the Covenant; the implicit grounds of other status; the question on gender; and the contribution on non-nationals.

Barbara Wilson, Co-Special Rapporteur and Committee Expert, also in concluding remarks, thanked all the contributors to the debate in a historical moment in the Committee. The right for a person who had received a decision from the State body to have the decision reviewed was an important right. It was a right that went across the board and was not just significant to the Covenant. States parties had an immediate obligation to provide a mechanism for redress.

Speaking in the discussion were other Committee members as well as representatives of Social Rights Advocacy Centre; the Norwegian Centre on Human Rights, University of Oslo; the Office of the High Commissioner for Human Rights; the International Labour Organization; Amnesty International, the United Nations Educational, Scientific and Cultural Organization, UNAIDS, and the International Commission of Jurists.

The Committee has so far issued 19 general comments on various issues related to the implementation of economic, social and cultural rights, the most recent being on the right to social security. The Committee issues its General Comments with the view to assisting States parties in fulfilling their reporting obligations.

When the Committee reconvenes at 3 p.m. on Friday, 21 November, it is scheduled to release its final observations and recommendations on the reports which it has reviewed this session before closing the session.

Opening Statements

PHILIPPE TEXIER, Committee Chairperson, introducing the discussion, said that the Committee had worked on the draft general comment No. 20 on the right to non-discrimination in previous sessions. George Malinverni was the previous Special Rapporteur working on the right to non-discrimination. As a result of his appointment to the European Court of Human Rights, the two new Special Rapporteurs appointed to take over the work on the draft general comment were Eibe Riedel and Barbara Wilson. Article 2(2) was particularly important. It had an impact on the right to work, labour rights, the right to health and education; in fact it impacted all the rights encompassed by the Covenant.

EIBE RIEDEL, Co-Special Rapporteur for the draft General Comment and Committee Expert, introducing the draft general comment No.20, said that four years ago, George Malinverni produced a first draft of the general comment which was a bit too academic and much too long. The Office of the High Commissioner for Human Rights commissioned Malcolm Langford to assist in a complete re-drafting. The biggest challenge was to cut down the size of the draft to eight pages. This was only possible with the decision to concentrate on article 2(2) of the Covenant as a cross-cutting, overarching principle that had to be read in conjunction with the specific rights and obligations in Part III of the Covenant, rather than going through the non-discrimination issues right by right. There would be too much detail repeated from general comments that had been already adopted in that respect, under the rubrics “topics of broad application” and “specific legal obligation”. But by way of illustration, a few examples from specific economic, social and cultural rights should be given throughout, but only very carefully; examples given should be evenly spread over all rights, and should not just concentrate on labour rights or health rights.

The new draft was discussed in the Committee in May 2008, then sent to all specialized agencies and non governmental organizations in June 2008, and it was decided to have another half day of general discussion on some of the more important issues of articles 2 (2), particularly on prohibited grounds under the heading “other status”, stressed Mr. Riedel. Committee members made a number of suggested changes which were taken note of. A workshop then took place in Berlin at the end of September 2008 where questions of equality and non-discrimination; select prohibited grounds of discrimination; national policies and remedies; and systemic discrimination were thoroughly discussed. All participants were given a copy of the draft and subsequently made proposals for amendments. In light of those, and the comments to be received today, the submission time had been extended until 15 December 2008 at the very latest. A small editing working group, after examination of the amendments, would produce a draft to be presented to the Committee for adoption in May 2009.

Mr. Riedel said that today’s discussion addressed some issues that had proven to be particularly important, amongst them the notion of “other status” as a prohibited ground of discrimination, and systemic discrimination. Some non governmental organizations argued that article 2(2) was a “stand alone” right, but the Committee had consistently held that article 2(2), like article 2(1), as a principle must be read together within specific rights mentioned in Part III of the Covenant.

Statements

BRUCE PORTER, Executive Director, Social Rights Advocacy Centre, said that the vulnerable groups around the world relied on the Committee to take the lead in addressing economic, social and cultural rights. The critical problem was why those living in poverty and destitution were facing barriers to the right to non-discrimination and equality. The Committee needed to address and identify what those barriers were. It was a new era where economic, social and cultural rights had to guarantee access to specific rights, just as political and civil rights did. The approach to the principle of non-discrimination and equality to date was dominated by political and civil rights. It was necessary to make whole the right to equality and non-discrimination to address those living in poverty and destitution, and to develop a new paradigm of equality and the notion of substantive equality which affirmed positive obligations.

MALCOLM LANGFORD, Norwegian Centre on Human Rights, University of Oslo, said that it was necessary for the Committee to pay attention to the principles of discrimination, including indirect and systematic discrimination which needed more attention; the defence of States parties on reasonable and objective criteria; and the role of private actors: It was also important to compare Article 2(2) to Article 2 in the International Covenant on Civil and Political Rights, and to note that this Covenant should mention extraterritorial obligations for States parties. Two particular areas to be considered were the obligation and duty to collect disaggregated data, especially on the most marginalized groups and how courts dealt with discrimination claims in that regard, and the need to recognize collective complaints. Many groups faced tremendous harassment in filing individual complaints. Furthermore, the shifting of the burden of proof from the complainants to the State parties or other non-State actors was recommended.

CHRISTIAN COURTIS, Human Rights and Economic and Social Issues Unit, Office of the High Commissioner for Human Rights, said that Article 2(2) of the Covenant was a cross cutting obligation that applied to every right. It was important to see how the right to non-discrimination applied to economic, social and cultural rights, and what link existed between the principle and the substance of the rights of the Covenant. One remedy recommended was the use of more case examples to illustrate how the link worked. A particular issue pertaining to measures to be taken by States parties was the use of disaggregated data. How did the Committee see the principle of non-discrimination and the general principle of equality? The principle of non-discrimination was an aggravation of the principle of equality. Further recommendations included, among others, the further illustration of how the principle of non-discrimination specifically related to equality, especially in cases involving the most marginalized groups. The need to further clarify the link was necessary as the principle of non-discrimination was used interchangeably with that of equality. Furthermore, it was noted that the general comment did not focus on groups who were discriminated against as a result of poverty and social and economic status, and this was an important point that needed to be better addressed. He also welcomed, among others things that health status was a forbidden ground for discrimination and examples of jurisprudence were recommended as useful ways to clarify those differences.

PATRICK TARAN, International Labour Organization, said that recognition of non-discrimination regarding non-nationals was clearly stated in several international instruments relating to migrant workers and refugees. However, the reality was that application, implementation and enforcement of those rights for non-nationals remained mitigated at best by economic, political and legal constraints. Regimes of differential treatment of non national persons – particularly, migrant workers – had long existed and renewed forms were emerging today. A particular danger was that discourse and practices now explicitly proposed a lower standard of rights protection and justified discrimination towards migrant workers, and by extension, certain classes of non-nationals. The terminology of illegal migrant or illegal alien had often been associated with practices that simply did not recognize access to universal rights, including those specified in the International Covenant on Economic, Social and Cultural Rights, for such persons.

JULIAN BURGER, Indigenous Peoples and Minorities Unit, Office of the High Commissioner for Human Rights, said that there had been reviews of the situation of indigenous groups in light of Millennium Development Goals and those reviews indicated that those groups had been discriminated against in relation to economic, social and cultural rights. Those groups were disproportionately affected. The situation of disadvantaged groups was carefully constructed by the dominant sectors of society, and was especially illustrated in cases involving Latin American and Asian countries. In relation to the draft general comment, States parties could not address the situation of disadvantaged groups without proactive measures which addressed the historical nature of discrimination against those groups. States could not rely on laws alone, there was no shortage of laws prohibiting discrimination, and so real change depended on reallocation of resources, because often very good laws existed but the problem was the lack of budgets to compliment those laws and their implementation. On the relationship between indigenous peoples and the broader society, there was a prejudice that was built on from the past, which needed to be addressed through multicultural and inclusive education, which sought to make changes over time. The economic and social disadvantages of those groups was closely related to their decision-making processes and economic processes and therefore linked to democratization. Additionally, in relation to culture and intellectual property rights of indigenous peoples, the way in which mainstream society discriminated against traditional cultures was important to address.

BARBARA WILSON, Co-Special Rapporteur and Committee Expert, said that in relation to the immediate nature of States parties’ obligations in relation to the prohibition of non-discrimination, the elimination of discrimination must take place immediately. This meant that all existing laws, programmes, strategies and practices which contained discriminatory clauses or acts or omissions must without delay be amended or repealed or abolished.

On the margin of appreciation and discretion, although it was generally accepted that States parties to the Covenant enjoyed a certain margin of discretion when implementing the rights therein and determining the appropriate measures to be taken in this respect, the scope and freedom of choice was very limited and sometimes inexistent in matters relating to prohibiting discrimination, said Ms. Wilson. States parties had the duty to prohibit all forms of discrimination in law and the duty to take steps progressively towards eliminating discrimination in practice should not be subject to a margin of discretion. Those duties should be respected immediately. On legislation, the Committee urged States parties to adopt without delay specific legislation prohibiting all forms of discrimination. Such laws should be aimed at preventing and eliminating de jure and de facto discrimination. They should cover not only the obligation of State authorities but also, above all, of private or non-State actors (such as employers in the domain of employment). A comprehensive law on anti-discrimination was always encouraged and commended when adopted. However, clauses and specific laws which dealt with particularly vulnerable, disadvantaged or marginalized sectors of the population were often necessary and were strongly encouraged.

Policies, plans and strategies should be put in place in order to guarantee that discrimination was prevented and eradicated, underscored Ms. Wilson. Those measures aimed principally at preventing and abolishing de facto discrimination. They might include human rights education and training and public awareness programmes. Special temporary measures may be necessary to redress past inequities and discriminatory practices. In fact in some cases it might be essential in order to eliminate deep-rooted discrimination or systemic discrimination. The aim of temporary special measures was to improve the situation of traditionally disadvantaged or marginalized groups. On effective remedies, there was an immediate obligation for States parties to provide effective remedies to individuals claiming to be victims of discrimination. Those persons must be provided with a means of redress to receive, if necessary, due compensation.

Discussion of Draft General Comment by Committee Experts

In the general discussion, Committee Experts said that the draft general comment was prepared from the perspective of western countries; elaboration on the fundamental links between equality and discrimination, greater depth and clarification was necessary, and the subject of non-nationals and immigrants and the forms of discrimination those groups were subject to needed to be addressed in greater depth. One Expert asked why the aspect of international obligations was left of the draft general comment. Some aspects of non-discrimination were not illustrated in State party reports, said an Expert.

An Expert said it was important to recognize the reversal of the burden of proof as systematic, and this was the same for access to health care and education. It was important to stress the difficulties of proof and the obligation of States parties to set up systems to make it easier to obtain proof. It was very difficult in many countries to demonstrate proof, and therefore it was very helpful to include such details in the draft.

An Expert said that in relation to the comprehensive law recommended, many States parties had non-discrimination legislation; however, many people were left out, and a comprehensive policy on non-discrimination was needed.

One Expert noted that the text of the draft general comment to him was more useful as a text for an Optional Protocol to the Covenant rather than a general comment on the provisions of the Covenant.

A representative of Amnesty International said that the draft general comment provided an opportunity to address the centrality of the principle of non-discrimination in the realization of economic, social and cultural rights. Highlighting areas of significance in the text included, among other things, the clarification of the range of States parties’ action or inaction of States parties; the clarification of the positive immediate steps to be taken to eliminate de jure and de facto discrimination; and the dual obligations to eliminate direct and indirect discrimination. Amnesty International recommended that a specific section be included which illustrated violations of article 2(2) and outlined the acts State parties should avoid; and that the draft general comment build on, among others, the work of the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of the Child.

KISHORE SINGH, United Nations Educational, Scientific and Cultural Organization (UNESCO), said that social and cultural barriers and unequal opportunities manifested in access to quality education remained one of the most serious difficulties of national educational policies. The fundamental principle of equality of educational opportunities was enshrined in UNESCO’s constitution. The significance of concerted action in monitoring the application of the principle of equality of opportunity in education in the constellation of the United Nations system had to be duly recognized. It was crucial to urge Governments to take concrete measures from a United Nations system-wide perspective to give practical shape to the fundamental principle of non-discrimination and of equality of educational opportunities.

JASON SIGURDSON, Programme Officer, Human Rights Law, UNAIDS said that discrimination against people living with HIV, and those vulnerable to infection, remained a significant barrier in efforts to advance towards universal access to HIV prevention, treatment, care and support, a commitment made by Governments in the 2006 Political Declaration on HIV/AIDS. While efforts to address HIV-related discrimination had increased in recent years, much remained to be done. Even in countries where protective laws existed, the degree to which those laws were enforced was unclear, and such legal frameworks were being undermined by apparent trends to criminalise HIV transmission and put in place other punitive measures against those living with or affected by HIV. Public health was often cited by States as a restriction of human rights. There was particular concern for sex workers, men having sex with men, injecting drug users and prisoners who were all at a higher risk of becoming infected and were the most marginalized populations.

A representative of the International Commission of Jurists said that as compared to other general comments, this draft did not provide a section for international obligations and specifically the prohibition of discrimination in the context of economic relations between States, such as trade agreements and trade agreements. Among others, a clause on non-discrimination in such treaties was extremely important. A number of cases pending between States concerning commercial matters included questioning of capacity or specific legislation which provided for positive discrimination to promote specific groups that had been historically discriminated against. A section along those lines in the draft general comment was recommended.

A representative of the International Labour Organization said that on the issue of special temporary measures, there should be coherence with the other general comments in the United Nations treaty body system and other normative systems such as the International Labour Organization. The concept of positive obligations and special measures for indigenous peoples in relation to land encroachment and language protections was important and had remained as such for some time.

BRUCE ABRAMSON, Human Rights Consultant and Attorney, said that he was speaking in his individual capacity today. The draft did not use the language of human rights. Was this a change of policy? What was the draft’s interpretation of article 2(2)? Transparency on and the insertion of a reasonable qualification was necessary in order to provide necessary protections for individuals.

Concluding Statements

EIBE RIEDEL, Co-Special Rapporteur and Committee Expert, said that the discussion had been rich and had provided some important debate. Many important points had been taken up, which would be reviewed carefully by the Special Rapporteurs. A few points of particular interest, included among others: the idea that substantive equality included both positive measures and temporary special measures of which some were permanent measures; on the relationship of equality and non-discrimination seen as an aggravation of article 3 of the Covenant; the implicit grounds of other status; the question on gender; the contribution on non-nationals; the issue of the informal economy which was a recurring issue specifically under the Covenant; developing the idea of democratization or participation; immediate obligation of States parties on policies, strategies, special temporary measures and effective remedies; the question of gender and identity; discrimination in the family sphere; and the additional notes on the inclusive dimension on the right to education.

BARBARA WILSON, Co-Special Rapporteur and Committee Expert, thanked all the contributors to the debate. The right for a person who had received a decision from the State body to have the decision reviewed was an important right. It was a right that went across the board and was not just significant to the Covenant, and there was an immediate obligation of States parties to provide a mechanism for redress. On special measures, she said that the word temporary was a word of choice and was a bit of a misnomer. It was a case of whether such measures had been taken. Positive measures should be discontinued once there was no longer a need for such measures. It was better to use the term positive measures in relation to short, medium, long-term or permanent.


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